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THE PARLIAMENT OF THE COMMONWEALTHOF ATTSTPALTA

HOUSEOF REPRESENTATIVES

CRIMES LEGISLATION AMENDMENTBTM, 19R7

EXPLANATORYMEMORANDUM

(This Explanatory Memorandum takes account of amendments

made to the Bill as introduced on 5 November 1987)

(Circulated by the authority of the Honoitrahie T.innel Pnwnn M P

Deputy Prime Minister and Attorney-General)

16176/87 Cat. No. 87 5348 2

2

CRIMES LEGISLATION AMENDMENTBILL 1987EXPLANATORYMEMORANDUM

TABLE OF CONTENTS

GENERAL OUTLINE

FINANCIAL IMPACT

ABBREVIATIONS

NOTES ON CLAUSES

3

4

5

6PART I - PRELIMINARY

PART II - AMENDMENTS OF THE CHRISTMASISLAND ACT 1958

6

PART III - AMENDMENTSOF THE CRIMES ACT 1914 12

PART IV - AMENDMENTSOF THE CRIMES (FOREIGNINCURSIONS AND RECRUITMENT) ACT 1978

25

PART V - AMENDMENTSOF THE CRIMES (INTER-NATIONALLY PROTECTED PERSONS) ACT 1976

32

PART VIVII - AMENDMENTS OF TAXATION LAWS 35

PART VIII - AMENDMENTS OF THE PROCEEDS OF CRIMEACT 1987

49

PART IX - AMENDMENTS OF THE ROYAL COMMISSIONSACT 1902

54

PART XXI - AMENDMENTSTO TELECOMMUNICATIONS

INTERCEPTION LEGI SLATION56

PART XII - AMENDMENTSOF THE TRANSFER OFPRISONERS ACT 1983

61

PART XIII - MISCELLANEOUS 64

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I

I

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CRIMES LEGISLATION AMENDMENT BILL 1987

GENERAL OUTLINE

The purpose of the Bill is to amend various Acts concerned

with crime, law enforcement and criminal justice.

Part II amends the Christmas Island Act 1958 to restorecriminal trial by jury and because of the problems ofsummoning a jury in such a small community, the Bill empowersthe Supreme Court of Christmas Island to change the venue of ajury trial to a State or another Territory.

Part III amends the Crimes Act 1914 to relocate variousinterpretative provisions from the Acts Interpretation Act1901 and amend certain of them. It is also amended so as to) terminate the application of the provisions creating inchoateoffences against laws of the ACT and External Territories.This will enable the Governments syringe exchange anti—AIDSprogram to operate. The Bill also amends the search warrantprovision and provides comprehensive escape’ provisions foroffences against Commonwealth and Territory laws. The Removal‘ of Prisoners (Territories) Act 1923 and the Removal ofPrisoners (Australian Capital Territory) Act 19~R are alsoconsequentially amended.

Part IV amends the Crimes (Foreign Incursions and Recruitment)Act 1978 to better define the scope of the legislation, amendpenalties for certain offences and create new offences inrespect of conduct associated with a foreign incursion.

Part V amends the Crimes (Internationally Protected Persons)Act 1976 to overcome various prosecution problems existingunder the Act presently. The amendments are specificallydesigned to better protect the property of an InternationallyProtected Person and to deal more harshly with propertydestruction by fire and explosives.

Parts VI and VII amend taxation laws to enable the FitzgeraldCommission of Inquiry into Possible Illegal Activities andAssociated Police Misconduct in Queensland (the FitzgeraldCommissioner) to have access to taxation information on the‘ same basis, and subject to the same restrictions on furtherdisclosure of the information that applies to taxationinformation disclosed to a Commonwealth Royal Commission, withthe exception that the Commissioner may disclose theinformation to State law enforcement agencies as well as toCommonwealth agencies and the information may be used inevidence in certain proceedings to restrain dealings in, andconfiscate, proceeds of crime under State and Commonwealth law.

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Part VIII amends the Proceeds of Crime Act 1987 to increasethe effectiveness of the Act as a weapon against organisedcrime and to correct minor drafting errors appearing in theAct.

Part IX amends the Royal Commissions Act 1902 to insert a newsection 7D which prevents answers given by a witness to theFitzgerald Commission from being used in evidence against thewitness in Commonwealth criminal or civil proceedings. TheAct already prevents the use of evidence given before aCommonwealth Royal Commission in subsequent civil or criminalproceedings.

Part X and XI amend telecommunications interceptionlegislation to enable certain types of information obtained asa result of interceptions of telecommunications to be given toCommissioner Fitzgerald, and for evidence to be given to the (Fitzgerald Commission in relation to such information. Theamendmentswill permit further use of such information for thepurposes of investigating serious offences and any resultingprosecutions. The amendmentswill also enable the AustralianFederal Police to continue to be able to obtain informationobtained as a result of lawful interceptions, for a purposeconnected with the investigation of serious offences.

Part XII amends the Transfer of Prisoners Act 1983 to achievegreater uniformity with the uniform prisoner transfer scheme.

The above Acts are amended in different parts of the Bill andseparate outlines in respect of each part are also providedbelow.

FINANCIAL IMPACT

It is not anticipated that the proposals in the Bill as awhole will occasion any increased costs to the Commonwealth.It is not possible to provide quantitative estimates ofsavings. However, it is anticipated that these will eventuateas a result of the proposed amendments to the Proceeds ofCrimes Act 1987, which are designed to ensure the effectiveoperation of that Act, and by the proposed amendments to theCrimes Act 1914, which enable certain indictable offences tobe dealt with summarily, thus producing cost and time savingsin Commonwealth prosecutions.

5

ABBREVIATIONS

The following abbreviations are used in this explanatory

memorandum: —

• ACT: Australian Capital Territory

AFP: Australian Federal Police

• Christmas Island Act: Christmas Island Act 1958.

Crimes Act: Crimes Act 1914

• DPP: Director of Public Prosecutions

• Fitzgerald Commission: Queensland Commission of

Inquiry into Possible Illegal.

Activities and Associated

Police Misconduct

Foreign Incursions Act: Crimes (Foreign Incursions

and Recruitrnent~ Act 1978

• Interpretation Act: Acts Interpretation Act 1901

• IPP Act: Crimes (Internationally Protected Persons)

Act 1976

• Proceeds Act: Proceeds of Crime Act 1987

Removal (ACT) Act: Removal of Prisoners (Australian

Capital Territory) Act 1968

Removal (Territories) Act: Removal of Prisoners

(Territories) Act 1923

Transfer Act: Transfer of Prisoners Act 1983

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NOTES ON CLAUSES

PART 1 - PRELIMINARY

OUTLINE:

This is the preliminary part of the Bill containing the short

title and commencement provisions.

Clause 1 — Short title

Contains the short title to the Bill.

Clause 2 — Commencement

This provides for various commencement times for different

parts and sections of the Bill.

PART II - AMENDMENTSOF THE CHRISTMAS ISLAND ACT 1958

OUTLINE:

This Bill amends the Christmas Island Act to restore criminal

trial by jury in the Supreme Court of Christmas Island, which

was abolished in 1958.

As it is possible that a trial by a locally—summoned jury

would be unworkable, owing to the smallness of the Island

community, the Bill empowers the Court to change the venue of

a criminal trial from the Island to a place in a State or

another Territory where the Supreme Court of that~State or

Territory may sit.

7

The jury for the trial will be summoned from that State or

Territory according to the laws of the State or Territory

applying to trial by jury. The accused, if convicted and

sentenced to imprisonment, is to be deemed to have been

removed to the new venue under the Removal of Prisoners

(Territories) Act 1923. If not sentenced, or after the

sentence expires, he or she is entitled to repatriation to

Christmas Island.

Clauses 3 and 4 — Principal Act and Interpretation

These are definitional provisions.

Clause 5 — Insertion of new sections

This clause inserts new sections 11AAA and 11AA into the

Christmas Island Act.

Proposed section 11AAA: This enables the Minister to make

co—operative arrangements with the Government or an authority

of a State or another Territory to apply provisions of the

Christmas Island Act relating to the Courts sittings in that

State or other Territory in its criminal jurisdiction.

Proposed section 11AA: This provides for the Supreme Court to

sit in a State or another Territory.

Sub—section (1) empowers the Supreme Court of the Territory to‘ sit in a State or another Territory in the exercise of its

criminal jurisdiction, unless doing so would be contrary to

justice.

Sub—section (2) provides that before or during a criminal

trial in the Territory, the Court, if satisfied that the

interests of justice require it, may order that the trial

should be held, or continued, at a place in a State or other

Territory where the Supreme Court of that State or other

Territory may sit.

8

Sub—section (3) empowers the court to make an order under

sub—section (2) for the removal of a trial at a sitting of the

court on Christmas Island or on the mainland.

Sub—section (4) enables a court to make an order under

sub—section (2) for the removal of a trial at a sitting on the

mainland whether or not the accused is present. Where the

accused is not present the court only has power to make an

order if the accused is both represented and the court has

been satisfied that the accused understands the effect of an

order for the removal of the trial.

Sub-section (5) empowers a Court making an order under

sub-section (2) to also order that the accused should be

removed to the new venue, and that persons required to give

evidence be summoned to attend at that venue.

Sub-sections (6) and (7) provide that the Court has all the

powers at the new venue which it would have were it sitting on

the trial in the Territory, and the powers so exercised are

deemed to have been exercised by the Court at a sitting in the

Territory.

Sub-section (8) empowers the Court at any time if the

interests of justice require it, to return to the Island to

continue hearings in the trial there, and to require the

attendance of the jury (empanelled in the State or other

Territory), the accused and the witnesses there.

Sub-section (9) provides that witnesses fees and allowances

under the law applying to local trials at the new venue are

payable by the Commonwealth, in respect of trials held at that

venue pursuant to the Christmas Island Act.

Sub—section (10) deems disobedience to the orders, warrants,

summonses or judgments of the Court at the new venue to be

offences against the laws of the Christmas Island punishable

under those laws as if the disobedience occurred on the Island.

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Clause 6 — Jurisdiction etc. of the Supreme Court

This amends section 12 of the Christmas Island Act to provide

that the trial on indictment of an offence against a law in

force in the Territory shall be a jury trial.


This clause inserts new sections 12A and 12B into the

Christmas Island Act.

Sub—section 12A(1) applies the laws of the new venue

concerning jurors (other than the matters dealt with by

section 12B) to the Christmas Island trials held at that venue.

Sub—sections l2A(2), (3), (4) and (5) provide that the jury is

summoned and empanelled by officers of the Christmas Island

Court using the jury list obtained, upon payment of any

reasonable fee, from the appropriate State or other Territory

officer.

Sub—section 12A(6) states that jurors fees applicable in the

new venue are payable by the Commonwealth.

Sub—section 12A(7) empowers the Court, for the purposes of

effective operation of any law applied by the Christmas Island

Act to order a court officer to do any act or thing required

to be done under that applied law by some other specified

person.

Sub—section 12A(8) enables regulations to be made excluding or

modifying the operation of any laws referred to in sub—section

12A(l)

Sub—section l2A(9) is definitional.

10

Section 12B creates offences in relation to jurors — including

all persons on the jury panel for a trial — in the Christmas

Island Court when sitting in a State or other Territory. It

is an offence:

— to fail to attend or abscond from attendance in accordance

with a summons or appointment for jury service: penalty —

fine of $200 or one months imprisonment;

— to personate a juror in order to sit as that juror on a

jury: penalty — fine of $1,000 or 6 months imprisonment; 4— to corrupt or attempt to corrupt, or pay money or confer

other benefit on a juror in relation to jury service,

apart from the juror’s ordinary remuneration in

employment; or, as a juror, to accept such a benefit:

penalty - 5 years imprisonment.


This clause inserts new sections l8A to 18G into the Christmas

Island Act, governing the removal of accused persons from the

Island to a State or other Territory for the purposes of trial

in the Supreme Court of the Christmas Island and their later

disposition.

Sub—sections 18A(l), (2) and (3) provide for a person whose

removal for trial is ordered under sub-section 11AA(3)(a) to

be removed by any constable to a prison in the State or other

Territory, and there detained in accordance with the Court’s

order.

Sub—section l8A(4) provides that a person to whom this section

applies is subject to the same laws as would apply to persons

in custody pending their trial in the State or other Territory

for offences against laws of such State or other Territory.

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Sub—section l8A(5) provides that the Commonwealth is to pay

the relevant State or other Territory the reasonable expenses

of maintaining the accused pursuant to this section.

Section 18B empowers the Court to order that an accused person

removed from Christmas Island should be produced to the Court

for the trial or proceedings relating to the trial.

Section 18C provides, similarly to section l8A, for the

removal back to the Territory of persons whose return for the

holding of part of a trial has been ordered under sub—section

11AA(6)(b).

Section 18D deems a person who has been removed and tried at a

‘ venue of f Christmas Island and convicted and sentencedto

imprisonment, to have been removed to that State or other

Territory under the Removal of Prisoners (Territories) Act

1923. This person is also deemed to be a prisoner within the

meaning of that Act and the provisions of that Act, so far as

possible, apply to that person.

Section 18E applies the Removal of Prisoners (Territories) Act

1923 to a person removed to a State or other Territory for

trial who is:

— found to have been insane at the time of the commission of

the offence;

— found unfit to be tried, on the ground of insanity; or

— convicted but later found to be insane.

The person is deemed to have been removed to the State or

other Territory as a ‘criminal lunatic’ under the Removal of

Prisoners (Territories) Act 1923, and sections 9 and lOA of

that Act, so far as is possible, apply to that person.

A

12

Section 18F provides that a person removed to a State or other

Territory for trial who is acquitted (except on the grounds of

insanity) and not liable to imprisonment at the conclusion of

the trial, is entitled, on application to the Secretary of the

Department administering the Act, to be provided with the

means to return to Christmas Island.

Clause 9 — Regulations

This amends section 23 of the Christmas Island Act

consequentially on the amendment to section 4 of that Act by 4clause 4 of this Bill.

PART III - AMENDMENTSOF THE CRIMES ACT 1914

OUTLINE:

The main purposes of this part are to:—

Relocate various interpretative provisions now

contained in the Interpretation Act in the Crimes Act

and amend certain of them.

Terminate the application of the provisions of the

Crimes Act creating inchoate offences in their 4application to offences against laws of the ACT and

the external Territories. (Similar provisions are to

be placed into Territorial legislation.)

4Provide comprehensive “escape” provisions to cover

persons in custody for offences against Commonwealth

and Territory laws.

Clarify and extend the application of the search

warrant provision of the Crimes Act.

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Clause 10 — Principal Act

This is a definitional provision.


This sets out the provisions relocated from the Interpretation

Act.

Proposed section 4A: This provides definitions of “committed

for trial” and “indictment” when used in Commonwealth law. It

re—enacts, without substantive change, section 27(a) and (d)

of the Interpretation Act.

Proposed section 4B: Re—enacts and amalgamates section 24 ofthe Interpretation Act and section 16 of the Crimes Act, which

deal with liability and punishment of corporations.

Sub—section (1) provides that, in the absence of a contrary

intention, an offence provision in a Commonwealth law applies

to both natural persons and bodies corporate. The same result

was previously achieved by section 24 of the Interpretation

Act.

Sub—section (2) provides that, in the absence of a contrary

intention, a natural person can be subject to a pecuniary

penalty instead of a imprisonment term if the court considers

that this is appropriate. The sub—section also provides a

scale of relativities between imprisonment terms and pecuniary

penalties. These relativities are consistent with recently

enacted legislation containing specific penalties for

offences. It reproduces paragraph l6(2)(a) of the Crimes Act,

however, it applies not only to Crimes Act offences but to all

Commonwealth offences.

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Sub—section (3) provides for a similar scheme in respect of

offences committed by bodies corporate. It provides that

bodies corporate are subject to pecuniary penalties equal to

five times the amount applicable to natural persons convicted

of the same offence, irrespective of whether the pecuniary

penalty for the natural persons is found in the law creating

the indictable offence or whether the pecuniary penalty is

derived pursuant to proposed sub—section 4B(2). This

provision is consistent with recently enacted legislation and

reproduces the effect of paragraph 16(2)(b) of the Crimes Act,

but applies to all offences against laws of the Commonwealth.

Sub-section (4) provides that where a law of the Commonwealth

provides for any forfeiture, penalty or reparation to be paid

to a natural person, it likewise applies to a body corporate.

This reproduces the last sentence in section 24 of the

Interpretation Act and clarifies it by specifying that

“reparation” is included.

Proposed section 4C: This is a relocation and an amalgamation

of sections 30 of the Interpretation Act and 11 of the Crimes

Act.

Sub—section (1) provides that, where an act or omission

constitutes an offence under two or more laws of the

Commonwealth(whether they be provisions in the same enactment

or different enactments) or under the law of the Commonwealth

and at common law, an offender can be prosecuted and punishedunder any of those laws. However, such a person is not liable

to be punished twice for the same offence. The intention of

this provision is twofold, First, that a person is able to be

prosecuted under different offence provisions in laws of the

Commonwealth or the common law, and secondly, to preclude the

possibility of a person being subjected in these circumstances

to “double jeopardy”.

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Sub-section (2) provides that where an act or omission is an

offence under the law of the Commonwealth and a law of a State

or under a law of the Commonwealth and a law of a Territory,

and the offender has already been punished for the offence

under such State or Territory law, such an offender is not

liable to be punished also under the law of the Commonwealth.

The purpose of this provision is to ensure, as far as

Commonwealth proceedings are concerned, that a person is not

subject to double jeopardy.

Sub—section (3) is designed to preserve the operation of

offence provisions in Territory laws where Commonwealth laws

provide for offences in respect of the same acts or

omissions. It reproduces, without substantive amendment,

sub-section ll(lA) of the Crimes Act. The intention is to

preclude the argument that a Commonwealth law creating an

offence is intended to invalidate a (purported) Territory

offence provision if the only basis for the argument is that

the relevant act or omission is within the terms of both the

Commonwealth law and the Territory provision. In other words,

the intention is to ensure that the “covering—the—field”

argument is not available in the absence of an expressed

provision to that effect in the Commonwealth law, or a

necessary implication based on some indication other than the

mere fact that the act or omission comes within the terms of

both the Commonwealth law and the Territory provision.

Proposed section 4D: This is a relocation and an amalgamation

of sections 41 of the Interpretation Act and 16(1) of the

Crimes Act.

Sub—section (1) provides an interpretative aid for penalty

provisions. A penalty set out at the foot of a section or of

a sub-section of an Act indicates that a contravention of such

section or sub-section shall be an offence punishable by the

penalty so set out. This reproduces, without substantive

amendment, the law as it currently stands.

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Sub—section(2) ensuresthat this interpretative provision

applies to instruments made under an Act (excluding laws of a

Territory).

Proposed section 4E: This reproduces, without substantive

amendment, section 44 of the Interpretation Act. It provides

that, in the absence of contrary intention, a pecuniary

penalty for an offence against a Commonwealth law may be

recovered in any court of summary jurisdiction.

Proposed section 4F: This reproduces, without substantive 4amendment, the present section 45A of the Interpretation Act.

Sub—section (1) provides that where a Commonwealth law

increases a penalty for an offence, such an increase applies

only to offences committed after the commencement of the

provision increasing such a penalty.

Sub—section (2) provides that where a law of the Commonwealth

reduces a penalty for an offence such a reduction extends to

offences committed before the commencement of the provision

reducing such a penalty without in any way affecting a penalty

already imposed before such a commencement.

The intention of these sub—sections is to ensure that a change 4in a penalty will not be to the detriment of a person

convicted of an offence committed before, but for which he or

she was sentenced subsequent to, that change.

_____________________________Proposed section 4G: This relocates and amends section 42 of

the Interpretation Act. It provides that, in the absence of

contrary intention, an offence against a Commonwealth law

punishable by imprisonment exceeding 12 months (whether or not

this is the only penalty) is an indictable offence. Section

42 of the Interpretation Act had the relevant period as

“exceeding 6 months”. The increase is consistent with recent

17

legislation of the Commonwealth and the ACT. This

reclassification applies only to offences committed after the

commencement of this provision (see also clause 54).

Pronosed section 4H: This is a relocation and an amendment of

section 43 of the Interpretation Act. It provides that, in

the absence of a contrary intention, an offence against a

Commonwealth law which is punishable by imprisonment (whether

or not that is the only penalty) for a period equal to or less

than 12 months or which is not punishable by imprisonment is a

summary offence. The amendment to this provision from a

period of “6 months” to a period of “12 months” is consistent

with proposed section 4G. This reclassification applies only

to offences committed after the commencement of this provision

(see also clause 54).

Proposed section 4J: This relocates and amends sections 12

and l2A of the Crimes Act.

Sub—sections (1) and (2) provide that a Commonwealth

indictable offence (other than one dealt with by sub—section 4

of this section or which may be prosecuted summarily under

another law of the Commonwealth) which is punishable by

imprisonment for a period equal to or less than 10 years

(whether this is the only penalty or not) may, in the absence

of a contrary intention and with the consent of both the

prosecutor and the defendant, be heard and determined by a

court of summary jurisdiction. It is to be noted that thisprovision permits indictable offences to be dealt with

summarily only with the defendant’s consent, thus preserving,

the defendant’s opportunity for a jury trial in respect forindictable offences. Further on this point, it should also be

noted that sub—section 4J(1) only empowers a court of summary

jurisdiction to deal with an indictable offence summarily, it

does not direct it to do so. It is thus intended that a

magistrate have the discretion under sub-section 4J(l) to

refuse to deal with a matter summarily notwithstanding the

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consent of the prosecutor and the defendant. It is not

anticipated that this would be a common occurrence but it is

nevertheless seen as a real option where the interests of

justice so require it.

Sub—section (3) provides (subject to sub—section (6)) for

appropriate penalties in circumstances where the “step-down”

provision in sub—section 4J(l) is used. In such circumstances,

an indictable offence which would have been punishable by an

imprisonment term of 5 years or less (whether or not that is

the only penalty) is punishable by a sentence not exceeding 12

months or a fine not exceeding $2,000, or both, when dealt

with by a court of summary jurisdiction. Where an indictable

offence is punishable by imprisonment for a period greater

than 5 years but equal to or less than 10 years (whether or

not that is the only penalty), a court of summary jurisdiction

can impose a penalty not exceeding 2 years or a fine not

exceeding $5,000, or both.

Sub—sections (4) and (5) reproduce section l2A(2) and (3) of

the Crimes Act without substantive amendment apart from

extending the application of those provisions to all laws of

the Commonwealth. These provisions are designed to ensure

that proceedings in respect of indictable offences relating to

property of less value than $500, can be dealt with by a court

of summary jurisdiction without the defendant’s consent

provided that the court considers that this is appropriate in

all the circumstances. The intention is to ensure that

indictable offences of this class do not occupy valuable

superior court time. The question of whether such a summary

procedure should be utilised is left for the courts to

determine and in doing so, they could, of course, take into

account relevant representations made by the defendant.

Sub—section (6) ensures that where a penalty is imposed under

sub—sections (3) or (5), neither the total penalty which a

court of summary jurisdiction could impose utilising these

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provisions nor any component thereof is greater than that

which could have been imposed if the offence had been dealt

with on indictment.

Sub—section (7): This provision reproduces without

substantive amendment sub—section 12A(4) of the Crimes Act

which provides that certain serious offences against the

Crimes Act can only be dealt with on indictment.

Pronosed section 4K: This reproduces and amends section 45B

of the Interpretation Act.

Sub—section (1) reproduces, without substantive amendment,

sub—section 45B(l) of the Interpretation Act. It provides

that, in the absence of a contrary intention, where an act or

thing is required to be done within a particular period, the

obligation to do so continues until the act or thing is done,

even though the period during which the act or thing was

required to be done has expired.

Section (2) is a new provision designed to ensure that where a

refusal or failure to comply with the requirement of

sub—section (1) is an offence against a Commonwealth law, aperson commits such an offence on each day of such a refusal

or failure including the day of a conviction for any such an

offence and any subsequent day during which such a refusal or

failure continues — i.e. a conviction cannot operate as a bar

to a further prosecution for a continued failure to complywith the statutory requirements.

Section (3) reproduces, without substantive amendment,

sub—section 45B(2) of the Interpretation Act. It provides

that charges against the same person for a number of offenCes

against the same provision of an Act may be included in the

same information, complaint or summons, if those charges are

founded on the same facts or form, or are a part of, a series

of offences of the same or a similar character.

20

Sub—section (4) reproduces, with a clarifying amendment

sub—section 45B(3) of the Interpretation Act. It provides

that if a person is convicted of two or more similar offences

the court may impose one penalty for those offences. However,

that penalty cannot exceed the aggregate of the maximum

penalties that could have been imposed if separate penalties

were imposed. The deletion of the words ‘being offences

related to doing or failing to do the same act or thing’

ensures that sub—section (4) applies to all offences referred

to in sub—section (3). The present purpose of these words and

their effect on the relationship between sub—sections 45B(2)

and (3) is not clear,

Clause 12 — Arrest without warrant for suspected offences

This provision amends section 8A of the Crimes Act dealing

with arrest without warrant to ensure that it is only

applicable to Commonwealth offences. Following the case of

Webster v McIntosh (1980) 32 ALR 603, which held that a

provision of an ACT Ordinance, concerned with powers of arrest

without warrant, was in conflict with the Crimes Act and

repugnant to it. Section 8A was amended by the Statute Law

(Miscellaneous Provisions) Act (No.1) 1996 to remove its

application to offences against laws of the Australian Capital

Territory. As a similar problems exists in the External 4Territories, this amendment restricts the operation of section

8A of the Crimes Act so that it will only permit arrest

without warrant for offences against Commonwealth laws. As a

consequence, police must exercise powers of arrest without

warrant under Territory laws for Territory offences.

Clause 13 — Search warrant

This clause is designed to amend the search warrant provision

of the Crimes Act (section 10) so that it:

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(i) applies to vehicles and aircraft;

(ii) gives police the right, where necessary and

reasonable, to break internal doors and receptacles

in executing a warrant; and

(iii) enables warrants to be issued for a future time when

the object of the search is expected to be at the

premises.

Paragraph (a) amends sub—section 10(1) of the Crimes Act to

clarify that search warrants can be issued in respect of

aircraft and vehicles. It is now not clear whether the word“vessel” would include such modes of transport.

Paragraph (b) amends sub—section 10(1) of the Crimes Act so

that a warrant may be issued 72 hours before the sought after

items are likely to be at the particular premises to be

searched. At present, section 10 does not enable a warrant to

be issued to search premises unless the object of the search

is already located at the premises. The amendment is intended

to assist the police in their operations, by providing greater

flexibility as to the time warrants are executed. For

example, where information has been received that drugs will

be delivered to certain premises police can obtain the warrant

in advance and execute it at the operationally most

advantageoustime. However, police will still need to satisfy

the Justice of the Peace that there are reasonable grounds for

suspecting that the thing sought will be brought onto the

premises within the next 72 hours. This amendment does not

alter the onus on the police when applying for a warrant, but

merely alters the time at which a warrant may be sought.

Paragraph (c) inserts a new sub—section 10(1A) of the Crimes

Act which places beyond doubt the authority of a police

officer (with such assistance as is reasonable and necessary)

22

when on premises pursuant to a warrant, to break open internal

doors and receptacles in executing that warrant, where this is

reasonableand necessary.

Clause 14 — Repeal of sections 11, 12, 12A and 16

This repeals sections 11, 12, 12A and 16 of the Crimes Act

consequential upon the amendmentsmade by clauses 11—13 of the

Bill.

Clause 15 — Destroying or damaging Commonwealth property

This increases the penalty for section 29 of the Crimes Act

(destruction or damage to Commonwealth property), from 2 years

imprisonment to 10 years imprisonment, to remove the existing

anomaly with the penalty applicable to the similar ACT

provision (see sub—section 128(1) of the Crimes Act 1900 (NSW)

in its application to the ACT).

Clause 16 — Aiding prisoner to escape

Section 46 of the Act provides for the offence of aiding a

person to escape who is in custody for an offence against the

law of the Commonwealth. The amendmentsto section 46 to be

made by this clausewill extend the offence to:

persons in custody for an offence against law of the

Territory

a person arrested for an offence against the law of

the Commonwealth or a Territory

a person who is detained during the pleasure of the

Governor—General in respect of any offence against

the law of the Commonwealth, or a Territory

23

This clause also amends paragraph 46(b) to include a

reference to, lock up, or other place of lawful detention

and increases the penalty for an offence against section

46 to $10,900 or imprisonment for 5 years or both, (The

present penalty is 2 years imprisonment).

Clause 17 — Repeal of sections 47 and 48 and substitution of

new sections

Clause 17 repeals sections 47 (escape from custody) and 48

(permitting escape) and substitutes 5 new sections, sections47, 47A, 47B, 47C and 48.

Proposed section 47: The effect of the new section 47 will be

to make it an offence for a person who has been arrested, is

in lawful custody or is detained during the Governor-General’s

pleasure for an offence against the law of a Commonwealth or

Territory to escape from that arrest, custody or detention.

The existing section 47 only covers an escape from custodywhere a person is in custody under sentence for an offence

against the law of the Commonwealth. The penalty has been

increased from 2 years to $10,000 or 5 years imprisonment or

both.

Whether a prosecution should be brought where the escapee is

detained during the Governor-General’s pleasure will be a

matter for the Director of Public Prosecution, in the exercise

of his prosecutorial discretion.

Proposed section 47A: This provision creates a new statutory

offence for a person to rescue by force a person who has been

arrested, is in lawful custody or is detained during the

Governor—General’s pleasure for an offence against a law of

the Commonwealth or a Territory.

The penalty for this offence is imprisonment for 14 years.

24

Proposed section 47B: This provision creates a new statutory

offence of being unlawfully at large where the person is a

Commonwealth, or Territory offender or Governor-General

pleasure detainee. This offence occurs where a person who is

given permission under a law of a State or Territory to leave

a prison, lock up or place of lawful detention and refuses or

fails without reasonable excuse to return to that prison, lock

up or place of lawful detention.

The penalty for this offence is $10,000 or imprisonment for 5

years or both.

Proposed section 47C: This provision makes it an offence for

an officer of a prison, lock up for other place of lawful

detention, a constable or a Commonwealth officer who is

charged with the custody or the detention of a person who is

in custody for an offence against the law of the Commonwealth

or Territory (including a person detained during the

Governor—General’s pleasure) to wilfully or negligently permit

that person’s escape from custody.

The provision also make it an offence for a constable or

Commonwealth officer, who wilfully or negligently permits a

person who has been arrested, to escape from the arrest.

4The penalty for these offences is $10,000 or 5 years

imprisonment or both.

The offence of permitting escapewas formerly section 48 but 4this provision did not cover Territory offenders orGovernor—General detainees nor did it i~nclude such a person

negligently permitting escape. The provision did not extend

to persons who were arrested. The penalty was imprisonment

for 2 years.

25

Proposed section 48: This provision creates a new statutory

offence where a person harbours, maintains or employs a person

knowing that he has escaped from lawful custody or detention

in respect of any offence against the law of the Commonwealth

or a Territory.

The penalty for this offence is $10,000 or imprisonment for 5

years or both.

Clause 18 — Other amendments

Refers to Schedule 1 of the Bill, which contains amendments to

sub—section 5(1), sections 6, 7, 7A and sub—section 86(3) of

the Crimes Act. The removal of the operation, in the ACT and

the External Territories, of these inchoate offences also

removes an impediment to the introduction of the Government’s

programme for the distribution of syringes by pharmacists and

others to check the spread of AIDS. At present no ACT

Ordinance can give pharmacists protection from criminal

liability arising from the supply of syringes because such

activity would constitute inchoate offences under the Crimes

Act. It is intended that the inchoate offences for the ACT be

re—enacted in an ACT Ordinance, where they can be modified as

the circumstances require by other Ordinances such as the

proposed new Drugs of Dependence Ordinance for the ACT. The

amendments extend to External Territories in order to provide

the possibility of taking similar action in such territories.

The inchoate offences of the laws of the various External

Territories will be relied on instead of the Crimes Act

provisions.

PART TV - AMENDMENTSOF THE CRIMES (FOREIGN INCURSIONS AND

RECRUITMENT) ACT 1978

OUTLINE:

The main purposes of the amendments to the Foreign Incursions

Act contained in this Part are:

26

to omit the definition of “foreign country” and to

substitute a definition of “foreign State” to remove

doubts about the scope of the previous definition and

to ensure that the Act proscribes hostile activity

engaged in in places outside Australia irrespective

of whether the place is within a particular political

area or not;

to redefine ~‘government” as the authority exercising

effective governmental control in a foreign State or

in a part of a foreign State;

to fill the present gap in the Act by reason of which

it is not an offence for an Australian to becomeinvolved in mercenary activities per se in a foreign

State by extending the definition of “hostile

activity” to cover acts done for the purpose of

engaging in “armed hostilities” in the foreign State;

to create a new offence of permitting a vessel or an

aircraft to be used for the purpose of preparing for

an incursion into a foreign State;

to increase the maximum penalty for recruiting

persons in Australia to serve with an armed force

outside Australia;

to redefine the offences covering the preparation for

an incursion into a foreign State so that a

prosecution does not depend on proof of an actual

incursion by a person who has a connection with

Australia;

to clarify the position of persons who give money,

goods or services for the purpose of providing

humanitarian aid. They will not be taken to have

committed an offence under the Act;

27

to allow the Minister to impose conditions on the

grant of an exemption from the effect of subsection

9(1) of the Act which prevents the recruitment inAustralia of persons to serve with an armed force

outside Australia;


Formal.

Clause 20 — Long title

Clause 20 makes consequential changes flowing from the

insertion in section 3 of the definition of “foreign State” by

clause 21.

Clause 21 — Interpretation

Clause 21 amends section 3 of the Foreign Incursions Act by

omitting the definition of “foreign country” and substituting

“foreign State” which is defined as a place outside Australia

that is an independent sovereign state or an area of land

(whether or not it is self—governing) that is not part of an

independentsovereign state.

“Government”, in relation to a foreign State or a part of a

foreign State, is redefined as the authority that is

exercising effective governmental control in that foreign

State or that part of that foreign State.

The new subsection 3(2) added by clause 21 states that the

phrase “a part of a foreign State” refers to a political

subdivision of a foreign State.

Clause 22 — Incursions into foreign States for purpose of

engaging in hostile activities

28

Clause 22 makes a number of amendments to section 6 of the

Foreign Incursions Act. It inserts a new subsection (1) to

reflect the replacement of the expression “foreign country”

with “foreign State”.

Paragraph 6(2)(b) of the Act is replaced by a new paragraph

that provides that, in addition to the matters referred to in

paragraph 6(2)(a), an act done by a person shall not be taken

to be an offence against section 6 unless the person was in

Australia at a time during the year prior to the doing of the

act and that presence was at some time during that time for

the purpose of doing that act or for purposes including that

purpose. This amendment is to put beyond doubt that it is not

necessary for the prosecution to show that the person charged

had that purpose at the time he or she came to Australia.

Clause 22 also makes a change to subsection 6(3) consequential

on the new subsection 6(1).

The addition of a new paragraph (3)(aa) has the effect of

extending the meaning of the concept of engaging in “hostile

activity” for the purposes of the offence in subsection (1) to

include acts done for the purpose of engaging in armed

hostilities in a foreign State.

Clause 23 — Preparations for incursions into foreign States

for purpose of engaging in hostile activities

Clause 23 makes a number of amendments to section 7 of the

Foreign Incursions Act. It adds at the end of subsection (1)

a new paraara~h (h) which makes it an offence for a person who

is the owner, charterer, lessee, operator, agent or master of

a vessel or the owner, charterer, lessee, operator or pilot in

charge of an aircraft, to knowingly permit the vessel or

aircraft to be used for the purpose of committing, or

supporting or promoting the commission of, an offence against

section 7 (other than the offences referred to in paragraphs

(1)(g) and (l)(h)).

29

The new subsection 7(lA) inserted by clause 23 provides that a

reference in subsection (1) to the commission of an offence

against section 6 is a reference to the doing of an act that

would, or would but for subsection 6(2), constitute an offence

against section 6. The amendment has a dual purpose. The

first is to remove the possible requirement that proof that a

particular act is an actual offence under section 6 is

necessary before an offence can be established under section 7

in relation to that act. The second is to remove the

requirement that, in establishing an offence under section 7

by a person who has a connection with Australia by reason of

an act done in preparation for, ancillary to, or for the

purpose of, an act that is an offence under section 6, it is

necessary to show that that act was done by a person who ~

has a connection with Australia, This will mean that an

Australian can be prosecuted for soliciting money or goods for

the purpose of supporting the acts of other persons that are

done with the object of overthrowing a government outside

Australia even if those persons are not Australian and have

have no connection with Australia.

Subsection 7(18) inserted by clause 23 provides that a person

shall not be taken to have committed an offence against

section 7 by reason only of the doing by that person of an act

by way of, or for the purposes of, the provision of aid of a

humanitarian nature. The effect of this subsection is to make

it clear that where a person gives money or goods to a body or

group of persons, no offence will have been committed so long

as the money or goods were given for the purpose of

humanitarian aid such as providing food or money to those

affected by a war.

Paragraph7(2)(b) is replaced by a new paragraph in similar

terms to the new paragraph 6(2)(b).

30

Clause 24 — Recruiting persons to serve in or with an armed

force in a foreign State

Clause 24 increases the maximum penalties for a breach of

section 9 of the Foreign Incursions Act by providing a penalty

of $20,000 or imprisonment for 7 years or both for a natural

person and a fine of $100,000 in the case of a body corporate.

The amendment to subsection 9(2) made by clause 24 will allow

the Minister to impose conditions on the grant of an exemption

to the prohibition in subsection 9(1) on recruiting persons in

Australia to serve with an armed force outside Australia.

These conditions may relate, for example, to the kind of

advertisements that may be permitted or the status of the

persons sought for recruitment.

Clause 25 — Insertion of new section

Clause 25 adds a new section 11 to the Foreign Incursions Act

and provides in subsection 11(1) that a certificate by a

Minister, stating that a place or an area is an independent

sovereign state is, in a proceeding against the person for an

offence, conclusive evidence. The conclusive nature of this

certificate is consistent with section 40 of the Foreign

States Immunities Act 1985.

Proposed subsection 11(2) provides that a certificate by a

Minister stating that, if a specified person had done the act

alleged to constitute the offence the person would not have

been acting in the course of the person’s duty to the

Commonwealth in relation to the defence of Australia, is, in a

proceeding against the person for an offence, prima facie

evidence. Section 5 of the Act provides that the Act does not

apply to any act done by a person acting in the course of that

duty.

31

Proposedsubsection 11(3) provides that a certificate by a

Minister stating that an authority described in the

certificate is or was exercising effective governmental

control in a specified foreign State or part of a foreign

State is, in a proceeding against the person for an offence,

prima facie evidence.

Proposed subsection 11(4) provides that a reference in section

11 to an offence against the Act includes a reference to an

offence against section 6, 7 or 7A of the Crimes Act 1914 or

the offence referred to in paragraph 86(l)(a) of that Act.

The reference to these provisions has the effect of allowing a

certificate to be used in a prosecution under the Crimes Act

1914 for the offences of being an accessory after the fact,

attempt, incitement and conspiracy where those offences were

committed in relation to an offence against the Foreign

Incursions Act.


Clause 26 provides that the Foreign Incursions Act is furtheramended as set out in Schedule 2. Those amendments remove

sexist language from the Act and make consequential changes

flowing from the definitions inserted in section 3 of the Act

by clause 21.

Paragraph 6(3)(a) of the Act is amended by the Schedule so

that it refers to the government of part of a foreign State asthat phrase is defined in subsection 3(2). This has the

effect of making it an offence to enter a foreign State or

engage in acts in a foreign State for the purpose of

overthrowing the governmentof a political subdivision of the

foreign State such as a state within a federation.

The amendments to paragraphs 6(3)(c) and (d) have the effect

of including references to public office holders of a

government of such a political subdivision and the property of

such a government, respectively.

32

PART V - AMENDMENTS OF THE CRIMES (INTERNATIONALLY PROTECTED

PERSONS) ACT 1976

OUTLINE:

The Bill amends the IPP Act for the following purposes:

to extend the number and type of offences for which aperson may be prosecuted arising out of the

destruction of, or damage to, the property of an

Internationally Protected Person;

to distinguish between offences against the property

of an Internationally Protected Person which involve

the use of fire or explosives and those which do

not. The former will have a higher penalty;

to widen and clarify the notion of intention in

relation to those offences;

to repeal section 9 which provides a defence to

prosecution, to ensure that the question whether a

person is an Internationally Protected Person is

determined objectively (as a question of fact) rather

than by reference to the state of mind of the

defendant. This is in line with notions of criminal

responsibility in other areas of criminal law;

to increase the penalty for an attack on an

Internationally Protected Person in line with the

higher penalties for attacks on the property of an

Internationally Protected Person.


This clause is definitional

33

Clause 28 — Of fences

Clause 28 amends section 8 of the IPP Act by omitting

subsection 8(3) and substituting proposed subsections (3),

(3A), (38) and (3C) which create four new offences.

Proposed subsections 8(3) and (38) make it an offence for a

person intentionally to destroy or damage the official

premises, private accommodation or means of transport of an

Internationally Protected Person or to destroy or damage any

other premises or property in or upon which an Internationally

Protected Person is present or is likely to be present. Where

the destruction or damage is done by means of fire or

explosives, the maximum penalty is 15 years imprisonment

(subsection 8(38)). Otherwise it is 10 years (subsection

8(3)).

Proposedsubsections 8(3A) and (3C) make it an offence for a

person intentionally to destroy or damage any official

premises, private accommodation or means of transport of an

Internationally Protected Person or any other premises or

property in or upon which the Internationally Protected Person

is present or is likely to be present with intent to endanger

the life of the Internationally Protected Person. Where it is

done by means of fire or explosives, the maximum penalty is

25 years imprisonment (subsection (3C)). Otherwise it is

20 years (subsection (3A)).

Clause 28 makes consequential changesto subsections (4), (5)

and (7) picking up references to the new offences.

Proposed paragraphs 8(7)(d) and (e) to be added at the end of

subsection (7) define the intention that is relevant to the

new offences. Paragraph 8(7)(d) provides that a person shall

be taken to have destroyed or damaged property or premises

34

intentionally if the person acted either with the intent to

destroy or damagethose premises or that property or in the

knowledge or belief that the person’s actions were likely to

result in the destruction or damage to those premises or that

property.

Proposedparagraph8(7)(e) provides that a person shall be

taken to have intended to endangerthe life of an

Internationally Protected Person by destroying or damaging

particular premises or property if the person acted either

with intent to endangerthe life of the Internationally

Protected Personor in the knowledge or belief that the

person’s actions were likely to endangerthe life of the

Internationally Protected Person.


Clause 29 provides that the IPP Act is further amended as set

out in Schedule 3. Schedule 3 amendssubsection 8(2), repeals

section 9 and removes sexist language from the Act.

The amendmentsto subsection 8(2) increase the maximum

penalties for causing grievous bodily harm to an

Internationally Protected Person to 20 years, and for an

attack of lesser seriousnesson an Internationally Protected

Person, to 10 years.

Section 9 provides that it is a defence to a prosecution for

an offence under the Act where the defendant proves that he or

she did not know or have reason to suspect that the person in

relation to whom the offence was committed was anInternationally Protected Person. The repeal of this

provision will mean that the question whether a person is an

Internationally Protected Person for the purposes of a

prosecution is determinedobjectively.

35

The Income Tax Assessment Act 1936 and the Taxation

Administration Act 1936 will be amended to enable the

Fitzgerald Commission of Inquiry to have access to taxation

information on the same basis, and subject to the same

restrictions on further disclosure of the information, that

applies to taxation information disclosed to a Commonwealth

Royal Commissionwith the exception that the information may

be further disclosed in certain proceedings for the

restraining or confiscation of the proceeds of crime.

PART VI - AMENDMENTS OF THE INCOME TAX ASSESSMENTACT 1936


This clause facilitates references to the Income Tax

Assessment Act 1936 which, in Part VA, is referred to as the

“Principal Act”.

Clause 31 — Provisions relating to the Fitzgerald Inquiry

This clause will insert new section 16A in the Principal Act

to permit the Commissioner of Taxation, without breach by him

of the secrecy provisions (section 16) of the Principal Act,

to disclose information to the Fitzgerald Commission of

Inquiry into Possible Illegal Activities and Associated Police

Misconduct (the Fitzgerald Inquiry).

The Fitzgerald Inquiry will in turn be permitted to disclose

information obtained from the Commissioner in the limited

circumstances that are explained in the following notes.

Subject to those limited exceptions, any person to whom

information about the taxation affairs of a person or company

is communicated will be subject to strict secrecy constraints

of the kind now applicable to taxation officers and other

authorised recipients of taxation information.

36

The maximum penalty for a person who is convicted of a breach

of the secrecy provisions of the Principal Act is $5000 or

imprisonment for 12 months, or both.

Subsection l6A(l) defines the following terms for the purposes

of section 16A —

‘inguiry’ is specifically defined to mean theFitzgerald Inquiry.

‘proceeds of crime proceedings’ is defined to mean

proceedings under the Proceeds of Crime Act 1987 (a

term relevant to paragraphs 16A(4)(e) and (f) and

subsection l6A(18) or corresponding Queensland

legislation.

‘State Attorney-General’ means the Attorney—General of

Queensland. References in section 16A to the

Attorney—General are references to the Commonwealth

Attorney-General.

‘State Commissioner’ means Gerald Edward Fitzgerald

Q.C. in his capacity as the person making the Inquiry.

‘State Police Commissioner’ means the Queensland

Police Commissioner or a person for the time being

performing the duties of that Commissioner.

References in section 16A to the Commissioner of

Police are references to the Commissioner of the

Australian Federal Police.

Subsection 16A(2) is also a definitional provision and adopts

the following definitions that are contained in section 16 of

the Principal Act -

37

‘Director of Public Prosecutions’ means a person

holding office as, or acting as, the Director of

Public Prosecutions under the Director of Public

Prosecutions Act 1983 — that is, the Commonwealth

Director of Public Prosecutions.

‘officer’ means a person appointed or employed by the

Commonwealth or by a State and who, in the course of

the duties of that office or employment, has acquired

taxation information.

‘Special Prosecutor’ means a person holding office as,

or acting as, a Special Prosecutor under the SpecialProsecutors Act 1982.

‘tax—related offence’ means —

an offence against an Act of which the Commissionerof Taxation has the general administration, or

against a regulation made under such an Act;

an offence against the Crimes (Taxation Offences) Act

1980; or

an offence against the Crimes Act 1914, where it

relates to an Act administered by the Commissioner of

Taxation, to a regulation made under such an Act or

to the Crimes (Taxation Offences) Act 1980.

Subsection l6A(3) is the operative provision which authorises

the Commissioner of Taxation, a Second Commissioner of

Taxation or a Deputy Commissioner of Taxation, or a person

authorised by one of those persons, to communicate information

to the Fitzgerald Inquiry without being in breach of the

secrecy provisions of section 16 of the Principal Act.

38

Subsection 16A(4) sets out the circumstances in which the

State Commissioner may divulge taxation information supplied

to the inquiry. By paragraph16A(4)(a), taxation—sourced

information that does not identify the person to whom it

relates may be —

communicatedto the QueenslandState Governor in a

report by the State Commissioner (subparagraph

l6A(4)(a)(i)); or

divulged by the State Commissioner in proceedings

conducted in public (subparagraphl6A(4)(a)(ii));

By paragraph 16A(4)(h), the State Commissioner will be

permitted, during the course of a private session, to disclose

taxation—sourced information.

Paragraph 16A(4)(c) will enable the State Commissioner to

disclose taxation information, including the name of a person

or company to whom it relates, to the Attorney—General if the

State Commissioner is of the opinion that the information

indicates that a person may have committed an offence against

an Act punishable by imprisonment for life or for a period

exceeding 6 months.

Similarly, paragraph l6A(4)(dl authorises the State

Commissioner to disclose taxation information, including thename of a person or company to whom it relates, to the

Queensland Attorney—General if the State Commissioner is of

the opinion that the information indicates that a person may

have committed an offence against a Queensland law punishable

by imprisonment for life or for a period exceeding 6 months.

39

Paragraphl6A(4)(e) will enable the State Commissioner to

supply the Director of Public Prosecutions (a defined term)

and/or a Special Prosecutor (also a defined term) with

taxation—sourcedinformation where the State Commissioner is

of the view that the information is, or may be, relevant to —

a tax—related offence (another defined term); or

proceeds of crime proceedings (as defined) under the

Proceedsof Crime Act 1987.

By paragraph l6A(4)(f), the State Commissioner may communicate

taxation—sourced information to the Queensland Director of

Prosecutions if the State Commissioner is of the opinion that

the information relates, or may relate, to post—conviction

proceedings under a Queensland law that relates to the

restraint of dealing with, or the confiscation of, proceeds of

crime.

Subsection l6A(51 prohibits any disclosure of taxation—sourCedinformation by the State Commissioner, other than a disclosure

permitted by subsection 16A(4) or, where it is relevant to the

conduct of the inquiry by the State Commissioner, a disclosure

to his employeesor other personswho are under the control of

the State Commissioner.

By subsection 16A(6), the State Commissionerwill, on ceasing

to hold that appointment, be prohibited from recording or

making any communication of taxation information obtained

while State Commissioner.

Subsection 16A(7) will impose secrecyconstraints on employees

and other persons under the control of the StateCommissioner. While a person remains under the control of the

State Commissioner, he or she will only be permitted to

communicate taxation information to the State Commissioner or,

as necessary, to other members of his staff (paragraph

40

16A(7)(a)). Once a person ceases to be under the control or

employ of the State Commissioner, recording or disclosure by

that person of the taxation information will not be permitted

in any circumstances (paragraph 16A(7)(b)).

The effect of subsection l6A(8) is to make it clear that the

State Commissioner may communicate taxation—sourcedinformation to a person specified in paragraphs l6A(8)(a), (b)

or (c). Paraaranh16A(R)(a) permits the communication of

taxation—sourced information to an individual in respect of

whose affairs the information relates, while paraaranh

l6A(8)(c) permits the information to be communicatedto the

person who furnished the information to the Commissioner of

Taxation. Paragraph 16A(8)(b) restricts the communication of

information relating to the affairs of a company to any person

who is, or has been, directly involved in, or responsible for,

the preparation of information furnished to the Commissioner

of Taxation on behalf of the company (subparaaraph

l6A(8)(b)(ii)) and includes any person who is, or was, a

director or officer of a company in respect of which

taxation—sourced information has been communicated to the

State Commissioner (subparagraph 16A(8)(b)(i)).

Subsection 16A(9) permits the communication of information to

the legal representative of a person to whom taxation

information is permitted to be communicated by reason of

subsection 16A(8).

Consistent with the secrecy constraints applicable to other

persons, including the State Commissioner and persons under

the State Commissioner’s control, subsection l6A(lO) prohibits

further communication by company officers, legal

representatives, etc. who are provided with information by

reason of subsections 16A(8) or (9) or paragraph l6A(4)(b).

41

Subsection 16A(ll) sets out the circumstances in which

taxation information that has been communicated to the

Attorney—General by the State Commissioner, in pursuance of

paragraph 16A(4)(c), may be divulged by the Attorney—General,

and contains the obligations that will fall on the

Attorney-General and relevant officials for the protection of

the confidentiality of the information.

Paragraph l6A(ll)(a) will permit the Attorney—General to

disclose any taxation information, received from the State

Commissioner, to the Commissioner of the Australian Federal

Police.

Paragraph 16A(l1)(b) will generally prohibit any disclosure of

taxation information by the Attorney-General, other than the

disclosure permitted to be made to the Australian Federal

Police under paragraph (a), but will enable disclosure to

persons under the employ or control of the Attorney—General if

such disclosure is appropriate for the purpose of performance

by the Attorney-General of the function under paragraph (a) of

passing information to the Australian Federal Police.

Paragraph 16A(l6)(b), discussed later in these notes,

specifies that certain persons are to be regarded as being

under the control of the Attorney—General for the purpose of

this paragraph.

By paragraph 16A(11)(c), a person to whom information has been

communicated as Attorney—General is, on ceasing to hold that

office, to be prohibited from divulging that information in

any circumstances.

Paragraph l6A(ll)(d) will impose secrecy constraints on

persons who, for the purpose of enabling the Attorney—General

to pass taxation information on to the Australian Federal

Police, have become privy to that information. While such a

person remains under the control of the Attorney—General, he

or she will only be permitted to communicate the taxation

42

information to the Attorney-General, and to other persons

under the control of the Attorney-General where it is

necessaryfor the purposesof the performance by the

Attorney—General of his function under paragraph (a) in

relation to the Australian Federal Police (subparagraph

16A(11)(d)(i)). Subsequently, disclosure by the person will

not be permitted in any circumstances (subparagraph

l6A(ll)(d)(ii))

Subsection 16A(l2) permits the Queensland Attorney—General tocommunicate taxation—sourced information to the Queensland

Police Commissioner and in other respects mirrors the

provisions of subsection l6A(11).

Subsection l6A(13) specifies the obligations to be imposed on

the Commissioner of the Australian Federal Police, the 4QueenslandPolice Commissioner and persons under the control

of the respective Police Commissioner in respect of taxation

information received under subsection 16A(ll) or (12) from the

Attorney—General or the QueenslandAttorney-General.

Paragraph 16A(13)(a) will prohibit the disclosure of taxation

information received by a Police Commissioner except such

disclosure to persons under the control of the Commissioner as

is necessary for the purpose of enabling that person to carry 4out his or her duties as a police officer, Federal and

Queensland police officers will thus be entitled to make use

of the information in investigating possible breachesof

Commonwealthlaws or Queensland laws, as the case may be, but

will not be permitted to pass on that information to other law

enforcement agencies.

By paragraph 16A(13)(b), a person who ceases to hold the

office of Commissioner of the Australian Federal Police or

Queensland Police Commissioner after having received relevant

taxation information, is to be prohibited from recording or

divulging that information in any circumstances.

43

Paraara~h l6A(l3)(c) will impose secrecy constraints on police

officers and other persons under the control of either of the

Police Commissioners who, for the purposes of carrying out

their duties, have been supplied with taxation information

received by the Police Commissioner. While such a person

remains under the control of the relevant Police Commissioner,

he or she will only be permitted to communicate the taxation

information to the relevant Police Commissioner (including a

subsequently appointed Commissioner) and to other persons

under the control of the relevant Police Commissioner, for

purposes connectedwith the performance of the official duties

of the Commissioner or those other persons (subparagraph

16A(13) (c) (i))

A person who-ceases to be under the control of a relevant

Police Commissioner and who has received confidential taxation

information will thereafter not be permitted to record,

divulge or communicate that information in any circumstances

(subparagraph 16A(l3)(c)(ii)).

Subsection 16A(l4) deals with the on-communication, by either

the Commonwealth Director of Public Prosecutions or the

Queensland Director of Prosecutions, of information initially

obtained by the State Commissioner under section 16A and

subsequently disclosed by the State Commissioner to either of

the Directors.

By paragraph l6A(l4)(a), a Director is prohibited from

on—communicating taxation—sourced information, except where

that communication is to a person or employee under the

control of the Director and then only where it is for purposes

of, or in connection with, the performance by that person or

employee of his or her official duties.

Paragraph l6A(l4)(b) is a safeguarding provision designed to

prohibit the recording or disclosure of taxation—sourced

information by a person who is no longer a Director.

44

Subparagraph16A(l4)(c)(i) is also a safeguarding provisionwhich ensuresthat a person to whom a Director has

communicated information under paragraph 16A(14)(a) is

prohibited from recording or disclosing the communicated

information to any person other than the Director or another

person or employee under the control of the Director. Such a

disclosure is only permitted where it is for the purposes of

enabling the Director, or persons or employees under his or

her control, to perform their respective official duties.

Subparagraph 16A(14)(c)(ii) is a further safeguarding

provision which is designed to ensure that, where a person to

whom a Director has communicated information under new

paragraph l6A(l4)(a) ceases to be a person or employee under

the control of the Director, that person is prohibited fromrecording or disclosing the relevant information.

Subsection l6A(l5) has substantially the same purpose and

effect as new subsection 16A(14) except that it relates to the

disclosure or communication by a Special Prosecutor and/or a

person or employee under his or her control of information

initially provided by the Commissioner of Taxation to the

State Commissioner and subsequently on—communicated by the

Sate Commissioner to the Special Prosecutor — see notes above

on subsection l6A(l4).

Subsection 16A(16) clarifies references in section 16A to a

person under the’ control of —

the State Commissioner (paragraph 16A(16)(a));

the Attorney—General (paragraph 16A(16)(b)); and

the Queensland Attorney—General (paragraph l6A(16)(c)).

45

A person is to be taken to be under the control of the State

Commissioner if the person —

is a barrister or solicitor appointed by the Queensland

Attorney—General to assist the State Commissioner

(suboarapraph16A(l6)(a)(i));

assists a barrister or solicitor so appointed

(subnaragraph16A(l6)(a)(ii)); or

is a member of the Queensland Police Force who has been

assignedto the inquiry to carry out an investigation on

behalf of, or under the control of, the State Commissioner

(subparagraph l6A(l6)(a)(iii)).

A person is to be taken to be under the control of the

Attorney-General if the person —

• is an officer of, or a person employed in, theAttorney—General’s Department (suboaragraph 16A(16)(b)(i));

is a person holding office, or employed, under an Act

administered by the Attorney-General (suboaragraph

l6A(l6)(b)(ii)); or

is a person under the control of a person holding office,

or employed, under an Act administered by the

Attorney—General (subparagraph16A(16)(b)(iii)).

A person is to be taken to be under the control of the

Queensland Attorney—General if the person —

is an officer of, or a person employed in, the Queensland

Department of Justice (subparagraph 16A(16)(c)(i));

46

is a person holding office, or employed, under a lawadministered by the Queensland Attorney-General

(subparagraph16A(l6)(c)(ii)); or

is a person under the control of a person holding office,

or employed, under a law administered by the Queensland

Attorney—General (subparagraph16A(l6) (c) (iii)).

By subsection 16A(17), a person who, in consequenceof the

disclosure of confidential taxation information to the

inquiry, has received such information cannot be compelled to

disclose that information to any court.

Where taxation—sourced information has been communicatedto,

or to a staff member of —

the CommonwealthDirector of Public Prosecutions under

paragraph16A(4)(e);

a Special Prosecutor under paragraph l6A(4)(e); or

the QueenslandDirector of Prosecutions under paragraph

l6A(4)(f),

paragraph 16A(lR)(a) will permit the further disclosure ofthat information to another person for the purposes of, or in

connection with —

the prosecution of a person for a tax—related offence (a

defined term — see notes on subsection l6A(2)); or

proceeds of crime proceedings (also defined in subsection

16A(2)) against the person

47

By virtue of naraaraoh l6A(l8)(b), where information is

admissible as evidence in the prosecution of a person for a

tax—related offence, or in proceeds of crime proceedings, that

information may be further communicatedto a court in the

course of the relevant proceedings before that court.

Subsection 16A(l9) provides that, where information has been

communicated to a person in the prosecution of another person

for a tax—related offence, or in proceeds of crime

proceedings, the person to whom the information has been

communicated shall not make a record of, or divulge or

communicate, the information otherwise than for the purpose

of, or in connection with, the relevant proceedings.

The maximum penalty for communicating, divulging or recording

information in contravention of the provisions of section l6A

is $5000 or imprisonment for 12 months, or both.

PART VII - AMENDMENTS OF THE TAXATION ADMINISTRATION ACT 1953


Clause 29C facilitates references to the Taxation

Administration Act 1953 which in Part VB of the Bill, is

referred to as the Principal Act.

Clause 33 — Provision of taxation information to National

Crime Authority

Clause 29D will amend section 3D of the Principal Act.

Existing section 3D provides that taxation information held by

the Commissioner of Taxation under the various taxation laws

and income tax information obtained by a Royal Commission may

be communicated to the National Crime Authority (NCA).

48

Where the NCA requests from the Commissioner of Taxation

information for the purposes of a tax—related investigation

such information may be directly communicated. However, where

the taxation information is required for the purposes of a

“special investigation” (within the meaning of the National

Crime Authority Act 1984) being conducted by the NCA, other

than a tax—related investigation, the information will only beavailable after obtaining an order from a Judge of the Federal

Court.

Existing subsection 3D(2) of the Principal Act permits a Royal

Commission to which taxation information has been communicated

to further communicate that information to the NCA if the

Royal Commission is of the opinion that the information is or

may be relevant to a tax—related offence. Paragraph (a) of

clause 29D will insert a new subsection 3D(2) in the Principal

Act to extend its operation to the State Commissioner (see

following notes on paragraph (c) of clause 29D).

Paragraph (c) of clause 29D will insert definitions of“inquiry” and “State Commissioner” in subsection 3D(22) of the

Principal Act. The terms are to have the same meaning as they

have in new subsection 16A(l) of the Income Tax Assessment Act

1936.

Paragraph (b) of clause 29D will amend subsection 3D(3) of the

Principal Act to make it clear that nothing in section 16A,

which is being inserted in the Income Tax Assessment Act 1936,

by clause 29B, prohibits the NCA from taking possession of 4information to which it becomes entitled to take possession

under section 56 of the National Crime Authority Act 1984.

49

PART VIII - AMENDMENTSOF PROCEEDSOF CRIME ACT 1987

OUTLINE:

The main purposes of this part are to:—

• to increase the effectiveness of the Proceeds Act as a

weapon against organised crime; and

to correct minor errors appearing in the Proceeds Act.


This clause is definitional.


This clause amends the definition of benefit in subsection

4(3) to ensure that it includes any benefit derived either

directly or indirectly from the commission of an offence.

Clause 36 — Forfeiture of all restrained property if person

convicted of serious offence

This clause amends paragraph 30(1)C to permit statutory

forfeiture of property which is under the effective control of

a convicted person although not legally owned by that person.

The clause also inserts a new subsection 30(8A) which permits

a person to seek a declaration that specified property has

been forfeited under subsection 30(1) and empowers the courtto make such a declaration. It is proposed to amend the

Mutual Assistance in Criminal Matters Act 1987 so that such a

declaration will be able to be enforced in a foreign country.

Clause 37 — Recovery of property to which section 30 applies

The amendments effected by this clause relate to the

circumstances in which property which has been forfeited under

section 30 can be recovered by the previous owner. The

50

amendmentsprevent the recovery of property which is

effectively controlled by the convicted person unless the

applicant can establish that the property was not used in or

in any way derived from the commission of any offence at all.

The clause also amends section 31 to provide that appropriate

notice of applications under the section for restoration of

property forfeited by force of law is given to the DPP and the

Minister. Similar notice requirements already exist in

subsections 21(9) and 21(10) in relation to property which is

affected by a forfeiture order.

Clause 38 — Search warrants in relation to tainted property

This clause amends section 36 to permit warrants to be issued

where there are reasonable grounds to suspect that tainted

property is expected to be located at the place or on the

person the subject of the warrant within the following 72

hours. This enables warrants to be sought on the basis of

reliable intelligence and gives police greater flexibility in

executing that warrant at the most advantageous time from an

operational viewpoint.

Clause 39 — Searches in emergencies

This clause amends section 38 by repealing subsections 38(1)

and 38(2) and inserting new subsections 38(1), 38(2), 38(2A)

and 38(2B) to enable the seizure during an emergency search of

property which is reasonably suspected of being tainted; to

permit the seizure of property which is tainted by reason of

offences other than the offence charged, or to permit the

seizure property which is believed on reasonable grounds to be

evidence of the commission of another offence, in the same way

as is permitted where search and seizure is authorised by

warrant. This amendment ensures that all money believed to be

the proceeds of an offence eg. imposition, may be seized

although at the time of that seizure charges had not been laid

for all of the offences from which the proceeds derive.

51

Clause 40 — Return of seized property

This clause amends section 40 so as to provide that where

property is seized and an information has not been laid at the

time of the seizure, but an information is laid within 48

hours of the seizure in compliance with subsection 40(3), the

DPP is nevertheless required to obtain a restraining order

pursuant to section 43 within 14 days of that seizure or the

property must be returned to the person from whose possession

it was seized.

Clause 41 — Restraining orders

This clause amends section 43 to empower the Official Trustee,

for the purposes of preserving the property or the value of

the assets, to deal with securities and investments and to

carry on a business, including employing and terminating the

employment of persons, where the Official Trustee has been

directed to take custody and control of restrained property.

Clause 42 — Grounds for making restraining order

This clause amends section 44 so as to provide different tests

in relation to applications for a restraining order against

property of a person other than the defendant. The relevant

test is dependent on whether the offence is a “serious

offence” or an “ordinary indictable offence”.

Clause 43 — Notice of application for restraining order

This clause amends section 45 to remove the limitations on

granting interim restraining orders so that the DPP may make

an application for an interim restraining order, without

giving notice to the owner of the property, in all cases

without having to establish urgency or public interest. In

any case, whether the property is money or real estate, it may

52

be possible for property to be concealed prior to an

application being determined although the Crown has no

evidence of efforts to conceal which could establish urgency.

A restraining order made without notice shall have effect for

not more than 14 days, but may be for such lesser period as is

fixed by the Court.

Clause 44 — Court may make further orders

This clause amendssection 48. Paragraph48(l)(c) is amended

to make it clear that any person who has an interest in

property affected by a restraining order is an ‘owner for the

purposes of that section and the court may examine any such

person’s affairs. Paragraph 48(l)(e) is amended to clarify

the types of order which the Court is empowered to make in

relation to restrained property in the custody and control of

the Official Trustee and to ensure that directors of

corporations can be required to give a sworn statement of the

affairs of the corporation. The clause also amends subsection

48(3) to make the grounds for excluding property from a

restraining order made under subsection 44(7A) for a serious

offence: that the applicant was not in any way involved in thecommission of the offence; the property was not effectively

controlled by the defendant; and, the property is not tainted

property in relation to the offence.

Clause 45 — Repeal of section 67 and substitution of new

section

This clause repeals the existing section 67 and inserts a new

section 67 which permits an order varying a production order

to be made by a Supreme Court Judge, rather than by the

Supreme Court as was previously the case. This amendment

brings section 67 in to line with section 66.

53

Clause 46 — Search warrant for location etc. of property

This clause amends section 71 so as to permit warrants to be

issued in respect of land or premises where a person has been

convicted of an indictable offence and a police officer has

reasonable grounds for suspecting that there will be a

property tracking document in relation to the offence, on any

land or premises within 72 hours of the issue of the warrant.

This amendment is in line with that proposed to section 36.

Clause 47 — Repeal of sections 79 and 80

This clause repeals sections 79 and 80 of the Proceeds Act,

but does not take effect until proclaimed. Proclamation of

this section will depend on the passage and proclamation of

the Cash Transaction Renorts Bill 1987 which will contain a

superseding provision.

Clause 48 — Duration of registration

This clause amends section 88 to provide that one of the

circumstances in which a registered restraining order ceases

to be in force is when the registering court receives notice

that the order has ceased to be in force in the State in which

it was made.


This clause inserts a new section lO2A into the Proceeds Act

which requires the Commonwealth to indemnify the Official

Trustee. This provision is similar to the indemnity provided

by sections 18A and l9A of the Bankruntcv Act 1966.

54


This clause provides that the Proceeds Act is further amended

as set out in Schedule4. The amendmentsin the schedule

either correct typescript errors, make minor amendments

consequential upon the amendments in the clauses of the Bill

or make minor amendmentsfor the purpose of clarifying

particular provisions,

PART IX AMENDMENTOF THE ROYAL COMMISSIONSACT 1902

The Royal CommissionsAct 1902 will be amended to ensure that

a statement or disclosure made by a witness to the Fitzgerald

Inquiry is not admissible against the witness in criminal

proceedings instituted under a law of the Commonwealth or of a

Territory (other than the Northern Territory) or in civil

proceedings instituted by, or on behalf of, the Commonwealth.


This clause facilitates references to the Royal Commissions

Act 1902 which in Part VIA, is referred to as the ‘Principal

Act’,

Clause 52 — Certain evidence before a State Commission

inadmissible in Commonwealth proceedings

Inserts new section 7D into the Principal Act.

Sub—section 7D(1) defines the following terms for the purposes

of section 7D —

‘Commissioner’ means Gerald Edward Fitzgerald QC in his

capacity as the person making the Inquiry.

55

‘Commonwealth proceeding’ means any criminal proceedings

under a law of the Commonwealth or of a Territory

(other than the Northern Territory) and any civilproceedings instituted by or on behalf of the

Commonwealth in a Commonwealth, State or Territory

court instituted before or after the commencement of

the section.

‘Inquiry’ is specifically defined to mean the

Fitzgerald Inquiry.

‘State law’ means sub-section 14(2) of the Queensland

Commissions of Inquiry Act 1950.

Sub-section 7D(2) ensures that a statement or disclosure made

by a witness to the Fitzgerald Inquiry is not admissible

against the witness in any criminal proceedings under a law of

the Commonwealth or of a Territory (other than the Northern

Territory) or in any civil proceedings instituted by, or on

behalf of, the Commonwealth. This provision ensures that a

witness appearing before the Fitzgerald Inquiry is in the same

position as a witness appearing before a Commonwealth Royal

Commission and is intended to supplement the operation of

sub—section 14(2) of the Commissions of Inquiry Act 1950 and

not to derogate from the operation of that provision in any

way,

The Telecommunications (Interception) Amendment Act 1987 and

the Telecommunications (Interception) Amendment Act 1979 are

amended to enable certain types of information obtained as a

result of interceptions of telecommunications to be given to

Commissioner Fitzgerald, and for evidence to be given to the

Fitzgerald Inquiry in relation to such information. The

amendments will permit further use of such information for the

purposes of investigating serious offences and any resulting

prosecutions, The amendments will also enable the Australian

56

Federal Police to continue to be able to obtain information

obtained as a result of lawful interceptions, for a purpose

connected with the investigation of serious offences. Under

the Act as it now stands, this information is available to the

AFP. These amendmentswill not affect a court’s discretion

whether or not to admit illegally obtained evidence.

PART X - AMENDMENTOF THE TELECOMMUNICATIONS(INTERCEPTION)

AMENDMENT ACT 1987

Clause 53 provides that, in Part VIB, ‘Principal Act’ means

the Telecommunications (Interception) Amendment Act 1987.

Clause 54 amends that Act by enabling the definitions insection 5 (other than in paragraph 5(l)(b)) and in sections 6

and 8 to come into operation on the day the Crimes Legislation

Amendment Act 1987 receives Royal Assent. The provisions

inserted by section 6 and 8 of the Principal Act are

interpretative and need to be brought into operation before

the commencementof the outstanding provisions of thePrincipal Act as they explain terms which appear or are

referred to in Part XI — Amendments of the Telecommunications

(Interception) Act 1979,

PART XI - AMENDMENTOF THE TELECOMMUNICATIONS(INTERCEPTION)

ACT 1979

Clause 55 defines the ‘Principal Act’ as above for the purpose

of the Part.

Clause 56 inserts a reference to new Part hA in the the

definition of ‘agency’ in the Principal Act. This is

necessaryas the term agency is used in Part hA.

Clause 57 amendsthe definition of ‘eligible judge’ in the

Principal Act to reflect the present meaning of the expression

57

‘judge’ in the light of the change in the definition which

will be made when the relevant provisions of the

Telecommunications (Interception) Amendment Act 1987 come into

operation.

Clause 58 inserts a substituted sub—section (2) to section 6E

in the Principal Act. It is consequential on clause 65A and

it expands the definition of ‘lawfully obtained information’

appearing in section 6E by including information communicated

in accordancewith proposed section 65A.

Clause 59 inserts a new Part IIA in the Principal Act. This

new Part provides for the communication of information to the

Fitzgerald Commission of Inquiry and possible future use of

that information. The clauses that are added to the Principal

Act are as follows:

— Proposed section 8A contains definitions of the

‘Commissioner’, ‘eligible information’, ‘eligible

interception’ and the ‘inquiry’. Eligible information is

information relating to certain matters obtained by an

eligible interception but does not include information

obtained by intercepting a communication or a part of a

communication that consists of a conversation or part of a

conversation. An ‘eligible interception’ is aninterception that was lawfully carried out under the Act

before or after the commencementof this Part or, if in

contravention of the Act, before the commencement of the

Part.

— Proposed section 8B provides that for the purposes

connected with the Fitzgerald Inquiry a person may

communicate eligible information to Commissioner

Fitzgerald or give eligible information in evidence before

the Commissioner.

58

— Proposed section 8C enables the Commissioner for the

purposes of the Inquiry to communicate, make use of, ormake a record of eligible information and to include such

information in his report about the Inquiry.

— Proposed section 8D enables the Commissioner, or a person

authorised by him, to communicate to law enforcementagencies eligible information that was given to him or in

evidence before him, that relates or appears to relate to

the commission of relevant offences in relation to the

agency. ‘Relevant offences’ as defined in the Act relate

to offences under the Act, the Telecommunications Act 1975and other offences of various kinds punishable by a period

of imprisonment of at least 3 years.

— Proposed section 8E permits a person who may lawfully

communicate information pursuant to sections 8B and 8D to

make a record of the information.

Proposed section 8F permits an officer of an agency to

whom the Commissioner has communicated information to pass

on that information or make use of or make a record of

that information for a ‘permitted purpose’ only.

Permitted purposes are defined in the Act and they relate

to specified investigations by or concerning the agency.

— Proposed section 8G enables a person to whom information

has lawfully been communicated for a purpose connected

with the Inquiry or for a permitted purpose to communicate

that information to another person or to make use of or

record that information for those purposes only.

— Proposed section 8H enables eligible information that has

been given to the Commissioner to be given in evidence in

exempt proceedings which have begun before or after the

commencement of the Part. Exempt proceedings are defined

in the Act.

59

— Proposedsection 8J makes it clear that Part IIA is an

exception to the general prohibition against communication

and the use of information obtained by interception

contained in subsection 7(4).

Clause 60 substitutes a reference to section 63 in lieu of

subsection 7(4) in proposed section 8C. When the

Telecommunications (Interception) Amendment Act 1987 comes

into operation, the general prohibition against communicating

information obtained as a result of an interception will be in

section 63 and not subsection 7(4). The amendment in clause

61 is for the same purpose.

Clause 62 amends the Principal Act by inserting proposed

section 63A, which makes provision for dealing with

intercepted information in connection with a proceeding begun

before the commencement of Part VII of the Principal Act.

Proposed sub—section 63A(l) provides that a person may, for a

purpose connected with a proceeding begun before the

commencement of Part VII, communicate, use, or make a record

of, or give in evidence in such a proceeding, information

obtained by intercepting a communication before the

commencement of Part VII (whether or not the interception was

done in contravention of subsection 7(1) of the Principal Act)

or obtained by virtue of a warrant issued under section 11 or

llA or Part IV.

The purpose of this provision is to relax the prohibition

contained in section 63 of the Principal Act on the

communication or giving in evidence of information obtained by

interception so as to preserve, for proceedings begun before

the commencement of section 21 of the Telecommunications

(Interception) Amendment Act 1987, the law on the

admissibility of information obtained by interception as

determined by the High Court in the case of Hilton v. Wells

(1985) 58 ALR 245. This provision will not affect a court’s

60

discretion to determine in such proceedings the admissibility

of unlawfully intercepted evidence in accordancewith the

general law as laid down in cases such as Bunning v. Cross

(see section 78). Subsection 63A(2) reinforces the continued

existence of the court’s discretion in the case of information

obtained by virtue of a warrant that was defective.

Clause 63 amends the Principal Act by inserting proposed

section 65A under which an officer of Telecom may, in

connection with the investigation of a serious offence (that

is, a Class 1 offence or Class 2 offence as defined in section

5 of the Principal Act), give to a member of the Australian

Federal Police lawfully obtained information, other than

foreign intelligence information obtained under a warrant

issued to the Australian Security Intelligence Organization

pursuant to section hA of the Principal Act.

Under paragraph 7(4A)(b) of the Act as it is in force atpresent, lawfully obtained information may be communicated for

the purpose of narcotics inquiries that are being made by

members of the Australian Federal Police. The

Telecommunications (Interception) Amendment Act 1987 omits

this provision. This clause will enable the Australian

Federal Police to continue to obtain this information in

connection with the investigation of serious offences.

Clause 64 amends section 72 of the Principal Act by adding a

reference to proposed section 65A. As amended, section 72

will allow a person, who is permitted to give information to

another person by section 65 or 68, subsection 71(2) or by

proposed section 65A, to make a record of the information for

the purpose of doing so.

Clause 65 adds a reference to proposed section 63A to section

73 of the Principal Act. Section 73 limits the purpose or

purposes for which information may, under provisions of the

Principal Act, be further communicated, used or recorded.

61

Clause 66 adds proposed sections 8H and 63A to the provisions

mentioned in section 77 under which evidence may be given of

information obtained by interception.

Clause 67 amends section 78 of the Principal Act, which dealswith the admission in evidence of intercepted information, to

take account of the insertion of proposed Part IIA in the

Principal Act.

PART XII - AMENDMENTSOF THE TRANSFEROF PRISONERSACT 1983

OUTLINE:

The main purpose of the amendmentsto the Transfer Act is to

give effect to the recommendations of the Report of the

Parliamentary Counsel’s Committee on the Transfer Act. The

amendments will achieve greater uniformity with the State

uniform prisoner transfer legislation.

The definition of “Commonwealth Prisoner” is being amended to

include Northern Territory prisoners removed to South

Australia under the Removal (Territories) Act. There

prisoners are not covered by the uniform transfer scheme.


This is definitional.


This clause extends the definition of ‘Commonwealth prisoner’

in the Transfer Act to include prisoners sentenced in the

Northern Territory for an offence against a law of that

Territory who were transferred to South Australia pursuant to

the Removal (Territories) Act before the transfer of prisoners

scheme came into operation.

62

Such prisoners are unable to avail themselves of the scheme

becausethey are not covered by the Commonwealth legislation

and are not covered by either the Northern Territory transfer

of prisoners legislation or the South Australian transfer of

prisoners legislation. The clause will make them Commonwealth

prisoners and thus subject to the Transfer Act.

Clause 70 — Application for transfer to stand trial on a

charge in respect of an offence against a law of the

Commonwealth or a Territory

This clause amends the Transfer Act and prescribes the State

Attorney—General as the certifying Minister and will bring the

Commonwealth legislation into line with the State legislation.

The uniform prisoners interstate transfer legislation passed

by the States and Northern Territory provides that before aprisoner may be transferred interstate for trial purposes, the

Attorney—General of the receiving State must consent to the

transfer.

In the Transfer Act the authority to consent to the transfer

of a Commonwealth prisoner for trial purposes, except for

Queensland, is vested not in the State Attorney—General in the

receiving State, but in the State Minister administering the

transfer of prisoners legislation of the receiving State.

Sub—section 8(4) will become superfluous after the clause

comes into force because it provides that the Queensland

Attorney—General is the consenting authority for the purposes

of the section. Clause 49(b) therefore provides for the

repeal of sub—section 8(4> of the Transfer Act.

Clause 71 — Application for transfer to stand trial on a

charge in respect of offence against a law of a State

This clause amends the Transfer Act and prescribes the State

Attorney—General as the certifying Minister and will bring the

Commonwealth legislation into line with the State

legislation.

63

The State uniform prisoner transfer legislation provides that

where a prisoner is to be transferred from one State to

another to stand trial on a State charge, the Attorney—General

of the State wishing to bring the charge has to certify that

the transfer of the prisoner is desirable in the interests of

the administration of justice. Section 9 of the Transfer Act

provides that where a Commonwealth prisoner is to be

transferred from one State prison to another State for trial

on a State charge, the certification shall be by the State

Minister administering the transfer of prisoners legislation.

Subsection 9(4) will become superfluous after the clause comes

into effect because it provides that the Queensland

Attorney-General is the consenting authority for the purposes

of the section. Clause 50(e) therefore provides for the

repeal of sub-section 9(4) of the Transfer Act.

Clause 72 — Revocation of return transfer orders

The purpose of this clause is to make it clear that the return

transfer order being revoked under section 15 of the Transfer

Act relates to a transfer for the purpose of attending a

trial, not appeal proceedings.


The clause inserts a new section l6A. The new section

provides that unless the prisoner is declared to be an exempt

prisoner by the Attorney—General, where the sentence imposed

on appeal is less than than the earlier imposed sentence the

Attorney—General makes an order for his retransfer. The

Attorney—General may make an order declaring a prisoner to be

an exempt prisoner having regard to the circumstances of the

prisoner, including the administration of justice and the

welfare of the prisoner. The Attorney—General may not make

such an order unless the Minister of the State where theprisoner is actually located has consented in writing to the

making of the order.

64

PART XIII - MISCELLANEOUS

OUTLINE:

This part provides for amendments consequential upon the

amendments to the Crimes Act in Part III of the Bill, and for

an application provision.

Clause 74 — Consequential amendments of other acts

Sub-clause(1) refers to Schedule 5, which repeals Part X,

sections 24 and 30, and paragraphs 27(a) and 27(d) of the

Interpretation Act. The substance of these provisions has

been reproduced in the Crimes Act by clause 11 of the Bill and

greater detail is provided above in discussing that clause.

Sub-clause (2) contains consequential amendments in Schedule 6

to the Removal (ACT) Act and the Removal (Territories) Act.

The amendments in Schedule 6 will omit section 7, the escape

offence, from the Removal (ACT) Act and repeal s.7 from theRemoval (Territories) Act, as the escape from custody or

detention of a Territory offender will be covered by clause 17.

Clause 75 — Application

Sub-clause (1) provides that sections 12 and 12A of the Crimes

Act continue to apply, in spite of their repeal by clause 14

of this Bill, to offences where proceedings were started

before the commencing day.

Sub—clause (2) provides that sections 42 and 43 of the

Interpretation Act continue to apply, in spite of their repeal

by clause 53 of this Bill, to offences committed before the

commencing day.

Sub—clause (3) applies sub—sections 4J (1), (2), (3), (6) and

(7) of the Crimes Act (as inserted by this Bill) to offences

against Commonwealth laws (except those dealt with by

65

sub—clause (4)) which were committed before the commencing

day, provided that proceedings in relation to those offences

are started on or after that day.

Sub—clause (4) applies sub—sections 4J (1), (2) and (7) of the

Crimes Act (as inserted by this Bill) to offences against the

Crimes Act committed before the commencing day provided that

the proceedings are started on or after that day.

Sub—clause (5) provides that, where an offence is dealt with

under sub-section 4J (1) pursuant to sub-clause (4), in the

absence of contrary intention the maximum penalty the court

may impose is either 12 months imprisonment or a fine of

$2,000.

Sub—clause (6) applies sub—sections 4J (4), (5), (6) and (7)

of the Crimes Act (as inserted by this Bill) to offences

against the Crimes Act committed before the commencing day,

provided that the proceedings are started on or after that day.

Sub-clause (7) defines ‘commencing day’ for the purposes of

this clause.

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