Brendan O'Connor (Gorton, Australian Labor Party, Minister for Home Affairs) Share this | Hansard source

by leave—I move government amendments (1) to (64):

(1)    Schedule 1, item 13, page 9 (line 11), omit “paragraph (c)”, substitute “paragraphs (b) and (c)”.

(2)    Schedule 1, item 13, page 9 (after line 11), at the end of section 179B, add:

        (3)    The court must make the order under subsection (1) without notice having been given to any person if the ^*DPP requests the court to do so.

(3)    Schedule 1, item 13, page 9 (lines 23 and 24), omit subsection 179C(3).

(4)    Schedule 1, item 13, page 9 (lines 27 to 32), omit subsections 179C(5) and (6), substitute:

        (5)    The court may revoke the ^*preliminary unexplained wealth order on application under subsection (1) if satisfied that:

             (a)    there are no grounds on which to make the order at the time of considering the application to revoke the order; or

             (b)    it is in the public interest to do so.

(5)    Schedule 1, item 13, page 9 (after line 32), after section 179C, insert:

179CA Notice and procedure on application to revoke preliminary unexplained wealth order

        (1)    This section applies if a person applies under section 179C for revocation of a ^*preliminary unexplained wealth order.

        (2)    The applicant may appear and adduce material at the hearing of the application.

        (3)    The applicant must give the ^*DPP:

             (a)    written notice of the application; and

             (b)    a copy of any affidavit supporting the application.

        (4)    The ^*DPP may appear and adduce additional material at the hearing of the application.

        (5)    The ^*DPP must give the applicant a copy of any affidavit it proposes to rely on to contest the application.

        (6)    The notice and copies of affidavits must be given under subsections (3) and (5) within a reasonable time before the hearing of the application.

(6)    Schedule 1, item 13, page 10 (line 12), omit “^*total wealth of the person”, substitute “whole or any part of the person’s ^*wealth”.

(7)    Schedule 1, item 13, page 10 (line 26), omit subparagraph (2)(b)(iii), substitute:

                 (iii)    a ^*State offence that has a federal aspect;

reduced by any amount deducted under section 179J (reducing unexplained wealth amounts to take account of forfeiture, pecuniary penalties etc.).

(8)    Schedule 1, item 13, page 10 (lines 32 and 33), omit “, including information that could not reasonably have been ascertained before the application was made”.

(9)    Schedule 1, item 13, page 10 (after line 34), at the end of section 179E, add:

        (6)    Despite subsection (1), the court may refuse to make an order under that subsection if the court is satisfied that it is not in the public interest to make the order.

(10)  Schedule 1, item 13, page 13 (lines 27 and 28), omit “specifying an ^*unexplained wealth amount”, substitute “in relation to a person”.

(11)  Schedule 1, item 13, page 13 (line 29), after “Commonwealth”, insert “, once the unexplained wealth order is satisfied,”.

(12)  Schedule 1, item 13, page 14 (line 4), after “exceed the”, insert “person’s”.

(13)  Schedule 1, item 13, page 14 (lines 20 and 21), omit “any affidavit supporting the application”, substitute “the affidavit referred to in subsection 179B(2)”.

(14)  Schedule 1, item 13, page 14 (line 22) to page 15 (line 1), omit subsections 179N(3), (4) and (5), substitute:

        (3)    The ^*DPP must also give a copy of any other affidavit supporting the application to the person who would be subject to the ^*unexplained wealth order if it were made.

        (4)    The copies must be given under subsection (3) within a reasonable time before the hearing in relation to whether the order is to be made.

(15)  Schedule 1, item 13, page 15 (lines 14 to 21), omit section 179Q, substitute:

179Q Procedure on application and other notice requirements

        (1)    The person who would be subject to an ^*unexplained wealth order if it were made may appear and adduce evidence at the hearing in relation to whether the order is to be made.

        (2)    The person must give the ^*DPP written notice of any grounds on which he or she proposes to contest the making of the order.

        (3)    The ^*DPP may appear and adduce evidence at the hearing in relation to whether an ^*unexplained wealth order is to be made.

(16)  Schedule 1, item 32, page 20 (line 30), omit “any”, substitute “the”.

(17)  Schedule 2, item 67, page 44 (line 5), omit “or Division 2 of Part 4-1”.

(18)  Schedule 2, item 67, page 44 (table item 2), omit the table item, substitute:

2	Authority of the Commonwealth, or of a State or Territory, that has a function of investigating or prosecuting offences against a law of the Commonwealth, State or Territory	Assisting in the prevention, investigation or prosecution of an offence against that law that is punishable on conviction by imprisonment for at least 3 years or for life
2A	Authority of a foreign country that has a function of investigating or prosecuting offences against a law of the country	Assisting in the prevention, investigation or prosecution of an offence against that law constituted by conduct that, if it occurred in Australia, would constitute an offence against a law of the Commonwealth, or of a State or Territory, punishable on conviction by imprisonment for at least 3 years or for life

(19)  Schedule 2, item 67, page 44 (line 14) to page 45 (line 21), omit subsections 266A(3) to (5), substitute:

Limits on use of information disclosed

        (3)    In civil or ^*criminal proceedings against a person who gave an answer or produced a document in an ^*examination, none of the following that is disclosed under this section is admissible in evidence against the person:

             (a)    the answer or document;

             (b)    information contained in the answer or document.

        (4)    Subsection (3) does not apply in:

             (a)    ^*criminal proceedings for giving false or misleading information; or

             (b)    proceedings on an application under this Act; or

             (c)    proceedings ancillary to an application under this Act; or

             (d)    proceedings for enforcement of a ^*confiscation order; or

             (e)    civil proceedings for or in respect of a right or liability the document confers or imposes.

Note:   Subsections (3) and (4) reflect section 198.

        (5)    In a ^*criminal proceeding against a person who produced or made available a document under a ^*production order, none of the following that is disclosed under this section is admissible in evidence against the person:

             (a)    the document;

             (b)    information contained in the document.

        (6)    Subsection (5) does not apply in a proceeding under, or arising out of, section 137.1 or 137.2 of the Criminal Code (false or misleading information or documents) in relation to producing the document or making it available.

Note:   Subsections (5) and (6) reflect subsection 206(2).

        (7)    To avoid doubt, this section does not affect the admissibility in evidence of any information, document or thing obtained as an indirect consequence of a disclosure under this section.

(20)  Schedule 2, item 67, page 45 (after line 21), at the end of section 266A, add:

Relationship with subsection 228(2)

        (8)    To avoid doubt:

             (a)    this section does not limit subsection 228(2) (about a ^*search warrant authorising the ^*executing officer to make things seized under the warrant available to officers of other ^*enforcement agencies); and

             (b)    subsection 228(2) does not limit this section.

(21)  Schedule 3, item 10, page 68 (lines 1 and 2), omit “No single variation may extend the period of effect of a formal authority”, substitute “A formal authority must not be varied”.

(22)  Schedule 3, item 10, page 69 (line 28), omit “Determination of application to vary authority”, substitute “Requirements for variation of authority”.

(23)  Schedule 3, item 10, page 69 (lines 30 and 31), omit “the authorising officer concerned”, substitute “an appropriate authorising officer”.

(24)  Schedule 3, item 10, page 69 (line 35), omit “The authorising officer must not grant the variation”, substitute “An appropriate authorising officer must not vary an authority, whether on application or on the authorising officer’s own initiative,”.

(25)  Schedule 3, item 10, page 70 (line 36), omit “otherwise”, substitute “on the authorising officer’s own initiative”.

(26)  Schedule 3, item 10, page 72 (lines 19 to 25), omit subsection 15GT(3), substitute:

        (3)    For the purposes of subsection (2), the period of the extension must not exceed the lesser of:

             (a)    3 months; and

             (b)    a period that would result in the period of effect of the authority exceeding 24 months (including any previous extensions under this Subdivision or Subdivision B).

(27)  Schedule 3, item 10, page 88 (line 7), after “cessation”, insert “and the outcomes of the controlled operation”.

(28)  Schedule 3, item 10, page 89 (after line 10), after subsection 15HM(2), insert:

     (2A)    If the controlled operation involved illicit goods that are narcotic goods, the report is to:

             (a)    identify each law enforcement agency an officer of which had possession of the narcotic goods in the course of the controlled operation; and

             (b)    identify to the extent known any other person who had possession of the narcotic goods in the course of the controlled operation; and

             (c)    state whether the narcotic goods have been destroyed; and

             (d)    if the narcotic goods have not been destroyed—contain the information specified in subsection (2B) relating to the possession of the narcotic goods, or state that it is not known who has possession of them.

      (2B)    If the controlled operation involved narcotic goods that have not been destroyed, and the identity of the person who has possession of the narcotic goods is known, the report is to:

             (a)    if the person is a law enforcement officer—identify the law enforcement agency of which the person is an officer; or

             (b)    otherwise—identify the person.

      (2C)    If the chief officer of the authorising agency is of the view that disclosing the identity of a person may:

             (a)    endanger the safety of the person; or

             (b)    prejudice an investigation or prosecution;

then the person is sufficiently identified for the purposes of paragraphs (2A)(b) and (2B)(b) if the person is identified:

             (c)    by an assumed name under which the person is operating; or

             (d)    by a code name or code number;

as long as the chief officer can match the assumed name, code name or code number to the person’s identity.

(29)  Schedule 3, item 10, page 89 (line 25), omit “subsection 15HM(2)”, substitute “subsections 15HM(2), (2A), (2B) and (2C)”.

(30)  Schedule 3, item 10, page 93 (after line 14), after subparagraph 15HQ(2)(b)(viii), insert:

             (viiia)    the nature of the controlled conduct that was engaged in by law enforcement participants and civilian participants (if any); and

(31)  Schedule 3, item 10, page 93 (lines 17 and 18), omit “and the date of completion of the operation”, substitute “, the date on which the operation ceased, and the outcomes of the operation”.

(32)  Schedule 3, item 10, page 93 (after line 36), after subsection 15HQ(2), insert:

     (2A)    If the controlled operation involved illicit goods that are narcotic goods, the general register is to:

             (a)    identify each law enforcement agency an officer of which had possession of the narcotic goods in the course of the controlled operation; and

             (b)    identify to the extent known any other person who had possession of the narcotic goods in the course of the controlled operation; and

             (c)    state whether the narcotic goods have been destroyed; and

             (d)    if the narcotic goods have not been destroyed—contain the information specified in subsection (2B) relating to the possession of the narcotic goods, or state that it is not known who has possession of them.

      (2B)    If the controlled operation involved narcotic goods that have not been destroyed, and the identity of the person who has possession of the narcotic goods is known, the general register is to:

             (a)    if the person is a law enforcement officer—identify the law enforcement agency of which the person is an officer; or

             (b)    otherwise—identify the person.

      (2C)    If the chief officer of the authorising agency is of the view that disclosing the identity of a person may:

             (a)    endanger the safety of the person; or

             (b)    prejudice an investigation or prosecution;

then the person is sufficiently identified for the purposes of paragraphs (2A)(b) and (2B)(b) if the person is identified:

             (c)    by an assumed name under which the person is operating; or

             (d)    by a code name or code number;

as long as the chief officer can match the assumed name, code name or code number to the person’s identity.

(33)  Schedule 3, item 10, page 98 (lines 20 to 26), omit subsection 15HX(1), substitute:

        (1)    The Ombudsman may, by written instrument, delegate to an APS employee responsible to the Ombudsman all or any of the Ombudsman’s powers under this Division, other than a power to report to the Minister.

(34)  Schedule 3, item 10, page 129 (line 6), omit “ASIS.”, substitute “ASIS; and”.

(35)  Schedule 3, item 10, page 129 (after line 6), at the end of the definition of senior officer in subsection 15LH(3), add:

             (h)    in relation to a Commonwealth agency specified in the regulations for the purposes of the definition of law enforcement agencyan officer specified in the regulations to be a senior officer of the agency.

(36)  Schedule 3, item 10, page 129 (lines 14 to 31), omit the definition of chief officer in section 15M, substitute:

chief officer of a law enforcement agency means the following:

             (a)    in relation to the Australian Federal Police—the Commissioner of the Australian Federal Police;

             (b)    in relation to Customs—the Chief Executive Officer of Customs;

             (c)    in relation to the ACC—the Chief Executive Officer of the ACC;

             (d)    in relation to the Australian Commission for Law Enforcement Integrity—the Integrity Commissioner;

             (e)    in relation to the Australian Taxation Office—the Commissioner of Taxation;

              (f)    in relation to a Commonwealth agency specified in the regulations for the purposes of the definition of law enforcement agencythe officer specified in the regulations as the chief officer of that agency.

(37)  Schedule 3, item 10, page 130 (lines 17 to 19), omit the definition of intelligence agency in subsection 15M(1).

(38)  Schedule 3, item 10, page 131 (lines 1 and 2), omit the definition of National Witness Protection Program in subsection 15M(1).

(39)  Schedule 3, item 10, page 131 (lines 6 and 7), omit paragraph (b) of the definition of operative in subsection 15M(1), substitute:

             (b)    authorised to acquire and use an assumed identity under Part IAC by the chief officer of a law enforcement agency;

but does not include a person who is or was an intelligence officer (within the meaning of Part IAC).

(40)  Schedule 3, item 10, page 133 (after line 31), at the end of section 15MD, add:

        (3)    To avoid doubt, this Part does not, other than as expressly provided, limit the power of a court to control proceedings in relation to a matter before it.

(41)  Schedule 3, item 10, page 133 (line 33) to page 134 (line 14), omit subsection 15ME(1), substitute:

        (1)    The chief officer of a law enforcement agency may give a witness identity protection certificate for an operative in relation to a proceeding if:

             (a)    the operative is, or may be required, to give evidence in the proceeding; and

             (b)    the chief officer is satisfied on reasonable grounds that the disclosure in the proceeding of the operative’s identity or where the operative lives is likely to:

                   (i)    endanger the safety of the operative or another person; or

                  (ii)    prejudice any current or future investigation; or

                 (iii)    prejudice any current or future activity relating to security.

(42)  Schedule 3, item 10, page 135 (lines 11 and 12), omit “or an intelligence officer”.

(43)  Schedule 3, item 10, page 135 (line 35), omit “or an intelligence officer”.

(44)  Schedule 3, item 10, page 136 (lines 1 and 2), omit “or an intelligence officer”.

(45)  Schedule 3, item 10, page 136 (lines 22 and 23), omit “either a law enforcement officer or an intelligence officer”, substitute “a law enforcement officer”.

(46)  Schedule 3, item 10, page 137 (line 21), omit “one or more of the requirements of section 15MH”, substitute “the requirement under subsection 15MH(2) in relation to the time within which a copy of the certificate is to be given”.

(47)  Schedule 3, item 10, page 137 (lines 24 and 25), omit “requirement or requirements of section 15MH in respect of which leave is sought”, substitute “requirement referred to in subsection (1)”.

(48)  Schedule 3, item 10, page 137 (lines 26 to 32), omit subsection 15MI(3) (including the note).

(49)  Schedule 3, item 10, page 139 (lines 1 to 7), omit subsections 15MK(2) and (3).

(50)  Schedule 3, item 10, page 139 (after line 14), at the end of section 15MK, add:

        (6)    A person commits an offence if:

             (a)    an order has been made under subsection (1), (4) or (5); and

             (b)    the person engages in conduct; and

             (c)    the conduct contravenes the order.

Penalty:  Imprisonment for 2 years.

        (7)    Subsection (6) does not limit the court’s powers, including, but not limited to, the court’s power to punish for contempt.

(51)  Schedule 3, item 10, page 142 (line 27) to page 143 (line 5), omit section 15MP, substitute:

15MP Appeals and adjournments

        (1)    This section applies if, in proceedings before a court (the original court):

             (a)    the original court gives, or refuses, leave under section 15MI or 15MM in relation to a witness identity protection certificate for an operative; or

             (b)    the original court makes, or refuses to make, an order under section 15MK or 15MM in relation to a witness identity protection certificate for an operative.

        (2)    A court (the appeal court) that has jurisdiction to hear and determine appeals from a judgment, order or direction in the proceedings has jurisdiction to hear and determine an appeal against the decision to give or refuse leave, or to make or refuse to make the order.

        (3)    The following persons may appeal against the decision to give or refuse leave, or to make or refuse to make the order:

             (a)    a party to the proceedings;

             (b)    if the appeal court is satisfied that the operative to whom the certificate relates or the chief officer who gave the certificate has a sufficient interest in the decision—the operative or the chief officer.

        (4)    If a party to the proceedings appeals against the decision to give or refuse leave, or to make or refuse to make the order, the appeal court may allow the operative to whom the certificate relates, or the chief officer who gave the certificate, to join the appeal as a respondent, if the appeal court is satisfied that the operative or chief officer has a sufficient interest in the decision.

        (5)    A party to the proceedings, the operative to whom the certificate relates or the chief officer who gave the certificate may apply to the original court for an adjournment:

             (a)    to appeal against the decision of the original court to give or refuse leave, or to make or refuse to make the order; or

             (b)    to decide whether to appeal or seek leave to appeal against the decision.

        (6)    If an application is made under subsection (5), the original court must grant the adjournment.

(52)  Schedule 3, item 10, page 143 (lines 7 to 11), omit subsection 15MQ(1), substitute:

        (1)    This section applies if the chief officer of a law enforcement agency gives a witness identity protection certificate for an operative in relation to a proceeding.

(53)  Schedule 3, item 10, page 143 (lines 24 to 28), omit subsection 15MR(1), substitute:

        (1)    This section applies if the chief officer of a law enforcement agency gives a witness identity protection certificate for an operative in relation to a proceeding.

(54)  Schedule 3, item 10, page 145 (lines 18 to 20), omit paragraph 15MS(3)(f), substitute:

              (f)    the person is reckless as to whether his or her con

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