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2004-2005
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
LAW AND JUSTICE LEGISLATION AMENDMENT (VIDEO LINK
EVIDENCE AND OTHER MEASURES) BILL 2005
EXPLANATORY MEMORANDUM
(Circulated by authority of the Attorney-General,
the Honourable Philip Ruddock MP)
LAW AND JUSTICE LEGISLATION AMENDMENT (VIDEO LINK
EVIDENCE AND OTHER MEASURES) BILL 2005
General Outline
The primary purpose of this Bill is to create new video link evidence provisions that
apply to proceedings for terrorism and other related offences and proceeds of crime
proceedings relating to those offences. These new provisions will facilitate the
prosecution of terrorism offences by ensuring that, in the absence of compelling
reasons to the contrary, important evidence from overseas witnesses that are unable to
travel to Australia can be put before the court using video link technology.
The Bill also amends the Foreign Evidence Act 1994 to facilitate the use of foreign
material as evidence in proceedings for terrorism and related offences and proceeds of
crime proceedings relating to those offences. These changes complement the new
video link evidence provisions. This will assist in circumstances where it is not
possible for evidence to be given by video link.
Other features of the Bill are:
amendments to section 4AAA of the Crimes Act 1914 to make it clear that Judges
of the Federal Court and Federal Magistrates, who exercise a conferred non-
judicial function or power under a Commonwealth law relating to criminal
matters, exercise the function or power in their personal capacity,
an amendment to section 23B(1) of the Crimes Act 1914 to expand the definition
of `tape recording,'
amendments to Part 1D of the Crimes Act 1914 to facilitate inter-jurisdictional
matching of DNA profiles over the National Criminal Investigation DNA
Database,
amendments to the Financial Transaction Reports Act 1988 to rectify an oversight
in the Proceeds of Crime (Consequential Amendments and Transitional
Provisions) Act 2002,
amendments to the Proceeds of Crime Act 2002 to enable the Director of Public
Prosecutions to seek payments out of the Confiscated Assets Account to
reimburse third parties who conduct future examinations,
amendments to the Proceeds of Crime Act 2002 to rectify the unintended
consequence of a change to the Proceeds of Crime Regulations that inadvertently
changed the status of some examiners and meant that some examinations may
have been conducted without proper authority, and
an amendment to section 22 of the Surveillance Devices Act 2004 so that a
warrant can be obtained to retrieve a tracking device installed under an
authorisation.
Financial Impact
There is no financial impact flowing directly from the provisions of this Bill.
NOTES ON CLAUSES
Clause 1 Short title
This is a formal clause which provides for the citation of the Bill. This clause
provides that the Bill when passed may be cited as the Law and Justice Legislation
Amendment (Video Link Evidence and Other Measures) Act 2005.
Clause 2 Commencement
This clause provides that the provisions in the Bill will commence the day after the
Bill receives Royal Assent.
Clause 3 Schedule(s)
This clause makes it clear that the Schedule to the Bill will amend the Acts set out in
the Schedule in accordance with the provisions set out in the Schedule.
SCHEDULE 1
Crimes Act 1914
Amendments to section 4AAA of the Crimes Act 1914 - Commonwealth laws
conferring non-judicial functions and powers on officers
Item 1 Application
This item amends subsection 4AAA(1) of the Crimes Act 1914 to extend the
operation of section 4AAA to Judges of the Federal Court of Australia and Federal
Magistrates. Judges of the Federal Court and Federal Magistrates are increasingly
being conferred non-judicial powers in criminal matters under Commonwealth law.
For example, the power of Judges of the Federal Court to issue an arrest warrant
under section 31 of the Australian Crime Commission Act 2002 is a power that is
neither judicial nor incidental to a judicial function or power. The proposed
amendments to section 4AAA set out the rules that apply when a Judge of the Federal
Court or Federal Magistrate exercises a non-judicial function or power under a
Commonwealth law relating to criminal matters.
Item 2 Functions and powers conferred personally
This item makes it clear that non-judicial powers in a Commonwealth law relating to
criminal matters, such as section 31 of the Australian Crime Commission Act 2002, is
conferred on Judges of the Federal Court of Australia and Federal Magistrates in a
personal and voluntary capacity.
It is necessary to make this clear for constitutional reasons. Conferring non-judicial
functions or powers on a Judge or Magistrate in their capacity as the court or a
member of the court to which they belong would be contrary to the independence of
the judiciary under the separation of powers doctrine enshrined in Chapter III of the
Commonwealth Constitution. A Judge of the Federal Court or Federal Magistrate
may agree to exercise a non-judicial function if the power is vested in the Judge's or
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Magistrate's personal capacity, separate from the court they constitute (see, for
example, Grollo v Palmer (1995) 184 CLR 548).
Item 3 Protection and immunity provided
Proposed subsection 4AAA(3A) ensures that the same protections and immunities of
a Judge of the High Court apply when a Judge of the Federal Court of Australia or a
Federal Magistrate exercise a non-judicial power or function under a Commonwealth
law relating to criminal matters.
Item 4 Contrary Intention
Proposed subsection 4AAA(6A) makes it clear that the rules applying in section
4AAA do not override any specific provisions in Commonwealth laws that also deal
with the exercise of non-judicial powers under laws of the Commonwealth relating to
criminal matters. Where a provision is silent, that does not show a contrary intention.
For example, a contrary intention includes where a Commonwealth law requires the
Minister to appoint a judge or magistrate to exercise a non-judicial power or function
after they have given their consent to exercise the power or function. Another
example is where the level of protection or immunity provided is different.
Amendments to the Crimes Act 1914 - Video link evidence
Most State and Territory legislation allows for evidence to be given by video link
from witnesses overseas. Generally, the decision to grant an application to take
evidence by video link is discretionary, based upon an assessment of whether it would
be unfair to the defendant and whether it would be convenient or in the interests of
justice.
The proposed video link evidence provisions will limit the discretion of the court to
refuse applications for a witness to give evidence by video link in terrorism
proceedings, whilst ensuring that the right of the defendant to receive a fair hearing
and the interests of justice remain important safeguards.
The application of the proposed video link evidence provisions in this Bill will be
limited to terrorist matters. Terrorism offences, by their very nature, are likely to
involve witnesses that are overseas and may be unable to travel to Australia to give
evidence, for example, because that witness has been incarcerated overseas.
Terrorism offences also involve matters of national security that warrant the
application of special rules. Offence-specific video link rules are not novel. Part IIIA
of the Crimes Act 1914 already contains specific video link evidence rules for child
sex tourism prosecutions. Some of the video link provisions in this Bill are based on
these existing provisions.
The proposed video link evidence provisions will be applicable to witnesses within
Australia as well as overseas. Applying the video link evidence rules to witnesses
within Australia will cater for circumstances such as where bringing a witness into the
court room to give evidence would pose an unacceptable security risk to the witness
or another person.
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State and Territory video link evidence rules will still be preserved so that parties will
have discretion as to whether to make an application under State or Territory
legislation or under this new federal legislation.
Item 5 Video link evidence in proceedings for terrorism and related offences
etc.
This item inserts new Part 1AE into the Crimes Act 1914.
Proposed section 15YU: Proceedings to which the Part applies
The purpose of proposed section 15YU is to set out when the video link evidence
provisions in new Part 1AE of the Crimes Act 1914 will apply. The provisions will
apply to proceedings for terrorism and other related offences, which are offences
against:
section 34G(5) of the Australian Security Intelligence Organisation Act 1979
(offence to give false and misleading answers when questioned by ASIO about
terrorist matters)
section 49 of the Aviation Transport Security Act 2004 (weapons on board an
aircraft)
section 21 of the Charter of United Nations Act 1945 (giving an asset to a
proscribed person or entity)
Division 72 of the Criminal Code (international terrorist activities using
explosive or lethal devices)
Part 5.3 of the Criminal Code (terrorism offences)
Part 5.4 of the Criminal Code (harm against Australians)
sections 24AA and 24AB of the Crimes Act 1914 (treachery and sabotage
offences)
Division 1 of Part 2 of the Crimes (Aviation) Act 1991 (Hijacking and other
acts of violence on board aircraft)
section 8 of the Crimes (Biological Weapons) Act 1976 (Restriction on
development etc. of certain biological agents and toxins and biological
weapons)
the Crimes (Foreign Incursions and Recruitment) Act 1978
section 8 of the Crimes (Hostages) Act 1989
the Crimes (Internationally Protected Persons) Act 1976
The listed offences are all either terrorism offences, offences that may be committed
in the context of a terrorism offence, or may be sufficiently related to terrorism to
warrant the application of the new provisions. For example, section 34G(5) of the
Australian Security Intelligence Organisation Act 1979 provides that if a person is
before a prescribed authority for questioning under a warrant in relation to a terrorism
offence, it is an offence for the person to make a statement that is to the person's
knowledge, false or misleading in a material particular. This offence carries a
maximum penalty of 5 years imprisonment. Whilst an offence against this section is
not directly related to a terrorism offence as such, evidence from witnesses who are
overseas may be required to prove that the person made such false or misleading
statements in the context of investigating the terrorism offence. It is important that
special questioning powers for investigating terrorist offences can be enforced.
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Section 11.6 of the Criminal Code Act 1995 ensures that Part 1AE applies to ancillary
offences such as attempting to commit, inciting the commission of, or conspiring to
commit one of the offences listed in proposed section 15YU. The new video link
evidence provisions will also apply to breaches of section 6 of the Crimes Act 1914
(accessory after the fact) that relate to any of the listed offences.
Proposed paragraph 15YU(2)(b) provides that new Part IAE will also apply to
proceedings under the Proceeds of Crime Act 2002 (POCA) relating to the offences
listed in subsection 15YU(1). POCA provides a mechanism for the restraint and
confiscation of proceeds and instruments of crime. The Act includes both a
conviction based confiscation regime, where confiscation action follows conviction,
and a civil confiscation regime, where property can be confiscated without first
requiring a conviction or a criminal charge. The civil based scheme allows for the
confiscation of unlawfully acquired property as long as the court is satisfied (on the
civil standard of balance of probabilities) that a person has committed a 'serious
offence' ('serious offence' is defined in POCA to include the terrorism offences in Part
5.3 Criminal Code) or that property is the proceeds of an indictable offence, or that
the property is an instrument of a terrorism offence. Paragraph 15YU(2)(b) will
enable Part 1AE to apply to civil based POCA proceedings so long as the POCA
proceedings relate to the offences listed in subsection 15YU(1). For example, the
Commonwealth Director of Public Prosecutions may seek to take POCA proceedings
to restrain or confiscate property (for example, money in a bank account) which has
been used or was intended to be used as an instrument of a terrorism offence.
Paragraph 15YU(2)(b) also provides that the video link evidence rules in proposed
Part 1AE of the Crimes Act 1914 would apply to the POCA proceedings to restrain
and confiscate the money in the bank account, whether or not criminal proceedings
have been taken in relation to the terrorism offence.
Proposed subsection 15YU(3) ensures that the new rules in Part 1AE will apply
prospectively to proceedings initiated before the commencement of Part 1AE.
Proposed section 15YV: Evidence by video link
Proposed section 15YV sets out the circumstances in which the court must direct or
allow a witness to give evidence by video link.
Firstly, either the prosecution or defendant must have made an application under
section 15YV for a direction or order that a witness give evidence by video link. It is
important to note that where an applicable State or Territory law also allows evidence
to be given by video link, it would be open to the prosecution or defendant to instead
make a video link application under that State or Territory law, in which case, the
rules in proposed Part 1AE would not apply.
Secondly, the prosecutor and defendant must have given the court reasonable notice
of their intention to make the application. The court will have sufficient time to make
the technical arrangements necessary for the video link, and the other party will have
an opportunity to consider the proposal before the application is made.
Thirdly, the witness must be available to give evidence by video link. This will
prevent undue delays by overcoming the potential misuse of the provision by a party
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seeking a direction or order in relation to a witness who cannot realistically be made
available to give evidence by video link.
Fourthly, the facilities required by proposed section 15YY must be available or
reasonably capable of being made available.
Fifthly, the witness cannot be a defendant in the proceeding. This ensures that a
defendant, facing terrorist charges, must give any evidence to the court in person.
If all of these circumstances are met, proposed subsection 15YV(1) provides that,
where the prosecutor has applied for the direction or order, the court must direct or
allow the witness to give evidence by video link unless the court is satisfied that
giving the direction or making the order would have a substantial adverse effect on
the right of the defendant in the proceeding to receive a fair hearing. This ensures
that, in a terrorism prosecution, where evidence from a witness may be critical to the
prosecution's capacity to prove the guilt of the defendant beyond reasonable doubt,
the court will only be able to disallow video link evidence where there is a compelling
reason to do so. Under State and Territory video link provisions the onus is generally
on the party seeking to adduce evidence by video link to convince the court that it
should allow the evidence. These new rules essentially put the onus on the other party
to provide a compelling reason why the evidence should not be allowed.
Proposed subsection 15YV(2) provides that where the defendant applies for the
direction or order, the court must direct or allow the witness to give evidence by video
link unless the court is satisfied that it would be inconsistent with the interests of
justice for the evidence to be given by video link. This `interests of justice' test is
broad enough to allow the court to consider the interests of both parties.
Proposed section 15YW: Observers
The purpose of proposed section 15YW is to safeguard the integrity of the video link
evidence by giving the court the capacity to obtain an independent report of the
physical circumstances under which the video link evidence is given from an
independent observer who is physically present at the place where the witness is
giving the evidence.
A court may consider this to be an important safeguard in circumstances where the
court wants assurance that there are no physical circumstances, beyond the view of
the camera, suggestive of impropriety (such as duress being placed on the witness).
Where a court makes the hearing of video link evidence conditional on an observer
being present, the court must specify who the observer will be. The observer must be
a person who is independent of the prosecutor and defendant in the proceeding, is in a
position to give evidence to the court about what they observed in relation to the
giving of evidence by the witness, and is reasonably available and appropriate to
perform the role of an observer in the proceedings. The specified person may be an
Australian diplomatic officer or consular officer.
The court may change the person specified to be the observer in the direction or order.
This is to accommodate the situation where the specified person may not be able to
6
fulfil their role as an observer because, for example, they become ill and cannot attend
the place where the witness is giving evidence.
The court may direct or allow that the observer give the court a report about what they
observed in relation to the giving of evidence by the witness. The court will be able
to determine in what form the report shall be given (such as orally or in writing) and
at what time. The provision is designed to leave the court with the flexibility to
determine how and when the observer will report to the court. For example, in a
lengthy trial where a witness may be giving evidence for an extended period of time,
the court may require the observer to report to the court on a periodic basis about their
observations.
The court will be able to use the report of the observer as it considers appropriate for
the purpose of deciding whether the video link evidence given by the witness should
be admitted as evidence in the proceeding.
Proposed section 15YX: Adjournments
This proposed section provides that where the court gives a direction or makes an
order or refuses to give a direction or make an order under section 15YV, the
prosecutor or defendant may apply to the court to adjourn the proceedings, to decide
whether to appeal against the direction or order, and if necessary, to appeal the
direction or order. The court must grant the adjournment.
The prosecution can also apply to the court for an adjournment to allow time for the
prosecution to decide whether to withdraw the proceeding, and if the prosecution
decides to do so, make the withdrawal. For example, if the prosecution makes an
application to have a witness give evidence by video link and the judge refuses to give
a direction or order under section 15YV because the judge is of the view that it would
have a substantial adverse effect on the defendant's right to a fair hearing, the
adjournment will allow time for the prosecution to decide whether they have
sufficient evidence to proceed with the prosecution without the video link evidence.
Proposed section 15YY: Technical requirements for video link
This proposed section ensures that video link evidence can only be given if the place
where the court is sitting and the place where the evidence is to be given are each
equipped with video facilities to enable appropriate persons in both places to see and
hear each other via the video link.
Proposed section 15YZ: Direction to jury
This proposed section provides that if a proceeding involves a jury, a witness gives
evidence by video link and that evidence is admissible, the judge must give the jury a
direction to ensure that the jury gives the same weight to the evidence as if the witness
had given the evidence in the courtroom. This is to overcome any inclinations
members of a jury may otherwise have to accord less weight to evidence given by
video link rather than in person.
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If a direction or order is made under section 15YV, the normal rules of evidence (for
example, the rule against hearsay evidence) still apply, so the judge will only need to
give the direction to the jury under section 15YZ if the evidence of the witness is
admissible.
Proposed section 15YZA: Application of laws about witnesses
Proposed subsection 15YZA(1) ensures that a witness who gives evidence by video
link will, in giving that evidence, be governed by the same laws as they would be if
they were giving that evidence in court.
For example, if the witness is giving video link evidence from overseas, proposed
subsection 15YZA(2) makes it clear that the effect of subsection 15YZA(1) is to
apply Australian law to the giving of evidence by video link including laws relating to
the rules of evidence, procedure, contempt of court and perjury.
Proposed section 15YZB: Administration of oaths and affirmations
This proposed section provides for the oath or affirmation to be administered either by
the court over the video link or by authorised officials at the place where the witness
is to give evidence on behalf of the court.
Proposed section 15YZC: Expenses
This proposed section authorises the court to make orders for the payment of expenses
incurred in connection with the giving of evidence by video link.
Proposed section 15YZD: Appeals
Proposed section 15YZD allows the prosecutor or defendant to appeal the decision of
the court under section 15YV to give a direction or make an order or refuse to give a
direction or make an order that a witness give evidence by video link.
A court with jurisdiction to hear and determine appeals from the trial also has the
jurisdiction to hear and determine any appeal under this section.
Proposed section 15YZE: Other laws about evidence not affected
This proposed section expressly preserves the operation of other laws relating to the
taking of evidence from witnesses. For example, State and Territory laws and other
Federal laws relating to the taking of evidence from overseas witnesses would be
preserved.
Proposed section 15YZF: Saving of other laws
The purpose of this provision is to make clear that the new video link evidence rules
do not cover the field and prevent State and Territory laws from operating
concurrently with them.
8
Section 68 of the Judiciary Act 1903 applies the laws of evidence of each State and
Territory to Commonwealth prosecutions conducted in the respective State or
Territory. State and Territory laws governing the conditions and circumstances in
which a court will order the adducing of evidence by video link therefore apply to
Commonwealth prosecutions. The operation of these laws will be preserved by
proposed section 15YZF. In practice, parties will have discretion to make an
application for video link evidence under State or Territory laws or Federal laws.
Item 6 Definition of tape recording
This item repeals the definition of tape recording in subsection 23B(1) of the Crimes
Act 1914 and replaces it with a new definition. The current definition of tape
recording in subsection 23B(1) is limited to audio recording and video recording. The
new definition will define tape recording to mean audio recording, video recording or
recording by other electronic means. This is the same definition of tape recording that
is currently used in section 23WA of the Crimes Act 1914. The wider definition will
enable new technologies, such as digital audio recording technology, to be used to
record interviews.
Item 7
This item provides that the new definition of tape recording in section 23B(1) applies
to a recording made after the commencement of this item.
Amendments to Part 1D of the Crimes Act 1914 - forensic procedures
Part 1D of the Crimes Act 1914 regulates forensic procedures, including the obtaining,
use and destruction of DNA samples. A DNA profile is generated for each DNA
sample taken, and these profiles can be stored on a DNA database system and
compared, or `matched', with other profiles on the database in accordance with
matching rules. The matching rules for DNA profiles are set out in the matching table
in section 23YDAF. The matching table regulates which types of DNA profiles (eg.
profiles from convicted serious offenders, suspects, missing persons or their relatives,
crimes scenes, or volunteers) can be matched against other types of DNA profiles.
For example, the profiles of convicted serious offenders can be matched to a greater
extent than the profiles of suspects because of the greater protections afforded
suspects in comparison to convicted serious offenders. Also the matching of the
profiles of volunteers is even more circumscribed, and volunteers are given the option
to stipulate a limited purpose for which their DNA profile may be used.
The matching table applies to the matching of profiles collected by Federal law
enforcement agencies in accordance with Part 1D of the Crimes Act 1914. The rules
for matching between Commonwealth profiles and profiles collected by other
Australian jurisdictions are set out in section 23YUD and ministerial arrangements
made under that section. Section 23YUD only permits Commonwealth profiles to be
matched with other Australian jurisdictions that have forensic procedure laws that
substantially correspond with Part 1D of the Crimes Act 1914.
The purpose of the proposed amendments to Part 1D is to streamline the rules
governing the matching of DNA profiles by:
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ensuring that where a volunteer has stipulated a limited purpose for the use of
their DNA profile, their profile can be matched with other profiles on the
DNA database so long as the match is conducted for that limited purpose and
only used for that limited purpose, and
remove the requirement that inter-jurisdictional matching be confined to a
specific investigation.
Items 8 to 16 Amendments to the matching table
Items 8 to 16 propose to amend the Commonwealth matching table in section
23YDAF to allow profiles that have been collected from volunteers for a limited
purpose (`volunteer (limited purposes) profiles') to be matched against any other
profile on the database so long as the matching is within the limited purpose. For
example, if the volunteer had only consented to the collection and use of their DNA
profile for the purpose of a particular investigation, that profile would be allowed to
be matched with any other profile in the database so long as that match was being
conducted for the purpose of that investigation.
Currently, in some circumstances, Volunteers (limited purposes) profiles cannot be
matched against crime scene profiles. Item 8 amends the matching table to allow
Volunteers (limited purposes) profiles to be matched against crime scene profiles but
`only if within purpose' (i.e. only if the match is being conducted for the purpose
stipulated by the volunteer).
Currently, Volunteers (limited purposes) profiles cannot be matched against suspect
profiles. Items 9 and 10 amend the matching table to allow Volunteers (limited
purposes) profiles to be matched against suspect profiles but `only if within purpose'
(i.e. only if the match is being conducted for the purpose stipulated by the volunteer).
Currently, Volunteers (limited purposes) profiles cannot be matched against other
Volunteers (limited purposes) profiles. Item 11 amends the matching table to allow
Volunteers (limited purposes) profiles to be matched against other Volunteer (limited
purposes) profiles but `only if within purpose' (i.e. only if the match is being
conducted for the purpose consistent with the purpose stipulated by both volunteers).
Currently, Volunteers (limited purposes) profiles cannot be matched against
Volunteers (unlimited purposes) profiles. Volunteers (unlimited purposes) profiles
are profiles that have been collected from volunteers who have consented to their
profile being used for the purpose of investigating any matter. Items 12 and 13
amend the matching table to allow Volunteers (limited purposes) profiles to be
matched against Volunteers (unlimited purposes) profiles but only if the match is
being conducted for the purpose stipulated by the `limited purpose' volunteer.
Currently, in some circumstances, Volunteers (limited purposes) profiles cannot be
matched against serious offenders profiles. Item 14 amends the matching table to
allow Volunteers (limited purposes) profiles to be matched against serious offenders
profiles but `only if within purpose' (i.e. only if the match is being conducted for the
purpose stipulated by the volunteer).
10
Currently, in some circumstances, Volunteers (limited purposes) profiles can be
matched without restriction against missing persons profiles. Item 15 amends the
matching table to ensure matching between Volunteers (limited purposes) profiles can
only be matched against missing persons profiles if the match is being conducted for
the purpose stipulated by the volunteer.
Currently, in some circumstances, Volunteers (limited purposes) profiles can be
matched without restriction against unknown deceased persons profiles. Item 16
amends the matching table to restrict Volunteers (limited purposes) profiles to
matching against unknown deceased persons profiles `only if within purpose' (i.e.
only if the match is being conducted for the purpose stipulated by the volunteer).
Items 17 to 19 Inter-jurisdictional matching
Section 23YUD can be interpreted as limiting inter-jurisdictional matching of DNA
profiles to circumstances where there is a specific identifiable investigation on foot to
which information about a DNA match may be relevant. The purpose of items 17 to
19 is to remove this limitation, but ensure that any information obtained from a DNA
match can only be used for the purpose of investigating an offence or a missing
person, or identifying a deceased person.
Item 17 substitutes a new subsection 23YUD(1) which has the effect of removing the
potential current requirement that the information transmitted between the
jurisdictions relate to the investigation of a specific matter.
Item 18 provides an additional safeguard by inserting subsection 23YUD(1B) which
restricts the use of information transmitted under the ministerial arrangement to
investigations of an offence, a missing person or the identification of a deceased
person.
Item 19 ensures that any existing ministerial arrangement does not lapse as a result of
these amendments, which repeal and replace the enabling provision.
Financial Transaction Reports Act 1988
Items 20 and 21
These items amend paragraph 16(1)(b) of the Financial Transaction Reports Act 1988
(FTRA) to ensure that cash dealers are required to report a transaction to the Director
of the Australian Transaction Reports and Analysis Centre (AUSTRAC) where a cash
dealer has reasonable grounds to suspect that information the cash dealer has may be
of assistance in enforcement of the Proceeds of Crime Act 2002 (POCA 2002) or
regulations under it. The paragraph already applies where information may be of
assistance in enforcement of the Proceeds of Crime Act 1987. The amendment was
unintentionally omitted from earlier amendments consequential upon passage of
POCA 2002.
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Foreign Evidence Act 1994
Items 22 to 25
Proposed new Part 1AE in the Crimes Act 1914 will deal with video link evidence
from witnesses both overseas and within Australia in proceedings for terrorism and
other related offences and proceeds of crime proceedings relating to these offences.
The Foreign Evidence Act 1994 deals with other types of foreign material such as
video tapes and transcripts of examinations. The proposed amendments to the
Foreign Evidence Act 1994 will assist in treating the foreign evidence in a similar
manner to the new video link evidence rules in Part 1AE of the Crimes Act 1914 in
proceedings for terrorism and other related offences and proceeds of crime
proceedings relating to those offences. This will assist in circumstances where it is
not possible for evidence to be given by video link, perhaps because of restrictions
under the law of the foreign country.
Section 24 of the Foreign Evidence Act 1994 provides that foreign material may be
adduced in a proceeding if the material would be admissible if the witness was giving
evidence in person.
Subsection 25(1) provides that the court may direct that foreign material not be
adduced as evidence if justice would be better served if the foreign material were not
adduced as evidence.
Item 25 inserts proposed new section 25A into the Foreign Evidence Act 1994 that
applies to a criminal proceeding for a designated offence or a proceeding under the
Proceeds of Crime Act 2002 (POCA 2002) in relation to a designated offence.
Item 22 inserts a definition of designated offence into subsection 3(1) in the Foreign
Evidence Act 1994. It is defined to include the same list of offences that are listed in
proposed subsections 15YU(1) and 15YU(2) of the Crimes Act 1914. These include
terrorism and other related offences.
Proposed section 25A provides that if a proceeding is a criminal proceeding for a
designated offence or a proceeding under the POCA 2002 in relation to a designated
offence and the prosecution seeks to adduce foreign material as evidence in the
proceeding, then subsection 25(1) of the Foreign Evidence Act 1994 does not apply.
Instead, proposed subsection 25A(1)(d) provides that the court may direct that the
foreign material not be adduced as evidence if the court is satisfied that adducing the
foreign material would have a substantial adverse effect on the right of a defendant in
the proceeding to receive a fair hearing. This will provide a narrower test than the
one that still applies if the defendant is seeking to adduce the foreign material under
subsection 25(1). Proposed subsection 25A(3) stipulates that it is immaterial whether
the proceedings for the designated offence or proceedings under the POCA 2002 in
relation to the designated offence were instituted before or after the commencement of
this section.
Section 24 of the Foreign Evidence Act 1994 will still apply, so that the foreign
material will only be admissible if the nature of the material is such that the witness
could have given the evidence in person. That will ensure that the normal rules of
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evidence, and the normal protections which apply under those rules, will continue to
apply in proceedings covered by proposed section 25A.
Item 24 adds a note to the end of subsection 25(1) to see subsection 25A(1)
(proceedings for designated offences).
Item 23 adds subsection 20(1)(c) so that Part 3 of the Foreign Evidence Act 1994
applies to proceedings under the Proceeds of Crime Act 2002 in relation to a
designated offence.
Proceeds of Crime Act 2002
Item 26
This item adds a note at the foot of section 6 of the Proceeds of Crime Act 2002
(POCA 2002). Section 6 outlines the general scheme of POCA 2002. The note is
intended to alert the reader that new Part 1AE of the Crimes Act 1914 (Video link
evidence in proceedings for terrorism and related offences etc) also applies to
proceedings under POCA 2002 in relation to the offences listed in subsection
15YU(1) of Part 1AE.
Item 27
This item inserts paragraph (ga) into subsection 297(1)(g) of the POCA 2002. The
paragraph enables payments to be made out of suspended funds in the Confiscated
Assets Account (CAA) in relation to the conduct of examinations. Under Part 3-1 of
the POCA 2002 a court can make an examination order on the application of the
Director of Public Prosecutions (DPP) where a restraining order has been made
against a person's property. The amendment will empower the DPP to approve a
payment to a third party which has carried out the examination.
Item 28
The purpose of this item is to amend the POCA 2002 to rectify the unintended
consequence of a regulation change that inadvertently affected the legal status of
some examiners.
Section 180 of the POCA 2002 enables a court which makes a restraining order to
also make an examination order of a person whose property is the subject of the
restraining order. Section 183(4)(a) of the POCA 2002 provides that approved
examiners are persons in the class of persons specified in the POCA Regulations.
Until amended in 2004, the original regulation 4 of the POCA 2000 Regulations
provided that an approved examiner was a presidential member or senior member of
the Administrative Appeals Tribunal (AAT).
An amendment to the POCA Regulations came into effect on 7 September 2004
which repealed regulation 4 and replaced it with regulation 12. The intention of
regulation 12 was to broaden the class of non-presidential members who could
conduct such examinations to anyone who has been enrolled as a legal practitioner for
5 years. However, the 2004 amendment inadvertently removed the reference to senior
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AAT members being eligible to be examiners. Thus the 2004 amendment had the
unintended consequence of excluding previously lawfully registered examiners if they
had not been enrolled as a legal practitioner for 5 years.
Item 28 will validate the work of such examiners who were inadvertently disinvested
of their status as examiners. The purported examinations will be deemed lawful, with
the consequence that evidence obtained in the course of those examinations will have
been lawfully obtained. The item will only apply to examinations conducted and
other action taken, in the period before the problem came to light.
Surveillance Devices Act 2004
Item 29 Amendment to subsection 22(1)
This item proposes to amend subsection 22(1) of the Surveillance Devices Act 2004
so that a warrant can be obtained to retrieve a surveillance device installed under an
authorisation under section 39 of the Surveillance Devices Act 2004.
Section 39 of the Surveillance Devices Act 2004 provides that a law enforcement
officer may receive an authorisation to use a tracking device without a warrant to
investigate a relevant offence. This is subject to subsection 39(8) which states that a
tracking device cannot be used, installed or retrieved if it involves entry onto premises
without permission or an interference with the interior of a vehicle without
permission. The permission may come from the owner, occupier or under a
surveillance device warrant.
Section 22(1) of the Surveillance Devices Act 2004 currently provides that a law
enforcement officer may apply for the issue of a retrieval warrant in respect of a
surveillance device that was lawfully installed on premises, or in or on an object,
under a surveillance device warrant. It does not provide for a law enforcement officer
to be able to apply for a retrieval warrant in respect of a surveillance device that was
used under an authorisation (under section 39).
A problem may arise where, for example, a law enforcement officer has placed a
tracking device on a vehicle under an authorisation (under section 39), but the vehicle
becomes inaccessible because it is moved onto private property. In these
circumstances, the law enforcement officer cannot get a retrieval warrant under
section 22(1) because the subsection does not currently provide for this. The law
enforcement officer also cannot get an authorisation to remove the tracking device
because section 39(8) requires that there is permission to enter onto the premises or
interference with the interior of the vehicle.
The amendment to section 22(1) will provide that a warrant can be obtained to
retrieve the tracking device that was installed under a tracking device authorisation.
This will ensure that there is an appropriate mechanism with accountability measures
in place to retrieve the tracking device.
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Item 30
This item adds a note to the end of subsection 39(8) stating that section 22 deals with
applications for a retrieval warrant in respect of a tracking device that was lawfully
installed under a tracking device authorisation.
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