Commonwealth of Australia Explanatory Memoranda

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AUSTRALIAN FEDERAL POLICE AND OTHER LEGISLATION AMENDMENT BILL 2003

2002-2003-2004

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

SENATE

AUSTRALIAN FEDERAL POLICE AND OTHER LEGISLATION
AMENDMENT BILL 2003

SUPPLEMENTARY EXPLANATORY MEMORANDUM

Amendments to be Moved on Behalf of the Government

(Circulated by authority of the Minister for Justice and Customs,

Senator the Honourable Chris Ellison)

AUSTRALIAN FEDERAL POLICE AND OTHER LEGISLATION AMENDMENT BILL 2003

OUTLINE

The Australian Federal Police and Other Legislation Amendment Bill 2003 completes the integration of the Australian Protective Service into the Australian Federal Police (AFP) and enables the AFP to access Commonwealth investigative powers when investigating State offences which have a federal aspect.

The proposed amendments address issues raised with the Senate Legal and Constitutional Legislation Committee during its consideration of the Bill. These issues are discussed at pages 30-33 of the Committee’s report.

Schedule 3 of the Bill as introduced contains the amendments to allow the AFP to investigate State offences with a federal aspect. Schedule 3 of the Bill implements the legislative aspect of resolution 16 of the April 2002 Leaders’ Summit on Terrorism and Multijurisdictional Crime. Resolution 16 committed:

“To legislate and develop administrative arrangements to allow investigation by the Australian Federal Police into State offences incidental to multi-jurisdictional crime.”

The Standing Committee of Attorneys-General-Australasian Police Ministers Council Joint Working Group on National Investigative Powers (‘the Joint Working Group’) was tasked with facilitating the implementation of resolution 16. In its report on resolution 16, the Joint Working Group recommended that:

“The Australian Federal Police (AFP) can best be given the power to investigate state offences incidental to multi-jurisdictional crime by amending Commonwealth legislation to allow the AFP to utilise Commonwealth investigative powers to investigate State offences with a federal aspect.”

On 11 November 2003, the Australasian Police Ministers’ Council (APMC) accepted the JWG recommendation, resolving:

“That the Commonwealth legislate to allow the AFP to utilise Commonwealth investigative powers to investigate State and Territory offences with a federal aspect and that administrative arrangements be developed for them by the middle of 2004.”

In practice, where the AFP is investigating Commonwealth crimes, it may become apparent that State offences have also been committed. The amendments in Schedule 3 will enable the AFP to investigate the totality of the criminal conduct where those State offences have a federal aspect. A State offence has a federal aspect if the subject-matter of the offence is a subject on which the Commonwealth has constitutional power to legislate. A State offence also has a federal aspect where the investigation of that State offence is incidental to an investigation of a Commonwealth or Territory offence.

Proposed amendment 22 will provide the AFP with access to the listening device powers in Division 2 of Part II of the Australian Federal Police Act 1979 (‘the AFP Act’). This amendment will allow the AFP to obtain listening device warrants when investigating State offences with a federal aspect. This amendment will enable full implementation of the Joint Working Group resolution as it ensures that the AFP are able to access the same range of Commonwealth investigative powers when investigating State offences with a federal aspect as it would when investigating Commonwealth offences.

This provision, together with proposed amendment 6, will also amend Section 9 of the AFP Act which prescribes the powers and duties of AFP officers. This amendment will clarify that an AFP member has the powers and duties that are conferred or imposed on a constable or an officer of police in the place in which the member is acting when investigating State offences with a federal aspect.

The remaining amendments are minor, technical improvements to the Bill.

Proposed amendments 1-3 will correct some technical issues with the commencement table of the Bill as introduced. Proposed amendment 4 will amend item 58 of Schedule 1 of the Bill to ensure the term ‘Commonwealth authority’ is defined for the purposes of proposed paragraph 69E(1)(a). Proposed amendment 5 will amend item 12 of Schedule 2 of the Bill to avoid an out-of-date reference to the Australian Protective Service Act 1987 continuing to appear in the Passenger Movement Charge Collection Act 1978.

Proposed amendments 9-17, 20-21, 25-33 and 36-37 will clarify, for the purposes of the definition of ‘State offence that has a federal aspect’ in proposed section 4AA of the AFP Act and proposed section 3AA of the Crimes Act 1914 (‘the Crimes Act’), that the conduct constituting an offence determines whether it is a State offence with a federal aspect.

Proposed amendments 18-19 and 34-35 will amend the definition of ‘State offence that has a federal aspect’ to include a specific reference to the Commonwealth’s constitutional power to legislate in respect of external affairs. The external affairs power will be added to the list of areas of Commonwealth constitutional power specified in proposed subsection 4AA(3) of the AFP Act and proposed subsection 3AA(3) of the Crimes Act.

The remaining amendments will ensure that ‘State offence that has a federal aspect’ includes an Australian Capital Territory (ACT) offence that has a federal aspect. Items 1 and 6 of Schedule 3 of the Bill as introduced provide that ‘State offence that has a federal aspect’ includes a Northern Territory offence but not an ACT offence.

FINANCIAL IMPACT

The proposed amendments have no financial impact on Government revenue.

NOTES ON CLAUSES

Amendment 1

This amendment will update the commencement table item 11, by omitting items 1 to 11 in the 1st column and substituting items 9 to 13.

Amendment 2

This amendment will update the commencement table by omitting table item 12. Item 12 will be omitted and substituted by amendment 5.

Amendment 3

This amendment will update the commencement table by omitting item 13. Item 13 will be included in Column 1 of table item 11.

Amendment 4

This amendment will omit the definition of ‘authority of the Commonwealth’ in item 58 of Schedule 1 of the Bill as introduced and replace it with a definition of ‘Commonwealth authority’. Proposed paragraph 69E(1)(a) uses the term ‘Commonwealth authority’, but proposed subsection 69E(3) in item 58 of the Bill defines instead the term ‘authority of the Commonwealth’. The term ‘Commonwealth authority’ should have been defined in proposed subsection 69E(3). This term will have the same meaning as the term currently has in APS Act to ensure the AFP Commissioner can continue to charge for protective security services provided by protective service officers after the transfer.

Amendment 5

This amendment will omit item 12 of Schedule 2 of the Bill as introduced and will substitute a new item 12. At the time the Bill was being drafted, the Customs Legislation Amendment Bill (No. 2) 2002 (‘the CLA Bill’) was before the Parliament. The CLA Bill added paragraph 5(m) to the Passenger Movement Charge Collection Act 1978 (‘the PMCC Act’), referring to protective service officers within the meaning of the APS Act. That paragraph was expressed to have effect from
1 December 2002.

In order not to disturb the retrospective effect of paragraph (5)(m), a new paragraph (5)(n) was added by item 12 of Schedule 2 of the Bill. This will work effectively as paragraph 5(m) will simply have no meaning once the APS Act is repealed. However, as the CLA Bill has commenced (as the Customs Legislation Amendment Act (No. 1) 2003) the proposed amendment will avoid an out-of-date reference in the APS Act continuing to appear in the PMCC Act.

Amendment 6

This provision will clarify for the purposes of the AFP Act that ‘federal aspect’, in relation to an offence against a law of a State or the ACT, has the meaning given to it in proposed subsection 4AA(1). Proposed section 4AA of the AFP Act defines ‘State offence that has a federal aspect’.

Amendment 7

This amendment will provide an explanation of the object of proposed section 4AA of the AFP Act which defines ‘State offence that has a federal aspect.’ A State offence may be identified as having a federal aspect where it potentially falls within Commonwealth legislative powers because of the elements of the State offence or the circumstances in which the State offence was committed, or because the investigation of that State offence is incidental to an investigation of a Commonwealth or Territory offence.

Amendment 8

This provision will clarify that the definition of ‘State offence that has a federal aspect’ in proposed section 4AA of the AFP Act applies to proposed subparagraph 9(1)(c)(iva). This proposed subparagraph adds ‘the investigation of State offences that have a federal aspect’ to the powers and duties of the AFP prescribed in section 9 of the AFP Act.

Amendments 9-17

These amendments will clarify, for the purposes of the definition of ‘State offence that has a federal aspect’ in proposed section 4AA of the AFP Act, that it is the conduct constituting an offence that determines whether that offence is a State offence with a federal aspect.

Amendments 18, 19

The definition of ‘State offence that has a federal aspect’ in proposed section 4AA of the AFP Act provides that a State offence has a federal aspect if, assuming that the Parliament of the Commonwealth had enacted a provision that created an offence penalising the specific acts or omissions involved in committing the State offence, that provision would have been a valid law of the Commonwealth. A State offence is taken to be covered by this provision if it falls within one of the specified areas of Commonwealth constitutional power.

This amendment will provide that a State offence would be a State offence with a federal aspect where the conduct constituting the State offence relates to a matter in respect of which an international agreement to which Australia is a party imposes obligations to which effect could be given by the creation of an offence against the domestic laws of the parties to the agreement, or relates to a matter that affects the relations between Australia and another country or countries or is otherwise a subject of international concern.

Amendments 20, 21

These amendments will provide that ‘conduct’ and ‘engage in conduct’ have the same meaning as in the Criminal Code. Section 4.1 of the Criminal Code defines ‘conduct’ as an act, an omission to perform an act or a state of affairs. Section 4.1 provides that ‘engage in conduct’ means to do an act or to omit to perform an act.

Amendment 20 also defines ‘State’ to include the ACT and the Northern Territory for the purposes of the definition of ‘State offence that has a federal aspect’ in proposed section 4AA of the AFP Act.

Amendment 22

This amendment will enable the legislative aspect of the recommendation of the Standing Committee of Attorneys-General-Australasian Police Ministers Council Joint Working Group on National Investigative Powers (‘the Joint Working Group’) to be fully implemented. The Joint Working Group recommended: “That the Commonwealth legislate to allow the AFP to utilise Commonwealth investigative powers to investigate State and Territory offences with a federal aspect and that administrative arrangements be developed for them by the middle of 2004.”

This amendment will add ‘the investigation of State offences that have a federal aspect’ to the powers and duties of the AFP prescribed in section 9 of the AFP Act.

This amendment will also extend the definition of ‘general offence’ in section 12B of the AFP Act to include a State offence that has a federal aspect. This amendment will allow the Australian Federal Police to access the Commonwealth listening device powers in Division 2 of Part II of the AFP Act when investigating State offences that have a federal aspect.

The existing restrictions in Division 2 of Part II of the AFP Act on the types of offences for which listening device warrants are available will also apply to State offences with a federal aspect. The AFP will only be able to access a warrant for the use of listening devices when investigating a State offence with a federal aspect where that State offence also has the characteristics of one of the serious offences that fall within the definition in section 12B of the AFP Act of a ‘class 1 general offence’ or a ‘class 2 general offence’.

This amendment will also provide that application of Division 2 of Part II of the AFP Act in relation to State offences with a federal aspect is not intended to limit or exclude the concurrent operation of any law of a State or of the ACT.

Amendment 23

This provision will clarify for the purposes of the Crimes Act that ‘federal aspect’, in relation to an offence against a law of a State or the ACT, has the meaning given to it in proposed subsection 4AA(1). Proposed section 3AA of the Crimes Act defines ‘State offence that has a federal aspect’.

Amendment 24

This amendment will provide an explanation of the object of proposed section 3AA of the Crimes Act which defines ‘State offence that has a federal aspect.’ A State offence may be identified as having a federal aspect where it potentially falls within Commonwealth legislative powers because of the elements of the State offence or the circumstances in which the State offence was committed, or because the investigation of that State offence is incidental to an investigation of a Commonwealth or Territory offence.

Amendment 25-33

These amendments will clarify, for the purposes of the definition of ‘State offence that has a federal aspect’ in proposed section 3AA of the Crimes Act, that it is the conduct constituting an offence that determine whether that offence is a State offence with a federal aspect.

Amendments 34, 35

These amendments will add the external affairs power to the list of areas of Commonwealth constitutional power specified in the definition of ‘State offence that has a federal aspect’ in proposed subsection 3AA(3) of the Crimes Act. The definition of ‘State offence that has a federal aspect’ provides that a State offence has a federal aspect if, assuming that the Parliament of the Commonwealth had enacted a provision that created an offence penalising the specific acts or omissions involved in committing the State offence, that provision would have been a valid law of the Commonwealth. A State offence is taken to be covered by this provision if it falls within one of the specified areas of Commonwealth constitutional power.

Amendments 36, 37

Amendment 38

This amendment will add a note to the definition of ‘State offence that has a federal aspect’ in proposed section 3AA of the Crimes Act to clarify that subsection 3(1) of the Crimes Act defines ‘State’ to include the Northern Territory.

Amendment 39

Section 3C of the Crimes Act defines ‘offence’. Paragraph (a) of the definition provides that ‘offence’ means an offence against a law of the Commonwealth (other than the Defence Force Discipline Act 1982). Paragraph (b) of the definition provides that ‘offence’ also means an offence against a law of the Territory other than the ACT.

Item 7 of Schedule 3 of the Bill as introduced adds proposed paragraph (c) to the definition of ‘offence’. This paragraph extends the definition of ‘offence’ to include ‘a State offence that has a federal aspect.’

This amendment will omit the reference to ‘other than the Australian Capital Territory’ in paragraph (b) of the definition in section 3C of the Crimes Act. This amendment is required because every offence against a law of the Australian Capital Territory is in effect a State offence that has a federal aspect as the Commonwealth has the constitutional power to legislate in the Territories.

The effect of this amendment will be that both paragraphs (b) and proposed paragraph (c) of the definition of ‘offence’ will cover an ACT offence.

Amendment 40

Consequential to the amendments to the definition of ‘offence’ in section 3C of the Crimes Act, this amendment will repeal subsection 3D(3) of the Crimes Act which provides that Part IAA of the Crimes Act does not apply to offences against the laws of the ACT.

This amendment will also provide for concurrent operation of Part IAA of the Crimes Act and ACT laws on search of persons or premises, arrest, stopping, detaining or searching conveyances or the seizure of things in relation to offences against a law of the ACT.

Amendment 41

This amendment will be consequential to clarifying that ‘State offence that has a federal aspect’ includes an ACT offence that has a federal aspect. The Bill as introduced provides that the application of Part IAA of the Crimes Act is not intended to limit or exclude the concurrent operation of any law of a State. This amendment will extend that provision to concurrent operation of any law of the ACT.

Amendment 42

This amendment will add a note to section 3D of the Crimes Act to clarify that proposed section 3AA of the Crimes Act (the definition of ‘State offence that has a federal aspect’) has the effect that an offence against the law of the ACT is a State offence that has a federal aspect.

Amendment 43

This amendment will expand the definition of ‘offence’ for the purposes of Part ID of the Crimes Act (‘Forensic procedures’) to ensure that AFP officers can access the powers in Part ID when investigating ACT offences that have a federal aspect. This amendment will provide that ‘offence’ does not include an offence against a law of a Territory other than the ACT.

Amendment 44

This provision will amend proposed section 23YUL of the Crimes Act. Proposed section 23YUL provides that the application of Part ID in relation to State offences that have a federal aspect is not intended to limit or exclude the concurrent operation of any law of a State. This amendment will extend that provision to apply to any law of the ACT.

Amendment 45

This amendment will add a note to proposed section 23YUL of the Crimes Act to clarify the effect of proposed section 3AA of the Crimes Act: that an offence against a law of the ACT is a State offence that has a federal aspect.

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