National Crime Authority (State Provisions) Amendment Act 2002

National Crime Authority (State Provisions) Amendment Act 2002

An Act to amend the National Crime Authority (State Provisions) Act 1985

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

1.   Short title

This Act may be cited as the National Crime Authority (State Provisions) Amendment Act 2002 .

2.   Commencement

This Act commences on the day on which this Act receives the Royal Assent.

3.   Principal Act

In this Act, the National Crime Authority (State Provisions) Act 1985 is referred to as the Principal Act.

4.    Section 6 amended (Performance of functions)

Section 6 of the Principal Act is amended by omitting subsections (4) and (5) .

5.    Section 12 amended (Search warrants)

Section 12 of the Principal Act is amended as follows:

(a) by omitting from subsection (1) "A member" and substituting "An eligible person";

(b) by omitting from subsection (1) "a Judge of a prescribed court" and substituting "an issuing officer";

(c) by omitting from subsection (2) "a Judge of a prescribed court, the Judge" and substituting "an issuing officer, the issuing officer";

(d) by omitting from subsection (3) "A Judge" and substituting "An issuing officer";

(e) by omitting from subsection (4) "a Judge" and substituting "an issuing officer";

(f) by inserting the following subsection after subsection (6) :

(6A)  A person executing a warrant issued under this section may only use such reasonable force as is necessary for the execution.

(g) by omitting from subsection (8)(b) "a member" and substituting "an eligible person";

(h) by omitting from subsection (9) "The member" and substituting "An eligible person";

(i) by omitting subsection (11) ;

(j) by inserting the following subsections after subsection (13) :

(14)  A function of issuing a warrant conferred on an issuing officer by this section is conferred on the issuing officer in a personal capacity and not as a court or a member of a court.

(15)  Without limiting the generality of subsection (14) , the issue of a warrant has effect only by virtue of this Act and is not to be taken by implication to be made by a court.

(16)  An issuing officer performing a function of, or connected with, issuing a warrant under this section has the same protection and immunity as if the issuing officer were performing that function as, or as a member of, a court (being the court of which the issuing officer is a member).

6.    Section 13 amended (Application by telephone for search warrants)

Section 13 of the Principal Act is amended as follows:

(a) by omitting from subsection (1) "a member" and substituting "an eligible person";

(b) by omitting from subsection (3) "a Judge" and substituting "an issuing officer";

(c) by omitting from subsection (4) "Judge" twice occurring and substituting "issuing officer";

(d) by omitting from subsection (5) "Judge" and substituting "issuing officer";

(e) by omitting from subsection (6) "Judge" four times occurring and substituting "issuing officer";

(f) by inserting the following subsections after subsection (7) :

(8)  A function of issuing a warrant conferred on an issuing officer by this section is conferred on the issuing officer in a personal capacity and not as a court or a member of a court.

(9)  Without limiting the generality of subsection (8) , the issue of a warrant has effect only by virtue of this Act and is not to be taken by implication to be made by a court.

(10)  An issuing officer performing a function of, or connected with, issuing a warrant under this section has the same protection and immunity as if the issuing officer were performing that function as, or as a member of, a court (being the court of which the issuing officer is a member).

7.    Section 15 inserted

After section 14 of the Principal Act , the following section is inserted:

15.   Hearings

For the purposes of a special investigation –

(a) the Authority may hold hearings of the Authority; and

(b) the Chair may, in writing, direct a hearing officer to hold hearings.

8.    Section 16 amended (Hearings of the Authority)

Section 16 of the Principal Act is amended as follows:

(a) by omitting subsection (1) and substituting the following subsection:

(1)  This section applies to a hearing held by the Authority.

(b) by inserting the following subsections after subsection (7) :

(7A)  If a person (other than a member or a member of the staff of the Authority) is present at a hearing while another person ("the witness") is giving evidence at the hearing, the Authority must –

(a) inform the witness that the person is present; and

(b) give the witness the opportunity to comment on the presence of the person.

(7B)  To avoid doubt, a person does not cease to be entitled to be present at a hearing or part of a hearing if –

(a) the Authority fails to comply with subsection (7A) ; or

(b) a witness comments adversely on the presence of the person under subsection (7A)(b) .

(c) by omitting from subsection (12) "period" and substituting "term".

9.    Section 16A inserted

After section 16 of the Principal Act , the following section is inserted:

16A.   Hearings by hearing officers

(1)  A hearing officer may regulate the conduct of proceedings at a hearing as the hearing officer thinks fit.

(2)  At a hearing before a hearing officer –

(a) a person giving evidence may be represented by a legal practitioner; and

(b) if, by reason of the existence of special circumstances, the hearing officer consents to a person who is not giving evidence being represented by a legal practitioner – the person may be so represented.

(3)  A hearing before a hearing officer must be held in private and the hearing officer may give directions as to the persons who may be present during the hearing or a part of the hearing.

(4)  Nothing in a direction given by the hearing officer under subsection (3) prevents the presence, when evidence is being taken at a hearing before the hearing officer, of –

(a) a person representing the person giving evidence; or

(b) a person representing, in accordance with subsection (2) , a person who, by reason of a direction given by the hearing officer under subsection (3) , is entitled to be present.

(5)  If a hearing before a hearing officer is being held, a person (other than a member or a member of the staff of the Authority approved by the Authority) must not be present at the hearing unless the person is entitled to be present by reason of a direction given by the hearing officer under subsection (3) or by reason of subsection (4) .

(6)  At a hearing before a hearing officer for the purposes of a special investigation –

(a) counsel assisting the hearing officer generally or in relation to the matter to which the investigation relates; or

(b) any person authorised by the hearing officer to appear before the hearing officer at the hearing; or

(c) any legal practitioner representing a person at the hearing in accordance with subsection (2)  –

may, so far as the hearing officer thinks appropriate, examine or cross-examine any witness on any matter that the hearing officer considers relevant to the special investigation.

(7)  If a person (other than a member or a member of the staff of the Authority) is present at a hearing before a hearing officer while another person ("the witness") is giving evidence at the hearing, the hearing officer must –

(a) inform the witness that the person is present; and

(b) give the witness an opportunity to comment on the presence of the person.

(8)  To avoid doubt, a person does not cease to be entitled to be present at a hearing before a hearing officer or part of such a hearing if –

(a) the hearing officer fails to comply with subsection (7) ; or

(b) a witness comments adversely on the presence of the person under subsection (7)(b) .

(9)  A hearing officer may direct that –

(a) any evidence given before the hearing officer; or

(b) the contents of any document, or a description of any thing, produced to the hearing officer; or

(c) any information that might enable a person who has given evidence before the hearing officer to be identified; or

(d) the fact that any person has given or may be about to give evidence at a hearing –

must not be published, or must not be published except in such manner, and to such persons, as the hearing officer specifies. The hearing officer must give such a direction if the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been or may be charged with an offence.

(10)  Subject to subsection (11) , the Chair may, in writing, vary or revoke a direction under subsection (9) .

(11)  The Chair must not vary or revoke a direction if to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been or may be charged with an offence.

(12)  Where –

(a) a person has been charged with an offence before a federal court or before a court of a State or Territory; and

(b) the court considers that it may be desirable in the interests of justice that particular evidence given before a hearing officer, being evidence in relation to which the hearing officer has given a direction under subsection (9) , be made available to the person or to a legal practitioner representing the person –

the court may give to the hearing officer or the Authority a certificate to that effect and, if the court does so, the hearing officer or the Authority, as the case may be, must make the evidence available to the court.

(13)  Where –

(a) the hearing officer of the Authority makes evidence available to a court in accordance with subsection (12) ; and

(b) the court, after examining the evidence, is satisfied that the interests of justice so require –

the court may make the evidence available to the person charged with the offence concerned or to a legal practitioner representing the person.

(14)  A person who –

(a) is present at a hearing in contravention of subsection (5) ; or

(b) makes a publication in contravention of a direction given under subsection (9)  –

is guilty of an offence punishable, upon summary conviction, by a fine not exceeding 20 penalty units or imprisonment for a term not exceeding one year.

(15)  At the conclusion of a hearing held by a hearing officer, the hearing officer must give the Authority –

(a) a record of the proceedings of the hearing; and

(b) any documents or other things given to the hearing officer at, or in connection with, the hearing.

10.    Section 17 amended (Power to summon witnesses and take evidence)

Section 17 of the Principal Act is amended as follows:

(a) by inserting in subsection (1) "or an eligible person" after "member";

(b) by inserting in subsection (1) "or a hearing officer" after "Authority";

(c) by inserting in subsection (2) "or a hearing officer" after "before the Authority";

(d) by inserting in subsection (3) "or a hearing officer" after "before the Authority";

(e) by inserting in subsection (3) "or eligible person" after "member";

(f) by inserting in subsection (3) "or a hearing officer" after "which the Authority";

(g) by inserting in subsection (3) "or a hearing officer" after "prevents the Authority";

(h) by inserting in subsection (4) "or the hearing officer who is holding a hearing" after "Authority";

(i) by inserting in subsection (5) "or a hearing officer" after "The Authority";

(j) by inserting in subsection (5)(a) "or the hearing officer" after "a member";

(k) by inserting in subsection (5)(a) "or the hearing officer" after "presiding at the hearing";

(l) by inserting in subsection (5)(b) "or the hearing officer" after "member".

11.    Section 18 amended (Power to obtain documents)

Section 18 of the Principal Act is amended as follows:

(a) by omitting from subsection (1)(a) "or a member of the staff of the Authority" and substituting ", a member of the staff of the Authority or a hearing officer";

(b) by inserting in subsection (2) "or a hearing officer" after "Authority";

(c) by omitting subsections (3) , (4) and (5) and substituting the following subsections:

(3)  A person must not refuse or fail to comply with a notice served on the person under this section.

(4)  A person who contravenes subsection (3) is guilty of an indictable offence that, subject to this section, is punishable, upon conviction, by a fine not exceeding 200 penalty units or by imprisonment for a term not exceeding 5 years.

(5)  Notwithstanding that an offence against subsection (3) is an indictable offence, a court of summary jurisdiction may hear and determine proceedings in respect of such an offence if the court is satisfied that it is proper to do so and the defendant and the prosecutor consent.

(6)  Where, in accordance with subsection (5) , a court of summary jurisdiction convicts a person of an offence against subsection (3) , the penalty that the court may impose is a fine not exceeding 20 penalty units or imprisonment for a term not exceeding one year.

(7)  The provisions of section 19(3) , (4) , (5) and (9) apply in relation to a person who is required to produce a document or thing by a notice served on the person under this section in the same manner as they apply in relation to a person who is required to produce a document or thing at a hearing before the Authority or a hearing officer.

12.    Section 18B amended (Offences of disclosure)

Section 18B of the Principal Act is amended as follows:

(a) by omitting from the penalty under subsection (1) "12 months." and substituting "one year.";

(b) by omitting paragraph (e) from subsection (2) and substituting the following paragraph:

(e) if the person is a legal practitioner – for the purpose of obtaining the agreement of another person under section 19(3) to the legal practitioner answering a question or producing a document at a hearing before the Authority or a hearing officer.

(c) by omitting from the penalty under subsection (3) "12 months." and substituting "one year.";

(d) by inserting "or a hearing officer" after "Authority" in paragraph (c) of the definition of official matter in subsection (7) .

13.    Section 19 amended (Failure of witnesses to attend and answer questions)

Section 19 of the Principal Act is amended as follows:

(a) by omitting from subsection (1) "shall not, without reasonable excuse" and substituting "or a hearing officer, must not";

(b) by inserting in subsection (1)(b) "or the hearing officer, as the case may be" after "member";

(c) by omitting from subsection (2) "shall not, without reasonable excuse" and substituting "or a hearing officer, must not";

(d) by inserting in subsection (2)(b) "or the hearing officer" after "hearing";

(e) by inserting in subsection (3)(a) "or a hearing officer" after "Authority";

(f) by inserting in subsection (3) "or the hearing officer" after "at the hearing";

(g) by inserting in subsection (3) "or the hearing officer" after "to the Authority";

(h) by omitting subsections (4) , (5) , (6) , (7) , (8) , (9) , (10) , (11) , (12) and (13) and substituting the following subsections:

(4)  Subsection (5) limits the use that can be made of any answers given at a hearing before the Authority or a hearing officer, or documents or things produced at a hearing before the Authority or a hearing officer; that subsection only applies if –

(a) a person appearing as a witness at a hearing before the Authority or a hearing officer –

(i) answers a question that the person is required to answer by the member presiding at the hearing or the hearing officer who is holding the hearing; or

(ii) produces a document or thing that the person was required to produce by a summons under this Act served as prescribed; and

(b) in the case of the production of a document that is, or forms part of, a record of an existing or past business – the document sets out details of earnings received by the person in respect of the person’s employment and does not set out any other information; and

(c) before answering the question or producing the document or thing, the person claims that the answer, or the production of the document or thing, might tend to incriminate the person or make the person liable to a penalty.

(5)  The answer, or the document or thing, is not admissible in evidence against the person in –

(a) a criminal proceeding; or

(b) a proceeding for the imposition of a penalty –

other than a proceeding in respect of –

(c) in the case of an answer – the falsity of the answer; or

(d) in the case of the production of a document – the falsity of any statement contained in the document.

(6)  A person who contravenes subsection (1) , (2) or (3) is guilty of an indictable offence that, subject to this section, is punishable, upon conviction, by a fine not exceeding 200 penalty units or by imprisonment for a term not exceeding 5 years.

(7)  Notwithstanding that an offence against subsection (1) , (2) or (3) is an indictable offence, a court of summary jurisdiction may hear and determine proceedings in respect of such an offence if the court is satisfied that it is proper to do so and the defendant and the prosecutor consent.

(8)  Where, in accordance with subsection (7) , a court of summary jurisdiction convicts a person of an offence against subsection (1) , (2) or (3) , the penalty that the court may impose is a fine not exceeding 20 penalty units or imprisonment for a term not exceeding one year.

(9)  Subsection (3) does not affect the law relating to legal professional privilege.

14.    Section 20 amended (Warrant for arrest of witness)

Section 20 of the Principal Act is amended as follows:

(a) by inserting in subsection (1)(a) "or a hearing officer" after "before the Authority";

(b) by inserting the following subsection after subsection (2A) :

(2B)  A person executing a warrant under this section may only use such reasonable force as is necessary for the execution.

(c) by inserting in subsection (3)(a) "or a hearing officer" after "Authority".

15.    Section 21 repealed

Section 21 of the Principal Act is repealed.

16.    Section 23 amended (False or misleading evidence)

Section 23 of the Principal Act is amended as follows:

(a) by omitting from subsection (1) "shall" and substituting "must";

(b) by inserting in subsection (1) "or a hearing officer" after "Authority";

(c) by omitting from subsection (2) "period" and substituting "term";

(d) by omitting from subsection (4) "period" and substituting "term".

17.    Section 24 amended (Protection of witnesses)

Section 24 of the Principal Act is amended as follows:

(a) by inserting "or a hearing officer" after "a member";

(b) by inserting in paragraph (a) "or a hearing officer" after "Authority";

(c) by inserting in paragraph (b) "or a hearing officer" after "before the Authority";

(d) by inserting "or the hearing officer, as the case may be," after "the member".

18.    Section 25 substituted

Section 25 of the Principal Act is repealed and the following section is substituted:

25.   Contempt of Authority

(1)  A person must not –

(a) obstruct or hinder –

(i) the Authority or a member in the performance of the functions of the Authority; or

(ii) a hearing officer in the performance of the hearing officer’s functions as a hearing officer; or

(b) disrupt a hearing before the Authority or a hearing officer.

(2)  A person who contravenes subsection (1) is guilty of an indictable offence and, subject to this section, is punishable, upon conviction, by a fine not exceeding 200 penalty units or by imprisonment for a term not exceeding 5 years.

(3)  Notwithstanding that an offence against subsection (1) is an indictable offence, a court of summary jurisdiction may hear and determine proceedings in respect of such an offence if the court is satisfied that it is proper to do so and the defendant and the prosecutor consent.

(4)  Where, in accordance with subsection (3) , a court of summary jurisdiction convicts a person of an offence against subsection (1) , the penalty that the court may impose is a fine not exceeding 20 penalty units or imprisonment for a term not exceeding one year.

19.    Section 29 amended (Protection of members, &c.)

Section 29 of the Principal Act is amended as follows:

(a) by inserting in subsection (1) "or a hearing officer" after "A member";

(b) by inserting in subsection (1) "or a hearing officer" after "a member";

(c) by inserting in subsection (1) "or the hearing officer" after "Authority";

(d) by inserting in subsection (2) "or a hearing officer" after "assisting the Authority";

(e) by inserting in subsection (2) "or a hearing officer" after "before the Authority";

(f) by inserting in subsection (3) "or a hearing officer" after "Authority".

20.    Section 31 amended (Secrecy)

Section 31 of the Principal Act is amended as follows:

(a) by omitting from subsection (1)(b) "Authority." and substituting "Authority; and";

(b) by inserting the following paragraph after paragraph (b) in subsection (1) :

(c) a hearing officer.

(c) by omitting from subsection (2) "period" and substituting "term";

(d) by inserting in subsection (3) "or a hearing officer in the hearing officer's official capacity" after "capacity".

21.    Section 34 inserted

After section 33A of the Principal Act , the following section is inserted:

34.   Transitional provisions consequent on enactment of National Crime Authority (State Provisions) Amendment Act 2002

(1)  In this section –

amending Act means the National Crime Authority (State Provisions) Amendment Act 2002 ;

relevant claim means a claim, made before the commencement of this section, that a person is entitled to refuse –

(a) to furnish information, or produce a document or thing, pursuant to a notice under section 20 of the Commonwealth Act; or

(b) to produce a document or thing pursuant to a notice under section 29 of the Commonwealth Act; or

(c) to answer a question put to the person, or produce a document or thing that the person was required to produce, under section 30 of the Commonwealth Act; or

(d) to comply with a requirement –

(i) to answer a question, or to produce a document or thing, at a hearing before the Authority under a law of a State; or

(ii) to produce a document or thing pursuant to a notice under a provision of a law of a State that corresponds to section 29 of the Commonwealth Act –

to which section 32 of the Commonwealth Act applied, because of section 32B of the Commonwealth Act, before the commencement of item 13 of Schedule 1 to the National Crime Authority Legislation Amendment Act 2001 of the Commonwealth.

(2)  Section 21, as in force immediately before its repeal by the amending Act, continues to apply in relation to a relevant claim as if it had not been repealed.

22.   Substitutions

Each of the provisions of the Principal Act specified in Column 1 of Schedule 1 is amended by omitting "Chairperson" on the number of occurrences specified in Column 2 of that Schedule and substituting "Chair".

23.   Substitutions

Each of the provisions of the Principal Act specified in Column 1 of Schedule 2 is amended by omitting "the Judge" on the number of occurrences specified in Column 2 of that Schedule and substituting "the issuing officer".

24.   Substitutions

Each of the provisions of the Principal Act specified in Column 1 of Schedule 3 is amended by omitting "the member" on the number of occurrences specified in Column 2 of that Schedule and substituting "the eligible person".

25.    Witness Protection Act 2000 amended

Section 3 of the Witness Protection Act 2000 is amended by omitting "Chairperson" from paragraph (c) of the definition of approved authority and substituting "Chair".

SCHEDULE 1 - Substitutions

Section 22

SCHEDULE 2 - Substitutions

Section 23

SCHEDULE 3 - Substitutions

Section 24

[Second reading presentation speech made in:

House of Assembly on 23 APRIL 2002

Legislative Council on 21 MAY 2002]