Crimes Legislation Enhancement Act 2003

(41 of 2003)

An Act to amend the Crimes Act 1914 and other legislation relating to criminal law or law enforcement, and for related purposes

[Assented to 3 June 2003]

The Parliament of Australia enacts:

1   Short title

This Act may be cited as theCrimes Legislation Enhancement Act 2003.

2   Commencement

 

(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, on the day or at the time specified in column 2 of the table.

Note: This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

      

(2) Column 3 of the table is for additional information that is not part of this Act. This information may be included in any published version of this Act.

      

(3) If a provision covered by item 11A of the table does not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.

3   Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1   Amendment of the Crimes Act 1914

Part 1   Taking offenders' fingerprints and photographs

1   Subsection 3ZL(1)

Omit "fingerprints or" , substitute "fingerprints and/or" .

2   After subsection 3ZL(3)

Insert:

(3A) The judge or magistrate may also make any other orders that are reasonably necessary for ensuring that the impressions of the person's fingerprints and/or a photograph of the person are taken in accordance with the order under subsection (1). For example, the judge or magistrate may order the person to attend a specified police station at a specified time.

(3B) A person commits an offence if:

(a) the person is subject to an order under subsection (3A); and

(b) the person engages in conduct; and

(c) the person's conduct contravenes the order.

Penalty: Imprisonment for 12 months.

(3C) In this section:

engage in conduct means:

(a) do an act; or

(b) omit to perform an act.

Part 2   Identification parades

3   Paragraph 3ZM(3)(b)

Repeal the paragraph, substitute:

(b) if he or she refuses to take part in the parade:

(i) evidence of the refusal may be given in later proceedings relating to an offence, for the purpose of explaining why an identification parade was not held; and

(ii) evidence may be given in such proceedings of any identification of the suspect by a witness as a result of having seen a photograph or having seen the suspect otherwise than during an identification parade; and

Part 3   Dealing summarily with some indictable offences

4   Subsection 4J(4)

Omit "$500" , substitute "$5,000" .

5   Application

The amendment of subsection 4J(4) of the Crimes Act 1914 by this Schedule applies in relation to indictable offences committed after the start of the day on which this Act receives the Royal Assent.

6   After section 4J

Insert:

4JA Some indictable offences punishable by fine only may be dealt with summarily

(1) A court of summary jurisdiction may hear and determine an indictable offence if:

(a) the offence is not punishable by imprisonment; and

(b) the pecuniary penalty for the offence is not more than 600 penalty units for an individual or 3,000 penalty units for a body corporate; and

(c) the defendant and prosecution consent.

(2) If the defendant is convicted, the court may impose a pecuniary penalty of:

(a) not more than 60 penalty units for an individual or 300 penalty units for a body corporate if the offence would be punishable on indictment by a pecuniary penalty of not more than 300 penalty units for an individual or 1,500 penalty units for a body corporate; or

(b) not more than 120 penalty units for an individual or 600 penalty units for a body corporate if the offence would be punishable on indictment by a pecuniary penalty of not more than 600 penalty units for an individual or 3,000 penalty units for a body corporate.

However, the court may not impose a pecuniary penalty greater than the penalty that could have been imposed if the offence had been prosecuted on indictment.

(3) This section has effect subject to any contrary intention indicated by the law creating the offence.

(4) Without limiting subsection (3), this section does not apply to an indictable offence:

(a) created by a law that provides that the offence may be heard and determined by a court of summary jurisdiction; or

(b) described in subsection 4J(4) (about offences relating to property valued at $5,000 or less).

7   Application

Section 4JA of the Crimes Act 1914 applies to proceedings for an offence that were instituted after this Act received the Royal Assent (whether the offence was committed before or after this Act received the Royal Assent).

Part 3A   Forensic procedures

7A   Section 23YDAF (table item 7, column 8)

Omit "no" , substitute "yes" .

7B   Section 23YUA (definition of corresponding law)

Repeal the definition, substitute:

corresponding law means a law that:

(a) relates to the carrying out of forensic procedures and DNA databases; and

(b) either:

(i) substantially corresponds to this Part; or

(ii) is prescribed by the regulations for the purposes of this definition.

7C   Section 23YUA (definition of DNA database)

Repeal the definition.

7D   Subsection 23YUD(1)

Repeal the subsection, substitute:

(1) The Minister may, on behalf of the Commonwealth, enter into arrangements with a responsible Minister of a participating jurisdiction under which:

(a) information from the DNA database system of the Commonwealth that may be relevant to the investigation of a matter relating to the participating jurisdiction is to be transmitted to the appropriate authority in that jurisdiction for the purpose of the investigation of, or proceedings in respect of, that matter; and

(b) information from a DNA database system of the participating jurisdiction that may be relevant to the investigation of a matter relating to the Commonwealth is to be transmitted to the Commissioner for the purposes of the investigation of, or proceedings in respect of, that matter.

These arrangements may deal with keeping, and otherwise managing, such information.

(1A) For the avoidance of doubt, this section does not preclude CrimTrac from entering into a memorandum of understanding or other arrangement, on behalf of the Commonwealth, with a participating jurisdiction in relation to:

(a) transmission of information to or from the DNA database system of the Commonwealth, or a DNA database system of any participating jurisdiction; or

(b) keeping, and otherwise managing, such information.

7E   At the end of section 23YUD

Add:

(3) In this section:

CrimTrac means the CrimTrac Agency, established as an Executive Agency by the Governor-General by order under section 65 of the Public Service Act 1999.

investigation of a matter means:

(a) in relation to a participating jurisdiction:

(i) an investigation of an offence against the law of that jurisdiction; or

(ii) an investigation of a missing person; or

(iii) an investigation for the purpose of identifying a deceased person; or

(b) in relation to the Commonwealth:

(i) an investigation of an offence against the law of the Commonwealth; or

(ii) an investigation of a missing person; or

(iii) an investigation for the purpose of identifying a deceased person.

7F   Transitional provision for existing arrangements under subsection 23YUD(1)

An arrangement that:

(a) was entered into under subsection 23YUD(1) of the Crimes Act 1914 before the commencement of this item; and

(b) was in force immediately before this commencement;

continues in force after that commencement as if it had been entered into under that subsection as amended by this Schedule.

Part 4   Technical corrections of sentencing and parole provisions

8   Paragraph 16A(2)(f)

Omit "for the offence;" , substitute "for the offence:" .

9   Paragraph 19AS(1)(b)

Omit "federal" , substitute "federal," .

Schedule 2   Amendment of other Acts

Australian Crime Commission Establishment Act 2002

1AA   Section 2 (table item 5, column 2)

Omit "Communications Legislation Amendment Act (No. 1) 2002" , substitute "Communications Legislation Amendment Act (No. 1) 2003" .

Australian Federal Police Act 1979

1   Subsection 8(1)

Omit "Subject to subsection (2C), the" , substitute "The" .

Australian Protective Service Act 1987

1A   Subsection 3(1) (at the end of the definition of police officer)

Add:

; or (c) a member, however described, of a police force of a foreign country.

Australian Securities and Investments Commission Act 2001

1B   Paragraph 18(2)(b)

Repeal the paragraph, substitute:

(b) the Chief Executive Officer of the Australian Crime Commission or a member of the staff of the ACC (within the meaning of the Australian Crime Commission Act 2002); or

1C   Subparagraph 127(4)(aa)(i)

Repeal the subparagraph.

Corporations Act 2001

1D   Paragraph 794C(5)(b)

Repeal the paragraph, substitute:

(b) the Chief Executive Officer of the Australian Crime Commission or a member of the staff of the ACC (within the meaning of the Australian Crime Commission Act 2002); or

1E   Paragraph 823C(5)(b)

Repeal the paragraph, substitute:

(b) the Chief Executive Officer of the Australian Crime Commission or a member of the staff of the ACC (within the meaning of the Australian Crime Commission Act 2002); or

1F   Paragraph 823CA(4)(b)

Repeal the paragraph, substitute:

(b) the Chief Executive Officer of the Australian Crime Commission or a member of the staff of the ACC (within the meaning of the Australian Crime Commission Act 2002); or

Crimes at Sea Act 2000

2   Subsection 6A(1)

Omit "law in force in the Northern Territory" , substitute "law of the Northern Territory" .

3   Subsection 6A(7) (definition of criminal act )

Omit "law in force in the Northern Territory" , substitute "law of the Northern Territory" .

4   Application

The amendments of the Crimes at Sea Act 2000 made by this Schedule apply in relation to conduct engaged in after the start of the day on which this Act receives the Royal Assent.

Crimes (Aviation) Act 1991

4A   Subsection 33(2)

After "must" , insert " , unless subsection (2A) applies," .

4B   After subsection 33(2)

Insert:

(2A) Where an authorised person causes a person to be taken into custody on board an aircraft that is engaged in a flight that ends in a foreign country, the authorised person must cause the person:

(a) to be delivered into the custody of a member, however described, of a police force of that foreign country; and

(b) to be held in custody until the person can be so delivered.

Crimes Legislation Amendment Act (No. 2) 1989

5   Paragraph 10(a)

Omit "a law" , substitute "the law" .

Note: This corrects a misdescribed amendment of section 19B of the Crimes Act 1914.

6   Paragraph 17(a)

Omit "the law" , substitute "a law" .

Note: This corrects a misdescribed amendment of section 21B of the Crimes Act 1914.

Criminology Research Act 1971

6A   Section 4 (after paragraph (a) of the definition of the appropriate Minister)

Insert:

(aa) in relation to the Australian Capital Territory, such Minister of the Australian Capital Territory as is prescribed, and includes any Minister of the Australian Capital Territory for the time being acting for and on behalf of that Minister; and

6B   Paragraph 6(b)

Omit "and the Northern Territory," , substitute "the Australian Capital Territory and the Northern Territory" .

6C   Paragraph 6(hb)

Omit ", and of the Northern Territory" , substitute ", of the Australian Capital Territory and of the Northern Territory" .

6D   Subsection 35(1)

Omit "8" , substitute "9" .

6E   After paragraph 35(1)(b)

Insert:

(ba) one is to represent the Australian Capital Territory; and

6F   Subsection 35(3)

Omit "or the member who is to represent the Northern Territory" , substitute "or a member who is to represent the Australian Capital Territory or the Northern Territory" .

6G   Subsection 35(3)

Omit "or of the Northern Territory" , substitute "or that Territory" .

6H   Subsection 35(4)

After "Minister of a State," , insert " of the Australian Capital Territory" .

6J   Subsection 35(4)

Omit "the Northern Territory" (last occurring), substitute "that Territory" .

6K   After paragraph 36(1)(b)

Insert:

(ba) in the case of the member appointed to represent the Australian Capital Territory - with the approval of the appropriate Minister of that Territory; or

6L   Subsection 36(2)

Before "the Northern Territory" , insert " the Australian Capital Territory or" .

6M   After subsection 38(2)

Insert:

(2A) The member of the Council who is appointed to represent the Australian Capital Territory, or the deputy of that member, may resign his or her office by writing signed by the member or deputy, as the case may be, and delivered to the appropriate Minister of the Australian Capital Territory.

6N   Paragraphs 43(a) and (b)

Omit "and of the Northern Territory" , substitute ", of the Australian Capital Territory and of the Northern Territory" .

Note: The heading to section 43 is altered by omitting " and Northern Territory " and substituting " , Australian Capital Territory and Northern Territory " .

6P   Paragraph 46(b)

Omit "or the Northern Territory" , substitute ", the Australian Capital Territory or the Northern Territory" .

Foreign Evidence Act 1994

7   Subsection 22(2)

Repeal the subsection, substitute:

(2) The testimony must purport to be signed or certified by a judge, magistrate or officer in or of the foreign country to which the request was made.

International War Crimes Tribunals Act 1995

8   Section 4 (definition of possession )

Repeal the definition.

9   At the end of section 29

Add:

(3) If the Tribunal so requests, the Magistrate conducting a proceeding under section 27 or 28 (or both) may permit examination or cross-examination of a person giving evidence or producing a document or other article at the proceeding, by:

(a) the person to whom the proceeding before, or the investigation conducted by, the Tribunal relates; or

(b) that person's legal representative; or

(c) the Tribunal's legal representative;

through a video link.

(4) In this section:

video link means a video and sound system that enables persons assembled in the Tribunal's premises (or premises nominated by the Tribunal) to see, hear and talk to persons assembled in a place in another country.

12   Section 80

After "47A" , insert " , 47C" .

13   Application

The amendment made by item 12 applies in relation to the escape of a person after the commencement of this item, whether or not the person was in custody from before that commencement or was arrested before that commencement.

Law and Justice Legislation Amendment Act (No. 2) 1994

14   Item 7 of Schedule 1

After "'court'" , insert " (wherever occurring)" .

Note: This corrects a misdescribed amendment of section 3ZN of the Crimes Act 1914.

Mutual Assistance in Business Regulation Act 1992

15   Subsection 22(1)

Omit "to the Department or a Deputy Secretary" , substitute "of the Department or an APS employee" .

16   Subsections 22(2) and (3)

Repeal the subsections.

Proceeds of Crime Act 2002

16A   After section 267

Insert:

267A Additional property to which the Official Trustee's powers and duties under Division 3 apply

(1) The powers conferred on the *Official Trustee under Division 3 may be exercised, and the duties imposed on the Official Trustee under Division 3 are to be performed, in relation to property that, under paragraph 278(2)(d), may be disposed of to pay, under Part 4-2, a *legal aid commission's costs.

(2) Without limiting the definition of controlled property in section 267, for the purposes of Division 3 this property is controlled property .

16B   At the end of subsection 278(2)

Add:

; or (d) if, in the opinion of the Official Trustee, the disposal of the property or part of the property is necessary to pay, under Part 4-2, a *legal aid commission's costs.

16C   At the end of section 279

Add:

(3) However, the person may object to the disposal of the *controlled property for the reason set out in paragraph 278(2)(d) only if:

(a) the value of the controlled property exceeds the total amount of the money payable to the *legal aid commission in question; and

(b) the person and the *Official Trustee have failed to agree on which item or items of, or which portion of, the controlled property should be disposed of.

(4) An objection to which subsection (3) applies must:

(a) relate only to which item or items of, or which portion of, the *controlled property should be disposed of; and

(b) specify the item or items of, or the portion of, the controlled property that the person does not object to the *Official Trustee disposing of.

16D   After subsection 280(4)

Insert:

(4A) The court must make an order to dispose of the *controlled property, or a specified item or items of or a specified portion of the property, if in the court's opinion the disposal is necessary to pay, under Part 4-2, a *legal aid commission's costs.

16E   Section 338 (at the end of the definition of controlled property)

Add:

Note: Section 267A alters the meaning of this term for the purposes of Division 3 of Part 4-1.

Retirement Savings Accounts (Consequential Amendments) Act 1997

17   Item 4 of Schedule 19

After "'the account'" , insert " (first occurring)" .

Note: This corrects a misdescribed amendment of the Financial Transaction Reports Act 1988.

Service and Execution of Process Act 1992

18   Subsection 3(1) (at the end of the definition of authority)

Add:

Note: Section 81A alters the meaning of this term for the purposes of Part 5.

19   Subsection 3(1) (at the end of the definition of tribunal )

Add:

Note: Section 81A alters the meaning of this term for the purposes of Part 5.

20   Subsection 3(1) (definition of warrant )

Before "means" , insert " (except in the definition of authority in section 81A)" .

21   Subsection 3(1) (at the end of the definition of warrant )

Add:

Note: Section 81A alters the meaning of this term for the purposes of Part 5.

22   After section 81

Insert:

81A Interpretation

In this Part:

authority includes a body or person that:

(a) under a law of a State, may issue a warrant for the arrest and return to custody or detention of a person, following the revocation or cancellation of:

(i) a parole order; or

(ii) an order for conditional release; or

(iii) an order for home detention; or

(iv) an order for periodic detention; or

(v) any other order for the release of a person from custody; or

(vi) any other order of a kind prescribed by the regulations; and

(b) is prescribed by the regulations.

tribunal does not include a body or person of a kind referred to in the definition of authority in this section.

warrant includes a warrant issued by a body or person that is an authority for the purposes of this Part.

Schedule 3   Technical corrections relating to Part numbering in the Crimes Act 1914

Part 1   Corrections relating to Part 1AA of the Crimes Act 1914

Commonwealth Places (Application of Laws) Act 1970

1   Schedule

Omit Part 1AA" , substitute "Part IAA" .

Crimes Act 1914

2   Paragraph 23C(7)(fa)

Omit "Part 1AA" , substitute "Part IAA" .

3   Part 1AA (heading)

Repeal the heading, substitute:

Part IAA - Search warrants and powers of arrest

4   Section 23YR (note)

Omit "Part 1AA" , substitute "Part IAA" .

Note: The heading to section 23YR is altered by omitting " Part 1AA " and substituting " Part IAA " .

Crimes (Search Warrants and Powers of Arrest) Amendment Act 1994

5   Section 4

Omit "Part 1 of the Principal Act" , substitute "Part I of the Principal Act" .

Note: This corrects a misdescribed amendment of the Crimes Act 1914.

Part 2   Corrections relating to Part IA of the Crimes Act 1914

Crimes Amendment (Controlled Operations) Act 1996

6   Item 2 of Schedule 1 (heading)

Repeal the heading, substitute:

2 After Part IA

Note: This corrects a misdescribed amendment of the Crimes Act 1914.

Part 3   Corrections relating to Part 1B of the Crimes Act 1914

Commonwealth Places (Application of Laws) Act 1970

7   Schedule

Omit "all the provisions of Divisions 1 to 9 (inclusive) of Part 1B" , substitute ", all the provisions of Divisions 1 to 9 (inclusive) of Part IB" .

Crimes Act 1914

8   Subsection 3X(4) (definition of prisoner unlawfully at large )

Omit "Part 1B" , substitute "Part IB" .

9   Part 1B (heading)

Repeal the heading, substitute:

Part IB - Sentencing, imprisonment and release of federal offenders

10   Paragraph 23WA(8)(f)

Omit "Part 1B" , substitute "Part IB" .

11   Paragraph 46(1)(ab)

Omit "Part 1B" , substitute "Part IB" .

12   Section 47

Omit "Part 1B" , substitute "Part IB" .

13   Paragraphs 47A(1)(d), 47B(1)(a) and 47C(1)(b)

Omit "Part 1B" , substitute "Part IB" .

Migration Act 1958

14   Paragraph 233C(4)(a)

Omit "Part 1B" , substitute "Part IB" .

Part 4   Corrections relating to Part IC of the Crimes Act 1914

Commonwealth Places (Application of Laws) Act 1970

15   Subsection 5(2A)

Omit "Part 1C" , substitute "Part IC" .

Crimes Act 1914

16   Subsection 3P(1)

Omit "Part 1C" , substitute "Part IC" .

17   Subsection 3ZQC(4)

Omit "Part 1C" , substitute "Part IC" .

18   Subsection 23WA(1) (definition of Aboriginal legal aid organisation )

Omit "Part 1C" , substitute "Part IC" .

19   Section 23WCA (table items 4, 5 and 6)

Omit "Part 1C" (wherever occurring), substitute "Part IC" .

20   Subsection 23WD(3)

Omit "Part 1C" , substitute "Part IC" .

21   Subsection 23WD(3) (note)

Omit "Part 1C" , substitute "Part IC" .

22   Subsection 23WD(4)

Omit "Part 1C" (wherever occurring), substitute "Part IC" .

23   Subsection 23WD(4) (note)

Omit "Part 1C" , substitute "Part IC" .

24   Subsection 23WM(3)

Omit "Part 1C" , substitute "Part IC" .

25   Subsection 23WM(3) (note)

Omit "Part 1C" , substitute "Part IC" .

26   Subsection 23WM(4)

Omit "Part 1C" (wherever occurring), substitute "Part IC" .

27   Subsection 23WM(4) (note)

Omit "Part 1C" , substitute "Part IC" .

28   Paragraph 23XGD(2)(g)

Omit "Part 1C" , substitute "Part IC" .

29   Section 23YS

Omit "Part 1C" (wherever occurring), substitute "Part IC" .

Note: The heading to section 23YS is altered by omitting " Part 1C " and substituting " Part IC " .

Customs Act 1901

30   Subsection 203H(1)

Omit "Part 1C" , substitute "Part IC" .

Environment Protection and Biodiversity Conservation Act 1999

31   Subsection 411(1)

Omit "Part 1C" , substitute "Part IC" .

32   Subsection 425(1)

Omit "Part 1C" , substitute "Part IC" .

Excise Act 1901

33   Subsection 107DD(1)

Omit "Part 1C" , substitute Part IC" .

Export Control Act 1982

34   Subsection 11C(1)

Omit "Part 1C" , substitute "Part IC" .

Quarantine Act 1908

35   Subsection 66AN(1)

Omit "Part 1C" , substitute "Part IC" .

Part 5   Corrections relating to Part 1D of the Crimes Act 1914

Commonwealth Places (Application of Laws) Act 1970

36   Schedule

Omit "Part 1D" , substitute "Part ID" .

Crimes Act 1914

37   Subsections 3ZH(2), (2A) and (3A) and 3ZJ(6A)

Omit "Part 1D" (wherever occurring), substitute "Part ID" .

38   Subsection 3ZL(4)

Omit "Part 1D" , substitute "Part ID" .

39   Paragraphs 23B(6)(b) and 23C(7)(i)

Omit "Part 1D" , substitute "Part ID" .

40   Part 1D (heading)

Repeal the heading, substitute:

Part ID - Forensic procedures

Crimes Amendment (Forensic Procedures) Act 1998

41   Item 1 of Schedule 1 (heading)

Repeal the heading, substitute:

1 After Part IC

Note: This corrects a misdescribed amendment of the Crimes Act 1914.

Part 6   Saving provision

42   Saving provision

 

(1) The amendments made by this Schedule do not invalidate:

(a) an instrument made under, or referring to, a Part of the Crimes Act 1914 whose heading is repealed and substituted by this Schedule; or

(b) anything done under such an instrument or such a Part.

      

(2) Subitem (1) has effect whether the instrument was made, or the thing was done, before or after this Act received the Royal Assent.