Crime Commission Act 2012 (NSW)

Crime Commission Act 2012 No 66 An Act to re-enact the New South Wales Crime Commission Act 1985 to implement certain recommendations of the Special Commission of Inquiry into the New South Wales Crime Commission; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Crime Commission Act 2012. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Object The object of this Act is to prevent, disrupt and reduce the incidence of organised and other serious crime. 4 Interpretation (1) In this Act— approved form means a form approved by the Commissioner. Assistant Commissioner means an Assistant Commissioner for the Commission. authorised officer has the same meaning as it has in the Law Enforcement (Powers and Responsibilities) Act 2002. Commission means the New South Wales Crime Commission constituted by this Act. Commissioner means the Commissioner for the New South Wales Crime Commission. criminal group has the same meaning as in section 93S of the Crimes Act 1900. current charge—see subsection (1B). executive officermeans the following— (a) the Commissioner, (b) an Assistant Commissioner. function includes a power, authority or duty, and exercise a function includes perform a duty. government agency means the following— (a) a public authority constituted by or under an Act, (b) a government sector agency within the meaning of the Government Sector Employment Act 2013, (c) a NSW Government agency, (d) a local council or other local authority, (e) a State owned corporation, (f) any other holder of an office or body prescribed by the regulations for the purposes of this definition. head of a government agency or investigative agency means— (a) the chief executive officer or other principal officer of the agency, or (b) a person who is specified by the regulations as the head of a particular agency for the purposes of this definition. investigation means an investigation or reinvestigation conducted by the Commission under this Act and includes any inquiry into matters connected with, or arising out of, the exercise of the Commission's functions. investigative agency means the following— (a) the Ombudsman's Office, (b) the Independent Commission Against Corruption, (c) the Inspector of the Independent Commission Against Corruption and any staff of the Inspector, (d) the Law Enforcement Conduct Commission, (e) the Inspector of the Law Enforcement Conduct Commission and any staff of the Inspector, (f) any law enforcement agency, (g) any person or body prescribed by the regulations for the purposes of this definition. Joint Committee—see section 70. law enforcement agency means the following— (a) the NSW Police Force, (b) a Police Force of another State or a Territory of the Commonwealth, (c) the Australian Federal Police, (d) any other authority or person responsible for the enforcement of the laws of the Commonwealth or of the State, another State or a Territory of the Commonwealth. Management Committee or Committee means the New South Wales Crime Commission Management Committee constituted by this Act. medical practitioner has the same meaning as in the Health Practitioner Regulation National Law (NSW). member of a government agency includes an officer or employee of, or any person otherwise engaged by or acting for or on behalf of, or in place of, or as deputy or delegate of, a government agency. member of an investigative agency includes an officer or employee of, or any person otherwise engaged by or acting for or on behalf of, an investigative agency. officer of the Commission—see section 72. police inquiry means an inquiry carried out under the authority of the Commissioner of Police. production notice—see sections 28 and 29. prosecutor means— (a) the Director of Public Prosecutions or a delegate of the Director of Public Prosecutions, or (b) a police officer, or (c) any other person acting in a public official capacity or a private capacity, who is responsible for the conduct of a prosecution, and includes a reference to an Australian legal practitioner representing a person referred to in paragraphs (a)–(c). psychologist has the same meaning as in the Health Practitioner Regulation National Law (NSW). relevant criminal activity means any circumstances implying, or any allegations, that a relevant offence may have been, or may be being, or may in the future be, committed. relevant offence—see section 5. search warrant means a search warrant issued under section 17. serious crime concern means any circumstances implying, or any allegations, that relevant offences of a particular type or class are being, or are likely to continue to be, committed in an organised, systemic or sustained way so as— (a) to have, or be likely to have, a significant impact on the community, or (b) to involve, or be likely to involve, substantial proceeds (within the meaning of the Criminal Assets Recovery Act 1990) of illegal activity (within the meaning of that Act). staff—see section 74. task force—see section 58. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (1A) For the purposes of this Act, a person who is not physically present at a hearing or a part of a hearing before the Commission is taken to be present at a hearing or a part of a hearing if either— (a) the person— (i) views the hearing or part of the hearing, while it is occurring, by observing it from a concealed position (such as behind a glass partition), or by means of closed circuit television, or by any other means, and (ii) can hear or otherwise understand anything being said or demonstrated while viewing the hearing or the part of the hearing, or (b) the person hears or otherwise understands anything being said or demonstrated during the hearing or part of the hearing, while it is occurring, by means of an electronic system or by any other means, without viewing it. (1B) For the purposes of this Act, a person is the subject of a current charge for an offence if— (a) the person has been charged with the offence and the charge has not been withdrawn, and (b) any proceedings for the offence or any appeal against a court's decision on the offence are pending or not concluded, and (c) the time for making any appeal or further appeal against a court's decision on the offence has not expired or the appeal has not been withdrawn, and (d) a court has not made an order having the effect of granting a permanent stay of proceedings for the offence or any order so made ceases to have that effect. (2) A reference in this Act to a person who has special legal qualifications is a reference to a person who is— (a) qualified to be appointed as (but who is not) a Judge of the Supreme Court of the State or of any other State or Territory, a Judge of the Federal Court of Australia or a Justice of the High Court of Australia, or (b) a former Judge or Justice of any court referred to in paragraph (a). 5 Meaning of "relevant offence" (1) In this Act— relevant offence means an offence that is punishable by imprisonment for life or for a term of 3 or more years (other than an offence the time for the commencement of a prosecution for which has expired). (2) For the purposes of this Act, an offence that is not a relevant offence but that the Commission suspects may be directly or indirectly connected with, or may be a part of, a course of activity involving the commission of a relevant offence (whether or not the Commission has identified the nature of that relevant offence), is, for so long as the Commission so suspects, taken to be a relevant offence. 6 Notes Notes included in this Act do not form part of this Act. Part 2 New South Wales Crime Commission Division 1 Constitution of Commission 7 Commission (1) There is constituted by this Act a corporation with the corporate name of the New South Wales Crime Commission. (2) The Commission has the functions conferred or imposed on it by or under this or any other Act. (3) The functions of the Commission are exercisable by the Commissioner. Any act, matter or thing done in the name of, or on behalf of, the Commission by the Commissioner, or with the authority of the Commissioner, is taken to have been done by the Commission. (4) A reference in this Act to a hearing before the Commission or anything done or omitted by, to or in relation to the Commission includes a reference to a hearing before, or a thing done or omitted by, to or in relation to the Commissioner or another executive officer of the Commission having authority in the circumstances. 8 Commissioner (1) The Governor may appoint a Commissioner for the New South Wales Crime Commission. (2) The Commissioner has and may exercise the functions conferred or imposed on the Commissioner by or under this or any other Act. (3) Schedule 1 contains ancillary provisions with respect to the office of Commissioner. 9 Assistant Commissioners (1) The Governor may, with the concurrence of the Commissioner, appoint 2 or more Assistant Commissioners for the New South Wales Crime Commission. (2) At least one of the Assistant Commissioners must have special legal qualifications. (3) An Assistant Commissioner has and may exercise the functions conferred or imposed on an Assistant Commissioner by or under this or any other Act. (4) The Commissioner may determine the functions an Assistant Commissioner is required to exercise and allocate the functions to be exercised by each Assistant Commissioner. (5) Schedule 1 contains ancillary provisions with respect to the office of Assistant Commissioner. Division 2 Functions of Commission 10 Principal functions of Commission (1) The principal functions of the Commission are as follows— (a) to investigate matters relating to a relevant criminal activity or serious crime concern referred to the Commission by the Management Committee for investigation, (a1) to investigate matters relating to the criminal activities of criminal groups referred to the Commission by the Management Committee for investigation, (b) to assemble evidence that would be admissible in the prosecution of a person for a relevant offence arising out of any such matters and to furnish any such evidence to the Director of Public Prosecutions, (c) to furnish evidence obtained in the course of its investigations (being evidence that would be admissible in the prosecution of a person for an indictable offence against the law of the Commonwealth or another State or Territory) to the Attorney General or to the appropriate authority in the jurisdiction concerned, (d) to reinvestigate matters relating to any criminal activity that were the subject of a police inquiry (being an inquiry referred for reinvestigation to the Commission by the Management Committee) and to furnish its findings to the Committee together with any recommendation as to action the Commission considers should be taken in relation to those findings, (e) to furnish in accordance with this Act reports relating to organised and other crime, which include, where appropriate, recommendations for changes in the laws of the State, (f) to provide investigatory, technological and analytical services to such persons or bodies as the Commission thinks fit, (g) with the approval of the Management Committee, to work in co-operation with such persons or authorities of the Commonwealth, the State or another State or Territory (including any task force and any member of a task force) as the Commission considers appropriate, (h) to apply for orders under the Crimes (Serious Crime Prevention Orders) Act 2016. (2) Nothing in this Division precludes the Commission from inquiring into matters connected with, or arising out of, the exercise of its functions under this or any other Act or law, whether or not those matters are the subject of a reference to the Commission by the Management Committee. 11 Functions under Criminal Assets Recovery Act 1990 The Commission may exercise a function conferred or imposed on it by the Criminal Assets Recovery Act 1990, may carry out investigations in aid of the exercise of those functions and may, for the purposes of that Act, make such use as it thinks fit of any information obtained by it in the execution of this Act. 11A Functions under Law Enforcement Conduct Commission Act 2016 (1) An expression used in this section which is defined in the Law Enforcement Conduct Commission Act 2016 has the meaning it has in that Act. (2) The Crime Commission has the functions of working collaboratively (so far as practicable) with the Law Enforcement Conduct Commission (the LECC) with respect to the education of Crime Commission officers about Crime Commission officer misconduct, officer maladministration and agency maladministration and the support and promotion of initiatives of the Crime Commission directed at the prevention and elimination of such misconduct and maladministration. (3) As soon as practicable after a misconduct matter is received by the Crime Commissioner or after the Commissioner becomes aware of a misconduct matter, the Commissioner may (except as provided by subsection (5)) decide as follows— (a) to investigate or otherwise deal with the misconduct matter under this Act, (b) to refer the misconduct matter to the LECC for consideration of whether or not it is to be investigated by LECC or otherwise dealt with under the Law Enforcement Conduct Commission Act 2016, (c) to take no further action under this Act with respect to the misconduct matter. Note— The Commissioner may decide to take action with respect to misconduct matters in accordance with Part 8 of the Government Sector Employment Rules 2014. (4) A decision under subsection (3) may be made in respect of the whole or any part of a misconduct matter. (5) The Commissioner must refer a misconduct matter received by the Commissioner or of which the Commissioner becomes aware that alleges, indicates or suggests that conduct of the Commissioner or an Assistant Commissioner is (or could be) officer misconduct to the LECC unless the misconduct has been referred to the Commissioner by the LECC. (6) The Commissioner is to take into account any misconduct matters management guidelines or recommendation of the LECC in deciding how to investigate or deal with the misconduct matter. (7) However, if the Commissioner decides to investigate a misconduct matter, the Commissioner may cause the misconduct matter to be investigated in any manner the Commissioner thinks fit and, in the case of a complaint may cause such action to be taken as the Commissioner thinks fit to resolve the complaint, subject to this Act or any other law. (8) As soon as practicable after deciding how to deal with a misconduct matter that is a notifiable misconduct matter, the Commissioner must, in accordance with any relevant misconduct matters management guidelines, notify the LECC of the Commissioner's decision with respect to the misconduct matter. (9) In referring a misconduct matter to the LECC, the Commissioner may recommend how the misconduct matter should be dealt with. (10) Additional information from a complainant, and any existing information relevant to a misconduct matter to which the Commissioner can readily obtain access, may be used in making a decision concerning a misconduct matter. (11) The making of a decision under this section is not an investigation of the misconduct matter to which the decision relates. (12) The regulations may make provision for or with respect to the handling of misconduct matters involving staff of the Commission. 12 Information and reports with respect to government agencies and members of government agencies (1) The Commission may, if it considers it desirable to do so— (a) furnish any information relating to the exercise of the functions of a government agency that the Commission obtains, or a report on that information, to the relevant Minister, and (b) make to that Minister such recommendations (if any) relating to the exercise of the functions of the government agency, as the Commission considers appropriate. (2) The Commission may, if it considers it desirable to do so— (a) furnish any information relating to the conduct of a member of a government agency, in his or her capacity as such, that the Commission obtains, or a report on that information, to the head of that agency or (if the member is the head of the agency) to the relevant Minister, and (b) make to the head or Minister such recommendations (if any) relating to the conduct of the member as the Commission considers appropriate. 13 Liaison with other bodies The Commission may, in accordance with guidelines (if any) furnished by the Management Committee— (a) disseminate intelligence and information to such persons or bodies of the Commonwealth, the State or another State or Territory or country (including any task force and any member of a task force) as the Commission thinks appropriate, and (b) co-operate and consult with such persons or bodies as the Management Committee thinks appropriate. Note— Section 80 applies to a person to whom information is given by the Commission under this section in certain circumstances. 14 Incidental powers of Commission (1) The Commission has power to do all things necessary to be done for or in connection with, or reasonably incidental to, the exercise of its functions. Any specific powers conferred on the Commission by this Act are not taken to limit by implication the generality of this section. (2) (Repealed) 15 Delegation by Commission (1) The Commission may delegate to an executive officer or a member of staff of the Commission any of its functions, other than this power of delegation. (2) The Commissioner may delegate to an Assistant Commissioner or member of staff of the Commission any of his or her functions. (3) An Assistant Commissioner or member of staff of the Commission may delegate to a member of staff of the Commission any of the functions delegated to the Assistant Commissioner, subject to any conditions to which the delegation is subject. (4) The following functions may not be delegated (except as provided by subsection (5))— (a) a function of making a report under this Act, (b) the power of an executive officer to require the head of a government agency to furnish information under section 28, (c) the power of an executive officer to require a person to appear before the Commission and produce documents or things under section 24, (d) the power of an executive officer to require a person to attend and produce a document or thing under section 29, (e) the power of the Commissioner to issue a warrant for the arrest of a person under section 36. (5) The functions referred to in subsection (4) (a) and (e) may be delegated to an Assistant Commissioner. Division 3 Search warrants 16 Definitions In this Division— thing includes a document. things of a relevant kind means a thing or things of a particular kind— (a) connected with a matter relating to a relevant criminal activity or serious crime concern, or the criminal activities of a criminal group, into or in respect of which the Commission is conducting an investigation, or (b) that may be used in evidence in proceedings for the taking, by or on behalf of the Crown in right of the State, of civil remedies in respect of a matter connected with, or arising out of, an offence to which the relevant criminal activity, serious crime concern or criminal activity of the criminal group relates. 17 Search warrants (1) An executive officer may apply to an authorised officer for the issue of a search warrant if— (a) the Commission has reasonable grounds for suspecting that there is, or within one month may be, in or on any premises things of a relevant kind, and (b) the Commission believes on reasonable grounds that, if a summons were issued for the production of the things, the things might be concealed, lost, mutilated or destroyed. (2) An authorised officer to whom an application is made under this section may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising any member of the NSW Police Force, or any other person, named in the warrant— (a) to enter the premises, and (b) to search the premises for things of the relevant kind, and (c) to seize any things of the relevant kind found in or on the premises and deliver things so seized to the Commission, and (d) in addition, to seize any other thing found in the course of executing the warrant that the person executing the warrant believes on reasonable grounds— (i) to be evidence that would be admissible in the prosecution of another person for a relevant offence, or for an indictable offence against the law of the Commonwealth, of a State or of a Territory, and (ii) that it is necessary to seize in order to prevent its concealment, loss, mutilation or destruction, or its use in committing such an offence. (3) Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 applies to a search warrant issued under this section. (4) A search warrant issued under this section must include— (a) a statement of the purpose for which the warrant is issued, and (b) a description of the kind of things (other than those referred to in subsection (2) (d)) authorised to be seized. (5) The statement must include a reference to the matter relating to a relevant criminal activity or serious crime concern, or the criminal activities of a criminal group, into or in respect of which the Commission is conducting an investigation and with which the things of the relevant kind are connected. Note— Covert search warrants may be obtained under Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002. 18 Dealing with seized things (1) The Commission may retain a thing seized under a search warrant if, and for so long as, retention of the thing is considered by the Commission to be reasonably necessary for the purposes of an investigation to which the thing is relevant. (2) If the thing may be used for the purposes of evidence in proceedings— (a) for the taking, by or on behalf of the Crown in right of the State, of civil remedies in respect of a matter connected with, or arising out of, an offence to which a relevant criminal activity, serious crime concern or criminal activity of a criminal group relates—the Commission must deliver it to the authority or person responsible for taking the proceedings, or (b) in the prosecution of a person for an indictable offence against the law of the Commonwealth or another State or Territory—the Commission may deliver it to the Attorney General or to the appropriate authority in that jurisdiction, or (c) in the prosecution of a person for a relevant offence–the Commission may deliver it to the Director of Public Prosecutions. (3) Except as provided by subsection (4), the Commission must return the thing to the owner or person who had lawful possession of the thing before it was seized if the Commission is satisfied that— (a) its retention for the purposes referred to in subsection (1) or (2) is not required, and (b) it is lawful for the person to have possession of the thing. (4) If it appears to the Commission— (a) that there is no person who is entitled to possession of any thing referred to in subsection (3), or (b) that there is such a person, but the person does not wish to have possession of any such thing, the Commission may apply to the Local Court for directions as to its disposal and dispose of it in accordance with the directions given by the Local Court in response to the application. Division 4 Hearings 19 Hearings (1) For the purposes of an investigation the Commission may hold hearings. (2) A hearing must be conducted by one or more executive officers, as determined by the Commissioner. (3) The Commissioner or (if the Commissioner is not conducting the hearing) an Assistant Commissioner with special legal qualifications determined by the Commissioner is to preside at a hearing conducted by 2 or more executive officers. 20 Procedure at hearings generally The procedure at a hearing of the Commission is, subject to this Act and any directions of the Commissioner, to be determined by the executive officer presiding at the hearing. 21 Hearings to be held in private (1) A hearing before the Commission is to be held in private and the Commission may (subject to section 21A) give directions as to the persons who may be present during the hearing or a part of the hearing. (2) Nothing in a direction given by the Commission under subsection (1) prevents the presence, when evidence is being taken at a hearing before the Commission, of an Australian legal practitioner representing— (a) the person giving evidence, or (b) under section 22 (1) (b), a person who because of a direction given by the Commission under subsection (1) is entitled to be present. (3) A person (other than an executive officer, counsel assisting the Commission in relation to the matter that is the subject of a hearing or a member of staff of the Commission approved by the Commission) must not be present at the hearing unless the person is entitled to be present because of a direction given by the Commission under subsection (1) or because of subsection (2). Maximum penalty—100 penalty units or imprisonment for 2 years, or both. (4) A direction must not be given under subsection (1) permitting a person to be present during a hearing or part of a hearing while a witness is giving evidence, unless before the direction is given— (a) the witness is informed that it is proposed that the person be present, and (b) the witness has an opportunity to comment on the person being present. (5) To avoid doubt, a person does not cease to be entitled to be present at a hearing or a part of the hearing if— (a) the Commission fails to comply with subsection (4), or (b) a witness comments adversely on the presence of the person under subsection (4) (b). 21A Provisions relating to directions as to presence at hearings (1) This section applies where a hearing before the Commission involves a person (the charged person) who is the subject of a current charge for an offence. (2) A direction must not be given under section 21 for a person to be present during any part of the hearing that involves the charged person, unless the Commission or person presiding at the Commission is of the opinion that the presence of the first mentioned person is reasonably necessary to assist the Commission to exercise its functions properly. (3) A direction must not be given under section 21 for a person to be present at any part of the hearing while the charged person is being questioned about the subject matter of the offence, if the first mentioned person is a member of an investigative agency and is involved in the investigation of the charged person in relation to the offence. 22 Legal representation (1) At a hearing before the Commission— (a) a person giving evidence may be represented by an Australian legal practitioner, and (b) if, because of the existence of special circumstances, the Commission consents to a person who is not giving evidence being represented by an Australian legal practitioner—the person may be so represented. (2) Subsection (1) does not prevent the Commission from refusing to permit a particular Australian legal practitioner to represent a particular witness in an investigation if it believes on reasonable grounds and in good faith that to allow representation by the particular legal practitioner will, or is likely to, prejudice its investigation. 23 Evidence The Commission is not bound by the rules or practice of evidence and can inform itself on any matter in such manner as it considers appropriate. 24 Power to summon witnesses and take evidence (1) An executive officer with special legal qualifications may summon a person to appear before the Commission at a hearing to give evidence and to produce such documents or other things (if any) as are referred to in the summons. (2) The summons may require the immediate attendance of a person before the Commission if the executive officer believes on reasonable grounds that delay in attendance might result in— (a) the commission of an offence, or (b) the escape of an offender, or (c) the loss or destruction of evidence, or (d) serious prejudice to the conduct of an investigation. (3) The summons must be accompanied by a copy of the notice, or of each of the notices, by which the matter or matters to which the hearing relates was or were referred to the Commission by the Management Committee. (4) The summons must set out, so far as is reasonably practicable, the general nature of the matters in relation to which the Commission intends to question the person unless the Commission is satisfied that, in the particular circumstances of an investigation to which the hearing relates, it would prejudice the effectiveness of the investigation for the summons to do so. (5) Nothing in subsection (4) prevents the Commission from questioning the person in relation to any matter that relates to an investigation. (6) The executive officer presiding at a hearing before the Commission may require a person appearing at the hearing to produce a document or other thing (whether or not the document or thing is present at the hearing). (7) The Commission may, at a hearing, take evidence on oath or affirmation and for that purpose— (a) the person presiding at the hearing may require a person appearing at the hearing to give evidence either to take an oath or to make an affirmation in a form approved by the person presiding, and (b) the person presiding or an authorised person may administer an oath or affirmation to a person so appearing at the hearing. (8) In this section— authorised person means 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 Commissioner. 25 Failure of witnesses to attend and answer questions etc (1) A person served with a summons to appear as a witness at a hearing before the Commission must not, without reasonable excuse— (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 an executive officer. (2) A person appearing as a witness at a hearing before the Commission must not, without reasonable excuse or except as provided by section 39 or 40— (a) when required under section 24 either to take an oath or make an affirmation—refuse or fail to comply with the requirement, or