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NATIONAL CRIME AUTHORITY AMENDMENT REGULATIONS 2001 (NO. 1) 2001 NO. 294
EXPLANATORY STATEMENTStatutory Rules 2001 No. 294
Issued by the Authority of the Minister for Justice and Customs
Subject: National Crime Authority Act 1984
National Crime Authority Amendment Regulations 2001 (No. 1)
Section 62 of the National Crime Authority Act 1984 (the Act) provides that the GovernorGeneral may make Regulations prescribing all matters required or permitted to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to the Act.
The National Crime Authority Regulations (the Principal Regulations) made under the Act, set out various matters necessary to give effect to the Act.
The purpose of these Regulations is to make consequential amendments to the Principal Regulations following amendments to the Act by the National Crime Authority Amendment Act 2000 (the 2000 Act) and the National Crime Authority Legislation Amendment Act 2001 (the 2001 Act).
The 2000 Act amended the Act to clarify the powers, functions and duties of the National Crime Authority (the Authority) following the High Court's decision in R v Hughes (2000) 171 ALR 155. As far as is relevant, those amendments:
(i) introduced the concept of "federally relevant criminal activity" to make it clear that the Authority can only use its powers under the Act when it is investigating relevant criminal activity that has a federal aspect; and
(ii) provided that when a function or power is conferred on the Authority by a law of a State in circumstances where the function or power is coupled with a duty, then the Commonwealth's consent to that conferral is limited to matters that have a federal aspect.
As a results of the amendments to the Act made by the 2000 Act, these Regulations make consequential amendments to the Principal Regulations, the details of which are set out in the Attachment.
The 2001 Act amended the Act to, among other things:
(i) provide that "an issuing officer" (defined in subsection 4(1) of the NCA Act) may issue search warrants under section 22 of the Act. This expanded the class of persons who may issue such warrant from Judges of the Federal Court and Judges of a court of a State or Territory to include Federal Magistrates;
(ii) specify that a person executing a search warrant issued under section 22 or an arrest warrant issued under section 31 of the Act may only use such reasonable force as is necessary for the execution. This addressed a concern expressed by the Senate Standing Committee on Regulations and Ordinances that this limitation was not previously included in the Act;
(iii) replace references to "Chairperson" and "Chairman" of the Authority with references to "Chair" of the Authority; and
(iv) introduce the concept of hearing officers who are empowered to conduct hearings and receive evidence on behalf of the Authority in the same manner that the Authority is able to conduct hearings and receive evidence. This is designed to increase the investigative capacity of the Authority without increasing the size of the Authority.
As a results of the amendments to the Act made by the 2001 Act, these Regulations make consequential amendments to the Principal Regulations, the details of which are set out in the Attachment.
The Regulations commenced on gazettal.
ATTACHMENT
DETAILS OF THE AMENDMENTS TO THE NATIONAL CRIME AUTHORITY REGULATIONS
National Crime Authority Amendment Act 2000
As a result of the amendments to the National Crime Authority Act (the Act) made by the National Crime Authority Amendment Act 2000, Schedule 1, Form 1 of the National Crime Authority Regulations (the Principal Regulations) (which sets out the form for search warrants issued under section 22 of the Act) is amended to:
• replace references to "relevant criminal activity" with references to "federally relevant criminal activity" (Items 9 and 14 of the Regulations); and
• provide that the description of matters being investigated by the Authority (as set out in Schedule 2 of Schedule 1, Form 1 of the Principal Regulations) includes a reference to matters being referred under a law of a State and consented to by the Commonwealth (Item 15 of the Regulations).
National Crime Authority Legislation Amendment Act 2001
As a result of the amendments to the Act made by the National Crime Authority Legislation Amendment Act 2000, the Principal Regulations are amended as follows:
• regulation 3 of the Principal Regulations provided that a search warrant issued by a Judge under section 22 of the Act shall be in accordance with Form 1 in Schedule 1 of the Principal Regulations. As a result of the introduction of "issuing officer" these Regulations amend regulation 3 to replace the reference to "a Judge" with a reference to "an issuing officer" (Item 2 of the Regulations);
• regulations 9, 10 and 11 of the Principal Regulations prescribe certain salaries and allowances that are payable to the Chairman and members of the Authority. As a result of the replacement of references to "Chairperson" and "Chairman" of the Authority with references to "Chair", these Regulations make the corresponding changes to regulations 9, 10 and 11 (Items 3 to 8 of the Regulations);
• Schedule 1, Form 1 of the Principal Regulations sets out the form for a search warrant issued under section 22 of the Act. As a result of the introduction of "issuing officer" and the express reference to only using reasonable force, these Regulations amend Form 1 to:
- replace references to "a Judge" with references to "an issuing officer" or "a magistrate" where relevant (Items 10, 12 and 13 of the Regulations); and
- insert a reference to the person executing the warrant using no more force than is reasonably necessary for the execution of the warrant (Item 11 of the Regulations);
• Schedule 1, Form 4 of the Principal Regulations sets out the form for an arrest warrant issued under section 31 of the Act. One of the grounds for the issue of the warrant is that the Judge is satisfied that there are reasonable grounds to believe that a person who has been ordered to surrender his or her passport is nevertheless likely to leave Australia for the purpose of avoiding giving evidence before the Authority. As a result of the introduction of the concept of hearing officers, these Regulations amend Schedule 1, Form 4 to provide that the grounds for the issue of the warrant include the belief that a person is likely to leave Australia for the purpose of avoiding giving evidence before a hearing officer (Item 16 of the Regulations); and
• as a result of the express reference to only using reasonable force, these Regulations amend Schedule 1, Form 4 to insert a reference to a person using no more force than is reasonably necessary for the execution of the warrant (Item 17 of the Regulations).
These Regulations also change the citation of the Principal Regulations so that they are the National Crime Authority Regulations 1984 (Item 1 of the Regulations).