Australian Crime Commission (Tasmania) Act 2004 (Tas)

Australian Crime Commission (Tasmania) Act 2004 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 [Royal Assent 23 September 2004] 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 1. Short title This Act may be cited as the Australian Crime Commission (Tasmania) Act 2004 . 2. Commencement The provisions of this Act commence on a day or days to be proclaimed. 3. Interpretation (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 (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; legal practitioner means an Australian legal practitioner; perform includes to exercise; serious and organised crime means an offence – (a) that involves 2 or more offenders and substantial planning and organisation; and (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; (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 – (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: A x B where – "A" is that number of penalty units; and "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. 4. Act binds Crown This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities. PART 2 - The Australian Crime Commission, the Board and the Inter-Governmental Committee Division 1 - The Australian Crime Commission 5. Functions of ACC 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. 6. CEO to manage ACC operations/investigations (1) The CEO is to manage, coordinate and control ACC operations/investigations. (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. 7. Counsel assisting ACC 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 8. Functions of Board (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; (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. (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. 9. Board meetings (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. 10. Presiding at Board meetings 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. 11. Quorum at Board meetings At a meeting of the Board a quorum is constituted by 7 Board members (not including the CEO). 12. Voting at Board meetings (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. 13. Conduct of Board meetings (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. 14. Resolutions outside of Board meetings (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 (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. 15. Board committees (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 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 16. Functions of Committee (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. (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 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. PART 3 - Examinations 17. Examinations An examiner may conduct an examination for the purposes of a special ACC operation/investigation. 18. Conduct of examination (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 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. (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. (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) – 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. 19. Power to summon witness and take evidence (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 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. 20. Power to obtain documents (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 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. 21. Disclosure of summons or notice may be prohibited (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 (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 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