Bills Digest no. 110 2006–07
Crimes Legislation Amendment (National Investigative
Powers and Witness Protection) Bill 2006
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Financial implications
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Date
introduced: 29 November
2006
House: Senate
Portfolio: Justice and Customs
Commencement:
Sections 1 to 3 commence on the day the
Bill receives Royal Assent. Schedules 1 to 6 commence on the 28th
day after Royal Assent
The Crimes Legislation
Amendment (National Investigative Powers and Witness Protection)
Bill 2006 ( the Bill ) makes changes to law enforcement
investigative powers, including powers to conduct covert
investigations, and provides for new arrangements for the provision
of search warrants. It also amends laws for the protection of
witnesses.
The Bill introduces the following
measures:
- a delayed notification search warrants scheme which will enable
police officers to get search warrants that will allow the covert
entry and search of premises to prevent or investigate Commonwealth
terrorism offences and a limited range of other serious
Commonwealth offences, in cases where keeping the existence of an
investigation confidential could be critical to its success
- inserts a new part 1ACA into the Crimes Act which will create a
mechanism to protect the identity of a covert operative who gives
evidence in court proceedings.
The Bill amends the Crimes Act 1914
(Crimes Act); the Australian Crime Commission Act 2002
(the ACC Act); the Witness Protection Act 1994 (WP Act);
the Customs Act 1901 (Customs Act), Proceeds of Crime
Act 2002 (POC Act) and the Mutual Assistance in Criminal
Matters Act 1987 (MA Act).
On 7 December 2006, the Senate referred the
Bill to the Legal and Constitutional Committee for
inquiry and the
report was tabled on 7 February 2007.
The Scrutiny of Bills Committee reported on
the Bill in the
Alert Digest No. 15 of 2006 and made some recommendations in
relation to delayed notification search warrants discussed
below.
When introducing the Bill to the Senate,
Senator Chris Ellison stated:
Schedule 1 of the proposed amendments fulfils the
government s election commitment to introduce national model
legislation on assumed identities, controlled operations and the
protection of witness identity.
In order to investigate crime, police must be
given effective powers. Contemporary policing requires law
enforcement agencies to undertake covert investigations that extend
beyond the boundaries of any one jurisdiction. To address this
threat it is critical that law enforcement agencies adopt a
nationally coordinated and cooperative approach to law
enforcement.(1)
A controlled operation is a covert
investigative method. In a controlled operation, a law enforcement
officer (known as an operative ) conceals his or her identity in
order to associate with people suspected of being involved in
committing, organising or financing crimes and to gather evidence
or intelligence about them.
The operative typically acts under the
supervision or guidance of another law enforcement officer known as
a controller . The controller acts as the operative s link to the
law enforcement agency during the course of the operation.
Commonwealth controlled operations legislation
had its genesis in the High Court's decision in Ridgeway v.
Queen. On his release from prison, a person with drug
trafficking convictions-Ridgeway-contacted a former associate in
order to obtain some heroin. However, the former associate had
turned police informer. The police and the former associate
arranged to buy and import heroin into Australia and sell it to
Ridgeway who was then arrested, charged and convicted of offences
under the Customs Act. The High Court quashed Ridgeway's
conviction. In their joint judgment, Mason CJ, Deane and Dawson JJ
said:
In these circumstances ... grave and calculated
police criminality; the creation of an actual element of the
charged offence; selective prosecution; absence of any real
indication of official disapproval or retribution; the achievement
of an objective of the criminal conduct if evidence be
admitted-combine to make the case an extreme one in which the
considerations favouring rejection of evidence on public policy
grounds are extremely strong.(2)
Their Honours also remarked:
... in the context of the fact that deceit and
infiltration are of particular importance to the effective
investigation and punishment of trafficking in illegal drugs such
as heroin, it is arguable that a strict requirement of observance
of the criminal law by those entrusted with its enforcement
undesirably hinders law enforcement. Such an argument must,
however, be addressed to the Legislature and not to the courts. If
it be desired that those responsible for the investigation of crime
should be freed from the restraints of some of the provisions of
the criminal law, a legislative regime should be introduced
exempting them from those requirements.(3)
In September 2001, Parliament passed
legislation to extend the scope of controlled operations provisions
to enable operations against a broader range of criminal activity
subject to appropriate limitations, review and accountability
measures. This legislation was passed as part of the Measures
to Combat Serious and Organised Crime Act 2001and is enacted
through the Crimes Act 1914 (see history of
controlled operations in the Bills
Digest). Controlled operations can currently be undertaken with
respect to any serious Commonwealth offence attracting a penalty of
over 3 years imprisonment.
On 5 April 2002, the Prime Minister and state
and territory leaders agreed
on a number of reforms to enhance arrangements for dealing with
multi-jurisdictional crimes. In particular, they agreed to
introduce model laws for a national set of powers for cross-border
investigations covering controlled operations, assumed identities,
electronic surveillance devices and the protection of witness
identity.
The replacement provisions dealing with
controlled operations in this Bill are based on a model law on
controlled operations, assumed identities and protection of witness
identity that was developed by the Joint Working Group of the
Standing Committee of Attorneys-General and the Australasian Police
Ministers Council. The model law was published in November 2003 in
the Joint Working Group s
Cross-Border Investigative Powers for Law Enforcement
Report. The stated intention of this model law was to
harmonise, as closely as possible, the controlled operations,
assumed identities and protection of witness identity regimes
across Australia.
Information on how the regime currently
operates is contained in the Controlled Operations Annual
Report 2005-06 which can be accessed
here.
The Commonwealth Ombudsman monitors and
reports on controlled operations conducted by the Australian Crime
Commission (ACC) and the Australian Federal Police (AFP). Some of
these
reports are available to the public.
The Commonwealth Government introduced model
legislation on electronic surveillance devices in 2004. On 8
December 2004, Federal Parliament passed the Surveillance
Devices Act 2004 (Cth) which significantly widened the
circumstances in which Federal law enforcement agencies (other than
ASIO, ASIS and DSD) can covertly use data, optical, listening and
tracking surveillance devices (see further the Bills
Digest).(4)
A delayed notification search warrant would
enable police officers to get search warrants that will allow the
covert entry and search of premises to prevent or investigate
Commonwealth terrorism offences and a limited range of other
serious Commonwealth offences.
The provisions for delayed notification search
warrants were not included in the model law on cross-border
investigative powers for law enforcement.
The AFP representative told the Senate
Committee that:
The ability for police to enter and search
premises without notifying the occupants of the target premises is
an important investigative tool. Searches of this nature such as
controlled operations, telecommunications interception and the use
of electronic surveillance devices and stored communication
warrants complement the existing investigative tools available to
law enforcement because they allow the examination of physical
evidence such as computers, diaries and correspondence that enable
police to identify the full range of people involved in suspected
serious criminal activity and to obtain evidence of that activity.
It is particularly important in being able to operate to prevent
criminal activity. The rationale for seeking this power and the
context in which it would be used is that there are investigations
where keeping the existence of the investigation confidential, in
particular from targets of the investigation and their associates,
is often critical to the success of that
investigation.(5)
The Senate Scrutiny of bills Committee tabled
a report into
Entry, Search and Seizure Provisions in Commonwealth
Legislation on 4 December 2006.
The Scrutiny of Bills Committee noted that
while this new regime provides some protection of personal rights
and liberties through the warrant application and reporting
process, the new Division could be regarded as trespassing on
personal rights and liberties, and so left the question of whether
it does so unduly for consideration by the Senate as a
whole.(6)
These types of warrants exist at the state
level but are much more restricted delayed notification warrants in
the New South Wales jurisdiction have, as their exclusive focus,
prevention and response to terrorist acts. In Victoria and the
Northern Territory the issue of such warrants are limited to
circumstances in which 'a terrorist act has been, is being, or is
likely to be committed'. In Queensland, the warrants are available
in relation to the investigation of organised crime, terrorism or
designated offences, where 'designated offences' is limited to
offences involving death or serious injury with a maximum penalty
of life imprisonment.
A similar provision in the United States (US)
has proved controversial. Section 213 of the Uniting and
Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act of 2001 (Public Law
107-56), (the US Patriot Act), titled Authority for Delaying Notice
of the Execution of a Warrant, makes it legal for investigators to
delay notification that a search has taken place when: they seize
no tangible thing; and if the court finds reasonable cause that
immediate notification may have an adverse result on an
investigation. Under the US Patriot Act, the Government need not
tell a person that a space was searched for up to 90 days.
In the US these are known as sneak-and-peek
search warrants. A sneak-and-peek warrant, according to an analysis
of the Patriot Act done by the American Law Division for
Congress, allows agents to secretly enter a home or office and
search, observe, take measurements, conduct examinations, smell,
take pictures, copy documents, download or transmit computer files
and the like and depart without leaving notice of their presence.
(7)
New Part 1AC deals with
assumed identities. As the Attorney-General noted in his second
reading speech to the Crimes Amendment Bill 2005:
Assumed identities are false identities adopted to
facilitate intelligence and investigative functions, or the
infiltration of a criminal, hostile or insecure environment with a
view to collecting information and investigating
offences.(8)
The 2005 Bill amended the Crimes Act to enable
Commonwealth participating agencies to request assumed identity
documents from State and Territory issuing agencies in accordance
with legislation in force in those jurisdictions.
This Part of the Bill also implements the
model laws published in November 2003 in the Joint Working Group s
Report on Cross-Border Investigative Powers for Law
Enforcement.
The AFP provides an annual report on use of
assumed identities. The 2005-2006 annual report is available
here.
The measures relating to assumed identities
were passed, with bipartisan support, under the Measures to
Combat Serious and Organised Crime Act 2001 (see the Bills
Digest for further information). Amongst other things,
that Act inserted section 15XR into the Crimes Act to criminalise
the misuse of assumed identities. As the Attorney-General stated
when introducing that Act:
This is not something that is used lightly, and
there is a reporting mechanism in place and criminal punishments
for the misuse and abuse of the system of assumed identities. For
the financial year 2003-04, for example, only 71 authorisations
were issued. Perhaps in the coming year we may see a more
widespread use of these identities as security issues come to
light. In particular, the controversy that was before the
parliament and the media yesterday concerning controlled operations
at our airports is perhaps a continuing trend and a situation where
we will see these assumed identities being necessary to assist
those officers who are operating under cover. However, that is
obviously going to be an operational matter for the Australian
Federal Police to determine.(9)
The Witness Protection Act 1994 is
the legislative basis for the National Witness Protection Program
(NWPP), which provides protection and assistance to witnesses
involved in legal proceedings for example, in cases where the
witness has given evidence in a serious, or high profile, criminal
trial and as a result, their lives or the lives of their family are
potentially placed at risk.(10) Each State and Territory
has complementary legislation and runs its own witness protection
scheme, however, the AFP Commissioner can enter into arrangements
with an approved authority , which includes State and Territory
Commissioners of Police, and the Chairman of the ACC, to enable
protection and assistance to witnesses involved in operations run
by those organisations. In these cases, costs are shared between
the NWPP and the approved authority.
In the financial year ending 30 June 2006, the
NWPP managed 19 active witness protection operations, providing
protection to 39 people. According to the AFP, the majority of
people have been accepted into the program because of their
involvement as witnesses in prosecutions relating to organised,
large-scale importation of illegal drugs, or corruption matters.
The movement of witnesses into or out of Australia remains an
active element of the NWPP .(11)
The Bill makes a number of amendments to the
Witness Protection Act suggested by the Australian Federal Police
following a Review of the National Witness Protection
Program report of December 2003.
The Australian Federal Police told the Senate
Committee inquiry into the Bill:
The proposed witness protection amendments are
necessary to address issues which have arisen in the operation of
the National Witness Protection Program. The amendments clarify the
basis on which the AFP can provide protection and assistance to
former participants and their associates as well as to witnesses in
state or territory matters.(12)
The Bill makes some technical amendments to
the Australian Crime Commission Act 2002. The amendments
will purportedly improve the function of the ACC by expanding the
powers of examiners, aligning the current search warrant provisions
with the Crimes Act model and correcting some technical errors in
the legislation.
The Parliamentary Joint Committee on the
Australian Crime Commission conducted a
review of the ACC Act which was tabled on 10 November 2005.
This included substantive discussion of oversight of the ACC in
relation to controlled operations.
The Bill also makes amendments to the search
warrant provisions in the Crimes Act, Proceeds of Crimes Act
2002, Mutual Assistance in Criminal Matters Act 1987
and Customs Act 1901 to allow law enforcement officers to
access data from electronic equipment once it is seized.
The Senate referred the Bill to the Legal and
Constitutional Committee for
inquiry and the report was tabled on 7 February 2007 as noted
above. The Committee received only thirteen submissions, of which
only two, the Law Council of Australia and the Queensland Council
of Civil Liberties (QCCL) were not from government agencies or
police forces.
The QCCL in its submission strongly opposes
the controlled operations provisions because they authorise illegal
conduct by police: [t]he purpose of the police is to suppress
criminal activity, not to encourage or create it. There is in our
view no justification for any police instigation of any serious
criminal conduct .(13) The Law Council strongly opposed
delayed notification warrants as well as other aspects of the Bill
which are dealt with under the Main Provisions below.
The Committee recommended that the Bill be
passed subject to ten recommendations which focused mainly on human
rights safeguards:
- that proposed subsection 15GE(3) be deleted
from the Bill to prevent offences carrying a penalty of less than
three years imprisonment being included in the definition of
'serious offence' by regulation
- that the Bill be amended to retain the requirement for
extensions of controlled operations for three month periods to be
approved by a member of the AAT
- that the Bill be amended to impose an absolute limit of 12
months on each authorised controlled operation
- that if controlled operations are able to be extended
indefinitely, proposed subsection 15HH(4) should
be amended to require enforcement agencies to report to the
Commonwealth Ombudsman on the progress of current operations every
six months
- that proposed section 15KP be amended to
prohibit the retention, copying or recording by a presiding officer
of any information or documentation provided to them under that
provision
- that the Federal Government limit the offences in relation to
which delayed notification search warrants may be issued to
offences involving terrorism or organised crime; or death or
serious injury with a maximum penalty of life imprisonment
- that subsection 3SL(1)(b) be deleted so that
applications to impersonate a person for the purposes of executing
a warrant are subject to the same approval process as for other
uses of an assumed identity
- that the Bill be amended to require the Ombudsman to conduct an
inspection of agency files and issue a report to the Minister in
relation to the administration of delayed notification search
warrants at least every six months
- that the definition of 'executing officer' in Schedule 3 be
confined to sworn federal, state or territory police officers,
and
- that proposed subsection 25B(2) be amended to
require an ACC examiner to adjourn an examination for an adequate
time to enable a witness to engage an alternative legal
representative; and ensure that a witness will only be examined
without representation when his or her decision to forego
representation is express and informed.
The Commonwealth Ombudsman will receive extra
reporting obligations under this Bill. The Ombudsman s submission
to the Senate inquiry states:
The powers given to the Ombudsman in the 2001
amendments to the Crimes Act setting up the controlled operations
regime were scant. The Ombudsman was not consulted on that
legislation until the last minute and no attempt was made to align
the Ombudsman s power with those at his disposal under other
legislation where he exercised powers of inspection. This has been
corrected in the Bill. Some issues arose over the extent of the
Ombudsman s powers but these were resolved after discussion. A
provision based on the Ombudsman Act was added to clarify that
legal professional privilege is not affected by the Ombudsman
having access to documents.
I would like to flag the desirability of having a
set of powers which are automatically available to the Ombudsman
whenever he exercises an inspection role. At present there is a
different set of powers for every inspection
regime.(14)
The Ombudsman raised some disquiet of future
wide interpretations of serious crimes in relation to the delayed
notification warrants:
Given the highly intrusive nature of the power it
is appropriate that the delayed notification search warrant will be
available for investigation of Commonwealth offences and State
offences with a Federal aspect punishable on conviction by
imprisonment for a period of 10 years, namely the high end of
suspected serious offences. There are other offences for which a
warrant may also be available, not all of which are punishable by
10 years imprisonment. The list is diverse and includes recruitment
of mercenaries and recruitment of members of organizations engaged
in hostile activities towards foreign governments, politically
motivated violence, dealing with assets frozen under UN sanctions,
sexual slavery or use of communications services to make death
threats. Other offences may in time added to the list and it is
hoped that any additions will be limited only to the most serious
criminal conduct.(15)
The Bill appears to be revenue neutral.
Schedule 1: Amendment of the Crimes
Act 1914 Controlled operations, assumed identities and protection
of witness identity
Item 1 repeals the current Parts IAB and IAC
of the Crimes Act and replaces these with Proposed Part IAB
Controlled Operations.
Proposed subsection 15GA(1)
preserves judicial discretion to admit or exclude evidence or stay
proceedings, except to the extent that these discretions are
expressly restricted by the Bill. Proposed subsection
15GA(2) makes it clear that a court should not apply its
discretion to exclude evidence obtained during a controlled
operation solely because it was obtained through the commission of
unlawful acts, provided that the conduct was within the scope of
the controlled operation authority. See the discussion of
Ridgeway above.
Proposed section 15GB
provides that it is the intention of the Parliament that this Part
is not to apply to the exclusion of a law of a State or Territory
to the extent that the law is capable of operating concurrently
with this Part.
Proposed section 15GD defines
the phrase controlled operation as
an operation authorised under this proposed Part
for which immunity from civil and criminal offences is provided to
law enforcement and other participants. It may involve covert
or overt activity, but its object is to obtain evidence of serious
criminal offences against Commonwealth law or State or Territory
law with a federal aspect. In a covert controlled operation a
law enforcement officer (an operative ) may conceal his or her true
identity and associate with people suspected of being involved in
committing, organising or financing crimes to gather evidence or
intelligence about them. In some instances, a civilian (a
non-law enforcement officer) is used as an operative where the
civilian is better placed to attain the information than a law
enforcement officer. During the controlled operation the
participant may need to engage in unlawful conduct ( controlled
conduct ), for which, if not for proposed section 15GW, the
participant would be criminally responsible. A controlled
operation commences at the time an authority is granted under
proposed section 15GH (see also proposed section
15GN).(16)
The Bill enables controlled operations in the
case of a serious Commonwealth offence defined as an offence
carrying a maximum penalty of three or more years imprisonment; or
a serious state offence with a federal aspect. This is defined in
subsection 15GE(2) as a state
offence with a similar maximum prison term, but pertaining to a
subject on which the Commonwealth has constitutional power, or an
offence which is incidental to a Commonwealth investigation of a
Commonwealth offence, is defined as a serious state offence with a
federal aspect. Proposed section 15GE provides
that regulations may also prescribe a serious Commonwealth offence,
and such an offence need not carry a maximum imprisonment period of
three or more years.(17) Note the Ombudsman s comment on
this section in the Background above.
Applications, formal or urgent, must contain
sufficient information for an authorising officer (usually a Senior
Executive Service officer of the AFP or ACC to make a decision, and
include details of previous authorities applied for in relation to
the operation, whether granted or not. Applications must identify
the nature of criminal activity suspected (including suspected
offences), the nature of the controlled conduct which may be
engaged in, the identity of those targeted, and any conditions to
which the operation is subject. An urgent application contains
similar information, but with less detail of, for example, the kind
of criminal activity which is suspected.
Proposed section 15GH
provides that the authorising officer must not grant an authority
unless satisfied, on reasonable grounds, that:
- any unlawful conduct will be limited to the maximum extent
consistent with conducting an effective controlled operation;
- the operation will be conducted in a way that ensures that, to
the maximum extent possible, any illicit goods will be under the
control of Australian law enforcement officers at the end of the
operation; and
- the operation will not be conducted in a way that is likely to
induce a person to commit any offence they would not otherwise
commit.
Operations cannot be authorised if they would
seriously endanger the health or safety of a person, would cause
death or serious injury, would involve the commission of a sexual
offence, or would result in significant loss or damage to property
other than illicit goods (proposed section
15GH).
The authorisation process for controlled
operations is entirely internal to the AFP, the ACC and ACLEI. The
Explanatory Memorandum states that [i]nternal authorisation for
controlled operations is appropriate as the conduct of controlled
operations is essentially an internal and operational matter and
provides operational efficiency and protects the security of the
investigation. (18)
Under the current Crimes Act provisions,
appropriate authorising officers are able to vary an application
with the exception of extending the duration of the controlled
operation. Under proposed section 15GO, this
function is given to a nominated member of the AAT who can extend
the duration of a controlled operation only once and for a period
of 3 months. This means a controlled operation could only run
for a maximum of 6 months. The AAT member could only extend the
duration of the authorisation if they were reasonably satisfied
that all the criteria that were required for the granting of the
authorisation remain in existence.
Proposed section 15GL which
allows authorisations of specified individuals to engage in
controlled conduct is a new provision which was not contained in
the model laws.
Proposed section 15GG
provides that only an Australian law enforcement officer of a law
enforcement agency may apply for an authority to conduct a
controlled operation. Civilians can be authorised to participate in
a controlled operation in limited circumstances. Proposed
paragraph 15GH(2)(h) provides that the authorising officer
must be satisfied on reasonable grounds that the role given to a
civilian is not one that could be adequately performed by a law
enforcement officer. See the discussion about use of contractors
under Schedule 3 below.
Proposed sections 15GW, 15GX and
15H provide criminal and civil immunity from prosecution
for participants in controlled operations for acts which would be
unlawful but for their taking place as part of a controlled
operation. Participants may be law enforcement officers or
civilians, including informants. The immunity operates where the
participant acts within the terms of the authority and, in the case
of a civilian, where instructions from law enforcement officers are
followed.
Proposed section 15HA
provides for compensation to a person who suffers personal injury,
or loss or damage to property, as a direct result of an authorised
controlled operation. Current provisions cover only personal
injury. Compensation is not payable where the loss or damage has
been caused by the exercise of powers of criminal investigation
available under different laws than those relating to controlled
operations. That is, only actions which are directly connected to
the controlled operation, and not conduct which is incidental, will
be compensable.
Proposed sections 15HH to HT
deal with reporting obligations. Chief officers are responsible for
reporting six-monthly to the Ombudsman and Minister, in addition to
annual reports to the Minister. Reports must detail the number of
authorities granted, refused and varied; the nature of those
authorities; any losses or damage which resulted and the number of
authorities expired or cancelled. Chief Officers must report on
completed operations, indicating the nature of the operation, the
nature and quantity of illicit goods detained, and all foreign
countries through which those goods passed. The Ombudsman is also
granted comprehensive powers of inquiry and access to any records
held by an agency.
Other provisions which are broader than the
current Crimes Act provisions are:
- proposed section 15GW which provides
protection from criminal responsibility to informants
- proposed section 15GX which provides indemnity
against civil liability to informants
- proposed section 15HA which extends
compensation to persons who suffer personal injury as well as
property damage.
Proposed section 15HF creates
an offence relating to the unauthorised disclosure of information.
A person is guilty of an offence if he or she intentionally
discloses any information and is reckless as to whether the
information relates to an authorised controlled operation. However,
it is a defence if the disclosure was made:
- in connection with the administration or execution of this
Part
- for the purposes of any legal proceeding arising out
of, or otherwise related to this Part, or of any report of any such
proceedings
- in accordance with any requirement imposed by law, or
- in connection with the performance of functions or duties, or
the exercise of powers, of a law enforcement agency.
Proposed section 15HG creates an aggravated form of the offence
in proposed section 15HF.
Part 1AC-Assumed Identities
Proposed section 15HW states that the provisions relating to
assumed identities relate to law enforcement agencies, including
the AFP, the ACC, Customs, ACLEI, the Australian Taxation Office
(ATO), or any other agency specified in the regulations.
Proposed section 15HX extends
the ability to take an assumed identity beyond law enforcement
officers to include security and intelligence officers and other
authorised people (such as foreign law enforcement officers) and
allows those officers to acquire and use assumed identities for law
enforcement, security and intelligence purposes. Application can be
made by an enforcement or intelligence officer on behalf of
themselves, a colleague, a foreign officer, or a civilian.
Application can be made to the chief officer of the law enforcement
or intelligence officer's agency. Officers applying for identities
to be used by foreign officers or in foreign countries must apply
to the chief officer of the AFP or ACC.
Proposed section 15HY
provides that the authorising officer must be satisfied on
reasonable grounds that the assumed identity is necessary:
- for the purposes of an investigation or for gathering
intelligence in relation to criminal activity;
- for the exercise of powers and performance of functions of an
intelligence agency;
- for the exercise of powers and performance of functions under
the National Witness Protection Program;
- for the training of people to carry out any of these functions
or powers; or
- for any administrative function in support of any of these
powers or functions.
The authorising officer must also be satisfied
that the risk of abuse of the identity is minimal. Specific
criminal activity need not be pointed out by the applicant for the
purposes of obtaining authorisation. Where an assumed identity is
requested for use in a foreign country, the authorising officer
must also be satisfied that such an identity is reasonably
necessary in the circumstances.
Proposed section 15HZ(2)
provides that if the authority for an assumed identity relates to a
civilian supervised by a law enforcement officer, the authority can
remain in force for a maximum of three months. Otherwise,
authorities for assumed identity run until they are cancelled,
although authorising officers are required to review the necessity
of each authority annually, and every three years for intelligence
officers.
Proposed sections 15JK-JL and 15JN to
JR make provision for the return of evidence of the
assumed identity in case of cancellation. People operating under an
assumed identity, and third parties that assist them in creating
and maintaining the identity, are, in a limited way, indemnified
against prosecution for acts which would otherwise be illegal.
Proposed sections 15J-JY
create offences for misuse of an assumed identity, and for improper
disclosure of information about an assumed identity. Each offence
carries a maximum penalty of two years imprisonment.
Proposed section 15KB deals
with audits. A relevant chief officer must arrange for the audit of
assumed identity records at least six-monthly. Audits may be
carried out by a person holding an assumed identity, or a person
who has issued, varied or terminated an identity, but they may not
audit their own file (should they hold a false identity) or one on
which they have worked.
Under proposed sections 15JZ and
15KA, a report must be provided to the Minister by a
relevant chief officer. Reports must include a description of any
unlawful activity uncovered by audits, and statistical information
about the agency's operations as they relate to assumed identities.
In the case of the Australian Security Intelligence Organisation
and the Australian Secret Intelligence Service, a similar report
must be made to the Inspector-General of Intelligence and
Security.
Part
1ACA Witness Identity Protection
This Part of the Bill implements national
model legislation developed by a Joint Working Group of the
Standing Committee of Attorneys-General (SCAG) and the Australasian
Police Ministers Council, to protect the true identity of covert
operatives who give evidence in court. The model laws were
published in 2003 as part of the
Report on Cross-Border Investigative Powers for Law
Enforcement.
However, the Bill goes further than the model
legislation, and expands the proposed scheme beyond law enforcement
officers to include protection for security and intelligence
officers and others (such as foreign law enforcement officers)
granted an assumed identity.
The Bill replaces existing section 15XT of the
Crimes Act with new Part IACA. Part IACA will
create a mechanism to protect the identity of a covert operative
who gives evidence in court proceedings.
Division 1, sections 15KD
15KG provide definitions and avoidance of doubt provisions
regarding court proceedings.
Division 2 provides for
Witness Identity Protection Certificates for operatives.
Proposed section 15KI
provides that the chief officer of a law enforcement agency or an
intelligence agency may give a witness identity protection
certificate for an operative of the agency in relation to a
proceeding if the operative is required to give evidence on the
proceeding. Before issuing the certificate, the chief officer must
be 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.
It could be argued that items (ii) and (iii)
above allow a wide discretion to the chief officer in issuing a
witness protection certificate (WPC). According to the Explanatory
Memorandum, allowing the decision to be made within the law
enforcement or intelligence agency enables an informed decision to
be made about the need for protection, without possible security
risks.(19)
The list of enforcement agencies able to issue
a WPC is the same as those enabled to issue an assumed identity,
and includes the AFP, the Australian Customs Service, the ACC, the
ACLEI, the Australian Taxation Office, the Australian Security
Intelligence Organization, the Australian Secret Intelligence
Service and any other Commonwealth agency specified in the
regulations. Under section 15LA, the ability to issue a WPC may be
delegated to a Deputy Commissioner or equivalent (for example,
Deputy CEO of Customs, or Director National Operations of the
Australian Crime Commission Section 15LA(3) lists the deputy for
each organisation).
The operative seeking protection must complete
a statutory declaration, containing the following information, to
inform the decision-maker:
- whether the operative has been found guilty of an offence, and
if so, particulars thereof
- whether charges are pending or outstanding, and if so,
particulars thereof
- where the operative is an intelligence or law enforcement
officer, whether they have been found guilty, or been accused of,
misconduct, and the particulars thereof
- whether, to the applicant's knowledge, a court has made adverse
findings about their credibility, and the particulars thereof
- whether the operative has made a false representation where the
truth was required, and particulars thereof, and
- anything else known to the operative relevant to their own
credibility.
The witness will appear in person to give
evidence, be cross-examined and have their demeanour assessed by
the court. However, their real name and address will be withheld
from the court as well as the defence. Details relating to the
credibility of the witness, drawn from the statutory declaration,
will appear on a certificate of protection issued by the
decision-maker, and made available to the defence. This will mean
that the defence is restricted in their ability to question the
credibility of the witness, as only those details revealed on the
certificate will be available.(20)
Under proposed subsection
15KI(4), the decision to provide a WPC is final, and
cannot be appealed against, reviewed, called into question, quashed
or invalidated by any court . There has been strong criticism of
this provision. The Law Council of Australia stated:
[subsection 15KI(4)] denies courts any role in
evaluating whether there is a need to protect the true identity of
a witness and in balancing that need against other competing
interests.
The proposed regime has the potential to impact
substantially on the rights of an accused. This is because an
accused person s ability to defend himself or herself may be
significantly prejudiced if he or she is not permitted to discover
the role and character of those giving or providing evidence
against him or her.
As with the controlled operation and assumed
identity provisions of the Bill, the proposed amendments grant
extraordinary and unsupervised powers to law enforcement agencies,
on the assumption that superficial, periodic reporting requirements
offer sufficient safeguard against corruption and misuse. As with
the other provisions of the Bill, the proposed amendments fail to
properly mitigate against the risk that individuals rights will be
infringed.(21)
In its report, the Senate Committee also
commented:
The committee can see no justification for the
court to be denied the opportunity to consider the matter of
witness identity on its merits, and in conjunction with other
relevant considerations. It is the role of the court to adjudicate
on disputes which, by their nature, involve more than one party.
The rights of each party must be respected for justice to be done
and seen to be done, and any provision which limits the right of
the defendant to question the credibility of his or her accuser, as
this one does, deserves careful implementation by a court. The
committee considers that this is best achieved through leaving
intact the court's discretion to balance the various interests at
stake in individual cases.(22)
The Government defends the lack of an appeal
mechanism for the issue of a WPC on the grounds that the decision
to issue a WPC is based on highly sensitive operational
information, and the decision could not be reviewed without
disclosing this information. The Explanatory Memorandum states:
This may put at risk the safety of operatives or
their families or colleagues and may jeopardise an ongoing
investigation. Review of a decision would therefore defeat the
purpose of the witness identity protection
regime.(23)
Subsection 15KP provides for
the disclosure of an operative s identity to a court s presiding
officer. Upon filing of the WPC in court, its presiding officer may
require the operative to disclose their true identity to the
presiding officer, and/or provide the presiding officer with
photographic evidence of that identity. In its submission to the
Senate inquiry, The Queensland Police Service argued that an
amendment needs to be made to this section, ensuring that the judge
is not to record, copy or maintain any information or photographic
evidence relating to the operative s true identity. The Qld Police
argued that this was essential to prevent the information being
disclosed to a third party for example through a subsequent search
through court records.(24)
Proposed subsection
15KQ provides for a court to give leave to a party or a
lawyer to ask a question of a witness, including the operative,
that may lead to the disclosure of their identity or address; or
for a court to order a witness to answer a question or provide
information that may lead to the disclosure of their identity or
address, in a limited set of circumstances.
In order for the court to make such an order,
it must be satisfied that:
- there is evidence that, if accepted, would substantially call
into question the operative s credibility
- it would be impractical to test properly the credibility of the
operative without allowing the risk of disclosure of, or
disclosing, the operative s identity or where the identity
lives
- it is in the interests of justice for the operative s
credibility to be able to be tested.
Subsections 15KQ (6) to (10)
provide that such applications must be made in the absence of a
jury, in a closed court, and with a publication suppression, and
that the court must make any other order it considers appropriate
to protect the operative s identity. Contraventions of such court
orders carry a penalty of imprisonment for two years.
The Law Council of Australia argued that in
practice, defence lawyers will find it difficult to uncover
evidence that would question an operative s credibility:
This is because defence counsel will be precluded,
under threat of prosecution, from conducting the sort of pre-trial
investigations and cross-examination that might alert them to raise
relevant issues of credit.(25)
Proposed subsection 15KW
creates three offences relating to conduct which results in the
disclosure of an operative s identity or address. 15KW
(1) provides that a person commits an offence if they are
reckless as to whether a certificate has been given, and
intentionally engages in conduct that results in the disclosure, or
likely disclosure of, the operative s identity or address.
Subsections 15KW (2) and (3) are
indictable offences, and provide that if the person is reckless as
to whether the conduct will endanger the health and safety of
another person, or as to whether the conduct will prejudice the
conduct of an investigation or intelligence-gathering activity, the
penalty is imprisonment for 10 years.
In its report, the Senate Committee noted what
it considered to be a significant error in the Explanatory
Memorandum to the Bill. At proposed section 15KW,
in relation to disclosure offences, the Bill states that a person
commits an offence if [their] conduct results in the disclosure of
the operative's identity, whereas the Explanatory Memorandum
reports that an offence will be committed if the conduct results
'or is likely to result' in disclosure of the identity.
The Committee commented:
This is a significant anomaly, and warrants
special mention in the context of the increasing number of
government agencies who decline to make written submissions to
parliamentary inquiries, preferring instead to refer committees to
the Explanatory Memorandum. The committee would be less concerned
were this an isolated example, but it is not. Officers from the
Attorney-General's Department acknowledged at least one other
inaccuracy in the Explanatory Memorandum, in relation to the
possible use of force by personnel other than police officers. If
committees are to be directed to the Explanatory Memorandum, they
should be able to rely on its accuracy.(26)
Regarding these provisions of the Bill, the
Police Association of Victoria stated:
We are pleased with the proposal to protect the
identity of covert operatives. Being a covert operative is
difficult and carries with it considerable risk and any mechanism
that can be introduced to protect Police officers and others who
undertake this important work is much appreciated.
As well as the objections to certain
provisions outlined above, the Law Council of Australia stated that
in general it supported a model for witness protection which was
proposed by the Australian Law Reform Commission:
The court or tribunal should undertake an
independent assessment of the asserted need for witness anonymity
and satisfy itself that the need is genuine and well-founded in the
interests of national security.
The court or tribunal should only permit witnesses
to testify anonymously if all other less restrictive protective
measures have been considered and found to be inadequate in the
circumstances.
The court or tribunal may make orders to conceal
the physical appearance or identity of a witness from the public
while allowing only the parties, their lawyers and the judge,
magistrate or tribunal members to observe the witness. However,
other than in exceptional circumstances, the court in criminal
proceedings should not sanction methods which would conceal the
physical appearance of a witness from an accused person (and his or
her lawyers).
The court or tribunal should be reluctant to
convict (or enter a judgment against a party) based either solely
or to a decisive extent on the testimony of any anonymous
witness.
The Law Council commented that the Bill s
proposed scheme is fundamentally at odds with these principles. It
prioritises law enforcement agencies internal, un-scrutinised
assessments of their operational and security needs above all other
concerns, including a defendant s right to a fair trial
.(27)
Schedule 2: Delayed notification
search warrants
Item 8 inserts a new
Division 2A Delayed Notification Search Warrants into Part
1AA of the Crimes Act. This new Division provides for requesting,
authorising, issuing and reporting obligations with respect to
delayed notification search warrants.
Proposed section 3SA provides
definitions of terms used in the Division. The Division applies
to:
- a Commonwealth offence that is punishable on conviction by
imprisonment for a period of 10 years or more, or
- a State offence that has a federal aspect that is punishable on
conviction by imprisonment for a period of 10 years or more (see
definition in section 4AA of the Australian Federal Police Act
1979), or
- an offence against section 8 (Recruiting persons to join
organizations engaged in hostile activities against foreign
governments) or 9 (Recruiting persons to serve in or with an armed
force in a foreign State) of the Crimes (Foreign
Incursions and Recruitment) Act 1978, or
- an offence against section 20 (dealing with freezable assets)
or 21 (giving an asset to a proscribed person or entity) of the
Charter of the United Nations Act 1945, or
- an offence against subsection 147.2(1) or (3) (Threatening to
cause harm to a Commonwealth public official etc), section 270.7
(Deceptive recruiting for sexual services), or subsection 471.11(2)
(Using a postal or similar service to make a threat) or 474.15(2)
(Using a carriage service to make a threat) of the Criminal
Code.
Proposed section 3SB defines
the terms eligible Judge and Judge . Judge has its normal meaning
as a Judge of a court created by the Parliament, but also includes
a State or Territory Judge. Eligible Judges in this Division,
unlike other parts of the Crimes Act, will include Family Court
Judges. Eligible Judges are Judges who have consented to be, and
have been declared by the Minister to be, eligible Judges for the
purposes of the Act under proposed subsections 3SB(2) and
(3). Both the consent and the declaration must be in
writing.
Proposed subsection 3SB(4)
provides that any function or power conferred on a Judge under the
Bill is conferred in a personal capacity, that is, in persona
designata, rather than as a court or a member of a court.
Proposed section 3SC provides
that the Minister may nominate a Deputy President, a full-time
senior member, a part-time senior member or a member of the
Administrative Appeals Tribunal (the AAT) to issue delayed
notification search warrants, but only if they have been admitted
for at least 5 years.
Existing section 4AAA of the Crimes Act deals
with the rules that apply if, under a law of the Commonwealth
relating to criminal matters, a function or power that is neither
judicial nor incidental to a judicial function or power, is
conferred on specified judicial officers. The rules currently apply
to State or Territory judges and magistrates.
The use of judicial officers raises certain
constitutional issues. See further discussion of the High Court
decision of Grollo v Palmer (1995) 184 CLR 348
which found that Federal Court judges could validly issue
telecommunications interception warrants here.
Proposed subsections 3SD(1) and
3SD(2) enable the chief officer of the AFP or of the
police force or police service of a State or Territory to authorise
a constable, in writing, to apply for a delayed notification search
warrant in respect of particular premises. The constable must be
from the same police force or police service as the chief officer.
A constable cannot apply for a delayed notification search warrant
without such authorisation. The requirement for authorisation to
apply for a delayed notification search warrant is an additional
safeguard which is not contained in the general search warrant
provisions.
Proposed subsection 3SD(3)
provides a three part test which must be satisfied before a chief
officer can authorise an application for a delayed notification
search warrant. The chief officer must be satisfied that
there are reasonable grounds to suspect that one or more relevant
offences have been, are being, are about to be or are likely to be
committed. The chief officer must also be satisfied that
entry to and search of the premises will substantially assist in
the prevention of, or investigation into, those relevant
offences. Finally, the chief officer must also be satisfied
that there are reasonable grounds to believe that it is necessary
for the entry and search of the premises to be conducted without
the knowledge of any occupier of the premises. Proposed
subsections 3SH(1) and 3SI(2) make it clear that it is not
the intention of this Division that an application for a delayed
notification search warrant should be authorised where there are
other means of collecting relevant evidence.
Proposed section 3SE sets out
the procedures to be followed by a constable applying for a delayed
notification search warrant. Proposed subsection
3SE(2) sets out what must be included in an application
for a delayed notification search warrant. Unless made remotely
under proposed section 3SF, the application must
be in writing. The application must include the name of the
applicant, as well as the name of the constable executing the
warrant unless the name of another constable is inserted. It
must also include details or a copy of the authorisation given
under proposed section 3SD, an address or
description of the premises, and must specify the duration of the
warrant sought. Proposed subparagraph
3SE(2)(f) limits the duration of a delayed notification
search warrant to 30 days. The application must include a
description of the kinds of things that are proposed to be searched
for, and state whether entry to adjoining premises is
required.
Subject to proposed subsection
3SE(4), new paragraph 3SE(2)(i) requires
the application to be supported by an affidavit. Proposed
subsection 3SE(4) enables the making of an application for
a delayed notification search warrant without an affidavit if the
applicant believes that it is impracticable for an affidavit
to be prepared or sworn before the application is made or that any
delay would frustrate the effective execution of the warrant.
Proposed subsection 3SE(5) requires the applicant
to provide as much information as the eligible issuing officer
considers is reasonably practicable and send a sworn affidavit to
the eligible issuing officer within 72 hours of making the
application even if the application was not successful.
Proposed subsection 3SE(6)
provides that an eligible issuing officer may request further
information relating to the application, and may require an
affidavit in relation to that further information. This power
enables an eligible issuing officer to be satisfied as to the
necessity for issuing a delayed notification search warrant.
Proposed subsection 3SI(2)
sets out seven matters which an eligible issuing officer must have
regard to in deciding whether to issue a delayed notification
search warrant:
- the extent to which the exercise of the powers would assist the
prevention of or investigation into the relevant offences
- the existence of alternative means of obtaining the evidence or
information
- the extent to which the privacy of any person is likely to be
affected
- the nature and gravity of the alleged offence(s) for which the
warrant is sought
- if it is proposed that adjoining premises be entered for the
purpose of entering the target premises whether that entry is
reasonably necessary
- whether any conditions should be included in the warrant,
and
- the outcome of any known previous applications for delayed
notification search warrant or a Division 2 warrant in connection
with the same premises.
The Explanatory Memorandum states:
Proposed subsection 3SI(2) recognises and balances
the competing public interest in timely and effective law
enforcement and the intrusion on the privacy of a group or
individual. The eligible issuing officer hearing the
application must balance these interests in the circumstances of
each application.(28)
Proposed section 3SJ sets out
the information which must be contained in a delayed notification
search warrant. The warrant must also state whether it authorises
re-entry of the warrant premises to return any thing seized or to
retrieve any thing substituted, and if so proposed
paragraph 3SJ(1)(j) requires that re-entry to be within
seven days of the day on which the warrant was executed, that is,
the day on which the premises were first entered under the
warrant.
Proposed section 3SL sets out
what is authorised by a delayed notification search warrant. The
powers under this provision are based upon the powers conferred
under section 27O of the New South Wales Terrorism Legislation
Amendment (Warrants) Act 2005, as well as powers based on
section 3F of the Crimes Act.
Proposed subsection 3SL(2)
defines relevant thing . A reference to a relevant thing in this
section means a thing that an executing officer or a constable
assisting in the execution of the warrant believes, on reasonable
grounds, is evidential material in relation to an offence to which
this Division applies, or evidential material in relation to
another offence which is an indictable offence. This empowers
the seizure of things found on the premises which do not relate to
the relevant offence for which the delayed notification search
warrant was issued but which may constitute evidence of other
serious offences.
The power to enter warrant premises authorised
at proposed paragraph 3SL(1)(a) would include a
power to enter adjoining premises specified in the warrant.
The power to impersonate a person authorised by proposed
paragraph 3SL(1)(b) would enable executing officers and
constables assisting to gain entry for example, by impersonating a
council technician carrying out routine work for the purposes of
allaying suspicion of other residents of the area.
Proposed
section 3SN based on section 3G of the Crimes Act,
authorises an officer executing the warrant to obtain such
assistance as is necessary and reasonable in the circumstances to
execute the warrant. It also authorises the executing officer
or a person who is a constable who is assisting, to use such force
against people and things as is necessary and reasonable to execute
a delayed notification search warrant.
The proposed section also authorises a person
who is not a constable but who has been authorised to assist in
executing the warrant, to use such force against things as is
necessary and reasonable in the circumstances. A person who is not
a constable assisting but who has been authorised to assist is not
authorised to use force against people. This section may
contemplate a contractor or technical assistant such as an IT
specialist, who can help in the search process, eg to look at parts
of a computer found during a search.
See further the Senate Committee discussion of
the use of force provisions in Schedule 3.
Proposed subsection 3SN(2)
requires that an executing officer or a constable assisting has a
copy of the warrant, but proposed subsection
3SN(3) clarifies that there is no requirement to produce
the warrant.
Because a warrant allows an executing officer or
constable assisting to impersonate another person during the
execution of the warrant, the occupier may accept the legitimacy of
the action, which obviates the need to produce the warrant, and
allows the operation to remain covert.(29)
Proposed section 3SP
authorises the operation of electronic equipment found at the
warrant premises to access data held on that equipment to determine
whether it constitutes evidential material, and to copy it to a
storage device and remove it from the premises.
Proposed subsection 3SP(6)
applies section 3M of the Crimes Act to the delayed notification
search warrants scheme, entitling an occupier to compensation for
damage caused to electronic equipment as a result of it being
operated under this section. Given the covert nature of the
operation, compensation would normally only be paid when an
occupier s notice was provided, unless the occupier had become
aware that damage had been sustained.
Proposed section 3SQ requires
that a notice be given to the occupier of premises entered under a
delayed notification search warrant and sets out the information
which must be contained in the notice. The notice may be prepared
by either the executing officer or the applicant. These
requirements will ensure that the occupier of the premises is aware
of why a delayed notification search warrant was issued in respect
of the premises, and what was done under the warrant. The notice is
to be given in accordance with the time limits specified under
proposed section 3SS, that is within six months of
the date on which the premises were first entered under the
warrant.
This can be extended by periods of up to six
months on any one application, up to a maximum of 18 months. An
extension beyond 18 months from the date of entry may only be
granted with the written approval of the Minister and if the
eligible issuing officer is satisfied that there are exceptional
circumstances. This recognises that some investigations may be
undertaken over an extended period.
Proposed section 3ST imposes
reporting requirements on the executing officer of a delayed
notification search warrant, whether or not it was executed.
The chief officer of an authorising agency
must report to the Minister within three months of the end of each
financial year under proposed section 3SU. The
report must set out the number of warrants applied for and issued
to officers of the authorising agency during the year, and specify
the number applied for in person or by electronic means. The report
must also include details of the relevant offences to which the
issued delayed notification search warrants relate. The report must
not only specify the number of warrants that were executed, but
must also specify the number of warrants that were executed under
which things were seized, placed in substitution, returned to or
retrieved from the premises, and copied, operated or printed.
Additional information may be requested by the Minister, and the
chief officer is obliged to provide it. The Minister is required to
table the report in Parliament.
Proposed sections 3SV-SZ
establish an inspection regime requiring the Commonwealth Ombudsman
to inspect the records kept by authorising agencies at least once
every 12 months. The role of the Ombudsman is to determine whether
the records kept are accurate and whether an authorising agency is
complying with its obligations under proposed Division 2A. The
Ombudsman is empowered to enter premises occupied by the
authorising agency at any reasonable time after notifying the chief
officer of the agency. The Ombudsman is then entitled to full and
free access at all reasonable times to all records of the delayed
notification search warrants scheme that are relevant to the
inspection. Agency staff are required to co-operate with requests
for assistance and to retrieve information reasonably required by
the Ombudsman.
The Ombudsman may also require written and
oral information from any officer of an agency where the Ombudsman
has reason to think the officer can assist with inquiries. Failure
to comply with requests from the Ombudsman for information are not
excused on the grounds that doing so would contravene a law, would
be contrary to the public interest or might tend to incriminate the
person or make them liable to a penalty, or to disclose certain
advice of a legal nature. The Ombudsman may also pass information
to an equivalent state or territory inspecting authority where it
is considered necessary for that authority to carry out its
functions. The maximum penalty for failure to comply with the
Ombudsman's request for information is six months imprisonment
(proposed sections 3SZA-SZD).
Under proposed section 3SZF,
the Ombudsman is required to provide a written report to the
Minister every six months on the results of each inspection
undertaken, and a copy of the report must be tabled in
Parliament.
Proposed subsection 3SZG(1)
creates an offence of unauthorised disclosure of information
relating to an application for a delayed notification search
warrant, the execution of a delayed notification search warrant, a
report prepared by an executing officer or applicant after the
warrant has been executed or has expired, or relating to an
occupier s notice or adjoining occupier s notice. The offence
carries a maximum penalty of two years imprisonment.
Proposed subsection 3SZG(2)
specifies exceptions where lawful disclosure can be made. The
defendant bears the evidential burden of proof of the exception in
accordance with the provision at subsection 13.3(3) of the Criminal
Code.
Schedule 3: Amendments to the
Australian Crime Commission Act 2002
Schedule 3 makes amendments to the
Australian Crime Commission Act 2002 (the ACC Act). The
amendments are aimed at addressing operational difficulties
experienced by the Australian Crime Commission (the ACC), and
making some minor technical amendments. The main issues arising in
Schedule 3 are outlined below.
Item 1 inserts the following
definition of constable into the ACC Act:
Constable means a member
or special member of the Australian Federal Police or a member of
the police or police service of a state.
Item 4 in Schedule 3 inserts
a definition of executing officer , in relation to a warrant issued
under section 22 of the ACC Act:
Executing officer, in
relation to a warrant issued under section 22, means:
- the person named in the warrant by the issuing officer under
paragraph 22(5)(e) as being responsible for executing the warrant;
or
- another person whose name has been inserted in the warrant by,
or on behalf of, the person mentioned in paragraph (a).
Under Section 22 of the ACC Act, a person
named in a warrant as an issuing officer must be a police officer.
Item 4 amends the ACC Act to authorise the person
named in a warrant to sign the warrant over to another person.
There is no stipulation that that person must be a police
officer.
The Explanatory Memorandum states that this is
necessary due to the ACC employing a number of contract or in-house
investigators, as well as seconded police officers. The employment
of contractors is necessary because the regular rotation of
seconded police means there is a need for continuity and corporate
knowledge in long-term investigations.(30)
The Explanatory Memorandum further elaborates
that whilst executing a search warrant, and ACC officer (who may or
may not be a police officer), may be called upon to exercise powers
normally given to police officers, and there will often be the need
to carry a firearm.(31)
The powers of executing officers to use force
are detailed in item 26, which inserts new
Section 23A into the ACC Act, allowing the
executing officer, or a person who is a constable and who is
assisting in executing the warrant, use of such force against
persons and things as is necessary and reasonable under the
circumstances (new section 23A (b)). A person who is not a
constable and who is assisting in executing the warrant is able to
use such force against things as is necessary and reasonable in the
circumstances (section 23A (c)).
This transfer of warrant execution power to a
non-police officer, particularly if they are authorised to use
force and a firearm, has raised some concern. The Police Federation
of Australia stated:
The PFA is concerned that contract investigators
may be brought into the ACC for specific investigations, be sworn
in as a Special Member of the AFP and therefore be eligible to
execute search warrants, use reasonable force and carry a firearm
in so doing. We argue that the community needs to be confident that
such investigators, who are not members of the AFP or a state
police force, have the requisite skills and experience to be given
such authority. There appears to be nothing in the current
legislation, the Bill or the Explanatory Memorandum that would give
comfort on this issue.(32)
In its report on the Bill, the Senate Legal
and Constitutional Affairs Committee stated:
the committee [has] identified a significant
anomaly. In the delayed notification search warrant provisions in
Schedule 2, proposed section 3SN proscribes the use of force
against persons and things by anybody other than a sworn police
officer. However, in Schedule 3, which pertains to the ACC
specifically, the term 'executing officer' is defined differently,
and need not necessarily be a police officer. While an issuing
officer is required to issue the warrant only on application by a
police officer, there is no requirement that the person nominated
to execute the warrant be a police officer. Furthermore, the
executing officer may transfer the warrant to any other person, who
may in turn execute the warrant and use force against persons and
things in doing so. This may involve carrying a firearm.
In public hearings the committee raised this
matter with the Attorney-General's Department. The AGD
representatives responded that the amendments to the ACC Act
contained in Schedule 3 of the Bill were not intended to authorise
any person other than a police officer to use force against a
person or to create any new powers to carry firearms:
our policy intention was that you could have
certain roles in the execution of warrants being exercised by ACC
employees who were not sworn police, but that they would not extend
to the use of force, or, for example, to the carrying of
firearms.(33)
AGD stated that the Bill was being examined to
assess whether amendments to the Bill were required to clarify this
intention.(34)
The Senate Committee recommended that the
definition of executing officer be confined to sworn federal, state
or territory police officers.
Item 26 inserts new Sections 23A to
23N, which adds a number of new provisions to the ACC s
search warrant scheme. New subsections cover:
- availability of assistance and use of force (23A)
- details of a warrant to be given to occupier (23B)
- specific powers available to executing officer (23C)
- use of equipment to examine or process things (23D)
- use of electronic equipment at warrant premises (23E)
- person with knowledge of a computer or computer system to
assist access (23F)
- accessing data held on other premises notification to occupier
of that premises (23G)
- compensation for damage to electronic equipment (23H)
- copies of seized things to be provided (23J)
- occupier entitled to be present during search (23K)
- receipts for things seized under warrant (23L)
- announcement before entry (23M), and
- dealing with seized equipment (23N).
These provisions mirror sections in the Crimes
Act 1914, to align the ACC s search warrant scheme with the Crimes
Act model. The Law Council of Australia argued that when these
provisions were written into the Crimes Act in 2000, the Government
stated that that the entry and search powers available to the AFP
under the Crimes Act should constitute the high water mark
for search powers generally:
The Law Council strongly objects to granting of
powers which are ordinarily reserved for police officers to
civilian members of the ACC. The Law Council believes that if, as a
result of staffing issues at the ACC, there are insufficient police
personnel available to facilitate the proper functioning of the
ACC, this matter should be addressed as a staffing problem and not
by granting police powers to member of staff who are not police
officers.
Further, the Law Council argued:
other agencies should not be granted comparable
powers to those contained in the Crimes Act simply as a
matter of course and alignment. To the extent that the proposed
amendments to the search warrant provisions in the ACC Act
represent an extension of that agency s powers, the extension of
power should be justified.(35)
Subsection 25A(2) of the ACC Act provides that
persons giving evidence (and in special circumstances, persons not
giving evidence), may be represented by a legal practitioner.
Item 31 inserts new section 25B
Refusal to allow particular legal representative. The proposed
section would allow an examiner to exclude a particular legal
practitioner from proceedings where he or she has reason to believe
that allowing the legal practitioner to appear at the examination
may prejudice the effectiveness of the special ACC investigation or
operation. This will allow examiners to exclude a legal
practitioner who may, knowingly or unknowingly, have a conflict of
interest if he or she continues to appear on behalf of a witness.
For example, where the legal practitioner is unknowingly under
investigation themselves. The Bill also gives to examiners a
discretion to allow a break in proceedings for a witness to obtain
replacement legal representation.(36)
Subsection (2) of 25B will
allow an examiner to adjourn an examination to allow the witness to
find an alternative legal representative. However, this power is
left to the examiner s discretion, to avoid the safeguard being
used by witnesses as a delaying tactic .(37)
While noting that it is probable that an
examiner already had the implied power to exclude a legal
practitioner in this way under the existing provisions of the ACC
Act, the Law Council of Australia has nonetheless expressed concern
about proposed Section 25B:
An individual s right to be represented by a legal
practitioner of his or her choice is a key component of access to
justice. This right is particularly important when a person is
compelled to attend proceedings and potentially exposed to
liability. The Law Council s primary concern is that ACC examiners
will fail to consider properly each case on its merits, taking due
care not to unnecessarily infringe upon a witness s rights.
Possibly a more alarming aspect to this proposed
amendment is that an examiner is also granted the discretion to
continue an examination, notwithstanding that the witness s legal
practitioner has been excluded and the witness is subsequently
unrepresented.(38)
The Senate Committee examining the Bill
expressed similar concerns:
The right to legal representation is a fundamental
one, and is especially important where, as is the case here,
refusal by a witness to answer a question results in a penalty. The
discretion to allow an adjournment should be removed. Should the
witness decline to locate a mutually acceptable legal
representative, the examiner should be required to offer to appoint
an acceptable legal representative for the witness. No witness
should be examined without a legal representative unless it is his
or her express and informed desire to proceed without
representation.(39)
Usually, administrative decisions of an
examiner may be reviewed by the Federal Court under the
Administrative Decisions (Judicial Review) Act 1977 (the
ADJR Act). However, decisions under this section will be exempt
from the requirement to provide reasons (by virtue of Schedule 2 of
the ADJR Act) in circumstances where providing reasons may
prejudice either:
- the safety or reputation of a person;
- the fair trial of a person who has been, or may be, charged
with an offence, or;
- the effectiveness of an ACC operation or investigation.
Section 33 of the ACC Act currently contains
an offence of giving information that is false or misleading in a
'material particular' at an examination, which is punishable by
five years imprisonment or a penalty of 200 penalty units (less if
heard by a court of summary jurisdiction).
The Explanatory Memorandum states that it is
difficult to enforce this provision as it is often difficult to
identify whether something is a 'material particular'. During an
investigation, the ACC can demonstrate that information relates to
a material particular by reference to the elements of the
particular offence being investigated. However, when conducting an
operation, the ACC is unlikely to be investigating a specific
offence and, as a result, has difficulty identifying a 'material
particular'.(40)
Item 45 of the Bill modifies
the offence by reversing the burden of proof. Under new
subsection 33 (1A), the defendant will bear the evidential
burden of proof in proceedings for an offence of giving information
that is false or misleading in a material particular at an
examination. The defendant bears the burden of adducing or pointing
to evidence that suggests a reasonable possibility that the
information was not false or misleading in a
material particular, rather than the prosecution having to prove
beyond a reasonable doubt that the information
was false or misleading in a material
particular.
The Law Council of Australia has criticised
the reversal of the evidential burden of proof, stating that the
fact that the matter may be difficult for the prosecution to prove
does not justify the reversal.
A defendant should only be required to bear an
evidential burden where a matter is peculiarly within the knowledge
of the defendant, such that it is significantly more difficult for
the prosecution to disprove than for the defendant to establish the
matter.
Whether a matter is a material particular in the
context of an ACC operation is by no means a matter peculiarly
within the knowledge of the defendant. On the contrary, only the
ACC itself is likely to have sufficient oversight of an operation
and its purpose to offer evidence as to what is material to the
operation.(41)
Section 28(1) of the ACC Act empowers an
examiner to summons witnesses to an examination, and obtain
evidence. Failure to comply with a summons is an offence punishable
by imprisonment up to five years. New subsection
28(1) extends this power to allow an examiner to issue a
notice to a person requiring certain information in the form of a
written statement. A written statement is subject to the same rules
that govern answers and documents that are provided to an examiner
at an examination.(42)
The Explanatory Memorandum acknowledges that
this new power is broader than existing powers under tax and
consumer protection laws, in that information required may relate
to any issue, rather than be limited to information in relation to
offences against the Acts. Despite the possibility of this
amendment placing a heavy burden on witnesses , the Explanatory
Memorandum argues that the burden is offset by benefits such as
possibly not being required to attend an examination, and the
likelihood of shorter examinations.(43)
The Law Council of Australia argues that this
provision essentially asks the witness to conduct the investigatory
legwork for the ACC.
The Law Council has consistently opposed the
extensive and widely used coercive powers of the ACC examiners on
the basis that they represent an unjustified abrogation of the
privilege against self incrimination. The Law Council believes that
the proposed amendments have the potential to operate even more
harshly, by requiring persons summonsed, not only to answer
self-incriminating questions or produce self-incriminating
documents, but to actually proactively make the case against
themselves.
The Explanatory Memorandum s argument that the
requirement to provide a written statement may, in the end,
alleviate the need for an examination, or make an examination
shorter, is dismissed by the Law Council:
If the convenience of witnesses is genuinely part
of the rationale for the amendment, then failure to give evidence
to an ACC examiner by written statement when summonsed to do so,
should not constitute an offence. The person summonsed should have
the option to attend and answer questions and/or produce specified
documents if he or she would prefer to cooperate in this
way.(44)
The Law Council recommended that if the
additional power was to be granted, the Bill should at least
prescribe some limits on the nature or scope of matters that may be
required in a written statement.
Under the current provisions of the ACC Act,
if a witness asserts in advance that the answers or documents that
he or she is asked to provide may tend to incriminate him or her,
the witness can still be compelled to provide the relevant
information but there are limits imposed on its use. It can not,
for example, be used in a criminal proceeding against the person
concerned unless those proceedings arise from the falsity of the
information provided.(45)
Item 39 clarifies that a
witness may make a general statement about self incrimination at
the outset of an examination, without having to restate the claim
in respect of every answer.
The Bill seeks to introduce further
circumstances in which the evidence a witness has been compelled to
provide to the ACC may be used directly against him or her in
criminal proceedings.
Item 40 expands the use of
information subject to the privilege against self-incrimination to
provide that a truthful statement which is subject to a claim of
privilege may be used as evidence of another statement s falsity
(including a written statement), in proceedings for making a false
or misleading statement.
The Law Council of Australia strongly opposes
this amendment, arguing that the proposed amendment would mean, for
example, that a witness could receive a summons from the ACC to
provide evidence by way of sworn written statement, with which he
or she complies under threat of prosecution. The same witness may
then be summonsed to attend an examination before the ACC where he
or she is effectively cross-examined on the contents of the sworn
statement. If there are inconsistencies, the witness s own
evidence, provided under compulsion at the examination, may then be
used to prosecute him or her for providing false or misleading
evidence in the sworn statement.
In this case, there are also additional strong
public policy reasons for ensuring that a witness s evidence may
not be used against him or her in the way proposed. The purpose of
the ACC is to investigate and gather information about serious and
organised crime. The reason the ACC has been invested with such
extraordinary powers is to allow its officers access to the fullest
information possible. The proposed amendments are inconsistent with
this goal.(46)
Schedule 4: Amendments to the
Witness Protection Act 1994
Schedule 4 makes amendments to the Witness
Protection Act 1994.
Items 1 to 10 insert new
definitions into the Witness Protection Act. Many of the other
amendments in Schedule 4 are consequential to these new
definitions.
Amongst other things, the new definitions
differentiate between a NWPP participant s original identity ,
current NWPP identity , and former NWPP identity . This recognises
that from time to time, individuals in the NWPP need to change
assumed identities. The new definitions ensure that prior
identities assumed under the NWPP, and not just a participant s
current identity, are protected under the Witness Protection
Act 1994. Item 6 repeals the old definition
of participant and inserts the following:
Participant means a
person who is included in the NWPP, and, unless the contrary
intention appears, includes a former participant.
The definition has been amended to reflect the
fact that there are times where protection and assistance need to
be provided to former participants of the NWPP, not just current
participants.
Item 16 inserts new
subsection 13(5) to extend the AFP Commissioner s powers
to take action to protect former NWPP participants and their
relatives, friends or associates. The Commissioner may take action
if he/she considers that the actions are necessary and reasonable
for the protection of the former participant or the related person;
and the Commissioner has assessed the suitability of taking the
actions. However, these former participants or related persons do
not become current participants in the NWPP simply because they are
provided with this assistance or protection.(47)
Item 36 repeals the existing
subsection 22(1) and inserts proposed new subsections
22(1) and 22(1A), regarding disclosure of
information.
Proposed section
22(1) makes it an offence for a person to disclose
information about an individual where the individual is a
Commonwealth participant or a Territory participant in the NWPP;
the individual has a current NWPP identity; and the information
disclosed is about the person s original identity or a former NWPP
identity. The penalty is imprisonment for up to 10 years. The
provision reflects the possible serious implications of a
revelation about a participant s original or former NWPP identity.
Any such disclosure could reveal that a person is included in the
NWPP, and could endanger the participant.(48)
Similarly, new
subsection 22(1A) will make it an offence to
disclose that a person is undergoing assessment for inclusion as a
Commonwealth or Territory participant in the NWPP, where that
information may compromise the security of the individual. For
22(1A), the requirement that the disclosure could compromise a
person s security is important. The Explanatory Memorandum
states:
it is essential for a person to be able to
disclose identifying information about the current identity of a
participant in order to introduce them to other people. For this
reason, proposed subsection 22(1A) includes the requirement that
the disclosure of the information must compromise the participant s
security or reveal that the individual is a participant in the
NWPP.(49)
Item 40 inserts new
subsection 22(3) which ensures that section 22 applies to
the disclosure of information in proceedings of a court, tribunal,
Royal Commission or other commission of inquiry. The one exception,
contained in subsection 26(3) of the Act, is that if it is
essential to the determination of legal proceedings that a judge or
magistrate presiding over the proceedings be advised of a
participant s location and circumstances, the AFP Commissioner or
an AFP employee may disclose the relevant information to the judge
or magistrate in chambers, but not to any other person. New
subsection 22(4) will ensure this provision continues to
apply.
Item 52 also provides a
process for protecting a participant s original identity, current
NWPP identity or former NWPP identity, where they may be disclosed
before a court, tribunal, Royal Commission or other commission of
inquiry. In cases where the identity is to be protected, the court
must:
- hold the proceedings relating to the identity in private
- make orders about the suppression of publication of evidence,
as necessary to protect the identity, and
- make any other orders that are appropriate to ensure that
information that compromises an identity is not made
public.(50)
The Bill extends the Act to cover State
Participants, defined as participants who have been included in the
NWPP because they were involved in State offences with a federal
aspect. Item 11 inserts new section
3B to specify which offences against a law of a State are
taken to be State offences with a federal aspect, for the purposes
of the Act. These include:
- in a case where the offence is being investigated by the AFP if
it would be taken to be a State offence that has a federal aspect
under section 4AA of the Australian Federal Police Act 1979;
and
- in a case where the offence is being investigated by the
Australian Crime Commission if it would be taken to be a State
offence that has federal aspect under section 4A of the Australian
Crime Commission Act 2002; and
- in any other case if it would be taken to be a State offence
that has a federal aspect if either of the sections referred to in
(a) and (b) were to apply.
Item 41 inserts new
section 22A, which outlines offences relating to State
participants, and disclosures which compromise security.
Item 41 also inserts
new section 22B, in which a person commits an
offence if:
- the person discloses information; and
- the information may compromise the security of an individual;
and
- the individual
- is a Commonwealth or a Territory participant, or is undergoing
assessment for inclusion in the NWPP as a Commonwealth participant
or a Territory participant; or
- is a State participant or is undergoing assessment for
inclusion in the NWPP as a State participant.
The penalty is imprisonment for 10 years.
Item 43 contains provisions
to protect the identities of AFP employees who administer the NWPP
or have taken on an assumed identity for the purposes of the NWPP
from being disclosed in proceedings before a court, tribunal, Royal
Commission or any other commission of inquiry. Similarly,
item 45 specifies that the Commonwealth Ombudsman
and his staff are not required to divulge information that would
reveal such information about the identity of an AFP employee.
There has been little public comment about the
proposed amendments to the Witness Protection Act. In its
submission to the Senate Legal and Constitutional Affairs Committee
s inquiry into the Bill, the Police Association of Victoria
positively noted the proposed amendments. The Law Council of
Australia noted that it did not have time to comment on Schedule 4
of the Bill in the limited time available to make submissions to
the Senate Committee.
Schedule 5: Other
Amendments
Part 1 contains consequential
amendments to the Crimes Act and Customs Act relating to controlled
operations.
Part 2 contains consequential
amendments to the ACC Act.
Part 3 clarifies that where a
constable has seized electronic equipment under a section 3E search
warrant (and the warrant has since expired) or under the arrest
provisions in the Crimes Act, the constable will be able to operate
the electronic equipment to access data, including data not held on
the equipment at the time of seizure. For example, currently when a
constable seizes a mobile phone, and takes it off-site, the officer
is not able to access voicemail without executing a stored
communications warrant on the carrier under the
Telecommunications (Interception and Access) Act 1979. Now
that access would be allowed. It would also relate to email on
computers. Similar amendments are made to the Customs Act, POC Act
and the MA Act (item 19, proposed section
3ZVA)
Schedule 6: Transitional
Provisions
Part 1 Transitional
Provisions Relating To Controlled Operations , item
1 provides that controlled operations authorised before
commencement continue under the previous legislation.
Item 2 ensures that Division
3 of Part IAB of the Crimes Act continues in effect.
Part 3 is a regulation making
provision that provides that the Governor-General may make
regulations dealing with matters of the transitional nature
relating to amendments and repeals made by the Bill.
In relation to delayed notification search
warrants, US courts have stated that [t]he mere thought of
strangers walking through and visually examining the center of our
privacy interests, our home, arouses our passion for freedom as
does nothing else. (51)
Crime, even in the privacy of one s own quarters,
is, of course, of grave concern to society, and the law allows such
crime to be reached on proper showing. The right of officers to
thrust themselves into a home is also a grave concern, not only to
the individual but to a society which chooses to dwell in
reasonable security and freedom from surveillance. When the right
of privacy must reasonably yield to the right of search is, as a
rule, to be decided by a judicial officer, not by a policeman or
Government enforcement agent.(52)
The Scrutiny of Bills Committee has opined
that:
there can be a temptation for the Government and
its agencies, in proposing new laws, to reach for an ambit position
which may not be justified, simply by appealing to the existence of
a similar, but perhaps rarely used power, elsewhere. The Committee
considers that all new legislative proposals should be judged on
their own merits, based on a careful assessment of the needs of the
agency in the particular circumstances, balanced against the impact
of the proposed powers on individual rights. This analysis and
justification for the proposed powers should be set out in
appropriate detail in the explanatory memorandum to the Bill, to
assist the Parliament in its consideration of the legislative
proposal. The Committee will continue to play a role in providing
the Parliament with the information it needs to make properly
informed decisions on the content of legislative proposals, by
seeking explanations and justifications from proposing Ministers
where these are not provided with the Bill.(53)
Parliament may wish to seriously consider the justification for the
new warrants, and the Senate Committee recommendation that the
Federal Government limit the offences in relation to which delayed
notification search warrants may be issued to offences involving
terrorism or organised crime; or death or serious injury with a
maximum penalty of life imprisonment.
In relation to the Bill in its entirety,
Parliament may wish to consider strenuous criticism by the Law
Council raised in its submission to the Senate inquiry highlighted
within the Main Provisions section above, and the several
amendments suggested by the Senate Committee set out in full in the
Background section above.
- Senate, Debates, 29 November 2006, p. 1.
- (1995) 184 CLR 19 at 42 3.
- ibid at 43 4.
- See further Simon Bronitt, The Law in Undercover
Policing: A Comparative Study of Entrapment and Covert Interviewing
in Australia, Canada and Europe (2004) Common Law World
Review 33(1) (Bristol, Vathek Publishing): 35 80.
- Federal Agent Lawler, Evidence to the Standing Committee on
Legal and Constitutional Affairs, Inquiry into the Crimes
Legislation Amendment (National Investigative Powers and Witness
Protection) Bill 2006, 22 January 2007, available at: http://www.aph.gov.au/hansard/senate/commttee/S9930.pdf,
accessed 26 February 2007, p. 16.
- Alerts Digest No. 15, 2006, p. 16.
- Charles Doyle, The USA PATRIOT Act: A Legal Analysis ,
American Law
Division for Congress, 15 April 2002, p. 12.
- The Hon. Philip Ruddock MP (Attorney-General),
Debates, House of Representatives, 26 May 2005, p. 5.
- ibid.
- Explanatory Memorandum, p. 2.
- Australian Federal Police, Witness Protection Annual Report
2005-06 (Witness Protection Act 1994), Commonwealth
of Australia, September 2006, p. 3.
- Federal Agent John Lawler, op. cit.
- QCCL, submissions 8, 8a and 8b.
- Commonwealth Ombudsman, submission 5, p. 3.
- ibid, p. 6.
- Explanatory memorandum, p. 7.
- ibid, p. 8. The capacity to prescribe additional items by
regulation has been included to cater for emerging categories of
serious crime, reflecting both the changing criminal threat and new
enforcement priorities that may emerge. These regulations are not
limited by the requirement that the offence must carry a maximum
penalty of three years or more imprisonment. This will enable
the Australian Government and law enforcement agencies the
flexibility to deal with emerging categories of serious
crime. This is consistent with the definition of relevant
offence under the model laws
- ibid, p. 12.
- ibid, p. 53.
- Senate Legal and Constitutional Affairs Committee: Crimes
Legislation Amendment (National Investigative Powers and Witness
Protection) Bill 2006, 7 February 2007, available at:
http://www.aph.gov.au/Senate/committee/legcon_ctte/witness_protection/report/c03.pdf,
accessed 21 February 2007.
- Law Council of Australia, Submission to the Senate
Legal and Constitutional Affairs Committee review of the Crimes
Legislation Amendment (National Investigative Powers and Witness
Protection) Bill 2006, available at:
http://www.aph.gov.au/Senate/committee/legcon_ctte/witness_protection/report/c03.pdf,
accessed 21 February 2007.
- Senate Committee report, op. cit.
- Explanatory Memorandum, p. 54.
- Queensland Police Service, submission to the Senate
inquiry.
- Law Council of Australia, op. cit.
- Senate Committee report, op. cit.
- Law Council of Australia, op. cit.
- Explanatory Memorandum, p. 70.
- ibid, p. 74
- ibid, p. 84.
- ibid.
- Police Federation of Australia, Submission to the
Senate Legal and Constitutional Affairs Committee review of the
Crimes Legislation Amendment (National Investigative Powers and
Witness Protection) Bill 2006, 19 January 2007, available at:
http://www.aph.gov.au/Senate/committee/legcon_ctte/witness_protection/submissions/sub07.pdf,
accessed 21 February 2007.
- Dr Karl Alderson, Attorney-General s Department, Evidence to
the Senate Legal and Constitutional Affairs Committee, 22 January
2007, p. 21.
- Senate Committee report, op. cit.
- Law Council of Australia, op. cit.
- Explanatory Memorandum, p. 96.
- ibid.
- Law Council of Australia, op. cit.
- Senate Committee report, op. cit.
- Explanatory Memorandum, p. 102.
- Law Council of Australia, op. cit.
- Explanatory Memorandum p. 97.
- ibid, p. 98.
- Law Council of Australia, op. cit.
- ibid.
- ibid.
- Explanatory Memorandum, p. 106.
- ibid, p. 110.
- ibid. The section in fact says may not must .
- ibid, p. 115.
- U.S. v. Freitas, 856 F.2d 1425, 1430 (9th Cir.
1988)
- Johnson, 333 U.S. at 14 (1948).
- Chapter 5 - Conclusions and recommendations.
Sue Harris Rimmer and Bronwen Jaggers
1 March 2007
Bills Digest Service
Parliamentary Library
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ISSN 1328-8091
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