National Crime Authority (State Provisions) Act 1984 (Vic)
Version No. 011
National Crime Authority (State Provisions)
Act 1984
Act No. 10157/1984
Version incorporating amendments as at 19 September 1997
TABLE OF PROVISIONS
Section Page
1. Short title 1 2. Commencement 1 3. Definitions 1 4. Act to bind the Crown 3 5. Functions under laws of the State 3 6. Performance of functions 4 7. Members may have concurrent functions and powers under laws of the State 6 8. Limitation on challenges to validity of references 7 9. Co-operation with law enforcement agencies 7 10. Incidental powers of Authority 8 11. Arrangements for Authority to obtain information or intelligence 8 12. Search warrants 8 13. Application by telephone for search warrants 12 14. Judges to perform functions under Commonwealth Act 14 15. Order for delivery to Authority of passport of witness 14 16. Hearings 16 17. Power to summon witnesses and take evidence 20 18. Power to obtain documents 21
18A. Disclosure of summons or notice may be prohibited 22 18B. Offences concerning the disclosure of information about
summonses and notices 24
19. Failure of witness to attend and answer questions 27 20. Warrant for arrest of witness 33 21. Applications to Federal Court of Australia 35 22. Applications to Supreme Court 43 23. False or misleading evidence 48 24. Protection of witnesses etc. 49 25. Contempt of Authority etc. 49 26. Double jeopardy 52 27. Powers of acting members of the Authority 53 28. Administrative arrangements with Commonwealth 53
i
Section Page
29. Protection of members etc. 53 30. Appointment of Judge as member not to affect tenure etc. 54 31. Secrecy 54 32. Report to be laid before Parliament 56 33. Regulations 57 34. Repealed 57
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NOTES 58 1. General Information 58 2. Table of Amendments 59 3. Explanatory Details 60
ii
Version No. 011
National Crime Authority (State Provisions)
Act 1984
Act No. 10157/1984
Version incorporating amendments as at 19 September 1997
An Act to make provision for the operation of the National
Crime Authority in Victoria and for other purposes.
BE IT ENACTED by the Queen's Most Excellent Majesty by and with the advice and consent of the Legislative Council and the Legislative Assembly of Victoria in this present Parliament assembled and by the authority of the same as follows (that is to say):
1. Short title
This Act may be cited as the National Crime
Authority (State Provisions) Act 1984.
2. Commencement
The several provisions of this Act shall come into operation on a day or on the respective days to be fixed by proclamation or successive proclamations
of the Governor in Council published in the
Government Gazette.
3. Definitions
(1) In this Act, unless the contrary intention
appears—
"Commonwealth Act" means the National
Crime Authority Act 1984 of the the time being;
"Commonwealth Minister" means the Minister of State of the Commonwealth administering the Commonwealth Act;
1
National Crime Authority (State Provisions) Act 1984
Act No. 10157/1984 s. 3 "hearing" means a hearing for the purposes of a special investigation;
S. 3(1) def. of
"law enforcement agency" in relation to an offence under a law of the State includes the
"law
enforcement
agency"Director of Public Prosecutions appointed amended by under the Public Prosecutions Act 1994; No. 43/1994
s. 56(Sch.item 4). "Minister" means the Minister of the Crown of the State administering this Act;
"prescribed" means prescribed by this Act or by regulations made under this Act;
"Registrar", in relation to a court, means the
proper officer, however described, of that
court;
"special function" means a special function referred to in section 5(4);
"special investigation" means an investigation
that the Authority is conducting in the
performance of its special functions.
(2) Expressions used in this Act that are also used in
the Commonwealth Act have in this Act, unless
the contrary intention appears, the same respective
meanings as those expressions have in the
Commonwealth Act.
(3) Where the Authority suspects that an offence that is not a relevant offence as defined in section 4(1) of the Commonwealth Act may be directly or
indirectly connected with, or may be a part of, a course of activity involving the commission of a relevant offence as so defined, whether or not the Authority has identified the nature of that relevant offence, the first-mentioned offence shall, for so
long only as the Authority so suspects, be deemed,
for the purposes of this Act, to be a relevantoffence.
2
National Crime Authority (State Provisions) Act 1984
| s. 4 | Act No. 10157/1984 |
4. Act to bind the Crown
This Act binds the Crown in right of the State.
5. Functions under laws of the State
(1) The Minister may, with the approval of the Inter- Governmental Committee, by notice in writing to the Authority, refer a matter relating to a relevant criminal activity to the Authority for investigation in so far as the relevant offence is, or the relevant offences are or include, an offence or offences
against a law of the State.
(2) Where a matter has so been referred to the
Authority, the Authority is not precluded by any law of the State from investigating that matter.
(3) A notice referred to in sub-section (1) referring a matter to the Authority—
(a) shall describe the general nature of the
circumstances or allegations constituting the
relevant criminal activity;
(b) shall state that the relevant offence is, or the relevant offences are or include, an offence or offences against a law of the State but
need not specify the particular offence or
offences; and
(c) shall set out the purpose of the investigation.
S. 5(3A)
| inserted by | (3A) The Minister may, with the approval of the Inter- |
| No. 25/1989 | Governmental Committee— |
| s. 23. |
(a) in a notice under sub-section (1) referring a
matter to the Authority, state that the
reference is related to another reference; or
(b) in a notice in writing to the Authority, state
that a reference already made to the another reference.
3
National Crime Authority (State Provisions) Act 1984
Act No. 10157/1984 s. 6 (4) Where a reference to the Authority made by the
Minister under sub-section (1) is in force in respect of a matter relating to a relevant criminal activity, it is a special function of the Authority to investigate the matter in so far as the relevant offence is, or the relevant offences are or include, an offence or offences against a law of the State.
(5) Where a matter has been referred to the Authority
in accordance with sub-section (1), the Minister
may at any time, by notice in writing to the
Authority, withdraw the reference.
6. Performance of functions
S. 6(1)
(1) If, in performing a special function, the Authority obtains evidence in the course of its investigations
substituted by
No. 27/1994
of an offence against a law of the Commonwealth s. 4. or of a State or Territory that would be admissible
in a prosecution for the offence, the Authority
must assemble the evidence and give it to—(a) the Attorney-General of the Commonwealth or of the relevant State or Territory; or
(b) the relevant law enforcement agency; or
(c) any other person or authority who is
authorised by or under a law of the
Commonwealth or of the relevant State or
Territory to prosecute the offence.
(2) The Authority shall, in performing a special
function, co-operate and consult with the
Australian Bureau of Criminal Intelligence.
(3) Where, as a result of the performance of a special
function, the Authority considers that a
recommendation should be made to the Minister,
to the Commonwealth Minister or to the
appropriate Minister of the Crown of another
participating State, being a recommendation—
4
National Crime Authority (State Provisions) Act 1984
| s. 6 | Act No. 10157/1984 |
(a) for reform of the law relating to relevant offences, including—
(i) evidence and procedure applicable to the trials of relevant offences;
(ii) relevant offences in relation to, or
involving, corporations;
(iii) taxation, banking and financial frauds;
(iv) reception by Australian courts of
evidence obtained in foreign countries
as to relevant offences; and
(v) maintenance and preservation of
taxation, banking and financial records;
(b) for reform of administrative practices; or
(c) for reform of administration of the courts inrelation to trials of relevant offences—
the Authority may make the recommendation to
the Minister, to the Commonwealth Minister or to
that Minister of the Crown of that other
participating State, as the case may be.
(4) In relation to the performance by the Authority of a special function, nothing in this Act (other than section 17)—
(a) shall be taken to confer on a member, or on a
than a member of the Australian Federal
member of the staff of the Authority (other State), a power to interview a person in relation to an offence that the person is suspected of having committed, except in a case where the person has been served, as prescribed, with a summons to appear as a witness at a hearing before the Authority and has not yet so appeared; or
5
National Crime Authority (State Provisions) Act 1984
Act No. 10157/1984 s. 7 (b) shall be taken to confer on a member of the
staff of the Authority who is a member of the
Australian Federal Police or of the Police
Force of a State a power to interview a
person that the member of the staff of the
Authority does not have in the member's
capacity as a member of the Australian
Federal Police or of the Police Force of that
State, as the case may be.
(5) Nothing in sub-section (4)(a) shall be taken to
affect a power of a member, or of a member of the
staff of the Authority, to interview a person
otherwise than in relation to an offence that the
person is suspected of having committed.
(6) Where the Authority has obtained particular
information or intelligence in the course of
performing a special function, nothing in this Act
shall be taken to prevent the Authority from
making use of the information or intelligence in
the performance of any of its other functions.
7. Members may have concurrent functions and powers under laws of the State
If—
(a) with the consent of the Inter-Governmental
Committee, any functions or powers in relation to the investigation of matters relating to relevant criminal activities are
conferred on a member or members by the
Governor or a Minister; and(b) the Commonwealth Minister informs the
member or members in writing that the
Commonwealth Minister is satisfied that
those functions or powers may conveniently
be performed or exercised in conjunction
with the performance or exercise by the
6
National Crime Authority (State Provisions) Act 1984
| s. 8 | Act No. 10157/1984 |
Authority of its functions or powers under the Commonwealth Act—
then, notwithstanding anything contained in any
other provision of this Act, the member or
members referred to in paragraph (a) shall
perform the functions, or may exercise the
powers, referred to in that paragraph in
conjunction with the performance or exercise by
the Authority of its functions or powers under the
Commonwealth Act, this Act or any
corresponding Act of another State, and the
members of the staff of the Authority may be
employed by the Authority in assisting the
member or members referred to in paragraph (a)
in the performance of the functions or the exerciseof the powers referred to in that paragraph.
8. Limitation on challenges to validity of references
Where, with the approval of the Inter- matter to the Authority for investigation, then, except in a proceeding instituted by the Attorney- General of the Commonwealth or the Attorney- General of a State, any act or thing done by the Authority in pursuance of the reference shall not be challenged, reviewed, quashed or called in question in any court of the State on the ground that any necessary approval of the Inter- Governmental Committee or consent of the Commonwealth Minister has not been obtained or was not lawfully given.
9. Co-operation with law enforcement agencies
S. 9
| amended by | In performing its special functions, the |
| No. 25/1989 | Authority— |
| s. 24(a)(b). |
(a) shall, so far as is practicable, work in co- operation with law enforcement agencies; and
7
National Crime Authority (State Provisions) Act 1984
Act No. 10157/1984 s. 10
(b) may co-ordinate its activities with the S. 9(b)
inserted byactivities of authorities and persons in other No. 25/1989 countries performing functions similar to s. 24(b). functions of the Authority.
10. Incidental powers of Authority
The Authority has power to do all things
necessary to be done for or in connection with, or
reasonably incidental to, the performance of its
special functions, and any specific powers
conferred on the Authority by this Act shall not be
taken to limit by implication the generality of this
section.
11. Arrangements for Authority to obtain information or intelligence
The Minister may make an arrangement with the Commonwealth Minister for the Authority to be given by the State, or by an authority of the State,
information or intelligence relating to relevant
criminal activities.
12. Search warrants
(1) A member of the Authority may apply to a Judge
of a prescribed court for the issue of a warrant
under sub-section (2) if—
S. 12(1)(a)
(a) the member has reasonable grounds for suspecting that, on a particular day (in this
amended by
No. 27/1994 section referred to as the "relevant day"), s. 5(a). being the day on which, or a particular day
within one month after the day on which, the
application is made, there may be, upon any
land or upon or in any premises, vessel,
aircraft or vehicle, a thing or things of a
particular kind connected with a matter
relating to a relevant criminal activity, being
a matter into which the Authority is
conducting a special investigation (in this
8
National Crime Authority (State Provisions) Act 1984
| s. 12 | Act No. 10157/1984 |
section referred to as "things of the relevant
kind"); and
S. 12(1)(b)
| amended by | (b) the member believes on reasonable grounds |
| No. 27/1994 | that, if a summons were issued for the |
| s. 5(b). | production of the thing or things, the thing or things might be concealed, lost, mutilated or destroyed. |
(2) Where an application under sub-section (1) is
made to a Judge of a prescribed court, the Judge may issue a warrant authorizing a member of the Australian Federal Police or of the Police Force of
a State, or any other person, named in the warrant,
with such assistance as the member or person
thinks necessary and if necessary by force—(a) to enter upon the land or upon or into the premises, vessel, aircraft or vehicle;
(b) to search the land, premises, vessel, aircraft
or vehicle for things of the relevant kind; and
(c) to seize any things of the relevant kind found
upon the land or upon or in the premises,
vessel, aircraft or vehicle and deliver things
so seized to the Authority.
(3) A Judge shall not issue a warrant under sub- section (2) unless—
(a) an affidavit has been furnished to the Judge
setting out the grounds on which the issue of
the warrant is being sought;
(b) the applicant (or some other person) has
given to the Judge, either orally or by
affidavit, such further information (if any) as
the Judge requires concerning the grounds on
which the issue of the warrant is being
sought; and
(c) the Judge is satisfied that there are
reasonable grounds for issuing the warrant.
9
National Crime Authority (State Provisions) Act 1984
Act No. 10157/1984 s. 12 (4) Where a Judge issues a warrant under sub-section (2), the Judge shall state on the affidavit furnished in accordance with sub-section (3)(a) which of the grounds specified in that affidavit has or have
been relied on to justify the issue of the warrant and particulars of any other grounds relied on to justify the issue of the warrant.
(5) A warrant issued under this section shall—
(a) include a statement of the purpose for which the warrant is issued, which shall include a reference to the matter relating to a relevant criminal activity into which the Authority is conducting a special investigation and with which the things of the relevant kind are
connected;
(b) state whether entry is authorized to be made
at any time of the day or night or during
specified hours of the day or night;
(c) include a description of the kind of things authorized to be seized; and
(d) specify a date, not being later than one
month after the date of issue of the warrant,
upon which the warrant ceases to have
effect.
(6) A warrant issued under this section may be
executed, in accordance with its terms, at any time during the period commencing on the relevant day and ending on the date specified in the warrant as the date upon which the warrant ceases to have
effect.(7) Where, in the course of searching, in accordance
with the terms of a warrant issued under this
section, for things of the relevant kind, the person
executing the warrants finds a thing that the
person believes on reasonable grounds to be
10
National Crime Authority (State Provisions) Act 1984
| s. 12 | Act No. 10157/1984 |
evidence that would be admissible in the on reasonable grounds that it is necessary to seize the thing in order to prevent its concealment, loss, mutilation or destruction, or its use in committing such an offence, that person may seize the thing and, if the thing is so seized, it shall be deemed, for the purposes of this Act, to have been seized pursuant to the warrant.
prosecution of a person for an offence against a
law of the Commonwealth, of a State or of a(8) Where a thing is seized pursuant to a warrant issued under this section—
(a) the Authority may retain the thing if, and for
so long as, retention of the thing by the purposes of a special investigation to which the thing is relevant; and
S. 12(8)(b)
| amended by | (b) if the retention of the thing by the Authority |
| No. 27/1994 | is not, or ceases to be, reasonably necessary |
| s. 5(c). | for such purposes, a member of the Authority must cause the thing to be delivered to— |
(i) if the thing may be used in evidence in
proceedings of a kind referred to in
sub-section (13)—the authority or
person responsible for taking the
proceedings; or
S. 12(8)(b)(ii)
| amended by | (ii) if sub-paragraph (i) does not apply— |
| No. 27/1994 | the person who appears to the member to the Attorney-General of the |
| s. 5(d). | to be entitled to the possession of the thing— |
unless the Authority has furnished the thing enforcement agency, in accordance with the
11
National Crime Authority (State Provisions) Act 1984
Act No. 10157/1984 s. 13 Commonwealth Act, this Act or an Act of another State.
S. 12(9)
(9) A member may, instead of delivering a thing in accordance with sub-section (8)(b)(ii), deliver the
amended by
No. 27/1994
thing to the Attorney-General of the s. 5(e)(i)(ii). Commonwealth or of a State, or to a law enforcement agency, for the purpose of assisting in the investigation of criminal offences, where the member is satisfied that the thing is likely to be useful for that purpose.
(10) Nothing in this section affects a right of a person to apply for, or the power of a person to issue, a warrant, being a right or power existing otherwise
than by virtue of this section.
(11) A reference in this section to a Judge of a
prescribed court shall be construed as a reference
to—
(a) a Judge of the Federal Court; or
(b) a Judge of a court of the State.
(12) In this section, "thing" includes a document.
(13) Without limiting the generality of sub-section
(1)(a), a reference in this section to a thing includes a reference to a thing that may be used in evidence in proceedings for the taking, by or on behalf of the Crown in right of the State, of civil remedies in respect of a matter connected with or arising out of, an offence to which the relevant criminal activity relates.
connected with a matter relating to a relevant
criminal activity, being a matter into which the
13. Application by telephone for search warrants
S. 13(1)
(1) A member of the Authority may apply by substituted by
telephone for a warrant under section 12 if the No. 27/1994 member considers it necessary because of urgent s. 6.
12
National Crime Authority (State Provisions) Act 1984
| s. 13 | Act No. 10157/1984 |
circumstances.
(2) Before so making application, the member shall prepare an affidavit that sets out the grounds on which the issue of the warrant is being sought, but
may, if it is necessary to do so, make the
application before the affidavit has been sworn.
(3) Where a Judge issues a warrant under section 12
upon an application made by telephone, the Judge
shall—
(a) complete and sign the warrant;
(b) inform the member who made theapplication of the terms of the warrant and the date on which and the time at which it was signed;
(c) record on the warrant the reasons for issuing the warrant; and
(d) send a copy of the warrant to the Authority.
(4) Where a warrant is issued under section 12 upon
an application made by telephone, a member of a State may complete a form of warrant in the terms indicated by the Judge under sub-section (3) and, where a form of warrant is so completed, shall write on it the name of the Judge who issued the warrant and the date on which and the time at which it was signed.
the staff of the Authority or a member of the
(5) Where a person completes a form of warrant in
accordance with sub-section (4), the person shall,
not later than the day next following the date of
expiry of the warrant, send to the Judge who
signed the warrant the form of warrant completed
by the person and the affidavit duly sworn in
connexion with the warrant.
13
National Crime Authority (State Provisions) Act 1984
Act No. 10157/1984 s. 14 (6) Upon receipt of the documents referred to in sub-
section (5), the Judge shall attach them to the
warrant signed by the Judge and shall deal with
the documents in the manner in which the Judge
would have dealt with the affidavit if the
application for the warrant had been made to the
Judge in accordance with section 12.
(7) A form of warrant duly completed in accordance
with sub-section (4) shall be deemed to be a
warrant issued under section 12.
14. Judges to perform functions under Commonwealth Act
A Judge of a court of the State may perform
functions conferred on the Judge by section 22 or23 of the Commonwealth Act.
15. Order for delivery to Authority of passport of witness
(1) Where, upon application by a member of the
Authority, a Judge of the Federal Court sitting in chambers is satisfied by evidence on oath that—
(a) in connexion with a special investigation, a
requiring a person to appear before the
summons has been issued under this Act summons has been served), or a person has appeared before the Authority at a hearing, to give evidence or to produce documents or other things; (b) there are reasonable grounds for believing that the person may be able to give to the Authority evidence or further evidence that
is, or to produce to the Authority documents or other things or further documents or other things that are, relevant to the matter in
respect of which the Authority is conducting
14
National Crime Authority (State Provisions) Act 1984
| s. 15 | Act No. 10157/1984 |
the investigation and could be of particular
significance to the investigation; and(c) there are reasonable grounds for suspecting
that the person intends to leave Australia and
has possession, custody or control of a
passport issued to the person—
the Judge may make an order requiring the person
to appear before the Federal Court on a day, and
at a time and place, specified in the order to show
cause why the person should not be ordered to
deliver the passport to the Authority.(2) Where a person appears before the Federal Court in pursuance of an order made under sub-section (1), the Court may, if it thinks fit, make an
order—
(a) requiring the person to deliver to the
Authority any passport issued to the person that is in the possession, custody or control of the person; and
(b) authorizing the Authority to retain the
passport until the expiration of such period
(not exceeding one month) as is specified in
the order.
S. 15(3)
| amended by | (3) The Federal Court may, upon application by a |
| No. 27/1994 | member of the Authority, extend for a further |
| s. 7(a). | period (not exceeding one month) or further periods (not exceeding one month in each case) the period for which the Authority is authorized to retain the passport in pursuance of an order made under sub-section (2), but so that the total period for which the Authority is authorized to retain the passport does not exceed three months. |
| S. 15(4) | |
| amended by | (4) The Federal Court may, at any time while the |
| No. 27/1994 | Authority is authorized in pursuance of an order |
| s. 7(b). | made under this section to retain a passport issued |
15
National Crime Authority (State Provisions) Act 1984
Act No. 10157/1984 s. 16 to a person, upon application made by the person,
revoke the order and, if the order is revoked, a
member of the Authority must forthwith return the
passport to the person.(5) The Federal Court has jurisdiction with respect to matters arising under this section.
(6) In this section, "Australia" includes the external
Territories.
16. Hearings
(1) For the purposes of a special investigation the Authority may hold hearings.
S. 16(2)
(2) At a hearing, the Authority may be constituted by one or more members.
amended by
No. 27/1994
s. 8(1).S. 16(3) (3) The Chairperson is to preside at all hearings at which he or she is present.
substituted by
No. 27/1994
s. 8(2).S. 16(3A) (3A) If the Chairperson is not present at a hearing at which there are 2 or more members, those
inserted by
No. 27/1994
members must elect one of their number to s. 8(2). preside at the hearing. S. 16(3B)
(3B) Questions arising at a hearing are to be inserted by
determined by a majority of the votes of the No. 27/1994 members present. s. 8(2). S. 16(3C)
(3C) The person presiding at a hearing has a inserted by
deliberative vote, and, if necessary, also has a No. 27/1994 casting vote. s. 8(2).
S. 16(3D)
(3D) The Authority may regulate the conduct of inserted by
proceedings at a hearing as it thinks fit. No. 27/1994 s. 8(2).
(4) At a hearing before the Authority—
16
National Crime Authority (State Provisions) Act 1984
| s. 16 | Act No. 10157/1984 |
(a) a person giving evidence may be represented by a legal practitioner; and
(b) if, by reason of the existence of special
circumstances, the Authority consents to a
person who is not giving evidence being
represented by a legal practitioner—the
person may be so represented.
(5) A hearing before the Authority shall be held in
private and the Authority may give directions as
to the persons who may be present during the
hearing or a part of the hearing.
(6) Nothing in a direction given by the Authority
under sub-section (5) prevents the presence, when
evidence is being taken at a hearing before the
Authority, of—
(a) a person representing the person giving evidence; or
(b) a person representing, pursuant to sub-
section (4), a person who, by reason of a
direction given by the Authority under sub-
section (5), is entitled to be present.
S. 16(7)
| amended by | (7) Where a hearing before the Authority is being |
| Nos 25/1989 | held, a person (other than a member or a member |
| s. 25, 27/1994 | |
| s. 8(3). | of the staff of the Authority approved by the Authority) shall not be present at the hearing unless the person is entitled to be present by reason of a direction given by the Authority under |
sub-section (5) or by reason of sub-section (6). (8) At a hearing before the Authority for the purposes
of a special investigation—
(a) counsel assisting the Authority generally or
in relation to the matter to which the
investigation relates;
(b) any person authorized by the Authority to appear before it at the hearing; or
17
National Crime Authority (State Provisions) Act 1984
Act No. 10157/1984 s. 16 (c) any legal practitioner representing a person
at the hearing pursuant to sub-section (4)—
may, so far as the Authority thinks appropriate,
examine or cross-examine any witness on any
matter that the Authority considers relevant to thespecial investigation.
(9) The Authority may direct that—
(a) any evidence given before it;
(b) the contents of any document, or adescription of any thing, produced to the Authority or seized pursuant to a warrant issued under section 12;
(c) any information that might enable a person
who has given evidence before the Authority
to be identified; or
(d) the fact that any person has given or may be about to give evidence at a hearing—
shall not be published, or shall not be published such a direction if the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been or may be charged with an offence.
except in such manner, and to such persons, as the
S. 16(9A)
(9A) The Chairperson may, in writing, vary or revoke a direction under sub-section (9).
inserted by
No. 27/1994
s. 8(4).S. 16(9B) (9B) However, the Chairperson must not vary or inserted by
revoke such a direction if to do so might prejudice No. 27/1994 the safety or reputation of a person or prejudice s. 8(4). the fair trial of a person who has been, or may be,
charged with an offence.
18
National Crime Authority (State Provisions) Act 1984
| s. 16 | Act No. 10157/1984 |
(10) Where—
(a) a person has been charged with an offence before a court of the State; and
(b) the court considers that it may be desirable in
the interests of justice that particular
evidence given before the Authority, being
evidence in relation to which the Authority
has given a direction under sub-section (9),
be made available to the person or to be a
legal practitioner representing the person—
the court may give to the Authority a certificate to that effect and, if the court does so, the Authority shall make the evidence available to the court.
(11) Where—
(a) the Authority makes evidence available to a
court in accordance with sub-section (10);
and
(b) the court, after examining the evidence, is
satisfied that the interests of justice so
require—
the court may make the evidence available to the
person charged with the offence concerned or to alegal practitioner representing the person.
(12) A person who—
(a) is present at a hearing in contravention of sub-section (7); or
(b) makes a publication in contravention of a direction given under sub-section (9)—
is guilty of an offence punishable, upon summary
conviction, by a fine not exceeding 20 penalty
units or imprisonment for a period not exceedingone year.
19
National Crime Authority (State Provisions) Act 1984
Act No. 10157/1984 s. 17 17. Power to summon witnesses and take evidence
S. 17(1)
(1) A member of the Authority may summon a person to appear before the Authority at a hearing to give
amended by
No. 27/1994
evidence and to produce such documents or other s. 9(a).
things (if any) as are referred to in the summons. (2) A summons under sub-section (1) requiring a
person to appear before the Authority at a hearing
shall be accompanied by a copy of the notice, or
of each of the notices, by which the matter or
matters to which the hearing relates was or were
referred to the Authority under section 5, under
the Commonwealth Act or under an Act ofanother State.
S. 17(3)
(3) A summons under sub-section (1) requiring a person to appear before the Authority at a hearing
amended by
No. 27/1994
shall, unless the member issuing the summons is s. 9(b). satisfied that, in particular circumstances of a
special investigation to which the hearing relates,
it would prejudice the effectiveness of the special
investigation for the summons to do so, set out, so
far as is reasonably practicable, the general nature
of the matters in relation to which the Authority
intends to question the person, but nothing in this
sub-section prevents the Authority from
questioning the person in relation to any matter
that relates to a special investigation.S. 17(4)
(4) The member presiding at a hearing before the Authority may require a person appearing at the
amended by
No. 27/1994 hearing to produce a document or other thing. (5) The Authority may, at a hearing, take evidence on
s. 9(c).
oath or affirmation and for that purpose—
S. 17(5)(a)
(a) a member may require a person appearing at the hearing to give evidence either to take an
amended by
No. 27/1994 oath or to make an affirmation in a form s. 9(c). approved by the member presiding at the
hearing; and
20
National Crime Authority (State Provisions) Act 1984
| s. 18 | Act No. 10157/1984 |
| S. 17(5)(b) | (b) a member, or a person who is an authorized |
| amended by | |
| No. 27/1994 | person in relation to the Authority, may |
| s. 9(c). | administer an oath or affirmation to a person so appearing at the hearing. |
| S. 17(6) | |
| amended by | (6) In this section, a reference to a person who is an |
| No. 27/1994 | authorized person in relation to the Authority is a |
| s. 9(d). | reference to a person authorized in writing, or a person included in a class of persons authorized in writing, for the purposes of this section by the Chairperson. |
18. Power to obtain documents
S. 18(1)
| amended by | (1) A member may, by notice in writing served on a |
| No. 27/1994 | person, require the person— |
| s. 10. | |
| S. 18(1)(a) | |
| amended by | (a) to attend, at a time and place specified in the |
| No. 27/1994 | notice, before a person specified in the |
| s. 10. | notice, being a member of the Authority or a member of the staff of the Authority; and |
(b) to produce at that time and place to the person so specified a document or thing specified in the notice, being a document or
thing that is relevant to a special
investigation.
(2) A notice may be issued under this section in
relation to a special investigation whether or not a hearing before the Authority is being held for the purposes of the investigation.
(3) A person shall not, without reasonable excuse, refuse or fail to comply with a notice served on the person under this section.
Penalty: 10 penalty units or imprisonment for
six months.
(4) Sub-sections (3) to (12) of section 19, inclusive,
apply in relation to a person who is required to
produce a document or thing by a notice served on
21
National Crime Authority (State Provisions) Act 1984
Act No. 10157/1984 s. 18A the person under this section in the same manner
as they apply in relation to a person who is
required to produce a document or thing at a
hearing before the Authority and so apply as if a
reference in those sub-sections to section 19(2)
were a reference to sub-section (3) of this section.(5) If a person who is required to produce a document
or thing by a notice served on the person under
this section claims to the person (in this sub-
section referred to as the "relevant person") to
whom the claimant is required to produce it that
the claimant is entitled to refuse to produce the
document or thing, the relevant person shall—
(a) if satisfied that the claim is justified—inform the claimant that the requirement will not be insisted upon; or
(b) in any other case—inform the claimant that the relevant person is not so satisfied and, if the document or thing is not produced
forthwith, refer the claim to the Authority for
decision under section 21.
S. 18A
18A. Disclosure of summons or notice may be prohibited
inserted by No. 27/1994
(1) The member issuing a summons under section 17
or a notice under section 18 must include in it a
notation to the effect that the disclosure of
information about it, or any official matter
connected with it, is prohibited if the member is
satisfied that a failure to do so would reasonably
be expected to prejudice—s. 11. (a) the safety or reputation of a person; or
(b) the fair trial of a person who has been or may
be charged with an offence; or
(c) the effectiveness of an investigation.
(2) The member may include such a notation in a summons under section 17 or a notice under
22
National Crime Authority (State Provisions) Act 1984
| s. 18A | Act No. 10157/1984 |
section 18 if the member is satisfied that a failure
to do so—(a) might prejudice anything listed in sub- section (1)(a), (b) or (c); or
(b) might otherwise be contrary to the public
interest.
(3) If a notation is included in a summons or notice, it
must be accompanied by a written statement
setting out the rights and obligations conferred or
imposed by section 18B on the person who was
served with, or otherwise given, the summons or
notice.
(4) If, after the Authority has concluded the
investigation in respect of which a summons or
notice was issued—(a) no evidence of an offence has been obtained as described in section 6(1); or
(b) evidence of an offence or offences has been assembled and given as required by section 6(1) and the Authority has been advised that
no person will be prosecuted; or
(c) evidence of an offence or offences
committed by only one person has been
assembled and given as required by section
6(1) and criminal proceedings have begunagainst that person; or
(d) evidence of an offence or offences
committed by 2 or more persons has been
assembled and given as required by section6(1) and—
(i) criminal proceedings have begun
against all those persons; or
(ii) criminal proceedings have begun
against one or more of those persons
23
National Crime Authority (State Provisions) Act 1984
Act No. 10157/1984 s. 18B and the Authority has been advised that
no other of those persons will beprosecuted—
any notation that was included in the
summons or notice under this section iscancelled.
(5) If a notation is cancelled by sub-section (4), the
Authority must serve a written notice of that fact on each person who was served with, or otherwise given, the summons or notice containing the notation.
(6) If a notation is inconsistent with a direction given
under section 16(9), the notation has no effect to
the extent of the inconsistency.
(7) In including a notation, the member may specify
circumstances in which the disclosure of the
information described in sub-section (1) may be
made.
S. 18B
18B. Offences concerning the disclosure of information inserted by
about summonses and notices No. 27/1994
s. 11.(1) A person who is served with, or otherwise given, a summons or notice containing a notation made under section 18A must not disclose— (a) the existence of the summons or notice or any information about it; or
(b) the existence of, or any information about,
any official matter connected with the
summons or notice.
Penalty: 20 penalty units or level 10
imprisonment.(2) Sub-section (1) does not prevent the person from making a disclosure—
(a) in accordance with the circumstances, if any, specified in the notation; or
24
National Crime Authority (State Provisions) Act 1984
| s. 18B | Act No. 10157/1984 |
(b) to a legal practitioner for the purpose of obtaining legal advice or representation relating to the summons, notice or matter; or
(c) to a legal aid officer for the purpose of
obtaining assistance under section 27 of the
Commonwealth Act relating to the
summons, notice or matter; or
(d) if the person is a body corporate—to an
officer or agent of the body corporate for the
purpose of ensuring compliance with the
summons or notice; or
(e) if the person is a legal practitioner—
(i) for the purpose of complying with a
legal duty of disclosure arising from his
or her professional relationship with a
client; or
(ii) for the purpose of obtaining the
agreement of another person under
section 19(3) to the legal practitioner
answering a question or producing a
document at a hearing before the
Authority.(3) If a disclosure is made to a person as permitted by sub-section (2) or (4)—
(a) while he or she is a person of a kind to
whom a disclosure is permitted to be made, he or she must not disclose the existence of, or any information about, the summons or
notice, or any official matter connected with
it, except as permitted by sub-section (4);(b) while he or she is no longer such a person,
he or she must not, in any circumstances,
make a record of, or disclose the existence
of, the summons, notice or matter, or
disclose any information about any of them.
25
National Crime Authority (State Provisions) Act 1984
Act No. 10157/1984 s. 18B
Penalty: 20 penalty units or level 10
imprisonment.
(4) A person to whom information has been
disclosed, as permitted by sub-section (2) or this
sub-section, may disclose that information—
(a) if the person is an officer or agent of a body
corporate referred to in sub-section (2)(d)—
(i) to another officer or agent of the bodycorporate for the purpose of ensuring
compliance with the summons or
notice; or
(ii) to a legal practitioner for the purpose of obtaining legal advice or representation relating to the summons, notice or
matter; or
(iii) to a legal aid officer for the purpose of
obtaining assistance under section 27 of
the Commonwealth Act relating to the
summons, notice or matter; or
(b) if the person is a legal practitioner—for the purpose of giving legal advice, making representations, or obtaining assistance under section 27 of the Commonwealth Act
relating to the summons, notice or matter; or (c) if the person is a legal aid officer—for the
purpose of obtaining legal advice or
representation relating to the summons,
notice or matter.(5) This section ceases to apply to a summons or notice after—
(a) the notation contained in the summons or
notice is cancelled by section 18A(4); or
(b) 5 years elapse after the issue of the summons
or notice—
26
National Crime Authority (State Provisions) Act 1984
| s. 19 | Act No. 10157/1984 |
whichever is sooner.
(6) A reference in this section to disclosing
something's existence includes disclosing
information from which a person could reasonablybe expected to infer its existence.
(7) In this section—
"legal aid officer" means—
(a) a member, or member of staff, of a
legal aid commission within the
meaning of the Commonwealth Legal
Aid Act 1977; or
(b) a person to whom the Attorney-General
has delegated his or her powers and
functions under section 27 of the
Commonwealth Act;
"official matter" means any of the following (whether past, present or contingent)—
(a) a reference under section 13 or 14 of the Commonwealth Act;
(b) an investigation conducted or co-
ordinated by the Authority;
(c) a hearing held by the Authority;
(d) court proceedings.
19. Failure of witness to attend and answer questions
(1) A person served, as prescribed, with a summons
to appear as a witness at a hearing before the
Authority shall not, without reasonable excuse—
(a) fail to attend as required by the summons; or
S. 19(1)(b)
| amended by | (b) fail to attend from day to day unless excused, |
| No. 27/1994 | or released from further attendance, by a |
| s. 13(a). | member. |
27
National Crime Authority (State Provisions) Act 1984
Act No. 10157/1984 s. 19 (2) A person appearing as a witness at a hearing
before the Authority shall not, without reasonable
excuse—
(a) when required pursuant to section 17 either
to take an oath or make an affirmation—
refuse or fail to comply with the
requirement;
S. 19(2)(b)
(b) refuse or fail to answer a question that the person is required to answer by the member
amended by
No. 27/1994 presiding at the hearing; or s. 13(b). (c) refuse or fail to produce a document or thing that the person was required to produce by a summons under this Act served as
prescribed.
S. 19(3)
(3) Where—
amended by No. 27/1994
(a) a legal practitioner is required to answer a
question or produce a document at a hearing
before the Authority; ands. 13(b). (b) the answer to the question would disclose, or
the document contains, a privileged
communication made by or to the legal
practitioner in the capacity of a legal
practitioner—the legal practitioner is entitled to refuse to
comply with the requirement unless the person to
whom or by whom the communication was made
agree to the legal practitioner complying with the
requirement but, where the legal practitioner
refuses to comply with the requirement, the legal
practitioner shall, if so required by the member
presiding at the hearing, furnish to the Authority
the name and address of the person to whom or by
whom the communication was made.
28
National Crime Authority (State Provisions) Act 1984
| s. 19 | Act No. 10157/1984 |
(4) Subject to sub-sections (5), (7), (9) and (11), it is a
reasonable excuse for the purposes of sub-section
(2) for a natural person—
(a) to refuse or fail to answer a question put to
the person at a hearing before the Authority;
or
(b) to refuse or fail to produce a document or
thing that the person was required to produce
at a hearing before the Authority—
that the answer to the question, or the production
of the document or thing, as the case may be,
might tend to incriminate the person.(5) It is not a reasonable excuse for the purposes of sub-section (2) for a person—
(a) to refuse or fail to answer a question put to
the person at a hearing before the Authority;
or
(b) to refuse or fail to produce a document or
thing that the person was required to produce
at a hearing before the Authority—
that the answer to the question or the production of the document or thing might tend to prove the person's guilt of an offence against a law of the
State if the Attorney-General, or a person authorized by the Attorney-General, being the person holding the office of Director of Public Prosecutions, or a similar office, has given to the first-mentioned person an undertaking in writing that any answer given or document or thing produced, as the case may be, or any information, document or thing obtained as a direct or indirect consequence of the answer or the production of the first-mentioned document or thing, will not be used in evidence in any proceedings against that person for an offence against a law of the State
29
National Crime Authority (State Provisions) Act 1984
Act No. 10157/1984 s. 19 other than proceedings in respect of the falsity of evidence given by that person and the Attorney- General, or the person so authorized, states in the
undertaking—
(c) that, in his or her opinion, there are special
grounds that in the public interest require
that answers be given or documents or things
be produced by the first-mentioned person;
and
(d) the general nature of those grounds.
(6) The Authority may recommend to the Attorney-
General that a person who has been or is to be served with a summons to appear as a witness at a hearing before the Authority or to produce a document or thing at a hearing before the Authority be given an undertaking in accordance with sub-section (5).
(7) It is not a reasonable excuse for the purposes of sub-section (2) for a person—
(a) to refuse or fail to answer a question put to
the person at a hearing before the Authority;
or
(b) to refuse or fail to produce a document or
thing that the person was required to produce
at a hearing before the Authority—
that the answer to the question or the production of the document or thing might tend to prove the person's guilt of an offence against a law of the
Commonwealth or of a Territory if the Director of Public Prosecutions of the Commonwealth has given to the person an undertaking in writing that any answer given or document or thing produced, as the case may be, or any information, document or thing obtained as a direct or indirect consequence of the answer or the production of
30
National Crime Authority (State Provisions) Act 1984
| s. 19 | Act No. 10157/1984 |
the first-mentioned document or thing, will not be proceedings in respect of the falsity of evidence given by the person and the Director of Public Prosecutions states in the undertaking—
used in evidence in any proceedings against the
person for an offence against a law of the(c) that, in his or her opinion, there are special
grounds that in the public interest require
that answers be given or documents or things
be produced by the person; and
(d) the general nature of those grounds.
(8) The Authority may recommend to the Director of Public Prosecutions of the Commonwealth that a person who has been or is to be served with a
summons to appear as a witness at a hearing
before the Authority or to produce a document or
thing at a hearing before the Authority be given an
undertaking in accordance with sub-section (7).
(9) It is not a reasonable excuse for the purposes of sub-section (2) for a person—
(a) to refuse or fail to answer a question put to
the person at a hearing before the Authority;
or
(b) to refuse or fail to produce a document or
thing that the person was required to produce
at a hearing before the Authority—
that the answer to the question or the production of the document or thing might tend to prove the person's guilt of an offence against a law of
another State if the Attorney-General of that State,
or a person authorized by that Attorney-General,
being the person holding the office of Director of
Public Prosecutions, or a similar office, of thatState, has given to the first-mentioned person an
31
National Crime Authority (State Provisions) Act 1984
Act No. 10157/1984 s. 19 undertaking in writing that any answer given or
document or thing produced, as the case may be,
or any information, document or thing obtained as
a direct or indirect consequence of the answer or
the production of the first-mentioned document or
thing, will not be used in evidence in any
proceedings against that person for an offence
against a law of that State other than proceedings
in respect of the falsity of evidence given by that
person and the Attorney-General of that State, or
the person so authorized, states in the
undertaking—(c) that, in his or her opinion, there are special
grounds that in the public interest require
that answers be given or documents or things
be produced by the first-mentioned person;
and
(d) the general nature of those grounds.
(10) The Authority may recommend to the Attorney-
General of another State that a person who has been or is to be served with a summons to appear as a witness before the Authority or to produce a document or thing at a hearing before the Authority be given an undertaking in accordance with sub-section (9).
(11) For the purposes of sub-section (2)—
(a) it is not a reasonable excuse for a corporation
to refuse or fail to produce a document or
thing that the production of the document or
thing might tend to incriminate the
corporation; and
(b) it is not a reasonable excuse for a natural
person to refuse or fail to produce a
document that is, or forms part of, a record
of an existing or past business (not being, in
the case of a person who is or has been an
32
National Crime Authority (State Provisions) Act 1984
| s. 20 | Act No. 10157/1984 |
employee, a document that sets out details of earnings received by the person in respect of the person's employment and does not set out any other information) that the production of the document might tend to incriminate the
person.
(12) Sub-sections (5), (7), (9) and (11) do not apply
where the offence in respect of which the answer to a question or the production of a document or thing, as the case requires, might tend to
incriminate a person is an offence with which the
person has been charged and the charge has not
been finally dealt with by a court or otherwise
disposed of.
(13) A person who contravenes sub-section (1), (2) or
(3) is guilty of an offence punishable, upon
conviction, by a fine not exceeding ten penalty
units or imprisonment for a period not exceeding
six months.
20. Warrant for arrest of witness
S. 20(1)
| substituted by | (1) Where, upon application by or on behalf of the |
| No. 25/1989 | Authority, a Judge of the Federal Court or of the |
| s. 26(1), | |
| amended by | Supreme Court sitting in chambers is satisfied by |
| No. 27/1994 | evidence on oath that there are reasonable grounds |
| s. 13(c). | to believe— |
(a) that a person who has been ordered, under section 15, to deliver his or her passport to the Authority, whether or not the person has
complied with the order, is nevertheless
likely to leave Australia for the purpose of
avoiding giving evidence before the
Authority; or(b) that a person in relation to whom a summons has been issued under section 17(1)—
33
National Crime Authority (State Provisions) Act 1984
Act No. 10157/1984 s. 20 (i) has absconded or is likely to abscond; or
(ii) is otherwise attempting, or is otherwise
likely to attempt, to evade service of
the summons; or
S. 20(1)(c)
(c) that a person has committed an offence under section 19(1) or is likely to do so—
inserted by
No. 27/1994
s. 12.the Judge may issue a warrant for the
apprehension of the person.
(2) The warrant may be executed by any member of
the Australian Federal Police or of the Police whom it is addressed, and the person executing it has power to break and enter any premises, vessel, aircraft or vehicle for the purpose of executing it.
S. 20(2A)
(2A) The warrant may be executed notwithstanding that the warrant is not at the time in the possession of
inserted by
No. 25/1989
the person executing it.
s. 26(2). S. 20(3)
(3) Where a person is apprehended pursuant to a warrant under this section, the person shall be
amended by
No. 27/1994
brought, as soon as practicable and in any event s. 13(c). within three days, before a Judge of the Federal may— (a) admit the person to bail, with such security
as the Judge thinks fit, on such conditions as
the Judge thinks necessary to ensure the
appearance of the person as a witness before
the Authority;
(b) order the continued detention of the person
for the purpose of ensuring the appearance of
the person as such a witness; or
(c) order the release of the person.
34
National Crime Authority (State Provisions) Act 1984
| s. 21 | Act No. 10157/1984 |
| S. 20(4) | (4) Where a person is under detention pursuant to this |
| amended by | |
| No. 27/1994 | section, the person shall, within three days after |
| s. 13(c). | the person was brought, or last brought, before a Judge of the Federal Court or of the Supreme Court in accordance with this section, or within such shorter time as a Judge has fixed upon the last previous appearance of the person before a Judge under this section, be again brought before a Judge and the Judge may thereupon exercise any of the powers of a Judge under sub-section (3). |
(5) In this section, "Australia" includes the external
Territories.
21. Applications to Federal Court of Australia
(1) Where—
(a) a person claims to be entitled to refuse to
produce a document that the person is
required to produce pursuant to a notice
under section 18; or
(b) a person claims to be entitled to refuse to answer a question put to the person, or to produce a document that the person was
required to produce, at a hearing before the
Authority—
the Authority shall decide as soon as practicable
whether in its opinion the claim is justified and
notify the person of its decision.(2) If the person is dissatisfied with the decision, the
person may apply to the Federal Court for an
order of review in respect of the decision.
(3) Where the Authority decides that a claim by a
produce a document is not justified, the person is
not entitled to make an application to the Federalperson that the person is entitled to refuse to decision unless the person has produced the
35
National Crime Authority (State Provisions) Act 1984
Act No. 10157/1984 s. 21 document to the Authority or placed the document
in the custody of the Registrar of that Court, and,
where the person has so produced the document
and makes such an application, the Authority shall
cause the document to be placed in the custody of
the Registrar of that Court.(4) On an application for an order of review in respect
of a decision of the Authority under sub-section
(1), the Federal Court may, in its discretion, make
an order—
(a) affirming the decision; or (b) setting aside the decision.
(5) Where the Federal Court makes an order under
sub-section (4) setting aside a decision by the was entitled to refuse to produce a document is not justified— (a) unless paragraph (b) applies—the Federal Court shall make a further order directing that the document be delivered to the person;
(b) if the Federal Court—
(i) makes the first-mentioned order for the reason that the person was entitled, on the ground that production of the
document might tend to incriminate the
person, to refuse to produce thedocument;
(ii) is satisfied that the person was not
entitled on any other ground to refuse
to produce the document; and
(iii) is satisfied that an undertaking of a kind
referred to in section 19(5), (7) or (9) has, or two or more such undertakings have, been given to the person and that the person, if now required to produce
36
National Crime Authority (State Provisions) Act 1984
| s. 21 | Act No. 10157/1984 |
the document at a hearing before the refuse so to produce it—
the Federal Court shall make a further order directing that the document be delivered to the Authority; and
(c) if the Federal Court—
(i) makes the first-mentioned order for the reason that, or for reasons including the reason that, the person was entitled, on the ground that production of the
document might tend to incriminate the
person, to refuse to produce thedocument; and
(ii) makes a further order directing that the
document be delivered to the person—
evidence of production of the document by the falsity of evidence given by the person.
the person to the Authority, or of the placing
of the document by the person in the custody
of the Registrar of the Federal Court, as the
case may be, for the purposes of the
application on which the orders were made is
not admissible in proceedings against the
person for an offence against a law of the(6) A prosecution for an offence under section 18 or 19 shall not be commenced in respect of a refusal or failure by a person to produce a document or
answer a question—
(a) if the person has claimed to be entitled to refuse to produce the document or answer the question, as the case may be, and the
Authority decides that, in its opinion, the claim is not justified—until the expiration of
37
National Crime Authority (State Provisions) Act 1984
Act No. 10157/1984 s. 21 the period of five days (excluding days on which the Registry of the Federal Court is closed) immediately after the relevant day in
relation to the decision; or
(b) if the person has made an application to the Federal Court under sub-section (2) for an order of review in respect of a decision by the Authority that, in its opinion, a claim by
the person to be entitled to refuse to produce determined or otherwise disposed of.
the document or answer the question is not
justified—until the application, and any
appeal from an order made by the Federal(7) An order of the Federal Court under sub-section
(4) is, subject to any appeal from that order,
conclusive for the purposes of any other
proceedings.
(8) Where a person who is required to produce a
document pursuant to a notice under section 18, or
is required to produce a document at a hearing
before the Authority, claims that—
(a) the document contains—
(i) particular matter (in this sub-section referred to as the "relevant matter") relating to the personal affairs of the person, not being matter relating to the
activities of an existing or past
business; or
(ii) in the case of a person who is or has been an employee—particular matter (in this sub-section also referred to as the "relevant matter"), being details of earnings received by the person in
respect of the person's employment;
and
38
National Crime Authority (State Provisions) Act 1984
| s. 21 | Act No. 10157/1984 |
(b) the person would, if the document had
contained only the relevant matter, have
been entitled, on the ground that production
of the document might tend to incriminate
the person, to refuse so to produce the
document—
the person may, whether or not the person has
made an application to the Federal Court under
sub-section (2) in respect of a decision by the
Authority in relation to the document, make an
application to the Federal Court for an order under
this sub-section and, if such an application is
made and the document is produced to that Court,
then, subject to sub-section (5)(a), that court—(c) if it is satisfied that the claim is justified—
may, subject to paragraph (d) of this sub-
section, make such order as it thinks fit for
the excision or concealment of the part of the
document that contains the relevant matter
and shall, if it makes such an order, make a
further order directing that the document be
delivered to the Authority after the first-
mentioned order has been complied with;
(d) if it is satisfied that an undertaking of a kind referred to in section 19(5), (7) or (9) has, or two or more such undertakings have, been
given to the person and that the person production of the document might tend to incriminate the person, to refuse so to produce it—shall make an order directing that the document be delivered to the Authority; and
would not, if the document contained only
the relevant matter and the person were now
required to produce the document to the
39
National Crime Authority (State Provisions) Act 1984
Act No. 10157/1984 s. 21 (e) if paragraph (d) does not apply and that
Court does not make an order of the kind first referred to in paragraph (c)—shall make an order directing that the document be delivered to the Authority.
S. 21(9)
(9) A person is not entitled to make an application under sub-section (8) in relation to a document
amended by
No. 27/1994
unless the person has, on the day on which the s. 13(d). document was to be produced to the Authority or
on such later day as a member of the Authority
(whether on or after the first-mentioned day)
allows, given to the Authority a notice in writing
stating that the person proposes to make an
application for an excision or concealment order
in relation to the document.
(10) A person is not entitled to make an application to the Federal Court under sub-section (8) in relation to a document unless the person has produced the document to the Authority or placed the document in the custody of the Registrar of that Court, and,
where the person has produced the document and
makes such an application, the Authority shall
cause the document to be placed in the custody ofthe Registrar of that Court.
(11) Where—
(a) a person makes a claim as mentioned in sub- section (8) in relation to particular matter (in this sub-section referred to as the "relevant
matter") contained in a document; and
(b) the Federal Court, being satisfied that the claim is justified, makes in relation to the document an order of the kind first referred
to in sub-section (8)(c)—
evidence of production of the document by the person to the Authority, or of the placing of the document by the person in the custody of the
40
National Crime Authority (State Provisions) Act 1984
| s. 21 | Act No. 10157/1984 |
Registrar of that Court, as the case may be, for the purposes of the application on which the order is made is, in so far as the document contains the relevant matter, not admissible in any proceedings against the person for an offence against the law of the State, other than proceedings in respect of the falsity of evidence given by the person.
(12) A prosecution for an offence under section 18 or 19 shall not be commenced in respect of a refusal or failure by a person to produce a document—
(a) if the person has given to the Authority in
relating to the document—until the
expiration of the period of five days
(excluding days on which the Registry of theaccordance with sub-section (9) a notice the relevant day in relation to the notice; or
(b) if the person has made an application under
sub-section (8) in relation to the document— until the application, and any appeal from an order made by the Federal Court on the
application, have been determined or
otherwise disposed of.
(13) An application to the Federal Court under sub- section (2) or (8)—
(a) shall be made in such manner as is
prescribed by Rules of Court made under the the time being;
Federal Court of Australia Act 1976 of the
(b) shall set out the grounds of the application;
and
(c) shall be lodged with a Registry of the
Federal Court within the period of five days
41
National Crime Authority (State Provisions) Act 1984
Act No. 10157/1984 s. 21 (excluding days on which the Registry is
closed) immediately after—(i) in the case of an application under sub- section (2)—the relevant day in relation to the decision to which the application relates; or
(ii) in the case of an application under sub- section (8)—the relevant day in relation to the notice given in accordance with
sub-section (9) in relation to the
application—
or within such further period as that Court
(whether before or after the expiration of the first-
mentioned period) allows.(14) The Federal Court has jurisdiction with respect to matters arising under this section.
(15) In this section, unless the contrary intention
appears—
"document" includes any thing;
"prescribed notice" means a notice stating as
mentioned in section 22(2)(c);
"relevant day" means—
(a) in relation to a decision of the
Authority under sub-section (1)—the day on which the Authority gives to the person to whom the decision relates a prescribed notice relating to the decision; or
(b) in relation to a notice given by a person in accordance with sub-section (9)—the day on which the Authority gives to the person a prescribed notice relating to
the notice so given by the person.
42
National Crime Authority (State Provisions) Act 1984
| s. 22 | Act No. 10157/1984 |
(16) Where a decision of the Authority under sub-
two or more documents, the decision shall, to the
extent to which it relates to a particular question
or document, be deemed, for the purposes of thissection (1) relates to two or more questions, or that question or document only.
(17) Where a person gives to the Authority in
accordance with sub-section (9) a notice relating to two or more documents, the notice shall, to the extent to which it relates to a particular document, be deemed, for the purposes of this Act, to
constitute a separate notice relating to thatdocument only.
22. Applications to Supreme Court
(1) Where—
(a) a person is required—
(i) to answer a question, or to produce a
document, at a hearing before the
Authority; or
(ii) to produce a document pursuant to a notice under section 18;
(b) the Authority, at a particular time (in this
sub-section referred to as the "relevant
time")—
(i) decides under section 21(1) that a claim by the person to be entitled to refuse to answer the question, or to produce the document, as the case may be, is not
justified; or
(ii) in a case where the person is required
to produce a document—receives from the person a notice given in accordance with section 21(9) relating to the
document; and
43
National Crime Authority (State Provisions) Act 1984
Act No. 10157/1984 s. 22 (c) the Authority, at the relevant time—
(i) in a case where paragraph (a)(i)applies—is holding the hearing for the purposes of a special investigation, or of two or more special investigations; or
(ii) in the case where paragraph (a)(ii)
applies—considers the document to be relevant to a special investigation, or to two or more special investigations—
then, for the purposes of this section—
(d) if a reference to the Authority made by the Commonwealth Minister is at the relevant time in force in respect of a matter to which
the special investigation, or any of the
special investigations, relates—prescribed
circumstances shall be taken not to apply;(e) if a reference to the Authority made by a Minister of the Crown of a State is at the relevant time in force in respect of a matter
to which the special investigation, or any of the relevant time in force in respect of such a matter—prescribed circumstances shall be taken not to apply; or
the special investigations, relates and a
reference to the Authority made by a(f) if a reference to the Authority made by a Minister of the Crown of a State is at the relevant time in force in respect of a matter
to which the special investigation, or any of the special investigations, relates and neither paragraph (d) nor (e) applies—prescribed
circumstances shall be taken to apply, inrelation to the last-mentioned State—
44
National Crime Authority (State Provisions) Act 1984
| s. 22 | Act No. 10157/1984 |
in relation to the decision of the Authority, or in
relation to the notice given by the person inaccordance with section 21(9), as the case may be.
(2) Where the Authority—
(a) decides under section 21(1) that a claim by a
person to be entitled to refuse to answer a question, or to produce a document, is not justified; or
(b) receives from a person a notice given in accordance with section 21(9)—
the Authority shall give to the person a notice—
(c) stating that prescribed circumstances—
(i) do not apply; or
(ii) apply in relation to a specified State—
as the case requires, in relation to the
decision of the Authority, or in relation to
the notice given by the person in accordancewith section 21(9), as the case may be; and
(d) stating—
(i) in a case where paragraph (c)(i)
applies—that the effect of prescribed circumstances not so applying is that the Federal Court has jurisdiction; or
(ii) in a case where paragraph (c)(ii)
applies—that the effect of prescribed
circumstances so applying in relation to
that State is that the Supreme Court ofthat State has jurisdiction—
with respect to—
(iii) an application for an order of review in
respect of the decision of the Authority;
or
45
National Crime Authority (State Provisions) Act 1984
Act No. 10157/1984 s. 22 (iv) an application in relation to the claim to which the notice given by the person in accordance with sub-section 21(9)
relates—
as the case may be—
but failure of a notice to state as mentioned in
paragraph (d) does not affect the validity of the
notice.(3) A notice that is given by the Authority to a person
and that states as mentioned in sub-section (2)(c)
is prima facie evidence of the matter so stated.
(4) Subject to sub-section (5), where prescribed
circumstances apply, in relation to the State, in
relation to—
(a) a decision of the Authority under section
21(1); or
(b) a notice given in accordance with section
21(9)—
section 21 has effect in relation to the decision, or in relation to the claim to which the notice relates, as the case may be, subject to the following
modifications—
(c) a reference in section 21 to the Federal Court
shall be taken to be a reference to the
Supreme Court;
(d) a reference in section 21 to the Registrar of
the Federal Court shall be taken to be a
reference to the Prothonotary of the Supreme
Court;
(e) a reference in section 21 to a Registry of the
Federal Court shall be taken to be a reference
to the office of the Prothonotary of the
Supreme Court; and
46
National Crime Authority (State Provisions) Act 1984
| s. 22 | Act No. 10157/1984 |
(f) the words "made under the Federal Court of Australia Act 1976 of the Commonwealth as amended and in force for the time being"
shall be deemed to be omitted from section
21(13)(a).
(5) Where an application is made to the Supreme
Court under section 21 as that section has effect by virtue of sub-section (4) of this section and it appears to that Court that it would be more
appropriate for the application to be heard and determined by the Federal Court, the Supreme Court may transfer the application to the FederalCourt and, upon an application being so transferred—
(a) the modifications of section 21 mentioned in
sub-section (4) of this section cease to have
effect in relation to the application;
(b) the Federal Court may hear and determine
the application as if the application had been duly made to the Federal Court under section 21; and
(c) if a document has been placed in the custody of the Prothonotary of the Supreme Court for the purposes of the application—
(i) the Prothonotary of the Supreme Court
shall send the document to the
Registrar of the Federal Court; and
(ii) section 21(5)(c) or section 21(11), as
the case requires, applies in relation to
the application as if the reference in
that paragraph or sub-section to the
placing of the document in the custody
of the Registrar of the Federal Court
were a reference to the placing of the
document in the custody of the
Prothonotary of the Supreme Court.
47
National Crime Authority (State Provisions) Act 1984
Act No. 10157/1984 s. 23 (6) The Supreme Court has jurisdiction with respect to matters arising under section 21 in respect of which an application has been duly made to that Court under that section as it has effect by virtue of sub-section (4) of this section.
(7) The Federal Court has jurisdiction with respect to
matters arising under section 21 in respect of
which an application has been duly transferred to
that Court under this section.
(8) In this section, unless the contrary intention
appears—
"document" includes any thing;
"special investigation" means an investigation
conducted by the Authority in relation to a
matter in respect of which a reference made
under the Commonwealth Act by the
Commonwealth Minister, or under an Act of
a State by a Minister of the Crown of thatState, is in force.
23. False or misleading evidence
(1) A person shall not, at a hearing before the
Authority, give evidence that is, to the knowledge of the person, false or misleading in a material particular.
(2) A contravention of sub-section (1) is an indictable offence and, subject to this section, is punishable, upon conviction, by a fine not exceeding 200
penalty units or by imprisonment for a period not
exceeding five years.
(3) Notwithstanding that an offence against sub- section (1) is an indictable offence, a court of summary jurisdiction may hear and determine proceedings in respect of such an offence if the
court is satisfied that it is proper to do so and the
defendant and the prosecutor consent.
48
National Crime Authority (State Provisions) Act 1984
s. 24
| s. 25 | Act No. 10157/1984 |
| S. 23(4) | (4) Section 54 of the Magistrates' Court Act 1989 |
| amended by | |
| No. 57/1989 | applies to proceedings in a court of summary |
| s. 3(Sch. item | jurisdiction under this section as if the references |
| 139.1(a)–(e)). | in section 54 of that Act to the provisions of section 53(1) were references to this section. |
(5) Where, in accordance with sub-section (3), a court
of summary jurisdiction convicts a person of an offence against sub-section (1), the penalty that the court may impose is a fine not exceeding 20 penalty units or imprisonment for a period not
exceeding one year.
S. 24
| amended by | 24. Protection of witnesses etc. |
| No. 27/1994 | |
| s. 13(e). | Where it appears to a member that, by reason of the fact that a person— |
(a) is to appear, is appearing or has appeared at a
hearing before the Authority to give
evidence or to produce a document or thing;
or
(b) proposes to produce or has produced a
document or thing to the Authority pursuant to this Act otherwise than at a hearing before the Authority—
the safety of the person may be prejudiced or the the State) as are necessary to avoid prejudice to the safety of the person, or to protect the person from intimidation or harassment.
person may be subjected to intimidation or
harassment, the member may make such
arrangements (including arrangements with the25. Contempt of Authority etc.
(1) A person shall not—
S. 25(1)(a)
| amended by | (a) obstruct or hinder the Authority or a member |
| No. 27/1994 | in the performance of the special functions |
| s. 13(f). | of the Authority; or |
49
National Crime Authority (State Provisions) Act 1984
Act No. 10157/1984
(b) disrupt a hearing before the Authority.
Penalty: 20 penalty units or imprisonment for
one year.(2) An offence against sub-section (1) is punishable on summary conviction.
(3) A person shall not—
(a) give, confer, or procure, or promise or offer to give or confer, or to procure or attempt to procure, any property or benefit of any kind to, upon, or for, any person, upon any
agreement or understanding that any person called or to be called as a witness before the Authority shall give false testimony or
withhold true testimony;
(b) attempt by any means to induce a person
called or to be called as a witness before the withhold true testimony; or
(c) ask, receive or obtain, or agree or attempt to
any kind for that person, or any other person,
upon any agreement or understanding that
any person shall as a witness before thereceive or obtain any property or benefit of true testimony.
Penalty: 100 penalty units or imprisonment for
five years.
(4) A person shall not practice any fraud or deceit, or
knowingly make or exhibit any false statement, representation, token, or writing, to any person called or to be called as a witness before the
Authority with intent to affect the testimony of that person as a witness.
Penalty: 40 penalty units or imprisonment for
two years.
50
National Crime Authority (State Provisions) Act 1984
| s. 25 | Act No. 10157/1984 |
(5) A person, knowing that any book, document, or writing is or may be required in evidence before the Authority, shall not wilfully destroy it or
render it illegible or indecipherable or incapable of identification, with intent thereby to prevent it from being used in evidence.
Penalty: 40 penalty units or imprisonment for
two years.
(6) A person shall not wilfully prevent or wilfully endeavour to prevent any person who has been summoned to attend as a witness before the
Authority from attending as a witness or from producing anything in evidence pursuant to the summons to attend.
Penalty: 20 penalty units or imprisonment for
one year.
(7) A person shall not use, cause, inflict, or procure,
any violence, punishment, damage, loss, or
disadvantage to any person for or on account of
having appeared as a witness before the Authority
or for or on account of any evidence given before
the Authority.
Penalty: 20 penalty units, or imprisonment for
one year.(8) An employer shall not dismiss any employee from
employment, or prejudice any employee in
employment, for or on account of the employee
having appeared as a witness before the Authority,
or for or on account of the employee having given
evidence before the Authority.
Penalty: 20 penalty units or imprisonment for
one year.(9) In any proceeding for any offence against sub-
section (8) it shall lie upon the employer to prove that any employee shown to have been dismissed or prejudiced in employment was so dismissed or
51
National Crime Authority (State Provisions) Act 1984
Act No. 10157/1984 s. 26 prejudiced for some reason other than the reasons
mentioned in sub-section (8).(10) A contravention of a preceding sub-section other than sub-section (1) is an indictable offence and, subject to sub-section (11), is punishable upon
conviction.
(11) Notwithstanding that an offence against a
preceding sub-section is an indictable offence, a
court of summary jurisdiction may hear and
determine proceedings in respect of that offence if
the court is satisfied that it is proper to do so andthe defendant and the prosecutor consent.
S. 25(12)
(12) Section 54 of the Magistrates' Court Act 1989 amended by
applies to proceedings in a court of summary No. 57/1989
s. 3(Sch. itemjurisdiction under this section as if the references 139.2(a)–(e)). in section 54 of that Act to the provisions of section 53(1) were references to this section.
(13) Where, in accordance with sub-section (11), a
court of summary jurisdiction convicts a person of
an offence against sub-section (3), (4) or (5), the
penalty that the court may impose is a fine not
exceeding 20 penalty units or imprisonment for
one year.
26. Double jeopardy
Where an act or omission by a person is an offence against this Act and is also an offence against the Commonwealth Act, the person may be prosecuted and convicted under this Act in respect of that act or omission notwithstanding that the person has been or is being prosecuted, or has been convicted, in respect of that act or omission under the Commonwealth Act, but nothing in this Act renders a person liable to be punished twice in respect of the same act or omission.
52
National Crime Authority (State Provisions) Act 1984
| s. 27 | Act No. 10157/1984 |
27. Powers of acting members of the Authority
S. 27(1)
| amended by | (1) While a person is acting as Chairperson, the |
| No. 27/1994 | person has, and may exercise, all the powers, and |
| s. 13(g). | shall perform all the functions, of the Chairperson under this Act. |
(2) While a person is acting as a member, the person
has, and may exercise, all the powers, and shall
perform all the functions, of a member under this
Act.
S. 27(3)
| amended by | (3) The validity of anything done by or in relation to a |
| No. 27/1994 | person purporting to act as Chairperson or as a |
| s. 13(g). | member shall not be called in question on the ground that the occasion for the appointment of the person had not arisen, that there is a defect or irregularity in or in connexion with that appointment, that that appointment had ceased to have effect or that the occasion for the person to act had not arisen or had passed. |
28. Administrative arrangements with Commonwealth
The Minister may make an arrangement with the Commonwealth Minister under which the State will, from time to time as agreed upon under the arrangement, do either or both of the following—
(a) make available a person who is the holder of a judicial or other office, or persons who are the holders of judicial or other offices, of the State to hold office as a member or
members;
(b) make available a person who is an officer or
employee of the State or of an authority of
the State or a member of the Police Force of
the State, or persons who are such officers,
employees or members, to perform services
for the Authority.
29. Protection of members etc.
53
National Crime Authority (State Provisions) Act 1984
Act No. 10157/1984 s. 29
(1) A member has, in the performance of functions, or the exercise of powers, as a member in relation to
S. 29(1)
amended byNo. 27/1994
a hearing before the Authority, the same s. 13(h)(i). protection and immunity as a Justice of the High
Court.S. 29(2)
(2) A legal practitioner assisting the Authority or representing a person at a hearing before the
amended by
No. 35/1996 s. 453(Sch. 1
Authority has the same protection and immunity item 60). as a legal practitioner has in appearing for a party
in proceedings in the High Court.
(3) Subject to this Act, a person summoned to attend
or appearing before the Authority as a witness has the same protection as a witness in proceedings in the High Court.
30. Appointment of Judge as member not to affect tenure etc.
S. 30(1)
(1) The appointment of the holder of a judicial office as a member, or service by the holder of a judicial
amended by
No. 27/1994
office as a member, does not affect the holder's s. 13(i). tenure of that judicial office or the holder's rank,
title, status, precedence, salary, annual or other
allowances or other rights or privileges as the
holder of that judicial office and, for all purposes,
the holder's service as a member shall be taken to
be service as the holder of that judicial office.
(2) In this section, "judicial office" means—
(a) an office of Judge of a court of the State; or (b) an office the holder of which has, by virtue
of holding that office, the same status as a
Judge of a court of the State.
31. Secrecy
(1) This section applies to—
54
National Crime Authority (State Provisions) Act 1984
| s. 31 | Act No. 10157/1984 |
| S. 31(1)(a) | (a) a member of the Authority; and |
| amended by No. 27/1994 s. 13(i). | |
| (b) a member of the staff of the Authority. |
(2) A person to whom this section applies who, either directly or indirectly, except for the purposes of a relevant Act or otherwise in connexion with the
performance of the person's duties under a
relevant Act, and either while the person is or
after the person ceases to be a person to whomthis section applies—
(a) makes a record of any information; or
(b) divulges or communicates to any person any
information—
being information acquired by the person by
reason of, or in the course of, the performance of
duties under this Act, is guilty of an offence
punishable on summary conviction by a fine not
exceeding 50 penalty units or imprisonment for a
period not exceeding one year, or both.
(3) A person to whom this section applies shall not be
required to produce in any court any document
that has come into the person's custody or control
in the course of, or by reason of, the performance
of duties under this Act, or to divulge or
communicate to a court a matter or thing that has
come to the person's notice in the performance of
duties under this Act, except where the Authority,
or a member or acting member in the member's or
acting member's official capacity, is a party to the
relevant proceedings or it is necessary to do so—
(a) for the purpose of carrying into effect the provisions of a relevant Act; or
(b) for the purposes of a prosecution instituted
as a result of an investigation carried out by
55
National Crime Authority (State Provisions) Act 1984
Act No. 10157/1984 s. 32 the Authority in the performance of its
functions.
(4) In this section—
"court" includes any tribunal, authority or person
having power to require the production of documents or the answering of questions;
S. 31(4) def. of
"member of the staff of the Authority" "member of means— the staff of the
Authority"
(a) a person referred to in the definition of "member of the staff of the Authority"
inserted by No. 25/1989
s. 27. in section 4(1) of the Commonwealth
Act; or
(b) a person who assists, or performs
services for or on behalf of, a legal
practitioner appointed under section 50
of the Commonwealth Act in the
performance of the legal practitioner'sduties as counsel to the Authority;
"produce" includes permit access to, and
"production" has a corresponding meaning;
"relevant Act" means the Commonwealth Act,
this Act or any corresponding Act of another
State.
32. Report to be laid before Parliament
The Minister shall cause a copy of—
(a) each annual report of the Authority that is received by the Minister; and
(b) any comments made on the report by the
Inter-Governmental Committee, being
comments that accompanied the report—
to be laid before each House of the Parliament
within fifteen sitting days of that House after thereport is received by the Minister.
56
National Crime Authority (State Provisions) Act 1984
| s. 33 | Act No. 10157/1984 |
33. Regulations
The Governor in Council may make regulations prescribing all matters which by this Act are authorized or required to be prescribed for the purposes of this Act.
| S. 34 | * | * | * | * | * |
| repealed by No. 25/1989 s. 28. |
═══════════════
57
National Crime Authority (State Provisions) Act 1984
Act No. 10157/1984 Notes
NOTES
1. General Information
The National Crime Authority (State Provisions) Act 1984 was assented
to on 20 November 1984 and came into operation on 5 December 1984:
Government Gazette 5 December 1984 p. 4329.
58
National Crime Authority (State Provisions) Act 1984
| Notes | Act No. 10157/1984 |
2. Table of Amendments
This Version incorporates amendments made to the National Crime instruments. ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– Crimes Legislation (Miscellaneous Amendments) Act 1989, No. 25/1989
Assent Date: 6.6.89 Commencement Date: Ss 22–28 on 25.6.89: Special Gazette 20.6.89 p. 1 Current State: This information relates only to the provision/s
amending the National Crime Authority (State
Provisions) Act 1984Magistrates' Court (Consequential Amendments) Act 1989, No. 57/1989
Assent Date: 14.6.89 Commencement Date: S. 4(1)(a)–(e)(2) on 1.9.89: Government Gazette
30.8.89 p. 2210; rest of Act on 1.9.90: Government
Gazette 25.7.90 p. 2217Current State: All of Act in operation National Crime Authority (State Provisions) (Amendment) Act 1994,
No. 27/1994
Assent Date: 24.5.94 Commencement Date: 24.5.94: s. 2 Current State: All of Act in operation Public Prosecutions Act 1994, No. 43/1994
Assent Date: 7.6.94 Commencement Date: S. 56(Sch. item 4) on 1.7.94: s. 2(3) Current State: This information relates only to the provision/s
amending the National Crime Authority (State
Provisions) Act 1984Legal Practice Act 1996, No. 35/1996
Assent Date: 6.11.96 Commencement Date: S. 453(Sch. 1 item 60) on 1.1.97: s. 2(3) Current State: This information relates only to the provision/s
amending the National Crime Authority (State
Provisions) Act 1984
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
59
National Crime Authority (State Provisions) Act 1984
Act No. 10157/1984 Notes
3. Explanatory Details
No entries at date of publication.
60
0
0
0