Mutual Assistance in Criminal Matters Legislation Amendment Bill 1996
First Reading
1996
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Mutual Assistance in Criminal Matters Legislation Amendment Bill 1996
No. , 1996
(Attorney-General)
A Bill for an Act to amend the Mutual Assistance in Criminal Matters Act 1987, and for related purposes
Contents
1 Short title
2 Commencement
3 Schedule(s)
Schedule 1--Amendment of the Mutual Assistance in Criminal Matters Act 1987
Part 1--Object and application of the Act
Part 2--Requests for assistance
Part 3--Refusal of assistance
Part 4--Restriction on use of information
Part 5--Search, seizure and powers of arrest
Part 6--Miscellaneous
Part 7--Saving provision
Schedule 2--Amendment of the Financial Transaction Reports Act 1988
Schedule 3--Amendment of the Proceeds of Crime Act 1987
A Bill for an Act to amend the Mutual Assistance in Criminal Matters Act 1987, and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the
Mutual Assistance in Criminal Matters Legislation Amendment Act 1996.
(1) Sections 1, 2 and 3 commence on the day on which this Act receives the Royal Assent.
(2) The items in the Schedules commence on a day or days to be fixed by Proclamation.
(3) If a provision referred to in subsection (2) does not commence under that subsection 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.
Subject to section 2, each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Part 1--Object and application of the Act 1 Section 5
Repeal the section, substitute:
The objects of this Act are:
(a) to regulate the provision by Australia of international assistance in criminal matters when a request is made by a foreign country for any of the following:
(i) the taking of evidence, or the production of any document or other article, for the purposes of a proceeding in the foreign country;
Back to Top (ii) the issue of a search warrant and the seizure of any thing relevant to a proceeding or investigation in the foreign country;
(iii) the forfeiture or confiscation of property in respect of a foreign serious offence;
(iv) the recovery of pecuniary penalties in respect of a foreign serious offence;
(v) the restraining of dealings in property that may be forfeited or confiscated, or that may be needed to satisfy pecuniary penalties imposed, because of the commission of a foreign serious offence; and
(b) to facilitate the provision by Australia of international assistance in criminal matters when a request is made by a foreign country for the making of arrangements for a person who is in Australia to travel to the foreign country to give evidence in a proceeding or to give assistance in relation to an investigation; and
(c) to facilitate the obtaining by Australia of international assistance in criminal matters.
2 Section 6
Repeal the section, substitute:
This Act does not prevent the provision or obtaining of international assistance in criminal matters other than assistance of a kind that may be provided or obtained under this Act.
3 Section 7
Repeal the section, substitute:
(1) Subject to this section, this Act applies to all foreign countries.
(2) The regulations may provide that this Act applies to a foreign country subject to:
(a) any mutual assistance treaty between that country and Australia that is referred to in the regulations; and
(b) any multilateral mutual assistance treaty (being a treaty to which that country is a party) that is referred to in the regulations.
(3) If the regulations provide, in accordance with subsection (2), that this Act applies to a foreign country subject to a mutual assistance treaty, then:
(a) if the treaty relates wholly to the provision of assistance in criminal matters--this Act applies subject to the limitations, conditions, exceptions or qualifications that are necessary to give effect to the treaty in relation to that country; or
(b) if the treaty relates in part to the provision of assistance in criminal matters--this Act applies subject to the limitations, conditions, exceptions or qualifications that are necessary to give effect, in relation to that country, to that part of the treaty that relates to the provision of assistance in criminal matters.
4 Subsection 14(1)
Omit "to which this Act applies".
5 Paragraphs 16(1)(b) and (2)(b)
Omit "to which this Act applies".
6 Subsection 29(1)
Omit all the words to and including "the person:", substitute:
If a person is to be transported in custody from a foreign country through Australia to another foreign country for the purposes of:
(a) giving evidence in a proceeding; or
(b) giving assistance in relation to an investigation;
relating to a criminal matter in the other foreign country, the person:
7 Section 32
Omit "to which this Act applies".
8 Section 33
Omit "to which this Act applies".
9 Subsection 37A(1)
Omit ", being a country to which this Act applies because of regulations made under subsection 7(2A),".
Part 2--Requests for assistance
10 Subsection 3(1)
Insert:
video link means a video and sound system that enables persons assembled in a place in a country to see, hear and talk to persons assembled in
Back to Top a place in another country.
11 Section 10
Repeal the section, substitute:
(1)
A request for international assistance in a criminal matter that Australia is authorised to make under this Act may be made only by the Attorney-General.
(2) Subsection (1) does not prevent the Attorney-General on behalf of Australia from requesting international assistance in a criminal matter other than assistance of a kind that may be requested under this Act.
12 Subsection 11(2)
Repeal the subsection, substitute:
(2) A request must be in writing and must include or be accompanied by the following information:
(a) the name of the authority concerned with the criminal matter to which the request relates;
(b) a description of the nature of the criminal matter and a statement setting out a summary of the relevant facts and laws;
(c) a description of the purpose of the request and of the nature of the assistance being sought;
(d) any information that may assist in giving effect to the request.
However, a failure to comply with this subsection is not a ground for refusing the request.
13 At the end of section 11
Add:
(4) If a foreign country makes a request to a court in Australia for international assistance in a criminal matter:
(a) the court must refer the request to the Attorney-General; and
(b) the request is then taken, for the purposes of this Act, to have been made to the Attorney-General.
14 Section 12
Repeal the section, substitute:
(1) Australia may request the appropriate authority of a foreign country:
(a) to arrange for:
(i) evidence to be taken in the foreign country in accordance with the law of that country; or
(ii) a document or other article in the foreign country to be produced in accordance with the law of that country;
for the purposes of a proceeding or investigation relating to a criminal matter in Australia; and
(b) to arrange for the evidence, document or other article to be sent to Australia.
(2) To remove any doubt, it is stated that:
(a) any evidence may be taken; or
(b) any document or other article may be obtained;
in the foreign country even though, under Australian law:
(c) the evidence could not have been taken; or
(d) the document or other article could not have been obtained;
by using in the circumstances processes similar to those used in the foreign country.
(3) When making a request under subsection (1), Australia may also request that an opportunity be given for the person giving evidence, or producing the document or other article, to be examined or cross-examined, through a video link, from Australia by:
(a) any party to the proceeding or that party's legal representative; or
(b) any person being investigated or that person's legal representative.
15 Subsection 13(1)
After "foreign country" (first occurring), insert "(requesting country)".
16 Subsection 13(1)
Omit "foreign country" (second occurring), substitute "requesting country or another foreign country".
17 Subsection 13(1)
Omit "foreign" (last occurring), substitute "requesting".
Back to Top 18 Subsection 13(3) Omit "foreign", substitute "requesting".
19 Paragraph 13(4)(a)
Omit "foreign", substitute "requesting".
20 Paragraph 13(4)(c)
Omit "foreign", substitute "requesting".
21 After subsection 13(4)
Insert:
(4A) If the requesting country has so requested, the Magistrate conducting a proceeding under subsection (2) may permit:
(a) any person to whom the proceeding in the requesting country relates or that person's legal representative; or
(b) the legal representative of the relevant authority of the requesting country;
to examine or cross-examine, through a video link, from the requesting country any person giving evidence or producing a document or other article, at the proceeding.
22 Paragraph 13(5)(a)
Omit "foreign", substitute "requesting".
23 Subsection 13(7)
Omit "foreign", substitute "requesting".
24 Subsection 13(8)
Omit "a foreign", substitute "the requesting country or another foreign".
25 Subsection 13(8)
Omit "the foreign", substitute "that".
26 Subsection 13(10)
Omit "foreign", substitute "requesting".
27 Subsections 14(2) and (3)
Repeal the subsections, substitute:
(2) If this section applies to a proceeding or investigation, Australia may request the appropriate authority of the foreign country:
(a) to obtain a warrant or other instrument that, in accordance with the law of the foreign country, authorises:
(i) a search for a thing relevant to the proceeding or investigation; and
(ii) if such a thing, or any other thing that is or may be relevant to the proceeding or investigation is found as a result of the search--the seizure of that thing; and
(b) to arrange for the thing that has been seized to be sent to Australia.
(3) If the appropriate authority of the foreign country has obtained any thing relevant to the proceeding or investigation by means of a process authorised by the law of that country other than the issue (as requested by Australia) of a warrant or other instrument authorising the seizure of the thing, the thing:
(a) is not inadmissible in evidence in the proceeding; or
(b) is not precluded from being used for the purposes of the investigation;
on the ground alone that it was obtained otherwise than in accordance with the request.
28 Paragraph 15(1)(b)
Omit "a thing relevant", substitute "evidential material relating".
29 Paragraph 15(1)(c)
Omit "under this section in relation to that thing", substitute "in respect of the evidential material".
30 Subsection 15(1)
Omit "that thing" (second occurring), substitute "the evidential material".
31 At the end of subsection 15(1)
Add:
Note: Divisions 2 and 3 of Part VIIA make provision relating to applications for, and the issue and execution of, search warrants requested by foreign countries.
32 Subsections 15(2) to (15)
Repeal the subsections.
Note: The heading to section 15 is altered by adding at the end "--action by Attorney-General".
33 Subsections 16(1) and (2)
Omit "the Attorney-General may, in his or her discretion,", substitute "Australia may".
34 Subsection 16(3)
Omit "Where the Attorney-General makes a request", substitute "If a request is made".
35 Section 32
Omit "The Attorney-General may, in his or her discretion,", substitute "Australia may".
36 Section 33
Omit "the Attorney-General may, in his or her discretion,", substitute "Australia may".
Back to Top 37 After section 39 Insert:
(1) If a defendant in a proceeding (
original proceeding) relating to a criminal matter thinks that it is necessary for the purposes of the proceeding that:
(a) evidence should be taken in a foreign country; or
(b) a document or other article in a foreign country should be produced; or
(c) a thing located in a foreign country should be seized; or
(d) arrangements should be made for a person who is in a foreign country to come to Australia to give evidence relevant to the proceeding;
the defendant may apply to the Supreme Court of the State or Territory in which the proceeding is being heard for a certificate that it would be in the interests of justice for the Attorney-General to make any appropriate request to the foreign country under Part II, III or IV so that:
(e) the evidence may be taken; or
(f) the document or article may be produced; or
(g) the thing may be seized; or
(h) the arrangements may be made.
(2) Before making a decision on the application, the court must give an opportunity to:
(a) all parties to the original proceeding; and
(b) the Attorney-General;
to appear before the court and be heard on the merits of the application.
(3) In deciding whether to issue a certificate, the court must have regard to the following matters:
(a) whether the foreign country is likely to grant such a request made by the Attorney-General on behalf of the defendant;
(b) the extent to which the material (whether it is evidence, a document, an article or a thing) that the defendant seeks to obtain from the foreign country would not otherwise be available;
(c) whether the court hearing the original proceeding would be likely to admit the material into evidence in the proceeding;
(d) the likely probative value of the material, if it were admitted into evidence in the proceeding, with respect to any issue likely to be determined in the proceeding;
(e) whether the defendant would be unfairly prejudiced if the material were not available to the court.
(4) Subsection (3) does not prevent the court from having regard to any other matter that it considers relevant.
(5) If the court issues a certificate:
(a) the court must send a copy of the certificate to the Attorney-General; and
(b) the Attorney-General must, in accordance with the certificate, make a request on behalf of the defendant to the foreign country for international assistance unless he or she is of the opinion, having regard to the special circumstances of the case, that the request should not be made.
(1) If a foreign country refuses a request made under subsection 39A(5), the Attorney-General must give a certificate in writing to that effect.
(2) A certificate under subsection (1) is prima facie evidence of the facts stated in it.
Part 3--Refusal of assistance
38 At the end of paragraphs 8(1)(a), (b), (c), (d) and (e)
Add "or".
39 Paragraph 8(1)(f)
Omit "or" (last occurring).
40 Paragraph 8(1)(g)
Repeal the paragraph.
41 After subsection 8(1)
Insert:
(1A) A request by a foreign country for assistance under this Act must be refused if it relates to the prosecution or punishment of a person charged with, or convicted of, an offence in respect of which the
Back to Top death penalty may be imposed in the foreign country, unless the Attorney-General is of the opinion, having regard to the special circumstances of the case, that the assistance requested should be granted.
(1B) A request by a foreign country for assistance under this Act may be refused if the Attorney-General:
(a) believes that the provision of the assistance may result in the death penalty being imposed on a person; and
(b) after taking into consideration the interests of international criminal co-operation, is of the opinion that in the circumstances of the case the request should not be granted.
42 At the end of paragraphs 8(2)(a), (b), (c) and (d)
Add "or".
43 At the end of subsection 8(2)
Add:
; or (g) it is appropriate, in all the circumstances of the case, that the assistance requested should not be granted.
Part 4--Restriction on use of information
44 After section 43A
Insert:
(1) If, as a result of a request made by the Attorney-General under this Act, any material (whether it is evidence, a document, an article or a thing) has been sent to Australia by a foreign country for the purposes of a proceeding or investigation in relation to a criminal matter, the material is not to be used intentionally for any other purpose without the approval of the Attorney-General.
(2) The material is inadmissible in evidence in any proceeding other than the proceeding in respect of which it was obtained unless the Attorney-General has approved its use for the purposes of that other proceeding.
(3) Any information, document, article or thing obtained directly or indirectly from a person by making use of the material:
(a) otherwise than for the purposes of the proceeding or investigation in respect of which it was obtained; and
(b) without the approval of the Attorney-General;
is inadmissible in evidence in any other proceeding and may not be used for the purposes of any other investigation.
(4) Any person who contravenes subsection (1) is guilty of an offence punishable, on conviction, by a term of imprisonment not exceeding 2 years.
Note: Subsection 4B(2) of the Crimes Act 1914 allows a court to impose an appropriate fine instead of, or in addition to, a term of imprisonment.
(5) For the purposes of this section, disclosure of any material is taken to be a use of that material.
A person who, because of his or her office or employment, has knowledge of:
(a) the contents of a request for international assistance made by a foreign country to Australia under this Act; or
(b) the fact that such a request has been made; or
(c) the fact that such a request has been granted or refused;
must not intentionally disclose those contents or that fact except if:
(d) it is necessary to do so in the performance of his or her duties; or
(e) the Attorney-General has given his or her approval to the disclosure of those contents or that fact.
Penalty: Imprisonment for 2 years.
Note: Under subsection 4D(1) of the Crimes Act 1914, this penalty is the maximum penalty for any offence under this section. Subsection 4B(2) of that Act allows a court to impose an appropriate fine instead of, or in addition to, a term of imprisonment.
Part 5--Search, seizure and powers of arrest
45 Subsection 3(1) (paragraph (a) of the definition of premises)
Omit ", aircraft, vehicle or vessel", substitute "or vehicle".
46 Subsection 3(1)
Insert:
evidential material means a thing relevant to a proceeding or
Back to Top investigation, including such a thing in electronic form.
47 Subsection 3(1)
Insert:
executing officer, in relation to a warrant, means:
(a) the police officer named in the warrant, by the Magistrate who issued the warrant, as being responsible for executing the warrant; or
(b) if that police officer does not intend to be present at the execution of the warrant--another police officer whose name has been written in the warrant by the police officer so named; or
(c) another police officer whose name has been written in the warrant by the police officer last named in the warrant.
48 Subsection 3(1)
Insert:
fax means facsimile transmission.
49 Subsection 3(1)
Insert:
frisk search means:
(a) a search of a person conducted by quickly running the hands over the person's outer clothes; and
(b) an examination of anything worn or carried by the person that is conveniently and voluntarily removed by the person.
50 Subsection 3(1)
Insert:
officer assisting, in relation to a warrant, means:
(a) a person who is a police officer and who is assisting in executing the warrant; or
(b) a person who is not a police officer and who has been authorised by the relevant executing officer to assist in executing the warrant.
51 Subsection 3(1)
Insert:
ordinary search means a search of a person or of articles in the possession of a person that may include:
(a) requiring the person to remove his or her overcoat, coat or jacket and any gloves, shoes and headgear; and
(b) an examination of those items.
52 Subsection 3(1)
Insert:
recently used vehicle, in relation to a search of a person, means a vehicle that the person has operated or occupied at any time within 24 hours before the search commenced.
53 Subsection 3(1)
Insert:
relevant investigation, in relation to a search warrant issued under Division 2 of Part VIIA, means the investigation to which the evidential material authorised to be searched and seized under the warrant relates.
54 Subsection 3(1)
Insert:
relevant proceeding, in relation to a search warrant issued under Division 2 of Part VIIA, means the proceeding to which the evidential material authorised to be searched and seized under the warrant relates.
55 Subsection 3(1)
Insert:
search warrant means a warrant issued under section 38C.
56 Subsection 3(1)
Insert:
seizable item means anything that would present a danger to a person or that could be used to assist a person to escape from lawful custody.
57 Subsection 3(1)
Insert:
strip search means a search of a person or of articles in the possession of a person that may include:
(a) requiring the person to remove all of his or her clothes; and
(b) an examination of the person's body (but not of the person's body cavities) and of those clothes.
58 Subsection 3(1)
Insert:
vehicle includes any means of transport.
59 Before Part VIII
Insert:
Back to Top This Part makes provision:
(a) for the issue and execution in Australia, at the request of a foreign country, of a search warrant in respect of evidential material in Australia relating to an investigation or proceeding in the foreign country that relates to a criminal matter involving a serious offence; and
(b) for matters relating to the arrest of a person when the arrest has been authorised by this Act or by a warrant issued under the regulations.
(1) This section applies if a police officer has been authorised under subsection 15(1) to apply for a search warrant in respect of evidential material relating to an investigation or proceeding in a foreign country that relates to a criminal matter involving a serious offence.
(2) If the police officer has reasonable grounds for suspecting that the evidential material:
(a) is on any particular premises; or
(b) will, within the applicable period, be on any particular premises;
the police officer may, by an information on oath setting out the grounds for that suspicion, apply for a warrant to search those premises for the evidential material.
Note: For applicable period see subsection (4).
(3) If the police officer has reasonable grounds for suspecting that a person:
(a) is in possession of the evidential material; or
(b) will, within the applicable period, be in possession of the evidential material;
the police officer may, by an information on oath setting out the grounds for that suspicion, apply for a warrant to search that person for the evidential material.
Note: For applicable period see subsection (4).
(4) In this section:
applicable period means:
(a) if the application for the warrant is made by telephone, telex, fax or any other electronic means, as provided by section 38H--48 hours; or
(b) in any other case--72 hours.
(1) If the Magistrate is satisfied, on the information, that there are reasonable grounds for suspecting that the evidential material:
(a) is on any particular premises; or
(b) will, within the applicable period, be on any particular premises;
the Magistrate may issue a warrant to search the premises.
Note: For applicable period see subsection (3).
(2) If the Magistrate is satisfied, on the information, that there are reasonable grounds for suspecting that a person:
(a) is in possession of the evidential material; or
(b) will, within the applicable period, be in possession of the evidential material;
the Magistrate may issue a warrant authorising an ordinary search or a frisk search of the person.
Note: For applicable period see subsection (3).
(3) In subsections (1) and (2):
applicable period means:
(a) if the application for the warrant is made by telephone, telex, fax or any other electronic means, as provided by section 38H--48 hours; or
(b) in any other case--72 hours.
Back to Top (4) If the police officer applying for the warrant suspects that, in executing the warrant, it will be necessary to use firearms, the police officer must state that suspicion, and the grounds for that suspicion, in the information.
(5) If the police officer applying for the warrant:
(a) is a member or special member of the Australian Federal Police; and
(b) has, at any time previously, applied for a warrant relating to the same person or premises;
the police officer must state the particulars, and the outcome, of those applications in the information.
(6) A Magistrate of New South Wales or the Australian Capital Territory may issue a warrant in relation to premises or a person in the Jervis Bay Territory.
(7) A Magistrate of a State or internal Territory may:
(a) issue a warrant in relation to premises or a person in that State or Territory; or
(b) issue a warrant in relation to premises or a person in an external Territory; or
(c) issue a warrant in relation to premises or a person in another State or internal Territory (including the Jervis Bay Territory) if the Magistrate is satisfied that there are special circumstances that make the issue of the warrant appropriate; or
(d) issue a warrant in relation to a person wherever the person is in Australia or in an external Territory if the Magistrate is satisfied that it is not possible to predict where the person may be.
(1) If the Magistrate issues a search warrant, the Magistrate is to state in the warrant:
(a) the purpose for which it is issued, including a reference to the nature of the criminal matter to which the relevant proceeding or investigation relates; and
(b) a description of the premises to which the warrant relates or the name or description of the person to whom it relates; and
(c) a description of the evidential material that is to be searched for and seized under the warrant; and
(d) the name of the police officer who, unless he or she inserts the name of another police officer in the warrant, is to be responsible for executing the warrant; and
(e) the period for which the warrant remains in force, which must not be more than:
(i) in the case of a warrant issued on an application by telephone, telex, fax or other electronic means as provided by section 38H--48 hours; or
(ii) in any other case--7 days; and
(f) whether the warrant may be executed at any time or only during particular hours.
(2) Paragraph (1)(e) does not prevent the issue of successive warrants in relation to the same premises or person.
(3) If the warrant relates to premises, the Magistrate is also to state in the warrant:
(a) that the warrant authorises the seizure of any thing (other than the evidential material referred to in paragraph (1)(c)) found at the premises in the course of the search that the executing officer or an officer assisting believes on reasonable grounds to be:
(i) evidential material relating to the relevant proceeding or investigation; or
(ii) a thing relevant to an indictable offence against an Australian law;
if the executing officer or an officer assisting believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an indictable offence against an Australian law; and
(b) whether the warrant authorises an ordinary search or a frisk search of a person who is at or near the premises when the warrant is executed, if the executing officer or an officer assisting suspects on reasonable grounds that the person has in his or her possession any evidential material relating to the relevant proceeding or investigation or any seizable items.
(4) If the warrant relates to a person, the Magistrate is also to state in the warrant:
(a) the kind of search (ordinary or frisk) of the person that the warrant authorises; and
Back to Top (b) that the warrant authorises the seizure of any thing (other than the
evidential material referred to in paragraph (1)(c)) found, in the course of the search, in the possession of the person or in or on a vehicle recently used by the person, being a thing that the executing officer or an officer assisting believes on reasonable grounds to be:
(i) evidential material relating to the relevant proceeding or investigation; or
(ii) a thing relevant to an indictable offence against an Australian law;
if the executing officer or an officer assisting believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an indictable offence against an Australian law.
(1) A warrant in force in relation to premises authorises the executing officer or an officer assisting to do any of the following:
(a) to enter the premises (in the case of a vehicle, wherever it may be);
(b) to search the premises for the evidential material specified in the warrant, and to seize such material if found at the premises;
(c) to seize other things that are found at the premises in the course of the search and that the executing officer or an officer assisting believes on reasonable grounds to be:
(i) evidential material relating to the relevant proceeding or investigation; or
(ii) things relevant to an indictable offence against an Australian law;
if the executing officer or officer assisting believes on reasonable grounds that seizure of the things is necessary to prevent their concealment, loss or destruction or their use in committing an indictable offence against an Australian law;
(d) to seize other things found at the premises in the course of the search that the executing officer or an officer assisting believes on reasonable grounds to be seizable items;
(e) if the warrant so allows--to conduct an ordinary search or a frisk search of a person at or near the premises, if the executing officer or an officer assisting suspects on reasonable grounds that the person has in his or her possession any evidential material relating to the relevant proceeding or investigation or any seizable items.
(2) If the warrant states that it may be executed only during particular hours, it must not be executed outside those hours.
(1) A warrant in force in relation to a person authorises the executing officer or an officer assisting to do any of the following:
(a) to:
(i) search the person in the manner specified in the warrant; and
(ii) search things found in the possession of the person; and
(iii) search any vehicle recently used by the person;
for the evidential material specified in the warrant;
(b) to seize such evidential material if found in the course of the search;
(c) to seize other things that are found, in the course of the search, in the possession of the person or in or on any vehicle recently used by the person and that the executing officer or an officer assisting believes on reasonable grounds to be:
(i) evidential material relating to the relevant proceeding or investigation; or
(ii) things relevant to an indictable offence against an Australian law;
if the executing officer or police officer assisting believes on reasonable grounds that seizure of the things is necessary to prevent their concealment, loss or destruction or their use in committing an indictable offence against an Australian law;
Back to Top (d) to seize other things found in the course of the search that the executing officer or a police officer assisting believes on reasonable grounds to be seizable items.
(2) If the warrant states that it may be executed only during particular hours, it must not be executed outside those hours.
(3) If the warrant authorises an ordinary search or a frisk search of a person, a search of the person different to that so authorised must not be done under the warrant.
A warrant may not authorise a strip search or a search of a person's body cavities.
(1) A police officer may apply to a Magistrate for a warrant by telephone, telex, fax or other electronic means:
(a) in an urgent case; or
(b) if the delay that would occur if an application were made in person would frustrate the effective execution of the warrant.
(2) The Magistrate may require communication by voice to the extent that is practicable in the circumstances.
(3) In making the application, the police officer must give to the Magistrate all the information required to be provided in an application for the issue of a warrant under section 38C, but the application may, if necessary, be made before the information is sworn.
(4) If an application is made to a Magistrate under this section and the Magistrate, after considering the information and having received and considered such further information (if any) as the Magistrate requires, is satisfied that:
(a) a warrant in the terms of the application should be issued urgently; or
(b) the delay that would occur if an application were made in person would frustrate the effective execution of the warrant;
the Magistrate may complete and sign the same form of warrant that would be issued under section 38C.
(1) If the Magistrate decides to issue the warrant under section 38H, the Magistrate is to inform the applicant, by telephone, telex, fax or other electronic means, of the terms of the warrant and the day on which and the time at which it was signed.
(2) The applicant must then complete a form of warrant in terms substantially corresponding to those given by the Magistrate, stating on the form the name of the Magistrate and the day on which and the time at which the warrant was signed.
(3) The applicant must, not later than the day after the day of expiry of the warrant or the day after the day on which the warrant was executed, whichever is the earlier, give or transmit to the Magistrate:
(a) the form of warrant completed by the applicant; and
(b) if the information referred to in subsection 38H(3) was not sworn--that information duly sworn.
(4) The Magistrate is to attach to the documents provided under subsection (3) the form of warrant completed by the Magistrate.
(5) If:
(a) it is material, in any proceedings, for a court to be satisfied that the exercise of a power under a warrant issued under section 38H was duly authorised; and
(b) the form of warrant signed by the Magistrate is not produced in evidence;
the court is to assume, unless the contrary is proved, that the exercise of the power was not duly authorised.
In executing a search warrant:
Back to Top (a) the executing officer may obtain such assistance; and
(b) the executing officer, or a police officer who is assisting in executing the warrant, may use such force against persons and things; and
(c) a person who is not a police officer and who has been authorised to assist in executing the warrant may use such force against things;
as is necessary and reasonable in the circumstances.
(1) If:
(a) a search warrant in relation to premises is being executed; and
(b) the occupier of the premises, or another person who apparently represents the occupier, is present at the premises;
the executing officer or an officer assisting must make a copy of the warrant available to that person.
(2) If a search warrant in relation to a person is being executed, the executing officer or an officer assisting must make a copy of the warrant available to that person.
(3) If a person is searched under a search warrant in relation to premises, the executing officer or an officer assisting must show the person a copy of the warrant.
(4) The executing officer must identify himself or herself to:
(a) the person present at the premises; or
(b) the person being searched;
as the case requires.
(5) The copy of the warrant referred to in subsection (1), (2) or (3) need not include the signature of the Magistrate who issued it.
(1) When executing a search warrant in relation to premises, the executing officer or an officer assisting may:
(a) for a purpose incidental to the execution of the warrant; or
(b) with the written consent of the occupier of the premises;
photograph, film or videorecord the premises or things at the premises.
(2) The executing officer of a warrant in relation to premises and the officers assisting (if any) may not resume and complete the execution of the warrant if they:
(a) cease to execute the warrant; and
(b) leave the premises for a period of more than one hour without the written consent of the occupier of the premises.
(3) If:
(a) the execution of a search warrant is stopped by an order of a court; and
(b) the order is later revoked or reversed on appeal;
the execution of the warrant may be completed if the warrant is still in force.
(1) For the purpose of executing a warrant in relation to premises, the executing officer or an officer assisting may bring to the premises any equipment reasonably necessary to examine or process things found at the premises in order to determine whether the things may be seized under the warrant.
(2) If:
(a) it is not practicable to examine or process the things at the premises; or
(b) the occupier of the premises consents in writing;
the things may be moved to another place so that the examination or processing can be carried out.
(3) If things are moved to another place for the purpose of examination or processing, the executing officer must, if it is practicable to do so:
(a) inform the occupier of the premises of:
(i) the address of that place; and
(ii) the day on which and the time at which the examination or processing will be carried out; and
Back to Top (b) allow the occupier or his or her representative to be present during the examination or processing.
(4) The executing officer or officer assisting may operate equipment already at the premises to examine or process a thing found at the premises in order to determine whether it may be seized under the warrant, if the executing officer or officer assisting believes on reasonable grounds that:
(a) the equipment is suitable for the examination or processing; and
(b) the examination or processing can be carried out without damaging the equipment or thing.
(1) The executing officer of a warrant in relation to premises or an officer assisting may operate electronic equipment at the premises to see whether evidential material is accessible by doing so, if he or she believes on reasonable grounds that the operation of the equipment can be carried out without damaging the equipment.
(2) If the executing officer or officer assisting finds that evidential material is accessible by operating the equipment, he or she may:
(a) seize the equipment and any disk, tape or other associated device; or
(b) if the material can be put in a documentary form by using facilities at the premises--operate those facilities to put the material in that form and seize the documents so produced; or
(c) if the material can be transferred to a disk, tape or other storage device:
(i) that is brought to the premises; or
(ii) that is at the premises and the use of which for the purpose has been agreed to in writing by the occupier of the premises;
operate the equipment or other facilities to copy the material to the storage device and take the storage device from the premises.
(3) Equipment may be seized under paragraph (2)(a) only if:
(a) it is not practicable to put the material in documentary form as mentioned in paragraph (2)(b) or to copy the material as mentioned in paragraph (2)(c); or
(b) possession by the occupier of the equipment could constitute an offence against an Australian law.
(4) If the executing officer or officer assisting believes on reasonable grounds that:
(a) evidential material may be accessible by operating electronic equipment at the premises; and
(b) expert assistance is required to operate the equipment; and
(c) the material may be destroyed, altered or otherwise interfered with if he or she does not take action under this subsection;
he or she may do whatever is necessary to secure the equipment, including locking it up or placing it under guard.
(5) The equipment may be secured:
(a) for up to 24 hours; or
(b) until the equipment has been operated by the expert;
whichever happens first.
(6) The executing officer or officer assisting must give to the occupier of the premises notice of his or her intention to secure equipment and of the fact that the equipment may be secured for up to 24 hours.
(7) If the executing officer or officer assisting believes on reasonable grounds that the expert assistance will not be available within 24 hours, he or she may apply to the Magistrate who issued the warrant for an extension of that period.
(8) The executing officer or officer assisting must give notice to the occupier of the premises of his or her intention to apply for an extension, and the occupier is entitled to be heard in relation to the application.
(9) Division 2 applies, with such modifications as are necessary, to the issuing of an extension.
Back to Top (1) If:
(a) damage is caused to equipment as a result of its being operated as mentioned in section 38M or 38N; and
(b) the damage was caused as a result of:
(i) a lack of reasonable care in selecting the person who was to operate the equipment; or
(ii) a lack of reasonable care on the part of the person operating the equipment;
compensation for the damage is payable to the owner of the equipment.
(2) Compensation is payable out of money appropriated by the Parliament for the purpose.
(3) In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises or his or her employees or agents could have provided any warning or guidance as to the operation of the equipment that was appropriate in the circumstances but failed to do so.
(1) Subject to subsection (2), if an executing officer or officer assisting seizes, under a warrant in relation to premises:
(a) a document, film, computer file or other thing that can be readily copied; or
(b) a storage device the information in which can be readily copied;
the executing officer or officer assisting must, if requested to do so by the occupier of the premises or another person who apparently represents the occupier and who is present when the warrant is executed, give a copy of the thing or the information to that person as soon as practicable after the seizure.
(2) Subsection (1) does not apply if:
(a) the thing was seized under paragraph 38N(2)(b) or taken under paragraph 38N(2)(c); or
(b) possession by the occupier of the document, film, computer file, thing or information could constitute an offence against an Australian law.
(1) If:
(a) a warrant in relation to premises is being executed; and
(b) the occupier of the premises or another person who apparently represents the occupier is present at the premises;
the occupier of the premises or that person is entitled to watch the search being conducted.
(2) The right to watch the search being conducted ceases if the person impedes the search.
(3) This section does not prevent 2 or more areas of the premises being searched at the same time.
(1) If a thing is seized under a warrant or moved under subsection 38M(2), the executing officer or an officer assisting must provide a receipt for the thing.
(2) If 2 or more things are seized or moved, they may be covered in the one receipt.
(1) Subject to subsection (2), if:
(a) a police officer has, under this Act or under a warrant issued under the regulations, power to arrest a person; and
(b) the police officer believes on reasonable grounds that the person is on any premises;
the police officer may, at any time of the day or night, enter the premises for the purpose of searching the premises for the person or arresting the person. In doing so, the police officer may use such force as is necessary and reasonable in the circumstances.
(2) A police officer must not enter a dwelling house
Back to Top at any time during the period commencing at 9 pm on a day and ending at 6 am on the following day unless the police officer believes on reasonable grounds that it will not be practicable to arrest the person, either at the dwelling house or elsewhere, at another time.
(3) In subsection (2):
dwelling house includes:
(a) a vehicle; or
(b) a room in a hotel, motel, boarding house or club, in which people ordinarily retire for the night.
(1) In exercising powers of arrest under section 38S, a police officer must not use more force, or subject the person being arrested to greater indignity, than is necessary and reasonable to make the arrest or to prevent the escape of the person after the arrest.
(2) Without limiting subsection (1), a police officer must not, in the course of arresting a person:
(a) if paragraph (b) does not apply--do anything that is likely to cause the death of, or grievous bodily harm to, the person unless the police officer believes on reasonable grounds that doing that thing is necessary to protect a human life or to prevent serious injury to another person (including the police officer); or
(b) if the person is attempting to escape arrest by fleeing--do anything that is likely to cause the death of, or grievous bodily harm to, the person unless:
(i) the police officer believes on reasonable grounds that doing that thing is necessary to protect a human life or to prevent serious injury to another person (including the police officer); or
(ii) the person has, if practicable, been called on to surrender and the police officer believes on reasonable grounds that the person cannot be arrested in any other manner.
(1) When arresting a person, the police officer must inform the person of the reason for the arrest.
(2) It is sufficient if the person is informed of the substance of the reason, and it is not necessary that this be done in language of a precise or technical nature.
(3) Subsection (1) does not apply to the arrest of the person if:
(a) the person should, in the circumstances, know the reason for the arrest; or
(b) the person's actions make it impracticable for the police officer to inform the person of the reason for the arrest.
(1) The police officer arresting the person, or any police officer who is present at the arrest, may:
(a) if he or she believes on reasonable grounds that it is prudent to do so in order to ascertain whether the person is carrying any seizable items--conduct a frisk search of the person at, or soon after, the time of arrest; or
(b) if he or she suspects on reasonable grounds that the person is carrying any seizable items--conduct an ordinary search of the person at, or soon after, the time of the arrest.
(2) The police officer may seize any seizable items found as a result of the search.
(1) An ordinary search or a frisk search of a person under this Part must, if practicable, be conducted by a person of the same sex as that of the person being searched.
(2) An officer assisting who is not a police officer must not take part in an ordinary search or a frisk search of a person under this Part.
Back to Top (1) A police officer must, before any person enters premises under a warrant or to arrest a person:
(a) announce that he or she is authorised to enter the premises; and
(b) give any person at the premises an opportunity to allow entry to the premises.
(2) A police officer is not required to comply with subsection (1) if he or she believes on reasonable grounds that immediate entry to the premises is required to ensure:
(a) the safety of a person (including the police officer); or
(b) that the effective execution of the warrant or the arrest is not frustrated.
A person must not make, in an application for a warrant, a statement that the person knows to be false or misleading in a material particular.
Penalty: Imprisonment for 2 years.
Note: Under subsection 4D(1) of the Crimes Act 1914, this penalty is the maximum penalty for the offence. Subsection 4B(2) of that Act allows a court to impose an appropriate fine instead of, or in addition to, a term of imprisonment.
A person must not:
(a) state the name of a Magistrate in a document that purports to be a form of warrant under section 38H unless that Magistrate issued the warrant; or
(b) state on a form of warrant under that section a matter that, to the person's knowledge, departs in a material particular from the form authorised by the Magistrate; or
(c) purport to execute, or present to a person, a document that purports to be a form of warrant under that section that:
(i) the person knows has not been approved by a Magistrate under that section; or
(ii) the person knows to depart in a material particular from the terms authorised by a Magistrate under that section; or
(d) send to a Magistrate a form of warrant under that section that is not the form of warrant that the person purported to execute.
Penalty: Imprisonment for 2 years.
Note: Under subsection 4D(1) of the Crimes Act 1914, this penalty is the maximum penalty for any offence under this section. Subsection 4B(2) of that Act allows a court to impose an appropriate fine instead of, or in addition to, a term of imprisonment.
(1) Subject to subsection (2), if a police officer seizes a thing while executing a warrant issued under Division 2, he or she must deliver it into the custody and control of the Commissioner of Police of the Australian Federal Police.
(2) If the thing seized is not evidential material relating to the proceeding or investigation relevant to the warrant, the police officer may make the thing available to officers of the police force of a State or Territory for the purpose of investigating or prosecuting an offence to which the thing relates.
(3) If the thing is delivered to the Commissioner under subsection (1), the Commissioner must:
(a) inform the Attorney-General that the thing has been so delivered; and
(b) retain the thing pending the Attorney-General's direction under subsection (4) about how to deal with the thing; and
(c) comply with any such direction that the Attorney-General gives.
(4) The Attorney-General may, by written notice, give the Commissioner a direction about how to deal with the thing.
(5) Without limiting the directions that may be given, a direction may require the Commissioner to send the thing to a foreign country.
(6) The Attorney-General must direct the Commissioner to return the thing if:
(a) the reason for its seizure no longer exists; or
Back to Top (b) it is decided that the thing is not to be used in evidence in a foreign country or in respect of a criminal proceeding in Australia;
unless the thing is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership.
(1) If:
(a) a person arrested under a warrant issued under the regulations has been released on bail by order of a Magistrate; and
(b) a police officer has reasonable grounds for believing that the person has contravened, or is about to contravene, a term or condition of a recognisance on which bail was granted to the person;
the police officer may, without warrant, arrest the person.
(2) A person arrested under subsection (1) must, as soon as practicable, be brought before a Magistrate.
Part 6--Miscellaneous
60 Subsection 3(1) (definition of facsimile copy)
Omit "by facsimile transmission", insert "or sent by fax".
61 Subsection 3(1)
Insert:
foreign organised fraud offence means an offence against the law of a foreign country that is committed by a person engaging in 2 or more acts or omissions:
(a) each of which constitutes an offence of defrauding, or conspiring to defraud, the government or a public authority of the foreign country; and
(b) from which the person derives substantial benefit (within the meaning of the Proceeds of Crime Act).
62 Subsection 3(1) (definition of Governor)
Repeal the definition, substitute:
Governor means:
(a) in relation to the Australian Capital Territory--the Chief Minister of the Territory; or
(b) in relation to the Northern Territory--the Administrator of the Territory.
63 Subsection 3(1) (definition of Magistrate)
Repeal the definition, substitute:
Magistrate means:
(a) a Magistrate of a State in respect of whom an arrangement under section 39 is in force; or
(b) a Magistrate of Norfolk Island in respect of whom an arrangement under section 39 is in force; or
(c) a Magistrate of an external Territory (other than Norfolk Island).
64 Subsection 3(1) (definition of money laundering offence)
Repeal the definition, substitute:
money laundering offence, in relation to the proceeds of a serious offence, means an offence that is committed by a person:
(a) engaging, directly or indirectly, in a transaction that involves money, or other property, that is proceeds of the offence; or
(b) receiving, possessing, concealing, disposing of or bringing into a country money, or other property, that is proceeds of the offence;
when the person knows that, or is reckless of whether or not, the money or other property is proceeds of a serious offence.
65 Subsection 3(1)
Insert:
proceeding, in relation to a criminal matter, includes a proceeding before a judicial officer or a jury for the purpose of:
(a) gathering evidential material that may lead to the laying of a criminal charge; or
(b) assessing evidential material in support of the laying of a criminal charge.
66 Subsection 3(1)
Insert:
public authority of a foreign country means any authority or body constituted by or under a law of a foreign country.
67 Subsection 3(1) (definition of State)
Repeal the definition, substitute:
State includes:
(a) the Australian Capital Territory; and
(b) the Northern Territory.
68 Subsection 3(1) (definition of State Minister)
Repeal the definition, substitute:
State Minister means:
Back to Top (a) in relation to a State other than the Australian Capital Territory or the Northern Territory--a Minister of the Crown of that State; or
(b) in relation to the Australian Capital Territory or the Northern Territory--a Minister of that Territory.
69 Subsection 3(1) (definition of Territory)
Repeal the definition, substitute:
Territory does not include:
(a) the Australian Capital Territory; or
(b) the Northern Territory.
70 Subsection 3(1) (definition of treaty)
Omit ", agreement or arrangement", substitute "or agreement".
71 Paragraph 21(1)(a)
Repeal the paragraph, substitute:
(a) a person is in Australia to give evidence in a proceeding:
(i) because of a request under subsection 16(1); or
(ii) because of a request (other than a request under that subsection) made by the Attorney-General for international assistance in a criminal matter; and
Note: The heading to section 21 is altered by inserting "or assistance" after "evidence".
72 After subsection 21(1)
Insert:
(1A) If:
(a) a person is in Australia to give assistance in relation to an investigation:
(i) because of a request under subsection 16(2); or
(ii) because of a request (other than a request under that subsection) made by the Attorney-General for international assistance in a criminal matter; and
(b) the person has given assistance in relation to the investigation to which the request related or in relation to an investigation certified by the Attorney-General under subparagraph 19(2)(b)(iii) in relation to the person;
anything said or done by the person when giving the assistance is not to be admitted or otherwise used in any prosecution of the person for an offence against Australian law.
73 Section 24
Repeal the section.
74 Subsection 25(2)
Repeal the subsection, substitute:
(2) The police officer must, as soon as practicable, take the person before a Magistrate.
(3) If the Magistrate is satisfied that the person has escaped from lawful custody, the Magistrate may issue a warrant authorising any police officer to return the person to lawful custody.
75 At the end of Division 1 of Part IV
Add:
Sections 46, 47A, 47C and 48 of the
Crimes Act 1914 (other than paragraphs 46(ab) and 47A(d) of that Act) apply as if:
(a) references in those sections to custody in respect of any offence against a law of the Commonwealth or of a Territory were references to custody while in Australia under a request under section 16; and
(b) references in those sections of the Crimes Act 1914 to arrest in respect of any offence against a law of the Commonwealth or of a Territory were references to arrest under section 25 of this Act.
76 Section 30
Repeal the section.
77 Subsection 31(2)
Repeal the subsection, substitute:
(2) The police officer must, as soon as practicable, take the person before a Magistrate.
(3) If the Magistrate is satisfied that the person has escaped from lawful custody, the Magistrate may issue a warrant authorising any police officer to return the person to lawful custody.
78 At the end of Part V
Add:
Back to Top Sections 46, 47A, 47C and 48 of the
Crimes Act 1914 (other than paragraphs 46(ab) and 47A(d) of that Act) apply as if:
(a) references in those sections to custody in respect of any offence against a law of the Commonwealth or of a Territory were references to custody while in Australia in accordance with a direction under paragraph 29(1)(d); and
(b) references in those sections of the Crimes Act 1914 to arrest in respect of any offence against a law of the Commonwealth or of a Territory were references to arrest under section 31 of this Act.
79 Paragraph 35(1)(c)
Omit "under the Proceeds of Crime Act".
80 Subsection 35(1)
Omit "(within the meaning of the Proceeds of Crime Act) for the search warrant requested by the foreign country", substitute "under the Proceeds of Crime Act for a search warrant in relation to that tainted property".
81 Paragraph 36(1)(a)
Repeal the paragraph, substitute:
(a) a criminal proceeding has commenced, or there are reasonable grounds to believe that a criminal proceeding is about to commence, in a foreign country in respect of a serious offence; and
82 Paragraph 36(1)(c)
Omit "under the Proceeds of Crime Act".
83 Subsection 36(1)
Omit "the restraining order requested by the foreign country", substitute "a restraining order under the Proceeds of Crime Act against that property in respect of the offence".
84 Subparagraphs 37(1)(c)(i) and (ii)
Repeal the subparagraphs, substitute:
(i) an order requiring that the document be produced or made available for inspection in accordance with Australian law; or
(ii) a search warrant in respect of the offence;
85 Subsection 37(1)
Omit all the words after "specified court", substitute:
for:
(d) a production order under the Proceeds of Crime Act in respect of the offence for the purpose of obtaining possession of the property-tracking document; or
(e) a search warrant under that Act in relation to the property-tracking document;
as the case requires.
86 At the end of subparagraph 37(3)(a)(i)
Add "or".
87 After subparagraph 37(3)(a)(i)
Insert:
(ia) a foreign organised fraud offence; or
88 Subparagraph 37(3)(a)(ii)
After "narcotics offence", insert "or a foreign organised fraud offence".
89 Subparagraph 37(3)(a)(iii)
After "(i)", insert ", (ia)".
90 Paragraph 37(3)(c)
Omit "a monitoring order under the Proceeds of Crime Act", substitute "an order".
91 Paragraph 37(3)(c)
Omit "to the Australian Federal Police".
92 Subsection 37(3)
Omit all the words after "specified court for", substitute " a monitoring order under the Proceeds of Crime Act in respect of the offence for the purpose of obtaining the information requested by the foreign country".
93 Part VII
Repeal the Part.
94 After subsection 39(2)
Insert:
(2A) The Governor-General may make arrangements with the Administrator of Norfolk Island with respect to the administration of this Act, including arrangements for the performance of the functions of a Magistrate under this Act by a Magistrate of Norfolk Island.
(2B) The Governor-General may arrange with the Administrator of Norfolk Island for the variation or revocation of an arrangement in force under subsection (2A).
95 Subsection 39(3)
Omit "subsection (1) or (2)", substitute "this section".
Note: The heading to section 39 is replaced by the heading "Arrangements with Governors of States and Administrator of Norfolk Island".
96 Subsection 40(1)
Omit ", either generally or as otherwise provided by the instrument of delegation,", substitute "(including his or her powers under section 10)".
97 Subsection 40(1)
Omit ", other than this power of delegation or his or her powers under section
Back to Top 8".
98 Subsections 40(2) and (3)
Repeal the subsections.
99 Paragraph 43(2)(b)
Omit "to be authenticated by the oath of a witness or an officer of the Government of the foreign country or".
100 Subsection 43A(2)
Omit "paragraph (1)(b)", substitute "subsection (1)".
Part 7--Saving provision
101 Regulations under subsection 7(2)
Any regulations:
(a) made under subsection 7(2) of the Mutual Assistance in Criminal Matters Act 1987 as in force immediately before the commencement of item 3 in this Schedule; and
(b) making provision to the effect that that Act applies to a country, or to a number of countries, subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect, in whole or in part, to a particular mutual assistance treaty;
continue in force on and after the commencement of that item, and may be amended or repealed, as if they were regulations made under subsection 7(2) of that Act as amended by that item.
1 Paragraph 27(1)(d) Omit "to which the Mutual Assistance in Criminal Matters Act 1987 applies because of regulations made under subsection 7(2A) of that Act", substitute "for international assistance in a criminal matter".
1 Subsection 59(1) After "under this Act", insert "against any property of a person".
2 At the end of paragraphs 59(1)(a) and (b)
Add "and".
3 Paragraph 59(1)(c)
Repeal the paragraph, substitute:
(c) a reference in this Division to a person charged or about to be charged with an indictable offence were a reference to a person against whom a criminal proceeding in respect of a foreign serious offence has commenced, or is reasonably believed to be about to commence, in a foreign country; and
4 At the end of paragraph 59(1)(d)
Add "and".
5 After paragraph 59(1)(d)
Insert:
(da) a reference in subsection 44(4) to the proposed charging of a person with an offence were a reference to the proposed commencement of a criminal proceeding in a foreign country against a person in respect of a foreign serious offence; and
6 Paragraph 59(1)(f)
Omit "(4),".