Anti-Terrorism Act (No. 2) 2005 (144 of 2005)

Schedule 6   Power to obtain information and documents

Crimes Act 1914

1   After Division 4A of Part IAA

Insert:

Division 4B - Power to obtain information and documents

Subdivision A - Definitions

3ZQL Definitions

In this Division:

authorised AFP officer means:

(a) the Commissioner; or

(b) a Deputy Commissioner; or

(c) a senior executive AFP employee who:

(i) is a member of the Australian Federal Police; and

(ii) is authorised in writing by the Commissioner for the purposes of this paragraph.

Federal Magistrate has the meaning given by the Federal Magistrates Act 1999.

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

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

(1) This section applies if an authorised AFP officer believes on reasonable grounds that an operator of an aircraft or ship has information or documents (including in electronic form) that are relevant to a matter that relates to the doing of a terrorist act (whether or not a terrorist act has occurred or will occur).

(2) The officer may:

(a) ask the operator questions relating to the aircraft or ship, or its cargo, crew, passengers, stores or voyage, that are relevant to the matter; or

(b) request the operator to produce documents relating to the aircraft or ship, or its cargo, crew, passengers, stores or voyage:

(i) that are relevant to the matter; and

(ii) that are in the possession or under the control of the operator.

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

Offence

(4) A person commits an offence if:

(a) the person is an operator of an aircraft or ship; and

(b) the person is asked a question or requested to produce a document under subsection (2); and

(c) the person fails to answer the question or produce the document.

Penalty: 60 penalty units.

(5) Subsection (4) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

(6) It is a defence to a prosecution for an offence against subsection (4) if the person charged had a reasonable excuse for:

(a) failing to answer the question; or

(b) failing to produce the document.

Definitions

(7) In this section:

operator has the meaning given by section 4 of the Customs Act 1901.

terrorist act has the meaning given by section 100.1 of the Criminal Code.

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

3ZQN Power to obtain documents relating to serious terrorism offences

(1) This section applies if an authorised AFP officer considers on reasonable grounds that a person has documents (including in electronic form) that are relevant to, and will assist, the investigation of a serious terrorism offence.

(2) The officer may give the person a written notice requiring the person to produce documents that:

(a) relate to one or more of the matters set out in section 3ZQP, as specified in the notice; and

(b) are in the possession or under the control of the person.

(3) The notice must:

(a) specify the name of the person to whom the notice is given; and

(b) specify the matters to which the documents to be produced relate; and

(c) specify the manner in which the documents are to be produced; and

(d) specify the place at which the documents are to be produced; and

(e) state that the person must comply with the notice as soon as practicable; and

(f) set out the effect of section 3ZQS (offence for failure to comply); and

(g) if the notice specifies that information about the notice must not be disclosed - set out the effect of section 3ZQT (offence for disclosing existence or nature of a notice).

3ZQO Power to obtain documents relating to serious offences

(1) An authorised AFP officer may apply to a Federal Magistrate for a notice under this section in respect of a person if the AFP officer considers on reasonable grounds that the person has documents (including in electronic form) that are relevant to, and will assist, the investigation of a serious offence.

(2) If the Magistrate is satisfied on the balance of probabilities, by information on oath or by affirmation, that:

(a) the person has documents (including in electronic form) that are relevant to, and will assist, the investigation of a serious offence; and

(b) giving the person a notice under this section is reasonably necessary, and reasonably appropriate and adapted, for the purpose of investigating the offence;

the Magistrate may give the person a written notice requiring the person to produce documents that:

(c) relate to one or more of the matters set out in section 3ZQP, as specified in the notice; and

(d) are in the possession or under the control of the person.

(3) The Magistrate must not give the notice unless the authorised AFP officer or some other person has given to the Magistrate, either orally or by affidavit, such further information (if any) as the Magistrate requires concerning the grounds on which the issue of the notice is being sought.

(4) The notice must:

(a) specify the name of the person to whom the notice is given; and

(b) specify the matters to which the documents to be produced relate; and

(c) specify the manner in which the documents are to be produced; and

(d) specify the place at which the documents are to be produced; and

(e) state that the person must comply with the notice within 14 days after the day on which the notice is given; and

(f) set out the effect of section 3ZQS (offence for failure to comply); and

(g) if the notice specifies that information about the notice must not be disclosed - set out the effect of section 3ZQT (offence for disclosing existence or nature of a notice).

3ZQP Matters to which documents must relate

A document to be produced under a notice under section 3ZQN or 3ZQO must relate to one or more of the following matters:

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

(b) determining whether a specified person is a signatory to an account with a specified financial institution, and details relating to the account (including details of any related accounts);

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

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

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

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

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

(h) determining whether a telephone account is held by a specified person, and details relating to the account (including:

(i) details in respect of calls made to or from the relevant telephone number; or

(ii) the times at which such calls were made or received; or

(iii) the lengths of such calls; or

(iv) the telephone numbers to which such calls were made and from which such calls were received);

(i) determining who holds a specified telephone account, and details relating to the account (including details mentioned in paragraph (h));

(j) determining whether a specified person resides at a specified place;

(k) determining who resides at a specified place.

3ZQQ Powers conferred on Federal Magistrates in their personal capacity

(1) A power conferred on a Federal Magistrate by section 3ZQO is conferred on the Magistrate in a personal capacity and not as a court or a member of a court.

(2) A Federal Magistrate need not accept the power conferred.

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

3ZQR Documents must be produced

(1) A person is not excused from producing a document under section 3ZQN or 3ZQO on the ground that to do so:

(a) would contravene any other law; or

(b) might tend to incriminate the person or otherwise expose the person to a penalty or other liability; or

(c) would disclose material that is protected against disclosure by legal professional privilege or any other duty of confidence; or

(d) would be otherwise contrary to the public interest.

(2) However, neither:

(a) the production of the document; nor

(b) any information, document or thing obtained as a direct or indirect consequence of producing the document;

is admissible in evidence against the person in proceedings other than proceedings for an offence against section 137.1, 137.2 or 149.1 of the Criminal Code that relates to this Act.

(3) A person is not liable to any penalty by reason of his or her producing a document when required to do so under section 3ZQN or 3ZQO.

(4) The fact that a person is not excused under subsection (1) from producing a document does not otherwise affect a claim of legal professional privilege that anyone may make in relation to that document.

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

A person commits an offence if:

(a) the person is given a notice under section 3ZQN or 3ZQO; and

(b) the person fails to comply with the notice.

Penalty: 30 penalty units.

3ZQT Offence for disclosing existence or nature of notice

(1) A person commits an offence if:

(a) the person is given a notice under section 3ZQN or 3ZQO; and

(b) the notice specifies that information about the notice must not be disclosed; and

(c) the person discloses the existence or nature of the notice.

Penalty: 120 penalty units or imprisonment for 2 years, or both.

(2) Subsection (1) does not apply if:

(a) the person discloses the information to another person in order to obtain a document that is required by the notice in order to comply with it, and that other person is directed not to inform the person to whom the document relates about the matter; or

(b) the disclosure is made to obtain legal advice or legal representation in relation to the notice; or

(c) the disclosure is made for the purposes of, or in the course of, legal proceedings.

Note: A defendant bears an evidential burden in relation to the matters in subsection (2) (see subsection 13.3(3) of the Criminal Code).