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TASMANIA
__________
AUSTRALIAN CRIME COMMISSION
(TASMANIA) BILL 2004
__________
CONTENTS
PART 1 PRELIMINARY
1. Short title
2. Commencement
3. Interpretation
4. Act binds Crown
PART 2 THE AUSTRALIAN CRIME COMMISSION,
THE BOARD AND THE INTER-GOVERNMENTAL
COMMITTEE
Division 1 The Australian Crime Commission
5. Functions of ACC
6. CEO to manage ACC operations/investigations
7. Counsel assisting ACC
Division 2 The Board of the ACC
8. Functions of Board
9. Board meetings
10. Presiding at Board meetings
11. Quorum at Board meetings
12. Voting at Board meetings
[Bill 12]-I
13. Conduct of Board meetings
14. Resolutions outside of Board meetings
15. Board committees
Division 3 The Inter-Governmental Committee
16. Functions of Committee
PART 3 EXAMINATIONS
17. Examinations
18. Conduct of examination
19. Power to summon witness and take evidence
20. Power to obtain documents
21. Disclosure of summons or notice may be prohibited
22. Offences of disclosure
23. Failure of witnesses to attend and answer questions
24. Warrant for arrest of witness
25. False or misleading evidence
26. Protection of witness from harm or intimidation
27. Legal protection of examiners, counsel and witnesses
28. Order for delivery to examiner of passport of witness
PART 4 SEARCH WARRANTS
29. Search warrants
30. Application by telephone for search warrants
PART 5 PERFORMANCE OF FUNCTIONS AND
EXERCISE OF POWERS
31. Consent of Board may be needed before functions can be
performed
32. Functions not affected by State laws
33. Extent to which functions are conferred
34. Performance of functions
35. Functions of federal judicial officers
2
36. Limitation on challenge to Board determination
37. Cooperation with law enforcement agencies and
coordination with overseas authorities
38. Incidental powers of ACC
PART 6 GENERAL
39. Double jeopardy
40. Arrangements for Board to obtain information or
intelligence
41. Administrative arrangements with Commonwealth
42. Judges to perform functions under ACC Act
43. Furnishing of reports and information
44. Secrecy
45. Delegation
46. Liability for damages
47. Obstructing, hindering or disrupting ACC or examiner
48. Public meetings and bulletins
49. Annual report
50. Things done for multiple purposes
51. Regulations
52. Administration of Act
53. Transitional provisions
54. Consequential amendments
55. Act repealed
SCHEDULE 1 TRANSITIONAL PROVISIONS
SCHEDULE 2 CONSEQUENTIAL AMENDMENTS
SCHEDULE 3 ACT REPEALED
3
4
AUSTRALIAN CRIME COMMISSION
(TASMANIA) BILL 2004
(Brought in by the Minister for Police and Public Safety,
the Honourable David Edward Llewellyn)
A BILL FOR
An Act to make provision for the operation of the
Australian Crime Commission in Tasmania, to
repeal the National Crime Authority (State
Provisions) Act 1985 and for related purposes
Be it enacted by His Excellency the Governor of Tasmania,
by and with the advice and consent of the Legislative
Council and House of Assembly, in Parliament assembled,
as follows:
PART 1 PRELIMINARY
Short title
1. This Act may be cited as the Australian Crime
Commission (Tasmania) Act 2004.
Commencement
2. The provisions of this Act commence on a day or days to
be proclaimed.
[Bill 12] 5
s. 3 No. Australian Crime Commission 2004
(Tasmania)
Interpretation
3. (1) In this Act, unless the contrary intention appears
"ACC Act" means the Australian Crime
Commission Act 2002 of the Commonwealth;
Note: That Act was originally known as the National Crime
Authority Act 1984.
"ACC operation/investigation" means
(a) an ACC State intelligence operation; or
(b) an ACC State investigation;
"ACC State intelligence operation" means an
intelligence operation that the ACC is
undertaking under section 5(b);
"ACC State investigation" means an investigation
that the ACC is conducting under section 5(a);
"authority" includes a department, agency or body;
"Commonwealth body or person" means
(a) the ACC; or
(b) the Board; or
(c) the Chair of the Board; or
(d) a member of the Board; or
(e) the Inter-Governmental Committee; or
(f) the CEO; or
(g) a member of the staff of the ACC; or
(h) an examiner; or
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2004 Australian Crime Commission No. s. 3
(Tasmania)
(i) a Judge of the Federal Court; or
(j) a Federal Magistrate;
"Commonwealth Minister" means the
Commonwealth Minister administering the
ACC Act;
"confer" includes to impose;
"Federal Magistrate" means a Federal Magistrate
(including the Chief Federal Magistrate) who
holds office under the Federal Magistrates Act
1999 of the Commonwealth;
"function" has a meaning affected by
subsection (4);
"intelligence operation" means the collection,
correlation, analysis or dissemination of
criminal information and intelligence relating
to a relevant criminal activity;
"issuing officer" means
(a) a Judge of the Federal Court; or
(b) a Judge of a court of the State; or
(c) a Federal Magistrate;
"perform" includes to exercise;
"serious and organised crime" means an
offence
(a) that involves 2 or more offenders and
substantial planning and organisation;
and
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(Tasmania)
(b) that involves, or is of a kind that
ordinarily involves, the use of
sophisticated methods and techniques;
and
(c) that is committed, or is of a kind that is
ordinarily committed, in conjunction
with other offences of a like kind; and
(d) that is an offence of a kind prescribed by
the regulations or an offence that
involves any of the following:
(i) theft;
(ii) fraud;
(iii) tax evasion;
(iv) money laundering;
(v) currency violations;
(vi) illegal drug dealings;
(vii) illegal gambling;
(viii) obtaining financial benefit by vice
engaged in by others;
(ix) extortion;
(x) violence;
(xi) bribery or corruption of, or by, an
officer of the Commonwealth, an
officer of a State or an officer of a
Territory;
(xii) perverting the course of justice;
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2004 Australian Crime Commission No. s. 3
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(xiii) bankruptcy and company
violations;
(xiv) harbouring of criminals;
(xv) forging of passports;
(xvi) firearms;
(xvii) armament dealings;
(xviii) illegal importation or exportation
of fauna into or out of Australia;
(xix) cybercrime;
(xx) matters of the same general
nature as one or more of the
matters listed above; and
(e) that is punishable by imprisonment for a
period of 3 years or more
but
(f) does not include an offence committed in
the course of a genuine dispute as to
matters pertaining to the relations of
employees and employers by a party to
the dispute, unless the offence is
committed in connection with, or as part
of, a course of activity involving the
commission of a serious and organised
crime other than an offence so
committed; and
(g) does not include an offence the time for
the commencement of a prosecution for
which has expired;
"special ACC operation/investigation" means
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(Tasmania)
(a) an ACC State intelligence operation that
the Board has determined to be a special
operation; or
(b) an ACC State investigation that the
Board has determined to be a special
investigation;
"State Minister" means the State Minister
administering this Act.
(2) If this Act uses a term that is used in the ACC
Act, the term has the same meaning in this Act as it has
in the ACC Act unless the contrary intention appears in
this Act.
(3) If the head of an ACC operation/investigation
suspects that an offence (the "incidental offence") that is
not a serious and organised crime may be directly or
indirectly connected with, or may be a part of, a course of
activity involving the commission of a serious and
organised crime (whether or not the head has identified
the nature of that serious and organised crime), then the
incidental offence is, for so long only as the head so
suspects, taken, for the purposes of this Act, to be a
serious and organised crime.
(4) A reference in this Act, other than in Part 2, to a
function includes a reference to a power or duty.
(5) In this Act a fine expressed as a number of
"penalty units" is a fine of the amount calculated in
accordance with the following formula:
AxB
where
"A" is that number of penalty units; and
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(Tasmania)
"B" is the amount (in dollars) that is for the
time being a penalty unit under the
Crimes Act 1914 of the Commonwealth.
(6) A note in the text of this Act does not form part
of this Act.
Act binds Crown
4. This Act binds the Crown in right of Tasmania and, so
far as the legislative power of Parliament permits, in all
its other capacities.
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PART 2 THE AUSTRALIAN CRIME COMMISSION,
THE BOARD AND THE INTER-GOVERNMENTAL
COMMITTEE
Division 1 The Australian Crime Commission
Functions of ACC
5. The ACC has the following functions:
(a) to investigate a matter relating to a relevant
criminal activity, in so far as the serious and
organised crime is, or the serious and
organised crimes are or include, an offence or
offences against a law of the State
(irrespective of whether that offence or those
offences have a federal aspect);
(b) to undertake an intelligence operation in so
far as the serious and organised crime is, or
the serious and organised crimes are or
include, an offence or offences against a law of
the State (irrespective of whether that offence
or those offences have a federal aspect);
(c) to provide a report to the Board on the
outcome of such an investigation or operation;
(d) such other functions as are conferred on the
ACC by other provisions of this Act or any
other Act.
CEO to manage ACC operations/investigations
6. (1) The CEO is to manage, coordinate and control ACC
operations/investigations.
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(Tasmania)
(2) As soon as practicable after the Board consents
under section 55A(3) of the ACC Act to the ACC
undertaking an intelligence operation under section 5(b)
or conducting an investigation under section 5(a), the CEO
must determine, in writing, the head of the operation or
investigation.
(3) Before the CEO determines the head of the
operation or investigation, the CEO must consult the
Chair of the Board, and such other members of the Board
as the CEO thinks appropriate, in relation to the
determination.
(4) Subject to such consultation with the examiners
as is appropriate and practicable, the CEO may make
arrangements as to the examiner who is to be able to
exercise his or her powers under this Act in relation to a
special ACC operation/investigation.
Counsel assisting ACC
7. The CEO may appoint a legal practitioner to assist the
ACC as counsel in relation to ACC
operations/investigations generally or in relation to a
particular matter or matters.
Division 2 The Board of the ACC
Functions of Board
8. (1) The Board has the following functions:
(a) to determine, in writing, whether an ACC
State intelligence operation is a special
operation or whether an ACC State
investigation is a special investigation;
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(b) to determine, in writing, the class or classes of
persons to participate in an ACC State
intelligence operation or ACC State
investigation;
(c) to establish task forces;
(d) such other functions as are conferred on the
Board by other provisions of this Act.
(2) The Board may determine, in writing, that an
ACC State intelligence operation is a special operation
but, before doing so, it must consider whether methods of
collecting the criminal information and intelligence that
do not involve the use of powers in this Act have been
effective.
(3) The Board may determine, in writing, that an
ACC State investigation is a special investigation but,
before doing so, it must consider whether ordinary police
methods of investigation into the matters are likely to be
effective.
(4) A determination under subsection (2) or (3)
must
(a) describe the general nature of the
circumstances or allegations constituting the
relevant criminal activity to which the
operation or investigation relates; and
(b) state that the serious and organised crime is,
or the serious and organised crimes are or
include, an offence or offences against a law of
the State but need not specify the particular
offence or offences; and
(c) set out the purpose of the operation or
investigation.
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(Tasmania)
(5) The Chair of the Board must, within the period
of 3 days beginning on the day a determination under
subsection (2) or (3) is made, give a copy of the
determination to the Inter-Governmental Committee.
(6) A determination under subsection (2) or (3) has
effect immediately after it is made.
(7) Sections 9 to 15 have effect in relation to the
Board's functions under this Act.
Board meetings
9. (1) The Chair of the Board may convene meetings of
the Board.
(2) The Chair, in exercising his or her power to
convene meetings, 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
10. A meeting of the Board must be presided over by
(a) if the Chair of the Board is present, the Chair;
or
(b) otherwise, another eligible Commonwealth
Board member who is present and who is
nominated, in writing, by the Chair to preside.
Quorum at Board meetings
11. At a meeting of the Board a quorum is constituted by
7 Board members (not including the CEO).
15
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(Tasmania)
Voting at Board meetings
12. (1) Subject to this section, a question arising at a
meeting of the Board is to be determined by a majority of
the votes of Board members present.
(2) The person presiding at a meeting has
(a) a deliberative vote; and
(b) if necessary, also a casting vote.
(3) The CEO is not entitled to vote on any question
arising at a meeting of the Board.
(4) The Board cannot determine that an ACC State
intelligence operation is a special operation, or that an
ACC State investigation is a special investigation, unless
at least 9 Board members (including at least 2 eligible
Commonwealth Board members) vote in favour of making
the determination.
Conduct of Board meetings
13. (1) The Board may regulate proceedings at its
meetings as it considers appropriate.
(2) The Board must ensure that minutes of its
meetings are kept.
Resolutions outside of Board meetings
14. (1) This section applies to a resolution
(a) which, without being considered at a meeting
of the Board, is referred to all members of the
Board; and
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(Tasmania)
(b) of which
(i) if subparagraph (ii) does not apply, a
majority of those members (not
including the CEO); or
(ii) if the resolution is that the Board
determine that an ACC State
intelligence operation is a special
operation, or that an ACC State
investigation is a special investigation,
at least 9 Board members (not including
the CEO but including at least 2 eligible
Commonwealth Board members)
indicate by telephone or other mode of
communication to the Chair of the Board that
they are in favour.
(2) The resolution is as valid and effectual as if it
had been passed at a meeting of the Board duly convened
and held.
Board committees
15. (1) The Board may, with the unanimous agreement of
all the members of the Board (not including the CEO),
establish a committee or committees to assist in carrying
out the functions of the Board.
(2) The Board may dissolve a committee at any time.
(3) The functions of a committee are as determined
by the unanimous agreement of all the members of the
Board (not including the CEO).
(4) However, the Board cannot determine that a
committee has the function of determining whether an
ACC State intelligence operation is a special operation or
17
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(Tasmania)
whether an ACC State investigation is a special
investigation.
(5) In performing its functions, a committee must
comply with any directions given to the committee by the
Board.
(6) A question arising at a meeting of a committee is
to be determined by a majority of the votes of committee
members present.
(7) However, the CEO is not entitled to vote on any
question arising at a meeting of a committee of which he
or she is a member.
(8) A committee must inform the other members of
the Board of its decisions.
(9) A committee may regulate proceedings at its
meetings as it considers appropriate.
(10) A committee must ensure that minutes of its
meetings are kept.
Division 3 The Inter-Governmental Committee
Functions of Committee
16. (1) Within the period of 30 days beginning on the day
the Committee is given a copy of a determination (a
"special determination") under section 8(2) or (3), the
Committee may by resolution, with the agreement of the
member of the Committee representing the
Commonwealth and at least 5 other members of the
Committee, request the Chair of the Board to give further
information to the Committee in relation to the
determination.
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(Tasmania)
(2) Subject to subsection (3), the Chair of the Board
must comply with the request.
(3) If the Chair of the Board considers that
disclosure of information to the public could prejudice the
safety or reputation of persons or the operations of law
enforcement agencies, the Chair must not give the
Committee the information.
(4) If the Chair of the Board does not give the
Committee information on the ground that the Chair
considers 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.
(5) If the Committee refers the request to the State
Minister, he or she
(a) must determine in writing whether disclosure
of the information could prejudice the safety or
reputation of persons or the operations of law
enforcement agencies; and
(b) must provide copies of that determination to
the Chair of the Board and the Committee;
and
(c) must not disclose his or her reasons for
determining the question of whether the
information could prejudice the safety or
reputation of persons or the operations of law
enforcement agencies in the way stated in the
determination.
(6) Within the period of 30 days beginning on the
day the Committee makes a request under subsection (1)
in relation to a special determination, the Committee may
by resolution, with the agreement of the member of the
Committee representing the Commonwealth and at least 5
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(Tasmania)
other members of the Committee, revoke the
determination.
(7) The Committee must notify the Chair of the
Board and the CEO of the revocation and the revocation
takes effect when the CEO is so notified.
(8) To avoid doubt, the revoking of the
determination does not affect the validity of any act done
in connection with the ACC operation/investigation
concerned before the CEO is so notified.
(9) The Committee does not have a duty to consider
whether to exercise the power under subsection (1) or (6)
in respect of any special determination, whether the
Committee is requested to do so by any person, or in any
other circumstances.
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2004 Australian Crime Commission No. s. 17
(Tasmania)
PART 3 EXAMINATIONS
Examinations
17. An examiner may conduct an examination for the
purposes of a special ACC operation/investigation.
Conduct of examination
18. (1) An examiner may regulate the conduct of
proceedings at an examination as the examiner thinks fit.
(2) At an examination before an examiner
(a) a person giving evidence may be represented
by a legal practitioner; and
(b) if, by reason of the existence of special
circumstances, the examiner consents to a
person who is not giving evidence being
represented by a legal practitioner, the person
may be so represented.
(3) An examination before an examiner must be held
in private and the examiner may give directions as to the
persons who may be present during the examination or a
part of the examination.
(4) Nothing in a direction given by the examiner
under subsection (3) prevents the presence, when evidence
is being taken at an examination before the examiner, of
(a) a person representing the person giving
evidence; or
(b) a person representing, in accordance with
subsection (2), a person who, by reason of a
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(Tasmania)
direction given by the examiner under
subsection (3), is entitled to be present.
(5) If an examination before an examiner is being
held, a person (other than a member of the staff of the
ACC approved by the examiner) must not be present at
the examination unless the person is entitled to be present
by reason of a direction given by the examiner under
subsection (3) or by reason of subsection (4).
(6) At an examination before an examiner
(a) counsel assisting the examiner generally or in
relation to the matter to which the ACC
operation/investigation relates; or
(b) any person authorised by the examiner to
appear before the examiner at the
examination; or
(c) any legal practitioner representing a person at
the examination in accordance with
subsection (2)
may, so far as the examiner thinks appropriate, examine
or cross-examine any witness on any matter that the
examiner considers relevant to the ACC
operation/investigation.
(7) If a person (other than a member of the staff of
the ACC) is present at an examination before an examiner
while another person (the "witness") is giving evidence at
the examination, the examiner must
(a) inform the witness that the person is present;
and
(b) give the witness an opportunity to comment on
the presence of the person.
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(Tasmania)
(8) To avoid doubt, a person does not cease to be
entitled to be present at an examination before an
examiner or part of such an examination if
(a) the examiner fails to comply with
subsection (7); or
(b) a witness comments adversely on the presence
of the person under subsection (7)(b).
(9) An examiner may direct that
(a) any evidence given before the examiner; or
(b) the contents of any document, or a description
of any thing, produced to the examiner; or
(c) any information that might enable a person
who has given evidence before the examiner to
be identified; or
(d) the fact that any person has given or may be
about to give evidence at an examination
must not be published, or must not be published except in
such manner, and to such persons, as the examiner
specifies.
(9A) The examiner must give a direction referred to
in subsection (9) if the failure to do so might 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.
(10) Subject to subsection (11), the CEO may, in
writing, vary or revoke a direction under subsection (9).
(11) The CEO must not vary or revoke a direction if
to do so might 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.
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(Tasmania)
(12) If
(a) a person has been charged with an offence
before a federal court or before a court of the
State; and
(b) the court considers that it may be desirable in
the interests of justice that particular evidence
given before an examiner, being evidence in
relation to which the examiner has given a
direction under subsection (9), be made
available to the person or to a legal
practitioner representing the person
the court may give to the examiner or to the CEO a
certificate to that effect and, if the court does so, the
examiner or the CEO, as the case may be, must make the
evidence available to the court.
(13) If
(a) the examiner or the CEO makes evidence
available to a court in accordance with
subsection (12); and
(b) the court, after examining the evidence, is
satisfied that the interests of justice so
require
the court may make the evidence available to the person
charged with the offence concerned or to a legal
practitioner representing the person.
(14) A person who
(a) is present at an examination in contravention
of subsection (5); or
(b) makes a publication in contravention of a
direction given under subsection (9)
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2004 Australian Crime Commission No. s. 19
(Tasmania)
is guilty of an offence punishable, upon summary
conviction, by a fine not exceeding 20 penalty units or
imprisonment for a term not exceeding one year.
(15) At the conclusion of an examination held by an
examiner, the examiner must give the head of the special
ACC operation/investigation
(a) a record of the proceedings of the examination;
and
(b) any documents or other things given to the
examiner at, or in connection with, the
examination.
Power to summon witness and take evidence
19. (1) An examiner may summon a person to appear
before the examiner at an examination to give evidence
and to produce such documents or other things (if any) as
are referred to in the summons.
(2) Before issuing a summons under subsection (1),
the examiner must be satisfied that it is reasonable in all
the circumstances to do so.
(2A) The examiner must also record in writing the
reasons for the issue of the summons.
(3) A summons under subsection (1) requiring a
person to appear before an examiner at an examination
must be accompanied by a copy of the determination of the
Board that the State ACC intelligence operation is a
special operation or that the State ACC investigation is a
special investigation.
(4) A summons under subsection (1) requiring a
person to appear before an examiner at an examination
must, unless the examiner issuing the summons is
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(Tasmania)
satisfied that, in the particular circumstances of the
special ACC operation/investigation to which the
examination relates, it would prejudice the effectiveness of
the special ACC operation/investigation for the summons
to do so, set out, so far as is reasonably practicable, the
general nature of the matters in relation to which the
examiner intends to question the person, but nothing in
this subsection prevents the examiner from questioning
the person in relation to any matter that relates to a
special ACC operation/investigation.
(5) The examiner who is holding an examination
may require a person appearing at the examination to
produce a document or other thing.
(6) An examiner may, at an examination, take
evidence on oath or affirmation and for that purpose
(a) the examiner may require a person appearing
at the examination to give evidence either to
take an oath or to make an affirmation in a
form approved by the examiner; and
(b) the examiner, or a person who is an
authorised person in relation to the ACC, may
administer an oath or affirmation to a person
so appearing at the examination.
(7) In this section, a reference to a person who is an
authorised person in relation to the ACC is a reference to
a person authorised in writing, or a person included in a
class of persons authorised in writing, for the purposes of
this section by the CEO.
(8) The powers conferred by this section are not
exercisable except for the purposes of a special ACC
operation/investigation.
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(Tasmania)
Power to obtain documents
20. (1) An examiner may, by notice in writing served on a
person, require the person
(a) to attend, at a time and place specified in the
notice, before a person specified in the notice,
being the examiner or a member of the staff of
the ACC; and
(b) to produce at that time and place to the person
so specified a document or thing specified in
the notice, being a document or thing that is
relevant to a special ACC
operation/investigation.
(2) Before issuing a notice under subsection (1), the
examiner must be satisfied that it is reasonable in all the
circumstances to do so.
(2A) The examiner must also record in writing the
reasons for the issue of the notice.
(3) A notice may be issued under this section in
relation to a special ACC operation/investigation, whether
or not an examination before an examiner is being held for
the purposes of the operation or investigation.
(4) A person must not refuse or fail to comply with a
notice served on the person under this section.
(5) A person who contravenes subsection (4) is guilty
of an indictable offence that, subject to this section, is
punishable, upon conviction, by a fine not exceeding 200
penalty units or imprisonment for a term not exceeding 5
years.
(6) Despite an offence against subsection (4) being
an indictable offence, a court of summary jurisdiction may
hear and determine proceedings in respect of the offence if
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(Tasmania)
the court is satisfied that it is proper to do so and the
defendant and the prosecutor consent.
(7) Where, in accordance with subsection (6), a court
of summary jurisdiction convicts a person of an offence
against subsection (4), the penalty that the court may
impose is a fine not exceeding 20 penalty units or
imprisonment for a term not exceeding one year.
(8) The provisions of section 23(3), (4), (4A), (5) and
(9) apply in relation to a person who is required to produce
a document or thing by a notice served on him or her
under this section in the same manner as they apply in
relation to a person who is required to produce a document
or thing at an examination before an examiner.
(9) If there is a contravention of section 23(3) as
applied by subsection (8), the provisions of section 23(6),
(7) and (8) apply to that contravention.
Disclosure of summons or notice may be prohibited
21. (1) The examiner issuing a summons under section 19
or a notice under section 20 must, or may, as provided in
subsection (2), include in it a notation to the effect that
disclosure of information about the summons or notice, or
any official matter connected with it, is prohibited except
in the circumstances, if any, specified in the notation.
(2) A notation must not be included in the summons
or notice except as follows:
(a) the examiner must include the notation if
satisfied that failure to do so would reasonably
be expected to prejudice
(i) the safety or reputation of a person; or
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2004 Australian Crime Commission No. s. 21
(Tasmania)
(ii) the fair trial of a person who has been or
may be charged with an offence; or
(iii) the effectiveness of an operation or
investigation;
(b) the examiner may include the notation if
satisfied that failure to do so might prejudice
(i) the safety or reputation of a person; or
(ii) the fair trial of a person who has been or
may be charged with an offence; or
(iii) the effectiveness of an operation or
investigation;
(c) the examiner may include the notation if
satisfied that failure to do so might otherwise
be contrary to the public interest.
(3) If a notation is included in the summons or
notice, it must be accompanied by a written statement
setting out the rights and obligations conferred or imposed
by section 22 on the person who was served with, or
otherwise given, the summons or notice.
(4) If, after the ACC has concluded the operation or
investigation concerned
(a) no evidence of an offence has been obtained as
described in section 34(1); or
(b) evidence of an offence or offences has been
assembled and given as required by
section 34(1) and the CEO has been advised
that no person will be prosecuted; or
(c) evidence of an offence or offences committed
by only one person has been assembled and
given as required by section 34(1) and criminal
29
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(Tasmania)
proceedings have begun against that person;
or
(d) evidence of an offence or offences committed
by 2 or more persons has been assembled and
given as required by section 34(1) and
(i) criminal proceedings have begun against
all those persons; or
(ii) criminal proceedings have begun against
one or more of those persons and the
CEO has been advised that no other of
those persons will be prosecuted
all the notations that were included under this section in
any summonses or notices relating to the operation or
investigation are cancelled by this subsection.
(5) If a notation is cancelled by subsection (4), the
CEO must serve a written notice of that fact on each
person who was served with, or otherwise given, the
summons or notice containing the notation.
(6) In this section
"official matter" has the same meaning as in
section 22.
Offences of disclosure
22. (1) A person who is served with, or otherwise given, a
summons or notice containing a notation made under
section 21 must not disclose
(a) the existence of the summons or notice or any
information about it; or
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2004 Australian Crime Commission No. s. 22
(Tasmania)
(b) the existence of, or any information about, any
official matter connected with the summons or
notice.
Penalty: Fine not exceeding 20 penalty units or
imprisonment for a term not exceeding one
year.
(2) Subsection (1) does not prevent the person from
making a disclosure
(a) in accordance with the circumstances, if any,
specified in the notation; or
(b) to a legal practitioner for the purpose of
obtaining legal advice or representation
relating to the summons, notice or matter; or
(c) if the person is a body corporate, to an officer
or agent of the body corporate for the purpose
of ensuring compliance with the summons or
notice; or
(d) if the person is a legal practitioner, for the
purpose of obtaining the agreement of another
person under section 23(3) to the legal
practitioner answering a question or
producing a document at an examination
before an examiner.
(3) If a disclosure is made to a person as permitted
by subsection (2) or (4), the following provisions apply:
(a) while he or she is a person of a kind to whom a
disclosure is so permitted to be made, he or
she must not disclose the existence of, or any
information about, the summons or notice, or
any official matter connected with it, except as
permitted by subsection (4);
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(Tasmania)
(b) while he or she is no longer such a person, he
or she must not, in any circumstances, make a
record of, or disclose the existence of, the
summons, notice or matter, or disclose any
information about any of them.
Penalty: Fine not exceeding 20 penalty units or
imprisonment for a term not exceeding one
year.
(4) A person to whom information has been
disclosed, as permitted by subsection (2) or this
subsection, may disclose that information
(a) if the person is an officer or agent of a body
corporate referred to in subsection (2)(c)
(i) to another officer or agent of the body
corporate for the purpose of ensuring
compliance with the summons or notice;
or
(ii) to a legal practitioner for the purpose of
obtaining legal advice or representation
relating to the summons, notice or
matter; or
(b) if the person is a legal practitioner, for the
purpose of giving legal advice, or making
representations, relating to the summons,
notice or matter.
(5) This section ceases to apply to a summons or
notice after
(a) the notation contained in the summons or
notice is cancelled by section 21(4); or
(b) 5 years elapse after the issue of the summons
or notice
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2004 Australian Crime Commission No. s. 23
(Tasmania)
whichever is sooner.
(6) A reference in this section to disclosing
something's existence includes disclosing information from
which a person could reasonably be expected to infer its
existence.
(7) In this section
"official matter" means any of the following
(whether past, present or contingent):
(a) the determination referred to in section 19(3);
(b) an ACC operation/investigation;
(c) an examination held by an examiner;
(d) court proceedings.
Failure of witnesses to attend and answer questions
23. (1) A person served, as prescribed, with a summons to
appear as a witness at an examination before an examiner
must not
(a) fail to attend as required by the summons; or
(b) fail to attend from day to day unless excused,
or released from further attendance, by the
examiner.
(2) A person appearing as a witness at an
examination before an examiner must not
(a) when required pursuant to section 19 either to
take an oath or make an affirmation, refuse or
fail to comply with the requirement; or
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(Tasmania)
(b) refuse or fail to answer a question that he or
she is required to answer by the examiner; or
(c) refuse or fail to produce a document or thing
that he or she was required to produce by a
summons under this Act served on him or her
as prescribed.
(3) Where
(a) a legal practitioner is required to answer a
question or produce a document at an
examination before an examiner; and
(b) the answer to the question would disclose, or
the document contains, a privileged
communication made by or to the legal
practitioner in his or her capacity as a legal
practitioner
the legal practitioner is entitled to refuse to comply with
the requirement unless the person to whom or by whom
the communication was made agrees to the legal
practitioner complying with the requirement but, where
the legal practitioner refuses to comply with the
requirement, he or she must, if so required by the
examiner, give the examiner the name and address of the
person to whom or by whom the communication was made.
(4) Subsection (5) limits the use that can be made of
any answers given at an examination before an examiner,
or documents or things produced at an examination before
an examiner.
(4A) Subsection (5) only applies if
(a) a person appearing as a witness at an
examination before an examiner
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2004 Australian Crime Commission No. s. 23
(Tasmania)
(i) answers a question that he or she is
required to answer by the examiner; or
(ii) produces a document or thing that he or
she was required to produce by a
summons under this Act served on him
or her as prescribed; and
(b) in the case of the production of a document
that is, or forms part of, a record of an existing
or past business, the document sets out details
of earnings received by the person in respect of
his or her employment and does not set out
any other information; and
(c) before answering the question or producing
the document or thing, the person claims that
the answer, or the production of the document
or thing, might tend to incriminate the person
or make the person liable to a penalty.
(5) The answer, or the document or thing, is not
admissible in evidence against the person in
(a) a criminal proceeding; or
(b) a proceeding for the imposition of a penalty
other than
(c) confiscation proceedings; or
(d) a proceeding in respect of
(i) in the case of an answer, the falsity of
the answer; or
(ii) in the case of the production of a
document, the falsity of any statement
contained in the document.
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(Tasmania)
(6) A person who contravenes subsection (1), (2) or
(3) is guilty of an indictable offence that, subject to this
section, is punishable, upon conviction, by a fine not
exceeding 200 penalty units or imprisonment for a term
not exceeding 5 years.
(7) Despite an offence against subsection (1), (2) or
(3) being an indictable offence, a court of summary
jurisdiction may hear and determine proceedings in
respect of the offence if the court is satisfied that it is
proper to do so and the defendant and the prosecutor
consent.
(8) Where, in accordance with subsection (7), a court
of summary jurisdiction convicts a person of an offence
against subsection (1), (2) or (3), the penalty that the court
may impose is a fine not exceeding 20 penalty units or
imprisonment for a term not exceeding one year.
(9) Subsection (3) does not affect the law relating to
legal professional privilege.
Warrant for arrest of witness
24. (1) Where, upon application by an examiner, a Judge
of the Federal Court sitting in chambers or a Judge of the
Supreme Court sitting in chambers is satisfied by evidence
on oath that there are reasonable grounds to believe
(a) that a person who has been ordered, under
section 28, to deliver his or her passport to the
examiner, whether or not the person has
complied with the order, is nevertheless likely
to leave Australia for the purpose of avoiding
giving evidence before the examiner; or
(b) that a person in relation to whom a summons
has been issued under section 19(1)
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2004 Australian Crime Commission No. s. 24
(Tasmania)
(i) has absconded or is likely to abscond; or
(ii) is otherwise attempting, or is otherwise
likely to attempt, to evade service of the
summons; or
(c) that a person has committed an offence under
section 23(1) or is likely to do so
the Judge may issue a warrant for the apprehension of the
person.
(2) The warrant may be executed by any person to
whom it is addressed and the person executing it has
power to break into and enter any premises, vessel,
aircraft or vehicle for the purpose of executing it.
(3) A member of the Australian Federal Police
cannot execute the warrant unless he or she is also a
member of the staff of the ACC.
(4) The warrant may be executed even if the
warrant is not at the time in the possession of the person
executing it.
(5) A person executing the warrant may only use
such reasonable force as is necessary for the execution.
(6) Where a person is apprehended under the
warrant, he or she must be brought, as soon as
practicable, before a Judge of the Federal Court or a Judge
of the Supreme Court and the Judge may
(a) admit the person to bail, with such security as
the Judge thinks fit, on such conditions as the
Judge thinks necessary to ensure the
appearance of the person as a witness before
the examiner; or
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(Tasmania)
(b) order the continued detention of the person for
the purposes of ensuring his or her appearance
as such a witness; or
(c) order the release of the person.
(7) Where a person is under detention under this
section, he or she must, within 14 days after he or she was
brought, or last brought, before a Judge of the Federal
Court or a Judge of the Supreme Court in accordance with
this section, or within such shorter or longer time as a
Judge has fixed upon the last previous appearance of the
person before a Judge under this section, be again brought
before a Judge and the Judge may then exercise any of the
powers of a Judge under subsection (6).
(8) In this section
"Australia" includes the external Territories.
False or misleading evidence
25. (1) A person must not, at an examination before an
examiner, give evidence that the person knows is false or
misleading in a material particular.
(2) A contravention of subsection (1) is an indictable
offence and, subject to this section, is punishable, upon
conviction, by a fine not exceeding 200 penalty units or
imprisonment for a term not exceeding 5 years.
(3) Despite an offence against subsection (1) being
an indictable offence, a court of summary jurisdiction may
hear and determine proceedings in respect of the offence if
the court is satisfied that it is proper to do so and the
defendant and the prosecutor consent.
(4) Where, in accordance with subsection (3), a court
of summary jurisdiction convicts a person of an offence
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2004 Australian Crime Commission No. s. 26
(Tasmania)
against subsection (1), the penalty that the court may
impose is a fine not exceeding 20 penalty units or
imprisonment for a term not exceeding one year.
Protection of witness from harm or intimidation
26. Where it appears to an examiner that, by reason of
the fact that a person
(a) is to appear, is appearing or has appeared at
an examination before the examiner to give
evidence or to produce a document or thing; or
(b) proposes to furnish or has furnished
information, or proposes to produce or has
produced a document or thing, to the ACC
otherwise than at an examination before the
examiner
the safety of the person may be prejudiced or the person
may be subjected to intimidation or harassment, the
examiner may make such arrangements (including
arrangements with the State Minister or with members of
the Australian Federal Police or the Police Service) as are
necessary to avoid prejudice to the safety of the person, or
to protect the person from intimidation or harassment.
Legal protection of examiners, counsel and
witnesses
27. (1) An examiner has, in the performance of his or her
functions or the exercise of his or her powers as an
examiner in relation to an examination before the
examiner, the same protection and immunity as a Justice
of the High Court.
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(Tasmania)
(2) A legal practitioner assisting the ACC or an
examiner or representing a person at an examination
before an examiner has the same protection and immunity
as a barrister has in appearing for a party in proceedings
in the High Court.
(3) Subject to this Act, a person summoned to attend
or appearing before an examiner as a witness has the
same protection as a witness in proceedings in the High
Court.
Order for delivery to examiner of passport of
witness
28. (1) Where, upon application by an examiner, a Judge
of the Federal Court sitting in chambers is satisfied by
evidence on oath that
(a) in connection with a special ACC
operation/investigation, a summons has been
issued under this Act requiring a person to
appear before an examiner at an examination
(whether or not the summons has been
served), or a person has appeared before an
examiner at an examination, to give evidence
or to produce documents or other things; and
(b) there are reasonable grounds for believing
that the person may be able to give to the
examiner evidence or further evidence that is,
or to produce to the examiner documents or
other things or further documents or other
things that are, relevant to the special ACC
operation/investigation and could be of
particular significance to the special ACC
operation/investigation; and
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2004 Australian Crime Commission No. s. 28
(Tasmania)
(c) 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 Judge may make an order requiring the person to
appear before a Judge of the Federal Court on a date, and
at a time and place, specified in the order to show cause
why he or she should not be ordered to deliver the
passport to the examiner.
(2) Where a person appears before a Judge of the
Federal Court under an order made under subsection (1),
the Judge may, if he or she thinks fit, make an order
(a) requiring the person to deliver to the examiner
any passport issued to him or her that is in his
or her possession, custody or control; and
(b) authorising the examiner to retain the
passport until the expiration of such period
(not exceeding one month) as is specified in
the order.
(3) A Judge of the Federal Court may, upon
application by the examiner, extend for a further period
(not exceeding one month) or further periods (not
exceeding one month in each case) the period for which the
examiner is authorised to retain a passport under an order
made under subsection (2), but so that the total period for
which the examiner is authorised to retain the passport
does not exceed 3 months.
(4) A Judge of the Federal Court may, at any time
while the examiner is authorised under an order made
under this section to retain a passport issued to a person,
upon application made by the person, revoke the order
and, if the order is revoked, the examiner must forthwith
return the passport to the person.
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(Tasmania)
(5) In this section
"Australia" includes the external Territories.
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2004 Australian Crime Commission No. s. 29
(Tasmania)
PART 4 SEARCH WARRANTS
Search warrants
29. (1) An eligible person may apply to an issuing officer
for the issue of a warrant under subsection (2) if
(a) the eligible person has reasonable grounds for
suspecting that, on a particular day (the
"relevant day"), being the day on which, or a
particular day within one month after the day
on which, the application is made, 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 operation/investigation ("things of the
relevant kind"); and
(b) the eligible person believes on reasonable
grounds that, if a summons were issued for
the production of the thing or things, the thing
or things might be concealed, lost, mutilated
or destroyed.
(2) Where an application under subsection (1) is
made to an issuing officer, the issuing officer may issue a
warrant authorising a person named in the warrant (the
"authorised person"), with such assistance as the
authorised person thinks necessary and if necessary by
force
(a) to enter upon the land or upon or into the
premises, vessel, aircraft or vehicle; and
(b) to search the land, premises, vessel, aircraft or
vehicle for things of the relevant kind; and
43
s. 29 No. Australian Crime Commission 2004
(Tasmania)
(c) to seize any things of the relevant kind found
upon the land or upon or in the premises,
vessel, aircraft or vehicle and deliver things so
seized to any person participating in the
special ACC operation/investigation.
(3) A member of the Australian Federal Police
cannot be an authorised person unless he or she is also a
member of the staff of the ACC.
(4) An issuing officer must not issue a warrant
under subsection (2) unless
(a) an affidavit has been furnished to him or her
setting out the grounds on which the issue of
the warrant is being sought; and
(b) the applicant (or some other person) has given
to the issuing officer, either orally or by
affidavit, such further information (if any) as
the issuing officer requires concerning the
grounds on which the issue of the warrant is
being sought; and
(c) the issuing officer is satisfied that there are
reasonable grounds for issuing the warrant.
(5) Where an issuing officer issues a warrant under
subsection (2), he or she must state on the affidavit
furnished to him or her as mentioned in subsection (4)(a)
which of the grounds specified in that affidavit he or she
has relied on to justify the issue of the warrant and
particulars of any other grounds relied on by him or her to
justify the issue of the warrant.
(6) A warrant issued under this section must
(a) include a statement of the purpose for which
the warrant is issued, which must include a
reference to the special ACC
44
2004 Australian Crime Commission No. s. 29
(Tasmania)
operation/investigation with which the things
of the relevant kind are connected; and
(b) state whether entry is authorised to be made
at any time of the day or night or during
specified hours of the day or night; and
(c) include a description of the kind of things
authorised to be seized; and
(d) specify a date, not being later than one month
after the date of issue of the warrant, upon
which the warrant ceases to have effect.
(7) A warrant issued under this section may be
executed, in accordance with its terms, at any time during
the period commencing on the relevant day and ending on
the date specified in the warrant as the date upon which
the warrant ceases to have effect.
(8) A person executing a warrant issued under this
section may only use such reasonable force as is necessary
for the execution.
(9) Where, in the course of searching, in accordance
with the terms of a warrant issued under this section, for
things of the relevant kind, the person executing the
warrant finds a thing that he or she believes on reasonable
grounds to be evidence that would be admissible in the
prosecution of a person for an offence against a law of the
Commonwealth or of a State or Territory and he or she
believes on reasonable grounds that it is necessary to seize
the thing in order to prevent its concealment, loss,
mutilation or destruction, or its use in committing such an
offence, the person may seize the thing and, if he or she
does so, the thing is to be taken, for the purpose of this
Act, to have been seized pursuant to the warrant.
(10) Where a thing is seized pursuant to a warrant
issued under this section
45
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(Tasmania)
(a) the head of the special ACC
operation/investigation may retain the thing
if, and for so long as, retention of the thing by
the head of the special ACC
operation/investigation is reasonably
necessary for the purposes of the special ACC
operation/investigation to which the thing is
relevant; and
(b) if the retention of the thing by the head of the
special ACC operation/investigation is not, or
ceases to be, reasonably necessary for such
purposes, a person participating in the special
ACC operation/investigation must cause the
thing to be delivered to
(i) if the thing may be used in evidence in
proceedings of a kind referred to in
subsection (13), the authority or person
responsible for taking the proceedings;
or
(ii) if subparagraph (i) does not apply, the
person who appears to the person
participating in the special ACC
operation/investigation to be entitled to
the possession of the thing
unless the CEO has furnished the thing to the
Attorney-General of the Commonwealth or of
a State, or to a law enforcement agency, or to
another person or authority, in accordance
with section 34(1)(a), (b) or (c).
(11) A person participating in the special ACC
operation/investigation may, instead of delivering a thing
in accordance with subsection (10)(b)(ii), deliver the thing
to the Attorney-General of the Commonwealth or of a
State, or to a law enforcement agency, for the purpose of
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2004 Australian Crime Commission No. s. 30
(Tasmania)
assisting in the investigation of criminal offences, where
the person participating in the special ACC
operation/investigation is satisfied that the thing is likely
to be useful for that purpose.
(12) Nothing in this section affects a right of a
person to apply for, or the power of a person to issue, a
warrant, being a right or power existing otherwise than by
virtue of this section.
(13) Without limiting the generality of
subsection (1)(a), a reference in this section to a thing
connected with a special ACC operation/investigation
includes a reference to a thing that may be used in
evidence in proceedings for the taking, by or on behalf of
the Crown in right of the Commonwealth, of a State or of a
Territory, of civil remedies in respect of a matter
connected with, or arising out of, an offence to which the
special ACC operation/investigation relates.
(14) In this section
"thing" includes a document.
Application by telephone for search warrants
30. (1) Where, by reason of circumstances of urgency, an
eligible person considers it necessary to do so, the eligible
person may make application by telephone for a warrant
under section 29.
(2) Before so making application, the eligible person
must prepare an affidavit that sets out the grounds on
which the issue of the warrant is being sought, but may, if
it is necessary to do so, make the application before the
affidavit has been sworn.
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(Tasmania)
(3) Where an issuing officer issues a warrant under
section 29 upon an application made by telephone, he or
she must
(a) complete and sign the warrant; and
(b) inform the eligible person who made the
application of the terms of the warrant and
the date on which and the time at which it was
signed; and
(c) record on the warrant his or her reasons for
issuing the warrant; and
(d) send a copy of the warrant to the CEO.
(4) Where a warrant is issued under section 29 upon
an application made by telephone, a member of the staff of
the ACC or a member of the Police Service may complete a
form of warrant in the terms indicated by the issuing
officer under subsection (3) and, where a form of warrant
is so completed, he or she must write on it the name of the
issuing officer who issued the warrant and the date on
which and the time at which it was signed.
(5) Where a person completes a form of warrant in
accordance with subsection (4), the person must, not later
than the day next following the date of expiry of the
warrant, send to the issuing officer who signed the
warrant the form of warrant completed by him or her and
the affidavit duly sworn in connection with the warrant.
(6) Upon receipt of the documents referred to in
subsection (5), the issuing officer must attach them to the
warrant signed by him or her and deal with the documents
in the manner in which he or she would have dealt with
the affidavit if the application for the warrant had been
made to him or her in accordance with section 29.
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2004 Australian Crime Commission No. s. 30
(Tasmania)
(7) A form of warrant duly completed in accordance
with subsection (4) is to be taken to be a warrant issued
under section 29.
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(Tasmania)
PART 5 PERFORMANCE OF FUNCTIONS AND
EXERCISE OF POWERS
Consent of Board may be needed before functions
can be performed
31. The conferral of a function on a Commonwealth body
or person by this Act is subject to any provision of the ACC
Act that requires the consent of the Board before the
function can be performed.
Functions not affected by State laws
32. A Commonwealth body or person is not precluded by
any law of the State from performing a function conferred
by this Act.
Extent to which functions are conferred
33. (1) This Act does not purport to impose any duty on a
Commonwealth body or person to perform a function if the
imposition of the duty would be beyond the legislative
power of the Parliament of the State.
(2) This section does not limit the operation of
section 35 of this Act or section 3 of the Acts Interpretation
Act 1931.
Performance of functions
34. (1) Where the ACC, in carrying out an ACC
operation/investigation, obtains evidence of an offence
against a law of the Commonwealth or of a State or
Territory, being evidence that would be admissible in a
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2004 Australian Crime Commission No. s. 34
(Tasmania)
prosecution for the offence, the CEO must assemble the
evidence and give it to
(a) the Attorney-General of the Commonwealth or
the State, as the case requires; or
(b) the relevant law enforcement agency; or
(c) any person or authority (other than a law
enforcement agency) who is authorised by or
under a law of the Commonwealth or of the
State or Territory to prosecute the offence.
(2) Where the ACC, in carrying out an ACC
operation/investigation, obtains evidence that would be
admissible in confiscation proceedings, the CEO may
assemble the evidence and give it to
(a) the Attorney-General of the Commonwealth or
the relevant State, as the case requires; or
(b) a relevant law enforcement agency; or
(c) any person or authority (other than a law
enforcement authority) who is authorised to
commence the confiscation proceedings.
(3) Where, as a result of the performance of any of
the ACC's functions, the Board considers that a
recommendation should be made to the Commonwealth
Minister or to the appropriate State Minister of a
participating State, being a recommendation
(a) for reform of the law relating to relevant
offences, including
(i) evidence and procedure applicable to the
trials of relevant offences; and
(ii) relevant offences in relation to, or
involving, corporations; and
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(Tasmania)
(iii) taxation, banking and financial frauds;
and
(iv) reception by Australian courts of
evidence obtained in foreign countries as
to relevant offences; and
(v) maintenance and preservation of
taxation, banking and financial records;
or
(b) for reform of administrative practices; or
(c) for reform of administration of the courts in
relation to trials of relevant offences
the Board may make the recommendation to the
Commonwealth Minister, or to that State Minister, as the
case may be.
(4) Where the ACC has obtained particular
information or intelligence in the course of performing one
or more of its functions, nothing in this Act is to be taken
to prevent the ACC from making use of the information or
intelligence in the performance of any of its other
functions.
Functions of federal judicial officers
35. (1) In this section
"federal judicial officer" means a Judge of the
Federal Court or a Federal Magistrate.
(2) A function conferred on a federal judicial officer
by this Act is conferred on the federal judicial officer in a
personal capacity and not as a court or a member of a
court but the federal judicial officer need not accept the
function conferred.
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(3) Anything done or made by a federal judicial
officer under this Act has effect only by virtue of this Act
and is not to be taken by implication to be done or made by
a court.
(4) A federal judicial officer performing a function
under this Act has the same protection and immunity as if
he or she were performing that function as, or as a
member of, a court (being the court of which the federal
judicial officer is a member).
Limitation on challenge to Board determination
36. If
(a) an ACC State intelligence operation is
determined by the Board to be a special
operation; or
(b) an ACC State investigation is determined by
the Board to be a special investigation
then, except in a proceeding instituted by the Attorney-
General of the Commonwealth or of a State, any act or
thing done by the ACC because of that determination
must not be challenged, reviewed, quashed or called in
question in any court of the State on the ground that the
determination was not lawfully made.
Cooperation with law enforcement agencies and
coordination with overseas authorities
37. (1) In performing its functions under this Act, the
ACC must, so far as is practicable, work in cooperation
with law enforcement agencies.
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(2) In performing its functions under this Act, the
ACC may coordinate its activities with the activities of
authorities and persons in other countries performing
functions similar to functions of the ACC.
Incidental powers of ACC
38. The ACC has power to do all things necessary to be
done for or in connection with, or reasonably incidental to,
the performance of its functions under this Act, and any
specific powers conferred on the ACC by this Act are not to
be taken to limit by implication the generality of this
section.
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PART 6 GENERAL
Double jeopardy
39. If
(a) an act or omission by a person is an offence
under this Act and is also an offence under the
ACC Act; and
(b) the person has been punished for the offence
under the ACC Act
the person is not liable to be punished for the offence
under this Act.
Arrangements for Board to obtain information or
intelligence
40. The State 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 Commonwealth
41. The State Minister may make an arrangement with
the Commonwealth Minister under which the State will,
from time to time as agreed upon under the arrangement,
make available a person who is an officer or employee of
the State or of an authority of the State or a member of
the Police Service, or persons who are such officers,
employees or members, to perform services for the ACC.
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Judges to perform functions under ACC Act
42. A Judge of the Supreme Court may perform functions
conferred on the Judge by section 22, 23 or 31 of the ACC
Act.
Furnishing of reports and information
43. (1) The Chair of the Board must keep the
Commonwealth Minister informed of the general conduct
of the ACC in the performance of the ACC's functions
under this Act.
(1A) If the Commonwealth Minister requests the
Chair of the Board to provide to him or her information
concerning a specific matter relating to the ACC's conduct
in the performance of its functions under this Act, the
Chair must comply with the request.
(2) Subject to subsection (3), if a State Minister who
is a member of the Inter-Governmental Committee
requests the Chair of the Board to provide to him or her
information concerning a specific matter relating to the
ACC's conduct in the performance of its functions under
this Act, the Chair must comply with the request.
(3) If the Chair of the Board considers that
disclosure of information to the public could prejudice the
safety or reputation of persons or the operations of law
enforcement agencies, the Chair must not provide the
information under subsection (2).
(4) Subject to subsection (6), the Chair of the
Board
(a) must, when requested by the Inter-
Governmental Committee to furnish
information to the Committee concerning a
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specific matter relating to an ACC
operation/investigation that the ACC has
conducted or is conducting, comply with the
request; and
(b) must, when requested by the Inter-
Governmental Committee to do so, and may at
such other times as the Chair of the Board
thinks appropriate, inform the Committee
concerning the general conduct of the ACC in
the performance of the ACC's functions under
this Act.
(5) Subject to subsection (6), the Chair of the Board
must furnish to the Inter-Governmental Committee, for
transmission to the Governments represented on the
Committee, a report of the findings of any special ACC
operation/investigation conducted by the ACC.
(6) The Chair of the Board must not furnish to the
Inter-Governmental Committee any matter the disclosure
of which to members of the public could prejudice the
safety or reputation of persons or the operations of law
enforcement agencies and, if the findings of the ACC in an
investigation include any such matter, the Chair of the
Board must prepare a separate report in relation to the
matter and furnish that report to the State Minister.
(7) The Chair of the Board may include in a report
furnished under subsection (5) a recommendation that the
report be laid before each House of the Parliament of the
State.
(8) The CEO may give to
(a) any law enforcement agency; or
(b) any foreign law enforcement agency; or
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(c) any other authority of the Commonwealth, a
State or a Territory prescribed by the
regulations
any information that has come into the ACC's possession
under this Act and that is relevant to the activities of that
agency or authority if
(d) it appears to the CEO to be appropriate to do
so; and
(e) to do so would not be contrary to a law of the
Commonwealth, a State or a Territory that
would otherwise apply.
(9) The CEO may, whenever it appears to the CEO
to be appropriate to do so, furnish to authorities and
persons responsible for taking civil remedies by or on
behalf of the Crown in right of the Commonwealth, of a
State or of a Territory any information that has come into
the ACC's possession under this Act and that may be
relevant for the purposes of so taking such remedies in
respect of matters connected with, or arising out of,
offences against the laws of the Commonwealth, of a State
or of a Territory, as the case may be.
(10) Where any information relating to the
performance of the functions of an authority of the
Commonwealth or a State or the Administration of a
Territory comes into the ACC's possession under this Act,
the CEO may, if he or she considers it desirable to do so
(a) furnish that information to the authority or
Administration; and
(b) make any recommendations to the authority
or Administration as to the performance of its
functions that the CEO considers appropriate.
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(11) A report under this Act that sets out any
finding that an offence has been committed, or makes any
recommendation for the institution of a prosecution in
respect of an offence, must not be made available to the
public unless the finding or recommendation is expressed
to be based on evidence that would be admissible in the
prosecution of a person for that offence.
(12) The CEO may, whenever it appears to the CEO
to be appropriate to do so, furnish to the Australian
Security Intelligence Organisation any information that
has come into the ACC's possession under this Act and
that is relevant to security as defined in section 4 of the
Australian Security Intelligence Organisation Act 1979 of
the Commonwealth.
Secrecy
44. (1) This section applies to
(a) the CEO; and
(b) a member of the Board; and
(c) a member of the staff of the ACC; and
(d) an examiner.
(2) A person to whom this section applies who,
either directly or indirectly, except for the purposes of a
relevant Act or otherwise in connection with the
performance of his or her functions under a relevant Act,
and either while he or she is or after he or she ceases to be
a person to whom this section applies
(a) makes a record of any information; or
(b) divulges or communicates to any person any
information
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being information acquired by him or her by reason of, or
in the course of, the performance of his or her functions
under this Act, is guilty of an offence punishable on
conviction by a fine not exceeding 50 penalty units or
imprisonment for a term not exceeding one year, or both.
(3) A person to whom this section applies cannot be
required to produce in any court any document that has
come into his or her custody or control in the course of, or
by reason of, the performance of his or her functions under
this Act, or to divulge or communicate to a court a matter
or thing that has come to his or her notice in the
performance of those functions, except where 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
(a) for the purpose of carrying into effect the
provisions of a relevant Act; or
(b) for the purposes of a prosecution instituted as
a result of an operation or investigation
carried out by the ACC in the performance of
its functions.
(4) In this section
"court" includes any tribunal, authority or person
having power to require the production of
documents or the answering of questions;
"member of the staff of the ACC" means
(a) a person referred to in the definition of
"member of the staff of the ACC" in
section 4(1) of the ACC Act; or
(b) a person who assists, or performs
services for or on behalf of, a legal
practitioner appointed under section 7 in
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(Tasmania)
the performance of the legal
practitioner's functions as a counsel to
the ACC;
"produce" includes permit access to, and
"production" has a corresponding meaning;
"relevant Act" means the ACC Act, this Act or any
corresponding Act of another State.
Delegation
45. The CEO may, by writing, delegate to a member of the
staff of the ACC who is an SES employee, or an acting
SES employee, all or any of the CEO's functions under this
Act.
Liability for damages
46. A member of the Board is not liable to an action or
other proceeding for damages for or in relation to an act
done or omitted in good faith in performance or purported
performance of any function conferred or expressed to be
conferred by or under this Act.
Obstructing, hindering or disrupting ACC or
examiner
47. (1) A person must not
(a) obstruct or hinder
(i) the ACC in the performance of its
functions; or
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(ii) an examiner in the performance of his or
her functions as an examiner; or
(b) disrupt an examination before an examiner.
(2) A person who contravenes subsection (1) is guilty
of an indictable offence that, subject to this section, is
punishable, upon conviction, by a fine not exceeding 200
penalty units or imprisonment for a term not exceeding 5
years.
(3) Despite an offence against subsection (1) being
an indictable offence, a court of summary jurisdiction may
hear and determine proceedings in respect of the offence if
the court is satisfied that it is proper to do so and the
defendant and the prosecutor consent.
(4) Where, in accordance with subsection (3), a court
of summary jurisdiction convicts a person of an offence
against subsection (1), the penalty that the court may
impose is a fine not exceeding 20 penalty units or
imprisonment for a term not exceeding one year.
Public meetings and bulletins
48. (1) The Board may hold meetings in public 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 Act.
(2) The Board may publish bulletins for the purpose
of informing the public about the performance of the
ACC's functions, including its functions under this Act.
(3) The Board must not
(a) divulge in the course of a meeting held under
subsection (1); or
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(b) include in a bulletin published under
subsection (2)
any matter the disclosure of which to members of the
public 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
49. (1) In this section
"annual report" means a report by the Chair of the
Board under section 61 of the ACC Act.
(2) An annual report in relation to a year must
include the following:
(a) a description of any ACC State investigation
that the ACC conducted during the year and
that the Board determined to be a special
investigation;
(b) a description, which may include statistics, of
any patterns or trends, and the nature and
scope, of any criminal activity that have come
to the attention of the ACC during that year in
the performance of its functions under this
Act;
(c) any recommendations for changes in the laws
of the Commonwealth, of a participating State
or of a Territory, or for administrative action,
that, as a result of the performance of the
ACC's functions under this Act, the Board
considers should be made;
(d) the general nature and the extent of any
information furnished by the CEO during that
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year under this Act to a law enforcement
agency;
(e) the extent to which ACC State investigations
have resulted in the prosecution in that year
of persons for offences;
(f) the extent to which ACC State investigations
have resulted in confiscation proceedings;
(g) particulars of the number and results of court
proceedings involving the ACC in relation to
its functions under this Act, being proceedings
that were determined, or otherwise disposed
of, during that year.
(3) An annual report must not
(a) identify persons as being suspected of having
committed offences; or
(b) identify persons as having committed offences
unless those persons have been convicted of
those offences.
(4) In any annual report the Chair of the Board
must take reasonable care to ensure that the identity of a
person is not revealed if to reveal his or her identity
might, having regard to any material appearing in the
report, 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.
(5) The State Minister is to cause a copy of
(a) each annual report that he or she receives;
and
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2004 Australian Crime Commission No. s. 50
(Tasmania)
(b) any comments made on the report by the
Inter-Governmental Committee, being
comments that accompanied the report
to be laid before each House of the Parliament of the State
within 15 sitting-days of that House after he or she
receives the report.
Things done for multiple purposes
50. The validity of anything done for the purposes of this
Act is not affected only because it was done also for the
purposes of the ACC Act.
Regulations
51. (1) The Governor may make regulations for the
purposes of this Act.
(2) The regulations may be made so as to apply
differently according to matters, limitations or
restrictions, whether as to time, circumstance or
otherwise, specified in the regulations.
(3) The regulations may authorise any matter to be
from time to time determined, applied or regulated by a
person specified in the regulations.
Administration of Act
52. Until provision is made in relation to this Act by order
under section 4 of the Administrative Arrangements Act
1990
(a) the administration of this Act is assigned to
the Minister for Police and Public Safety; and
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(b) the department responsible to that Minister in
relation to the administration of this Act is the
Department of Police and Public Safety.
Transitional provisions
53. The transitional provisions set out in Schedule 1 have
effect.
Consequential amendments
54. The legislation specified in Schedule 2 is amended as
specified in that Schedule.
Act repealed
55. The Act specified in Schedule 3 is repealed.
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2004 Australian Crime Commission No. sch. 1
(Tasmania)
SCHEDULE 1 TRANSITIONAL PROVISIONS
Section 53
Terms used in this Part
1. In this Schedule
"NCA investigation" means an investigation
under section 5(4) of the NCA (State
Provisions) Act;
"NCA (State Provisions) Act" means the National
Crime Authority (State Provisions) Act 1985.
Certain investigation taken to be special
investigations
2. If an ACC State investigation relates to a matter into
which an NCA investigation had been commenced but not
completed before 1 January 2003, the Board of the ACC is
taken to have determined, in writing, that the ACC State
investigation is a special investigation.
Assembling and giving evidence obtained by the
NCA
3. If
(a) before 1 January 2003, the National Crime
Authority obtained evidence of a kind referred
to in subsection (1) of section 6 of the NCA
(State Provisions) Act; but
(b) the National Crime Authority had not
assembled and given the evidence as
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mentioned in that subsection before 1 January
2003
section 34(1) applies as if that evidence had been obtained
by the ACC in carrying out an ACC
operation/investigation.
Limitation on challenges to validity of references
4. Section 8 of the NCA (State Provisions) Act continues
to apply in relation to a reference made under that Act as
if that section had not been repealed by this Act.
Arrangements to obtain information or intelligence
5. An arrangement that was in force under section 11 of
the NCA (State Provisions) Act immediately before
1 January 2003 has effect as if it had been made under
section 40.
Things seized under search warrants
6. If a thing seized pursuant to a warrant under section
12 of the NCA (State Provisions) Act is in the ACC's
possession, section 29(10) and (11) apply to that thing as if
it had been seized pursuant to a warrant under section 29.
Directions as to publication
7. (1) If a direction was in force under section 16(9) of the
NCA (State Provisions) Act immediately before 1 January
2003
(a) the direction has effect; and
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(b) section 18(10), (11) and (14)(b) apply to the
direction as if it were a direction under
section 18(9).
(2) Section 18(12) and (13), so far as they relate to
the CEO, apply to evidence in relation to which a direction
was given under section 16(9) of the NCA (State
Provisions) Act as if it were evidence given before an
examiner in relation to which the examiner has given a
direction under section 18(9).
Disclosure of summons or notice
8. If a notation made in connection with an NCA
investigation was in force under section 18A of the NCA
(State Provisions) Act immediately before 1 January
2003
(a) the notation has effect; and
(b) section 22 applies to the summons or notice
containing the notation; and
(c) if there is an ACC operation/investigation
relating to the matter to which the NCA
investigation related, section 21(4) and (5)
apply as if the notation had been made in
connection with the ACC
operation/investigation.
Witness protection
9. Arrangements that were in effect under section 24 of
the NCA (State Provisions) Act immediately before 1
January 2003 have effect as if they had been made under
section 26.
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Administrative arrangements in relation to the NCA
10. An arrangement that was in force under section 28(b)
of the NCA (State Provisions) Act immediately before 1
January 2003 has effect as if it had been made under
section 41.
Secrecy obligations
11. (1) In this section
"former official" means a person who was, at any
time, a person to whom section 31 of the NCA
(State Provisions) Act applied.
(2) Section 44(2) and (3) extend to a former official
(whether or not he or she is or has been a person to whom
section 44 applies) as if
(a) references in section 44 to this Act or to a
corresponding Act of another State included
references to the NCA (State Provisions) Act
or to a corresponding Act of another State; and
(b) the reference in section 44(3)(b) to an
investigation carried out by the ACC included
a reference to an investigation carried out by
the National Crime Authority before 1
January 2003.
Validation of administrative actions
12. The Co-operative Schemes (Administrative Actions)
Act 2001 (the "validation Act") applies to administrative
actions that have been taken, or have purportedly been
taken, under the NCA (State Provisions) Act as if
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(a) the NCA (State Provisions) Act were still a
relevant State Act for the purposes of the
validation Act; and
(b) for the purposes of the validation Act, the
"commencement time" in relation to the NCA
(State Provisions) Act were the time when
section 55 commences.
Transitional regulations
13. (1) If there is no sufficient provision in this Schedule
for dealing with a transitional matter, regulations may
prescribe all matters that are required, necessary or
convenient to be prescribed in relation to that matter.
(2) In subclause (1)
"transitional matter" includes a savings or
application matter.
(3) If regulations made under subclause (1) provide
that a state of affairs specified or described in the
regulations is to be taken to have existed, or not to have
existed, at and from a day that is earlier than the day on
which the regulations are published in the Gazette but not
earlier than 1 January 2003, the regulations have effect
according to their terms.
(4) Regulations that contain a provision referred to
in subclause (3) cannot be made more than 12 months
after the day on which section 55 commences.
(5) If regulations contain a provision referred to in
subclause (3), the provision does not operate so as to
(a) affect in a manner prejudicial to any person
(other than the State or an authority of the
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State), the rights of that person existing before
the day of publication of those regulations; or
(b) impose liabilities on any person (other than
the State or an authority of the State) in
respect of anything done or omitted to be done
before the day of publication of those
regulations.
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2004 Australian Crime Commission No. sch. 2
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SCHEDULE 2 CONSEQUENTIAL AMENDMENTS
Section 54
Federal Courts (State Jurisdiction) Act 1999
1. Section 3 is amended by omitting paragraph (e) from
the definition of "relevant State Act" and substituting:
(e) Australian Crime Commission (Tasmania) Act
2004;
Gaming Control Act 1993
1. Section 3(1) is amended by omitting "National Crime
Authority" from paragraph (c) of the definition of "law
enforcement agency" and substituting "Australian Crime
Commission".
Taxation Administration Act 1997
1. Section 79E(1) is amended by omitting paragraph (c)
and substituting the following paragraph:
(c) the Chief Executive Officer of the Australian
Crime Commission or a person authorised by
him or her;
Witness Protection Act 2000
1. Section 3 is amended as follows:
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(a) by omitting paragraph (c) from the definition
of "approved authority" and substituting the
following paragraph:
(c) the Chief Executive Officer of the
Australian Crime Commission;
and
(b) by omitting "paragraph (a), (b) or (c)" from
paragraph (a) of the definition of "officer of an
approved authority" and substituting
"paragraph (a) or (b)";
(c) by omitting "or Chairperson" from paragraph
(a) of the definition of "officer of an approved
authority";
(d) by inserting the following paragraph after
paragraph (a) in the definition of "officer of an
approved authority":
(ab) in relation to an approved
authority within the meaning of
paragraph (c) of the definition of
"approved authority", a person
who is a member of the staff of the
Australian Crime Commission;
2. Section 26 is amended as follows:
(a) by omitting from subsection (2) "paragraph (a),
(b) or (c)" and substituting "paragraph (a) or
(b)";
(b) by omitting from subsection (2)(a) "or
Chairperson";
(c) by inserting the following subsection after
subsection (2):
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2004 Australian Crime Commission No. sch. 2
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(2A) If a notice has been published
under subsection (1) in relation to an approved
authority within the meaning of paragraph (c)
of the definition of "approved authority" in
section 3
(a) for the purposes of an
arrangement referred to in
subsection (1), a person who is a
member of the staff of the
Australian Crime Commission
may perform any function or
exercise any power conferred on a
police officer under this Act; and
(b) the provisions of this Act apply to
the person as if he or she were a
police officer.
3. After section 31, the following section is inserted:
Transitional provisions
31A. Arrangements that were in force between the
Commissioner of Police and the Chair of the
National Crime Authority under section 24
immediately before 1 January 2003 continue in force
for the purposes of this Act as if they were
arrangements made by the Commisioner of Police
with the Chief Executive Officer of the Australian
Crime Commission.
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(Tasmania)
SCHEDULE 3 ACT REPEALED
Section 55
National Crime Authority (State Provisions) Act 1985 (No.
50 of 1985)
76 Government Printer, Tasmania