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Report Details


Committee Name:

Legislation Committee (2001 - 2005)

House:

Legislative Council
Report Type:Report

Title:

Criminal Investigation (Exceptional Powers) and Fortification Removal Bill 2001
Report No:15
No of Pages:176 with a minority report of 11 pages
Physical Location:Legislative Council Committee Office

Presentation Date:

05/09/2002
Inquiry Name(s):Criminal Investigations (Exceptional Powers) and Fortification Removal Bill 2001


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Click here to view the Government's response to the report


Hide details for Executive Summary and RecommendationsExecutive Summary and Recommendations

Executive Summary


1 The Criminal Investigation (Exceptional Powers) and Fortification Removal Bill 2001 (Bill) was referred to the Legislation Committee (Committee) on December 19 2001 for inquiry.
2 The Bill provides the Western Australia Police Service with new and exceptional powers. It is intended that these powers be used to fight organised criminal activity.
3 The Bill establishes the office of a special commissioner, who is appointed by the Governor. The role of the special commissioner is to decide if the police may exercise the powers and functions provided by the Bill.
4 In its consideration of the Bill, the Committee concentrated on the main concerns raised in submissions. The Committee identified the key issues raised by the Bill as being:
i) accountability for the use of the exceptional powers provided for in the Bill;
ii) adequate safeguards to ensure that the exceptional powers provided for in the Bill are used appropriately and with propriety; and
iii) balancing individual ‘due process’ rights against the public interest in crime control.
5 Time constraints imposed on the inquiry by the Legislative Council have limited consideration of the entire Bill in detail.
6 The Committee has recommended a number of significant amendments to the Bill, which address the key issues.
7 The Committee draws the attention of the House to the recommendations that amend clauses 9 and 44 and insert new clauses 10 and 51. These amendments form a complete and integrated package of amendments to the Bill, designed to address the accountability issues raised by the Bill.

Recommendations

1 Recommendations are grouped as they appear in the text at the page number indicated:

Page 27

Recommendation 1: The Committee recommends that the reference to section 394 of The Criminal Code contained in Schedule 1 of the Criminal Investigation (Exceptional Powers) and Fortification Removal Bill 2001 be deleted, as the section has already been repealed.

Page 27

Recommendation 2: The Committee by a majority (Hons Jon Ford, Ken Travers, and Giz Watson MLCs) recommends that the reference to section 451 of The Criminal Code contained in Schedule 1 of the Criminal Investigation (Exceptional Powers) and Fortification Removal Bill 2001 be deleted, as proposed by the Government.

Page 27

Recommendation 3: The Committee by a majority (Hons Jon Ford, Ken Travers, Peter Foss and Bill Stretch MLCs) recommends that the Government give consideration to including sections 145 and 147 of The Criminal Code relating to assisting escape from custody in Schedule 1 of the Criminal Investigation (Exceptional Powers) and Fortification Removal Bill 2001.

Page 30

Recommendation 4: The Committee by a majority (Hons Giz Watson, Peter Foss and Bill Stretch MLCs) recommends that clause 4(b) of the Criminal Investigation (Exceptional Powers) and Fortification Removal Bill 2001 be deleted.

Page 38

Recommendation 5: The Committee recommends that only retired judges be appointed as special commissioner.

Page 38

Recommendation 6: The Committee recommends that a retired judge from an equivalent court within Australia or any other jurisdiction having a similar basis of law be eligible to be appointed as special commissioner.

Page 38

Recommendation 7: The Committee recommends that the jurisdictions for the purposes of Recommendation 6 be prescribed by regulation.

Page 46

Recommendation 8: The Committee recommends that existing clause 9(3) of the Criminal Investigation (Exceptional Powers) and Fortification Removal Bill 2001 be deleted and replaced with the following (in accordance with the amendment proposed by the Attorney General) -

“(3) The powers of a special commissioner under this Part cannot be exercised unless the Commissioner of Police has satisfied a special commissioner that the grounds described in section 9(1) exist in respect of the section 4 offence concerned.”

Page 46:

Recommendation 9: The Committee recommends that a new Part 3 be inserted into the Criminal Investigation (Exceptional Powers) and Fortification Removal Bill 2001 as follows –

“Part 3 – Basis of use of Powers and Control by Special Commissioner

9. Finding as to grounds for exercising Part 4 or 5 powers

(1) On the application of the Commissioner of Police, a special commissioner may find whether or not the special commissioner is satisfied that:

(a) there are reasonable grounds for suspecting that a section 4 offence has been, or is being, committed;

(b) there are reasonable grounds for suspecting that there might be evidence or other information relevant to the investigation of the offence that can be obtained under Part 4 or 5; and

(c) there are reasonable grounds for believing that the use of powers given by Part 4 or 5 would be in the public interest having regard to –

i) whether or not the suspected offence could be effectively investigated without using the powers;

ii) the extent to which the evidence or other information that it is suspected might be obtained would assist in the investigation, and the likelihood of obtaining it; and

iii) the circumstances in which the information or evidence that it is suspected might be obtained is suspected to have come into the possession of any person from whom it might be obtained.

(2) If the special commissioner is satisfied that the grounds described in subsection (1) exist, the finding is to be reduced to writing and a copy of it is to be given to the Commissioner of Police.

(3) The special commissioner may direct that the powers capable of being exercised by reason of Part 4 or 5 may be exercised only in the circumstances directed by the special commissioner who may impose such conditions as the special commissioner considers fit and the special commissioner may impose or vary those directions or give further directions from time to time.
(4) Without limiting subsection (3) the special commissioner may direct that the powers under Part 5 be limited:

a) to apply to certain persons or classes or persons;

b) to be exercised only by certain persons or classes of persons;

c) to extend to certain powers only;

d) to be exercised in certain places or classes of places;

e) to be exercised with respect to certain articles or classes of articles; or

f) for a period of time.”

Page 53

Recommendation 10: The Committee recommends that clause 16(4) of the Criminal Investigation (Exceptional Powers) and Fortification Removal Bill 2001 be amended to correct a typographical error, in the following manner –

Page 9, line 26 - To insert after “the” - “special”.

Page 60

Recommendation 11: The Committee recommends that the Government give consideration to amending the powers of the special commissioner to include the power to order the protection of a witness, in the same manner as that provided for in the National Crime Authority (State Provisions) Act 1985 (WA).

Page 66

Recommendation 12: The Committee recommends that clause 23(2) of the Criminal Investigation (Exceptional Powers) and Fortification Removal Bill 2001 be amended as follows –

Page 11, line 29 - To insert after “appropriate” – “, in accordance with the State Records Act 2000, ”.

Page 66

Recommendation 13: The Committee recommends that clause 23(3) of the Criminal Investigation (Exceptional Powers) and Fortification Removal Bill 2001 be amended as follows – Page 12, lines 3 to 5 – After “the” to delete the lines and insert instead – “State Records Commission which may order that any record be dealt with as the State Records Commission considers appropriate in accordance with the State Records Act 2000.”

Page 66

Recommendation 14: The Committee recommends that clause 23(4) of the Criminal Investigation (Exceptional Powers) and Fortification Removal Bill 2001 be amended as follows –

Page 12, lines 6 to 9 – To delete the lines and insert instead – “(4) For the purpose of the State Records Act 2000 any records that are transferred to the custody of the Director of State Records as State archives, shall be treated by the Director as restricted access archives unless the Attorney General requests otherwise.”

Page 66

Recommendation 15: The Committee recommends that the Government draft an amendment expressly to prohibit the subpoena of documents and evidence without the permission of the Attorney General. Such a provision should not relieve the Crown of its obligation to disclose all relevant evidence upon a prosecution.

Page 93

Recommendation 16: The Committee recommends that clause 38 of the Criminal Investigation (Exceptional Powers) and Fortification Removal Bill 2001 be amended in the following manner – Page 19, lines 12 to 16 – to delete the lines and insert instead –.

“(1) Legal professional privilege does not prevent a summons under section 11 from requiring a person to produce a document that would otherwise be subject to that privilege.

(2) Unless it is claimed and allowed in accordance with this section legal professional privilege does not provide a reasonable excuse for failure to produce a document as required by a summons under section 11.

(3) A person who wishes to claim that a document is subject to legal professional privilege (which claim is permitted by subsection (4)) shall:
(a) attend and produce that document in accordance with the summons, sealed up and identified as subject to a claim of legal professional privilege; and

(b) at the same time provide to the special commissioner a statement detailing the name and address of the person entitled to waive the privilege with regard to each document.

(4) A claim of legal professional privilege may only be made in relation to the following:
(a) proofs of evidence taken from clients and possible witnesses;
(b) notes of instruction taken from clients or possible witnesses with regard to events that have already occurred;
(c) documents created for the purposes of preparing:
(i) a defence to any existing or possible charges; or

(ii) for an appearance or reasonably anticipated appearance before a special commissioner, arising out of events which have already occurred such as but not limited to:

(iii) notes, letters and opinions which set out legal advice to a client;
(iv) internal memoranda or letters;
(v) a solicitor’s letter to a private investigator; or
(vi) a solicitor’s letter to potential expert witnesses;

(d) correspondence between a solicitor and prosecuting authorities or police written in order to negotiate the possibility of a client giving a statement or testimony; and

(e) correspondence between a solicitor and prosecuting authorities or police written in order to negotiate a plea of guilty.

(5) Legal professional privilege is not to attach to any document by reason of this section unless that privilege would attach by law.
(6) The special commissioner shall determine with respect to each document for which a claim of legal professional privilege has been made whether that claim is valid.

(7) The special commissioner shall return any document, which the special commissioner has determined is subject to a valid claim of legal professional privilege, to the person who produced it without allowing the Commissioner of Police access.

(8) Until such time as a special commissioner has determined that a document is not subject to a valid claim of legal professional privilege a person other than the special commissioner may not unseal the document or have access to it. Penalty: Imprisonment for 3 years and a fine of $60 000.

(9) In this section “document” includes any other thing.

Page 97

Recommendation 17: The Committee recommends that clause 44 of the Criminal Investigation (Exceptional Powers) and Fortification Removal Bill 2001 be amended in the following manner (in accordance with the amendment proposed by the Attorney General) –

Page 22, lines 4 and 5 – To delete “section 9(3) exist.’ and insert instead – “section 9(1) exist in respect of the section 4 offence concerned. ”

Page 108

Recommendation 18: The Committee recommends that a new clause 10 be inserted into proposed new Part 3 of the Criminal Investigation (Exceptional Powers) and Fortification Removal Bill 2001 (refer to Recommendation 9) in the following manner -

To insert the following new clause –

“10. Special commissioner to be informed

A special commissioner who has made a finding or given a direction with regard to powers under Part 4 or 5 is to have the right to be informed as to the manner in which they have been exercised and to call to account any person who exercises or purports to exercise a power pursuant to that finding or direction.”

Page 108

Recommendation 19: The Committee recommends that a new clause 51 be inserted into Part 4 of the Criminal Investigation (Exceptional Powers) and Fortification Removal Bill 2001 in the following manner (in accordance with the amendments proposed by the Attorney General) –

Page 25, after line 24 - To insert the following new clause -

“51. Report on use of Powers under this Part

(1) A police officer who exercises powers under this part is required to submit to the Commissioner of Police a report in writing of each occasion on which any of those powers were exercised, giving details of –

(a) what was done in the exercise of those powers;

(b) the time and place at which the powers were exercised; and

(c) any person or property affected by the exercise of the powers.

(2) The report is to be submitted within 3 days after the powers are exercised.

(3) The obligation of a police officer to submit a report under this section about a particular exercise of power within a particular time is sufficiently complied with if the police officer ensures that a report by another police officer who was present when the powers were exercised is made within that time dealing with all of the details about which a report is required.

Page 117

Recommendation 20: The Committee recommends that the Government draft an amendment to provide that a regulation-making power be inserted into Part 7 of the Criminal Investigation (Exceptional Powers) and Fortification Removal Bill 2001 and that such regulations be made by the Governor on recommendation of the Attorney General.

Page 120

Recommendation 21: The Committee recommends that the Government draft an amendment that provides for parliamentary oversight of the operation of the Criminal Investigation (Exceptional Powers) and Fortification Removal Bill 2001.

Page 120

Recommendation 22: The Committee recommends that Recommendations 8, 9, 17, 18 and 19 be passed together as a package.

Page 120

Recommendation 23: The Committee by a majority (Hons Jon Ford, Ken Travers, Peter Foss and Bill Stretch MLCs) recommends that the Criminal Investigation (Exceptional Powers) and Fortification Removal Bill 2001 be passed subject to Recommendations 1 to 22.