Crimes Legislation Amendment (Serious and Organised Crime) Act (No. 2) 2010 (4 of 2010)

Schedule 7   Amendments relating to the Australian Crime Commission

Part 1   Main amendments

Australian Crime Commission Act 2002

18   After section 34

Insert:

34A Contempt of the ACC

A person is in contempt of the ACC if he or she:

(a) when appearing as a witness at an examination before an examiner:

(i) refuses or fails to take an oath or affirmation when required to do so under section 28; or

(ii) refuses or fails to answer a question that he or she is required to answer by the examiner; or

(iii) refuses or fails to produce a document or thing that he or she was required to produce by a summons or notice under this Act that was served to him or her as prescribed; or

(b) is a legal practitioner who is required to answer a question or produce a document at an examination before an examiner, and both of the following apply:

(i) the answer to the question would disclose, or the document contains, a privileged communication made by or to the legal practitioner in his or her capacity as a legal practitioner;

(ii) he or she refuses to comply with the requirement and does not, when required by the examiner, give the examiner the name and address of the person to whom or by whom the communication was made; or

(c) gives evidence at an examination before an examiner that he or she knows is false or misleading in a material particular; or

(d) obstructs or hinders an examiner in the performance of his or her functions as an examiner; or

(e) disrupts an examination before an examiner; or

(f) threatens a person present at an examination before an examiner.

34B Federal Court or Supreme Court to deal with contempt

(1) If an examiner is of the opinion that, during an examination before the examiner, a person is in contempt of the ACC, the examiner may apply to either of the following courts for the person to be dealt with in relation to the contempt:

(a) the Federal Court;

(b) the Supreme Court of the State or Territory in which the examination to which the contempt relates is being conducted.

(2) Before making the application, the examiner must inform the person that the examiner proposes to make the application.

(3) The application must be accompanied by a certificate that states:

(a) the grounds for making the application; and

(b) evidence in support of the application.

(4) A copy of the certificate must be given to the person before, or at the same time as, the application is made.

(5) If, after:

(a) considering the matters specified in the certificate; and

(b) hearing or receiving any evidence or statements by or in support of the ACC; and

(c) hearing or receiving any evidence or statements by or in support of the person;

the Court to which the application was made finds that the person was in contempt of the ACC, the Court may deal with the person as if the acts or omissions involved constituted a contempt of that Court.

(6) For the purposes of determining whether a person is in contempt of the ACC under subsection (1), Chapter 2 of the Criminal Code applies as if:

(a) contempt of the ACC were an offence; and

(b) references to a person being criminally responsible for an offence were references to a person being responsible for contempt of the ACC.

34C Conduct of contempt proceedings

(1) This section applies if an application for a person to be dealt with in relation to a contempt of the ACC is made to the Federal Court or to the Supreme Court of a State or Territory under section 34B.

(2) Proceedings in relation to the application are, subject to this Act, to be instituted, carried on, heard and determined in accordance with the laws (including any Rules of Court) that apply in relation to the punishment of a contempt of the Court to which the application was made.

(3) In proceedings in relation to the application, a certificate under subsection 34B(3) is prima facie evidence of the matters specified in the certificate.

34D Person in contempt may be detained

(1) If an examiner proposes to make an application under subsection 34B(1) in respect of a person, he or she may, during the hearing concerned, direct a constable to detain the person for the purpose of bringing the person before the Court to which the application was made for the hearing of the application.

(2) If the person is detained under subsection (1):

(a) the examiner must apply to the Court as soon as practicable under subsection 34B(1) in respect of the person; and

(b) the person must, subject to subsection (3) of this section, be brought before the Court as soon as practicable.

(3) The Court may:

(a) direct that the person be released from detention on condition that he or she will appear before the Court in relation to the application; or

(b) order that the person continue to be detained until the application is determined.

(4) The Court may also impose any other condition on the release, for example:

(a) that the person surrenders his or her passport; or

(b) that the person gives an undertaking as to his or her living arrangements; or

(c) that the person reports as required to a law enforcement agency.

(5) The Court may at any time vary or revoke a condition imposed under subsection (4).

34E Examiner may withdraw contempt application

(1) An examiner may at any time withdraw an application in relation to a person under subsection 34B(1).

(2) If:

(a) the examiner does so; and

(b) the person is in detention under section 34D;

the person must be released from detention immediately.

34F Relationship with section 12

To avoid doubt, evidence relating to an application under subsection 34B(1) is not required to be given to a person or authority under subsection 12(1).