National Crime Authority (State Provisions) Act 1985
An Act to make provision for the operation of the National Crime Authority in Tasmania
[Royal Assent 23 May 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:
This Act may be cited as the National Crime Authority (State Provisions) Act 1985 .
This Act shall commence on the day on which it receives the Royal assent.
(1) In this Act, unless the contrary intention appears –Attorney-General means the Attorney-General of the State;Commonwealth Act means the National Crime Authority Act 1984 of the Commonwealth;Commonwealth Minister means the Minister of State of the Commonwealth administering the Commonwealth Act ;functions includes duties;hearing means a hearing for the purposes of a special investigation;Minister means the Minister of the Crown of the State administering this Act;prescribed means prescribed by this Act or by regulations made under this Act;Registrar, in relation to a court, means the proper officer, however described, of that court;special function means a special function referred to in section 5 (4) ;special investigation means an investigation that the Authority is conducting in the performance of its special functions.(2) Expressions used in this Act that are also used in the Commonwealth Act have in this Act, unless the contrary intention appears, the same respective meanings as those expressions have in the Commonwealth Act .(3) Where the Authority suspects that an offence that is not a relevant offence as defined in section 4 (1) of the Commonwealth Act may be directly or indirectly connected with, or may be a part of, a course of activity involving the commission of a relevant offence as so defined, whether or not the Authority has identified the nature of that relevant offence, the first-mentioned offence shall, for so long only as the Authority so suspects, be deemed, for the purposes of this Act, to be a relevant offence.
This Act binds the Crown not only in right of the State but also, so far as the legislative power of Parliament permits, binds the Crown in all of its other capacities.
5. Functions under laws of the State
(1) The Minister may, with the approval of the Inter-Governmental Committee, by notice in writing to the Authority, refer a matter relating to a relevant criminal activity to the Authority for investigation in so far as the relevant offence is, or the relevant offences are or include, an offence or offences against a law of the State.(2) Where a matter has so been referred to the Authority, the Authority is not precluded by any law of the State from investigating that matter.(3) A notice referred to in subsection (1) referring a matter to the Authority –(a) shall describe the general nature of the circumstances or allegations constituting the relevant criminal activity;(b) shall state that the relevant offence is, or the relevant offences are or include, an offence or offences against a law of the State but need not specify the particular offence or offences; and(c) shall set out the purpose of the investigation.(4) Where a reference to the Authority made by the Minister under subsection (1) is in force in respect of a matter relating to a relevant criminal activity, it is a special function of the Authority to investigate the matter in so far as the relevant offence is, or the relevant offences are or include, an offence or offences against a law of the State.(5) Where a matter has been referred to the Authority in accordance with subsection (1) , the Minister may at any time, by notice in writing to the Authority, withdraw the reference.(6) [Section 5 Subsection (6) inserted by No. 79 of 1995, s. 4 ]The Minister may, with the approval of the Inter-Governmental Committee –(a) in a notice under subsection (1) referring a matter to the Authority, state that the reference is related to another reference; or(b) in a notice in writing to the Authority, state that a reference already made to the Authority by the Minister is related to another reference.
(1) [Section 6 Subsection (1) substituted by No. 79 of 1995, s. 5 ]Where, in carrying out an investigation under section 5 (4) , the Authority obtains evidence of an offence against a law of the Commonwealth or of a State or Territory, being evidence that would be admissible in a prosecution for the offence, the Authority must assemble the evidence and give it to –(a) the Attorney-General of the Commonwealth or of the State, as the case requires; or(b) the relevant law enforcement agency; or(c) any person or authority (other than a law enforcement agency) who is authorised by or under a law of the Commonwealth or of the State or Territory to prosecute the offence.(2) The Authority shall, in performing a special function, co-operate and consult with the Australian Bureau of Criminal Intelligence.(3) Where, as a result of the performance of a special function, the Authority considers that a recommendation should be made to the Minister, to the Commonwealth Minister, or to the appropriate Minister of the Crown of another participating State, being a recommendation –the Authority may make the recommendation to the Minister, to the Commonwealth Minister, or to that Minister of the Crown of that other participating State, as the case may be.(a) for reform of the law relating to relevant offences, including –(i) evidence and procedure applicable to the trials of relevant offences;(ii) relevant offences in relation to, or involving, corporations;(iii) taxation, banking, and financial frauds;(iv) reception by Australian courts of evidence obtained in foreign countries as to relevant offences; and(v) maintenance and preservation of taxation, banking, and financial records;(b) for reform of administrative practices; or(c) for reform of administration of the courts in relation to trials of relevant offences –(4) [Section 6 Subsection (4) omitted by No. 2 of 2002, s. 4, Applied:30 May 2002] . . . . . . . .(5) [Section 6 Subsection (5) omitted by No. 2 of 2002, s. 4, Applied:30 May 2002] . . . . . . . .(6) Where the Authority has obtained particular information or intelligence in the course of performing a special function, nothing in this Act shall be taken to prevent the Authority from making use of the information or intelligence in the performance of any of its other functions.
7. Members may have concurrent functions and powers under laws of the State
If –then, notwithstanding anything contained in any other provision of this Act, the member or members referred to in paragraph (a) shall perform the functions, or may exercise the powers, referred to in that paragraph in conjunction with the performance or exercise by the Authority of its functions or powers under the Commonwealth Act , this Act, or any corresponding Act of another State, and the members of the staff of the Authority may be employed by the Authority in assisting the member or members referred to in paragraph (a) in the performance of the functions or the exercise of the powers referred to in that paragraph.(a) with the consent of the Inter-Governmental Committee, any functions or powers in relation to the investigation of matters relating to relevant criminal activities are conferred on a member or members by the Governor or a Minister; and(b) the Commonwealth Minister informs the member or members in writing that the Commonwealth Minister is satisfied that those functions or powers may conveniently be performed or exercised in conjunction with the performance or exercise by the Authority of its functions or powers under the Commonwealth Act –
8. Limitation on challenges to validity of references
Where, with the approval of the Inter-Governmental Committee, the Minister refers a matter to the Authority for investigation, then, except in a proceeding instituted by the Attorney-General of the Commonwealth or the Attorney-General of a State, any act or thing done by the Authority in pursuance of the reference shall not be challenged, reviewed, quashed, or called in question in any court of the State on the ground that any necessary approval of the Inter-Governmental Committee or consent of the Commonwealth Minister has not been obtained or was not lawfully given.
9. Co-operation with law enforcement agencies
(1) [Section 9 Subsection (1) amended by No. 79 of 1995, s. 6 ]In performing its special functions, the Authority shall, so far as is practicable, work in co-operation with law enforcement agencies.(2) [Section 9 Subsection (2) inserted by No. 79 of 1995, s. 6 ]In performing its special functions, the Authority may co-ordinate its activities with the activities of authorities and persons in other countries performing functions similar to the functions of the Authority.
10. Incidental powers of Authority
The Authority has power to do all things necessary to be done for or in connection with, or reasonably incidental to, the performance of its special functions, and any specific powers conferred on the Authority by this Act shall not be taken to limit by implication the generality of this section.
11. Arrangements for Authority to obtain information or intelligence
The Minister may make an arrangement with the Commonwealth Minister for the Authority to be given by the State, or by an authority of the State, information or intelligence relating to relevant criminal activities.
(1) [Section 12 Subsection (1) amended by No. 79 of 1995, s. 7 ][Section 12 Subsection (1) amended by No. 2 of 2002, s. 5, Applied:30 May 2002] An eligible person may apply to an issuing officer for the issue of a warrant under subsection (2) if –(a) [Section 12 Subsection (1) amended by No. 2 of 2002, Sched. 3, Applied:30 May 2002] the eligible person has reasonable grounds for suspecting that, on a particular day (in this section referred to as the "relevant day"), being the day on which, or a particular day within one month after the day on which, the application is made, there may be, upon any land or upon or in any premises, vessel, aircraft, or vehicle, a thing or things of a particular kind connected with a matter relating to a relevant criminal activity, being a matter into which the Authority is conducting a special investigation (in this section referred to as "things of the relevant kind"); and(b) [Section 12 Subsection (1) amended by No. 2 of 2002, Sched. 3, Applied:30 May 2002] the eligible person believes on reasonable grounds that, if a summons were issued for the production of the thing or things, the thing or things might be concealed, lost, mutilated, or destroyed.(2) [Section 12 Subsection (2) amended by No. 2 of 2002, s. 5, Applied:30 May 2002] Where an application under subsection (1) is made to an issuing officer, the issuing officer may issue a warrant authorising a member of the Australian Federal Police or of the Police Force of a State, or any other person, named in the warrant, with such assistance as the member or person thinks necessary and if necessary by force –(a) to enter upon the land or upon or into the premises, vessel, aircraft, or vehicle;(b) to search the land, premises, vessel, aircraft, or vehicle for things of the relevant kind; and(c) to seize any things of the relevant kind found upon the land or upon or in the premises, vessel, aircraft, or vehicle and deliver things so seized to the Authority.(3) [Section 12 Subsection (3) amended by No. 2 of 2002, s. 5, Applied:30 May 2002] An issuing officer shall not issue a warrant under subsection (2) unless –(a) [Section 12 Subsection (3) amended by No. 2 of 2002, Sched. 2, Applied:30 May 2002] an affidavit has been furnished to the issuing officer setting out the grounds on which the issue of the warrant is being sought;(b) [Section 12 Subsection (3) amended by No. 2 of 2002, Sched. 2, Applied:30 May 2002] the applicant (or some other person) has given to the issuing officer, either orally or by affidavit, such further information (if any) as the issuing officer requires concerning the grounds on which the issue of the warrant is being sought; and(c) [Section 12 Subsection (3) amended by No. 2 of 2002, Sched. 2, Applied:30 May 2002] the issuing officer is satisfied that there are reasonable grounds for issuing the warrant.(4) [Section 12 Subsection (4) amended by No. 2 of 2002, s. 5, Applied:30 May 2002] [Section 12 Subsection (4) amended by No. 2 of 2002, Sched. 2, Applied:30 May 2002] Where an issuing officer issues a warrant under subsection (2) , the issuing officer shall state on the affidavit furnished as mentioned in subsection (3) (a) which of the grounds specified in that affidavit has or have been relied on to justify the issue of the warrant and particulars of any other grounds relied on to justify the issue of the warrant.(5) A warrant issued under this section shall –(a) include a statement of the purpose for which the warrant is issued, which shall include a reference to the matter relating to a relevant criminal activity into which the Authority is conducting a special investigation and with which the things of the relevant kind are connected;(b) state whether entry is authorised to be made at any time of the day or night or during specified hours of the day or night;(c) include a description of the kind of things authorised to be seized; and(d) specify a date, not being later than one month after the date of issue of the warrant, upon which the warrant ceases to have effect.(6) A warrant issued under this section may be executed, in accordance with its terms, at any time during the period commencing on the relevant day and ending on the date specified in the warrant as the date upon which the warrant ceases to have effect.(6A) [Section 12 Subsection (6A) inserted by No. 2 of 2002, s. 5, Applied:30 May 2002] A person executing a warrant issued under this section may only use such reasonable force as is necessary for the execution.(7) Where, in the course of searching, in accordance with the terms of a warrant issued under this section, for things of the relevant kind, the person executing the warrant finds a thing that the person believes on reasonable grounds to be evidence that would be admissible in the prosecution of a person for an offence against a law of the Commonwealth, of a State, or of a Territory, and the first-mentioned person believes on reasonable grounds that it is necessary to seize the thing in order to prevent its concealment, loss, mutilation, or destruction, or its use in committing such an offence, that person may seize the thing and, if the thing is so seized, it shall be deemed, for the purposes of this Act, to have been seized pursuant to the warrant.(8) [Section 12 Subsection (8) amended by No. 79 of 1995, s. 7 ]Where a thing is seized pursuant to a warrant issued under this section –(a) the Authority may retain the thing if, and for so long as, retention of the thing by the Authority is reasonably necessary for the purposes of a special investigation to which the thing is relevant; and(b) [Section 12 Subsection (8) amended by No. 2 of 2002, s. 5, Applied:30 May 2002] if the retention of the thing by the Authority is not, or ceases to be, reasonably necessary for such purposes, an eligible person shall cause the thing to be delivered to –unless the Authority has furnished the thing to the Attorney-General of the Commonwealth or of a State, or to a law enforcement agency, in accordance with the Commonwealth Act , this Act, or an Act of another State.(i) if the thing may be used in evidence in proceedings of a kind referred to in subsection (13) – the member or person responsible for taking the proceedings; or(ii) [Section 12 Subsection (8) amended by No. 2 of 2002, Sched. 3, Applied:30 May 2002] if subparagraph (i) does not apply – the person who appears to the eligible person to be entitled to the possession of the thing –(9) [Section 12 Subsection (9) amended by No. 79 of 1995, s. 7 ][Section 12 Subsection (9) amended by No. 2 of 2002, s. 5, Applied:30 May 2002] [Section 12 Subsection (9) amended by No. 2 of 2002, Sched. 3, Applied:30 May 2002] An eligible person may, instead of delivering a thing in accordance with subsection (8) (b) (ii) , deliver the thing to the Attorney-General of the Commonwealth or of a State, or to a law enforcement agency, for the purpose of assisting in the investigation of criminal offences, where the eligible person is satisfied that the thing is likely to be useful for that purpose.(10) Nothing in this section affects a right of a person to apply for, or the power of a person to issue, a warrant, being a right or power existing otherwise than by virtue of this section.(11) [Section 12 Subsection (11) amended by No. 11 of 2001, s. 42, Applied:01 Jun 2001] [Section 12 Subsection (11) omitted by No. 2 of 2002, s. 5, Applied:30 May 2002] . . . . . . . .(12) In this section, thing includes a document.(13) Without limiting the generality of subsection (1) (a) , a reference in this section to a thing connected with a matter relating to a relevant criminal activity, being a matter into which the Authority is conducting a special investigation, includes a reference to a thing that may be used in evidence in proceedings for the taking, by or on behalf of the Crown in right of the State, of civil remedies in respect of a matter connected with, or arising out of, an offence to which the relevant criminal activity relates.(14) [Section 12 Subsection (14) inserted by No. 2 of 2002, s. 5, Applied:30 May 2002] 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) [Section 12 Subsection (15) inserted by No. 2 of 2002, s. 5, Applied:30 May 2002] 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) [Section 12 Subsection (16) inserted by No. 2 of 2002, s. 5, Applied:30 May 2002] 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).
13. Application by telephone for search warrants
(1) [Section 13 Subsection (1) amended by No. 79 of 1995, s. 8 ][Section 13 Subsection (1) amended by No. 2 of 2002, s. 6, Applied:30 May 2002] [Section 13 Subsection (1) amended by No. 2 of 2002, Sched. 3, Applied:30 May 2002] Where, by reason of circumstances of urgency, an eligible person considers it necessary to do so, the eligible person may make application by telephone for a warrant under section 12 .(2) [Section 13 Subsection (2) amended by No. 2 of 2002, Sched. 3, Applied:30 May 2002] Before so making application, the eligible person shall prepare an affidavit that sets out the grounds on which the issue of the warrant is being sought, but may, if it is necessary to do so, make the application before the affidavit has been sworn.(3) [Section 13 Subsection (3) amended by No. 2 of 2002, s. 6, Applied:30 May 2002] [Section 13 Subsection (3) amended by No. 2 of 2002, Sched. 2, Applied:30 May 2002] Where an issuing officer issues a warrant under section 12 upon an application made by telephone, the issuing officer shall –(a) complete and sign the warrant;(b) [Section 13 Subsection (3) amended by No. 2 of 2002, Sched. 3, Applied:30 May 2002] inform the eligible person who made the application of the terms of the warrant and the date on which and the time at which it was signed;(c) record on the warrant the reasons for issuing the warrant; and(d) send a copy of the warrant to the Authority.(4) [Section 13 Subsection (4) amended by No. 2 of 2002, s. 6, Applied:30 May 2002] Where a warrant is issued under section 12 upon an application made by telephone, a member of the staff of the Authority or a member of the Australian Federal Police or of the Police Force of a State may complete a form of warrant in the terms indicated by the issuing officer under subsection (3) and, where a form of warrant is so completed, shall write on it the name of the issuing officer who issued the warrant and the date on which and the time at which it was signed.(5) [Section 13 Subsection (5) amended by No. 2 of 2002, s. 6, Applied:30 May 2002] Where a person completes a form of warrant in accordance with subsection (4) , the person shall, not later than the day next following the date of expiry of the warrant, send to the issuing officer who signed the warrant the form of warrant completed by the person and the affidavit duly sworn in connection with the warrant.(6) [Section 13 Subsection (6) amended by No. 2 of 2002, s. 6, Applied:30 May 2002] Upon receipt of the documents referred to in subsection (5) , the issuing officer shall attach them to the warrant signed by the issuing officer and shall deal with the documents in the manner in which the issuing officer would have dealt with the affidavit if the application for the warrant had been made to the issuing officer in accordance with section 12 .(7) A form of warrant duly completed in accordance with subsection (4) shall be deemed to be a warrant issued under section 12 .(8) [Section 13 Subsection (8) inserted by No. 2 of 2002, s. 6, Applied:30 May 2002] 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) [Section 13 Subsection (9) inserted by No. 2 of 2002, s. 6, Applied:30 May 2002] 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) [Section 13 Subsection (10) inserted by No. 2 of 2002, s. 6, Applied:30 May 2002] 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).
14. Judges to perform functions under Commonwealth Act
A Judge of the Supreme Court may perform functions conferred on the Judge by section 22 or 23 of the Commonwealth Act .
[Section 15 Subsection (1) amended by No. 79 of 1995, s. 9 ][Section 15 Repealed by No. 11 of 2001, s. 43, Applied:01 Jun 2001] [Section 15 Inserted by No. 2 of 2002, s. 7, Applied:30 May 2002] 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.
(1) [Section 16 Subsection (1) substituted by No. 2 of 2002, s. 8, Applied:30 May 2002] This section applies to a hearing held by the Authority.(2) [Section 16 Subsection (2) amended by No. 79 of 1995, s. 10 ]At a hearing, the Authority may be constituted by one or more members.(3) [Section 16 Subsection (3) substituted by No. 79 of 1995, s. 10 ][Section 16 Subsection (3) amended by No. 2 of 2002, Sched. 1, Applied:30 May 2002] The Chair is to preside at all hearings at which the Chair is present.(3A) [Section 16 Subsection (3A) inserted by No. 79 of 1995, s. 10 ][Section 16 Subsection (3A) amended by No. 2 of 2002, Sched. 1, Applied:30 May 2002] If the Chair is not present at a hearing at which there are 2 or more members, the members present are to elect one of their number to preside at that hearing.(3B) [Section 16 Subsection (3B) inserted by No. 79 of 1995, s. 10 ]Questions arising at a hearing are to be determined by a majority of the votes of the members present.(3C) [Section 16 Subsection (3C) inserted by No. 79 of 1995, s. 10 ]The person presiding at a hearing has a deliberative vote and, if necessary, also has a casting vote.(3D) [Section 16 Subsection (3D) inserted by No. 79 of 1995, s. 10 ]The Authority may regulate the conduct of proceedings at a hearing as it thinks fit.(4) At a hearing before the Authority –(a) a person giving evidence may be represented by a legal practitioner; and(b) if, by reason of the existence of special circumstances, the Authority consents to a person who is not giving evidence being represented by a legal practitioner – the person may be so represented.(5) A hearing before the Authority shall be held in private and the Authority may give directions as to the persons who may be present during the hearing or a part of the hearing.(6) Nothing in a direction given by the Authority under subsection (5) prevents the presence, when evidence is being taken at a hearing before the Authority, of –(a) a person representing the person giving evidence; or(b) a person representing, pursuant to subsection (4) , a person who, by reason of a direction given by the Authority under subsection (5) , is entitled to be present.(7) Where a hearing before the Authority is being held, a person (other than a member or a member of the staff of the Authority approved by the Authority) shall not be present at the hearing unless the person is entitled to be present by reason of a direction given by the Authority under subsection (5) or by reason of subsection (6) .(7A) [Section 16 Subsection (7A) inserted by No. 2 of 2002, s. 8, Applied:30 May 2002] 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) [Section 16 Subsection (7B) inserted by No. 2 of 2002, s. 8, Applied:30 May 2002] 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) .(8) At a hearing before the Authority for the purposes of a special investigation –may, so far as the Authority thinks appropriate, examine or cross-examine any witness on any matter that the Authority considers relevant to the special investigation.(a) counsel assisting the Authority generally or in relation to the matter to which the investigation relates;(b) any person authorised by the Authority to appear before it at the hearing; or(c) any legal practitioner representing a person at the hearing pursuant to subsection (4) –(9) The Authority may direct that –shall not be published, or shall not be published except in such manner, and to such persons, as the Authority specifies, and the Authority shall 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.(a) any evidence given before it;(b) the contents of any document, or a description of any thing, produced to the Authority or seized pursuant to a warrant issued under section 12 ;(c) any information that might enable a person who has given evidence before the Authority to be identified; or(d) the fact that any person has given or may be about to give evidence at a hearing –(9A) [Section 16 Subsection (9A) inserted by No. 79 of 1995, s. 10 ][Section 16 Subsection (9A) amended by No. 2 of 2002, Sched. 1, Applied:30 May 2002] Subject to subsection (9B) , the Chair may, in writing, vary or revoke a direction under subsection (9) .(9B) [Section 16 Subsection (9B) inserted by No. 79 of 1995, s. 10 ][Section 16 Subsection (9B) amended by No. 2 of 2002, Sched. 1, Applied:30 May 2002] 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.(10) Where –the court may give to the Authority a certificate to that effect and, if the court does so, the Authority shall make the evidence available to the court.(a) a person has been charged with an offence before a court of the State; and(b) the court considers that it may be desirable in the interests of justice that particular evidence given before the Authority, being evidence in relation to which the Authority has given a direction under subsection (9) , be made available to the person or to a legal practitioner representing the person –(11) Where –the court may make the evidence available to the person charged with the offence concerned or to a legal practitioner representing the person.(a) the Authority makes evidence available to a court in accordance with subsection (10) ; and(b) the court, after examining the evidence, is satisfied that the interests of justice so require –(12) [Section 16 Subsection (12) amended by No. 67 of 1994, s. 3 and Sched. 1 ][Section 16 Subsection (12) amended by No. 2 of 2002, s. 8, Applied:30 May 2002] A person who –is guilty of an offence and is liable on summary conviction to a fine not exceeding 20 penalty units or imprisonment for a term not exceeding one year.(a) is present at a hearing in contravention of subsection (7) ; or(b) makes a publication in contravention of a direction given under subsection (9) –
16A. Hearings by hearing officers
[Section 16A Inserted by No. 2 of 2002, s. 9, Applied:30 May 2002](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 –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.(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) –(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 –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.(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 –(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 –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.(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 –(13) Where –the court may make the evidence available to the person charged with the offence concerned or to a legal practitioner representing the person.(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 –(14) A person who –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.(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) –(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.
17. Power to summon witnesses and take evidence
(1) [Section 17 Subsection (1) amended by No. 79 of 1995, s. 11 ][Section 17 Subsection (1) amended by No. 2 of 2002, s. 10, Applied:30 May 2002] A member or an eligible person may summon a person to appear before the Authority or a hearing officer at a hearing to give evidence and to produce such documents or other things (if any) as are referred to in the summons.(2) [Section 17 Subsection (2) amended by No. 2 of 2002, s. 10, Applied:30 May 2002] A summons under subsection (1) requiring a person to appear before the Authority or a hearing officer at a hearing shall be accompanied by a copy of the notice, or of each of the notices, by which the matter or matters to which the hearing relates was or were referred to the Authority under section 5 , under the Commonwealth Act , or under an Act of another State.(3) [Section 17 Subsection (3) amended by No. 79 of 1995, s. 11 ][Section 17 Subsection (3) amended by No. 2 of 2002, s. 10, Applied:30 May 2002] A summons under subsection (1) requiring a person to appear before the Authority or a hearing officer at a hearing shall, unless the member or eligible person issuing the summons is satisfied that, in the particular circumstances of a special investigation to which the hearing relates, it would prejudice the effectiveness of the special investigation for the summons to do so, set out, so far as is reasonably practicable, the general nature of the matters in relation to which the Authority or a hearing officer intends to question the person, but nothing in this subsection prevents the Authority or a hearing officer from questioning the person in relation to any matter that relates to a special investigation.(4) [Section 17 Subsection (4) amended by No. 79 of 1995, s. 11 ][Section 17 Subsection (4) amended by No. 2 of 2002, s. 10, Applied:30 May 2002] The member presiding at a hearing before the Authority or the hearing officer who is holding a hearing may require a person appearing at the hearing to produce a document or other thing.(5) [Section 17 Subsection (5) amended by No. 79 of 1995, s. 11 ][Section 17 Subsection (5) amended by No. 2 of 2002, s. 10, Applied:30 May 2002] The Authority or a hearing officer may, at a hearing, take evidence on oath or affirmation and for that purpose –(a) [Section 17 Subsection (5) amended by No. 2 of 2002, s. 10, Applied:30 May 2002] a member or the hearing officer may require a person appearing at the hearing to give evidence either to take an oath or to make an affirmation in a form approved by the member presiding at the hearing or the hearing officer; and(b) [Section 17 Subsection (5) amended by No. 2 of 2002, s. 10, Applied:30 May 2002] a member or the hearing officer, or a person who is an authorised person in relation to the Authority, may administer an oath or affirmation to a person so appearing at the hearing.(6) [Section 17 Subsection (6) amended by No. 79 of 1995, s. 11 ][Section 17 Subsection (6) amended by No. 2 of 2002, Sched. 1, Applied:30 May 2002] In this section, a reference to a person who is an authorised person in relation to the Authority is a reference to a person authorised in writing, or a person included in a class of persons authorised in writing, for the purposes of this section by the Chair.
(1) [Section 18 Subsection (1) amended by No. 79 of 1995, s. 12 ]A member may, by notice in writing served on a person, require the person –(a) [Section 18 Subsection (1) amended by No. 2 of 2002, s. 11, Applied:30 May 2002] to attend, at a time and place specified in the notice before a person specified in the notice, being a member of the Authority, a member of the staff of the Authority or a hearing officer; and(b) to produce at that time and place to the person so specified a document or thing specified in the notice, being a document or thing that is relevant to a special investigation.(2) [Section 18 Subsection (2) amended by No. 2 of 2002, s. 11, Applied:30 May 2002] A notice may be issued under this section in relation to a special investigation whether or not a hearing before the Authority or a hearing officer is being held for the purposes of the investigation.(3) [Section 18 Subsection (3) substituted by No. 2 of 2002, s. 11, Applied:30 May 2002] A person must not refuse or fail to comply with a notice served on the person under this section.(4) [Section 18 Subsection (4) substituted by No. 2 of 2002, s. 11, Applied:30 May 2002] 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) [Section 18 Subsection (5) substituted by No. 2 of 2002, s. 11, Applied:30 May 2002] 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) [Section 18 Subsection (6) inserted by No. 2 of 2002, s. 11, Applied:30 May 2002] 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) [Section 18 Subsection (7) inserted by No. 2 of 2002, s. 11, Applied:30 May 2002] 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.
18A. Disclosure of summons or notice, &c., may be prohibited
[Section 18A Inserted by No. 79 of 1995, s. 13 ](1) The member issuing a summons under section 17 or a notice under section 18 must, or may, as provided in subsection (2) , include in it a notation to the effect that disclosure of information about the summons or notice, or any official matter connected with it, is prohibited except in the circumstances, if any, specified in the notation.(2) A notation must not be included in the summons or notice except as follows:(a) the member must include the notation if satisfied that failure to do so would reasonably be expected to prejudice –(i) the safety or reputation of a person; or(ii) the fair trial of a person who has been or may be charged with an offence; or(iii) the effectiveness of an investigation;(b) the member may include the notation if satisfied that failure to do so might prejudice –(i) the safety or reputation of a person; or(ii) the fair trial of a person who has been or may be charged with an offence; or(iii) the effectiveness of an investigation;(c) the member may include the notation if satisfied that failure to do so might otherwise be contrary to the public interest.(3) If a notation is included in the summons or notice, it must be accompanied by a written statement setting out the rights and obligations conferred or imposed by section 18B on the person who was served with, or otherwise given, the summons or notice.(4) If, after the Authority has concluded the investigation concerned –all the notations that were included under this section in any summonses or notices relating to the investigation are cancelled by this subsection.(a) no evidence of an offence has been obtained as described in section 6 (1) ; or(b) evidence of an offence or offences has been assembled and given as required by section 6 (1) and the Authority has been advised that no person will be prosecuted; or(c) evidence of an offence or offences committed by only one person has been assembled and given as required by section 6 (1) and criminal proceedings have begun against that person; or(d) evidence of an offence or offences committed by 2 or more persons has been assembled and given as required by section 6 (1) and –(i) criminal proceedings have begun against all those persons; or(ii) criminal proceedings have begun against one or more of those persons and the Authority has been advised that none of the other of those persons will be prosecuted –(5) If a notation is cancelled by subsection (4) , the Authority must serve a written notice of that fact on each person who was served with, or otherwise given, the summons or notice containing the notation.(6) If a notation made under subsection (1) is inconsistent with a direction given under section 16 (9) , the notation has no effect to the extent of the inconsistency.
[Section 18B Inserted by No. 79 of 1995, s. 13 ](1) A person who is served with, or otherwise given, a summons or notice containing a notation made under section 18A must not disclose –(a) the existence of the summons or notice or any information about it; or(b) the existence of, or any information about, any official matter connected with the summons or notice.Penalty: [Section 18B Subsection (1) amended by No. 2 of 2002, s. 12, Applied:30 May 2002] Fine not exceeding 20 penalty units or imprisonment for a term not exceeding one year.(2) Subsection (1) does not prevent the person from making a disclosure –(a) in accordance with the circumstances, if any, specified in the notation; or(b) to a legal practitioner for the purpose of obtaining legal advice or representation relating to the summons, notice or matter; or(c) to a legal aid officer for the purpose of obtaining assistance under section 27 of the Commonwealth Act relating to the summons, notice or matter; or(d) if the person is a body corporate – to an officer or agent of the body corporate for the purpose of ensuring compliance with the summons or notice; or(e) [Section 18B Subsection (2) amended by No. 2 of 2002, s. 12, Applied:30 May 2002] 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.(3) If a disclosure is made to a person as permitted by subsection (2) or (4) , the following provisions apply:(a) while he or she is a person of a kind to whom a disclosure is so permitted to be made, he or she must not disclose the existence of, or any information about, the summons or notice, or any official matter connected with it, except as permitted by subsection (4) ;(b) while he or she is no longer such a person, he or she must not, in any circumstances, make a record of, or disclose the existence of, the summons, notice or matter, or disclose any information about any of them.Penalty: [Section 18B Subsection (3) amended by No. 2 of 2002, s. 12, Applied:30 May 2002] Fine not exceeding 20 penalty units or imprisonment for a term not exceeding one year.(4) A person to whom information has been disclosed, as permitted by subsection (2) or this subsection, may disclose that information –(a) if the person is an officer or agent of a body corporate referred to in subsection (2) (d) –(i) to another officer or agent of the body corporate for the purpose of ensuring compliance with the summons or notice; or(ii) to a legal practitioner for the purpose of obtaining legal advice or representation relating to the summons, notice or matter; or(iii) to a legal aid officer for the purpose of obtaining assistance under section 27 of the Commonwealth Act relating to the summons, notice or matter; or(b) if the person is a legal practitioner – for the purpose of giving legal advice, making representations, or obtaining assistance under section 27 of the Commonwealth Act , relating to the summons, notice or matter; or(c) if the person is a legal aid officer – for the purpose of obtaining legal advice or representation relating to the summons, notice or matter.(5) This section ceases to apply to a summons or notice after –whichever is sooner.(a) the notation contained in the summons or notice is cancelled by section 18A (4) ; or(b) 5 years elapse after the issue of the summons or notice –(6) A reference in this section to disclosing something's existence includes disclosing information from which a person could reasonably be expected to infer its existence.(7) In this section –legal aid officer means –(a) a member, or a member of staff, of a legal aid commission within the meaning of the Commonwealth Legal Aid Act 1977 of the Commonwealth; or(b) a person to whom the Attorney-General of the Commonwealth has delegated his or her powers and functions under section 27 of the Commonwealth Act ;official matter means any of the following (whether past, present or contingent):(a) a reference under section 13 or 14 of the Commonwealth Act ;(b) an investigation conducted or co-ordinated by the Authority;(c) [Section 18B Subsection (7) amended by No. 2 of 2002, s. 12, Applied:30 May 2002] a hearing held by the Authority or a hearing officer;(d) court proceedings.
19. Failure of witnesses to attend and answer questions
(1) [Section 19 Subsection (1) amended by No. 79 of 1995, s. 14 ][Section 19 Subsection (1) amended by No. 2 of 2002, s. 13, Applied:30 May 2002] A person served, as prescribed, with a summons to appear as a witness at a hearing before the Authority or a hearing officer, must not –(a) fail to attend as required by the summons; or(b) [Section 19 Subsection (1) amended by No. 2 of 2002, s. 13, Applied:30 May 2002] fail to attend from day to day unless excused, or released from further attendance, by a member or the hearing officer, as the case may be.(2) [Section 19 Subsection (2) amended by No. 79 of 1995, s. 14 ][Section 19 Subsection (2) amended by No. 2 of 2002, s. 13, Applied:30 May 2002] A person appearing as a witness at a hearing before the Authority or a hearing officer, must not –(a) when required pursuant to section 17 either to take an oath or make an affirmation – refuse or fail to comply with the requirement;(b) [Section 19 Subsection (2) amended by No. 2 of 2002, s. 13, Applied:30 May 2002] refuse or fail to answer a question that the person is required to answer by the member presiding at the hearing or the hearing officer; or(c) refuse or fail to produce a document or thing that the person was required to produce by a summons under this Act served as prescribed.(3) [Section 19 Subsection (3) amended by No. 79 of 1995, s. 14 ][Section 19 Subsection (3) amended by No. 2 of 2002, s. 13, Applied:30 May 2002] Where –the legal practitioner is entitled to refuse to comply with the requirement unless the person to whom or by whom the communication was made agrees to the legal practitioner complying with the requirement but, where the legal practitioner refuses to comply with the requirement, the legal practitioner shall, if so required by the member presiding at the hearing or the hearing officer, furnish to the Authority or the hearing officer the name and address of the person to whom or by whom the communication was made.(a) [Section 19 Subsection (3) amended by No. 2 of 2002, s. 13, Applied:30 May 2002] a legal practitioner is required to answer a question or produce a document at a hearing before the Authority or a hearing officer; and(b) the answer to the question would disclose, or the document contains, a privileged communication made by or to the legal practitioner in the capacity of a legal practitioner –(4) [Section 19 Subsection (4) substituted by No. 2 of 2002, s. 13, Applied:30 May 2002] 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) [Section 19 Subsection (5) substituted by No. 2 of 2002, s. 13, Applied:30 May 2002] 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) [Section 19 Subsection (6) substituted by No. 2 of 2002, s. 13, Applied:30 May 2002] 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) [Section 19 Subsection (7) substituted by No. 2 of 2002, s. 13, Applied:30 May 2002] 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) [Section 19 Subsection (8) substituted by No. 2 of 2002, s. 13, Applied:30 May 2002] 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) [Section 19 Subsection (9) substituted by No. 2 of 2002, s. 13, Applied:30 May 2002] Subsection (3) does not affect the law relating to legal professional privilege.(10) [Section 19 Subsection (10) omitted by No. 2 of 2002, s. 13, Applied:30 May 2002] . . . . . . . .(11) [Section 19 Subsection (11) omitted by No. 2 of 2002, s. 13, Applied:30 May 2002] . . . . . . . .(12) [Section 19 Subsection (12) omitted by No. 2 of 2002, s. 13, Applied:30 May 2002] . . . . . . . .(13) [Section 19 Subsection (13) omitted by No. 2 of 2002, s. 13, Applied:30 May 2002] . . . . . . . .
20. Warrant for arrest of witness
[Section 21 Subsection (2) omitted by No. 11 of 2001, s. 45, Applied:01 Jun 2001] [Section 21 Repealed by No. 2 of 2002, s. 15, Applied:30 May 2002] [Section 22 Repealed by No. 11 of 2001, s. 46, Applied:01 Jun 2001](1) [Section 20 Subsection (1) substituted by No. 79 of 1995, s. 15 ][Section 20 Subsection (1) substituted by No. 11 of 2001, s. 44, Applied:01 Jun 2001] Where, upon application by or on behalf of the Authority, a Judge of the Supreme Court is satisfied by evidence on oath that there are reasonable grounds to believe –the Judge may issue a warrant for the apprehension of the person.(a) [Section 20 Subsection (1) amended by No. 2 of 2002, s. 14, Applied:30 May 2002] that a person who has been ordered, under section 24 of the Commonwealth Act, to deliver the person's passport to the Authority, whether or not the person has complied with the order, is nevertheless likely to leave Australia for the purpose of avoiding giving evidence before the Authority or a hearing officer; or(b) that a person in relation to whom a summons has been issued under section 17 (1) –(i) has absconded or is likely to abscond; or(ii) is otherwise attempting, or is otherwise likely to attempt, to evade service of the summons; or(c) that a person has committed an offence under section 19 (1) or is likely to do so –(2) The warrant may be executed by any member of the Australian Federal Police or of the Police Force of a State or Territory, or by any person to whom it is addressed, and the person executing it has power to break and enter any premises, vessel, aircraft, or vehicle for the purpose of executing it.(2A) [Section 20 Subsection (2A) inserted by No. 79 of 1995, s. 15 ]The warrant may be executed notwithstanding that the warrant is not at the time in the possession of the person executing it.(2B) [Section 20 Subsection (2B) inserted by No. 2 of 2002, s. 14, Applied:30 May 2002] A person executing a warrant under this section may only use such reasonable force as is necessary for the execution.(3) [Section 20 Subsection (3) amended by No. 6 of 1992, s. 4 ][Section 20 Subsection (3) amended by No. 11 of 2001, s. 44, Applied:01 Jun 2001] Where a person is apprehended pursuant to a warrant under this section, the person shall be brought, as soon as practicable, before a Judge of the Supreme Court and the Judge may –(a) [Section 20 Subsection (3) amended by No. 2 of 2002, s. 14, Applied:30 May 2002] admit the person to bail, with such security as the Judge thinks fit, on such conditions as the Judge thinks necessary to ensure the appearance of the person as a witness before the Authority or a hearing officer;(b) order the continued detention of the person for the purpose of ensuring the appearance of the person as such a witness; or(c) order the release of the person.(4) [Section 20 Subsection (4) amended by No. 6 of 1992, s. 4 ][Section 20 Subsection (4) amended by No. 11 of 2001, s. 44, Applied:01 Jun 2001] Where a person is under detention pursuant to this section, the person shall, within 14 days after the person was brought, or last brought, before a Judge of the Supreme Court in accordance with this section, or within such shorter or longer time as a Judge has fixed upon the last previous appearance of the person before a Judge under this section, be again brought before a Judge and the Judge may thereupon exercise any of the powers of a Judge under subsection (3) .(5) In this section, Australia includes the external Territories.
23. False or misleading evidence
(1) [Section 23 Subsection (1) amended by No. 2 of 2002, s. 16, Applied:30 May 2002] A person must not, at a hearing before the Authority or a hearing officer, give evidence that is, to the knowledge of the person, false or misleading in a material particular.(2) [Section 23 Subsection (2) amended by No. 67 of 1994, s. 3 and Sched. 1 ][Section 23 Subsection (2) amended by No. 2 of 2002, s. 16, Applied:30 May 2002] A contravention of subsection (1) is 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) [Section 23 Subsection (4) amended by No. 67 of 1994, s. 3 and Sched. 1 ][Section 23 Subsection (4) amended by No. 2 of 2002, s. 16, Applied:30 May 2002] Where, in accordance with subsection (3) , a court of summary jurisdiction convicts a person of an offence against subsection (1) , the court may impose a fine not exceeding 20 penalty units or imprisonment for a term not exceeding one year.
[Section 24 Amended by No. 79 of 1995, s. 16 ][Section 24 Amended by No. 2 of 2002, s. 17, Applied:30 May 2002] Where it appears to a member or a hearing officer that, by reason of the fact that a person –the safety of the person may be prejudiced or the person may be subjected to intimidation or harassment, the member or the hearing officer, as the case may be, may make such arrangements (including arrangements with the Minister or with members of the Police Force of the State) as are necessary to avoid prejudice to the safety of the person, or to protect the person from intimidation or harassment.(a) [Section 24 Amended by No. 2 of 2002, s. 17, Applied:30 May 2002] is to appear, is appearing, or has appeared at a hearing before the Authority or a hearing officer to give evidence or to produce a document or thing; or(b) [Section 24 Amended by No. 2 of 2002, s. 17, Applied:30 May 2002] proposes to produce or has produced a document or thing to the Authority pursuant to this Act otherwise than at a hearing before the Authority or a hearing officer –
[Section 25 Amended by No. 67 of 1994, s. 3 and Sched. 1 ][Section 25 Amended by No. 79 of 1995, s. 17 ][Section 25 Substituted by No. 2 of 2002, s. 18, Applied:30 May 2002](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.
Where an act or omission by a person is an offence against this Act and is also an offence against the Commonwealth Act , the person may be prosecuted and convicted under this Act in respect of that act or omission notwithstanding that the person has been or is being prosecuted, or has been convicted, in respect of that act or omission under the Commonwealth Act , but nothing in this Act renders a person liable to be punished twice in respect of the same act or omission.
27. Powers of acting members of the Authority
(1) [Section 27 Subsection (1) amended by No. 79 of 1995, s. 18 ][Section 27 Subsection (1) amended by No. 2 of 2002, Sched. 1, Applied:30 May 2002] While a person is acting as Chair, the person has, and may exercise, all the powers, and shall perform all the functions, of the Chair under this Act.(2) While a person is acting as a member, the person has, and may exercise, all the powers, and shall perform all the functions, of a member under this Act.(3) [Section 27 Subsection (3) amended by No. 79 of 1995, s. 18 ][Section 27 Subsection (3) amended by No. 2 of 2002, Sched. 1, Applied:30 May 2002] The validity of anything done by or in relation to a person purporting to act as Chair or as a member shall not be called in question on the ground that the occasion for the appointment of the person had not arisen, that there is a defect or irregularity in or in connection with that appointment, that that appointment had ceased to have effect, or that the occasion for the person to act had not arisen or had passed.
28. Administrative arrangements with Commonwealth
The Minister may make an arrangement with the Commonwealth Minister under which the State will, from time to time as agreed upon under the arrangement, do either or both of the following:(a) make available a person who is the holder of a judicial or other office, or persons who are the holders of judicial or other offices, of the State to hold office as a member or members;(b) make available a person who is an officer or employee of the State or of an authority of the State or a member of the Police Force of the State, or persons who are such officers, employees, or members, to perform services for the Authority.
29. Protection of members, &c.
(1) [Section 29 Subsection (1) amended by No. 79 of 1995, s. 19 ][Section 29 Subsection (1) amended by No. 2 of 2002, s. 19, Applied:30 May 2002] A member or a hearing officer has, in the performance of functions, or the exercise of powers, as a member or a hearing officer in relation to a hearing before the Authority or the hearing officer, the same protection and immunity as a Justice of the High Court.(2) [Section 29 Subsection (2) amended by No. 2 of 2002, s. 19, Applied:30 May 2002] A legal practitioner assisting the Authority or a hearing officer or representing a person at a hearing before the Authority or a hearing officer has the same protection and immunity as a barrister has in appearing for a party in proceedings in the High Court.(3) [Section 29 Subsection (3) amended by No. 2 of 2002, s. 19, Applied:30 May 2002] Subject to this Act, a person summoned to attend or appearing before the Authority or a hearing officer as a witness has the same protection as a witness in proceedings in the High Court.
30. Appointment of Judge as member not to affect tenure, &c.
(1) [Section 30 Subsection (1) amended by No. 79 of 1995, s. 20 ]The appointment of the holder of a judicial office as a member, or service by the holder of a judicial office as a member, does not affect the holder's tenure of that judicial office or the holder's rank, title, status, precedence, salary, annual or other allowances, or other rights or privileges as the holder of that judicial office and, for all purposes, the holder's service as a member shall be taken to be service as the holder of that judicial office.(2) In this section, judicial office means –(a) an office of Judge of the Supreme Court; or(b) an office the holder of which has, by virtue of holding that office, the same status as a Judge of the Supreme Court.
(1) [Section 31 Subsection (1) amended by No. 79 of 1995, s. 21 ]This section applies to –(a) a member of the Authority; and(b) [Section 31 Subsection (1) amended by No. 2 of 2002, s. 20, Applied:30 May 2002] a member of the staff of the Authority; and(c) [Section 31 Subsection (1) amended by No. 2 of 2002, s. 20, Applied:30 May 2002] a hearing officer.(2) [Section 31 Subsection (2) amended by No. 67 of 1994, s. 3 and Sched. 1 ][Section 31 Subsection (2) amended by No. 2 of 2002, s. 20, Applied:30 May 2002] A person to whom this section applies who, either directly or indirectly, except for the purposes of a relevant Act or otherwise in connection with the performance of the person's functions under a relevant Act, and either while the person is or after the person ceases to be a person to whom this section applies –being information acquired by the person by reason of, or in the course of, the performance of functions under this Act, is guilty of an offence and is liable on summary conviction to a fine not exceeding 50 penalty units or imprisonment for a term not exceeding one year, or both.(a) makes a record of any information; or(b) divulges or communicates to any person any information –(3) [Section 31 Subsection (3) amended by No. 2 of 2002, s. 20, Applied:30 May 2002] A person to whom this section applies shall not be required to produce in any court any document that has come into the person's custody or control in the course of, or by reason of, the performance of functions under this Act, or to divulge or communicate to a court a matter or thing that has come to the person's notice in the performance of functions under this Act, except where the Authority, or a member or acting member in the member's or acting member's official capacity or a hearing officer in the hearing officer's official capacity, is a party to the relevant proceedings or it is necessary to do so –(a) for the purpose of carrying into effect the provisions of a relevant Act; or(b) for the purposes of a prosecution instituted as a result of an investigation carried out by the Authority in the performance of its functions.(4) In this section –court includes any tribunal, authority, or person having power to require the production of documents or the answering of questions;produce includes permit access to, and production has a corresponding meaning;relevant Act means the Commonwealth Act , this Act, or any corresponding Act of another State.
32. Report to be laid before Parliament
The Minister shall cause a copy of –to be laid before each House of Parliament within 15 sitting days of that House after the report is received by the Minister.(a) each annual report of the Authority that is received by the Minister; and(b) any comments made on the report by the Inter-Governmental Committee, being comments that accompanied the report –
The Governor may make regulations for the purposes of this Act.
Section 6 of this Act, as amended by section 5 of the National Crime Authority (State Provisions) Amendment Act 1995 , applies to investigations started before the commencement of section 5 of that Act as well as to investigations started after that commencement.
34. Transitional provisions consequent on enactment of National Crime Authority (State Provisions) Amendment Act 2002
[Section 34 Repealed by No. 22 of 1989, s. 4 ][Section 34 Inserted by No. 2 of 2002, s. 21, Applied:30 May 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 –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.(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 –(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.