Legal database - View: Extrinsic Materials: Law Enforcement Legislation Amendment (State Bodies and Other Measures) Act 2016 - Revised Explanatory Memorandum

View full document Previous section | Next section

Senate

Law Enforcement Legislation Amendment (State Bodies and Other Measures) Bill 2016

Law Enforcement Legislation Amendment (State Bodies and Other Measures) Act 2016

Revised Explanatory Memorandum

(Circulated by authority of the Minister for Justice, the Hon Michael Keenan MP)

This memorandum takes account of amendments made by the House of Representatives to the bill as introduced and supersedes the explanatory memorandum tabled in the House of Representatives

General Outline

1. This Bill amends the Anti-Money Laundering and Counter-Terrorism Financing Act 2006, Australian Postal Corporation Act 1989, Crimes Act 1914, Criminal Code Act 1995, Privacy Act 1988, Proceeds of Crime Act 2002, Radiocommunications Act 1992, Surveillance Devices Act 2004, Taxation Administration Act 1953 and the Telecommunications (Interception and Access) Act 1979.

2. The Bill contains a range of measures to:

•: support the establishment of the New South Wales (NSW) Law Enforcement Conduct Commission (LECC) and its Inspector
•: align the investigative powers of the Independent Broad-based Anti-corruption Commission of Victoria (IBAC) with those available to other state anti-corruption bodies, and
•: amend the Proceeds of Crime Act 2002 (POC Act) to clarify the definition of 'lawfully acquired' to address the issues raised in Commissioner of the Australian Federal Police v Huang [2016] WASC 5 (Huang).

3. The Bill comprises three schedules.

4. Schedule 1 will amend the Telecommunications (Interception and Access) Act 1979 (TIA Act) to replace references to the NSW Police Integrity Commission (PIC) with the LECC within the definition of eligible authority and criminal law-enforcement agency, and references to the Inspector of the PIC with the Inspector of the LECC within the definition of eligible authority.

5. The LECC will be responsible for the detection, investigation and prevention of law enforcement corruption and misconduct. The Inspector of the LECC will oversee the LECC's operations and the use of covert powers by NSW law enforcement. The LECC will replace the existing PIC and have comparable investigative powers to other anti-corruption bodies in Australia.

6. The inclusion of the LECC within the definition of eligible authority will allow the Attorney-General to declare it to be an 'interception agency' if the respective State legislation meets the requirements in section 35 of the TIA Act. Under that section, the Attorney-General may only make such a declaration if satisfied that State legislation sets out minimum recordkeeping requirements and establishes an independent oversight regime. The State must also have entered into an agreement to pay all expenses connected with the issue of warrants to the agency. A declaration that an agency is an 'interception agency' enables defined officers of that agency to apply to an independent issuing authority for a warrant to intercept communications to assist in the investigation of serious offences. Serious offences are generally offences punishable by at least seven years' imprisonment.

7. In response to the 2015 Tink Review of Police Oversight, the NSW Government announced the establishment of a single law enforcement oversight body, the LECC. The LECC will consolidate the functions of the PIC, the police oversight functions of the NSW Ombudsman and the oversight functions of the Inspector of the [NSW] Crime Commission. The LECC will be responsible for identifying and investigating instances of misconduct and maladministration in the NSW Police Force and NSW Crime Commission.

8. During investigations involving police officers, administrative employees of the NSW Police Force and officers of the NSW Crime Commission, the LECC's investigative jurisdiction will be limited to instances of 'serious misconduct' or 'officer maladministration' that is 'serious maladministration'. The term 'serious misconduct' relates to matters involving a serious indictable offence or serious disciplinary action against an officer or employee, corruption or systemic misconduct and maladministration. The term 'serious maladministration' includes conduct of a serious nature that is unreasonable, unjust, oppressive, improperly discriminatory or arises wholly or in part from improper motives. The PIC's current jurisdiction involves all police misconduct and not just conduct of a serious nature.

9. The Inspector of the LECC will monitor the LECC's compliance with NSW legislation, investigate complaints against the LECC and its officers and undertake audit functions relating to the use of covert powers by NSW law enforcement, including the inspection of records required to be maintained under Commonwealth legislation. The Bill will enable the Inspector of the LECC to receive lawfully intercepted information from interception agencies in order to carry out its oversight function.

10. The Bill will also amend a number of Commonwealth Acts to replace references to the PIC with the LECC in order to align the LECC's investigative powers with other anti-corruption bodies across Australia.

11. Schedule 2 will amend a number of Commonwealth Acts to allow the IBAC to access information from Commonwealth agencies that relates to its investigations. Schedule 2 will also extend defences for certain Commonwealth telecommunications offences to the IBAC. The powers provided under this Bill to the IBAC are pursuant to the IBAC's role in identifying and investigating corruption in public administration in Victoria and are the same as those available to the Independent Commission Against Corruption (NSW), the Crime and Corruption Commission (Queensland), and the Independent Commissioner Against Corruption (South Australia).

12. Schedule 3 will amend section 336A of the POC Act to clarify that property or wealth is not to be considered 'lawfully acquired' where it has been subject to a security or liability that has been wholly or partly discharged using property that is not 'lawfully acquired'.

13. The Supreme Court of Western Australia in Huang held that it could not consider the source of funds used to satisfy a mortgage over a residential property in determining whether this property was 'lawfully acquired', despite the possibility that unlawfully acquired funds had been used to make mortgage repayments. The Court was therefore bound to exclude the residential property from forfeiture.

14. The interpretation of the meaning of 'lawfully acquired' in the Huang decision is contrary to the intended meaning and to the objects of the POC Act - which is to deprive people of the proceeds of offences, of unexplained wealth amounts, and to undermine the profitability of criminal enterprises.

15. Criminals regularly use asset-protection structures to hide or disguise proceeds of crime, including using a range of mortgages, loans, and other agreements to achieve this purpose. The amendments will clarify that, where illegitimate funds are used to discharge a legitimately-obtained security (such as a mortgage), property or wealth obtained using this security is not considered 'lawfully acquired' under section 336A of the POC Act.

Financial Impact

16. The Bill will have no financial impact.

ACRONYMS

Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) - AML-CTF Act

Australian Transaction Reports and Analysis Centre - AUSTRAC

Crimes Act 1914 (Cth) - Crimes Act

Independent Broad-based Anti-corruption Commission of Victoria - IBAC

International Covenant on Civil and Political Rights - ICCPR

Law Enforcement Conduct Commission Act 2016 (NSW) - LECC Act

Law Enforcement Conduct Commission of New South Wales - LECC

New South Wales - NSW

Police Integrity Commission of New South Wales - PIC

Privacy Act 1988 (Cth) - Privacy Act

Proceeds of Crime Act 2002 (Cth) - POC Act

Surveillance Devices Act 2004 (Cth) - SD Act

Telecommunications (Interception and Access) Act 1979 (Cth) - TIA Act

The [Commonwealth] Criminal Code - Criminal Code

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Law Enforcement Legislation Amendment (State Bodies and Other Measures) Bill 2016

17. The Bill is compatible with the human rights and freedoms recognised or declared in the international instructions listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act. To the extent that the measures in the Bill may limit those rights and freedoms, such limitations are reasonable, necessary and proportionate in achieving the intended outcomes of the Bill.

Overview of the Bill

18. The Bill amends the following Commonwealth Acts:

•: Anti-Money Laundering and Counter-Terrorism Financing Act 2006
•: Australian Postal Corporation Act 1989
•: Crimes Act 1914
•: Criminal Code Act 1995
•: Privacy Act 1988
•: Proceeds of Crime Act 2002
•: Radiocommunications Act 1992
•: Surveillance Devices Act 2004
•: Taxation Administration Act 1953
•: Telecommunications (Interception and Access) Act 1979

State anti-corruption bodies

19. The Bill contains a range of measures to support the law enforcement functions of two state anti-corruption bodies.

NSW Law Enforcement Conduct Commission

20. The Bill replaces references to the PIC with references to the LECC in Commonwealth legislation.

21. The PIC is a statutory law enforcement body responsible for detecting, investigating and preventing police misconduct. The creation of the LECC will establish a single law enforcement body responsible for the oversight of NSW Police Force and NSW Crime Commission complaint investigations, as well as investigating matters relating to misconduct and maladministration in law enforcement.

22. The amendments will:

•

allow the LECC to be declared as an interception agency under the TIA Act and include it in the definition of criminal law-enforcement agency for the purposes of section 110A of the TIA Act. A declaration as an interception agency and inclusion as a criminal law-enforcement agency will enable officers of the LECC to:

•: apply for interception warrants to assist in the investigation of serious offences, generally defined as offences punishable by at least seven years' imprisonment
•: issue preservation notices in order to preserve communications where a stored communications warrant will be sought
•: apply for stored communications warrants to assist in the investigation of serious contraventions, generally defined as offences punishable by at least three years' imprisonment, and
•: seek access to telecommunications data where reasonably necessary for the enforcement of the criminal law, a law imposing a pecuniary penalty or for the protection of the public revenue

•

allow the LECC to apply for Commonwealth surveillance device warrants through the SD Act for investigations into offences punishable by a maximum term of imprisonment of at least three years

•

replace the PIC with the LECC as a State or Territory law enforcement agency under subsection 3ZQU(7) of the Crimes Act so that it may receive information or documents produced to or seized by a constable or Commonwealth officer under Part IAA of that Act. Part IAA relates to the search, information gathering and arrest powers of the police under the Crimes Act

•

replace the PIC with the LECC as a State or Territory law enforcement agency under section 3ZZAC of the Crimes Act so an eligible officer of an eligible agency or a Commonwealth officer is permitted to make a thing seized under Part IAAA of the Act available to the LECC (Part IAAA relates to delayed notification search warrants undertaken by the Australian Federal Police)

•

replace the PIC's legislation with the LECC's legislation in the definition of relevant person under section 20BZ of the Crimes Act to enable the LECC to give, receive or disclose relevant information regarding federal offenders

•

replace relevant positions within the PIC with relevant positions within the LECC as law enforcement officers under section 473.1 of the Criminal Code so that LECC officers may utilise protections relating to the use of telecommunications facilities

•

replace the PIC with the LECC in the definition of designated agency at section 5 of the AML-CTF Act so that it can continue to access AUSTRAC information to support its role in fulfilling the former functions of the PIC as the independent body responsible for detecting, investigating and exposing misconduct and maladministration within the NSW Police Force and NSW Crime Commission

•

replace the PIC with the LECC in the definition of enforcement body under section 6 of the Privacy Act so that it may receive information in compliance with the Australian Privacy Principles

•

replace the PIC with the LECC as a body under subsection 27(1) of the Radiocommunications Act 1992 in relation to which an exemption from parts of that Act may be determined from any or all of the requirements for the possession and operation of radiocommunications devices to be authorised by a licence, from standards and other technical regulation applying to a broader range of devices and from offences relating to radio emissions, and

•

replace the PIC with the LECC as an law enforcement agency under sections 355-70(4) of the Taxation Administration Act 1953 so that it may receive information under that Act as a law enforcement agency.

Victorian Independent Broad-based Anti-corruption Commission

23. The Bill will provide officers of the IBAC the ability to apply for Commonwealth surveillance device warrants and ensure they are able to lawfully receive information from Australia Post employees for the purposes of their investigations.

24. The amendments will also allow officers of the IBAC who act in good faith and in the course of their duties to have access to protections relating to the use of telecommunications facilities.

25. The powers provided to the LECC and the IBAC are consistent with powers available to other state anti-corruption bodies under Commonwealth legislation. These powers will grant the LECC and IBAC access to the information and protections necessary for the performance of their functions, enabling them to effectively investigate corruption and misconduct, handle inquiries into state law enforcement bodies, and (in the case of the IBAC) public bodies.

Personal property

26. The Bill will also amend the POC Act to clarify that property or wealth will only be considered 'lawfully acquired' under section 336A where property (if any) used to discharge a security or liability with respect to this property or wealth has also been 'lawfully acquired'.

27. Further detail about the measures in the Bill and their human rights implications are provided below.

Human rights implications

28. The human rights engaged by the Bill are those set out in Articles 2(3), 14(2)-(7), 15 and 17 of the ICCPR. The Bill engages the following human rights:

Article 2(3) - Right to an effective remedy

29. Article 2(3) of the ICCPR protects the right to an effective remedy for any violation of rights or freedoms recognised by the ICCPR, including the right to have such a remedy determined by competent judicial, administrative or legislative authorities or by any other competent authority provided for by the legal system of the state. The right to an effective remedy applies notwithstanding that a violation has been committed by persons acting in an official capacity.

State anti-corruption bodies

30. The right to an effective remedy applies in relation to violations of other ICCPR rights and freedoms. By allowing the LECC to obtain:

•: interception warrants
•: stored communications warrants, and
•: authorise the disclosure of telecommunications data

and both the LECC and the IBAC to obtain:

•: Commonwealth surveillance device warrants

the Bill indirectly creates a risk that a person's right to protection against arbitrary and unlawful interferences with privacy under Article 17 of the ICCPR may be violated where information is obtained under a warrant or authorisation in a manner that is unlawful.

31. The Bill engages the right to an effective remedy by providing that:

•: the LECC remains subject to the existing oversight mechanisms and remedial avenues afforded under the TIA Act, such as the civil remedies under Parts 2-10 and 3-7; and
•: the LECC and the IBAC are afforded criminal and civil immunity for conduct that could otherwise found a criminal charge.

32. The SD Act protects this right by ensuring the Commonwealth Ombudsman has robust oversight powers enabling it to compel authorised agencies and individuals to answer questions and provide information. A person may face imprisonment of up to two years if they use, record, communicate or publish protected information outside the purposes permitted in the SD Act.

33. Criminal and civil immunity is limited to conduct under section 20 of the SD Act where any act done in the proper execution of the warrant before an officer is made aware of a revocation. Not providing this immunity would impair LECC and IBAC willingness and effectiveness in the performance of their statutory functions and their capabilities.

Articles 14(2)-(7) and 15 - Minimum guarantees in criminal proceedings

34. Articles 14(2) to (7) and Article 15 of the ICCPR provide minimum guarantees which apply to criminal proceedings only.

Prohibition against retrospective punishment

35. Article 15 of the ICCPR prohibits the retrospective operation of criminal laws. Under Item 2 of Schedule 3 of the Bill, amendments to the definition of 'lawfully acquired' apply in relation to property acquired before or after the commencement of Schedule 3. As the orders under the POC Act are civil in character, the amendments in the Bill do not engage the prohibition against retrospective punishment.

Article 17 - Privacy

36. Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with their privacy, family, home or correspondence, nor to unlawful attacks on their honour or reputation, and that everyone has the right to the protection of the law against such interference or attacks. Privacy may be subject to permissible limitations, where the limitations are authorised by law and are not arbitrary.

37. The term 'unlawful' means no interference can take place except in cases authorised by law. What is 'arbitrary' will be determined by circumstances of each case. In order for an interference with the right to privacy not to be arbitrary, the interference must be for a reason consistent with the provisions, aims and objectives of the ICCPR and be reasonable in particular circumstances. The United Nations Human Rights Committee has interpreted reasonableness in this context to imply that any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case.

38. The measures in the Bill are designed to achieve the legitimate objective of providing effective frameworks to identify, investigate and punish corruption and to protect public order through enforcing the law.

Law Enforcement Conduct Commission

Replacement of eligible authorities

39. The Bill would replace the PIC and Inspector of the PIC with the LECC and the Inspector of the LECC as eligible authorities under the TIA Act and therefore allow them to receive existing telecommunications interception information. The Attorney-General may then declare the LECC to be an interception agency, subject to meeting requirements outlined in section 35 of the TIA Act. Once declared as an interception agency, the LECC would be eligible to apply for warrants to intercept a person's private communications in certain circumstances. However, such interception will not be unlawful as it will be authorised by law under the TIA Act. Consistent with powers for other state oversight bodies the Inspector of the LECC will not be declared an interception agency.

40. The Bill would also make the LECC a criminal law-enforcement agency under the TIA Act, allowing it to apply for a warrant to issue preservation notices to assist in accessing stored communication and authorise the disclosure of telecommunications data subject to meeting the thresholds contained within the TIA Act.

41. The exercise of powers by the LECC under the TIA Act will not be arbitrary within the meaning of Article 17. Interception of telecommunications and access to stored communications may only occur subject to a warrant issued by a nominated independent issuing authority, namely a Judge or member of the Administrative Appeals Tribunal. Similarly, authorisations for telecommunications data must be consistent with an authorised officer's responsibilities under the TIA Act.

42. Before an issuing authority may issue a warrant they must be satisfied that, amongst other things:

•: the application for an interception warrant is to assist in the investigation of a serious offence in the case of interception warrants, or a serious contravention in the case of stored communication warrants, and
•: the interception of or access to a person's communications is appropriate in the circumstances.

43. Authorised officers must be satisfied that the disclosure of telecommunications data is reasonably necessary for the enforcement of the criminal law, protection of the public revenue or for the enforcement of a law imposing a pecuniary penalty and that any interference with the privacy of any person is justifiable and proportionate.

44. When deciding whether a warrant should be issued the issuing authority must have regard to several factors, including:

•: the privacy impacts of the interception
•: the gravity of the offence, and
•: the likely usefulness of the information to the relevant investigation.

45. Authorised officers are required to consider these same factors before making an authorisation.

46. Accordingly, the measures adopted will serve the legitimate purpose of the investigation and prosecution of serious misconduct and corruption. The measures will be proportionate and reasonable to this end.

47. A primary function of the LECC under the LECC Act is to identify and investigate misconduct, corruption and maladministration in law enforcement. The measures in the Bill are necessary to grant LECC powers and protections under Commonwealth law to perform its functions under NSW legislation, in a manner consistent with other state anti-corruption bodies in Australia. The LECC will be able to access information under Commonwealth law relevant to its investigative functions, including:

•: taxpayer information from the Australian Taxation Office
•: information obtained by constables or Commonwealth officers under the Crimes Act 1914 which may be relevant to preventing, investigating or prosecuting an offence against a law of a state or territory, and
•: information obtained through surveillance device warrants issued under the SD Act.

48. The LECC will be also able to rely on defences under Commonwealth law for necessary conduct committed in accordance with a lawful investigation, in particular the LECC will be included as:

•: a law enforcement body under section 473.1 of the Criminal Code to ensure that officers of the LECC do not commit telecommunications offences under the Criminal Code when performing functions ancillary to conduct under an interception warrant or when utilising telecommunications facilities in accordance with their functions
•: an exempted law enforcement body for the use of unlicensed radio telecommunications devices, certain standards for these devices and offences relating to radio emissions, and
•: an enforcement body within the Privacy Act so that it may receive information in compliance with the Australian Privacy Principles.

49. By giving the LECC access to information in the exercise of its statutory function, the measures will enable effective investigation of allegations of corruption, misconduct or maladministration in the NSW Police Force and NSW Crime Commission and accordingly assist in enforcement of the law.

Use and communication of information

50. The LECC's access to personal information will be restricted to investigations involving misconduct and maladministration by law enforcement personnel consistent with its role under NSW legislation. The LECC's legislation provides safeguards to ensure that information it obtains is only used in the course of administering its duties. The LECC Act provides that information acquired by relevant persons in connection with the LECC's functions is confidential and can only be used in accordance with that person's duties under the legislation. Unauthorised disclosure of information held by the LECC carries a term of imprisonment of 12 months or a fine of $5,500.

51. The TIA Act prohibits the use and disclosure of information obtained under a warrant, subject to certain exceptions. The Bill would allow the LECC and the Inspector of the LECC to use and communicate information obtained under telecommunications interception warrants to support their investigations and prosecutions. The Bill would also allow the LECC and its Inspector to communicate intercepted information to another interception agency for the investigation of a relevant offence or other limited purposes.

52. Similar restrictions exist for the use and disclosure of information obtained under the SD Act. The lifecycle of protected information is strictly controlled under the Act and the unlawful use, recording, communication or publication of protected information carries a penalty of up to 2 years imprisonment.

53. Use and communication of information obtained by the LECC will not be arbitrary, as it will serve the legitimate purpose of the investigation of corruption, misconduct and maladministration in NSW law enforcement and is subject to detailed provisions in the TIA Act and SD Act.

54. The activities of the LECC will be subject to oversight by the Inspector of the LECC which, as an eligible authority, will be able to deal with intercepted information under the TIA Act to assist in its oversight functions (although subject to similar restrictions on use and disclosure).

Record-keeping and Reporting

55. The LECC will be subject to the existing record-keeping and reporting obligations as section 35 of the TIA Act requires that these obligations be satisfied prior to a declaration by the Attorney-General that an eligible authority be an interception agency. These include requiring regular inspection of records to ensure compliance with the TIA Act as well as regular reporting to the responsible Minister. Agencies must also report annually to the Attorney-General on the effectiveness of warrants.

Independent Broad-based Anti-corruption Commission

56. Allowing the IBAC to access information from Australia Post and to apply for surveillance device warrants engages the right to privacy as the IBAC will be able to access personal information (for example, via a surveillance device warrant, which can authorise the use of an optical surveillance or listening device) for the purposes of an investigation.

57. The measures are necessary to grant the IBAC powers and protections under Commonwealth law to perform its statutory functions in a manner consistent with other State anti-corruption bodies in Australia. The amendments will enable the IBAC to:

•: access information or documents from current and former employees of Australia Post
•: apply to an independent issuing authority for surveillance device warrants under the SD Act to investigate state offences with a federal aspect attracting a maximum penalty of at least three years, and
•: ensure that officers of the IBAC do not commit telecommunications offences under the Criminal Code when performing functions ancillary to conduct under an interception warrant or when utilising telecommunications facilities in accordance with their functions.

58. The Independent Broad-based Anti-corruption Commission Act 2011 (Vic) states that the IBAC's statutory functions include investigating corrupt conduct and educating the community about the adverse effects of corruption on proper administration and public order. The IBAC will only be able to access a person's information for the purpose of investigating serious corruption and misconduct in public administration consistent with its statutory functions.

59. The IBAC's legislation provides safeguards to ensure that information it obtains is only used in the course of administering its duties. Specifically, section 40 of the Independent Broad-based Anti-corruption Commission Act 2011 (Vic) provides that any information disclosed to the IBAC is confidential and can be only be used in the course of its duties. Unauthorised disclosure of information held by the IBAC carries a maximum penalty of $18,650 (as of September 2016) or 12 months imprisonment, or both.

60. In addition, any conduct occurring under a surveillance device warrant is subject to the independent oversight of the Commonwealth Ombudsman. The Ombudsman will be responsible for inspecting the records of the IBAC to ensure compliance with the statutory requirements of the SD Act. Any report of the Commonwealth Ombudsman is tabled in Parliament.

Interference with personal property

61. The Bill makes amendments to the POC Act to remedy deficiencies which could permit property purchased with a legal mortgage, and later discharged using funds that were not 'lawfully acquired', to be excluded from a forfeiture order (section 94) or subject to a transfer order (section 102). These amendments will also clarify that a proceeds of crime authority may obtain a preliminary unexplained wealth order (section 179B) or an unexplained wealth restraining order (section 20A) over wealth or property that is obtained by funnelling unlawfully obtained funds through seemingly legitimate legal structures, such as loans or securities.

62. These amendments therefore interact broadly with the right to protection from interference with a person's property. However, these amendments are necessary to ensure that criminals are not able to maintain ownership over property or wealth that is obtained, either directly or indirectly, using proceeds of crime. These amendments are necessary to clarify that a court should explore the origins of the funds used to obtain property or wealth in determining whether this property or wealth is 'lawfully acquired' for the purposes of the Act.

63. The Act also contains a range of safeguards and procedures to ensure that these measures are no more onerous than necessary in achieving this objective.

64. Where property is restrained under an unexplained wealth restraining order, courts have a general discretion under sections 24 and 24A to allow the following to be met out of property covered by a restraining order:

•: reasonable living expenses of any of the dependants of a person whose property is the subject of a restraining order
•: reasonable living expenses of the person whose property is restrained
•: reasonable business expenses of that person, and
•: specified debts incurred in good faith by that person.

65. Courts also have a general discretion to order that a specified amount be paid to a person's dependants, if satisfied that an order would cause hardship to these dependants.

66. Where an innocent third party's property is subject to orders affected by the amendments in the Bill, the right to protection from interference with personal property will be engaged but not limited, as the Act does not preclude the third party from seeking compensation for the loss of their property. A third party with interest in property may also seek to have this property excluded from the scope of an unexplained wealth restraining order.

67. The Bill interacts broadly with the right to privacy but, to the extent that it engages this human right obligation, it is reasonable, necessary, proportionate and not arbitrary or unlawful in achieving its objectives.

Conclusion

68. The amendments are reasonable, necessary and proportionate measures to achieve the legitimate objectives of countering corruption and combating serious and organised crime.

Conclusion

69. The Bill is compatible with human rights because it promotes a number of human rights and to the extent that it may also limit human rights, those limitations are reasonable, necessary and proportionate in promoting accountability in law enforcement, identifying, investigating and punishing corruption, serious criminal behaviour and protecting public order through enforcing the law, as well as in combating serious and organised crime by undermining the profitability of criminal enterprises.

Notes on Clauses

Preliminary

Clause 1 - Short title

70. This clause provides for the short title of the Act to be the Law Enforcement Legislation Amendment (State Bodies and Other Measures) Act 2016.

Clause 2 - Commencement

71. Clause 2 provides for when the various parts of the Bill are to commence. The commencement provisions vary to account for the abolition of the PIC and the establishment of the LECC in NSW legislation.

72. The LECC Act establishes the LECC as a corporate entity with powers for complaint handling or investigation. Schedule 4 of that Act repeals the Police Integrity Commission Act 1996 (NSW) and the regulations under it, abolishing the PIC.

73. Until the PIC's abolition the PIC and LECC will co-exist as corporate entities. To enable the transfer of information between the bodies, Schedule 1, Part 1 and Part 6 of this Act are taken to commence on the day after the Act receives Royal Assent or on the day Part 3 of the LECC Act commences, whichever is later.

74. Schedule 1, Parts 2 - 5 are taken to commence on the day after the Act receives Royal Assent or on the day section 51 of the LECC Act commences, whichever is later. This will ensure that the LECC will have access to powers at Commonwealth law at the time the LECC is established and is able to undertake investigate functions on that date.

75. Schedules 2 and 3 are taken to commence on the day after this Act receives Royal Assent.

76. Sections 1 to 3 and all items that are not covered elsewhere by the table within Clause 2 are taken to commence on the day the Act receives Royal Assent.

77. Clause 2 ensures that if the LECC Act is not enacted Schedule 1 of this Bill will not commence.

Clause 3 - Schedules

78. Clause 3 provides that each Act that is specified in a Schedule is amended or repealed as set out in the relevant Schedule, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1 - Law Enforcement Conduct Commission of New South Wales

79. Schedule 1 amends a number of Commonwealth Acts so as to allow the LECC to access information from certain Commonwealth agencies, rely on defences for certain Commonwealth telecommunications offences and apply for specific warrants. The powers provided in this Bill to the LECC are the same as those currently available to the PIC, the police oversight body the LECC is replacing. These same powers are also available to the Independent Commission Against Corruption (New South Wales), the Independent Commissioner Against Corruption (South Australia), the Crime and Corruption Commission (Queensland) and the Corruption and Crime Commission (Western Australia). The amendments will:

•: replace the PIC with the LECC as an eligible authority for the purposes of section 5 of the TIA Act enabling it to be declared as an interception agency and subsequently apply for interception warrants
•: replace the PIC with the LECC as a criminal law-enforcement agency for the purposes of 110A of the TIA Act , enabling it to the apply for stored communications warrants and authorise disclosures of telecommunications data
•: amend the definition of permitted purpose in section 5 of TIA Act to enable the LECC to deal with intercepted material in line with its investigative functions
•: allow the LECC to apply for Commonwealth surveillance device warrants through the SD Act for investigations into offences punishable by a maximum term of imprisonment of at least 3 years
•: make associated amendments to the TIA Act to ensure the LECC has access to the necessary powers to replace the PIC upon its abolition
•: replace the PIC with the LECC as a State or Territory law enforcement agency under subsection 3ZQU(7) of the Crimes Act 1914 so that it may receive information or documents produced to or seized by a constable or Commonwealth officer under Part 1AA of that Act. Part 1AA relates to the search, information gathering and arrest powers of the police under the Crimes Act
•: replace the PIC with the LECC as a State or Territory law enforcement agency under section 3ZZAC of the Crimes Act 1914 so that eligible officers of an eligible agency or a Commonwealth officer are permitted to make a thing seized under Part 1AAA of the Act available to the LECC, Part 1AAA relates to delayed notification search warrants undertaken by the Australian Federal Police
•: replace the PIC's legislation with the LECC's legislation in the definition of relevant person under section 20BZ of the Crimes Act 1914 to enable the LECC to give, receive or disclose relevant information regarding federal offenders
•: replace relevant positions within the PIC with relevant positions within the LECC as law enforcement officers under section 473.1 of the Criminal Code Act 1995 so that LECC officers may utilise protections relating to the use of telecommunications facilities
•: replace the PIC with the LECC in the definition of designated agency at section 5 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 so that it can continue to access AUSTRAC information to support its role in fulfilling the former functions of the PIC as the independent body responsible for detecting, investigating and exposing misconduct and maladministration within the NSW Police Force and NSW Crime Commission
•: replace the PIC with the LECC in the definition of enforcement body under section 6 of the Privacy Act 1988 so that it may receive information in compliance with the Australian Privacy Principles
•: replace the PIC with the LECC as a body under subsection 27(1) of the Radiocommunications Act 1992 in relation to which an exemption from parts of that Act may be determined from any or all of the requirements for the possession and operation of radiocommunications devices to be authorised by a licence, from standards and other technical regulation applying to a broader range of devices and from offences relating to radio emissions, and
•: replace the PIC with the LECC as a law enforcement agency under subsection 355-70(4) of the Taxation Administration Act 1953 so that it may receive information under that Act as a law enforcement agency.

Part 1 - Definitions

Item 1 - Definitions

80. Item 1 notes the definitions adopted by the Act. A reference to 'new Commission' is taken to be a reference to the Law Enforcement Conduct Commission of New South Wales. A reference to 'old Commission' is taken to be a reference to the Police Integrity Commission of New South Wales.

Part 2 - Telecommunications (Interception and Access) Act 1979

Division 1- Amendments

Item 2 - Subsection 5(1) (paragraph (g) of the definition of certifying officer)

81. The definition of 'certifying officer' in subsection 5(1) of the TIA Act refers to both a designated officeholder who is authorised under the TIA Act to perform certain functions and persons who are authorised in writing by that designated officeholder to perform certain functions on their behalf.

82. Item 2 will amend paragraph (g) in the definition of 'certifying officer' to replace references to the PIC, Commissioner of the PIC, Assistant Commissioner of the PIC with references to the LECC, Chief Commissioner of the LECC and Commissioner for Integrity of the LECC.

83. Amendments to section 5AC(8) of the TIA Act will also enable the Chief Commissioner of the LECC to authorise a person who occupies a senior position within the LECC to be a certifying officer of the LECC.

Item 3 - Subsection 5(1) (after paragraphs (h) and (ha) of the definition of chief officer)

84. The definition of 'chief officer' in subsection 5(1) of the TIA Act refers to the designated office holder of an agency, an eligible Commonwealth authority or an eligible authority of a State who has certain functions under the TIA Act in relation to that agency or authority.

85. Item 3 will amend paragraph (h) and (ha) in the definitions of 'chief officer' to replace references to the PIC, Commissioner of the PIC and Inspector of the PIC with the references to the LECC, Chief Commissioner of the LECC and Inspector of the LECC.

Item 4 - Subsection 5(1) (after paragraph (b) of the definition of eligible authority)

86. Item 4 will amend 5(1) to replace the PIC with the LECC as an 'eligible authority'. Item 4 will also amend 5(1) to replace the Inspector of the PIC with the Inspector of the LECC as an 'eligible authority'.

87. Replacing the PIC with the LECC as an 'eligible authority' within the TIA Act will allow the Attorney-General to declare by legislative instrument the LECC to be an interception agency if satisfied that the LECC's state legislation meets the requirements in section 35 of the TIA Act. Under section 35 of the TIA Act, state legislation must set out minimum recordkeeping requirements and establish an independent oversight regime. The state must also have entered into an agreement to pay all expenses connected with the issue of warrants to the agency.

Items 5, 6, 7, 8, 9, 10 - Subsection 5(1)

88. Items 5 - 10 will repeal the definitions of 'member of staff of the Police Integrity Commission', 'Inspector of the Police Integrity Commission' and 'member of Staff of the Inspector of the Police Integrity Commission' and insert definitions for 'Inspector of the Law Enforcement Conduct Commission', 'Law Enforcement Conduct Commission', 'member of the staff of the Inspector of the Law Enforcement Conduct Commission' and 'member of staff of the Law Enforcement Conduct Commission' to account for the abolition of the PIC and its Inspector and the establishment of the LECC and its Inspector.

Item 11 - Subsection 5(1) (paragraphs (h) and (ha) of the definition of officer)

89. The definition of 'officer' in subsection 5(1) of the TIA Act refers to the designated officeholder of an agency, an eligible Commonwealth authority or an eligible authority of a State who has specific functions under the TIA Act in relation to that agency or authority. For instance 'officers' are able to receive certain communications from carriers in relation to warrants and communicate lawfully intercepted information for a permitted purpose.

90. Item 11 replaces references to the PIC within the definition of 'officer' with references to the LECC to define an officer of the LECC for the purposes of the TIA Act. LECC officers include the Chief Commissioner of the Commission, the Commissioner for Integrity of the Commission, an Assistant Commissioner of the Commission and a member of staff of the Commission.

91. Item 11 replaces references to the Inspector of the PIC with the Inspector of the LECC within the definition of 'officer' to define officer for the LECC for the purposes of the TIA Act. Officers for the Inspector of the LECC include the Inspector, an Assistant Inspector and a member of staff of the Inspector.

Item 12 - Subsection 5(1) (paragraph (dc) of the definition of permitted purpose)

92. The definition of 'permitted purpose' in subsection 5(1) of the TIA Act refers to the circumstances in which an eligible Commonwealth or State authority can communicate, use or make a record of lawfully intercepted information or interception warrant information under the TIA Act. The circumstances include the functions of each eligible authority as set out in their governing legislation.

93. Items 12 will repeal the current definitions of 'permitted purpose' as it relates to the Inspector of the PIC, inserting provisions relevant to the Inspector of the LECC. This amendment will permit the Inspector to communicate, make use or make a record of lawfully intercepted information or interception warrant information for a purpose connected with conduct amounting to officer misconduct and officer maladministration on the part of officers of the LECC (within the meaning of section 122 of the LECC Act) or agency maladministration on the part of the LECC.

94. Officer misconduct can involve a criminal offence, corrupt conduct or a disciplinary infringement. Officer maladministration includes conduct that is unreasonable, unjust, oppressive or improperly discriminatory in its effect or arises, wholly or in part, from improper motives. Agency maladministration (as defined in new subsection 5(6A) inserted by item 19) in relation to the LECC has the same meaning as it has in the LECC Act in relation to the NSW Police Force or the NSW Crime Commission and includes conduct that is unreasonable, unjust, oppressive or improperly discriminatory in its effect or arises, wholly or in part, from improper motives.

Items 13, 14 and 15 - Subsection 5(1) (paragraph (e) of the definition of permitted purpose and at the end of section 5)

95. The definition of 'permitted purpose' in subsection 5(1) of the TIA Act refers to the circumstances in which an eligible Commonwealth or State authority can communicate, use or make a record of lawfully intercepted information or interception warrant information under the TIA Act. The circumstances include the functions of each eligible authority as set out in their governing legislation.

96. Item 13 will repeal the current definitions of 'permitted purpose' as it relates to the PIC and item 14 will insert provisions relating to the LECC. This amendment will permit the LECC to communicate, use or make a record of lawfully intercepted information or interception warrant information for investigations relating to serious misconduct or serious maladministration (within the meaning of the LECC Act) on the part of police officers and administrative employees of the NSW Police Force, or NSW Crime Commission officers, as well as by a report resulting from an investigation. When an investigation involves senior officers of the NSW Police Force and NSW Crime Commission, such as the Commissioner of either organisation, the threshold for handling this information is lowered to investigations into conduct amounting to misconduct and maladministration that may not meet the criteria of serious misconduct or serious maladministration.

97. The LECC will be able to communicate, use or make a record of lawfully intercepted information or interception warrant information for conduct that both Houses of the Parliament of NSW refer to the Commission for investigation under section 196 of the LECC Act.

98. Item 15 will remove references to obsolete subparagraphs relating to the PIC.

99. The existing PIC can currently investigate all police misconduct, Crime Commission officer misconduct and administrative officer corrupt conduct.

Item 16 - Subsection 5(1)

100. Item 16 will repeal the definition of 'Police Integrity Commission' and 'Police Integrity Commission Act' to account for the abolition of the PIC.

Item 17 - Subsection 5(1) (paragraphs (f) and (fa) of the definition of prescribed investigation)

101. Item 17 repeals existing paragraphs (f) and (fa) within the definition of 'prescribed investigation' in subsection 5(1) of the TIA Act. These paragraphs refer to investigations that the Police Integrity Commission or its Inspector is conducting in the performance of their functions. Item 17 then substitutes new paragraphs referring to investigations that the LECC or its Inspector is conducting in the performance of their functions under the LECC Act.

102. The definition of 'prescribed investigation' is used in several places in the Act:

•: the definition of 'relevant offence', in subsection 5(1) of the Act;
•: the meaning of 'investigation of an offence', in section 6A of the Act; and
•: the meaning of 'relevant proceeding', in section 6L of the Act.

103. This item ensures that the above definitions apply to investigations conducted by the LECC or its Inspector in the performance of their functions under the LECC Act.

Item 18 - Subsection 5(1) (paragraphs (h) and (ha) of the definition of relevant offence)

104. The definition of 'relevant offence' in subsection 5(1) of the TIA Act refers to the offences for which the chief officer of an agency can communicate information obtained by the agency to an eligible authority under section 68 of the TIA Act.

105. Item 18 substitutes references to the PIC and the Inspector of the PIC in paragraphs (h) and (ha) within the definition of 'relevant offence' with references to the LECC and its Inspector to ensure that the LECC can disclose or receive existing information that relates, or appears to relate, to the commission of a relevant offence.

Item 19 - At the end of section 5

106. Item 19 will insert further provisions into section 5 relevant to the definition of 'permitted purpose' as it relates to the LECC.

107. The definition of 'permitted purpose' in subsection 5(1) of the TIA Act refers to the circumstances in which an eligible Commonwealth or State authority can communicate, use or make a record of lawfully intercepted information or interception warrant information under the TIA Act. The circumstances include the functions of each eligible authority as set out in their governing legislation

108. Items 13, 14 and 15 repeal the current definitions of 'permitted purpose' as it relates to the PIC and insert provisions that relate to the LECC.

109. Item 19 inserts a new definition of 'agency maladministration', as it relates to the LECC, into section 5 of TIA Act to enable the Inspector of LECC to communicate, use or make a record of lawfully intercepted information or interception warrant information to deal with agency maladministration on the part of the LECC. 'Agency maladministration' in relation to the LECC has the same meaning as it has in the LECC Act in relation to the NSW Police Force or the NSW Crime Commission. It includes conduct that is unlawful, unreasonable, unjust, oppressive or improperly discriminatory in its effect or arises, wholly or in part, from improper motives.

110. Item 19 will also permit the LECC to communicate, use or make a record of lawfully intercepted information or interception warrant information for investigations relating to serious misconduct or serious maladministration (within the meaning of the LECC Act) on the part of police officers and administrative employees of the NSW Police Force, or NSW Crime Commission officers, as well as by a report resulting from an investigation. When an investigation involves senior officers of the NSW Police Force and NSW Crime Commission, such as the Commissioner of either organisation, the threshold for handling this information is lowered to investigations into conduct amounting to misconduct and maladministration that may not meet the criteria of serious misconduct or serious maladministration.

111. The LECC will be able to communicate, use or make a record of lawfully intercepted information or interception warrant information for conduct that both Houses of the Parliament of NSW refer to the Commission for investigation under section 196 of the LECC Act.

112. The existing PIC can currently investigate all police misconduct, Crime Commission officer misconduct and administrative officer corrupt conduct.

Items 20 and 21 - Subsection 5AC(5), (6) and (8)

113. Section 5AC of the TIA Act expressly confers powers on designated officers to authorise other persons to act on their behalf as a 'certifying officer' for the purposes of the TIA Act. Among other functions, certifying officers may certify warrants for evidentiary purposes and issue evidentiary certificates establishing facts regarding the execution of a Part 2-5 warrant.

114. Item 20 replaces references to now repealed Public Sector Employment and Management Act 2002 (NSW) with references to the Government Sector Employment Act 2013 (NSW) to determine the class of senior executive that may be authorised as a certifying officer.

115. Item 21 substitutes references to the PIC and staff of the PIC with references to the Chief Commissioner of the LECC and staff of the LECC to ensure that the Chief Commissioner of the LECC may authorise, in writing, an Assistant Commissioner of the Commission or a member of the staff of the LECC who occupies an office or position at an equivalent level to that of an senior executive officer within the meaning of the Government Sector Employment Act 2013 (NSW) to be certifying officers of the LECC for the purposes of the TIA Act.

Item 22 - Paragraphs 5B(1)(k) and (ka)

116. Under section 74 of the TIA Act, a person may give lawfully intercepted information (other than foreign intelligence information) in evidence in an exempt proceeding. Subsection 5B(1) of the TIA Act defines 'exempt proceeding'.

117. Item 22 substitutes references to the PIC and its Inspector with references to the LECC and its Inspector in paragraphs 5B(1)(k) and (ka) within the definition of 'exempt proceeding' to include proceedings of the LECC and its Inspector.

118. Proceedings of the LECC are consistent with the existing proceedings of the PIC and include hearings or examinations in relation to conduct that the Commissioners of the LECC have decided is (or could be) serious misconduct or serious maladministration.

Item 23 - Subparagraphs 6A(1)(c)(vi) and (vii)

119. Subsection 6A(1) of the TIA Act defines the meaning of an 'investigation of an offence'.

120. Item 23 repeals the definition as it relates to the PIC and its Inspector and substitutes into the definition of an 'investigation of an offence' references to the LECC and its Inspector.

Item 24 - Paragraph 6L(2)(b)

121. Subsection 6L(2) of the TIA Act defines the meaning of 'relevant proceeding'.

122. Item 24 replaces references to the PIC and its Inspector in paragraph 6L(2)(b) with references to the LECC and the Inspector of the LECC. A relevant proceeding is a reference to a proceeding by way of prosecution for a prescribed offence that is an offence against a law of NSW and to which a prescribed investigation relates or related.

Item 25 - Paragraph 39(2)(g)

123. Subsection 39(2) lists the classes of persons within an agency who are eligible to make an interception warrant application on behalf of the agency.

124. Item 25 substitutes references to the PIC in paragraph 39(2)(g) with references to the LECC to provide that the Chief Commissioner, Integrity Commissioner, an Assistant Commissioner or a member of staff of the LECC (within the meaning of the LECC Act) are eligible to make an interception warrant application on behalf of the LECC.

Items 26 and 27 - Paragraph 68(f) and 68(fa)

125. Section 68 of the TIA Act provides that a chief officer of an agency may communicate lawfully intercepted information that was obtained by that agency or interception warrant information in prescribed circumstances.

126. Items 26 and 27 substitutes references to the PIC and its Inspector in paragraphs 68(f) and 68(fa) with references to the LECC and its Inspector. This will enable the chief officer of an agency to communicate to the LECC and its Inspector lawfully intercepted information that was originally obtained by the originating agency or interception warrant information if the information relates, or appears to, relate to a matter that may give rise to an investigation by the LECC or its Inspector.

Item 28 - Subsection 110A (Paragraph 110A(1)(h))

127. Item 28 will amend section 110A to replace the PIC with the LECC as a 'criminal law- enforcement agency'.

128. Replacing the PIC with the LECC as a 'criminal law-enforcement agency' will enable the LECC to apply for stored communications warrants, issue preservation notices and make authorisations for telecommunications data consistently with the approach for the PIC and other criminal law-enforcement agencies.

Division 2 - Transitional provisions

Item 29 - Warrants issued to old Commission

129. Item 29 provides that a warrant issued to the PIC under the TIA Act before the commencement of this item, that was in force immediately before the commencement of this item, will remain in force (and may be dealt with) on and after the commencement of this provision as if it had been issued to the LECC. This ensures that a warrant issued to the PIC remains valid notwithstanding the abolition of the PIC under NSW legislation.

130. This provision applies to interception warrants, stored communication warrants and journalist information warrants.

Item 30 - Authorisations made by old Commission

131. Item 30 provides that an authorisation made by an authorised officer of the PIC under Division 4 of Part 4-1 of the TIA Act before the commencement of this item, that was in force immediately before the commencement of this item, will remain in force (and may be dealt with) on and after the commencement of this provision as if it had been made by an authorised officer of the LECC. This ensures that an authorisation issued by the PIC remains valid notwithstanding the abolition of the PIC under NSW legislation.

Item 31 - Evidentiary certificates for actions of officers etc. of old Commission

132. Item 31 provides that an evidentiary certificate issued by a certifying officer of the PIC under sections 61, 130 or 185C of the TIA Act before the commencement of this item, that was in force immediately before the commencement of this item, will remain in force (and may be dealt with) on and after the commencement of this provision as if it had been issued by a certifying officer of the LECC. This ensures that evidentiary certificates issued by the PIC remain valid notwithstanding the abolition of the PIC under NSW legislation.

Item 32 - Evidentiary certificates for warrants issued to old Commission

133. Item 32 provides that the Managing Director or secretary, or an authorised employee, of a carrier, or a body corporate of which the carrier is a subsidiary, may issue a written evidentiary certificate under sections 61 or 129 of the TIA Act, after the commencement of this item, in relation to acts or things done, before that commencement, to enable the execution of a warrant issued to the PIC before that commencement. Such an evidentiary certificate may be dealt with as if it had been issued in relation to a warrant issued to the LECC.

Item 33 - Evidentiary certificates for authorisations made by old Commission

134. Item 33 provides that the Managing Director or secretary, or an authorised employee, of a carrier, or a body corporate of which the carrier is a subsidiary, may issue a written evidentiary certificate under section 185A of the TIA Act, after the commencement of this item, in relation to acts or things done, before that commencement, to enable the disclosure of information or documents covered by an authorisation made by the PIC under Division 4 of Part 4-1 of the TIA Act before that commencement. Such an evidentiary certificate may be dealt with as if it had been issued in relation to an authorisation issued to the LECC.

Item 34 - Preservation notices issued by old Commission

135. Item 34 provides that a domestic preservation notice for the preservation of stored communications, issued by the PIC under the TIA Act before the commencement of this item, that was in force immediately before commencement continues to be in force (and may be dealt with) on and after that commencement as if it had been issued by the LECC. This ensures that a preservation notice issued by the PIC remains valid notwithstanding the abolition of the PIC under NSW legislation.

Item 35 - Evidentiary certificates for preservation notices relating to actions of officers etc. of old Commission

136. Item 35 provides that an evidentiary certificate issued by a certifying official of the PIC under section 107U of the TIA Act before the commencement of this item, that was in force immediately before the commencement of this item, will remain in force (and may be dealt with) on and after the commencement of this provision as if it had been issued by a certifying official of the LECC. This ensures that an evidentiary certificate issued by the PIC remains valid notwithstanding the abolition of the PIC under NSW legislation.

Item 36 - Evidentiary certificates for preservation notices issued by old Commission

137. Item 36 provides that the Managing Director or secretary, or an authorised employee, of a carrier, or a body corporate of which the carrier is a subsidiary, may issue a written evidentiary certificate under section 107T of the TIA Act, after the commencement of this item, in relation to acts or things done, before that commencement, to enable compliance with a preservation notice issued by the PIC before that commencement. Such an evidentiary certificate may be dealt with as if it had been issued in order to comply with a preservation notice issued by the LECC.

Part 3 - Surveillance Devices Act 2004

Division 1 - Amendments

Item 37 - Subsection 6A(7) (table item 20)

138. Item 37 will populate Columns 1-4 in the table within subsection 6A(7) with the relevant references to the LECC and LECC office holders, replacing the references to the PIC and PIC office holders. These amendments will ensure the LECC is considered a 'state and territory law enforcement agency' for the purposes of the Act, allowing its officers to apply for Commonwealth surveillance device warrants when undertaking investigations into relevant offences. Relevant offences are generally defined as offenses punishable by at least 3 years imprisonment and have a federal aspect.

139. The item will include the LECC as a 'law enforcement agency'. The inclusion of the LECC in this table will ensure that officers of the LECC are able to apply for Commonwealth surveillance device warrants.

140. The item will include the Chief Commissioner of the LECC as the 'chief officer' of the LECC for the purposes of the SD Act. Under the SD Act, the Chief Officer is able to undertake particular functions, such as nominating a particular officer within the LECC who is able to execute a surveillance devices warrant in defined circumstances or revoke a surveillance devices warrant.

141. The item will include officers of the LECC as a 'law enforcement officer' for the purposes of the SD Act. The inclusion of LECC officers in this provision will enable these officers to apply to obtain warrants, and use the powers available under the SD Act.

142. The item will include the Chief Commissioner, the Commissioner for Integrity, and Assistant Commissioner or an executive level member of the staff of the LECC who the chief officer authorises as an 'appropriate authorising officer' for the purposes of the SD Act. Under the SD Act, appropriate authorising officers can perform functions such as making emergency authorisations or authorising the use of a tracking device without a warrant in limited circumstances. For example, where the agency is investigating a federal offence, where it may assist in the location and safe recovery of a child to whom a recovery order relates and where the use of the tracking device will not involve entry onto premises without permission or interference with the interior of a vehicle without permission.

143. Given the roles of 'appropriate authorising officers' under the SD Act, it is necessarily restricted to the most senior roles within the LECC.

Item 38 - Paragraph 6A(8)(a)

144. Item 38 will repeal references to the Public Sector Employment and Management Act 2002 (NSW), which has been repealed, and replace it with the current relevant legislation the Government Sector Employment Act 2013 (NSW). This Act will define what constitutes an executive level person for the purposes of an 'appropriate authorising officer'.

Division 2 - Transitional provisions

Item 39 - Warrants issued to old Commission

145. Item 39 provides that a warrant issued to the PIC under the SD Act before the commencement of this item, that was in force immediately before the commencement of this item, will remain in force (and may be dealt with) on and after the commencement of this provision as if it had been issued to the LECC. This ensures that a warrant issued to the PIC remains valid notwithstanding the abolition of the PIC under NSW legislation.

Item 40 - Authorisations made by old Commission

146. Item 40 provides that an emergency authorisation or tracking device authorisation made by an appropriate authorising officer the PIC before the commencement of this item, that was in force immediately before the commencement of this item, will remain in force (and may be dealt with) on and after the commencement of this provision as if it had been made by an appropriate authorising officer of the LECC. This ensures that an authorisation issued by the PIC remains valid notwithstanding the abolition of the PIC under NSW legislation.

Item 41 - Evidentiary certificates for actions of law enforcement officer etc. of old Commission

147. Item 41 provides that an evidentiary certificate issued by an appropriate authorising officer under section 62 of the SD Act before the commencement of this item, that was in force immediately before the commencement of this item, will remain in force (and may be dealt with) on and after the commencement of this provision as if it had been issued by an appropriate authorising officer of the LECC. This ensures that an evidentiary certificate issued by the PIC remains valid notwithstanding the abolition of the PIC under NSW legislation.

Part 4 - Other amendments

Anti-Money Laundering and Counter-Terrorism Financing Act 2006

Items 42 and 43 - Paragraph (s) at section 5

148. Item 42 will amend the definition of 'designated agency' at section 5 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 to replace the PIC with the LECC as a designated agency so that it can continue to access AUSTRAC information to support its role in fulfilling the former functions of the PIC as the independent body responsible for detecting, investigating and exposing misconduct and maladministration within the NSW Police Force and Crime Commission.

149. Item 43 is a non-amending application provision that will ensure the LECCs power inserted by item 42 applies in relation to disclosures of, and access to, information after this item commences, whether the information was obtained before, on or after that commencement.

Crimes Act 1914

Item 44 - Subsection 3ZQU(7) (paragraph (d) of the definition of State or Territory law enforcement agency)

150. Item 44 will substitute references to the PIC with references to the LECC in the definition of State or Territory law enforcement agency under subsection 3ZQU(7). This will allow the LECC to receive the original or a copy of a document produced or seized by a constable or Commonwealth officer under Part 1AA of the Crimes Act for the same purposes as the Commonwealth may use the document under section 3ZQU. It would also permit the LECC to use the document for the prevention, investigation or prosecution of an offence against NSW law, proceedings under a corresponding law or for forfeiture proceedings. Part 1AA relates to the search, information gathering and arrest powers of the police under the Crimes Act 1914.

Item 45 - Subsection 3ZZAC (paragraph (d) of the definition of State or Territory law enforcement agency)

151. Item 45 will substitute references to the PIC with references to the LECC in the definition of State or Territory law enforcement agency under subsection 3ZZAC. Section 3ZZAE authorises eligible officers of an eligible agency or a Commonwealth officer to make a thing seized under Part 1AAA of the Crimes Act 1914 available to a state and territory law enforcement agency. This amendment will allow the eligible officers to share the thing with the LECC. Part 1AAA relates to delayed notification search warrants undertaken by the Australian Federal Police

Items 46 - Section 20BZ (subparagraph (c)(iv) of the definition of relevant person)

152. Item 46 will substitute references to the Police Integrity Commission Act 1996 (NSW) with references to the LECC Act in the definition of relevant person under section 20BZ of the Crimes Act 1914. This amendment will enable a person who exercises powers under, or performs functions or duties in connection with, the LECC Act to be required to give relevant information to an authorised officer regarding federal offenders and allow authorised officers to disclose this information to the LECC.

Item 47 - Application of amendments

153. Item 47 is a is a non-amending application provision that will ensure the LECC power inserted by items 44 and 45 apply in relation to a thing seized before, on or after that commencement or a an original or copy of a document produced before, on or after that commencement.

154. Item 47 also ensures the LECC power inserted by item 46 applies in relation to giving or disclosing, on or after the commencement of this item, information acquired before, on or after that commencement.

Criminal Code Act 1995

Item 48 - Section 473.1 (paragraph (i) of the definition of law enforcement officer)

155. Item 48 will amend paragraph (i) in the definition of 'law enforcement officer' at section 473.1 of the Criminal Code to replace references to the Commissioner of the PIC, Assistant Commissioner of the PIC and member of staff of the PIC with references to the Chief Commissioner of the LECC, Commissioner for Integrity of the LECC and member of staff of the LECC respectively.

156. This will allow defined LECC 'law enforcement officers' to have access to protections relating to the use of telecommunications facilities consistently with the PIC and other state anti-corruption bodies.

Privacy Act 1988

Items 49 and 50 - Subsection 6(1) (paragraph (k) of the definition of enforcement body)

157. Item 49 will amend paragraph (k) in the definition of 'enforcement body' at section 6(1) of the Privacy Act 1988 to replace references to the PIC with the LECC so that the LECC may receive information in compliance with the Australian Privacy Principles, consistently with the approach for the PIC and other State anti-corruption bodies.

158. Item 50 is a is a non-amending application provision that will ensure the LECC power inserted by item 49 applies in relation to disclosing, giving access to or using information on or after the commencement of this item, of information acquired before, on or after that commencement.

Radiocommunications Act 1992

Item 51 - Paragraphs 27(1)(bd)

159. Item 51 will amend paragraph 27(1)(bd) of the Radiocommunications Act 1992 to replace the PIC with the LECC as a body in relation to which the Australian Communications and Media Authority may determine an exemption from certain provisions of that Act.

160. A determination, if made, may allow persons performing functions or duties in relation to the LECC to be exempt from any or all of the requirements for the possession and operation of radiocommunications devices to be authorised by a licence, from standards and other technical regulation applying to a broader range of devices, including prohibition of certain devices, and from offences relating to radio emissions, mainly relating to causing interference, disruption or disturbance to radiocommunications.

Taxation Administration Act 1953

Item 52 - Paragraph 355-70(4)(h) in Schedule 1

161. Item 52 will amend paragraph 355-70(4)(h) in the definition of 'law enforcement agency' at Schedule 1 of the Taxation Administration Act 1953 to replace references to the PIC with the LECC so that it may receive taxation information relating to its investigations. This is consistent with the approach taken for other state anti-corruption bodies.

Item 53 - Application of amendments

162. Item 53 is an application provision. It clarifies that item 52 applies to any discloses made or information acquired by the PIC under the Taxation Administration Act 1953 on or after the commencement of this item, regardless of whether the information was acquired before that date.

Part 5 - General transitional provisions

Item 54 - Things done by, or in relation to, the old Commission

163. Item 54 provides that any done by, or in relation to the persons in column 1 of the below table before the commencement of this item has effect at and after the commencement of this item as if it had been done by, or in relation to, the persons in column 2 of that table.

Column 1	Column 2
Police Integrity Commission	the Law Enforcement Conduct Commission
the Commissioner of the Police Integrity Commission	the Chief Commission of the Law Enforcement Conduct Commission
an Assistant Commissioner of the Police Integrity Commission	the Commissioner for Integrity of the Law Enforcement Conduct Commission
a member of the staff of the Police Integrity Commission	an Assistant Commissioner or member of staff of the Law Enforcement Conduct Commission
the Inspector of the Police Integrity Commission	the Inspector of the Law Enforcement Conduct Commission
a member of the staff of the Inspector of the Police Integrity Commission	an Assistant Inspector or member of staff of the Inspector of the Law Enforcement Conduct Commission

164. The purpose of this item is to manage the abolition of the PIC and enable the transition and continuity of relevant powers in a law of the Commonwealth from the PIC to the LECC.

Item 55 - Rules

165. Item 55 provides that the Minister may, by legislative instrument, make rules in relation to things of a transitional nature relating to the amendments or repeals made by this schedule or connected to the abolition of the PIC and the establishment of the LECC.

Part 6 - Information

Item 56 - Information acquired under the Telecommunications (Interception and Access) Act 1979

166. Subitem 56(2) provides that the Commission for the Police Integrity Commission may communicate to the LECC any information acquired by the PIC under the TIA Act which is in the PIC's possession before, on or after the commencement of this item.

167. Information may include:

a): lawfully intercepted information;
b): interception warrant information;
c): lawfully accessed information;
d): preservation notice information
e): stored communications warrant information;
f): information or documents voluntarily disclosed to the old Commission in accordance with section 177 of the Telecommunications (Interception and Access) Act 1979;
g): information or documents disclosed under an authorisation made under Division 3 or 4 of Part 4-1 of that Act.

168. Subitem 56(2) provides that nothing in the TIA Act prevents the Commissioner of the Police Integrity Commission from communicating that information to the LECC, on or after that commencement.

Item 57 - Information acquired under the Surveillance Devices Act 2004

169. Item 57 provides that nothing in the SD Act prevents the Commissioner of the Police Integrity Commission from communicating protected information acquired by the PIC before, on or after the commencement of the item to the LECC on or after commencement.

Item 58 - Things shared under the Crimes Act 1914

170. Subitem 58(2) provides that if, before, on or after the commencement of the item, a thing or a original or copy of a document was made available to the PIC under subsections 3ZQU(5) of the Crimes Act 1914 the PIC may make the thing, original or copy available to the LECC for a purpose mentioned in that subsection.

171. Subitem 58(4) provides that if a thing was made available to the PIC under 3ZZEA(5) of the Crimes Act 1914 the PIC may make the thing available to the LECC for the purpose mentioned in that subsection.

Schedule 2 -Independent Broad-based Anti-corruption Commission

172. Schedule 2 amends the Australian Postal Corporation Act 1989 (APC Act), the Criminal Code Act 1995 (the Criminal Code) and the SD Act to give the Victorian Independent Broad-based Anti-corruption Commission (IBAC) investigative powers consistent with other state anti-corruption bodies. The powers provided in this Bill to the IBAC are consistent with those available to the Independent Commission Against Corruption (New South Wales), the Crime and Corruption Commission (Queensland) and the Independent Commissioner Against Corruption (South Australia).

173. The amendments will ensure that the IBAC has the ability to access information from Australia Post, rely on defences for Commonwealth telecommunications offences when undertaking their investigation functions and the ability to apply for Commonwealth surveillance device warrants when investigating relevant offences. The amendments will:

•: include the Independent Broad-based Anti-corruption Act 2011 in subsections 90J(6) and 90LC(5) as a law under which current and former Australia Post employees are able to disclose information and documents in the course of an investigation . The inclusion of the IBAC in these subsections will enable current and former Australia Post employees to disclose relevant information to officers of the IBAC for the purposes of an investigation.
•: include relevant positions within the IBAC as a 'law enforcement officer' under section 473.1 of the Criminal Code. Inclusion of the IBAC in section 473.1 will ensure officers of the IBAC do not commit telecommunications offences when undertaking their investigatory functions, for example, functions ancillary to an interception warrant or protections relating to the use of telecommunications facilities.
•: include the IBAC as a 'state and territory law enforcement agency' under subsection 6A(7) of the SD Act. The inclusion of the IBAC as a state and territory law enforcement agency will enable officers of the IBAC to apply for Commonwealth surveillance device warrants when investigating matters with a federal aspect.

174. The powers extended to the IBAC are consistent with those available to its state counterparts and are necessary to support investigations into serious corruption and support co-operation between state anti-corruption bodies and the Commonwealth.

Australian Postal Corporation Act 1989

Items 1, 2 and 3 - New paragraphs 90J(6)(ba) and 90LC(5)(ba)

175. New paragraph 90J(6)(ba) will include the Independent Broad-based Anti-corruption Commission Act 2011 (Vic) (IBAC Act) as a law under which current Australia Post employees are able to disclose information and documents in the course of an investigation.

176. New paragraph 90LC(5)(ba) will include the IBAC Act as a law under which former Australian Post employees are able to disclose information or documents in the course of an investigation.

177. The combined effect of items 1 and 2 is to ensure that both current and former Australia Post employees are able to disclose information and documents to officers of the IBAC in the course of their investigations.

178. Item 3 is an application provision. It clarifies that items 1 and 2 apply in relation to disclosing information or a document to the IBAC on or after the commencement of this item, whether the information or document was acquired or received before, on or after that commencement.

Criminal Code 1995

Item 4 - Section 473.1 of the Criminal Code (at the end of the definition of law enforcement officer)

179. Item 4 will include an IBAC officer as defined in the IBAC Act as a 'law enforcement officer'.

180. The inclusion of IBAC officers in section 473.1 will ensure officers of the IBAC do not commit telecommunications offences when undertaking their investigatory functions, for example, functions ancillary to an interception warrant or protections relating to the use of telecommunications facilities. The amendment will allow those officers to avail themselves of protections consistent with other state anti-corruption bodies.

181. Item 37 will populate Columns 1-4 in the table within subsection 6A(7) with the relevant references to the LECC and LECC office holders, replacing the references to the PIC and PIC office holders. These amendments will ensure the LECC is considered a 'state and territory law enforcement agency' for the purposes of the Act, allowing its officers to apply for Commonwealth surveillance device warrants when undertaking investigations into relevant offences. Relevant offences are generally defined as offenses punishable by at least 3 years imprisonment and have a federal aspect.

182. The item will include the LECC as a 'law enforcement agency'. The inclusion of the LECC in this table will ensure that officer of the LECC are able to apply for Commonwealth surveillance device warrants.

183. The item will include the Chief Commissioner of the LECC as the 'chief officer' of the LECC for the purposes of the SD Act. Under the SD Act, the Chief Officer is able to undertake particular functions, such as nominating a particular officer within the LECC who is able to execute a surveillance devices warrant in defined circumstances or revoke a surveillance devices warrant.

184. The item will include officers of the LECC as a 'law enforcement officer' for the purposes of the SD Act. The inclusion of LECC officers in this provision will enable these officers to apply to obtain warrants, and use the powers available under the SD Act.

185. The item will include the Chief Commissioner, the Commissioner for Integrity, and Assistant Commissioner or an executive level member of the staff of the LECC who the chief officer authorises as an 'appropriate authorising officer' for the purposes of the SD Act. Under the SD Act, appropriate authorising officers can perform functions such as making emergency authorisations or authorising the use of a tracking device without a warrant in limited circumstances. For example, where the agency is investigating a federal offence, where it may assist in the location and safe recovery of a child to whom a recovery order relates and where the use of the tracking device will not involve entry onto premises without permission or interference with the interior of a vehicle without permission.

186. Given the roles of 'appropriate authorising officers' under the SD Act, it is necessarily restricted to the most senior roles within the LECC.

Surveillance Devices Act 2004

Item 5 - Subsection 6A(7) (after table item 20)

187. Item 5 will populate Columns 1-4 in the table within subsection 6A(7) with the relevant IBAC office holders. These amendments will ensure the IBAC is considered a 'state and territory law enforcement agency' for the purposes of the Act, allowing its officers to apply for Commonwealth surveillance device warrants when undertaking investigations into relevant offences.

188. The item will include the IBAC as a 'law enforcement agency'. The inclusion of the IBAC in this table will ensure that officers of the IBAC are able to apply for Commonwealth surveillance device warrants.

189. The item will include the Commissioner of the IBAC as the 'chief officer' of the IBAC for the purposes of the SD Act. Under the SD Act, the Chief Officer is able to undertake particular functions, such as nominating a particular officer within the IBAC who is able to execute a surveillance devices warrant in defined circumstances or revoke a surveillance devices warrant.

190. The item will include officers of the IBAC as a 'law enforcement officer' for the purposes of the SD Act. The inclusion of IBAC officers in this provision will enable these officers to apply to obtain warrants, emergency authorisations and tracking device authorisations in accordance with the SD Act.

191. The item will include the Commissioner, the Deputy Commissioner, the Chief Executive Officer of the Commission and an executive level sworn IBAC officer (within the meaning of that Act) that the chief officer authorises as an 'appropriate authorising officer' for the purposes of the SD Act. Under the SD Act, appropriate authorising officers can perform high level functions such as making emergency authorisations or authorising the use of a tracking device without a warrant in limited circumstances. For example, where the agency is investigating a federal offence, where it may assist in the location and safe recovery of a child to whom a recovery order relates and where the use of the tracking device will not involve entry onto premises without permission or interference with the interior of a vehicle without permission.

192. Given the roles of 'appropriate authorising officers' under the SD Act, it is necessarily restricted to the most senior roles within the IBAC.

Item 6 - After paragraph 6A(8)(a)

193. Item 6 will add paragraph (aa) to subsection 6A(8) to extend the definition of 'executive level', in relation to an enforcement agency of a state identified in the subsection 6A(7) table to an executive within the meaning of the Public Administration Act 2004 (Vic).

Schedule 3 - Measures relating to the Proceeds of Crime Act 2002

194. Schedule 3 will amend section 336A of the POC Act to clarify that property or wealth will not be considered 'lawfully acquired' where it has been subject to a security or liability that has been discharged using property that is not 'lawfully acquired'.

195. Section 336A currently states that property or wealth is 'lawfully acquired' only if the property or wealth, and consideration given for the property or wealth, are both 'lawfully acquired'. Where property or wealth is 'lawfully acquired', this may be relied upon in resisting applications for unexplained wealth restraining orders (section 20A) and preliminary unexplained wealth orders (section 179B). A person may also point to the fact that property was 'lawfully acquired' in securing transfer orders (section 102) and exclusion from forfeiture orders under the Act (section 94).

196. The term 'lawfully acquired' was interpreted narrowly in Huang, where the Court held that it was precluded from considering the source of funds used to satisfy a mortgage over a property in determining whether the property was 'lawfully acquired', despite the possibility that funds that were not 'lawfully acquired' had been used to make mortgage repayments.

197. Schedule 3 will amend section 336A to make it clear that a person who discharges a security or liability using unlawfully acquired property will not 'lawfully acquire' the property or wealth that is subject to this security or liability. These amendments will also address methods that may be used by criminals to distance unlawfully obtained property from the acquisition of seemingly legitimate property or wealth.

Main amendments

Proceeds of Crime Act 2002

Item 1 - New paragraph 336A(c)

198. Item 1 will insert new paragraph 336A(c) into section 336A. Paragraph 336A(c) will introduce a new term of 'discharging property', which will be defined as property used in wholly or partly discharging a security on, or a liability incurred to acquire or retain: the property or wealth (336A(c)(i)), or the consideration given for the property or wealth (336A(c)(ii)), or other relevant discharging property (if any) (336A(c)(iii)). Paragraph 336A(c) will ensure that property will be 'lawfully acquired' only if payments that are used to acquire or retain the property, either directly or indirectly, are also 'lawfully acquired'.

199. This paragraph will draw on the wide definition of 'property' under section 338 (which includes any interest in real or personal property) to address methods that are used to funnel unlawfully obtained property into seemingly legitimate legal arrangements.

200. Subparagraph 336(c)(i), for example, would address a situation where a person makes a mortgage repayment under a Torrens title mortgage using unlawfully obtained money, as the money would be 'discharging property' used to partly discharge a security (a mortgage) on that person's legal and equitable interest in the property.

201. Subparagraph 336A(c)(i) would also address a situation where a person makes a rental payment using unlawfully obtained money, as the money used to make this payment will be characterised as 'discharging property' used in partly discharging a liability incurred (the obligation to make rental repayments under contract) to acquire or retain the person's property (specifically their leasehold interest in the property).

202. Subparagraph 336A(c)(ii), for example, would address a situation where a person obtains money under a loan contract in order to buy a boat and makes repayments on the loan using unlawfully obtained money. In this case, the loan repayments would be 'discharging property' used to partly discharge a liability incurred to acquire the consideration for the boat.

203. Subparagraph 336A(c)(iii) will address situations in which 'layered' liabilities or securities are used to obscure the illegitimate source of funds that are ultimately used to purchase or retain property or wealth. This may occur, for example, where unlawfully obtained funds are used to discharge a loan, and the money obtained from this loan is used to discharge the debts owed under a second loan, and the money gained from this second loan is used to purchase real property.

204. Paragraph 336A(c) will provide a legislative basis for courts to be satisfied of the origins of funds used to repay loans, securities, consideration and other means used to acquire property or wealth in determining whether the property or wealth was 'lawfully acquired'.

Item 2 - Application of amendments

205. Item 2 will provide that the amendments made by Schedule 3 apply in relation to property or wealth acquired before or after the commencement of Schedule 3. Item 2 will be necessary to ensure that relevant orders are not frustrated by requiring law enforcement agencies to obtain evidence of, and prove, the precise point in time at which certain property or wealth was acquired. Such a requirement would be unnecessarily onerous and would be contrary to the objects of the Act.

View full documentBack to top

Individuals online services

Business online services

Agents online services

Non-residents online services

Foreign Investor

General Outline

Financial Impact

ACRONYMS

Statement of Compatibility with Human Rights

Law Enforcement Legislation Amendment (State Bodies and Other Measures) Bill 2016

Overview of the Bill

Human rights implications

Conclusion

Notes on Clauses

Preliminary

Schedule 1 - Law Enforcement Conduct Commission of New South Wales

Part 1 - Definitions

Part 2 - Telecommunications (Interception and Access) Act 1979

Division 1- Amendments

Division 2 - Transitional provisions

Part 3 - Surveillance Devices Act 2004

Division 1 - Amendments

Division 2 - Transitional provisions

Part 4 - Other amendments

Part 5 - General transitional provisions

Part 6 - Information

Schedule 2 -Independent Broad-based Anti-corruption Commission

Schedule 3 - Measures relating to the Proceeds of Crime Act 2002

Main amendments

Tools

Tax information for

Help and support