House of Representatives

Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Honourable Philip Ruddock MP)

Schedule 6 - Power to obtain information and documents

This Schedule amends the Crimes Act to introduce new powers to permit police to request information from organisations for the purposes of investigating terrorism and other serious offences.

Crimes Act 1914

Item 1

New Division 4B - Power to obtain information and documents

This item inserts a new Division 4B into Part IAA of the Crimes Act 1914 . The new Division provides powers to request information or documents about terrorist acts from operators of aircraft or ships and to obtain documents relating to serious terrorism and non-terrorism offences. The Division is based on models in the Australian Crime Commission Act 2002 and the Proceeds of Crime Act 2002 .

New Subdivision A - Definitions

New Section 3ZQL - Definitions

New section 3ZQL provides definitions for the terms authorised AFP officer and Federal Magistrate .

An authorised AFP officer means the Commissioner or a Deputy Commissioner of the AFP, or a senior executive AFP employee who is a member of the Australian Federal Police and is authorised by the Commissioner in writing.

A Federal Magistrate has the same meaning as in the Federal Magistrates Act 1999 .

New Subdivision B - Power to request information or documents about terrorist acts from operators of aircraft or ships

New section 3ZQM - Power to request information or documents about terrorist acts from operators of aircraft or ships

New subsection 3ZQM(1) provides that new section 3ZQM applies where an authorised AFP officer believes on reasonable grounds that an operator of an aircraft or ship has information or documents that are relevant to a matter that relates to the doing of a terrorist act (whether or not a terrorist act has occurred or will occur). Documents include documents in electronic form. Operator and terrorist act are defined by new subsection 3ZQM(7) to have same meaning as in section 4 of the Customs Act 1901 and section 100.1 of the Criminal Code respectively.

New subsection 3ZQM(2) provides that the authorised AFP officer may ask the operator questions relating to the aircraft or ship, or its cargo, crew, passengers, stores or voyage, that are relevant to the matter, or request the operator to produce documents relating to the aircraft or ship, its cargo, crew, passengers, stores or voyage, that are relevant to the matter and are in the possession or under the control of the operator.

New subsection 3ZQM(3) provides that a person who is asked a question or requested to produce a document under new subsection (2) must answer the question or produce the document as soon as practicable.

New subsection 3ZQM(4) provides that a person commits an offence if the person is an operator of an aircraft or ship and is asked a question or requested to produce a document under new subsection (2) and fails to answer the question or produce the document. An offence against this new subsection is punishable by a maximum fine of 60 penalty units, which under section 4AA of the Crimes Act is equivalent to $6600.

New subsection 3ZQM(5) provides that strict liability applies to the offence under new subsection (4). This means that the prosecution does not need to prove fault for this offence, but that the defence of mistake of fact under section 9.2 of the Criminal Code is available. The use of strict liability is considered appropriate because the requirement to prove fault would undermine the deterrent effect of the offence and there are legitimate grounds for penalising persons lacking 'fault' in respect of the offence.

New subsection 3ZQM(6) creates a defence to the offence under new subsection (4) if the person charged had a reasonable excuse for failing to answer the question or produce the document. What is regarded as a reasonable excuse will depend not only on the circumstances of the individual cases but also the purpose of the provision to which the defence is an exception.

New Subdivision C - Power to obtain documents relating to serious terrorism and non-terrorism offences

New section 3ZQN - Power to obtain documents relating to serious terrorism offences

New section 3ZQN provides the criteria for issuing a notice to a person to produce documents in relation to a serious terrorism offence. Serious terrorism offence is defined in subsection 3C(1) of the Crimes Act , and is explained in relation to item 3 of Schedule 5 above, and includes terrorism offences (other than the association offence against section 102.8 or the new offences in new Divisions 104 and 105 of the Criminal Code ), offences against a State law that have a federal aspect and that have the characteristics of a terrorism offence (other than the association offence against section 102.8 or the new offences in new Divisions 104 and 105), and offences against a Territory law that have the characteristics of a terrorism offence (other than the association offence against section 102.8 or the new offences in new Divisions 104 and 105).

New subsection 3ZQN(1) provides that new section 3ZQN applies where an authorised AFP officer considers on reasonable grounds that a person has documents (including in electronic form) that are relevant to and will assist the investigation of a serious terrorism offence. A person may include a body corporate by virtue of section 22 of the Acts Interpretation Act 1901 .

New subsection 3ZQN(2) provides that the AFP officer may give a written notice to the person requiring the person to produce documents that relate to one or more matters set out in new section 3ZQP, as specified in the notice, and that are in possession or under the control of the person.

New subsection 3ZQN(3) provides that a notice issued under new subsection (2) must specify the name of the person to whom the notice is given, the matters to which the documents to be produced relate and the manner in which and place at which the documents are to be produced. The notice must also state that the person must comply with the notice as soon as practicable and set out the effect of new section 3ZQS, which creates an offence for failure to comply with the notice. In addition, if the notice specifies that information about the notice must not be disclosed, the notice must set out the effect of new section 3ZQT, which creates an offence for disclosing the existence or nature of a notice.

New section 3ZQO - Power to obtain documents relating to serious offences

New section 3ZQO provides the criteria for issuing a notice to a person to produce documents in relation to a serious offence. Serious offence (which does not include serious terrorism offences) is defined in subsection 3C(1) of the Crimes Act , and is explained in relation to item 2 of Schedule 5 above.

New subsection 3ZQO(1) provides that an authorised AFP officer may apply to a Federal Magistrate for a notice in respect of a person if the officer considers on reasonable grounds that the person has documents that are relevant to and will assist the investigation of a serious offence. Documents include documents in electronic form.

New subsection 3ZQO(2) provides that if the Magistrate is satisfied on the balance of probabilities that a person has documents that are relevant to and will assist the investigation of a serious offence, the Magistrate may issue a written notice to the person to produce documents that relate to one or more of the matters set out in new section 3ZQP, as specified in the notice, and that are in the possession or under the control of the person. The test differs from the test required to issue a notice for a terrorism offence in recognition of the fact that a magistrate is independently coming to the decision, based on sworn or affirmed evidence, to issue a notice for an offence not related to terrorism.

New subsection 3ZQO(3) provides that the Magistrate must not give the notice unless the authorised AFP officer or another person has given the Magistrate, either orally or by affidavit, such further information (if any) as is required by the Magistrate concerning the grounds on which the issue of the notice is being sought. This provision permits the Magistrate to make such further enquiries as he or she sees fit before giving a notice.

New subsection 3ZQO(4) provides that the notice must set out the same matters as are required by a notice issued under new subsection 3ZQN(3) as and described above.

New section 3ZQP - Matters to which documents must relate

New section 3ZQP sets out the matters which a document to be produced under a notice issued under sections 3ZQN or 3ZQO must relate. The document must relate to determining one or more of the following matters:

(a)

whether an account is held by a specified person with a specified financial institution, and details relating to the account and of any related accounts;

(b)

whether a specified person is a signatory to an account with a specified financial institute, and details relating to the account and of any related accounts;

(c)

whether a transaction has been conducted by a specified financial institution on behalf of a specified person and details relating to the transaction (including details relating to other parties to the transaction);

(d)

whether a specified person travelled or will travel between specified dates or locations and details relating to the travel (including details relating to other persons travelling with the specified person);

(e)

whether assets have been transferred to or from a specified person between specified dates, and details relating to the transfers (including details relating to the names of any other person to or from whom the assets were transferred);

(f)

whether an account is held by a specified person in respect of a specified utility (such as gas, water or electricity) and details relating to the account (including the names of any other persons who also hold the account);

(g)

who holds an account in respect of a specified utility (such as gas, water or electricity) at a specified place, and details relating to the account;

(h)

whether a telephone account is held by a specified person and details relating to the account, including details of calls made to or from the relevant phone number, the times at which the calls were made or received, the duration of such calls or the telephone numbers to and from which such calls were made and received;

(i)

who holds a specified telephone account and details relating to that account (including specific details mentioned in paragraph (h) above);

(j)

whether a specified person resides at a specified place; and

(k)

who resides at a specified place.

Care has been taken to ensure sensitive material can not be obtained under the new notice to produce regime. Sensitive material held by health professionals, lawyers, counsellors and journalists is clearly not caught by the regime. Such sensitive material might be able to be obtained for the purposes of an investigation through a search warrant.

New Section 3ZQQ - Powers conferred on Federal Magistrates in their personal capacity

New subsection 3ZQQ(1) provides that a power conferred on a Federal Magistrate by new section 3ZQO is conferred on the Magistrate in a personal capacity and not as a court or a member of a court.

New subsection 3ZQQ(2) provides that a Federal Magistrate need not accept the power conferred.

New subsection 3ZQQ(3) provides that a Federal Magistrate exercising the same power conferred by new section 3ZQO has the same protection and immunity as if he or she were exercising that power as, or as a member of, the court of which the Magistrate is a member.

New Section 3ZQR - Documents must be produced

New section 3ZQR provides that documents requested under a notice given under either new section 3ZQN or 3ZQO must be produced, but provides certain protections to people required to produce documents.

New subsection 3ZQR(1) provides that a person is not excused from producing a document under new section 3ZQN or 3ZQO on the grounds that disclosure may contravene any other law, tend to incriminate or expose the person to a penalty or other liability, disclose material that is protected against disclosure by a duty of confidence or would be otherwise contrary to the public interest. This provision effectively ensures that the power to request documents under this new Division supersedes all other laws.

However, new subsection 3ZQR(2) provides an immunity to ensure that self-incriminatory disclosures cannot be used against the person who makes the disclosure, either directly in court or indirectly, to gather other evidence against the person. The only exception to this immunity relates to proceedings relating to offences against section 137.1, 137.2 or 149.1 of the Criminal Code , which relate to the provision of false or misleading information and documents, and obstructing Commonwealth public officials.

This provision is not intended to prevent the information from being used against a third party, such as an employer, partner or accomplice.

New subsection 3ZQR(3) provides that a person is not liable to any penalty by reason of his or her producing a document when required to do so under new section 3ZQN or 3ZQO. This includes both criminal and civil penalties.

New subsection 3ZQR(4) protects claims of legal professional privilege that anyone may make in relation to documents that must be produced under the notice.

New section 3ZQS - Offence for failure to comply with notice under section 3ZQN or 3ZQO

New section 3ZQS creates an offence for a person who is given a notice under new section 3ZQN or 3ZQO to fail to comply with that notice. This offence is punishable by a maximum fine of 30 penalty units which under section 4AA of the Crimes Act is equivalent to $3300.

This penalty is consistent with similar provisions requiring the production of information such as section 218 of the Proceeds of Crime Act 2002 for the production of financial information and section 306H of the Migration Act 1958 for the production of certain documents held by migration agents.

New section 3ZQT - Offence for disclosing existence or nature of notice

New subsection 3ZQT(1) creates an offence for a person who is given a notice under new section 3ZQN or 3ZQO to disclose the existence or nature of the notice, if the notice specifies that information about the notice must not be disclosed. This offence is punishable by a fine of 120 penalty units, which under section 4AA of the Crimes Act is equivalent to $13200, or imprisonment for 2 years, or both.

New subsection 3ZQT(2) provides that the offence does not apply where the person discloses the information to another person in order to obtain a document required by the notice and that other person is directed not to inform the person to whom the document relates, where the disclosure is made to obtain legal advice or legal representation in relation to the notice, or where the disclosure is made for the purposes of, or in the course of, legal proceedings.

The note to new subsection (2) indicates that the person bears the evidential burden of proof in relation to the matters set out in new subsection (2), in accordance with subsection 13.3(3) of the Criminal Code .