Senate

Explanatory Memorandum

(Circulated by authority of the Minister for Justice, the Honourable Brendan O'Connor MP)

CRIMES LEGISLATION AMENDMENT BILL 2010

GENERAL OUTLINE

This Bill will improve the ability of the Australian Crime Commission (ACC) to deal with serious misconduct by staff and make a range of amendments to strengthen law enforcement agencies' powers to gather, examine and use evidence to investigate and prevent the commission of criminal offences. This Bill will amend the Australian Crime Commission Act 2002 (ACC Act), the Australian Federal Police Act 1979 (AFP Act), the Crimes Act 1914 (Crimes Act) and the Telecommunications (Interception and Access) Act 1979 (TIA Act).

The Bill will:

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align the dismissal powers of the Chief Executive Officer (CEO) of the ACC to deal with serious misconduct and corruption with those of the Australian Federal Police (AFP) Commissioner

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provide for more flexible arrangements for appointing ACC examiners

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extend the application of certain search-related provisions in the Crimes Act that currently only apply to searches conducted under warrants in relation to premises so they also apply to searches conducted under a warrant in relation to a person

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insert rules to govern when documents produced under Division 4B, Part IAA of the Crimes Act must be returned

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streamline and extend provisions governing applications for, and determination of, orders in relation to things seized and documents produced under Part IAA of the Crimes Act

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allow the AFP Commissioner to delegate responsibility for dealing with things seized and documents produced under Part IAA of the Crimes Act to Commonwealth officers legitimately in possession of such items

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introduce a new standing power for the AFP to take fingerprints and photographs of arrested persons when taking them in to custody in relation to a Commonwealth offence, and

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amend the AFP Act to enable the Commissioner to authorise a payment in special circumstances that arise out of, or relate to, the person's engagement as an AFP appointee.

PURPOSE

This Bill will improve the ability of the ACC to deal with serious misconduct by staff and make a range of amendments to strengthen law enforcement agencies' powers to gather, examine and use evidence to investigate and prevent the commission of criminal offences.

This Bill amends the Australian Crime Commission Act 2002 , the Australian Federal Police Act 1979 , the Crimes Act 1914 and the Telecommunications (Interception and Access) Act 1979 .

Australian Crime Commission Act amendments

The Bill will make two sets of amendments to the ACC Act. The first will address operational issues identified by the ACC. The second will respond to a recommendation made in a report by the Parliamentary Joint Committee on the ACC. The proposed amendments will:

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align the dismissal powers of the ACC CEO to deal with serious misconduct and corruption with those of the AFP Commissioner, and

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provide for more flexible arrangements to appoint examiners.

Schedule 1 will amend the ACC Act and the TIA Act to provide the ACC CEO with powers mirroring those of the AFP Commissioner to deal with serious misconduct and corruption. The primary effect of these changes is that the ACC CEO will be able to make a declaration that a staff member's conduct amounts to serious misconduct and thereby disapply the Fair Work Act 2009 in relation to the dismissal of that staff member.

Schedule 2 will amend the ACC Act to allow for greater flexibility in the appointment of examiners. The ACC Act currently only allows the appointment of full-time examiners. This does not meet the operational needs of the ACC. The amendments will allow the ACC to utilise part-time examiners as well as full-time examiners. This will enable the ACC to approach examinations in a more strategic way, use different examiners for different purposes depending on the particular type of investigation or operation, and appoint examiners in different regions of Australia.

Crimes Act amendments

The Bill will make a range of amendments to improve the operation of search and arrest related provisions in Part IAA of the Crimes Act.

Part 1 of Schedule 3 will extend the application of certain search-related provisions in the Crimes Act that currently only apply to searches conducted under warrants in relation to premises so they also apply to searches conducted under a warrant in relation to a person. These amendments will help police deal more effectively with electronic equipment, such as laptop computers and smartphones, located during searches under a warrant in relation to a person.

Part 2 of Schedule 3 will make three sets of amendments to Part IAA of the Crimes Act. The first set of amendments will insert rules about when documents produced under Division 4B must be returned to the person who produced them or to the owner. The second set of amendments will streamline and extend provisions governing applications for, and determination of, various orders in relation to things seized and documents produced. The final amendment will allow the AFP Commissioner to delegate responsibility for functions related to returning things seized and documents produced to a Commonwealth officer if he or she is satisfied on reasonable grounds that the officer is able to properly exercise the relevant powers, functions or duties.

Part 3 of Schedule 3 will amend the Crimes Act to provide police with a standing power to take fingerprints and photographs of arrested persons. This amendment will assist police to confirm the identity of arrested persons, prove matters relating to identity in court proceedings and maintain accurate records of arrests.

Australian Federal Police Act amendments

Schedule 4 will amend the AFP Act to enable the Commissioner to authorise a payment in special circumstances that arise out of, or relate to, a person's engagement as an AFP appointee. This will bring the AFP into line with other Commonwealth agencies with respect to making payments to employees and other persons in special circumstances. It will also avoid the problems currently encountered with delays in obtaining approval for ex-gratia payments.

FINANCIAL IMPACT STATEMENT

The amendments in this Bill have no financial impact on Government revenue.

ACRONYMS

NOTES ON CLAUSES

Clause 1: Short Title

This clause provides that when the Bill is enacted, it is to be cited as the Crimes Legislation Amendment Act 2010 .

Clause 2: Commencement

This clause sets out when the various parts of the Act are to commence.

Clause 3: Schedule(s)

This is a formal clause that enables the Schedules to amend Acts by including amendments under the title of the relevant Act.