1. This Act may be cited as the Crimes and Other Legislation Amendment Act 1994.

Commencement

2.(1) Subject to this section, this Act commences on the day on which it receives the Royal Assent.

3. In this Part, "Principal Act" means the Australian Security Intelligence Organization Act 1979¹.

4. The objects of this Part are:

(a) to provide that certain offences against the Crimes (Ships and Fixed Platforms) Act 1992 are to be regarded as acts of politically motivated violence; and

(b) to allow the Director-General of Security to give a standing authorisation to an officer of ASIO to approve the persons who are to be able to exercise powers under warrants issued by the Attorney-General; and

(c) to allow officers of ASIO to apply for vacant positions in the Australian Public Service even though the positions have not been advertised as being open to the public.

5. Section 4 of the Principal Act is amended by omitting "or the Crimes (Hostages) Act 1989" from paragraph (c) of the definition of "politically motivated violence" and substituting ", the Crimes (Hostages) Act 1989 or Division 1 of Part 2, or Part 3, of the Crimes (Ships and Fixed Platforms) Act 1992".

Repeal of section and substitution of new section

6.(1) Section 24 of the Principal Act is repealed and the following section is substituted:

Exercise of authority under warrants

"24.(1) The Director-General, or a senior officer of the Organization appointed by the Director-General in writing to be an authorising officer for the purposes of this subsection, may, by signed writing, approve officers and employees of the Organization, and other people, as people authorised to exercise, on behalf of the Organization, the authority conferred by relevant warrants.

"(2) The authority conferred by a relevant warrant may be exercised on behalf of the Organization only by the Director-General or an officer, employee or other person approved under subsection (1).

"(3) In this section:

'relevant warrant' means a warrant issued under section 25, 26, 27, 27A or 29;

'Senior Executive Service office' has the same meaning as in the Public Service Act 1922;

'senior officer of the Organization' means an officer of the Organization who holds or performs the duties of an office that is:

(a) equivalent to a Senior Executive Service office; or

(b) designated as an office of Manager (Senior Officer Grade A) by the Director-General under section 85.".

7. After section 90 of the Principal Act the following section is inserted:

Officers employed under this Part to have certain rights of entry into the Australian Public Service

"90A.(1) In this section, unless the contrary intention appears:

'ASIO officer' means a person employed under paragraph 84(1)(a);

'Department', 'office', 'Secretary' and 'Service' have the same meanings as in the Public Service Act;

'non-appellable promotion', 'promotion' and 'vacancy' have the same meanings as in Division 4 of Part III of the Public Service Act;

'Public Service Act' means the Public Service Act 1922.

"(2) If, under Gazette, an ASIO officer may apply for appointment to the office.section 50, 50DA or 50DB of the Public Service Act, notification of a vacancy in an office in a Department is given in the

"(3) If:

(a) an ASIO officer applies under subsection (2) for appointment to an office in a Department; and

(b) the Secretary of the Department is satisfied that the ASIO officer should be appointed to the office;

the Public Service Commissioner may appoint the ASIO officer to the office in accordance with section 42 or 43 of the Public Service Act.

"(4) Despite section 47 of the Public Service Act, the appointment of an ASIO officer to an office in a Department must not be an appointment on probation if the ASIO officer's employment as an officer of the Organization:

(a) was without probation; or

(b) was on probation and has been confirmed.

"(5) If the Public Service Commissioner appoints an ASIO officer to an office in a Department, the following provisions of this section have effect.

"(6) The provisions of Subdivision D of Merit Protection (Australian Government Employees) Act 1984 apply to and in relation to the appointment as if:Division 4 of Part III of the Public Service Act and the provisions of the

(a) the appointment were a promotion (the 'notional promotion') of the ASIO officer to the office by the Secretary of the Department, and the promotion:

(i) if the appointment is in accordance with the advice of a Joint Selection Committee constituted for the purposes of section 50DA of the Public Service Act—were made under that section; or

(ii) if the appointment is in accordance with the unanimous advice of a Joint Selection Committee constituted for the purposes of section 50DB of the Public Service Act—were made under that section; or

(iii) otherwise—were made under section 50 of the Public Service Act; and

(b) the ASIO officer were an officer within the meaning of the Public Service Act.

"(7) The notional promotion takes effect as provided for in section 50E of the Public Service Act.

"(8) Except if subsection (9) or (10) applies, the appointment does not take effect from the making of the appointment but takes effect on the day (if any) on which the notional promotion takes effect.

"(9) If:

(a) the notional promotion is a non-appellable promotion; and

(b) an application for review of the notional promotion by the Merit Protection and Review Agency has been lodged under subsection 50DA(1) of the Public Service Act; and

(c) the Merit Protection and Review Agency makes a decision in writing under subparagraph 50DAA(3)(b)(i) of the Public Service Act affirming the promotion;

the appointment takes effect when the decision is made.

"(10) If:

(a) the notional promotion is a non-appellable promotion; and

(b) an application for review of the notional promotion by the Merit Protection and Review Agency has been lodged under subsection 50DAA(1) of the Public Service Act; and

(c) the Merit Protection and Review Agency has recommended to the Secretary under subsection 50DAA(4) of the Public Service Act that the promotion be cancelled;

the appointment does not take effect unless and until the Secretary makes a decision under subsection 50DAA(6) of the Public Service Act not to cancel the promotion.

"(11) The ASIO officer is taken to be absent from the Service on leave of absence without pay until he or she begins to perform the duties of the office.

"(12) If the ASIO officer does not begin to perform the duties of the office within a reasonable time after the appointment takes effect, the Public Service Commissioner or the Secretary of the Department may cancel the appointment.".

8. In this Part, "Principal Act" means the Crimes Act 1914².

9. The objects of this Part are:

(a) to enable courts to take cultural background into account when sentencing federal offenders; and

(b) to make some minor drafting amendments to the provisions relating to the action to be taken in the event of the breaches of certain orders: and

(c) to exclude ACT prisoners from certain provisions relating to escape from lawful custody; and

(d) to provide that it is not to be an offence to manufacture, advertise, sell or possess devices designed principally for the reception of messages carried by radiocommunications; and

(e) to reflect the change of name of the Cash Transaction Reports Agency to the Australian Transaction Reports and Analysis Centre: and

(f) to correct some drafting errors.

10. Section 16A of the Principal Act is amended by inserting in paragraph (2)(m) "cultural background," after "antecedents,".

11. Section 19B of the Principal Act is amended by inserting in subparagraph (1)(b)(i) "cultural background." after "antecedents.".

12. Section 20 of the Principal Act is amended by omitting subsection (2A) and substituting the following subsection:

"(2A) A person is not to be imprisoned for a failure, under an order made under subsection (1), to pay an amount by way of reparation, restitution or compensation or an amount in respect of costs.".

13. Section 20A of the Principal Act is amended:

(a) by omitting from subsection (1) ", before the end of the period specified in the order in accordance with subparagraph 19B(1)(d)(i) or 20(1)(a)(i) or before the completion of the sentence or the last to be served of the sentences imposed under paragraph 20(1)(b),";

(b) by inserting after subsection (1) the following subsection:

"(1A) Subsection (1) does not apply to a failure by a person to comply with a condition of an order (other than a failure constituted by the commission by the person of an offence) unless the information is laid before the end of the period for which the person is required by the order to give security to be of good behaviour.";

(c) by inserting before subparagraph (5)(c)(i) the following subparagraphs:

"(ia) impose on the person a monetary penalty of not more than $1000; or

(ib) subject to subsection (5A), amend the order so as to extend the period for which the person is required to give security to be of good behaviour; or

(ic) revoke the order and make an order under section 20AB; or ”;

(d) by inserting after subsection (5) the following subsections:

"(5A) The court may not, under subparagraph (5)(c)(ib), extend a period so that the period as extended would be more than 5 years.

"(5B) If a court, under subparagraph (5)(c)(ib), amends an order made in respect of a person under paragraph 20(1)(b), the security given by the person under that subsection is, by this section, taken to be a security that the person will be of good behaviour for the period stated in the order as amended.".

14. Section 46 of the Principal Act is amended:

(a) by omitting from paragraph (ab) "during the Governor-General's pleasure" and substituting "under Division 6 or 7 of Part 1B or section 20BS";

(b) by adding at the end the following subsection:

"(2) In this section:

'Territory' does not include the Australian Capital Territory.".

15. Section 47 of the Principal Act is amended:

(a) by omitting "during the Governor-General's pleasure" and substituting "under Division 6 or 7 of Part 1B or section 20BS";

(b) by inserting "(other than the Australian Capital Territory)" after "Territory".

16. Section 47A of the Principal Act is amended:

(a) by omitting from paragraph (d) "during the Governor-General's pleasure" and substituting "under Division 6 or 7 of Part 1B or section 20BS";

(b) by adding at the end the following subsection:

"(2) In this section:

'Territory' does not include the Australian Capital Territory.".

17. Section 47B of the Principal Act is amended:

(a) by omitting from paragraph (a) "during the Governor-General's pleasure" and substituting "under Division 6 or 7 of Part IB or section 20BS";

(b) by adding at the end the following subsection:

"(2) In this section:

'Territory' does not include the Australian Capital Territory.".

18. Section 47C of the Principal Act is amended:

(a) by inserting before subsection (1) the following subsection:

"(1A) In this section:

'Territory' does not include the Australian Capital Territory.”.

(b) by omitting from paragraph (1)(b) "during the Governor-General's pleasure" and substituting "under Division 6 or 7 of Part IB or section 20BS".

19. Section 48 of the Principal Act is amended by inserting "(other than the Australian Capital Territory)" after "Territory".

20. Section 48A of the Principal Act is amended:

(a) by inserting "or 47B" after "47";

(b) by adding the following subsection:

"(2) If a person who is undergoing punishment for an offence against a law of the Commonwealth or of a Territory commits an offence against a law of a State or Territory that corresponds to section 47 or 47B, the person is, upon being returned to lawful custody.

to undergo (in addition to any punishment imposed for the corresponding offence and any other punishment that the person is required to undergo under the law of the State or Territory) the punishment that the person would have undergone for the first-mentioned offence if the person had not escaped.".

21. Section 85ZKB of the Principal Act is amended by inserting after subsection (1) the following subsection:

"(1A) Subsection (1) does not apply to an apparatus or device designed principally for the reception of messages transmitted by radiocommunications.".

22. Section 85ZZH of the Principal Act is amended by omitting paragraph (h) and substituting the following paragraph:

"(h) the Australian Transaction Reports and Analysis Centre, for the purpose of assessing:

(i) prospective officers or prospective members of the Centre; or

(ii) persons proposed to be engaged as consultants to, or to perform services for, the Centre;".

23. In this Part, "Principal Act" means the Transfer of Prisoners Act 1983³.

24. The objects of this Part are:

(a) to make amendments consequential upon the inclusion of the ACT as a participating State in the transfer of prisoners scheme; and

(b) to correct some minor drafting errors.

25. Section 3 of the Principal Act is amended:

(a) by inserting in paragraph (a) of the definition of "appropriate Minister" in subsection (1) "the Australian Capital Territory or" after "other than";

(b) by inserting after paragraph (a) of the definition of "appropriate Minister" in subsection (1) the following paragraph:

"(aa) in respect of the Australian Capital Territory—the Minister for that Territory who is responsible for the administration of the law of that Territory relating to the interstate transfer of prisoners; and";

(c) by omitting from subsection (1) the definition of "Australian Capital Territory";

(d) by inserting "the Australian Capital Territory and" after "includes" in the definition of "State" in subsection (1);

(e) by omitting from subsection (1) the definitions of "Parliament" and "Territory" and substituting the following definitions:

" 'Parliament' means:

(a) in relation to the Australian Capital Territory—the Legislative Assembly for the Australian Capital Territory; or

(b) in relation to the Northern Territory—the Legislative Assembly of the Northern Territory;

'Territory' means Norfolk Island, the Territory of Christmas Island, the Territory of Cocos (Keeling) Islands or the Jervis Bay Territory;".

26. Section 14 of the Principal Act is amended:

(a) by omitting from subsection (1) "will" and substituting "may";

(b) by omitting from subsection (6) "Where" and substituting "Subject to subsections (8A) and (9), if";

(c) by inserting after subsection (8) the following subsection:

"(8A) Despite subsection (6), the Attorney-General is not required to make an order for the transfer of a prisoner under that subsection from New South Wales to another State or to a Territory if:

(a) the prisoner has been removed to New South Wales under the Removal of Prisoners (Australian Capital Territory) Act 1968; and

(b) the prisoner has not applied for an order declaring him or her to be an exempt prisoner but, if he or she had so applied, the Attorney-General would have made such an order.".

27. Section 23 of the Principal Act is amended by omitting from paragraph (b) "section 4" and substituting "section 19AB, 19AC or 19AR, as the case may be,".

28. Section 24 of the Principal Act is amended by adding at the end the following subsection:

"(4) The reference in subsection (2) to the Governor of a State is, in respect of the Australian Capital Territory, a reference to the Governor-General.".

Application

29.(1) In this section:

"ACT" means the Australian Capital Territory;

"ACT Act" means the Prisoners (Interstate Transfer) Act 1994 of the Australian Capital Territory;

"ACT prisoner" has the same meaning as in the ACT Act;

"first step" means:

(a) the receipt by the Attorney-General of an application for a welfare transfer order under section 6 of the Principal Act;

(b) the receipt by the Attorney-General of a request for the making of a trial transfer order under section 8 or 9 of the Principal Act;

(c) the making by the Attorney-General on his or her own motion of an application for a trial transfer order under section 8 or 9 of the Principal Act;

(d) the service of a notice under subsection 14(1) of the Principal Act;

(e) the making of an order under subsection 16(1) of the Principal Act;

(f) the service of a notice under subsection 16A(1) of the Principal Act;

"joint prisoner" has the same meaning as in the ACT Act;

"State" includes the Northern Territory;

"transfer" means a transfer or proposed transfer under the Principal Act.

30. The object of this Part is to make several minor amendments to various Acts.

31. The Acts referred to in the Schedule are amended as set out in the Schedule.

__________

SCHEDULE Section 31

MINOR AMENDMENTS OF OTHER ACTS

Australian Federal Police Act 1979

Subsection 46(5):

Omit "subsections (3) and (4)", substitute "subsection (4)".

Subsection 64(1):

Omit the penalty at the foot of the subsection, substitute: "Penalty: Imprisonment for 2 years.".

Crimes (Aviation) Act 1991

Subsection 3(1):

After "Minister" in paragraph (d) of the definition of "authorised person", insert "administering the Air Navigation Act 1920".

Subparagraph 15(1)(b)(ii):

Omit the subparagraph, substitute:

"(ii) the Crimes Act 1900 of the Australian Capital Territory in its application to the Jervis Bay Territory;".

Section 43:

Repeal the section, substitute:

Evidence of matters relating to Conventions

"43.(1) The Minister for Foreign Affairs may give a written certificate stating:

(a) that a particular Convention entered into force for a particular country on a particular day; or

(b) that a particular country has not denounced a particular Convention; or

(c) that a particular country has denounced a particular Convention and the denunciation took effect on a particular day.

"(2) Australia may be named in a certificate under subsection (1).

"(3) A certificate given under subsection (1) is admissible in any proceedings as prima facie evidence of the matters stated in the certificate.

"(4) In this section:

'Convention' means the Hague Convention, the Montreal Convention, the Tokyo Convention or the Protocol.".

SCHEDULE—continued

Section 44:

Repeal the section, substitute:

Evidence relating to notices to ICAO

"44.(1) The Minister administering the Air Navigation Act 1920 may give a written certificate stating matters about a notice given to the International Civil Aviation Organisation, and communicated to Australia, under:

(a) Article 5 of the Hague Convention; or

(b) Article 9 of the Montreal Convention.

"(2) A certificate given under subsection (1) is admissible in any proceedings as prima facie evidence of the matters stated in the certificate.".

Schedule 5:

Omit:

"Omit ', the Crimes (Hijacking of Aircraft) Act 1972 or the Crimes (Protection of Aircraft) Act 1973' from paragraph (c) of the definition, substitute 'or under Division 1 or 4 of Part 2 of the Crimes (Aviation) Act 1991'.",

substitute:

"Omit paragraph

'(c) of the definition, substitute the following paragraph:

'(c) acts that are offences punishable under the Crimes (Foreign Incursions and Recruitment) Act 1978 or the Crimes (Hostages) Act 1989 or under Division 1 or 4 of Part 2 of the Crimes (Aviation) Act 1991; or'.".

Crimes (Hostages) Act 1989

Section 13:

Repeal the section, substitute:

Evidence of certain matters

"13.(1) The Minister for Foreign Affairs may give a written certificate stating that:

(a) the Convention entered into force for Australia on a particular day; and

(b) as at the date of the certificate, the Convention remains in force for Australia.

"(2) A certificate given under subsection (1) is admissible in any proceedings as prima facie evidence of the matters stated in the certificate.".

SCHEDULE—continued

Crimes (Internationally Protected Persons) Act 1976

Sections 13 and 14:

Repeal the sections, substitute:

Evidence of matters relating to Convention

"13.(1) The Minister for Foreign Affairs may give a written certificate stating:

(a) that the Convention entered into force for a particular country on a particular day; or

(b) that a particular country has not denounced the Convention; or

(c) that a particular country has denounced the Convention and the denunciation took effect on a particular day.

"(2) Australia may be named in a certificate under subsection (1).

"(3) A certificate given under subsection (1) is admissible in any proceedings as prima facie evidence of the matters stated in the certificate.

Certificates by Minister for Foreign Affairs

"14.(1) The Minister for Foreign Affairs may give a written certificate stating any matter relevant to the question whether a person is, or was at any time or in respect of any period, an internationally protected person.

"(2) A certificate given under subsection (1) is admissible in any proceedings as prima facie evidence of the matters stated in the certificate.".

Crimes Legislation Amendment Act 1992

Paragraph 34(b):

Omit "an", substitute "the".

Crimes (Overseas) Act 1964

Subparagraph (4)(c)(ii):

Omit the subparagraph, substitute:

"(ii) the Crimes Act 1900 of the Australian Capital Territory in its application to the Jervis Bay Territory; or".

Crimes (Superannuation Benefits) Act 1989

Subsection 19(5):

Omit "subsections (3) and (4)", substitute "subsection (4)".

SCHEDULE—continued

Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990

Section 20:

Repeal the section, substitute:

Certificates by Minister for Foreign Affairs

"20. The Minister for Foreign Affairs may give a written certificate stating that:

(a) the Convention entered into force for Australia on a particular day; and

(b) as at the date of the certificate, the Convention remains in force for Australia.

"(2) A certificate given under subsection (1) is admissible in any proceedings as prima facie evidence of the matters stated in the certificate.".

Customs Act 1901

Subsection 208A(2):

Omit the subsection, substitute:

"(2) If a notice under paragraph (1)(b) in relation to goods is given and:

(a) the person to whom the notice was given does not, within 4 months after the service of the notice, bring an action for the recovery of the goods; or

(b) such an action that was brought within that period is discontinued or is dismissed for want of prosecution;

the goods are taken to be condemned as forfeited to the Crown without any further proceedings.".

Director of Public Prosecutions Act 1983

Subsection 6(1):

After paragraph (j), insert:

"(ja) to appear in an inquiry by a magistrate held under Crimes (Aviation) Act 1991;".section 37, or in a proceeding before a magistrate under section 38 or 39, of the

Subsection 9(6A):

After paragraph (a) of the definition of "specified proceedings", insert:

"(aa) proceedings (including inquiries) under the Crimes (Aviation) Act 1991;".

SCHEDULE—continued

Section 16A:

After subsection (1A), insert:

"(1B) If the Director applies to the Supreme Court of a State or Territory:

(a) under subsection 43(1) of the Proceeds of Crime Act 1987 for a restraining order under that Act; or

(b) under subsection 57(3) of that Act for an extension of such a restraining order;

the Court may, at any time after the making of the application and before the application is determined, make an order prohibiting or restricting the publication of all or any of the matters referred to in subsection 44(3), (5), (6), (7) or (7A) of that Act that were contained in an affidavit made in support of the application if it appears to the Court to be necessary to make the order in order to prevent prejudice to the administration of justice.".

Subsection 16A(2):

Omit "or (1A)", substitute ", (1A) or (IB)".

Extradition Act 1988

Section 5 (definition of "political offence"):

(a) At the end of subparagraphs (a)(i), (ii), (iii), (iv) and (vi), add "or";

(b) At the end of paragraph (a), add the following subparagraphs:

"(vii) Article 3 of the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, a copy of the English text of which is set out in Schedule 1 to the Crimes (Ships and Fixed Platforms) Act 1992; or

(viii) Article 2 of the Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf, a copy of the English text of which is set out in Schedule 2 to the Crimes (Ships and Fixed Platforms) Act 1992;".

Financial Transaction Reports Act 1988

Subsection 15(9):

Insert the following definition:

" 'customs officer' includes a police officer;".

Paragraph 28(1)(c):

Omit "fails".

SCHEDULE—continued

Mutual Assistance in Criminal Matters Act 1987

Subsection 7(2):

Omit the subsection, substitute:

"(2) The regulations may state that this Act applies in relation to a foreign country subject to limitations, conditions, exceptions or qualifications referred to in the regulations in accordance with subsections (2AA) and (2AB).

"(2AA) The limitations, conditions, exceptions or qualifications in relation to a foreign country may be referred to in the regulations as being any one or more of the following:

(a) the limitations, conditions, exceptions or qualifications that are necessary to give effect to a bilateral mutual assistance treaty in relation to that country a copy of which is set out in the regulations;

(b) the limitations, conditions, exceptions or qualifications that are necessary to give effect to a multilateral mutual assistance treaty in relation to that country;

(c) the limitations, conditions, exceptions or qualifications (other than limitations, conditions, exceptions or qualifications that are necessary to give effect to a treaty) that are set out, or identified in any other way, in the regulations.

"(2AB) The limitations, conditions, exceptions or qualifications that are necessary to give effect to a treaty in relation to a foreign country may be expressed in the form that this Act applies to that country subject to that treaty.".

Proceeds of Crime Act 1987

Subsection 4(1):

Insert "of the Customs Act 1901" after "243B(4)" in paragraph (d) of the definition of "proceeds of confiscated assets".

Subsection 23(1):

After "(3)," insert "(3A),".

Paragraph 59(1)(f):

After "53" insert “, 56".

SCHEDULE—continued

No. 113, 1979, as amended. For previous amendments, see No. 182, 1979; No. 65, 1985; No. 122, 1986 (as amended by No. 137, 1988, and No. 115, 1990); No. 89, 1987 (as amended by No. 20, 1987) and No. 141, 1987; Nos. 121, 126 (as amended by No. 63, 1989) and 137, 1988; Nos. 63, 157 and 159, 1989; Nos. 11, 75, and 115, 1990; Nos. 122, 136 and 139, 1991; and No. 64, 1994.

2. No. 12, 1914, as amended. For previous amendments, see No. 6, 1915 (as amended by No. 54, 1920); No. 54, 1920; No. 9, 1926; No. 13, 1928; No. 30, 1932; No. 5, 1937; No. 6, 1941; No. 77, 1946; No. 80, 1950; No. 10, 1955; No. 11, 1959; No. 84, 1960; No. 93, 1966; Nos. 33 and 216, 1973; No. 56, 1975; No. 37, 1976; Nos. 19 and 155, 1979; No. 70, 1980; No. 122, 1981 (as amended by No. 193, 1985); Nos. 67 (as amended by No. 193, 1985), 80 and 153, 1982; Nos. 91, 114 and 136, 1983; Nos. 10, 63 and 165, 1984; No. 193, 1985; Nos. 76, 102 and 168, 1986; Nos. 73, 120 and 141, 1987; Nos. 63 and 108, 1989; Nos. 4, 11 and 75, 1990; Nos. 28, 59, 99 (as amended by No. 145, 1991), 120, 123, 140 and 145, 1991; No. 164, 1992; No. 98, 1993; and Nos. 65 and 105, 1994.

3. No. 95, 1983 as amended. For previous amendments, see No. 164, 1984; No. 120, 1987; No. 4, 1990; and No. 166, 1992.

[Minister's second reading speech made in—

Senate on 30 June 1994

House of Representatives on 17 November 1994]