David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Hansard source

I will continue the remarks I was making before question time with respect to delayed notification search warrants. The legal framework will require the Ombudsman to conduct an inspection every six months. This will ensure that the inspection of records is more frequent and that the Ombudsman has a more comprehensive external oversight role. This amendment is in response to recommendation 8 of the committee report.

With respect to search warrant execution and the Australian Crime Commission Act amendments, I am proposing amendments to the definition of ‘executing officer’ in items 4 and 19 of schedule 3 of the bill so that a search warrant may only be executed by, or reassigned to, a person within the ACC who is also a qualified member of the AFP or a member of a police force of a state or territory. Making this amendment would eliminate the possibility of a non-police officer executing a search warrant and would also ensure that only a police officer has the capacity to exercise the use of force. This responds to recommendation 9 of the committee report and is consistent with the Crimes Act model.

With respect to further amendments to the Crime Commission Act relating to legal representation and examination, I will move an amendment to remove proposed section 25B of the bill. This amendment responds to recommendation 10 of the committee report. Removing proposed section 25B would ensure that no witness would be examined without a legal representative unless it is his or her express and informed desire to proceed without representation. This complies with the High Court pronouncements in the case of Dietrich.

The next amendment to the bill that I am proposing would correct an anomaly in the Australian Federal Police Act. The amendment is unrelated to the national investigative powers or witness identity matters. I propose that the maximum penalty of two years imprisonment for the secrecy offence in section 60A(2) of the act be reinserted. This penalty provision was unintentionally omitted when the commencement of the Law Enforcement Integrity Commission (Consequential Amendments) Act 2006 resulted in section 60A(2) of the Australian Federal Police Act being repealed and replaced. The re-enactment of this penalty would be retrospective to when the penalty was repealed. Although such retrospectivity is unusual and is likely to attract criticism from the Senate Standing Committee for the Scrutiny of Bills and others, I consider that on balance it is better not to leave a gap in the capacity to prosecute breaches giving rise to such an offence. The secrecy offence has been in force since it was first enacted and there is no legitimate excuse for conduct that breaches this provision. Individuals should not be able to escape prosecution because of the previous inadvertent repeal of the penalty.

With respect to the aviation amendments, a minor but necessary amendment that I am also proposing is the correction of an anomaly in the Crimes (Aviation) Act. Currently, section 15 of that act makes it an offence for a person on board a ‘division 2 aircraft’—an aircraft flying interstate or overseas—to do, or omit to do anything, that would be an offence against the law of the Commonwealth or the Crimes Act 1900 (ACT). Section 15 is intended to ensure that standard criminal offences—for example, theft and assault—always apply on such flights. However, with the current amendments to the Crimes Act (ACT) and the Criminal Code 2002 (ACT) many offences are no longer in the Crimes Act (ACT)—for example, theft—and instead appear in the Criminal Code (ACT). I propose amending section 15 of the Crimes (Aviation) Act so that it applies to Criminal Code conduct on relevant flights. In addition, to provide flexibility in the event of future changes to ACT criminal law, I propose that section 15 of the Crimes (Aviation) Act provide that regulations may be made to specify ACT law that do or do not apply on relevant flights.

I seek leave to move government amendments (1) to (19) together.

Leave granted.

I move:

(1)   Clause 2, page 2 (at the end of the table), add:

(2)    Schedule 1, item 1, page 6 (after line 21), after the definition of major controlled operation in section 15GC, insert:

nominated Tribunal member means a person in respect of whom a nomination under subsection 15GOB(1) is in force.

(3)    Schedule 1, item 1, page 8 (lines 5 to 7), omit subsection 15GE(3).

(4)    Schedule 1, item 1, page 16 (line 13), after “(4)”, insert “and section 15GOA”.

(5)    Schedule 1, item 1, page 16 (after line 23), after section 15GO, insert:

15GOA  Variations resulting in authority extending beyond 12 months

        (1)    To the extent that a proposed variation of an authority for a controlled operation:

             (a)    is of a kind referred to in paragraph 15GO(2)(a) (extensions of period of effect of authority); and

             (b)    would have the effect that the period of effect of the authority would be longer than 12 months (including any extensions under a previous variation);

the following rules apply:

             (c)    an appropriate authorising officer may not make the variation; and

             (d)    an application (theextension application) for the variation may be made under section 15GP to a nominated Tribunal member, instead of to an appropriate authorising officer; and

             (e)    this Part has effect, in relation to the extension application, as if:

                   (i)    references in sections 15GO, 15GP, 15GQ and 15GR, and in subsection 15GH(2) as applied by subsection 15GQ(2), to an appropriate authorising officer were references to a nominated Tribunal member; and

                  (ii)    references in those provisions to the authorising officer were references to the nominated Tribunal member.

        (2)    To avoid doubt, an extension application made to a nominated Tribunal member must not propose a variation that would authorise participants in the controlled operation to which the application relates to engage in additional or alternative controlled conduct.

15GOB  Minister may nominate AAT members

        (1)    The Minister may, by writing, nominate a person who holds one of the following appointments to the Administrative Appeals Tribunal to deal with extension applications:

             (a)    Deputy President;

             (b)    full-time senior member;

             (c)    part-time senior member;

             (d)    member.

        (2)    Despite subsection (1), the Minister must not nominate a person who holds an appointment as a part-time senior member or a member of the Tribunal unless the person:

             (a)    is enrolled as a legal practitioner of the High Court, of another federal court or of the Supreme Court of a State or of the Australian Capital Territory; and

             (b)    has been so enrolled for not less than 5 years.

        (3)    A nomination ceases to have effect if:

             (a)    the nominated Tribunal member ceases to hold an appointment described in subsection (1); or

             (b)    the Minister, by writing, withdraws the nomination.

        (4)    A nominated Tribunal member has, in relation to the performance or exercise of a function or power conferred on a nominated Tribunal member by this Act, the same protection and immunity as a Justice of the High Court has in relation to proceedings in the High Court.

        (5)    In this section:

extension application has the same meaning as in section 15GOA.

(6)    Schedule 1, item 1, page 24 (line 9), omit “Director National Operations”, substitute “Executive Director Operational Strategies, the Executive Director Intelligence Strategies”.

(7)    Schedule 1, item 1, page 28 (after line 6), after paragraph 15HH(2)(b), insert:

           (ba)    in relation to extension applications (within the meaning of section 15GOA) made to a nominated Tribunal member, being applications that would have been made to an authorising officer of the agency but for the operation of section 15GOA:

                   (i)    the number of authorities that have been varied by formal variations of authority, and the number of applications for such variations that have been refused, during the period to which the report relates; and

                  (ii)    the number of authorities that have been varied by urgent variations of authority, and the number of applications for such variations that have been refused, during the period to which the report relates;

(8)    Schedule 1, item 1, page 75 (after line 9), at the end of section 15KP, add:

        (3)    The presiding officer must not:

             (a)    record information disclosed to the presiding officer under subsection (2); or

             (b)    retain or copy a document or other thing provided to the presiding officer under that subsection.

(9)    Schedule 1, item 1, page 84 (line 28), omit “Director National Operations,”, substitute “Executive Director Operational Strategies, the Executive Director Intelligence Strategies”.

(10)  Schedule 1, item 1, page 84 (line 30), omit “at the rank”, substitute “occupying a position”.

(11)  Schedule 2, item 8, page 98 (after line 36), at the end of subsection 3SL(1), add:

Note:   Paragraph (1)(b) does not authorise the acquisition or use of an assumed identity (see Part IAC). The protection provided by Part IAC only applies if the requirements of that Part have been complied with.

(12)  Schedule 2, item 8, page 109 (line 30), omit “12”, substitute “6”.

(13)  Schedule 3, item 4, page 117 (line 23), before “person”, insert “eligible”.

(14)  Schedule 3, item 4, page 117 (line 26), before “person”, insert “eligible”.

(15)  Schedule 3, item 19, page 120 (line 22), before “person”, insert “eligible”.

(16)  Schedule 3, item 19, page 120 (line 23), before “person”, insert “eligible”.

(19)  Page 157 (after line 6), at the end of the Bill, add:

Schedule 7—Minor amendments

Australian Federal Police Act 1979

1  At the end of subsection 60A(2)

Add:

Penalty:  Imprisonment for 2 years.

Crimes (Aviation) Act 1991

2  After subparagraph 15(1)(b)(ii)

Insert:

                (iia)    the Criminal Code 2002 of the Australian Capital Territory in its application to the Jervis Bay Territory; or

3  At the end of paragraph 15(1)(b)

Add:

            or (iv)    any other law of the Australian Capital Territory prescribed by the regulations, in its application to the Jervis Bay Territory;

(Quorum formed)