Financial Sector Reform (Hayne Royal Commission Response - Stronger Regulators (2019 Measures)) Act 2020 (3 of 2020)
Schedule 1 ASIC search warrant provisions
Part 2 Main amendments to NCCP Act
National Consumer Credit Protection Act 2009
2 After Part 6-3
Insert:
Part 6-3A - Search warrants
Division 1 - Introduction
272A Guide to this Part
This Part allows the grant of search warrants in respect of indictable offences under the credit legislation, etc.
Division 2 - Extra application of Crimes Act search warrant provisions
Subdivision A - Basic extra application
272B Extra application of Crimes Act search warrant provisions
(1) In addition to the application that the applied provisions have (disregarding this subsection) in relation to offences mentioned in subsection (3), the applied provisions also apply under this subsection in relation to those offences, with the modifications set out in Subdivision B.
(2) To avoid doubt, subsection (1) does not limit the application that the applied provisions have (disregarding that subsection).
(3) For the purposes of subsection (1), the offences are indictable offences under any of the following:
(a) the credit legislation;
(b) a provision of a law of the Commonwealth, or of a law of a referring State or a Territory, a contravention of which:
(i) concerns the management, conduct or affairs of a licensee, credit representative or other person who engages, or has engaged, in a credit activity; or
(ii) involves fraud or dishonesty and relates to a credit activity engaged in by a person, or a credit contract, mortgage, guarantee or consumer lease.
(4) For the purposes of this Division, the applied provisions are as follows:
(a) Divisions 1, 2, 4C and 5 of Part IAA of the Crimes Act 1914;
(b) any other provisions of that Act, to the extent that those other provisions relate to the operation of the provisions mentioned in paragraph (a).
272C Interpretation of modifications
To avoid doubt, a term used in Subdivision B in a modification of an applied provision has the same meaning as in the Crimes Act 1914 unless specified otherwise.
Subdivision B - Modifications
272D Major modifications - evidential material
For the purposes of subsection 272B(1), in the definition of evidential material in subsection 3C(1) of the Crimes Act 1914, omit the words "or a thing relevant to a summary offence".
272E Major modifications - who may apply for a warrant etc.
(1) For the purposes of subsection 272B(1), in subsection 3E(1) of the Crimes Act 1914, after the words "by information on oath or affirmation", insert "given by a constable, or by a member of ASIC or an ASIC staff member authorised in writing by ASIC for the purposes of this subsection".
(2) For the purposes of subsection 272B(1), in subsection 3E(2) of the Crimes Act 1914, after the words "by information on oath or affirmation", insert "given by a constable, or by a member of ASIC or an ASIC staff member authorised in writing by ASIC for the purposes of this subsection".
(3) For the purposes of subsection 272B(1), in subsection 3LA(1) of the Crimes Act 1914, after the words "A constable", insert ", or a member of ASIC or an ASIC staff member authorised in writing by ASIC for the purposes of this subsection,".
(4) For the purposes of subsection 272B(1), in subsection 3R(1) of the Crimes Act 1914, after the words "A constable", insert ", or a member of ASIC or an ASIC staff member authorised in writing by ASIC for the purposes of this subsection,".
272F Major modifications - purposes for which things may be used and shared
For the purposes of subsection 272B(1), replace section 3ZQU of the Crimes Act 1914 with the following 2 sections.
3ZQU Purposes for which things may be used and shared
(1) A constable or Commonwealth officer may use, or make available to a member of ASIC or an ASIC staff member to use, a thing seized under this Part for the purpose of the performance of ASIC's functions or duties or the exercise of its powers.
(2) Without limiting the scope of subsection (1), a constable or Commonwealth officer may use, or make available to a person covered under subsection (3) to use, a thing seized under this Part for the purpose of any or all of the following if it is necessary to do so for that purpose:
(a) preventing or investigating any of the following:
(i) a breach of an offence provision;
(ii) a breach of a civil penalty provision;
(iii) a breach of an obligation (whether under statute or otherwise), other than an obligation of a private nature (such as an obligation under a contract, deed, trust or similar arrangement);
(b) prosecuting a breach of an offence provision;
(c) prosecuting a breach of a civil penalty provision;
(d) taking administrative action, or seeking an order of a court or tribunal (within the meaning of the Australian Securities and Investments Commission Act 2001), in response to a breach of an obligation (whether under statute or otherwise), other than an obligation of a private nature (such as an obligation under a contract, deed, trust or similar arrangement).
(3) A person is covered under this subsection if the person is any of the following:
(a) a constable;
(b) a Commonwealth officer.
(4) Without limiting the scope of subsections (1) and (2), a constable or Commonwealth officer may use, or make available to a person covered under subsection (3) to use, a thing seized under this Part for the purpose of any or all of the following if it is necessary to do so for that purpose:
(a) proceedings under the Proceeds of Crime Act 1987 or the Proceeds of Crime Act 2002;
(b) proceedings under a corresponding law (within the meaning of either of the Acts mentioned in paragraph (a)) that relate to a State offence that has a federal aspect;
(c) proceedings for the forfeiture of the thing under a law of the Commonwealth, a State or a Territory;
(d) the performance of a function or duty, or the exercise of a power, by a person, court or other body under, or in relation to a matter arising under, Division 104, 105 or 105A of the Criminal Code;
(e) investigating or resolving a complaint or an allegation of misconduct relating to an exercise of a power or the performance of a function or duty under this Part;
(f) investigating or resolving an AFP conduct or practices issue (within the meaning of the Australian Federal Police Act 1979) under Part V of that Act;
(g) investigating or resolving a complaint under the Ombudsman Act 1976 or the Privacy Act 1988;
(h) investigating or inquiring into a corruption issue under the Law Enforcement Integrity Commissioner Act 2006;
(i) proceedings in relation to a complaint, allegation or issue mentioned in paragraph (e), (f), (g) or (h);
(j) deciding whether to institute proceedings, to make an application or request, or to take any other action, mentioned in:
(i) any of the preceding paragraphs of this subsection; or
(ii) subsection (1) or (2);
(k) the performance of the functions of the Australian Federal Police under section 8 of the Australian Federal Police Act 1979.
(5) A constable or Commonwealth officer may use a thing seized under this Part for any other use that is required or authorised by or under a law of a State or a Territory.
(6) A constable or Commonwealth officer may make available to another constable or Commonwealth officer to use a thing seized under this Part for any purpose for which the making available of the thing is required or authorised by a law of a State or Territory.
(7) To avoid doubt, this section does not limit any other law of the Commonwealth that:
(a) requires or authorises the use of a document or other thing; or
(b) requires or authorises the making available (however described) of a document or other thing.
(8) A constable or Commonwealth officer may make available to an agency that has responsibility for:
(a) law enforcement in a foreign country; or
(b) intelligence gathering for a foreign country; or
(c) the security of a foreign country;
a thing seized under this Part to be used by that agency for:
(d) a purpose mentioned in subsection (1), (2), (4), (5) or (6); or
(e) the purpose of performing a function, or exercising a power, conferred by a law in force in that foreign country.
Ministerial arrangements for sharing
(9) This Division does not prevent the Minister from making an arrangement with a Minister of a State or Territory for:
(a) the making available to a State or Territory law enforcement agency of that State or Territory, for purposes mentioned in subsections (1), (2), (4), (6) and (8), of things seized under this Part; and
(b) the disposal by the agency of such things, originals and copies when they are no longer of use to that agency for those purposes.
Note: This subsection does not empower the Minister to make such an arrangement.
Definition
(10) In this section:
State or Territory law enforcement agency means:
(a) the police force or police service of a State or Territory; or
(b) the New South Wales Crime Commission; or
(c) the Independent Commission Against Corruption of New South Wales; or
(d) the Law Enforcement Conduct Commission of New South Wales; or
(e) the Independent Broad-based Anti-corruption Commission of Victoria; or
(f) the Crime and Corruption Commission of Queensland; or
(g) the Corruption and Crime Commission of Western Australia; or
(h) the Independent Commissioner Against Corruption of South Australia.
3ZQUA Commonwealth law permitting access to things seized under this Part does not apply
(1) This section applies if, disregarding this section, a law of the Commonwealth (other than this Part) requires or permits any of the following to be made available to a person covered under subsection (3):
(a) a thing seized under this Part;
(b) if a thing contains data that ASIC or the Australian Federal Police came into possession of as a result of exercising powers under this Part - the thing.
(2) Subject to subsection (4), that law does not require or permit the thing to be made available to the person.
(3) A person is covered under this subsection if the person is not, and is not representing, the Commonwealth, a State or a Territory.
(4) This section does not affect any of the following:
(a) the power of a court, or of a tribunal (within the meaning of the Australian Securities and Investments Commission Act 2001), to make an order;
(b) the effect of an order of a court, or of a tribunal (within the meaning of that Act).
(5) This section does not affect the operation of the Freedom of Information Act 1982.
272G Minor modifications
(1) For the purposes of subsection 272B(1), the applied provisions apply with the modifications set out in this section.
(2) To avoid doubt, those modifications have no effect other than for the purposes mentioned in subsection (1).
(3) In subsection 3C(1) of the Crimes Act 1914, insert the following definitions:
ASIC means the Australian Securities and Investments Commission.
ASIC senior staff member means a senior staff member (within the meaning of the Australian Securities and Investments Commission Act 2001).
ASIC staff member means a staff member (within the meaning of the Australian Securities and Investments Commission Act 2001).
responsible agency , in relation to data or a thing, means:
(a) if the data, or a device containing the data, or the thing, is in the control of the Australian Federal Police - the Australian Federal Police; or
(b) if the data, or a device containing the data, or the thing, is in the control of ASIC - ASIC.
responsible Commissioner , in relation to data or a thing, means:
(a) if the data, or a device containing the data, or the thing, is in the control of the Australian Federal Police - the Commissioner of the Australian Federal Police; or
(b) if the data, or a device containing the data, or the thing, is in the control of ASIC - the Chairperson of ASIC.
(4) In section 3E of the Crimes Act 1914:
(a) omit the note to subsection (1) of that section; and
(b) omit the words "is a member or special member of the Australian Federal Police and" in subsection (4) of that section.
(5) In subsections 3L(1B) and 3LAA(3) and sections 3ZQX and 3ZQZB of the Crimes Act 1914:
(a) treat the references to the Commissioner as being references to the responsible Commissioner; and
(b) treat the references to the Australian Federal Police as being references to the responsible agency.