Commonwealth: Crimes Legislation Amendment (Powers and Offences) Act 2012 (Cth)

Crimes Legislation Amendment (Powers and Offences) Act 2012 Act No. 24 of 2012 as amended This compilation was prepared on 21 November 2012 taking into account amendments up to Act No. 136 of 2012 The text of any of those amendments not in force on that date is appended in the Notes section The operation of amendments that have been incorporated may be affected by application provisions that are set out in the Notes section Prepared by the Office of Parliamentary Counsel, Canberra Contents 1 Short title [see Note 1]........................... 2 Commencement 3 Schedule(s) Schedule 1—Forensic procedures Part 1—Amendments commencing on day after Royal Assent Crimes Act 1914 Part 2—Amendments commencing on day to be fixed by Proclamation Crimes Act 1914 Schedule 2—Amendments relating to disclosure of ACC information Part 1—Amendments commencing on day after Royal Assent Australian Crime Commission Act 2002 Part 2—Amendments commencing on Proclamation Australian Crime Commission Act 2002 Schedule 3—Amendments relating to returnable items for the ACC Australian Crime Commission Act 2002 Schedule 4—Amendments relating to the Integrity Commissioner's investigative powers Law Enforcement Integrity Commissioner Act 2006 Privacy Act 1988 Surveillance Devices Act 2004 Schedule 5—Drugs, plants and precursors Criminal Code Act 1995 Customs Act 1901 Schedule 6—Proceeds of crime amendments Part 1—Amendments Director of Public Prosecutions Act 1983 Proceeds of Crime Act 2002 Part 2—Application of amendments Schedule 7—Releasing federal offenders from prison Crimes Act 1914 Schedule 8—Enforcement of fines Crimes Act 1914 Schedule 9—Re‑appointment of Integrity Commissioner Law Enforcement Integrity Commissioner Act 2006 Notes An Act to amend various Acts relating to the enforcement of the criminal law, and for other purposes 1 Short title [see Note 1] This Act may be cited as the Crimes Legislation Amendment (Powers and Offences) Act 2012. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Commencement information Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table The day this Act receives the Royal Assent. 4 April 2012 2. Schedule 1, Part 1 The day after this Act receives the Royal Assent. 5 April 2012 3. Schedule 1, Part 2 A single day to be fixed by Proclamation. 4 October 2012 However, if the provision(s) do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. 4. Schedule 2, Part 1 The day after this Act receives the Royal Assent. 5 April 2012 5. Schedule 2, Part 2 A single day to be fixed by Proclamation. 25 June 2012 However, if the provision(s) do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. (see F2012L01243) 6. Schedule 3 The day after this Act receives the Royal Assent. 5 April 2012 7. Schedule 4 The day after this Act receives the Royal Assent. 5 April 2012 8. Schedule 5, items 1 to 14 The day this Act receives the Royal Assent. 4 April 2012 9. Schedule 5, item 15 Immediately after the commencement of the provision(s) covered by table item 8. Does not commence However, if item 2 of Schedule 1 to the Customs Amendment (Military End‑Use) Act 2012 does not commence at or before the commencement of the provisions covered by table item 8, the provision(s) do not commence at all. 10. Schedule 6, items 1, 2 and 3 The later of: 5 April 2012 (a) the start of the day after this Act receives the Royal Assent; and (b) immediately after the commencement of items 1 to 154 of Schedule 2 to the Crimes Legislation Amendment Act (No. 2) 2011. However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur. 11. Schedule 6, items 4 to 8 The day after this Act receives the Royal Assent. 5 April 2012 12. Schedule 6, item 9 The later of: 5 April 2012 (a) the start of the day after this Act receives the Royal Assent; and (b) immediately after the commencement of items 1 to 154 of Schedule 2 to the Crimes Legislation Amendment Act (No. 2) 2011. However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur. 13. Schedule 6, items 10 and 11 The day after this Act receives the Royal Assent. 5 April 2012 14. Schedule 7 A single day to be fixed by Proclamation. 4 October 2012 However, if the provision(s) do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. 15. Schedule 8 The day after this Act receives the Royal Assent. 5 April 2012 16. Schedule 9 The day this Act receives the Royal Assent. 4 April 2012 Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act. (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act. 3 Schedule(s) Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. Schedule 1—Forensic procedures Part 1—Amendments commencing on day after Royal Assent Crimes Act 1914 1 Subsection 23WA(1) Insert: accredited laboratory means: (a) a forensic laboratory accredited by the National Association of Testing Authorities, Australia; or (b) a forensic laboratory that is of a kind prescribed by the regulations for the purposes of this paragraph. 2 Subsection 23WA(1) (definition of Commissioner) Omit "staff member", substitute "AFP appointee (within the meaning of the Australian Federal Police Act 1979)". 3 Subsection 23WA(1) (definition of informed consent) Omit "section 23WF", substitute "sections 23WF, 23WG, 23XWG and 23XWR". 4 Subsection 23WA(1) (paragraph (b) of the definition of intimate forensic procedure) After "blood", insert "(other than by a finger prick)". 5 Subsection 23WA(1) (paragraph (c) of the definition of intimate forensic procedure) Repeal the paragraph. 6 Subsection 23WA(1) (after paragraph (a) of the definition of non‑intimate forensic procedure) Insert: (aa) the taking of a sample of blood by a finger prick; (ab) the taking of a sample of saliva, or a sample by buccal swab; 7 Subsection 23WA(1) (definition of senior constable) Repeal the definition. 8 Subsection 23WA(1) Insert: senior police officer means a constable of the rank of sergeant or higher. 9 Section 23WC (table item 2) Omit "senior constable", substitute "senior police officer". 10 Paragraph 23WG(3)(c) Omit "senior constable", substitute "senior police officer". 11 Paragraph 23WJ(3)(a) Omit "constable", substitute "senior police officer". 12 Division 4 of Part ID (heading) Repeal the heading, substitute: Division 4—Non‑intimate forensic procedures on suspect by order of senior police officer 13 Section 23WM (heading) Repeal the heading, substitute: 23WM Non‑intimate forensic procedure may be carried out by order of senior police officer 14 Subsection 23WM(1) Omit "senior constable", substitute "senior police officer". 15 Section 23WN (heading) Repeal the heading, substitute: 23WN Circumstances in which senior police officer may order non‑intimate forensic procedures 16 Section 23WN Omit "senior constable" (wherever occurring), substitute "senior police officer". 17 Section 23WO (heading) Repeal the heading, substitute: 23WO Matters to be considered by senior police officer before ordering forensic procedure 18 Section 23WO Omit "senior constable" (wherever occurring), substitute "senior police officer". 19 Section 23WP (heading) Repeal the heading, substitute: 23WP Record of senior police officer's order 20 Subsections 23WP(1) and (2) Omit "senior constable", substitute "senior police officer". 21 Paragraphs 23WR(a) and (b) After "procedure", insert "(whether or not consent has been sought)". 22 Paragraph 23XL(b) Repeal the paragraph, substitute: (b) the sample is taken using the least painful technique known and available to the person. 23 Section 23XM (table item 2) After "blood", insert "(other than by a finger prick)". 24 Section 23XM (table item 3) Repeal the item. 25 Section 23XM (after table item 9) Insert: 9A the taking of a sample of blood by a finger prick medical practitioner no nurse constable appropriately qualified person 9B the taking of a sample of saliva, or a sample by buccal swab medical practitioner no dentist dental technician nurse constable appropriately qualified person 26 Subsection 23XN(1) Omit ", a sample of saliva, a buccal swab". 27 Section 23XU Repeal the section, substitute: 23XU Samples—sufficient material to share (1) This section applies if: (a) a sample is taken from a suspect under this Part; and (b) the suspect requests the investigating constable that the sample be shared; and (c) there is sufficient material to be analysed both in the investigation of the offence and on behalf of the suspect. (2) The investigating constable must invite the suspect to nominate an accredited laboratory to which a part of the material sufficient for analysis will be provided on behalf of the suspect. (3) If the suspect nominates an accredited laboratory, the investigating constable must ensure that: (a) a part of the material sufficient for analysis is provided to that laboratory, on behalf of the suspect, within the period of 28 days beginning on the day of the nomination; and (b) reasonable care is taken to ensure that the suspect's part of the material is protected and preserved until it is provided to that laboratory. Note: Division 9 contains provisions about making material available to the suspect. (4) The suspect must bear the costs in relation to any analysis of that part of the material provided to that laboratory. 28 Subsection 23XUA(2) Omit "request that a person of his or her", substitute "request the investigating constable that a person (the attendee) of the suspect's". 29 After subsection 23XUA(2) Insert: (2A) The investigating constable must then inform the suspect that the attendee may be directed by the person (the analyst) responsible for analysing the material to leave the premises at which the analysis is being conducted if the attendee does not comply with instructions given by the analyst in relation to the analysis of the material. 30 Subsection 23XUA(3) Omit "The person chosen", substitute "Subject to this section, the attendee". 31 Subsection 23XUA(3) Omit "person responsible for analysing the material", substitute "analyst". 32 At the end of section 23XUA Add: (4) The analyst may give instructions to the attendee relating to the analysis of the material. (5) The analyst may give a direction to the attendee to leave the premises at which the analysis is being conducted if the attendee fails to comply with such an instruction. (6) If the analyst gives such a direction, the analyst must inform the attendee that a failure to comply with the direction is an offence against subsection (7). A failure to comply with this subsection does not affect the validity of the direction. (7) The attendee commits an offence if: (a) the attendee is given a direction under subsection (5); and (b) the attendee fails to comply with the direction. Penalty: 30 penalty units. (8) An offence against subsection (7) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. 33 Section 23XW Repeal the section, substitute: 23XW Results of analysis If: (a) material from a sample taken from a suspect is analysed in the investigation of the offence; and (b) before or after the analysis, the suspect has requested the investigating constable that a copy of the results of any analysis be provided to the suspect; then the investigating constable must ensure that, within 14 days of the analysis or of the request (whichever is the later): (c) a copy of the results of the analysis is provided to the suspect; and (d) if the DNA profile derived from that material has been matched, as part of the investigation of the offence, under section 23YDAF with a DNA profile placed on the crime scene index in relation to the offence—the suspect is informed in writing of that match. 34 Subsection 23XWB(1) Repeal the subsection, substitute: Intimate forensic procedure to which Division applies (1) This Division applies to an intimate forensic procedure that is the taking of a sample of blood (other than by a finger prick). 35 At the end of subsection 23XWB(2) Add: ; (c) the taking of a sample of blood by a finger prick; (d) the taking of a sample of saliva, or a sample by buccal swab. 36 At the end of subsection 23XWC(1) Add: ; or (c) by order of a judge or magistrate under section 23XWO. 37 Subsection 23XWC(3) After "by order of a", insert "judge or". 38 Paragraph 23XWD(b) After "by order of a", insert "judge or". 39 Subsection 23XWE(1) Repeal the subsection, substitute: (1) Division 6 applies in relation to the carrying out under this Division of a forensic procedure on an offender. For this purpose: (a) references in Division 6 to the suspect are taken to be references to the offender; and (b) references in Subdivision F of Division 6 to the investigating constable are taken to be references to the Commissioner. Note: By applying Division 6, sections 23XJ (about use of force in carrying out forensic procedures) and 23XK (about forensic procedures not being carried out in a cruel, inhuman or degrading manner) apply to the carrying out of a forensic procedure under this Division. 40 Paragraph 23XWL(c) Repeal the paragraph. 41 After section 23XWN Insert: 23XWNA Circumstances in which judge or magistrate may order forensic procedure A judge or magistrate may, under section 23XWO, order the carrying out of a forensic procedure on an offender if: (a) the offender is not in custody and has not consented to the forensic procedure (whether or not consent has been sought); or (b) the offender is in custody and has not consented to the forensic procedure (whether or not consent has been sought); or (c) under section 23WE, the offender cannot consent to the forensic procedure. 42 Subsection 23XWO(1) Omit "directing a serious offender to consent to an intimate forensic procedure to which this Division applies being carried out on the serious offender", substitute "for the carrying out of an intimate forensic procedure, or a non‑intimate forensic procedure, to which this Division applies on a serious offender (other than a child or an incapable person)". 43 Paragraph 23XWO(7)(c) Repeal the paragraph. 44 After section 23XWO Insert: 23XWOA Securing the presence of offender at hearing—offender in custody (1) If: (a) an application is made under section 23XWO to a judge or magistrate for an order under that section for the carrying out of a forensic procedure on an offender; and (b) the offender is in custody or is otherwise detained under a law of the Commonwealth, a State or a Territory (original custody); the judge or magistrate may, on the application of a constable, issue a warrant directing the person holding the offender to deliver the offender into the custody (temporary custody) of the constable for the hearing of the application. (2) If the judge or magistrate refuses to make the order under section 23XWO, the constable given temporary custody of the offender must return the offender to the place of original custody without delay. (3) If the judge or magistrate makes the order under section 23XWO, the judge or magistrate may: (a) order the constable given temporary custody of the offender: (i) to convey the offender to the nearest premises where facilities for carrying out the procedure in accordance with this Part are available to that constable; and (ii) to return the offender to the place of original custody without delay after the procedure is carried out; or (b) order the constable given temporary custody of the offender to return the offender to the place of original custody without delay. 23XWOB Securing the presence of offender at hearing—offender not in custody (1) If: (a) an application is made under section 23XWO to a judge or magistrate for an order for the carrying out of a forensic procedure on an offender; and (b) the offender is neither in custody nor detained under a law of the Commonwealth, a State or a Territory; the judge or magistrate may, on the application of a constable: (c) issue a summons for the appearance of the offender at the hearing of the application; or (d) issue a warrant for the arrest of the offender for the purpose of bringing the offender before the judge or magistrate for the hearing of the application. (2) An application for a summons under subsection (1) must be: (a) made by information on oath or affirmation; and (b) accompanied by an affidavit dealing with matters referred to in paragraphs (3)(a) and (b). (3) The judge or magistrate may issue a summons only if satisfied: (a) that the issue of the summons is necessary to ensure the appearance of the offender at the hearing of the application made under section 23XWO; or (b) that the issue of the summons is otherwise justified. (4) An application for a warrant under subsection (1) must be: (a) made by information on oath or affirmation; and (b) accompanied by an affidavit dealing with matters referred to in paragraphs (5)(a), (b) and (c). (5) The judge or magistrate may issue a warrant only if satisfied: (a) that the arrest is necessary to ensure the appearance of the offender at the hearing of the application made under section 23XWO, and that the issue of a summons would not ensure that appearance; or (b) that the offender might destroy evidence that might be obtained by carrying out the forensic procedure; or (c) that the issue of the warrant is otherwise justified. 45 Paragraph 23XWP(1)(b) Omit "offender to permit a forensic procedure to be carried out under this Division", substitute "carrying out of a forensic procedure under this Division on the offender". 46 Subsection 23XWP(3) Omit "an offender who is not in a prison or another place of detention to permit a forensic procedure to be carried out", substitute "the carrying out of a forensic procedure under this Division on an offender who is not in a prison or another place of detention". 47 Subsection 23XWP(4) Omit "An offender ordered to permit the carrying out of a forensic procedure", substitute "If a judge or magistrate orders the carrying out of a forensic procedure under this Division on an offender, the offender". 48 Subsection 23XWQ(2) After "A person", insert "(the authorised person)". 49 After subparagraph 23XWQ(2)(b)(i) Insert: (ia) in a case where the informed consent of the parent or guardian of the volunteer is given in accordance with section 23XWR—after the constable concerned has informed the child or incapable person that, even though consent has been given, if he or she objects to or resists the carrying out of the forensic procedure it will not be carried out; and 50 Subparagraph 23XWQ(2)(b)(ii) Omit "after the person", substitute "after the authorised person". 51 Paragraph 23XWR(2)(b) Repeal the paragraph, substitute: (b) that the information will be stored on the volunteers (limited purposes) index of that system unless the volunteer (or, in the case of a volunteer who is a child or an incapable person, the parent or guardian of the volunteer) chooses for the information to be stored on the volunteers (unlimited purposes) index of that system; and 52 Section 23YDAC Before "In this", insert "(1)". 53 Section 23YDAC (definition of Commonwealth DNA database system) Omit "containing", substitute "that is managed by the Commonwealth and that contains". 54 Section 23YDAC (paragraph (a) of the definition of Commonwealth DNA database system) After "Commonwealth agency", insert "and, in relation to a crime scene index, in so far as it also relates to material taken or obtained by a foreign law enforcement agency (within the meaning of the Australian Crime Commission Act 2002)". 55 Section 23YDAC (after paragraph (a) of the definition of crime scene index) Insert: (aa) at any place outside Australia where an offence under the law of a foreign country was, or is reasonably suspected of having been, committed; or 56 Section 23YDAC (at the end of the definition of State/Territory DNA database system) Add: Note: See also subsection (2). 57 Section 23YDAC (definition of volunteers (limited purposes) index) Omit "paragraph 23XWR(2)(b)", substitute "paragraph 23XWR(2)(ba)". 58 At the end of section 23YDAC Add: (2) For a participating jurisdiction, the database referred to in the definition of State/Territory DNA database system in subsection (1) may be that part of NCIDD that relates to that participating jurisdiction. 59 After paragraph 23YDAE(2)(d) Insert: (da) the purpose of assisting a foreign country to decide whether to make a request under the Mutual Assistance in Criminal Matters Act 1987; 60 Paragraph 23YDA(1)(b) After "suspect", insert ", offender or volunteer". 61 Paragraph 23YDA(2)(a) After "(Division 3)", insert ", asking an offender to consent to a forensic procedure (Division 6A) or asking a volunteer to consent to a forensic procedure (Division 6B)". 62 Paragraph 23YDA(2)(b) After "(Division 4)", insert "or on an offender who is in custody (Division 6A)". 63 Paragraph 23YDA(2)(c) After "(Division 5)", insert ", applying to a judge or magistrate for an order for the carrying out of a forensic procedure on an offender (Division 6A) or applying to a magistrate for an order under section 23XWU for the carrying out of a forensic procedure on a child or incapable person". 64 Paragraphs 23YDA(2)(d), (e) and (f) After "suspect", insert ", offender or volunteer". 65 Subsection 23YG(2) Repeal the subsection, substitute: (2) Subject to subsection (3), material of any kind that is required by this Part to be made available to a suspect, offender or volunteer must be made available in accordance with subsection (1): (a) within 14 days after the material comes into existence; or (b) if the material is requested by the suspect, offender or volunteer or the suspect's, offender's or volunteer's interview friend or legal representative, within 14 days of the request. (3) Subsection (2) does not apply to: (a) copies of records required to be made available under subsection 23XE(5); and (b) material required to be provided under section 23XU; and (c) copies of results of analysis and other information required to be provided under section 23XW. 66 After paragraph 23YO(2)(d) Insert: (da) the purposes of assisting a foreign country to decide whether to make a request under the Mutual Assistance in Criminal Matters Act 1987; 67 After section 23YP Insert: 23YPA Analysis of forensic material The analysis for the Commonwealth of forensic material obtained as a result of the carrying out of a forensic procedure under this Part must be carried out in an accredited laboratory. 68 Subsection 23YQ(1) Omit "staff member", substitute "AFP appointee". 69 Subsection 23YQ(2) Omit "staff member", substitute "AFP appointee". 70 Subsection 23YUC(1) Omit "the forensic procedure", substitute "an intimate forensic procedure". 71 Subsection 23YUC(1) After "an order", insert "under this Part". 72 After subsection 23YUC(1) Insert: (1A) A person is authorised to carry out a non‑intimate forensic procedure authorised by an order under this Part that is registered in accordance with an arrangement referred to in subsection 23YUB(1) anywhere in the Commonwealth. The person is authorised to carry out the procedure in accordance with Division 6 or a corresponding law of a participating jurisdiction, and not otherwise. 73 At the end of Division 11 of Part ID Add: 23YUDA Arrangements with prisons or other places of detention The Commissioner may, on behalf of the Commonwealth, enter into an arrangement with the head (however described) of a prison or other place of detention in a State or Territory in relation to the carrying out of forensic procedures under this Part on offenders who are serving sentences of imprisonment in that prison or other place of detention. 74 Saving—orders by senior constable The amendment made by item 16 does not affect the validity of an order that is in force under section 23WN of the Crimes Act 1914 immediately before the commencement of that item. 75 Application provision (1) The amendments made by items 22 to 26, 34, 35, 39, 48, 49, 50, 67, 70 and 72 apply in relation to the carrying out of forensic procedures starting on or after the commencement of those items. (2) The amendments made by items 27 to 33 apply in relation to samples taken under Part ID of the Crimes Act 1914 on or after the commencement of those items. (3) The amendments made by items 21, 40, 41, 43 and 45 to 47 apply in relation to orders made on or after the commencement of those items. (4) The amendments made by items 42 and 44 apply in relation to applications made under section 23XWO of the Crimes Act 1914 on or after the commencement of those items. (5) The amendment made by item 51 applies in relation to the giving of informed consent on or after the commencement of that item. (6) The amendments made by items 53 to 55 do not affect the continuity of the Commonwealth DNA database system referred to in section 23YDAC of the Crimes Act 1914 or of the crime scene index referred to in that section. (7) The amendments made by items 59 and 66 do not affect by implication the interpretation of sections 23YDAE and 23YO of the Crimes Act 1914 at a time before the commencement of those items. (8) The amendments made by items 60 to 64 apply in relation to actions taken on or after the commencement of those items. (9) The amendment made by item 65 applies in relation to material that, on or after the commencement of that item, is required by Part ID of the Crimes Act 1914 to be made available to a person. Part 2—Amendments commencing on day to be fixed by Proclamation Crimes Act 1914 76 Paragraphs 23WF(2)(b) and (c) Repeal the paragraphs, substitute: (b) informs the suspect, in accordance with the regulations and section 23WJ, of the matters mentioned in that section; and 77 Paragraph 23WG(2)(b) Repeal the paragraph, substitute: (b) informs the suspect, in accordance with the regulations and section 23WJ, of the matters mentioned in that section; and 78 Paragraph 23XWG(1)(b) Repeal the paragraph, substitute: (b) informs the offender, in accordance with the regulations and section 23XWJ, of the matters mentioned in that section; and 79 Subsection 23XWR(1) After "a constable informs the volunteer, parent or guardian", insert ", in accordance with the regulations,". 80 Application provision The amendments made by this Part apply in relation to the giving of informed consent on or after the commencement of this Part. Schedule 2—Amendments relating to disclosure of ACC information Part 1—Amendments commencing on day after Royal Assent Australian Crime Commission Act 2002 1 Section 59 (heading) Repeal the heading, substitute: 59 Providing reports and information to members of Parliament 2 Before subsection 59(1) Insert: Information for Minister 3 Subsection 59(1) After "The Chair of the Board", insert "and the CEO". 4 Subsection 59(1) After "requests the Chair", insert "or the CEO". 5 Subsection 59(1) After "functions, the Chair", insert "or the CEO (as the case requires)". 6 Before subsection 59(1A) Insert: Information for Inter‑Governmental Committee 7 Subsection 59(1A) After "the Chair of the Board" (first occurring), insert "or the CEO". 8 Subsection 59(1A) After "the Chair of the Board" (second occurring), insert "or the CEO (as the case requires)". 9 Subsection 59(2) After "the Chair of the Board", insert "or the CEO (as the case requires)". 10 Subsection 59(2) Omit "the Chair" (second occurring), substitute "he or she". 11 Subsection 59(3) After "the Chair of the Board" (first occurring), insert "or the CEO". 12 Paragraph 59(3)(b) After "the Chair of the Board", insert "or the CEO". 13 Subsection 59(5) After "The Chair of the Board" (first occurring), insert "or the CEO (as the case requires)". 14 Subsection 60(4) After "The Board", insert "or the CEO". 15 Subsection 60(5) Omit "The Board shall", substitute "The Board and the CEO must". 16 Application of this Part The amendments made by this Part apply to any information in the possession of the ACC, whether the information comes into the possession of the ACC before or after this item commences. Part 2—Amendments commencing on Proclamation Australian Crime Commission Act 2002 17 Subsection 4(1) Insert: ACC information means information that is in the ACC's possession. 18 Subsection 4(1) Insert: permissible purpose means one or more of the following purposes: (a) performing functions referred to in section 7A or 7C; (b) preventing, detecting, investigating, prosecuting or punishing: (i) criminal offences or activities that might constitute criminal offences (including under a law of a foreign country); or (ii) contraventions of a law of the Commonwealth, a State or a Territory imposing a penalty or sanction (including taking civil remedies in relation to contraventions of such laws); or (iii) seriously improper conduct (including professional misconduct or misconduct by a public official); (c) preventing, detecting or investigating threats to national security; (d) preventing serious threats to an individual's life, health or safety, or to public health or public safety; (e) enforcing laws (including laws of foreign countries) relating to proceeds of crime; (f) enforcing laws (including laws of foreign countries) relating to unexplained wealth; (g) protecting public revenue; (h) developing government policy; (i) researching criminology; (j) any other purpose prescribed by the regulations. 19 Subsection 12(1) (note) Omit "Note", substitute "Note 1". 20 Subsection 12(1) (note) Omit "section 59", substitute "sections 59AA and 59AB". 21 At the end of subsection 12(1) Add: Note 2: This subsection is subject to any relevant direction given under subsection 25A(9) (see subsection (2) of this section). 22 At the end of subsection 12(1A) Add: Note: This subsection is subject to any relevant direction given under subsection 25A(9) (see subsection (2) of this section). 23 After subsection 12(1A) Insert: (2) Subsections (1) and (1A) are subject to any relevant direction given under subsection 25A(9) (confidentiality in relation to examinations). 24 Subparagraph 47A(1)(b)(ii) Omit "a law enforcement agency or a foreign law enforcement agency", substitute "a person or body (however described) to whom the CEO may disclose ACC information under section 59AA". 25 At the end of subsection 59(1) Add: Note: This section is subject to any relevant direction given under subsection 25A(9) (see section 59AC). 26 Subsections 59(7) to (11) Repeal the subsections, substitute: Information for members of Parliament (7) The Chair of the Board or the CEO may inform one or more of the following persons of the general conduct of the operations of the ACC if the Chair or the CEO (as the case requires) considers that it is in the public interest to do so: (a) a member of either House of the Parliament; (b) a member of the Parliament of a State. Note: A reference to the Parliament of a State includes a reference to the Legislative Assemblies of the Australian Capital Territory and the Northern Territory (see paragraph 4(3)(a)). 27 After section 59 Insert: 59AA Disclosing information to government bodies Commonwealth, State, Territory and foreign agencies etc. (1) The CEO may disclose ACC information to: (a) a body of the Commonwealth, a State or a Territory; or (b) a person who holds an office or appointment under a law of the Commonwealth, a State or a Territory; or (c) an agency that has responsibility for: (i) law enforcement in a foreign country; or (ii) intelligence gathering for a foreign country; or (iii) the security of a foreign country; or (d) an international body that: (i) has functions relating to law enforcement or gathering intelligence; and (ii) is prescribed by the regulations for the purposes of this paragraph; or (e) an international judicial body that is prescribed by the regulations for the purposes of this paragraph; if: (f) the CEO considers it appropriate to do so; and (g) the CEO considers that the information is relevant to a permissible purpose; and (h) disclosing the ACC information would not be contrary to a law of the Commonwealth, a State or a Territory that would otherwise apply. Note 1: For the definition of body, see subsection (3). Note 2: This section is subject to any relevant direction given under subsection 25A(9) (see section 59AC). ASIO (2) The CEO may disclose ACC information to the Australian Security Intelligence Organisation if: (a) the CEO considers it appropriate to do so; and (b) the information is relevant to security (as defined in section 4 of the Australian Security Intelligence Organisation Act 1979); and (c) disclosing the ACC information would not be contrary to a law of the Commonwealth, a State or a Territory that would otherwise apply. Definitions (3) In this section: body includes: (a) a body however described; and (b) a Department of State; and (c) a body (whether incorporated or not) established for a public purpose by or under a law of the Commonwealth, a State or a Territory; and (d) a law enforcement agency. 59AB Disclosing information to private sector bodies (1) The CEO may disclose ACC information to a body corporate that is prescribed, or is included in a class of bodies corporate that is prescribed, by the regulations for the purposes of this section if: (a) the CEO considers it appropriate to do so; and (b) the CEO considers that disclosing the information to the body is necessary for a permissible purpose; and (c) the body has undertaken, in writing, not to use or further disclose the information except: (i) as referred to in subsection (3); or (ii) as required by a law of the Commonwealth, a State or a Territory; and (d) the body has undertaken, in writing, to comply with any conditions the CEO specifies under subsection (4) or (5); and (e) disclosing the ACC information: (i) would not prejudice the safety of a person, or prejudice the fair trial of a person who has been charged with an offence; and (ii) would not be contrary to a law of the Commonwealth, a State or a Territory that would otherwise apply. Note: This section is subject to any relevant direction given under subsection 25A(9) (see section 59AC). Limitations on disclosing information under subsection (1) (2) The CEO may disclose ACC information to a body corporate under subsection (1) only if: (a) for information that is personal information (within the meaning of the Privacy Act 1988)—the CEO considers that disclosing the information is necessary for the purposes of: (i) preventing criminal offences or activities that might constitute criminal offences (including under a law of a foreign country); or (ii) detecting criminal offences or activities that might constitute criminal offences (including under a law of a foreign country); or (iii) facilitating the collection of criminal information and intelligence in relation to criminal offences or activities that might constitute criminal offences (including under a law of a foreign country); and (b) in any case—the information is not confidential commercial information relating to another body or person. Specifying purposes and conditions etc. (3) The CEO must specify, in writing, any permissible purpose for which the ACC information may be used or further disclosed. (4) If the CEO discloses ACC information that is personal information (within the meaning of the Privacy Act 1988) to a body corporate, the CEO must specify, in writing: (a) one or more conditions that the body corporate must meet in relation to monitoring and controlling any further disclosure of that information by an employee or officer of the body corporate; and (b) a condition that the information is not to be disclosed to a person who is not an employee or officer of the body corporate, other than in any circumstances specified; and (c) one or more conditions that the body corporate must meet in order to ensure that the information is not used or disclosed in a way that might prejudice the reputation of a person. (5) The CEO may specify, in writing, any other conditions that the CEO considers appropriate in relation to ACC information that is disclosed under, or in accordance with, this section (whether in relation to personal information or any other ACC information). (6) An instrument made under subsection (3), (4) or (5) is not a legislative instrument. Offence—disclosure etc. for unauthorised purposes (7) A person commits an offence if: (a) ACC information is disclosed to the person under, or in accordance with, this section; and (b) the person (directly or indirectly): (i) makes a record of the information; or (ii) discloses the information to any other person; and (c) the record or disclosure referred to in paragraph (b) is not: (i) for a purpose specified under subsection (3) in relation to the information; or (ii) required by any other law. Penalty: 50 penalty units, or imprisonment for 12 months, or both. Note: For a defence to this offence, see subsection (9). Offence—breach of conditions (8) A person commits an offence if: (a) ACC information is disclosed to the person under, or in accordance with, this section; and (b) the CEO specifies a condition under subsection (4) or (5) in relation to the information; and (c) the person does an act or omits to do an act in relation to the information; and (d) the act or omission breaches the condition. Penalty: 50 penalty units, or imprisonment for 12 months, or both. Note: For a defence to this offence, see subsection (9). Defence—information legitimately made public (9) Subsections (7) and (8) do not apply to a person in relation to ACC information if: (a) the information is in the public domain before the person: (i) makes the record, or discloses the information (if subsection (7) applies); or (ii) does the act or omits to do the act in relation to the information (if subsection (8) applies); and (b) the original disclosure of the information into the public domain (before the person does the thing referred to in subparagraph (a)(i) or (ii) of this subsection) was not: (i) in contravention of section 51 or subsection (7) or (8) of this section; or (ii) in breach of an undertaking given under subsection (1) of this section. Note: A defendant bears an evidential burden in relation to the matter in subsection (9) (see subsection 13.3(3) of the Criminal Code). 59AC Confidentiality in relation to examinations Sections 59, 59AA and 59AB are subject to any relevant direction as in force under subsection 25A(9) (confidentiality in relation to examinations). 59AD Publication of reports in relation to offences A report under this Act that: (a) sets out a finding that an offence has been committed; or (b) makes a recommendation to institute 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. 28 After paragraph 61(2)(d) Insert: (da) the general nature and the extent of any information disclosed by the CEO during that year to a body corporate under section 59AB; 29 Application of this Part The amendments made by this Part apply to any ACC information, whether the information comes into the possession of the ACC before or after this item commences. Schedule 3—Amendments relating to returnable items for the ACC Australian Crime Commission Act 2002 1 Subsection 4(1) Insert: Commonwealth officer: (a) has the meaning given by subsection 3(1) of the Crimes Act 1914; and (b) includes members of the staff of the ACC. 2 Subsection 4(1) Insert: returnable item means: (a) a thing seized under a warrant issued under section 22; or (b) a thing, or a document, produced: (i) under a notice given under section 29; or (ii) during an examination conducted under Division 2 of Part II. 3 Subsection 4(1) (paragraph (d) of the definition of serious and organised crime) Omit "within the meaning of the Proceeds of Crime Act 2002". 4 Subsection 4(1) (subparagraph (da)(ii) of the definition of serious and organised crime) Omit "within the meaning of the Proceeds of Crimes Act 2002". 5 Subsection 4(1) Insert: serious offence: (a) in the definition of serious and organised crime—has the meaning given by the Proceeds of Crime Act 2002; and (b) otherwise—has the meaning given by subsection 3C(1) of the Crimes Act 1914. 6 Subsection 4(1) Insert: State or Territory law enforcement agency has the meaning given by subsection 3ZQU(7) of the Crimes Act 1914. 7 Subsection 4(1) Insert: terrorism offence has the same meaning as in subsection 3(1) of the Crimes Act 1914. 8 Subsection 4(1) Insert: terrorist act has the same meaning as in subsection 100.1(1) of the Criminal Code. 9 Subsections 22(8) and (9) Repeal the subsections. 10 At the end of Division 1A of Part II Add: 24AA Use of and sharing returnable items Use of returnable items by persons who are not members of the staff of the ACC (1) The CEO may make a returnable item available to a constable, or Commonwealth officer, who is not a member of the staff of the ACC, to use for any or all of the following purposes if it is necessary to do so for that purpose: (a) a purpose referred to in subsection 3ZQU(1) of the Crimes Act 1914; (b) the performance of the functions of the ACC referred to in section 7A of this Act; (c) the performance of the functions of the Board referred to in section 7C of this Act. (2) A constable or Commonwealth officer, who is not a member of the staff of the ACC, may use a returnable item for all or any of the purposes referred to in subsection (1) if it is necessary to do so for that purpose. Use of returnable items by members of the staff of the ACC (3) The head of the special ACC operation/investigation to which a returnable item relates may make the item available to another member of the staff of the ACC to use for the purpose of the performance of all or any of the functions referred to in section 7A or 7C. (4) A member of the staff of the ACC may use a returnable item for the purpose of the performance of all or any of the functions referred to in section 7A or 7C. Use of returnable items for State or Territory purposes (5) The CEO may make a returnable item available to a constable or Commonwealth officer to use for any purpose for which the making available of the item is required or authorised by a law of a State or Territory. (6) A constable or Commonwealth officer may use a returnable item for any other use that is required or authorised by or under a law of a State or a Territory. Section does not limit any other law of the Commonwealth (7) To avoid doubt, this section does not limit any other law of the Commonwealth that: (a) requires or authorises the use of a document or other thing; or (b) requires or authorises the making available (however described) of a document or other thing. Sharing returnable item for use by State, Territory or foreign agency (8) The CEO may make a returnable item available to: (a) a State or Territory law enforcement agency; or (b) an agency that has responsibility for: (i) law enforcement in a foreign country; or (ii) intelligence gathering for a foreign country; or (iii) the security of a foreign country; to be used by that agency for a purpose mentioned in subsection (1), (5) or (6) and the purpose of any or all of the following (but not for any other purpose): (c) preventing, investigating or prosecuting an offence against a law of a State or Territory; (d) proceedings under a corresponding law (within the meaning of the Proceeds of Crime Act 1987 or the Proceeds of Crime Act 2002); (e) proceedings for the forfeiture of the item under a law of a State or Territory; (f) deciding whether to institute proceedings or to take any other action mentioned in any of paragraphs 3ZQU(1)(a) to (l) (inclusive) of the Crimes Act 1914, subsection (5) or (6) of this section, or paragraph (c), (d) or (e) of this subsection. Ministerial arrangements for sharing (9) This section does not prevent the Minister from making an arrangement with a Minister of a State or Territory for: (a) the making available to a State or Territory law enforcement agency of that State or Territory, for purposes mentioned in subsections (1), (6) and (8), of returnable items; and (b) the disposal by the agency of such items when they are no longer of use to that agency for those purposes. Note: This subsection does not empower the Minister to make such an arrangement. 24AB When returnable items must be returned (1) If the CEO is satisfied that a returnable item is not required (or is no longer required) for a purpose mentioned in section 24AA or for other judicial or administrative review proceedings, the CEO must take reasonable steps to return the item to: (a) the person from whom the item was seized, or the person who produced the item; or (b) the owner, if the person mentioned in paragraph (a) is not entitled to possess it. (2) However, the CEO does not have to take those steps if: (a) either: (i) the returnable item may be retained because of an order under subsection 24AC(2), or any other order under that subsection has been made in relation to the item; or (ii) the CEO has applied for such an order and the application has not been determined; or (b) the returnable item may otherwise be retained, destroyed or disposed of under a law, or an order of a court or tribunal, of the Commonwealth or of a State or a Territory; or (c) the returnable item is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership. (3) To avoid doubt, if the returnable item is a document, the CEO is required to take reasonable steps to return the document only if the ACC took possession of that document. 24AC Issuing officer may permit a returnable item to be retained, forfeited etc. (1) An issuing officer may, on application by the CEO, make an order under subsection (2) in relation to a returnable item. Preventing use in committing terrorist act, terrorism offence or serious offence (2) The issuing officer may make any of the orders referred to in subsection (3) if the issuing officer is satisfied that there are reasonable grounds to suspect that, if the returnable item is returned to either of the following persons, the item is likely to be used by that person or another person in the commission of a terrorist act, a terrorism offence or a serious offence: (a) the owner of the item; (b) the person from whom the item was seized, or the person who produced the item. (3) The orders are as follows: (a) an order that the item may be retained for the period specified in the order; (b) an order that the item is forfeited to the Commonwealth; (c) if the item is not a document—an order that: (i) the item be sold and the proceeds given to the owner of the item; or (ii) the item be sold in some other way; (d) an order that the item is to be destroyed or otherwise disposed of. Item must be returned if issuing officer not satisfied (4) The issuing officer must order that the returnable item be returned to the following person if the issuing officer is not satisfied as mentioned in subsection (2): (a) the person from whom the item was seized, or the person who produced the item; (b) if the person referred to in paragraph (a) is not entitled to possess the item—the owner of the item. CEO to notify persons with an interest in returnable item (5) Before making the application, the CEO must: (a) take reasonable steps to discover who has an interest in the returnable item; and (b) if it is practicable to do so, notify each person who the CEO believes to have such an interest of the proposed application. Person with interest may appear and be heard (6) The issuing officer must allow a person who has an interest in the returnable item to appear and be heard in determining the application. Function conferred in personal capacity (7) A function of making an order under this section is conferred on an issuing officer in a personal capacity and not as a court or a member of a court. (8) An issuing officer performing a function of, or connected with, making an order under this section 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 issuing officer is a member). 11 Application of this Schedule The amendments made by this Schedule apply to any returnable item, whether seized or produced before or after this Schedule commences. Schedule 4—Amendments relating to the Integrity Commissioner's investigative powers Law Enforcement Integrity Commissioner Act 2006 1 Subsection 5(1) Insert: constable means: (a) a member or special member of the AFP; or (b) a member of the police force or police service of a State or Territory. 2 Subsection 5(1) Insert: Federal Court means the Federal Court of Australia. 3 Subsection 5(1) Insert: in contempt of ACLEI has the meaning given by section 96A. 4 Subsection 20(1) (note) Omit "referred", substitute "notified". 5 Section 21 (heading) Repeal the heading, substitute: 21 Law enforcement agency head to pass on new information in relation to corruption issue already notified 6 Part 8 (heading) Repeal the heading, substitute: Part 8—Public inquiries by Integrity Commissioner 7 Subdivision A of Division 1 of Part 9 (heading) Repeal the heading, substitute: Subdivision A—Notices to give information or to produce documents or things 8 Sections 75 and 76 Repeal the sections, substitute: 75 Notice to give information or to produce document or thing Giving notice (1) For the purpose of investigating a corruption issue, the Integrity Commissioner may, by notice in writing, require a person to do either or both of the following: (a) give the information specified in the notice; (b) produce the documents or things specified in the notice; if the Integrity Commissioner has reasonable grounds to suspect that the information, documents or things will be relevant to the investigation. Note: In certain cases, disclosing the existence of a notice, or any information about it, is an offence: see section 77B. (2) The Integrity Commissioner may require that information specified under paragraph (1)(a) is to be given in writing. (3) The notice must: (a) be served on the person; and (b) be signed by the Integrity Commissioner; and (c) specify the period within which, and the manner in which, the person must comply with the notice. (4) The period specified under paragraph (3)(c) must be at least 14 days after the day the notice is served on the person, unless the Integrity Commissioner considers that allowing a 14‑day period would significantly prejudice a corruption investigation, in which case a shorter period may be specified. (5) If a shorter period is specified under paragraph (3)(c), the Integrity Commissioner must record, in writing: (a) the name of the corruption investigation that would be prejudiced; and (b) why a 14‑day period would significantly prejudice the investigation. (6) The Integrity Commissioner may serve a notice on a person without holding a hearing. 76 Compliance with notice Compliance with notice (1) A person served with a notice under section 75 must comply with the notice: (a) within the period specified in the notice; or (b) within such further time as the Integrity Commissioner allows under subsection (3). Note 1: Failure to comply with a notice is an offence: see section 78. Note 2: See also subsection 150(2) in relation to section 149 certified information. Extension of time (2) A person served with a notice under section 75 may apply to the Integrity Commissioner, in writing, for further time to comply with the notice: (a) before the period expires; or (b) as soon as possible after the period expires. (3) The Integrity Commissioner may allow a person served with a notice further time to comply with the notice whether or not an application has been made. Acknowledgement (4) If a person served with a notice has given the information and/or produced the documents or things specified in the notice, the Integrity Commissioner must give the person a written acknowledgement of that fact. 9 Subsection 77(1) Omit "to the Integrity Commissioner in accordance with a request under section 75 or 76", substitute "in accordance with a notice under section 75". 10 After Subdivision A of Division 1 of Part 9 Insert: Subdivision AA—Prohibitions against disclosing information about notices 77A Disclosure of notice may be prohibited Application (1) This section applies in respect of a notice served on a person under section 75. Notation prohibiting disclosure of information about notice (2) The Integrity Commissioner may include a notation in the notice to the effect that disclosure of information about: (a) the notice; or (b) any official matter connected with the notice; is prohibited except in the circumstances (if any) specified in the notation. (3) The Integrity Commissioner must include a notation in the notice if the Integrity Commissioner is satisfied that failure to do so would reasonably be expected to prejudice: (a) a person's safety or reputation; or (b) the fair trial of a person who has been, or may be, charged with an offence; or (c) the investigation to which the notice relates or another corruption investigation; or (d) any action taken as a result of an investigation referred to in paragraph (c). (4) The Integrity Commissioner may include a notation in the notice if the Integrity Commissioner is satisfied that: (a) failure to do so might prejudice: (i) a person's safety or reputation; or (ii) the fair trial of a person who has been, or may be, charged with an offence; or (iii) the investigation to which the notice relates or another corruption investigation; or (iv) any action taken as a result of an investigation referred to in subparagraph (iii); or (b) failure to do so might otherwise be contrary to the public interest. (5) The Integrity Commissioner must not include a notation in the notice in any other case. Written statement to accompany notation (6) If a notation is included in the notice, it must be accompanied by a written statement setting out the rights and obligations conferred or imposed by section 77B on the person on whom the notice is served. Cancellation of notation (7) A notation included in the notice is cancelled by this subsection if: (a) the Integrity Commissioner concludes the investigation to which the notice relates; and (b) any criminal proceedings or civil penalty proceedings resulting from the investigation are commenced. (8) If a notation is cancelled by subsection (7), the Integrity Commissioner must advise the person who was served with the notated notice, in writing, of the cancellation. Relationship of notation with the Privacy Act 1988 (9) If: (a) a notation has been included in the notice in relation to the disclosure of information about the notice or any official matter connected with the notice; and (b) the notation has not been cancelled; and (c) apart from this subsection, a credit reporting agency (within the meaning of section 11A of the Privacy Act 1988) would be required, under subsection 18K(5) of that Act, to make a note about the disclosure of the information; such a note must not be made until the notation is cancelled. 77B Offences of disclosure (1) A person commits an offence if: (a) the person is served with a notice under section 75; and (b) the notice includes a notation under section 77A; and (c) the person discloses the existence of, or any information about: (i) the notice; or (ii) any official matter connected with the notice; and (d) when the disclosure is made: (i) the notation has not been cancelled by subsection 77A(7); and (ii) the period of 5 years after the notice is served under section 75 has not ended. Penalty: Imprisonment for 12 months. (2) In proceedings for an offence against subsection (1), it is a defence if the person makes the disclosure: (a) in the circumstances, if any, permitted by the terms of the notation; or (b) to a legal practitioner for the purpose of obtaining legal advice or representation in relation to the notice; or (c) to a legal aid officer for the purpose of seeking assistance under section 221 in relation to the notice; or (d) if the person is a body corporate—to an officer or agent of the body corporate for the purpose of ensuring compliance with the notice; or (e) if the person is a legal practitioner—for the purpose of obtaining the agreement of another person under subsection 79(3) to the legal practitioner answering a question or producing a document or thing. Note: A defendant bears an evidential burden in relation to the matters in subsection (2): see subsection 13.3(3) of the Criminal Code. (3) A person commits an offence if: (a) a disclosure is made to a person about: (i) a notice under section 75 that includes a notation under section 77A; or (ii) any official matter connected with a notice under section 75 that includes a notation under section 77A; and (b) the disclosure is permitted under subsection (2) or (4) because the person is a person of a particular kind; and (c) while the person is a person of that kind, the person discloses the existence of, or any information about: (i) the notice; or (ii) any official matter connected with the notice; and (d) when the disclosure by the person is made: (i) the notation has not been cancelled by subsection 77A(7); and (ii) the period of 5 years after the notice is served under section 75 has not ended. Penalty: Imprisonment for 12 months. (4) In proceedings for an offence against subsection (3), it is a defence if the person discloses the information: (a) if the person is an officer or agent of a body corporate referred to in paragraph (2)(d): (i) to anothe