Crime and Corruption Act 2001

An Act to provide for the establishment and operation of a Crime and Corruption Commission, and a Parliamentary Crime and Corruption Committee, and for other purposes

1Short title

This Act may be cited as the Crime and Corruption Act 2001.

s 1 amd 2014 No. 21 s 5

2Commencement

This Act commences on a day to be fixed by proclamation.

3Act binds all persons

(1)This Act binds all persons, including the State, and, so far as the legislative power of the Parliament permits, the Commonwealth and the other States.

(2)Subsection (1) does not make the State, the Commonwealth or another State liable to be prosecuted for an offence.

4Act’s purposes

(1)The main purposes of this Act are—

(a)to combat and reduce the incidence of major crime; and

(b)to continuously improve the integrity of, and to reduce the incidence of corruption in, the public sector.

(2)The Act also has as the purpose to facilitate the commission’s involvement in a confiscation related investigation.

s 4 amd 2002 No. 68 s 284; 2013 No. 21 s 4; 2014 No. 21 s 6; 2016 No. 19 s 3

5How Act’s purposes are to be achieved

(1)The Act’s purposes are to be achieved primarily by establishing a permanent commission to be called the Crime and Corruption Commission.

(2)The commission is to have investigative powers, not ordinarily available to the police service, that will enable the commission to effectively investigate major crime and criminal organisations and their participants.

(3)Also, the commission is to—

(a)investigate cases of corrupt conduct, particularly more serious cases of corrupt conduct; and

(b)help units of public administration to deal effectively and appropriately with corruption by increasing their capacity to do so.

(4)Further, the commission has particular powers for confiscation related investigations for supporting its role under the Confiscation Act.

s 5 amd 2002 No. 68 s 285; 2009 No. 12 s 3; 2013 No. 21 s 5; 2014 No. 21 s 7; 2016 No. 19 s 4

6Purpose of pt 3

The purpose of this part is to briefly outline the responsibilities of relevant entities under this Act.

7Crime and Corruption Commission

The Crime and Corruption Commission has primary responsibility for the achievement of the Act’s purposes.

s 7 amd 2014 No. 21 s 94 (1) sch 1

8Crime Reference Committee

The Crime Reference Committee—

(a)has responsibility for—

(i)referring major crime to the commission for investigation; and

(ii)authorising the commission to undertake specific intelligence operations; and

(b)has a coordinating role for investigations into major crime conducted by the commission in cooperation with any other law enforcement agency.

s 8 sub 2013 No. 64 s 21

9Parliamentary Crime and Corruption Committee

The Parliamentary Crime and Corruption Committee is a standing committee of the Legislative Assembly with particular responsibility for monitoring and reviewing the commission’s performance.

s 9 amd 2014 No. 21 s 94 (1) sch 1

10Parliamentary Crime and Corruption Commissioner

The Parliamentary Crime and Corruption Commissioner is an officer of the Parliament who helps the Parliamentary Crime and Corruption Committee in the performance of its functions.

s 10 amd 2014 No. 21 s 94 (1) sch 1

11Public Interest Monitor

The Public Interest Monitor has a right of appearance before a court hearing an application by the commission for a surveillance warrant or covert search warrant and is entitled to test the appropriateness and validity of the application before the court.

12Definitions

The dictionary in schedule 2 defines particular words used in this Act.

ch 1 pt 4 div 2 hdg sub 2014 No. 21 s 9

13Purpose of div 2

This division provides for the meaning of corrupt conduct for this Act.

Note—

Under section 35(3), the commission, in performing its corruption function under section 33(1)(b), must focus on more serious cases of corrupt conduct and cases of systemic corrupt conduct within a unit of public administration.

s 13 sub 2014 No. 21 ss 8–9

amd 2016 No. 19 s 5; 2018 No. 29 s 4

14Definitions for div 2

In this division—

appointment means appointment in a unit of public administration.

conduct includes—

(a)neglect, failure and inaction; and

(b)conspiracy to engage in conduct; and

(c)attempt to engage in conduct.

s 14 sub 2014 No. 21 s 9

15Meaning of corrupt conduct

(1)Corrupt conduct means conduct of a person, regardless of whether the person holds or held an appointment, that—

(a)adversely affects, or could adversely affect, directly or indirectly, the performance of functions or the exercise of powers of—

(i)a unit of public administration; or

(ii)a person holding an appointment; and

(b)results, or could result, directly or indirectly, in the performance of functions or the exercise of powers mentioned in paragraph (a) in a way that—

(i)is not honest or is not impartial; or

(ii)involves a breach of the trust placed in a person holding an appointment, either knowingly or recklessly; or

(iii)involves a misuse of information or material acquired in or in connection with the performance of functions or the exercise of powers of a person holding an appointment; and

(c)would, if proved, be—

(i)a criminal offence; or

(ii)a disciplinary breach providing reasonable grounds for terminating the person’s services, if the person is or were the holder of an appointment.

(2)Corrupt conduct also means conduct of a person, regardless of whether the person holds or held an appointment, that—

(a)impairs, or could impair, public confidence in public administration; and

(b)involves, or could involve, any of the following—

(i)collusive tendering;

(ii)fraud relating to an application for a licence, permit or other authority under an Act with a purpose or object of any of the following (however described)—

(A) protecting health or safety of persons;

(B)protecting the environment;

(C)protecting or managing the use of the State’s natural, cultural, mining or energy resources;

(iii)dishonestly obtaining, or helping someone to dishonestly obtain, a benefit from the payment or application of public funds or the disposition of State assets;

(iv)evading a State tax, levy or duty or otherwise fraudulently causing a loss of State revenue;

(v)fraudulently obtaining or retaining an appointment; and

(c)would, if proved, be—

(i)a criminal offence; or

(ii)a disciplinary breach providing reasonable grounds for terminating the person’s services, if the person is or were the holder of an appointment.

s 15 amd 2002 No. 68 s 283 sch 3

sub 2014 No. 21 s 9

amd 2018 No. 29 s 5

16Conduct happening over time, or at any time, may be corrupt conduct

(1)Conduct may be corrupt conduct even though—

(a)it happened before the relevant commencement; or

(b)some or all of the effects or elements necessary to constitute corrupt conduct happened before the relevant commencement; or

(c)a person involved in the conduct is no longer the holder of an appointment.

(2)Conduct engaged in by, or in relation to, a person at a time when the person is not the holder of an appointment may be corrupt conduct, if the person becomes the holder of an appointment.

(3)In this section—

relevant commencement means—

(a)generally—the commencement of this Act; and

(b)for corrupt conduct under section 15(2)—the commencement of that subsection.

s 16 amd 2014 No. 21 s 94 (1) sch 1; 2018 No. 29 s 6

17Conduct outside Queensland may be corrupt conduct

Conduct may be corrupt conduct regardless of—

(a)where the conduct happens; or

(b)whether the law relevant to the conduct is a law of Queensland or of another jurisdiction.

s 17 amd 2014 No. 21 s 94 (1) sch 1

18Conspiracy or attempt to engage in conduct may be corrupt conduct

A conspiracy or an attempt to engage in conduct is not excluded from being corrupt conduct if, had the conspiracy or attempt been brought to fruition by the taking of a further step, the further step could constitute or involve—

(a)an offence; or

(b)grounds for terminating a person’s services in a unit of public administration, if the person is or were the holder of an appointment in the unit.

s 18 amd 2014 No. 21 s 94 (1) sch 1

19Corrupt conduct not affected by time limitations

Conduct does not stop being corrupt conduct only because a proceeding or an action for an offence to which the conduct is relevant can no longer be brought or continued or that action for termination of services because of the conduct can no longer be taken.

s 19 amd 2014 No. 21 s 94 (1) sch 1

20Meaning of unit of public administration

(1)Each of the following is a unit of public administration—

(a)the Legislative Assembly, and the parliamentary service;

(b)the Executive Council;

(c)a department;

(d)the police service;

(da)a local government;

(e)a corporate entity established by an Act or that is of a description of a corporate entity provided for by an Act which, in either case, collects revenues or raises funds under the authority of an Act;

(f)a noncorporate entity, established or maintained under an Act, that—

(i)is funded to any extent with State moneys; or

(ii)is financially assisted by the State;

(g)a State court, of whatever jurisdiction, and its registry and other administrative offices;

(h)another entity prescribed under a regulation.

(2)However, none of the following is a unit of public administration—

(a)the commission;

(b)the parliamentary commissioner;

(c)the entity consisting of—

(i)the parliamentary commissioner; and

(ii)officers and employees of the parliamentary service assigned to the parliamentary commissioner; and

(iii)persons engaged to provide the parliamentary commissioner with services, information or advice;

(d)an entity declared by an Act not to be a unit of public administration.

s 20 amd 2008 No. 51 s 52

21Holding appointment in unit of public administration

A person holds an appointment in a unit of public administration if the person holds any office, place or position in the unit, whether the appointment is by way of election or selection.

ch 1 pt 4 div 4 hdg amd 2014 No. 21 s 94 (1) sch 1

22References to major crime or corruption include suspected major crime or suspected corruption

(1)A reference to major crime includes, in the context of a crime investigation, suspected major crime.

(2)A reference to corruption includes, in the context of a complaint or a corruption investigation, suspected corruption.

s 22 amd 2014 No. 21 s 94 (1) sch 1

ch 1 pt 4 div 5 hdg ins 2004 No. 8 s 4

22AMeaning of terrorist act

(1)An action is a terrorist act if—

(a)it does any of the following—

(i)causes serious harm that is physical harm to a person;

(ii)causes serious damage to property;

(iii)causes a person’s death;

(iv)endangers the life of someone other than the person taking the action;

(v)creates a serious risk to the health or safety of the public or a section of the public;

(vi)seriously interferes with, seriously disrupts, or destroys an electronic system; and

(b)it is done with the intention of advancing a political, religious or ideological cause; and

(c)it is done with the intention of—

(i)coercing, or influencing by intimidation, the government of the Commonwealth, a State or a foreign country, or of part of a State or a foreign country; or

(ii)intimidating the public or a section of the public.

(2)A threat of action is a terrorist act if—

(a)the threatened action is likely to do anything mentioned in subsection (1)(a)(i) to (vi); and

(b)the threat is made with the intentions mentioned in subsection (1)(b) and (c).

(3)However, an action or threat of action is not a terrorist act if the action or threatened action—

(a)is advocacy, protest, dissent or industrial action; and

(b)is not intended—

(i)to cause serious harm that is physical harm to a person; or

(ii)to cause a person’s death; or

(iii)to endanger the life of a person, other than the person taking the action; or

(iv)to create a serious risk to the health or safety of the public or a section of the public.

(4)A reference in this section to a person or property is a reference to a person or property wherever situated, within or outside the State (including within or outside Australia).

(5)In this section—

electronic system includes any of the following electronic systems—

(a)an information system;

(b)a telecommunications system;

(c)a financial system;

(d)a system used for the delivery of essential government services;

(e)a system used for, or by, an essential public utility;

(f)a system used for, or by, a transport system.

physical harm includes unconsciousness, pain, disfigurement, infection with a disease and physical contact with a person that the person might reasonably object to in the circumstances (whether or not the person was aware of it at the time).

public includes the public of another State or of a country other than Australia.

serious harm means harm, including the cumulative effect of any harm, that—

(a)endangers, or is likely to endanger, a person’s life; or

(b)is, or is likely to be, significant and longstanding.

threat includes a threat made by conduct, whether express or implied and whether conditional or unconditional.

s 22A ins 2004 No. 8 s 4

23Commission’s prevention function

The commission has a function (its prevention function) of helping to prevent major crime and corruption.

s 23 amd 2014 No. 21 s 10; 2016 No. 19 s 6

24How commission performs its prevention function

Without limiting the ways the commission may perform its prevention function, the commission performs the function by—

(a)analysing the intelligence it gathers in support of its investigations into major crime and corruption; and

(b)analysing the results of its investigations and the information it gathers in performing its functions; and

(c)analysing systems used within units of public administration to prevent corruption; and

(d)using information it gathers from any source in support of its prevention function; and

(e)providing information to, consulting with, and making recommendations to, units of public administration; and

(f)providing information relevant to its prevention function to the general community; and

(g)ensuring that in performing all of its functions it has regard to its prevention function; and

(h)generally increasing the capacity of units of public administration to prevent corruption by providing advice and training to the units and, if asked, to other entities; and

(i)reporting on ways to prevent major crime and corruption.

s 24 amd 2014 No. 21 s 11; 2016 No. 19 s 7

ch 2 pt 2 hdg sub 2013 No. 45 s 6

ch 2 pt 2 div 1 hdg sub 2013 No. 45 s 7

25Commission’s crime function

The commission has a function (its crime function)—

(a)to investigate major crime referred to it, under division 2, by the reference committee; and

(b)to investigate, under an authorisation under section 55D, incidents that threaten, have threatened or may threaten public safety that criminal organisations or participants in criminal organisations have engaged in, are engaging in, or are planning to engage in.

s 25 amd 2009 No. 12 s 4

sub 2013 No. 45 s 8

amd 2016 No. 62 s 32

26How commission performs its crime function

Without limiting the ways the commission may perform its crime function, the commission performs its crime function by—

(a)investigating major crime referred to it, under division 2, by the reference committee; and

(b)when conducting investigations under paragraph (a), gathering evidence for—

(i)the prosecution of persons for offences; and

(ii)the recovery of the proceeds of major crime; and

(iii)the recovery of other property liable to forfeiture, or a person’s unexplained wealth, under the Confiscation Act; and

(c)liaising with, providing information to, and receiving information from, other law enforcement agencies and prosecuting authorities, including agencies and authorities outside the State or Australia, about major crime.

s 26 amd 2009 No. 12 s 5; 2013 No. 21 s 6

26ADefinitions for div 2

In this division—

general referral see section 27(4).

referral means—

(a)a specific referral; or

(b)a general referral.

specific referral see section 27(2).

s 26A ins 2009 No. 12 s 6

27Referrals to commission

(1)The reference committee may refer—

(a)a particular incident of major crime to the commission for investigation; or

(b)major crime to the commission for investigation.

Examples of major crime that may be referred under paragraph (b)—

•terrorism

•criminal paedophilia facilitated by the use of the internet by offenders to groom children or distribute obscene material depicting children

•organised crime engaged in by a class of person or involving offences of a particular type, for example, money laundering

•criminal activity involving drug trafficking and violence engaged in by members of (generally identified) motorcycle gangs and their associates

(2)A reference under subsection (1)(a) is called a specific referral.

(3)A specific referral must identify—

(a)the particular incident of major crime to be investigated by the commission; and

(b)at least 1 of the following—

(i)the persons involved, or suspected of being involved, in the particular incident of major crime;

(ii)the activity constituting, or suspected of constituting, the particular incident of major crime.

(4)A reference under subsection (1)(b) is called a general referral.

(5)A general referral—

(a)must identify the major crime to be investigated by the commission; and

(b)may identify either or both of the following—

(i)the persons involved, or suspected of being involved, in the major crime;

(ii)the activities constituting, or suspected of constituting, the major crime.

(6)A referral may relate to any circumstances implying, or any allegations, that a particular incident of major crime, or major crime, may have been committed, may be being committed, or may in the future be committed.

(7)A referral may be made by the reference committee—

(a)for a specific referral—

(i)on its own initiative; or

(ii)if asked by the senior executive officer (crime); or

(iii)if asked by the commissioner of police; or

(b)for a general referral—

(i)on its own initiative; or

(ii)if asked by the senior executive officer (crime).

(8)A referral must be in writing.

s 27 sub 2009 No. 12 s 6

amd 2014 No. 21 s 94 (1) sch 1

28Matters about which the reference committee must be satisfied before making a referral

(1)The reference committee may make a specific referral only if it is satisfied—

(a)the police service has carried out an investigation into the particular incident of major crime that has not been effective; and

(b)further investigation into the particular incident of major crime is unlikely to be effective using powers ordinarily available to police officers; and

(c)it is in the public interest to refer the particular incident of major crime to the commission for investigation.

(2)The reference committee may make a general referral only if it is satisfied it is in the public interest to refer the major crime to the commission for investigation.

(3)Without limiting the matters to which the reference committee may have regard in deciding whether it is in the public interest to refer a particular incident of major crime, or major crime, to the commission for investigation, the reference committee may have regard to the following—

(a)the number of persons that may be involved;

(b)the degree of planning and organisation likely to be involved;

(c)the seriousness of, or the consequences of, the particular incident of major crime or the major crime;

(d)the person or persons likely to be responsible for planning and organising the particular incident of major crime or the major crime;

(e)the likely involvement of the person or persons in similar activities;

(f)the financial or other benefits likely to be derived by any person;

(g)whether investigation by the commission is a justifiable use of resources.

(4)Also, without limiting the matters to which the reference committee may have regard in deciding whether it is in the public interest to refer major crime to the commission for investigation (that is, a general referral), the reference committee may have regard to the likely effectiveness of investigation into the major crime using powers ordinarily available to the police service.

s 28 sub 2009 No. 12 s 6

29Reference committee may give commission directions about investigations

(1)The reference committee may give the commission directions imposing limitations on a crime investigation, including limitations on the exercise of the commission’s powers for the investigation.

(2)The reference committee may also direct the commission to end a particular crime investigation if the committee considers—

(a)it may be more appropriate for another entity to undertake the investigation; or

(b)it may be more effective for another entity to undertake the investigation; or

(c)investigation by the commission is not a justifiable use of resources; or

(d)investigation by the commission is not in the public interest.

(3)The commission must comply with a direction given under subsection (1) or (2).

(4)To remove any doubt, it is declared that section 29(2)(d) is not limited by section 28(3) or (4).

s 29 amd 2009 No. 12 s 7

29AReference committee must consider whether to give commission directions in relation to particular crime investigation under general referral

(1)This section applies if the senior executive officer (crime) notifies the reference committee under section 277 that the commission has commenced a particular crime investigation under a general referral.

(2)The reference committee must, as soon as practicable after the reference committee is notified, consider whether to give the commission a direction under section 29(1) or (2) in relation to the particular crime investigation.

s 29A ins 2009 No. 12 s 8

amd 2014 No. 21 s 94 (1) sch 1

30Amendment of referral to investigate

The reference committee may amend the terms of a referral to the commission on its own initiative or if asked by the senior executive officer (crime).

s 30 amd 2009 No. 12 s 9; 2014 No. 21 s 94 (1) sch 1

30AReview and lapse of general referrals

(1)The reference committee must review each general referral within 5 years of it being made or last confirmed under subsection (5).

(2)In conducting the review, the reference committee must give fresh consideration to the matters mentioned in section 28(2) to (4) as if a reference in the subsections to a referral were a reference to a confirmation under subsection (5).

(3)The senior executive officer (crime) may make submissions to the reference committee about its decision on the review if the general referral was initially requested by the senior executive officer (crime).

(4)The reference committee may ask the senior executive officer (crime) to help the committee to conduct the review, and, if asked, the senior executive officer (crime) must give the committee the help it needs to conduct the review.

(5)In deciding the review, the reference committee may—

(a)confirm the referral with or without amendment; or

(b)replace the referral with a referral to the commissioner of police under section 31; or

(c)end the referral.

(6)If the reference committee does not act under subsection (5) before the end of the 5 year period mentioned in subsection (1), the referral lapses.

s 30A ins 2009 No. 12 s 10

amd 2014 No. 21 s 94 (1) sch 1

31Referrals to police service

(1)The reference committee may refer a particular incident of major crime, or major crime, to the commissioner of police for investigation if it is satisfied that the matter is not appropriate for investigation or continued investigation by the commission.

(2)The referral must be written.

(3)The commissioner of police must, if asked by the reference committee, report to the committee on the referral.

(4)The commissioner of police must consider any comments about the referral made by the reference committee.

s 31 amd 2002 No. 68 s 283 sch 3; 2009 No. 12 s 11

32Police task forces and other operational agreements

(1)The chairperson may make arrangements with the commissioner of police for the establishment of a police task force to help the commission to carry out a crime investigation.

(2)A police task force is under the control and direction of the commissioner of police.

(3)The commission may enter into operational agreements with other entities, including an entity mentioned in section 275(d).

s 32 amd 2013 No. 45 s 9; 2014 No. 21 s 94 (1) sch 1; 2015 No. 19 s 45 (1)

ch 2 pt 3 hdg amd 2014 No. 21 s 94 (1) sch 1

ch 2 pt 3 div 1 hdg sub 2014 No. 21 s 94 (1) sch 1

amd 2016 No. 19 s 8

33Commission’s corruption functions

(1)The commission has the following functions for corruption (the corruption functions)—

(a)to raise standards of integrity and conduct in units of public administration;

(b)to ensure a complaint about, or information or matter involving, corruption is dealt with in an appropriate way, having regard to the principles set out in section 34.

(2)The commission’s corruption functions also include—

(a)investigating and otherwise dealing with—

(i)conduct liable to allow, encourage or cause corrupt conduct; and

(ii)conduct connected with corrupt conduct; and

(b)investigating whether corrupt conduct or conduct mentioned in paragraph (a)(i) or (ii) may have happened, may be happening or may happen.

s 33 sub 2014 No. 21 s 12; 2016 No. 19 s 9

amd 2018 No. 29 s 7

34Principles for performing corruption functions

It is the Parliament’s intention that the commission apply the following principles when performing its corruption functions—

(a)Cooperation

•to the greatest extent practicable, the commission and units of public administration should work cooperatively to prevent corruption

•the commission and units of public administration should work cooperatively to deal with corruption

(b)Capacity building

•the commission has a lead role in building the capacity of units of public administration to prevent and deal with cases of corruption effectively and appropriately

(c)Devolution

•subject to the cooperation and public interest principles and the capacity of the unit of public administration, action to prevent and deal with corruption in a unit of public administration should generally happen within the unit

(d)Public interest

•the commission has an overriding responsibility to promote public confidence—

•in the integrity of units of public administration and

•if corruption does happen within a unit of public administration, in the way it is dealt with

•the commission should exercise its power to deal with particular cases of corruption when it is appropriate having primary regard to the following—

•the capacity of, and the resources available to, a unit of public administration to effectively deal with the corruption

•the nature and seriousness of the corruption, particularly if there is reason to believe that corruption is prevalent or systemic within a unit of public administration

•any likely increase in public confidence in having the corruption dealt with by the commission directly.

s 34 amd 2014 No. 21 s 13

sub 2016 No. 19 s 9

35How commission performs its corruption functions

(1)Without limiting how the commission may perform its corruption functions, it performs its corruption functions by doing 1 or more of the following—

(a)expeditiously assessing complaints about, or information or matters (also complaints) involving, corruption made or notified to it;

(b)referring complaints about corruption within a unit of public administration to a relevant public official to be dealt with by the public official;

(c)performing its monitoring role for police misconduct as provided for under section 47(1);

(d)performing its monitoring role for corrupt conduct as provided for under section 48(1);

(e)dealing with complaints about corrupt conduct, by itself or in cooperation with a unit of public administration;

(f)investigating and otherwise dealing with, on its own initiative—

(i)the incidence, or particular cases, of corruption throughout the State; or

(ii)the matters mentioned in section 33(2);

(g)assuming responsibility for, and completing, an investigation, by itself or in cooperation with a unit of public administration, if the commission considers that action to be appropriate having regard to the principles set out in section 34;

(h)when conducting or monitoring investigations, gathering evidence for or ensuring evidence is gathered for—

(i)the prosecution of persons for offences; or

(ii)disciplinary proceedings against persons;

(i)assessing the appropriateness of systems and procedures adopted by a unit of public administration for dealing with complaints about corruption;

(j)providing advice and recommendations to a unit of public administration about dealing with complaints about corruption in an appropriate way.

(2)In performing its corruption functions in a way mentioned in subsection (1), the commission should, whenever possible, liaise with a relevant public official.

(3)In performing its corruption function under section 33(1)(b), the commission must focus on more serious cases of corrupt conduct and cases of systemic corrupt conduct within a unit of public administration.

s 35 amd 2014 No. 21 s 14; 2016 No. 19 s 10; 2018 No. 29 s 8

35AChief executive officer may issue direction about commission’s corruption function about complaints

(1)The chief executive officer may issue a direction about how commission officers are to decide whether a complaint involves, or may involve, a more serious case of corrupt conduct or a case of systemic corrupt conduct within a unit of public administration.

(2)In issuing a direction under subsection (1), the chief executive officer is subject to the direction and control of the chairperson.

(3)A commission officer must comply with a direction issued under subsection (1).

s 35A ins 2014 No. 21 s 15

amd 2016 No. 19 ss 11, 45 (1)

35BPublication of information about how commission performs its corruption function about complaints

(1)The chief executive officer must publish, on a publicly accessible website of the commission, information about the commission’s systems and procedures for dealing with complaints about corruption.

(2)The information published on the website must include the following—

(a)the standard timeframes adopted by the commission for assessing, investigating and completing its dealing with complaints about corruption;

(b)the standard procedures adopted by the commission for assessing and investigating complaints about corruption;

(c)how the commission monitors the progress of complaints about corruption being dealt with by the commission to ensure they are being dealt with in a timely way;

(d)what action the commission takes if the standard timeframes are not met for a complaint about corruption being dealt with by the commission to ensure the complaint is dealt with in a timely way.

s 35B ins 2014 No. 21 s 15

amd 2016 No. 19 s 12

36Complaining about corruption

(1)A person may make a complaint about corruption to the commission for the purpose of the commission dealing with the complaint under section 35.

(2)Subsection (1) does not limit to whom a person can complain about corruption.

Examples—

1A person may complain directly to the commissioner of police about corruption.

2A person may complain directly to the chief executive of a government department about corruption happening within the department.

(3)A person may also give information or matter involving corruption to the commission.

Examples of information or matter involving corruption that may be given to the commission—

•information given to the commission through a commission activity, including, for example—

•evidence given by a witness at a commission hearing

•information obtained through telephone interception or a covert operation

•evidence gathered through a corruption investigation

•a routine departmental audit report

•an intelligence report from a law enforcement agency

•a Crime Stoppers report

•information about a significant police event such as a death in police custody or police shooting

•information or matter referred to the commission by a coroner, a court, a commission of inquiry or another investigative body or public inquiry

s 36 amd 2014 No. 21 s 16; 2016 No. 19 s 13

37Duty to notify commission of police misconduct

(1)This section applies if the commissioner of police reasonably suspects that a complaint, or information or matter (also a complaint), involves police misconduct.

(2)The commissioner of police must notify the commission of the complaint, subject to section 40.

38Duty to notify commission of corrupt conduct

(1)This section applies if a public official reasonably suspects that a complaint, or information or matter (also a complaint), involves, or may involve, corrupt conduct.

(2)The public official must notify the commission of the complaint, subject to section 40.

s 38 amd 2014 No. 21 s 17

39Duty to notify is paramount

(1)The duty of a public official to notify the commission of a complaint under section 37 or 38 must be complied with despite—

(a)the provisions of any other Act, other than the Police Service Administration Act 1990, section 6A.1(3); or

(b)any obligation the person has to maintain confidentiality about a matter to which the complaint relates.

(2)Subsection (1) does not affect an obligation under another Act to notify corruption.

s 39 amd 2014 No. 21 s 94 (1) sch 1; 2019 No. 32 s 32 sch 1

40Commission may issue directions about notifications

(1)The commission may issue directions about the following—

(a)the kinds of complaints a public official must notify, or need not notify, the commission of under section 37 or 38;

(b)how and when a public official must notify the commission of complaints under section 37 or 38.

(2)Before issuing a direction, the commission must consult with, and consider the views of—

(a)the relevant public official; and

(b)if the direction relates to the chief executive officer of a department or a public service office within the meaning of the Public Service Act 2008—the public service commission.

(3)In particular, if a direction would require the commissioner of police to disclose information otherwise protected by the Police Powers and Responsibilities Act 2000, section 266 or the Drugs Misuse Act 1986, section 119, the commission may issue the direction, but before doing so must have regard to the desirability of protecting confidentiality.

(4)A public official must comply with a direction given under subsection (1).

(5)The commission may use or disclose information mentioned in subsection (3) in the administration of this Act, but must maintain the confidentiality of the information to the greatest practicable extent.

s 40 amd 2002 No. 35 s 13 sch; 2005 No. 45 s 68; 2000 No. 5 s 810 sch 4 (amd 2006 No. 26 ss 84, 86); 2014 No. 21 s 18

40ARecord of alleged corrupt conduct not notified

(1)This section applies if a public official decides that a complaint, or information or matter, about alleged corrupt conduct is not required to be notified to the commission under section 38.

(2)The public official must make a record of the decision.

(3)The record must include—

(a)the details of the complaint or information or matter; and

(b)the evidence on which the public official relied in making the decision; and

(c)any other reasons for the decision.

(4)The commission may ask a public official to give the commission access to a record made under this section in a stated way and by a stated time.

(5)A public official must comply with a request made of the official under subsection (4).

s 40A ins 2018 No. 29 s 9

ch 2 pt 3 div 4 hdg amd 2018 No. 29 s 10

41Responsibility of commissioner of police

(1)The commissioner of police has primary responsibility for dealing with complaints about, or information or matter the commissioner of police reasonably suspects involves, police misconduct.

(2)The commissioner of police also has a responsibility to deal with a complaint about, or information or matter involving, corrupt conduct that is referred to the commissioner of police by the commission.

s 41 amd 2014 No. 21 s 94 (1) sch 1

42Dealing with complaints—commissioner of police

(1)The commissioner of police must expeditiously assess complaints, or information or matter (also a complaint) made or notified to, or otherwise coming to the attention of, the commissioner of police.

(2)The commissioner of police must deal with a complaint about police misconduct in the way the commissioner of police considers most appropriate, subject to the commission’s monitoring role.

(3)If the commissioner of police is satisfied that—

(a)a complaint—

(i)is frivolous or vexatious; or

(ii)lacks substance or credibility; or

(b)dealing with the complaint would be an unjustifiable use of resources;

the commissioner of police may take no action or discontinue action taken to deal with the complaint.

(4)The commissioner of police may, in an appropriate case, ask the commission to deal with a complaint about police misconduct or to deal with the complaint in cooperation with the commissioner of police.

(5)If the commission refers a complaint about corrupt conduct to the commissioner of police to be dealt with, the commissioner of police must deal with the complaint in the way the commissioner of police considers most appropriate, subject to the commission’s monitoring role.

(6)Without limiting how the commissioner of police may deal with a complaint about corrupt conduct, the commissioner of police may ask the commission to deal with the complaint in cooperation with the commissioner of police.

(7)If a person makes a complaint that is dealt with by the commissioner of police, the commissioner of police must give the person a response stating—

(a)if no action is taken on the complaint by the commissioner of police or action to deal with the complaint is discontinued by the commissioner of police—the reason for not taking action or discontinuing the action; or

(b)if action is taken on the complaint by the commissioner of police—

(i)the action taken; and

(ii)the reason the commissioner of police considers the action to be appropriate in the circumstances; and

(iii)any results of the action that are known at the time of the response.

(8)However, the commissioner of police is not required to give a response to the person—

(a)if the person has not given his or her name and address or does not require a response; or

(b)if the response would disclose information the disclosure of which would be contrary to the public interest.

s 42 amd 2014 No. 21 s 94 (1) sch 1

43Responsibility of public officials, other than the commissioner of police

A public official, other than the commissioner of police, has a responsibility to deal with a complaint about, or information or matter involving, corrupt conduct that is referred to it by the commission.

s 43 amd 2014 No. 21 s 94 (1) sch 1

44Dealing with complaints—public officials other than the commissioner of police

(1)This section does not apply to the police service.

(2)A public official must deal with a complaint about, or information or matter (also a complaint) involving, corrupt conduct in the way the public official considers most appropriate, subject to the commission’s monitoring role.

(3)If the public official is satisfied that—

(a)a complaint—

(i)is frivolous or vexatious; or

(ii)lacks substance or credibility; or

(b)dealing with the complaint would be an unjustifiable use of resources;

the public official may take no action or discontinue action taken to deal with the complaint.

(4)A public official may, in an appropriate case, ask the commission to deal with a complaint in cooperation with the public official.

(5)If a person makes a complaint that is dealt with by the public official, the public official must give the person a response stating—

(a)if no action is taken on the complaint by the public official or action to deal with the complaint is discontinued by the public official—the reason for not taking action or discontinuing the action; or

(b)if action is taken on the complaint by the public official—

(i)the action taken; and

(ii)the reason the public official considers the action to be appropriate in the circumstances; and

(iii)any results of the action that are known at the time of the response.

(6)However, the public official is not required to give a response to the person—

(a)if the person has not given his or her name and address or does not require a response; or

(b)if the response would disclose information the disclosure of which would be contrary to the public interest.

s 44 amd 2002 No. 68 s 283 sch 3; 2014 No. 21 s 94 (1) sch 1

45Responsibility of commission

(1)The commission has primary responsibility for dealing with complaints about, or information or matter involving, corrupt conduct.

(2)The commission is responsible for monitoring how the commissioner of police deals with police misconduct.

s 45 amd 2014 No. 21 s 94 (1) sch 1

46Dealing with complaints—commission

(1)The commission deals with a complaint about, or information or matter (also a complaint) involving, corruption by—

(a)expeditiously assessing each complaint about corruption made or notified to it, or otherwise coming to its attention; and

(b)taking the action the commission considers most appropriate in the circumstances having regard to the principles set out in section 34.

(2)The commission may take the following action—

(a)deal with each complaint about corrupt conduct that it considers should not be referred to a public official to be dealt with;

(b)refer a complaint about corrupt conduct to a public official to be dealt with by the public official or in cooperation with the commission, subject to the commission’s monitoring role;

(c)without limiting paragraph (b), refer a complaint about corrupt conduct of a person holding an appointment in a unit of public administration that may involve criminal activity to the commissioner of police to be dealt with;

(d)if it is a complaint about police misconduct notified to the commission by the commissioner of police—allow the commissioner of police to continue to deal with the complaint, subject to the commission’s monitoring role;

(e)if it is a complaint about police misconduct made to the commission by someone other than the commissioner of police—give the complaint to the commissioner of police to be dealt with, subject to the commission’s monitoring role;

(f)if a public official asks the commission to deal with a complaint or to deal with a complaint in cooperation with the public official—

(i)deal with the complaint; or

(ii)deal with the complaint in cooperation with the public official; or

(iii)advise the public official that the commission considers that it is appropriate that the public official continue to deal with the complaint, subject to the commission’s monitoring role;

(g)if the commission is satisfied that—

(i)the complaint—

(A)is frivolous or vexatious; or

(B)lacks substance or credibility; or

(C)is not made in good faith; or

(D)is made primarily for a mischievous purpose; or

(E)is made recklessly or maliciously; or

(ii)dealing with the complaint—

(A)would not be in the public interest; or

(B)would be an unjustifiable use of resources; or

(iii)the subject matter of the complaint—

(A)is not within the commission’s functions; or

(B)has been dealt with by another entity;

take no action or discontinue action.

(3)For taking action, or action taken, under subsection (2) for a complaint, the commission may require a public official to provide stated information about the complaint in the way and at the times the commission directs.

(4)A public official must comply with a requirement made under subsection (3).

(5)If a person makes a complaint that is dealt with by the commission, the commission must give the person a response stating—

(a)if no action is taken by the commission on the complaint or action to deal with the complaint is discontinued by the commission—the reason for not taking action or discontinuing the action; or

(b)if action is taken on the complaint by the commission—

(i)the action taken; and

(ii)the reason the commission considers the action to be appropriate in the circumstances; and

(iii)any results of the action that are known at the time of the response.

(6)However, the commission is not required to give a response—

(a)to the person if—

(i)the person has not given his or her name and address or does not require a response; or

(ii)the commission has given a notice, or is entitled to give a notice, under section 216 to the person in relation to the complaint; or

(b)that discloses information the disclosure of which would be contrary to the public interest.

(7)Nothing in this part limits the commission from providing information about the conduct of a person to a public official for use in the proper performance of the public official’s functions.

s 46 amd 2002 No. 68 s 283 sch 3; 2014 No. 21 s 19

46ADealing with matters mentioned in s 33(2)

(1)This section applies to a matter mentioned in section 33(2).

(2)The commission deals with the matter by—

(a)assessing the matter; and

(b)if the commission considers it appropriate, investigating the matter; and

(c)taking the action the commission considers most appropriate in the circumstances having regard to the public interest principle set out in section 34(d).

(3)For dealing with the matter, the commission may require a public official to provide stated information about the matter in the way and at the times the commission directs.

(4)A public official must comply with a requirement made under subsection (3).

s 46A ins 2018 No. 29 s 11

47Commission’s monitoring role for police misconduct

(1)The commission may, having regard to the principles stated in section 34—

(a)issue advisory guidelines for the conduct of investigations by the commissioner of police into police misconduct; or

(b)review or audit the way the commissioner of police has dealt with police misconduct, in relation to either a particular complaint or a class of complaint; or

(c)assume responsibility for and complete an investigation by the commissioner of police into police misconduct.

(2)The commissioner of police must give the commission reasonable help to undertake a review or audit or to assume responsibility for an investigation.

(3)If the commission assumes responsibility for an investigation, the commissioner of police must stop his or her investigation or any other action that may impede the investigation if directed to do so by the commission.

(4)In this section—

complaint, about police misconduct, includes information or matter involving police misconduct.

48Commission’s monitoring role for corrupt conduct

(1)The commission may, having regard to the principles stated in section 34—

(a)issue advisory guidelines for the conduct of investigations by public officials into corrupt conduct; or

(b)review or audit the way a public official has dealt with corrupt conduct, in relation to either a particular complaint or a class of complaint; or

(c)require a public official—

(i)to report to the commission about an investigation into corrupt conduct in the way and at the times the commission directs; or

(ii)to undertake the further investigation into the corrupt conduct that the commission directs; or

(d)assume responsibility for and complete an investigation by a public official into corrupt conduct.

(2)The public official must—

(a)give the commission reasonable help to undertake a review or audit or to assume responsibility for an investigation; and

(b)comply with a requirement made under subsection (1)(c).

(3)If the commission assumes responsibility for an investigation, the public official must stop his or her investigation or any other action that may impede the investigation if directed to do so by the commission.

(4)In this section—

complaint, about corrupt conduct, includes information or matter involving corrupt conduct.

s 48 amd 2014 No. 21 s 94 (1) sch 1

ch 2 pt 3 div 4 sdiv 4 hdg ins 2014 No. 21 s 20

48APolicy about how complaints involving public official are to be dealt with

(1)A public official must, in consultation with the chairperson, prepare a policy about how the unit of public administration for which the official is responsible will deal with a complaint that involves or may involve corruption of the public official.

(2)The policy may nominate a person other than the public official to notify the commission of the complaint under section 37 or 38, and to deal with the complaint under subdivision 1 or 2, on behalf of the public official.

(3)If the policy includes a nomination as mentioned in subsection (2), this Act applies as if a reference about notifying or dealing with the complaint to the public official were a reference to the nominated person.

Example of operation of subsection (3)—

If a policy prepared under this section for a unit of public administration includes a nomination as mentioned in subsection (2)—

(a)under section 38 as applying under subsection (3), the nominated person must notify the commission of complaints about the relevant public official that the person suspects involve or may involve corrupt conduct; and

(b)under section 35(1)(b) as applying under subsection (3), the commission may refer complaints about the relevant public official to the nominated person for the nominated person to deal with; and

(c)under section 42 or 44 as applying under subsection (3), the nominated person must deal with complaints about the relevant public official referred to the nominated person by the commission.

(4)In this section—

complaint includes information or matter.

s 48A ins 2014 No. 21 s 20

amd 2016 No. 19 s 45 (1)

49Reports about complaints dealt with by the commission

(1)This section applies if the commission investigates (either by itself or in cooperation with a public official), or assumes responsibility for the investigation of, a complaint about, or information or matter involving, corruption and decides that prosecution proceedings or disciplinary action should be considered.

(2)The commission may report on the investigation to any of the following as appropriate—

(a)a prosecuting authority, for the purposes of any prosecution proceedings the authority considers warranted;

(b)the Chief Justice, if the report relates to conduct of a judge of, or other person holding judicial office in, the Supreme Court;

(c)the Chief Judge of the District Court, if the report relates to conduct of a District Court judge;

(d)the President of the Childrens Court, if the report relates to conduct of a person holding judicial office in the Childrens Court;

(e)the Chief Magistrate, if the report relates to conduct of a magistrate;

(f)the chief executive officer of a relevant unit of public administration, for the purpose of taking disciplinary action, if the report does not relate to the conduct of a judge, magistrate or other holder of judicial office.

(3)If the commission decides that prosecution proceedings for an offence under the Criminal Code, section 57 should be considered, the commission must report on the investigation to the Attorney-General.

(4)A report made under subsection (2) or (3) must contain, or be accompanied by, all relevant information known to the commission that—

(a)supports a charge that may be brought against any person as a result of the report; or

(b)supports a defence that may be available to any person liable to be charged as a result of the report; or

(c)supports the start of a proceeding under section 219F, 219FA or 219G against any person as a result of the report; or

(d)supports a defence that may be available to any person subject to a proceeding under section 219F, 219FA or 219G as a result of the report.

(5)In this section—

prosecuting authority does not include the director of public prosecutions.

s 49 amd 2002 No. 68 s 283 sch 3; 2009 No. 24 s 1398; 2012 No. 18 s 7; 2014 No. 21 s 94 (1) sch 1; 2018 No. 29 s 12; 2019 No. 32 s 32 sch 1

50Commission may prosecute corrupt conduct

(1)This section applies if the commission reports to the chief executive officer of a unit of public administration under section 49 that—

(a)a complaint, matter or information involves, or may involve, corrupt conduct by a prescribed person in the unit; and

(b)there is evidence supporting the start of a disciplinary proceeding for corrupt conduct against the prescribed person.

(2)The commission may apply, as provided under the QCAT Act, to QCAT for an order under section 219I against the prescribed person.

(3)In this section—

prescribed person means—

(a)a person—

(i)who is a member of the police service; or

(ii)being a member of the police service, whose employment as a member of the police service ends after the corrupt conduct happens, regardless of whether the employment ends before or after the start of a disciplinary proceeding for the corrupt conduct; or

(b)a person (other than a judge or holder of judicial office, or a member of the police service)—

(i)who holds an appointment in a unit of public administration; or

(ii)who held an appointment in a unit of public administration that ended after the corrupt conduct happened, regardless of whether the appointment ended before or after the start of a disciplinary proceeding for the conduct.

s 50 amd 2009 No. 25 s 53 (2)–(3); 2009 No. 24 s 1399; 2009 No. 48 s 129A; 2014 No. 21 s 94 (1) sch 1; 2018 No. 29 s 13

51Other action for corruption

(1)Nothing in this part limits the action that may lawfully be taken by the commission or a unit of public administration to discipline or otherwise deal with a person for corruption.

Example—

The commissioner of police may bring a disciplinary charge against a police officer under the Police Service Administration Act 1990.

(2)Subsection (1) is subject to sections 47 and 48.

s 51 amd 2014 No. 21 s 94 (1) sch 1

52Research functions

(1)The commission has the following functions—

(a)to undertake research to support the proper performance of its functions;

(b)to undertake research into the incidence and prevention of criminal activity;

(c)to undertake research into any other matter relating to the administration of criminal justice or relating to corruption referred to the commission by the Minister;

(d)to undertake research into any other matter relevant to any of its functions.

(2)Without limiting subsection (1)(a), the commission may undertake research into—

(a)police service methods of operations; and

(b)police powers and the use of police powers; and

(c)law enforcement by police; and

(d)the continuous improvement of the police service.

s 52 sub 2014 No. 21 s 21; 2016 No. 19 s 14

53Intelligence functions

The commission has the following functions (its intelligence functions)—

(a)to undertake intelligence activities, including specific intelligence operations authorised by the reference committee, to support the proper performance of its functions;

(b)to hold intelligence function hearings;

(c)to analyse the intelligence data collected to support its functions;

(d)to minimise unnecessary duplication of intelligence data;

(e)to ensure that intelligence data collected and held to support its functions is appropriate for the proper performance of its functions.

s 53 amd 2013 No. 45 s 10; 2013 No. 64 s 22; 2016 No. 62 s 33

54Database of intelligence information

The commission must build up a database of intelligence information for use in support of all of its functions using for the purpose information acquired by it from any source available to it, including, for example—

(a)its own operations; and

(b)the police service; and

(c)sources of the Commonwealth or any State supplying intelligence information to it.

55Access to intelligence information held by police service

The commissioner of police must give the chairperson access to intelligence information held by the police service as required by the chairperson as soon as possible after receiving the request.

s 55 amd 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

sub 2018 No. 29 s 14

ch 2 pt 4 div 2A hdg ins 2013 No. 45 s 11

sub 2016 No. 62 s 34

55AAuthorising specific intelligence operation

(1)The section applies if the reference committee is satisfied that there are reasonable grounds to suspect that—

(a)a criminal organisation, or a participant in a criminal organisation, has engaged in, is engaging in, or is planning to engage in, criminal activity; or

(b)a person, regardless of whether the person holds an appointment, has engaged in, is engaging in, or is planning to engage in corruption to support or help a criminal organisation or a participant in a criminal organisation.

(2)The reference committee may authorise the commission to undertake a specific intelligence operation, including by holding hearings.

(3)The authorisation must be in writing and identify—

(a)the criminal organisation or participant to be investigated by the commission; and

(b)the suspected criminal activity or corruption; and

(c)the purpose of the intelligence operation.

(4)The authorisation may relate to any circumstances implying, or any allegations, that particular criminal activity or corruption, is reasonably suspected.

(5)The authorisation may be made by the reference committee—

(a)on its own initiative; or

(b)if asked by the senior executive officer (crime) or the senior executive officer (corruption).

(6)In this section—

criminal activity means any act or omission that involves the commission of an offence.

hold an appointment means hold an appointment in a unit of public administration.

s 55A ins 2013 No. 45 s 11

amd 2014 No. 21 s 94 (1) sch 1 (amdt could not be given effect to the extent it subs assistant commissioner, misconduct’s with senior executive officer (corruption)’s); 2016 No. 62 s 35

55BMatters reference committee must consider

(1)The reference committee may authorise the commission to undertake a specific intelligence operation under section 55A only if it is satisfied—

(a)as required under the section; and

(b)it is in the public interest to authorise the commission to undertake the specific intelligence operation.

(2)In considering the public interest, the reference committee may also have regard to the likely effectiveness of an investigation into criminal activity or corruption without the use of powers available to the commission under this division.

(3)In this section—

criminal activity means any act or omission that involves the commission of an offence.

s 55B ins 2013 No. 45 s 11

amd 2014 No. 21 s 94 (1) sch 1; 2016 No. 62 s 36

55CReference committee may give commission directions

(1)The reference committee may give the commission directions imposing limitations on the commission’s intelligence operation under an authorisation under section 55A, including limitations on the exercise of the commission’s powers for the operations.

(2)The reference committee may also direct the commission to end a specific intelligence operation under an authorisation if the committee considers—

(a)it may be more appropriate for another entity to undertake the intelligence operation; or

(b)it may be more effective for another entity to undertake the intelligence operation; or

(c)undertaking an intelligence operation is not a justifiable use of the commission’s resources; or

(d)the commission undertaking an intelligence operation is not in the public interest.

(3)The commission must comply with a direction given under subsection (1) or (2).

(4)The reference committee may amend the terms of an authorisation on its own initiative or if asked by the senior executive officer (crime) or the senior executive officer (corruption).

(5)To remove any doubt, it is declared that subsection (2)(d) is not limited by section 55B(2).

s 55C ins 2013 No. 45 s 11

amd 2014 No. 21 s 94 (1) sch 1 (amdt could not be given effect to the extent it subs assistant commissioner, misconduct’s with senior executive officer (corruption)’s); 2016 No. 62 s 37

ch 2 pt 4 div 2B hdg ins 2013 No. 45 s 11

sub 2016 No. 62 s 38

55DAuthorising immediate response

(1)This section applies if the reference committee is satisfied there are reasonable grounds to suspect that a criminal organisation or a participant in a criminal organisation has engaged in, is engaging in, or is planning to engage in, an incident that threatens, has threatened or may threaten public safety.

(2)The reference committee may authorise the commission to do either or both of the following in response to, or to prevent, the threat to public safety—

(a)undertake an investigation into the incident;

(b)conduct a hearing in relation to the incident.

(3)The authorisation must be in writing and identify—

(a)the criminal organisation or participant that has engaged in, is engaging in, or is planning to engage in, the incident; and

(b)the nature of the incident; and

(c)the purpose of the investigation or hearing.

(4)The authorisation may be made by the reference committee—

(a)on its own initiative; or

(b)if asked by the senior executive officer (crime) or the senior executive officer (corruption).

s 55D ins 2013 No. 45 s 11

sub 2016 No. 62 s 38

55EMatters reference committee must consider

(1)The reference committee may authorise the commission to undertake the investigation or conduct the hearing only if the committee is satisfied—

(a)as required under section 55D(1); and

(b)it is in the public interest to authorise the commission to undertake the investigation or conduct the hearing in response to, or to prevent, the threat to public safety.

(2)In considering the public interest, the reference committee may also have regard to the likely effectiveness of an investigation into criminal activity or corruption without the use of powers available to the commission under this division.

(3)In this section—

criminal activity means any act or omission that involves the commission of an offence.

s 55E ins 2013 No. 45 s 11

sub 2016 No. 62 s 38

55FReference committee may give commission directions

(1)The reference committee may give the commission directions imposing limitations on the commission’s investigation or hearing under an authorisation under section 55D, including limitations on the exercise of the commission’s powers for the investigation or hearing.

(2)The reference committee may also direct the commission to end an investigation or hearing under an authorisation under section 55D if the committee considers—

(a)it may be more appropriate for another entity to undertake the investigation or conduct the hearing; or

(b)it may be more effective for another entity to undertake the investigation or conduct the hearing; or

(c)undertaking the investigation or conducting the hearing is not a justifiable use of the commission’s resources; or

(d)it is not in the public interest for the commission to undertake the investigation or conduct the hearing.

(3)The commission must comply with a direction given under subsection (1) or (2).

(4)The reference committee may amend the terms of an authorisation on its own initiative or if asked by the senior executive officer (crime) or the senior executive officer (corruption).

(5)To remove any doubt, it is declared that subsection (2)(d) is not limited by section 55D(2).

s 55F ins 2013 No. 45 s 11

amd 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

sub 2016 No. 62 s 38

56Commission’s other functions

The commission also has the following functions—

(a)the witness protection function;

Note—

See also the Witness Protection Act 2000.

(b)a civil confiscation function;

Note—

See also the Criminal Proceeds Confiscation Act 2002.

(c)a function conferred under another Act.

s 56 amd 2002 No. 68 s 286; 2006 No. 41 s 4; 2009 No. 48 s 130

57Commission to act independently etc.

The commission must, at all times, act independently, impartially and fairly having regard to the purposes of this Act and the importance of protecting the public interest.

58Independence of holders of judicial office

(1)The commission, when performing its functions or exercising its powers in relation to the procedures and operations of State courts or in relation to the conduct of a judicial officer, must proceed having proper regard for, and proper regard for the importance of preserving, the independence of judicial officers.

(2)To the extent a commission investigation is, or would be, in relation to conduct of a judicial officer, the commission’s authority to conduct the investigation is limited to investigating corrupt conduct of a kind that, if established, would warrant the judicial officer’s removal from office.

(3)However, subsection (2) does not apply to a commission investigation that is, or would be, in relation to conduct of a judicial officer—

(a)other than in the judicial officer’s capacity as a judicial officer; and

(b)as a member or representative of a decision-making body in a unit of public administration.

Examples of decision-making bodies—

a governing body, a board of management

(4)To the extent a commission investigation is, or would be, in relation to conduct of a judicial officer, the investigation must be conducted in accordance with appropriate conditions and procedures agreed by the chairperson and the Chief Justice from time to time.

(5)A commission hearing in relation to the conduct of the judicial officer must be conducted by the chairperson.

(6)The functions and powers of the commission are to be performed and exercised by the chairperson who is to be taken to constitute the commission for the investigation.

(7)However, the chairperson may delegate the chairperson’s functions and powers under this section, including the functions and powers mentioned in subsection (6), for a commission investigation mentioned in subsection (3) to a senior officer.

(8)In this section—

judicial officer means—

(a)a judge of, or other person holding judicial office in, a State court; or

(b)a member of a tribunal that is a court of record.

s 58 amd 2014 No. 21 s 22; 2016 No. 19 s 45 (1)–(2)

59Commission to cooperate with other entities

(1)The commission and units of public administration are to work cooperatively to achieve optimal use of available resources.

(2)In performing its functions, the commission must—

(a)liaise with, and coordinate its activities with the activities of, units of public administration to avoid needless duplication of the work of the units for the purpose of performing the commission’s functions; and

(b)have regard to the activities, findings and recommendations of entities outside the State, including outside Australia, that have functions similar to the commission—

(i)to relate and adapt the activities, findings and recommendations of the entities to the needs of the State; and

(ii)to avoid needless duplication of the work of the entities for the purpose of performing the commission’s functions.

60Use and disclosure of information, document or thing

(1)The commission may use any information, document or thing in the commission’s possession in performing the commission’s functions.

(2)The commission may give intelligence information or other information to any entity the commission considers appropriate, including, for example—

(a)a unit of public administration; and

(b)a law enforcement agency; and

(c)the auditor-general; and

(d)a commissioner under the Electoral Act 1992; and

(e)the ombudsman.

Note—

See section 213 in relation to making a record of, or wilfully disclosing, information given to a person under this section on the understanding, express or implied, that the information is confidential.

s 60 sub 2018 No. 29 s 15

61Commission’s functions not to limit proper performance of similar functions by other entities

(1)The conferral of functions on the commission does not limit police power or the power of another entity to perform similar functions.

(2)Subsection (1) is subject to sections 47 and 48.

63Application of pt 6

This part does not apply in relation to the performance of crime functions.

64Commission’s reports—general

(1)The commission may report in performing its functions.

(2)The commission must include in each of the reports—

(a)any recommendations, including, if appropriate and after consulting with the commissioner of police, a recommendation that the Police Minister give a direction to the commissioner of police under the Police Service Administration Act, section 4.6; and

(b)an objective summary of all matters of which it is aware that support, oppose or are otherwise relevant to its recommendations.

(3)If the Police Minister decides not to give a direction under the Police Service Administration Act, section 4.6 following a recommendation made under subsection (2)(a), the Police Minister must table in the Legislative Assembly, after giving the reasons—

(a)a copy of the recommendation; and

(b)the Minister’s reasons for not giving the direction.

(4)The commission may also include in a report any comments it may have on the matters mentioned in subsection (2)(b).

(5)In this section—

Police Minister means the Minister administering the Police Service Administration Act.

Police Service Administration Act means the Police Service Administration Act 1990.

65Commission reports—court procedures

(1)This section applies to a commission report about—

(a)the procedures and operations of a State court; or

(b)the procedures and practices of the registry or administrative offices of a State court.

(2)The report may be given only to—

(a)the Chief Justice, if the report deals with matters relevant to the Supreme Court; or

(b)the Chief Judge of the District Court, if the report deals with matters relevant to the District Court; or

(c)the President of the Childrens Court, if the report deals with matters relevant to the Childrens Court; or

(d)the Chief Magistrate, if the report deals with matters relevant to the Magistrates Courts; or

(e)the judicial officer, or the principal judicial officer if there is more than 1 judicial officer, in the court, or the system of courts, to which the matters dealt with in the report are relevant.

66Maintaining confidentiality of information

(1)Despite any other provision of this Act about reporting, if the commission considers that confidentiality should be strictly maintained in relation to information in its possession (confidential information)—

(a)the commission need not make a report on the matter to which the information is relevant; or

(b)if the commission makes a report on the matter, it need not disclose the confidential information or refer to it in the report.

(2)If the commission decides not to make a report to which confidential information is relevant or, in a report, decides not to disclose or refer to confidential information, the commission—

(a)may disclose the confidential information in a separate document to be given to—

(i)the Speaker; and

(ii)the Minister; and

(b)must disclose the confidential information in a separate document to be given to the parliamentary committee.

(3)A member of the parliamentary committee or a person appointed, engaged or assigned to help the committee must not disclose confidential information disclosed to the parliamentary committee or person under subsection (2)(b) until the commission advises the committee there is no longer a need to strictly maintain confidentiality in relation to the information.

Maximum penalty—85 penalty units or 1 year’s imprisonment.

(4)Despite subsection (2)(b), the commission may refuse to disclose information to the parliamentary committee if—

(a)a majority of the commissioners considers confidentiality should continue to be strictly maintained in relation to the information; and

(b)the commission gives the committee reasons for the decision in as much detail as possible.

67Register of confidential information

(1)The commission must maintain a register of information withheld under section 66(4) and advise the parliamentary committee immediately after the need to strictly maintain confidentiality in relation to the information ends.

(2)The parliamentary committee or a person appointed, engaged or assigned to help the committee who is authorised for the purpose by the committee may, at any time, inspect in the register information the commission has advised the committee is no longer required to be strictly maintained as confidential.

(3)The parliamentary commissioner may inspect information on the register at any time, regardless of whether the commission has advised the parliamentary committee the information is no longer required to be strictly maintained as confidential.

(4)The parliamentary committee may not require the parliamentary commissioner to disclose to the committee information inspected by the commissioner on the register, unless the commission has advised the committee the information is no longer required to be strictly maintained as confidential.

68Giving of reasons

Information or reasons mentioned in section 66(2) or (4) or 67(1)—

(a)may be given in writing or orally; and

(b)are not a report or part of a report for section 69.

69Commission reports to be tabled

(1)This section applies to the following commission reports—

(a)a report on a public hearing;

(b)a research report or other report that the parliamentary committee directs be given to the Speaker.

(2)However, this section does not apply to the commission’s annual report, or a report under section 49 or 65, or a report to which section 66 applies.

(3)A commission report, signed by the chairperson, must be given to—

(a)the chairperson of the parliamentary committee; and

(b)the Speaker; and

(c)the Minister.

(4)The Speaker must table the report in the Legislative Assembly on the next sitting day after the Speaker receives the report.

(5)If the Speaker receives the report when the Legislative Assembly is not sitting, the Speaker must deliver the report and any accompanying document to the clerk of the Parliament.

(6)The clerk must authorise the report and any accompanying document to be published.

(7)A report published under subsection (6) is taken, for all purposes, to have been tabled in and published by order of the Legislative Assembly and is to be granted all the immunities and privileges of a report so tabled and published.

(8)The commission, before giving a report under subsection (1), may—

(a)publish or give a copy of the report to the publisher authorised to publish the report; and

(b)arrange for the prepublishing by the publisher of copies of the report for this section.

s 69 amd 2003 No. 8 s 17 sch; 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

70Giving material to tribunal inquiring into judge’s misbehaviour or incapacity

(1)This section applies if a tribunal established under the Constitution of Queensland 2001, section 61 is inquiring into whether a Supreme Court judge or a District Court judge has misbehaved in a way that justifies removal from a judicial office or is incapable of performing the duties of a judicial office.

(2)At the tribunal’s request, the commission must give the tribunal all material in the commission’s possession relevant to the subject of the tribunal’s inquiry, including any relevant report of the commission.

s 70 sub 2001 No. 80 s 94 sch 2

71Giving other information to parliamentary committee

The commission may, with the parliamentary committee’s consent, give the parliamentary committee information, orally or in writing, whether or not at the request of the committee, that is not included in a report under section 69.

71AReport containing adverse comment

(1)This section applies if the commission proposes to make an adverse comment about a person in a report to be tabled in the Legislative Assembly, or published to the public, under this Act.

(2)The commission must not make the proposed adverse comment unless, before the report is prepared, the commission gives the person an opportunity to make submissions about the proposed adverse comment.

(3)If the person makes submissions and the commission still proposes to make the adverse comment, the commission must ensure the person’s submissions are fairly stated in the report.

s 71A ins 2018 No. 29 s 17

ch 3 pt 1 div 1 sdiv 1 hdg amd 2013 No. 64 s 23

72Power to require information or documents

(1)This section applies only for a crime investigation or specific intelligence operation (crime).

(2)The chairperson may, by notice given to a person holding an appointment in a unit of public administration, require the person, within the reasonable time and in the way stated in the notice, to give an identified commission officer—

(a)an oral or written statement of information of a stated type relevant to a crime investigation or specific intelligence operation (crime) that is in the possession of the unit; or

(b)a stated document or other stated thing, or a copy of a stated document, relevant to a crime investigation or specific intelligence operation (crime) that is in the unit’s possession; or

(c)all documents of a stated type, or copies of documents of the stated type, containing information relevant to a crime investigation or specific intelligence operation (crime) that are in the unit’s possession.

(3)The chairperson may, by notice given to a person holding an appointment in a unit of public administration, require the person—

(a)to attend before an identified commission officer at a reasonable time and place stated in the notice; and

(b)at the time and place stated in the notice, to give to the officer a document or thing stated in the notice that—

(i)relates to the performance by the unit of the unit’s functions; and

(ii)is relevant to a crime investigation or specific intelligence operation (crime).

(4)The person must comply with a notice under subsection (2) or (3), unless the person has a reasonable excuse.

Maximum penalty—85 penalty units or 1 year’s imprisonment.

(5)A person who fails to comply with a notice under subsection (2) or (3) does not commit an offence if—

(a)the information, document or thing is subject to privilege; or

(b)a provision of another Act prescribed under a regulation for this subsection excuses compliance with the requirement.

Note—

If a claim of privilege is made, the commission officer is required to consider the claim under section 77 and, if the requirement is not withdrawn, the person may be required to attend at a commission hearing to establish the claim.

(6)A person does not, by complying with a notice under subsection (2) or (3) in relation to the information, document or thing—

(a)contravene a provision of an Act or a law imposing a statutory or commercial obligation or restriction to maintain secrecy in relation to the information, document or thing; or

(b)incur any civil liability in relation to the information, document or thing.

(7)The notice must—

(a)state whether it relates to a crime investigation or a specific intelligence operation (crime); and

(b)for a notice requiring a statement of information—indicate briefly the general nature of the information by reference to a particular matter or to the type of information sought; and

(c)for a notice requiring the giving of a document or other thing—identify the document or thing sufficiently to enable the person to know what is required.

s 72 amd 2013 No. 64 s 24; 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

ch 3 pt 1 div 1 sdiv 2 hdg amd 2014 No. 21 s 94 (1) sch 1

73Power to enter etc.

(1)This section applies only for a corruption investigation.

(2)The chairperson may, by notice, authorise a commission officer to exercise powers under this section.

(3)A commission officer authorised under subsection (2) may—

(a)enter and search official premises; or

(b)inspect any document or thing found in or on official premises that is, or might be, relevant to the corruption investigation; or

(c)seize and remove from official premises any document or thing found in or on the premises that is relevant to a corruption investigation; or

(d)make copies of or extracts from a document mentioned in paragraph (b) or (c); or

(e)require a person holding an appointment in a unit of public administration to give the officer reasonable help to exercise the powers mentioned in paragraphs (b) to (d).

(4)A person does not, by allowing the exercise of a power under subsection (3) in relation to a document or thing—

(a)contravene a provision of an Act or a law imposing a statutory or commercial obligation or restriction to maintain secrecy in relation to the document or thing; or

(b)incur any civil liability in relation to the document or thing.

(5)However, the commission officer must not exercise a power under subsection (3)(b), (c) or (d) if the chief executive officer of the unit, or a person authorised by the chief executive officer for the purpose, claims that the document or thing is subject to privilege.

Note—

If a claim of privilege is made, the commission officer is required to consider the claim under section 80 and, if the requirement is not withdrawn, the person may apply to, or be required to attend before, the Supreme Court to establish the claim under section 196.

(6)A commission officer exercising powers under this section must, if asked by the occupier of the official premises, or a person acting for the occupier, produce for inspection by the occupier or person the chairperson’s authority under which the officer purports to act.

(7)In this section—

official premises means premises occupied or used by, or for the official purposes of, a unit of public administration, but does not include any part of premises that is occupied or used by or for the purposes of any State court.

s 73 amd 2002 No. 68 s 283 sch 3; 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)–(2)

ch 3 pt 1 div 2 sdiv 1 hdg amd 2006 No. 41 s 3 sch; 2013 No. 64 s 25

74Notice to produce for crime investigation, specific intelligence operation (crime) or witness protection function

(1)This section applies only for the following—

(a)a crime investigation;

(b)a specific intelligence operation (crime);

(c)the witness protection function.

(2)The chairperson may, by notice (notice to produce) given to a person, require the person, within the reasonable time and in the way stated in the notice, to give an identified commission officer a stated document or thing that the chairperson believes, on reasonable grounds, is relevant to a crime investigation, a specific intelligence operation (crime) or the witness protection function.

(2A)The notice to produce must state that it relates to—

(a)a crime investigation; or

(b)a specific intelligence operation (crime); or

(c)without specifying which, a crime investigation or the witness protection function.

(3)If the notice to produce is given in the context of a crime investigation or specific intelligence operation (crime), the notice may be given whether or not the commission is conducting a hearing for the investigation or operation.

(3A)If the notice to produce is given in the context of the witness protection function, the notice may be given only if the chairperson considers it is necessary to protect—

(a)the security of a protected person; or

(b)the integrity of the witness protection program or other witness protection activities of the commission.

(4)The notice to produce may require the immediate production of a document or thing to a stated commission officer if the chairperson believes, on reasonable grounds, that—

(a)for a notice given in the context of a crime investigation, delay in the production of the document may result in—

(i)its destruction, removal or concealment; or

(ii)serious prejudice to the conduct of the investigation; or

(b)for a notice given in the context of a specific intelligence operation (crime), delay in the production of the document may result in—

(i)its destruction, removal or concealment; or

(ii)serious prejudice to the conduct of the operation; or

(iii)the loss of an opportunity to obtain timely intelligence—

(A)in advance of a significant event; or

(B)that may help prevent a risk to public safety; or

(c)for a notice given in the context of the witness protection function, delay in the production of the document may threaten—

(i)the security of a protected person; or

(ii)the integrity of the witness protection program or other witness protection activities of the commission.

(5)The person must comply with the notice to produce, unless the person has a reasonable excuse.

Maximum penalty—85 penalty units or 1 year’s imprisonment.

(6)A person does not, by complying with the notice to produce in relation to the document or thing—

(a)contravene a provision of an Act or a law imposing a statutory or commercial obligation or restriction to maintain secrecy in relation to the document or thing; or

(b)incur any civil liability in relation to the document or thing.

(7)A person who fails to comply with a notice does not commit an offence if the document or thing is subject to privilege.

Note—

If a claim of privilege is made, the commission officer is required to consider the claim under section 77 and, if the requirement is not withdrawn, the person may be required to attend at a commission hearing to establish the claim.

(8)A document or thing produced under this section is taken to have been seized under a warrant under part 2.

s 74 amd 2002 No. 68 ss 287, 283 sch 3; 2006 No. 41 s 5; 2013 No. 64 s 26; 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1); 2016 No. 62 s 39

ch 3 pt 1 div 2 sdiv 1A hdg ins 2002 No. 68 s 288

74ANotice to produce for confiscation related investigation

(1)This section applies only for a confiscation related investigation.

(2)The chairperson may, by notice (notice to produce) given to a person, require the person, within the reasonable time and in the way stated in the notice, to give an identified commission officer a stated document or thing that the chairperson believes, on reasonable grounds, is relevant to a confiscation related investigation.

(3)The notice to produce may require the immediate production of a document or thing to a stated commission officer if the chairperson believes, on reasonable grounds, that delay in the production of the document or thing may result in—

(a)its destruction, removal or concealment; or

(b)serious prejudice to the conduct of the investigation.

(4)The person must comply with the notice to produce, unless the person has a reasonable excuse.

Maximum penalty—85 penalty units or 1 year’s imprisonment.

(5)A person does not, by complying with the notice to produce in relation to the document or thing—

(a)contravene a provision of an Act or a law imposing a statutory or commercial obligation or restriction to maintain secrecy in relation to the document or thing; or

(b)incur any civil liability in relation to the document or thing.

(6)A person who fails to comply with a notice does not commit an offence if the document or thing is subject to privilege.

Note—

If a claim of privilege is made, the commission officer is required to consider the claim under section 78B and, if the requirement is not withdrawn, the chairperson may apply to a Supreme Court judge to decide the claim.

(7)A document produced under this section is taken to have been seized under a warrant under part 2.

s 74A ins 2002 No. 68 s 288

amd 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

ch 3 pt 1 div 2 sdiv 2 hdg amd 2013 No. 64 s 27; 2014 No. 21 s 94 (1) sch 1

75Notice to discover information

(1)This section applies—

(a)only for a corruption investigation or a specific intelligence operation (corruption); and

(b)only if the chairperson reasonably suspects that a person, whether or not the person holds an appointment in a unit of public administration, has information, or possession of a document or thing, relevant to the investigation or operation.

(2)The chairperson may, by notice (notice to discover) given to the person, require the person, within the reasonable time and in the way stated in the notice, to give an identified commission officer—

(a)an oral or written statement of information of a stated type relevant to the investigation or operation that is in the person’s possession; or

(b)a stated document or other stated thing, or a copy of a stated document, relevant to the investigation or operation that is in the person’s possession; or

(c)all documents of a stated type, or copies of documents of the stated type, containing information relevant to the investigation or operation that are in the person’s possession.

(3)The person must comply with the notice.

Maximum penalty—85 penalty units or 1 year’s imprisonment.

(4)A person does not, by complying with the notice to discover in relation to the information, document or thing—

(a)contravene a provision of an Act or a law imposing a statutory or commercial obligation or restriction to maintain secrecy in relation to the information, document or thing; or

(b)incur any civil liability in relation to the information, document or thing.

(5)A person who fails to comply with the notice does not commit an offence if the information, document or thing—

(a)is subject to privilege; or

(b)is a secret process of manufacture applied by the person solely for a lawful purpose.

Note—

If a claim of privilege is made, the commission officer is required to consider the claim under section 80 and, if the requirement is not withdrawn, the person may apply to, or be required to attend before, the Supreme Court to establish the claim under section 196.

(6)The chairperson may require the person to give an oral statement of information under oath and a written statement of information by way of statutory declaration.

(7)The notice to discover must—

(a)state whether it relates to a corruption investigation or a specific intelligence operation (corruption); and

(b)if it requires a statement of information—indicate briefly the general nature of the information the person is suspected of having, by reference to a particular matter or to the type of information sought; and

(c)if it requires the giving of a document or other thing—identify the document or thing sufficiently to enable the person to know what is required.

(8)The notice—

(a)may provide that its requirement may be met by some person acting for the person to whom it is directed; and

(b)may specify the person or class of person who may so act.

s 75 amd 2002 No. 68 s 283 sch 3; 2009 No. 24 s 1400; 2013 No. 64 s 28; 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

ch 3 pt 1 div 2A hdg ins 2006 No. 41 s 6

75AApplication of div 2A

This division applies only for a crime investigation, a corruption investigation or an intelligence function hearing.

s 75A ins 2006 No. 41 s 6

amd 2013 No. 45 s 12; 2014 No. 21 s 94 (1) sch 1

75BPower to require immediate production

(1)The presiding officer at a commission hearing may require a witness at the hearing to immediately produce a stated document or thing that the presiding officer believes, on reasonable grounds, is—

(a)in the witness’s possession; and

(b)relevant to the investigation.

Note—

For a reasonable excuse for not producing the document or thing, see section 185 for a crime investigation or intelligence function hearing and section 188 for a corruption investigation.

(2)The presiding officer may adjourn the hearing to allow the person to comply with the requirement.

(3)The person does not, by complying with the requirement—

(a)contravene a provision of an Act or a law imposing a statutory or commercial obligation or restriction to maintain secrecy in relation to the document or thing; or

(b)incur any civil liability in relation to the document or thing.

s 75B ins 2006 No. 41 s 6

amd 2013 No. 45 s 13; 2014 No. 21 s 94 (1) sch 1

ch 3 pt 1 div 3 sdiv 1 hdg amd 2013 No. 64 s 29

76Application of sdiv 1

This subdivision applies if a person claims privilege under section 72 or 74 in relation to information or a document or thing.

s 76 amd 2009 No. 48 s 131

77Commission officer to consider claim

The commission officer must consider the claim and may withdraw the requirement in relation to which the claim is made or advise the person that the person may be required to attend before a commission hearing to establish the claim.

Note—

If the requirement is not withdrawn, the person may be given an attendance notice under section 82 to attend at a commission hearing to establish the claim.

78Procedure for documents subject to claim of privilege

(1)If—

(a)the claim is made in relation to a document or thing the person is required to give or produce to the commission; and

(b)the person acknowledges that the document or thing is in the person’s possession; and

(c)the commission officer does not withdraw the requirement;

the commission officer must require the person to immediately seal the document or thing and give it to the commission officer for safe keeping.

(2)The person must immediately seal the document or thing and give it to the commission officer for safe keeping.

Maximum penalty—85 penalty units or 1 year’s imprisonment.

(3)The commission officer must—

(a)give the person a receipt for the sealed document or thing; and

(b)place it in safe custody at the commission’s place of business at the earliest reasonable opportunity.

(4)A person must not open the sealed document or thing unless authorised to open it under this Act or a court order.

Maximum penalty—85 penalty units or 1 year’s imprisonment.

(5)The commission must return any sealed document or thing given to the commission officer by a person under subsection (2) within 7 days if the commission has not by the end of that period given the person an attendance notice under section 82(1)(a)(iii).

s 78 amd 2002 No. 68 s 283 sch 3; 2009 No. 48 s 132

ch 3 pt 1 div 3 sdiv 1A hdg ins 2002 No. 68 s 289

78AApplication of sdiv 1A

This subdivision applies if a person claims privilege under section 74A in relation to a document or thing.

s 78A ins 2002 No. 68 s 289

amd 2009 No. 48 s 131

78BCommission officer to consider claim of privilege

The commission officer must consider the claim and may withdraw the requirement in relation to which the claim is made or advise the person that the person may apply to, or be required to attend before, the Supreme Court to establish the claim under section 195B.

s 78B ins 2002 No. 68 s 289

78CProcedure for documents subject to claim of privilege

(1)If—

(a)the claim is made in relation to a document or thing the person is required to give or produce to the commission; and

(b)the document or thing is in the person’s possession or the person acknowledges that the document or thing is in the person’s possession; and

(c)the commission officer does not withdraw the requirement;

the commission officer must require the person to immediately seal the document or thing and give it to the commission officer for safe keeping.

(2)The person must immediately seal the document or thing (the sealed evidence) under the supervision of the commission’s representative.

Maximum penalty—85 penalty units or 1 year’s imprisonment.

(3)The person and the commission’s representative must immediately deliver the sealed evidence to a registrar of the Supreme Court to be held in safe custody.

Maximum penalty—85 penalty units or 1 year’s imprisonment.

(4)The registrar must keep the sealed evidence in safe custody until—

(a)application is made to a Supreme Court judge to decide the claim of privilege; or

(b)the end of 3 court days after the day on which the document or thing is given to the registrar, if an application has not been made under paragraph (a); or

(c)the registrar is told by the person and commission representative that agreement has been reached on the disposal of the sealed evidence.

(5)The registrar must—

(a)if an application is made to a Supreme Court judge to decide the claim of privilege—dispose of the sealed evidence in the way ordered by the judge; or

(b)if an application is not made by the end of 3 court days after the day on which the document or thing is given to the registrar—return the sealed evidence to the person; or

(c)if the person and commission representative give the registrar notice that an agreement on the disposal of the sealed evidence has been reached—dispose of the sealed evidence in the way agreed.

s 78C ins 2002 No. 68 s 289

ch 3 pt 1 div 3 sdiv 2 hdg amd 2013 No. 64 s 30; 2014 No. 21 s 94 (1) sch 1

79Application of sdiv 2

This subdivision applies if a person claims privilege under section 73, 75, 94 or 111 in relation to information or a document or thing.

s 79 amd 2009 No. 48 s 131

80Commission officer to consider claim of privilege

The commission officer must consider the claim and may withdraw the requirement in relation to which the claim is made or advise the person that the person may apply to, or be required to attend before, the Supreme Court to establish the claim under section 196.

s 80 amd 2002 No. 68 s 283 sch 3

81Procedure for documents subject to claim of privilege

(1)If—

(a)the claim is made in relation to a document or thing the person is required to give or produce to the commission; and

(b)the document or thing is in the person’s possession or the person acknowledges that the document or thing is in the person’s possession; and

(c)the commission officer does not withdraw the requirement;

the commission officer must require the person to immediately seal the document or thing and give it to the commission officer for safe keeping.

(2)The person must immediately seal the document or thing (the sealed evidence) under the supervision of the commission’s representative.

Maximum penalty—85 penalty units or 1 year’s imprisonment.

(3)The person and the commission’s representative must immediately deliver the sealed evidence to a registrar of the Supreme Court to be held in safe custody.

Maximum penalty—85 penalty units or 1 year’s imprisonment.

(4)The registrar must keep the sealed evidence in safe custody until—

(a)application is made to a Supreme Court judge to decide the claim of privilege; or

(b)the end of 3 court days after the day on which the document or thing is given to the registrar, if an application has not been made under paragraph (a); or

(c)the registrar is told by the person and commission representative that agreement has been reached on the disposal of the sealed evidence.

(5)The registrar must—

(a)if an application is made to a Supreme Court judge to decide the claim of privilege—dispose of the sealed evidence in the way ordered by the judge; or

(b)if an application is not made by the end of 3 court days after the day on which the document or thing is given to the registrar—return the sealed evidence to the person; or

(c)if the person and commission representative give the registrar notice that an agreement on the disposal of the sealed evidence has been reached—dispose of the sealed evidence in the way agreed.

s 81 amd 2002 No. 68 s 283 sch 3

82Notice to attend hearing—general

(1)The chairperson may issue a notice (attendance notice) requiring a person to attend at a commission hearing at a stated time and place for 1 or more of the following purposes until excused—

(a)for a hearing in relation to a crime investigation or corruption investigation—

(i)to give evidence; or

(ii)to produce a stated document or thing; or

(iii)to establish a reasonable excuse or claim of privilege under section 72 or 74;

(b)for a witness protection function hearing—to establish the reasonable excuse or claim of privilege the subject of the hearing;

(c)for an intelligence function hearing—

(i)to give evidence; or

(ii)to produce a stated document or thing.

(2)An attendance notice must state—

(a)whether it is issued in the context of—

(i)a crime investigation; or

(ii)without specifying which, a crime investigation or the witness protection function; or

(iii)a corruption investigation; or

(iv)the intelligence function; and

(b)so far as reasonably practicable, the general nature of the matters about which the person may be questioned at the commission hearing.

(3)A person does not, by giving evidence or producing a stated document or thing at a hearing in compliance with an attendance notice—

(a)contravene a provision of an Act or a law imposing a statutory or commercial obligation or restriction to maintain secrecy in relation to the evidence, document or thing; or

(b)incur any civil liability in relation to the evidence, document or thing.

(4)A failure to comply with subsection (2)(b) does not prevent the commission from questioning the person about—

(a)for an attendance notice issued in the context of a crime investigation or corruption investigation—any matter that relates to an investigation; or

(b)for an attendance notice issued in the context of a witness protection function hearing—any matter that relates to the matter for which the attendance notice was issued; or

(c)for an attendance notice issued in the context of an intelligence function hearing—any matter that relates to the matter for which the attendance notice was issued.

(5)A person given an attendance notice must not—

(a)fail, without reasonable excuse, to attend as required by the notice; or

(b)fail, without reasonable excuse, to continue to attend as required by the presiding officer until excused from further attendance.

Maximum penalty—200 penalty units or 5 years imprisonment.

(6)If the commission hearing is being held under an authorisation under section 55D, the chairperson may issue an attendance notice requiring a person to attend immediately at the commission hearing at a stated place.

(7)This section, other than subsection (6), is subject to section 85.

s 82 amd 2002 No. 68 s 283 sch 3; 2006 No. 41 s 7; 2013 No. 45 s 14; 2013 No. 64 s 31; 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1); 2016 No. 62 s 40

83Notice to attend hearing—prisoner, patient or forensic disability client

(1)If the attendance before the commission of a prisoner is required, the chairperson may, by notice given to the chief executive (corrective services), direct that chief executive to produce the prisoner named in the notice at a stated time and place.

(2)If the attendance before the commission of a patient detained in an authorised mental health service under the Mental Health Act 2016 is required, the chairman may, by notice given to the administrator of the service, direct the administrator to produce the patient named in the notice at a stated time and place.

(2A)If the attendance before the commission of a forensic disability client detained in the forensic disability service is required, the chairperson may, by notice given to the forensic disability service administrator, direct the forensic disability service administrator to produce the client named in the notice at a stated time and place.

(3)A direction mentioned in subsection (1), (2) or (2A) is lawful authority to the person to whom it is given for production of the prisoner, patient or forensic disability client as directed.

(4)The person to whom the direction is given must comply with the direction.

(5)A prisoner, patient or forensic disability client produced under this section remains in the custody of the chief executive (corrective services), hospital administrator or forensic disability service administrator.

(6)In this section—

administrator, of an authorised mental health service, see the Mental Health Act 2016, schedule 3.

authorised mental health service see the Mental Health Act 2016, schedule 3.

forensic disability client means a forensic disability client within the meaning of the Forensic Disability Act 2011.

forensic disability service means the forensic disability service within the meaning of the Forensic Disability Act 2011.

forensic disability service administrator means the administrator within the meaning of the Forensic Disability Act 2011.

prisoner means a person in the custody of the chief executive (corrective services).

s 83 amd 2011 No. 13 s 170; 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1); 2016 No. 5 s 923 sch 4

84Notice may be a confidential document

(1)A notice given by the chairperson under this part may provide that it is a confidential document.

(2)A person must not disclose the existence of a confidential document to anyone else, unless the person has a reasonable excuse.

Maximum penalty—85 penalty units or 1 year’s imprisonment.

(3)It is a reasonable excuse for a person to disclose the existence of a confidential document if—

(a)the disclosure is made for the purpose of—

(i)seeking legal advice in relation to the document or an offence against subsection (2); or

(ii)obtaining information in order to comply with the document; or

(iii)making a complaint to the parliamentary committee about the document; or

(iv)the administration of this Act; and

(b)the person informs the person to whom the disclosure is made that it is an offence to disclose the existence of the document to anyone else unless the person has a reasonable excuse.

s 84 amd 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

85Notices requiring immediate attendance may be issued only by or with the approval of a Supreme Court judge

(1)The chairperson may issue an attendance notice requiring a person to attend immediately at a commission hearing at a stated place only with the approval of a Supreme Court judge.

(1A)If the attendance notice is to be issued in the context of a witness protection function hearing, the chairperson must give the judge a certificate stating that the notice relates to a witness protection function hearing.

(2)The judge may approve the issue of the attendance notice only if the judge is satisfied, on reasonable grounds, that—

(a)for a notice issued in the context of a crime investigation or corruption investigation, delay in attendance might result in—

(i)the commission of an offence; or

(ii)an offender or suspected offender absconding; or

(iii)the loss or destruction of evidence; or

(iv)serious prejudice to the conduct of an investigation being conducted by the commission; or

(b)for a notice issued in the context of a witness protection function hearing, delay in attendance and resolution of the reasonable excuse or claim of privilege the subject of the hearing might threaten—

(i)the security of a protected person; or

(ii)the integrity of the witness protection program or other witness protection activities of the commission; or

(c)for a notice issued in the context of an intelligence function hearing under an authorisation under section 55A, delay in attendance might result in the loss of an opportunity to obtain timely intelligence—

(i)in advance of a significant event; or

(ii)that may help prevent a risk to public safety.

Note—

An attendance notice issued under section 82(6) that requires the immediate attendance of someone at a commission hearing does not require the court’s approval under this section.

(3)Subsection (3A) applies to an attendance notice issued in the context of a crime investigation or corruption investigation or the performance of the intelligence function under an authorisation under section 55A.

(3A)The notice need not state the general nature of the matters about which the person may be questioned if the chairperson is satisfied that, in the particular circumstances of the investigation or the performance of the function, stating the matters would prejudice the effectiveness of the investigation or the performance of the function.

(4)For an attendance notice to be issued in the context of a witness protection function hearing, nothing in this section requires the chairperson to give the judge—

(a)information about the identity or former identity of a protected person; or

(b)details about the protection given to a protected person or the reasons for the protection; or

(c)information about the identity of any person if the information would threaten—

(i)the security of a protected person; or

(ii)the integrity of the witness protection program or other witness protection activities of the commission.

(5)A certificate mentioned in subsection (1A) is evidence of the matters stated in it.

s 85 amd 2006 No. 41 s 8; 2013 No. 45 s 15; 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

85ADefinitions for part

In this part—

access information means information that is necessary for a person to access and read information stored electronically on a storage device.

employee includes a person who works under a contract for services.

issuer see section 86(6).

relevant evidence means—

(a)evidence of the commission of major crime or corruption; or

(b)evidence that may be confiscation related evidence.

specified person means a person who—

(a)is—

(i)reasonably suspected of having committed an offence for which a search warrant was issued; or

(ii)the owner of a storage device; or

(iii)in possession of a storage device; or

(iv)an employee of the owner or person in possession of a storage device; or

(v)a person who uses or has used a storage device; or

(vi)a person who is or was a system administrator for the computer network of which a storage device forms or formed a part; and

(b)has a working knowledge of—

(i)how to access and operate a storage device or a computer network of which the storage device forms or formed a part; or

(ii)measures applied to protect information stored on a storage device.

storage device means a device on which information may be stored electronically, including a computer.

stored, on a storage device, includes accessible through the device.

s 85A ins 2016 No. 62 s 42

86Search warrant applications

(1)An authorised commission officer may apply for a warrant to enter and search a place (search warrant) to obtain—

(a)evidence of the commission of major crime or corruption being investigated by the commission; or

(b)evidence that may be confiscation related evidence.

(2)The application may be made to a magistrate or Supreme Court judge, unless the application must be made to a Supreme Court judge under subsection (3).

(3)The application must be made to a Supreme Court judge if, when entering and searching the place, it is intended to do anything that may cause structural damage to a building.

(4)An application under this section—

(a)must be sworn and state the grounds on which the warrant is sought; and

(b)must fully disclose all matters, of which the authorised commission officer is aware, both favourable and adverse to the issuing of the warrant sought; and

(c)must include information required under a regulation about any search warrants issued within the previous year in relation to the place or a person suspected of being involved in—

(i)the commission of the major crime or corruption to which the application relates; or

(ii)the confiscation related activity to which the application relates; or

(iii)the qualifying offence, or suspected qualifying offence, to which the application relates.

(5)Subsection (4)(c) applies only to—

(a)information kept in a register that the commission officer may inspect; and

(b)information the officer otherwise actually knows.

(6)The magistrate or judge (the issuer) may refuse to consider the application until the commission officer gives the issuer all the information the issuer requires about the application in the way the issuer requires.

Example—

The issuer may require additional information supporting the application to be given by statutory declaration.

s 86 amd 2002 No. 68 s 290; 2009 No. 48 s 133; 2013 No. 21 s 7; 2014 No. 21 s 94 (1) sch 1

87Issue of search warrant

(1)The issuer may issue the search warrant only if satisfied there are reasonable grounds for suspecting evidence of the commission of major crime or corruption, or confiscation related evidence—

(a)is at the place; or

(b)is likely to be taken to the place within the next 72 hours.

(2)The issuer may provide in the warrant that the warrant is a confidential document.

s 87 amd 2002 No. 68 s 291; 2014 No. 21 s 94 (1) sch 1

88Order in search warrants about documents

The issuer may, in the search warrant, order the person in possession of documents at the place to give to a commission officer all documents of a type stated in the warrant.

88AOrder in search warrant about information necessary to access information stored electronically

(1)The issuer may, in the search warrant, order a specified person to do any of the following in relation to a storage device in the person’s possession, or to which the person has access, at the place—

(a)give a commission officer access to the device;

(b)give a commission officer access information and any other information or assistance necessary for the officer to gain access to information stored on the device;

(c)allow a commission officer to—

(i)use access information to gain access to information stored on the device; and

(ii)examine information stored on the device to find out whether it may be relevant evidence; and

(iii)make a copy of information stored on the device that may be relevant evidence, including by using another storage device; and

(iv)convert information stored on the device that may be relevant evidence into documentary form or another form that enables it to be understood by a commission officer.

(2)The issuer may also, in the search warrant, order that, if the storage device is seized and removed from the place, a specified person is required to do a thing mentioned in subsection (1)(b) or (c) after the device has been removed.

(3)An order made under subsection (2) must state—

(a)the time at or by which the specified person must give a commission officer the information or assistance; and

(b)the place where the specified person must provide the information or assistance; and

(c)any conditions to which the provision of the information or assistance is subject.

s 88A ins 2016 No. 62 s 43

88BOrder for access information after storage device has been seized

(1)This section applies if—

(a)a storage device is seized under the search warrant and removed from the place; and

(b)either—

(i)the search warrant did not contain an order made under section 88A(1) or (2); or

(ii)the search warrant contained an order made under section 88A(1) or (2) but further access information is required for a commission officer to gain access to information stored on the device that may be relevant evidence.

(2)On the application of an authorised commission officer, a magistrate or a judge may make an order requiring a specified person to do a thing mentioned in section 88A(1)(b) or (c).

(3)An application made under subsection (2)—

(a)may be made at any time after the warrant has been issued; and

(b)must be made—

(i)if the search warrant was issued by a judge—to a Supreme Court judge; or

(ii)if the search warrant was issued by a magistrate—to a magistrate.

(4)An order made under subsection (2) must state—

(a)the time at or by which the specified person must give a commission officer the information or assistance; and

(b)the place where the specified person must provide the information or assistance; and

(c)any conditions to which the provision of the information or assistance is subject; and

(d)that failure, without reasonable excuse, to comply with the order may be dealt with under the Criminal Code, section 205A.

(5)A magistrate or a judge may make an order under subsection (2) only if satisfied there are reasonable grounds for suspecting that information stored on the storage device may be relevant evidence.

s 88B ins 2016 No. 62 s 43

88CCompliance with order about information necessary to access information stored electronically

A person is not excused from complying with an order made under section 88A(1) or (2) or 88B(2) on the ground that complying with it may tend to incriminate the person or make the person liable to a penalty.

s 88C ins 2016 No. 62 s 43

89Search warrant may be a confidential document

(1)If the search warrant provides that it is a confidential document, a person must not disclose the existence of the warrant to anyone else unless the person has a reasonable excuse.

Maximum penalty—85 penalty units or 1 year’s imprisonment.

(2)It is a reasonable excuse for a person to disclose the existence of the warrant if—

(a)the disclosure is made—

(i)for the purpose of seeking legal advice in relation to the warrant or an offence against subsection (1); or

(ii)for the purpose of obtaining information in order to comply with the warrant; or

(iii)for the purpose of making a complaint to the commission or the parliamentary committee about the warrant; or

(iv)in the course of the administration of this Act; and

(b)the person informs the person to whom the disclosure is made that it is an offence to disclose the existence of the warrant to anyone else unless the person has a reasonable excuse.

90When search warrant ends

(1)A search warrant issued because there are reasonable grounds for suspecting there is evidence of the commission of major crime or corruption or confiscation related evidence at a place ends 7 days after it is issued.

(2)A search warrant issued because there are reasonable grounds for suspecting evidence of the commission of major crime or corruption or confiscation related evidence is likely to be taken to a place within the next 72 hours ends 72 hours after it is issued.

s 90 amd 2002 No. 68 s 292; 2014 No. 21 s 94 (1) sch 1

91What search warrant must state

(1)A search warrant must state—

(a)that a stated commission officer or all commission officers may enter the place and exercise search warrant powers at the place; and

(b)brief particulars of the major crime, corruption, confiscation related activity, qualifying offence or suspected qualifying offence for which the warrant is issued; and

(c)the evidence, if any, that may be seized under the warrant; and

(d)if the warrant is to be executed at night, the hours when the place may be entered; and

(e)the day and time the warrant ends.

(2)If a magistrate or a judge makes an order under section 88 or 88A(1) or (2), the warrant must also state that failure, without reasonable excuse, to comply with the order may be dealt with under—

(a)for section 88—the Criminal Code, section 205; or

(b)for section 88A(1) or (2)—the Criminal Code, section 205A.

s 91 amd 2002 No. 68 s 293; 2013 No. 21 s 8; 2014 No. 21 s 94 (1) sch 1; 2016 No. 62 s 44

92Powers under search warrants

(1)An authorised commission officer has the following powers under a search warrant (search warrant powers)—

(a)power to enter the place stated in the warrant (the relevant place) and to stay on it for the time reasonably necessary to exercise powers authorised under the warrant and this section;

(b)power to pass over, through, along or under another place to enter the relevant place;

(c)power to search the relevant place for anything sought under the warrant;

(d)power to open anything in the relevant place that is locked;

(e)power to detain anyone at the relevant place for the time reasonably necessary to find out if the person has anything sought under the warrant;

(f)power to detain a person found at the relevant place for the time taken to search the place if the officer reasonably suspects the person has been involved in the unlawful activity, the confiscation related activity or the qualifying offence;

(g)power to dig up land;

(h)power to seize a thing found at the relevant place, or on a person found at the relevant place, that the officer reasonably suspects may be evidence of the commission of the unlawful activity or an indictable offence or confiscation related evidence;

(i)power to muster, hold and inspect any animal the officer reasonably suspects may be evidence of the commission of the unlawful activity or confiscation related evidence;

(j)power to photograph anything the officer reasonably suspects may be evidence of the commission of the unlawful activity or confiscation related evidence;

(k)power to remove wall or ceiling linings or floors of a building, or panels of a vehicle, to search for evidence of the commission of the unlawful activity or confiscation related evidence.

(2)Also, an authorised commission officer has the following powers if authorised under a search warrant (also search warrant powers)—

(a)power to search anyone found at the relevant place for anything sought under the warrant that can be concealed on the person;

(b)power to do whichever of the following is authorised—

(i)to search anyone or anything in or on or about to board, or be put in or on, a vehicle;

(ii)to take a vehicle to, and search for evidence of the commission of the unlawful activity that may be concealed in a vehicle at, a place with appropriate facilities for searching the vehicle.

(3)Power to do anything at the relevant place that may cause structural damage to a building may be exercised only if the warrant—

(a)authorises the exercise of the power; and

(b)is issued by a Supreme Court judge.

(4)In this section—

qualifying offence, for a search warrant, means the qualifying offence, or suspected qualifying offence, to which the warrant relates.

unlawful activity, for a search warrant, means the major crime or corruption to which the warrant relates.

s 92 amd 2002 No. 68 s 294; 2013 No. 21 s 9; 2014 No. 21 s 94 (1) sch 1

93Copy of search warrant to be given to occupier

(1)If a commission officer executes a search warrant for a place that is occupied, the officer must—

(a)if the occupier of the place is present—give to the occupier a copy of the warrant and a statement summarising the person’s rights and obligations under the warrant; or

(b)if the occupier is not present—leave the copy in a conspicuous place.

(2)However, if the search warrant is a confidential document and the occupier is not present, the officer—

(a)is not required to comply with subsection (1)(b); and

(b)must give to the occupier a copy of the warrant and a statement summarising the person’s rights and obligations under the warrant as soon as practicable after executing the warrant.

(3)If the officer reasonably suspects giving the person the copy may frustrate or otherwise hinder the investigation or another investigation, the officer may delay complying with subsection (1), but only for so long as—

(a)the officer continues to have the reasonable suspicion; and

(b)that officer or another officer involved in the investigation remains in the vicinity of the place to keep the place under observation.

94Limitation on search warrant powers for corruption investigations

(1)This section applies if—

(a)an authorised commission officer who is exercising search warrant powers for a corruption investigation wishes to inspect, photograph or seize a document or thing under the warrant; and

(b)a person who is entitled to claim the privilege claims the document or thing is subject to privilege.

(2)The authorised commission officer must consider the claim and may withdraw the requirement in relation to which the claim is made or advise the person that the person may apply to, or be required to attend before, the Supreme Court to establish the claim under section 196.

(3)If the commission officer does not withdraw the requirement, section 81 applies.

(4)In this section—

privilege does not include privilege on the ground of confidentiality.

s 94 amd 2002 No. 68 s 283 sch 3; 2014 No. 21 s 94 (1) sch 1

95Application of part

This part applies only for a crime investigation.

96Search to prevent loss of evidence

(1)This section applies if an authorised commission officer reasonably suspects—

(a)a thing at or about a place, or in the possession of a person at or about a place, is evidence of the commission of major crime being investigated by the commission; and

(b)unless the place is immediately entered and searched—

(i)the evidence may be concealed or destroyed; or

(ii)the forensic value of the evidence may be diminished.

(2)An authorised commission officer may enter the place and exercise search warrant powers, other than power to do something that may cause structural damage to a building, at the place as if they were conferred under a search warrant.

97Post-search approval

(1)As soon as reasonably practicable after exercising powers under section 96, the authorised commission officer must apply to a magistrate in writing for an order approving the search (post-search approval order).

(2)The application must be sworn and state the grounds on which it is sought.

(3)The applicant need not appear at the consideration of the application, unless the magistrate otherwise requires.

(4)The magistrate may refuse to consider the application until the authorised commission officer gives the magistrate all the information the magistrate requires about the application in the way the magistrate requires.

Example—

The magistrate may require additional information supporting the application to be given by statutory declaration.

98Making of post-search approval order

(1)The magistrate may make a post-search approval order only if satisfied the search was conducted in the context of a crime investigation and either of the following apply—

(a)in the circumstances existing before the search, there were grounds for the authorised commission officer to reasonably suspect—

(i)a thing at or about the place, or in the possession of a person at or about the place, was evidence of the commission of major crime being investigated by the commission; and

(ii)unless the place was immediately entered and searched—

(A)the evidence may have been concealed or destroyed; or

(B)the forensic value of the evidence may have been diminished;

(b)having regard to the nature of the evidence found during the search, it is in the public interest to make the order.

(2)The magistrate may also make an order under section 118 or 119, whether or not a post-search approval order is made.

99Appeal

(1)Within 28 days after either of the following happens, the authorised commission officer may appeal against the order to the Supreme Court—

(a)a magistrate refuses to make a post-search approval order;

(b)a magistrate makes an order under section 98(2).

(2)If the authorised commission officer appeals, the officer must retain any thing seized until the appeal is decided.

(3)The court may make an order under section 118 or 119, whether or not the appeal is upheld.

100General provisions about searches of persons

(1)An authorised commission officer lawfully searching a person under this Act must—

(a)ensure, as far as reasonably practicable, the way the person is searched causes minimal embarrassment to the person; and

(b)take reasonable care to protect the person’s dignity; and

(c)unless an immediate and more thorough search of the person is necessary, restrict a search of the person in public to an examination of outer clothing; and

(d)if a more thorough search of the person is necessary but does not have to be conducted immediately, conduct a more thorough search of the person out of public view, for example, in a room of a shop or, if a police station is nearby, in the police station.

Example for paragraph (c)—

A more thorough search may be immediately necessary because the officer reasonably suspects the person to be searched may have a bomb strapped to his or her body or has a concealed firearm or knife.

(2)Unless an immediate search is necessary, the person conducting the search must be either—

(a)an authorised commission officer of the same sex as the person to be searched; or

(b)if there is no authorised commission officer of the same sex available to search the person, someone acting at the direction of an authorised commission officer and of the same sex as the person to be searched; or

(c)a doctor acting at the direction of an authorised commission officer.

Example—

An immediate search by a person of the opposite sex may be necessary because the person searched has a concealed firearm or knife.

101Taking a person to another place for search

(1)If it is impracticable to search for a thing that may be concealed on a person where the person is, the authorised commission officer may take the person to a place with adequate facilities for conducting the search.

Example—

To search a person out of public view and cause minimal embarrassment to the person, a person in a casino may be taken to another room in the casino.

(2)Before taking a person to another place for a search because it is impracticable to search for a thing that may be concealed on the person where the person is, the authorised commission officer must consider the following—

(a)whether the thing sought may be concealed on the person;

(b)whether, for an effective search, the search should be conducted somewhere else;

(c)the need to protect the dignity of the person.

102Limitation on period of detention for search

An authorised commission officer who detains a person for a search must not detain the person any longer than is reasonably necessary for the purpose.

103Dealing with persons who obstruct search of person

(1)If a person (the obstructing person) obstructs an authorised commission officer conducting a lawful search of the obstructing person or another person, an authorised commission officer must, if reasonably practicable—

(a)warn the obstructing person it is an offence to obstruct an authorised commission officer in the performance of the officer’s duties; and

(b)give the obstructing person a reasonable opportunity to stop obstructing the search.

(2)It may not be reasonably practicable for an authorised commission officer to comply with subsection (1) if, for example—

(a)there is an immediate or sudden need to use force because, for example, the person is struggling with an authorised commission officer; or

(b)there is a reasonable expectation that, if warned, the person may immediately dispose of, or destroy, evidence; or

(c)an immediate search is necessary to protect the safety of any person.

104Application of division

This division applies only for a crime investigation.

105Removal of clothing for search

An authorised commission officer conducting the search of a person under this Act may require a person to remove all items of clothing or all items of outer clothing from—

(a)if the person is a female—the upper or lower part of the body; or

(b)if the person is a male—the lower part of the body.

106Protecting the dignity of persons during search

(1)If reasonably practicable—

(a)the authorised commission officer must, before conducting the search—

(i)tell the person he or she will be required to remove clothing during the search; and

(ii)tell the person why it is necessary to remove the clothing; and

(iii)ask for the person’s cooperation; and

(b)the person must be given the opportunity to remain partly clothed during the search, for example, by allowing the person to dress his or her upper body before being required to remove items of clothing from the lower part of the body.

(2)The search must be conducted in a way providing reasonable privacy for the person.

Example for subsection (2)—

Reasonable privacy may be provided by conducting the search in a way that ensures, as far as reasonably practicable, the person being searched can not be seen by anyone of the opposite sex and by anyone who does not need to be present.

(3)Also, the search must be conducted as quickly as reasonably practicable and the person searched must be allowed to dress as soon as the search is finished.

(4)A regulation may prescribe other requirements and procedures for ensuring the effective carrying out of the search.

107Special requirements for searching children and persons with impaired capacity

(1)If a person to be searched is a child, or a person with impaired capacity, who may not be able to understand the purpose of the search, the authorised commission officer must conduct the search in the presence of a support person.

(2)However, the officer may search the person in the absence of a support person if the officer reasonably suspects—

(a)delaying the search is likely to result in evidence being concealed or destroyed; or

(b)an immediate search is necessary to protect the safety of a person.

108If video cameras monitor place where person is searched

(1)If a video camera monitors the area where the person is searched, the authorised commission officer must, unless the person viewing the monitor is an authorised commission officer of the same sex as the person being searched—

(a)ensure the camera is turned off; or

(b)conduct the search out of view of the camera.

(2)If the video camera is not turned off, a recording of the search must not be shown to anyone other than—

(a)the person searched or his or her lawyer; or

(b)a doctor treating the person searched; or

(c)a person deciding if a proceeding is to be started against the person for an offence; or

(d)an authorised commission officer investigating an offence involving the person; or

(e)an authorised commission officer, police officer, lawyer, public prosecutor or witness involved in a proceeding against the person; or

(f)a court.

109Definitions for pt 5

In this part—

court includes QCAT exercising its jurisdiction under this Act.

s 109 def court amd 2009 No. 48 s 134

prosecution includes starting a disciplinary proceeding for corrupt conduct before QCAT.

s 109 def prosecution sub 2009 No. 24 s 1401

s 109 amd 2014 No. 21 s 94 (1) sch 1

110General power to seize evidence—crime investigation

(1)This section applies if a commission officer conducting a crime investigation lawfully enters a place, or is at a public place, and finds at the place a thing the officer reasonably suspects is evidence of the commission of major crime that the commission is investigating.

(2)The officer may seize the thing, whether or not as evidence under a warrant and, if the place is entered under a warrant, whether or not the warrant was issued for the major crime.

(3)Also, the officer may—

(a)photograph the thing seized or the place from which the thing was seized; and

(b)stay at the place and re-enter it for the time reasonably necessary to remove the thing from the place.

(4)If the thing is seized at a place entered under a covert search warrant, section 117 applies as if the thing had been seized under the warrant.

(5)Otherwise, sections 113 to 115 apply as if the thing had been seized under a warrant under part 2.

110AGeneral power to seize evidence—confiscation related investigation

(1)This section applies if a commission officer conducting a confiscation related investigation who lawfully enters a place under a search warrant—

(a)finds at the place a thing the officer reasonably suspects is—

(i)confiscation related evidence for any confiscation related investigation being conducted by the commission; or

(ii)admissible evidence of an indictable offence against the law of the Commonwealth or of any State; and

Note—

Subparagraph (ii) deals with the possibility that other evidence of offences may be found at the place even though entry is made for the purpose of finding confiscation related evidence.

(b)reasonably believes that it is necessary to seize the thing—

(i)to prevent its loss, destruction, mutilation or concealment; or

(ii)to prevent its use for a confiscation related activity or for committing an offence of a kind mentioned in paragraph (a).

(2)The officer may seize the thing.

(3)However, if a person who is entitled to claim the privilege claims the document or thing is subject to privilege, the commission officer must consider the claim and may—

(a)withdraw the requirement in relation to which the claim is made; or

(b)advise the person that the person may apply to, or be required to attend before, the Supreme Court to establish the claim under section 195B.

(4)If a claim of privilege is made and the commission officer does not withdraw the requirement, section 78C applies.

(5)In this section—

privilege does not include privilege on the ground of confidentiality.

s 110A ins 2002 No. 68 s 295

amd 2013 No. 21 s 10

111General power to seize evidence—corruption investigation

(1)This section applies if a commission officer conducting a corruption investigation who lawfully enters a place under a search warrant—

(a)finds at the place a thing the officer reasonably suspects is admissible evidence of an indictable offence against the law of the Commonwealth or of any State; and

(b)reasonably believes that it is necessary to seize the thing—

(i)to prevent its loss, destruction, mutilation or concealment; or

(ii)to prevent its use for committing an offence of a kind mentioned in paragraph (a).

(2)The officer may seize the thing.

(3)However, if a person who is entitled to claim the privilege claims the document or thing is subject to privilege, the authorised commission officer must consider the claim and may—

(a)withdraw the requirement in relation to which the claim is made; or

(b)advise the person that the person may apply to, or be required to attend before, the Supreme Court to establish the claim under section 196.

(4)If a claim of privilege is made and the commission officer does not withdraw the requirement, section 81 applies.

(5)In this section—

privilege does not include privilege on the ground of confidentiality.

s 111 amd 2002 No. 68 s 283 sch 3; 2014 No. 21 s 94 (1) sch 1

112Receipt for seized property

(1)If a commission officer seizes anything under this chapter, other than under a covert search warrant, the officer must, as soon as is reasonably practicable after seizing the thing—

(a)if the person from whom it is seized is present—give to the person a receipt for the thing; or

(b)otherwise—leave a receipt for the thing in a conspicuous place.

(2)The receipt must describe the thing seized and include any other information required under a regulation.

(3)However, if the officer reasonably suspects giving the person the receipt may frustrate or otherwise hinder the investigation or another investigation, the officer may delay complying with subsection (1), but only for so long as—

(a)the officer continues to have the reasonable suspicion; and

(b)the officer or another officer involved in the investigation remains in the vicinity of the place to keep it under observation.

(4)Also, this section does not apply if the officer reasonably believes there is no-one apparently in possession of the thing or the thing has been abandoned.

(5)The officer must ensure the details of the search and anything seized are recorded in the warrants register.

113Application for order in relation to seized things

(1)Within 30 days after a commission officer seizes anything under this chapter (other than section 165), the officer must apply to a magistrate for an order under section 114 about the thing seized, unless—

(a)a proceeding has been started in which the thing may be relevant; or

(b)consent to the continued keeping of the thing has been given by the owner or the person who had lawful possession of the thing before it was seized; or

(c)it is destroyed or dealt with under the authority of another Act; or

(d)an order has been made about the thing under section 156(4).

(2)The commission officer must also make an application to a magistrate for an order under section 114 about the thing seized within 30 days after either of the following happens—

(a)a proceeding started about the thing is discontinued without any order being made in relation to the thing;

(b)the consent of the owner of the thing or the person who had lawful possession of the thing before it was seized is withdrawn.

(3)An application under subsection (1) or (2) must be accompanied by any warrant under which the thing is seized, with a record on it under section 339.

s 113 amd 2002 No. 68 s 283 sch 3

114Orders magistrate may make in relation to seized thing

The magistrate may, in relation to the seized thing, order—

(a)that it be kept in the possession of the commission or another law enforcement agency—

(i)until the end of any investigation in relation to which the thing may be relevant and for a reasonable time afterwards to enable the commission to decide whether a charge is to be laid; or

(ii)until the end of any proceeding in which the thing may be relevant; or

(iii)until the end of any appeal against a decision in a proceeding in which the thing is relevant; or

(b)that it be returned, or photographed and returned, to its owner or the person who had lawful possession of it before it was seized on condition that the owner or person undertakes to produce it before a court in any later proceeding involving the thing; or

(c)that it be returned to the person who the magistrate believes is lawfully entitled to possess it; or

(d)if the person entitled to possess the thing is unknown, that the thing be disposed of; or

(e)that it be disposed of or destroyed; or

(f)that it be dealt with by way of a proceeding under section 118 or 119; or

(g)that it be dealt with by way of proceeding under the Justices Act 1886, section 39; or

(h)that it be disposed of or destroyed in the way the magistrate orders.

115Disposal of seized things at end of proceeding

(1)At the end of a proceeding, a court may make any of the following orders in relation to a thing seized—

(a)an order for the return, forfeiture, destruction or disposal of the thing;

(b)an order that the thing be dealt with by way of a proceeding under the Justices Act 1886, section 39;

(c)an order that the commission retain the thing until it is dealt with according to law.

(2)A thing that is forfeited under an order under this Act becomes the property of the State.

116Right to inspect seized documents

(1)Unless a justice otherwise orders, the commission, or another law enforcement agency in whose possession it is, must allow a person who would be entitled to a document in the possession of the commission or an agency—

(a)to inspect it at any reasonable time and from time to time; and

(b)to take extracts from or make copies of it.

(2)The commission or the other law enforcement agency may refuse to comply with subsection (1) if the commission or agency reasonably suspects complying with the subsection will enable the person to repeat or continue an offence of which the document is evidence or to commit another offence.

117Return of seized things

The commission, or another law enforcement agency in whose possession it is, must return a seized thing in the possession of the commission or agency to its owner—

(a)if the thing is required as evidence for a prosecution and subject to any order made by a court—at the end of the prosecution and any appeal from the prosecution; or

(b)immediately the commission or agency stops being satisfied its retention as evidence is necessary.

118Application by owner etc. for return of things

(1)This section applies to a thing that has been in the possession of the commission for at least 30 days.

(2)A person who claims to have a legal or equitable interest in the thing may apply to a magistrate for an order that the thing be delivered to the person.

(3)The person must give each of the following a copy of the application and notice of the day, time and place fixed for hearing the application—

(a)the chairperson;

(b)anyone else the person reasonably believes has a legal or equitable interest in the thing.

(4)The magistrate may order that the thing be delivered to a person on any conditions the magistrate considers appropriate if satisfied—

(a)the person may lawfully possess the thing; and

(b)it is appropriate that the thing be delivered to the person.

(5)However, the magistrate must not order the delivery of a thing to the person if the magistrate is reasonably satisfied the thing—

(a)may be evidence in a proceeding started in relation to the thing; or

(b)is a thing used in or for manufacturing a dangerous drug; or

(c)may be subject to a forfeiture proceeding, including a forfeiture proceeding relating to an interstate serious offence under the Confiscation Act.

s 118 amd 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

119Application by commission officer for order if ownership dispute

(1)This section applies if there is a question about the ownership of a thing that has been in the possession of the commission for at least 30 days.

(2)A commission officer may apply to a magistrate for an order declaring who is the owner of the thing.

(3)The officer must give anyone the officer reasonably believes has a legal or equitable interest in the thing a copy of the application and notice of the day, time and place fixed for hearing the application.

(4)The magistrate may make the order the magistrate considers appropriate.

(5)If the magistrate can not decide who owns the thing, the magistrate may make the orders the magistrate considers appropriate for the disposal of the thing.

ch 3 pt 5A hdg ins 2002 No. 68 s 296

ch 3 pt 5A div 1 hdg ins 2002 No. 68 s 296

119AMeaning of financial institution

In this part—

financial institution includes—

(a)a corporation that is (or that, if it had been incorporated in Australia, would be) a financial corporation within the meaning of the Commonwealth Constitution, section 51(xx); and

(b)another entity that permits persons to deposit money with it for use by, or at the direction of, the persons for gaming or betting.

s 119A ins 2002 No. 68 s 296

119BApplication of pt 5A

This part applies only for the purposes of enhancing the commission’s powers under the Confiscation Act.

s 119B ins 2002 No. 68 s 296

amd 2009 No. 48 s 135

ch 3 pt 5A div 2 hdg ins 2002 No. 68 s 296

119CMonitoring order applications

(1)An authorised commission officer may apply to a Supreme Court judge for an order (monitoring order) directing a financial institution to give information to a commission officer about a named person.

(2)The application—

(a)may be made without notice to any party; and

(b)must—

(i)be sworn and state the grounds on which the order is sought; and

(ii)include information required under a regulation about any monitoring orders issued within the previous year in relation to an account held with the financial institution by the named person.

(3)Subsection (2)(b) applies only to—

(a)information kept in a register that the authorised commission officer may inspect; and

(b)information the authorised commission officer otherwise actually knows.

(4)The judge may refuse to consider the application until the authorised commission officer gives the judge all the information the judge requires about the application in the way the judge requires.

Example—

The judge may require additional information supporting the application to be given by statutory declaration.

119C ins 2002 No. 68 s 296

119DMaking of monitoring order

The Supreme Court judge may make the monitoring order only if satisfied there are reasonable grounds for suspecting that the person named in the application—

(a)has been, or is about to be, involved in a serious crime related activity; or

(b)has acquired directly or indirectly, or is about to acquire directly or indirectly, serious crime derived property.

s 119D ins 2002 No. 68 s 296

119EWhat monitoring order must state

(1)The monitoring order must order a financial institution to give information obtained by the institution about transactions conducted through an account held by the named person with the institution and state—

(a)the name or names in which the account is believed to be held; and

(b)the type of information the institution is required to give; and

(c)the period, of not more than 3 months from the date of its making, the order is in force; and

(d)that the order applies to transactions conducted during the period stated in the order; and

(e)that the information is to be given to any commission officer or to a stated commission officer and the way in which the information is to be given.

(2)In this section—

transaction conducted through an account includes—

(a)the making of a fixed term deposit; and

(b)in relation to a fixed term deposit—the transfer of the amount deposited, or any part of it, at the end of the term.

s 119E ins 2002 No. 68 s 296

119FWhen period stated in monitoring order starts

A monitoring order has effect from the start of the day notice of the order is given to the financial institution.

s 119F ins 2002 No. 68 s 296

119GOffence to contravene monitoring order

A financial institution that has been given notice of a monitoring order must not knowingly—

(a)contravene the order; or

(b)provide false or misleading information in purported compliance with the order.

Maximum penalty—1,000 penalty units.

s 119G ins 2002 No. 68 s 296

119HExistence and operation of monitoring order not to be disclosed

(1)A financial institution that is or has been subject to a monitoring order must not disclose the existence or the operation of the order to any person other than—

(a)a commission officer; or

(b)an officer or agent of the institution (an institution officer), for ensuring the order is complied with; or

(c)a lawyer, for obtaining legal advice or representation in relation to the order.

(2)A person to whom the existence or operation of a monitoring order has been disclosed, whether under subsection (1) or under the provision as originally made or remade or otherwise, must not—

(a)while the person is a commission officer, institution officer or lawyer, disclose the existence or operation of the order other than to another person to whom it may be disclosed under subsection (1) but only for—

(i)if the person is a commission officer—performing the person’s duties; or

(ii)if the person is an institution officer—ensuring the order is complied with or obtaining legal advice or representation in relation to the order; or

(iii)if the person is a lawyer—giving legal advice or making representations in relation to the order; or

(b)when the person is no longer a commission officer, institution officer or lawyer, make a record of, or disclose, the existence or the operation of the order in any circumstances.

(3)Subsection (2) does not prevent a commission officer disclosing the existence or operation of a monitoring order—

(a)for, or in relation to, a legal proceeding; or

(b)in a proceeding before a court.

(4)A commission officer can not be required to disclose to any court the existence or operation of a monitoring order.

(5)A person who contravenes subsection (1) or (2) commits a crime.

Maximum penalty—350 penalty units or 7 years imprisonment.

(6)A reference in this section to disclosing the existence or operation of a monitoring order to a person includes a reference to disclosing information to the person from which the person could reasonably be expected to infer the existence or operation of the monitoring order.

(7)In this section—

officer, of a financial institution, means—

(a)a secretary, executive officer or employee of the financial institution; or

(b)anyone who, under the Confiscation Act, is a director of the financial institution.

s 119H ins 2002 No. 68 s 296

ch 3 pt 5A div 3 hdg ins 2002 No. 68 s 296

119ISuspension order application

(1)An authorised commission officer may apply to a Supreme Court judge for an order (suspension order) directing a financial institution to give information to a commission officer about a named person.

(2)The application—

(a)may be made without notice to any person; and

(b)must—

(i)be sworn and state the grounds on which the order is sought; and

(ii)include information required under a regulation about any suspension orders issued within the previous year in relation to an account held with the financial institution by the named person.

(3)Subsection (2)(b)(ii) applies only to—

(a)information kept in a register that the authorised commission officer may inspect; and

(b)information the authorised commission officer otherwise actually knows.

(4)The judge may refuse to consider the application until the authorised commission officer gives the judge all the information the judge requires about the application in the way the judge requires.

Example—

The judge may require additional information supporting the application to be given by statutory declaration.

s 119I ins 2002 No. 68 s 296

119JMaking of suspension order

The Supreme Court judge may make the suspension order only if satisfied there are reasonable grounds for suspecting that the person named in the application—

(a)has been, or is about to be, involved in a serious crime related activity; or

(b)has acquired directly or indirectly, or is about to acquire directly or indirectly, serious crime derived property.

s 119J ins 2002 No. 68 s 296

119KWhat suspension order must state

(1)The suspension order must order a financial institution—

(a)to notify a commission officer immediately of any transaction that has been initiated in connection with an account held with the institution by a person named in the order; and

(b)to notify a commission officer immediately if there are reasonable grounds for suspecting that a transaction is about to be initiated in connection with the account; and

(c)to refrain from completing or effecting the transaction for 48 hours, unless a named commission officer gives the financial institution written consent to the transaction being completed immediately.

(2)In addition, the suspension order must state—

(a)the name or names in which the account is believed to be held; and

(b)the type of information the institution is required to give; and

(c)the period, of not more than 3 months from the date of its making, the order is in force; and

(d)that the order applies to transactions conducted during the period stated in the order; and

(e)that the information is to be given to any commission officer or to a stated commission officer and the way in which the information is to be given.

s 119K ins 2002 No. 68 s 296

amd 2009 No. 48 s 136

119LWhen period stated in suspension order starts

A suspension order has effect from the time notice of the order is given to the financial institution.

s 119L ins 2002 No. 68 s 296

119MContravention of suspension order

A financial institution that has been given notice of a suspension order must not knowingly—

(a)contravene the order; or

(b)provide false or misleading information in purported compliance with the order.

Maximum penalty—1,000 penalty units.

s 119M ins 2002 No. 68 s 296

119NExistence and operation of suspension order not to be disclosed

(1)A financial institution that is or has been subject to a suspension order must not disclose the existence or the operation of the order to any person other than—

(a)a commission officer; or

(b)an officer or agent of the institution (an institution officer), for ensuring the order is complied with; or

(c)a lawyer, for obtaining legal advice or representation in relation to the order.

(2)A person to whom the existence or operation of a suspension order has been disclosed, whether under subsection (1) or under the provision as originally made or remade or otherwise, must not—

(a)while the person is a commission officer, institution officer or lawyer, disclose the existence or operation of the order other than to another person to whom it may be disclosed under subsection (1) but only for—

(i)if the person is a commission officer—performing the person’s duties; or

(ii)if the person is an institution officer—ensuring the order is complied with or obtaining legal advice or representation in relation to the order; or

(iii)if the person is a lawyer—giving legal advice or making representations in relation to the order; or

(b)when the person is no longer a commission officer, institution officer or lawyer, make a record of, or disclose, the existence or the operation of the order in any circumstances.

(3)Subsection (2) does not prevent a commission officer disclosing the existence or operation of a suspension order—

(a)for, or in relation to, a legal proceeding; or

(b)in a proceeding before a court.

(4)A commission officer can not be required to disclose to any court the existence or operation of a suspension order.

(5)A person who contravenes subsection (1) or (2) commits a crime.

Maximum penalty—350 penalty units or 7 years imprisonment.

(6)A reference in this section to disclosing the existence or operation of a suspension order to a person includes a reference to disclosing information to the person from which the person could reasonably be expected to infer the existence or operation of the suspension order.

(7)In this section—

officer, of a financial institution, means—

(a)a secretary, executive officer or employee of the financial institution; or

(b)anyone who, under the Confiscation Act, is a director of the financial institution.

s 119N ins 2002 No. 68 s 296

ch 3 pt 6 div 1 hdg sub 2009 No. 13 s 213 sch 5

120Public Records Act 2002 does not apply to divs 2–3

The Public Records Act 2002 does not apply to activities or records under divisions 2 and 3.

s 120 amd 2002 No. 68 s 283 sch 3; 2005 No. 45 s 67 sch 3

sub 2009 No. 13 s 213 sch 5

121Surveillance warrant applications

(1)This section applies if the chairperson reasonably believes a person has been, is, or is likely to be, involved in corruption being investigated by the commission.

(2)An authorised commission officer may, with the chairperson’s approval, apply to a Supreme Court judge for a warrant (surveillance warrant) authorising the use of a surveillance device.

(3)For subsection (2), an authorised commission officer who is a police officer must be of at least the rank of inspector.

(4)The application must—

(a)be sworn and state the grounds on which the warrant is sought; and

(b)fully disclose all matters, of which the authorised commission officer is aware, both favourable and adverse to the issuing of the warrant sought; and

(c)include information stated under a regulation about any warrants issued within the previous year in relation to the person or the place specified in the application.

(5)The place specified in the application (the relevant place) may be a public place and may be described by reference to a class of place.

(6)Subsection (4)(c) only applies to—

(a)information kept in a register that the officer may inspect; and

(b)information the officer otherwise actually knows.

(7)The applicant must advise the public interest monitor of the application under arrangements decided by the monitor.

(8)The judge may refuse to consider the application until the applicant gives the judge all the information the judge requires about the application in the way the judge requires.

Example—

The judge may require additional information supporting the application to be given by statutory declaration.

s 121 amd 2004 No. 8 s 5; 2005 No. 45 s 67 sch 3; 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)–(2)

122Who may be present at consideration of application for surveillance warrant

(1)The judge must hear an application for a surveillance warrant in the absence of anyone other than the following—

(a)the applicant;

(b)a monitor;

(c)someone the judge permits to be present;

(d)a lawyer representing anyone mentioned in paragraphs (a) to (c).

(2)Also, the judge must hear the application—

(a)in the absence of the person proposed to be placed under surveillance (the relevant person) or anyone likely to inform the relevant person of the application; and

(b)without the relevant person having been informed of the application.

123Consideration of application for surveillance warrant

Before deciding an application for a surveillance warrant, the judge must, in particular, and being mindful of the highly intrusive nature of using a surveillance device, consider the following—

(a)the nature and seriousness of the corruption;

(b)the likely extent of interference with the privacy of—

(i)the relevant person; or

(ii)any other occupant of the relevant place;

if the warrant is issued;

(c)the extent to which issuing the warrant would help prevent, detect, or provide evidence of the commission of, the corruption;

(d)the benefits derived from the issue of any previous surveillance warrants in relation to the relevant person or the relevant place;

(e)the extent to which officers investigating the corruption have used or can use conventional ways of investigation;

(f)how much the use of conventional ways of investigation would be likely to help in the investigation of the corruption;

(g)how much the use of conventional ways of investigation would prejudice the investigation of the corruption because of delay or for another reason;

(h)any submissions made by a monitor.

s 123 amd 2004 No. 8 s 6; 2005 No. 45 s 67 sch 3; 2014 No. 21 s 94 (1) sch 1

124Issue of surveillance warrant

(1)After considering the application, the judge may issue a surveillance warrant for a period of not more than 30 days if satisfied there are reasonable grounds for believing—

(a)the relevant person has been, is, or is likely to be, involved in the corruption and is likely to be at the relevant place; or

(b)evidence of the corruption is likely to be obtained using a surveillance device at the relevant place.

(2)The judge may issue a surveillance warrant authorising the use of a surveillance device in the office of a practising lawyer only if the application for the warrant relates to the lawyer’s involvement in corruption.

(3)The judge may impose any conditions on the warrant that the judge considers are necessary in the public interest including, but not limited to—

(a)a condition requiring regular reporting to a judge on activities under the warrant; and

(b)a condition requiring that, if a listening device is to be used in a public place or class of place, the officer, before installing or using the device, must have a reasonable belief that the relevant person is or will be in the place where the device is to be used.

Example for subsection (3)(b)—

The warrant may be issued for any motel in a stated area because the officer may have a reasonable belief that the relevant person may be in a motel in the area but not know in advance which one. The condition may be that the device may only be installed if the officer reasonably believes the person is likely to be in the place.

s 124 amd 2004 No. 8 s 7; 2005 No. 45 s 67 sch 3; 2009 No. 48 s 137; 2014 No. 21 s 94 (1) sch 1

125What surveillance warrant must state

A surveillance warrant must state the following—

(a)that a commission officer or any commission officer may exercise surveillance powers under the warrant;

(b)the name of the relevant person, if known;

(c)the place or class of place where the surveillance device authorised under the warrant may be used;

(d)any conditions the judge imposes under section 124(3);

(e)the day and time the warrant starts and when the warrant ends.

s 125 amd 2002 No. 68 s 283 sch 3; 2005 No. 45 s 67 sch 3

126Report on use of surveillance devices

(1)This section applies if, because of a condition of a surveillance warrant, a commission officer gives to a judge a report on activities under the warrant.

(2)The judge may, after considering the report, require the destruction of any recording made that is not related to the corruption mentioned in the warrant, unless the recording relates to the investigation by the commission of other corruption.

s 126 amd 2005 No. 45 s 67 sch 3; 2014 No. 21 s 94 (1) sch 1

127Duration and extension of surveillance warrants

(1)A surveillance warrant is in force until the earlier of the following—

(a)the day stated in the warrant;

(b)the day the investigation under the warrant ends.

(2)However, despite the investigation ending, the warrant continues in force until the day stated in the warrant if, as a result of using the surveillance device, evidence is gained of other corruption.

(3)The warrant may be extended from time to time on application and the provisions of this division for an application for a warrant apply to an application for an extension, with necessary changes.

(4)Despite the ending of the warrant under subsection (1) or (2), the commission officer may continue to exercise powers under the warrant, but only to the extent necessary to remove the surveillance device to which the warrant relates.

s 127 amd 2005 No. 45 s 67 sch 3; 2014 No. 21 s 94 (1) sch 1

128Power under surveillance warrants

A commission officer to whom a surveillance warrant is directed may, subject to the warrant, lawfully exercise any of the following powers under the warrant (surveillance powers)—

(a)power to enter a stated place or class of place, covertly or through subterfuge, to install a surveillance device;

(b)power to install and use a surveillance device to intercept and record private conversations;

(c)power to remove a thing to another place to install a surveillance device in the thing;

(d)power to use an assistant to translate or interpret conversations intercepted under the warrant;

(e)power to take electricity for using a surveillance device;

(f)power to use reasonable force—

(i)to enter a place to install a surveillance device; or

(ii)to install a surveillance device;

(g)power to use 1 or more surveillance devices in the same place;

(h)power to pass through, over, under or along a place to get to the place where the surveillance device is to be used.

s 128 amd 2005 No. 45 s 67 sch 3

ch 3 pt 6 div 3 hdg prev div 3 hdg om 2005 No. 45 s 67 sch 3

pres div 3 hdg (prev div 5 hdg) renum 2005 No. 45 s 67 sch 3

129Restriction about records and access to surveillance warrant applications etc.

(1)This section applies to the following (relevant proceeding)—

(a)an application to a Supreme Court judge for—

(i)a surveillance warrant; or

(ii)the extension of a surveillance warrant;

(b)an order made under an application mentioned in paragraph (a).

(2)Despite the Recording of Evidence Act 1962, a transcript of a relevant proceeding must not be made.

(3)Also, no record of the application or of any order made in a relevant proceeding is to be available for search by any person, except by direction of a Supreme Court judge.

(4)A person must not publish a report of a relevant proceeding.

Maximum penalty—85 penalty units or 1 year’s imprisonment.

(5)A person is not entitled to search information in the custody of a court in relation to a relevant proceeding, unless a Supreme Court judge otherwise orders in the interests of justice.

(6)Nothing in this section prevents a person who was present at a relevant proceeding from giving oral evidence to a court about things that happened at the proceeding.

s 129 prev s 129 om 2005 No. 45 s 67 sch 3

pres s 129 (prev s 144) amd 2005 No. 45 s 67 sch 3

renum 2005 No. 45 s 67 sch 3

130Disclosure of information obtained using surveillance warrant

(1)This section applies to information that has not been disclosed in a proceeding in open court and was obtained by using a surveillance warrant (the relevant information).

(2)A commission officer who obtained relevant information must not disclose the information to someone other than—

(a)the judge who issued the warrant; or

(b)a judge hearing an application for—

(i)an extension of the warrant; or

(ii)a warrant in relation to the same or a different person; or

(c)a court taking evidence about a charge of an offence in which the relevant information is evidence; or

(d)QCAT hearing a matter, in the exercise of its jurisdiction under this Act, in which the relevant information is evidence; or

(e)the chairperson or a person authorised by the chairperson; or

(f)a commission officer, police officer or other law enforcement officer involved in—

(i)the investigation into the corruption for which the powers were exercised; or

(ii)an investigation of any indictable offence started because of information obtained under the warrant or linked to the offence under investigation; or

(iii)a proceeding in which the information is evidence; or

(g)a declared agency; or

(h)a public prosecutor, but only for—

(i)use in a proceeding in which the information is evidence; or

(ii)an application for an extension of the warrant; or

(iii)the issue of another surveillance warrant; or

(i)a public official, but only for taking disciplinary action; or

(j)a lawyer representing a person in a proceeding in which the information is evidence; or

(k)a monitor; or

(l)a person transcribing or making copies of recordings.

Maximum penalty—85 penalty units or 1 year’s imprisonment.

(3)In this section—

commission officer includes a former commission officer.

s 130 prev s 130 om 2005 No. 45 s 67 sch 3

pres s 130 (prev s 145) amd 2002 No. 68 s 283 sch 3; 2005 No. 45 s 67 sch 3

renum 2005 No. 45 s 67 sch 3

amd 2009 No. 48 s 138; 2014 No. 21 s 23, s 94 (1) sch 1; 2016 No. 19 s 45 (1)

131Destruction of records

(1)The commission must keep all information obtained under a surveillance warrant and transcripts of recordings or photographs made or taken under the warrant in a secure place.

(2)The commission must ensure any recording made or photograph taken under the surveillance warrant or a transcript or copy made from information obtained under the warrant is destroyed as soon as practicable after it is no longer required.

(3)Subsection (2) does not prevent information or other matter being preserved for any period or indefinitely if, in the chairperson’s opinion, it is relevant to—

(a)any offence of which someone has been convicted if there is a possibility that an issue about the conviction may arise; or

(b)an ongoing investigation.

s 131 prev s 131 om 2005 No. 45 s 67 sch 3

pres s 131 (prev s 146) renum 2005 No. 45 s 67 sch 3

amd 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (2)

ch 3 pt 6A hdg ins 2005 No. 45 s 69

amd 2014 No. 21 s 94 (1) sch 1

ch 3 pt 6A div 1 hdg ins 2005 No. 45 s 69

132Object of pt 6A

The object of this part is to ensure the effective investigation of corruption offences by—

(a)enabling particular commission officers to approve the conduct of controlled operations that may involve particular commission officers and others engaging in activities that may be unlawful as part of the investigation of a suspected corruption offence; and

(b)ensuring anything that may be approved or authorised under this part is approved or authorised only in appropriate circumstances; and

(c)ensuring, as far as practicable, only appropriately trained persons act as covert operatives under an approval under this part; and

(d)ensuring a person who may act as a covert operative under an approval under this part engages in otherwise unlawful activities only as part of the controlled operation for which the person is a covert operative; and

(e)providing appropriate protection from civil and criminal liability for persons acting in accordance with this part; and

(f)clarifying the status of evidence obtained by persons who engage in controlled operations or controlled activities under this part.

s 132 prev s 132 om 2005 No. 45 s 67 sch 3

pres s 132 ins 2005 No. 45 s 69

amd 2014 No. 21 s 94 (1) sch 1

133Investigation of minor matters not affected

The enactment of this part is not to affect the investigation of minor matters or investigative activities that, by their nature, can not be planned but involve the participation of commission officers who are police officers in activities that may be unlawful.

s 133 prev s 133 om 2005 No. 45 s 67 sch 3

pres s 133 ins 2005 No. 45 s 69

134Lawfulness of particular actions

To remove doubt, it is declared—

(a)that it is lawful for a person acting in accordance with this part—

(i)to recommend that other persons be authorised to engage in an activity that may be unlawful as part of an investigation of a suspected corruption offence; or

(ii)to authorise other persons to engage in an activity that may be unlawful as part of an investigation of a suspected corruption offence; and

(b)that it is lawful for a person acting as a covert operative under an approval under section 141, 142 or 143 to engage in activities stated in the approval that may be unlawful as part of the investigation of a suspected corruption offence; and

(c)that it is lawful for the chairperson, or a senior executive officer, acting in accordance with procedures established by the chairperson, to authorise a police officer or a commission officer to engage in a stated controlled activity for the commission; and

(d)that it is lawful for a person acting under an authority given under section 146I to engage in a controlled activity in accordance with the authority and procedures established by the commission.

s 134 prev s 134 om 2005 No. 45 s 67 sch 3

pres s 134 ins 2005 No. 45 s 69

amd 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

135Controlled operations and activities generally

(1)From the commencement of this part, a controlled operation or controlled activity in relation to a suspected corruption offence may be approved only in accordance with this part.

(2)Also, a function conferred in relation to the activities of the commission under this part is only conferred for the purpose of a function conferred on the commission relating to suspected corruption offences.

s 135 prev s 135 om 2005 No. 45 s 67 sch 3

pres s 135 ins 2005 No. 45 s 69

amd 2014 No. 21 s 94 (1) sch 1

ch 3 pt 6A div 2 hdg ins 2005 No. 45 s 69

136Declaration of controlled operations committee

The controlled operations committee established under the Police Powers and Responsibilities Act 2000 is the controlled operations committee for this part.

s 136 prev s 136 om 2005 No. 45 s 67 sch 3

pres s 136 ins 2005 No. 45 s 69

137Committee’s functions

For this part, the committee has the function to consider and make recommendations about applications referred to the committee by the chairperson for—

(a)an approval for a controlled operation; or

(b)variation of an approval for a controlled operation.

s 137 prev s 137 om 2005 No. 45 s 67 sch 3

pres s 137 ins 2005 No. 45 s 69

amd 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

138Provisions applying to committee and committee’s annual report

(1)The Police Powers and Responsibilities Act 2000, chapter 11, part 2, applies to the committee for this part as if—

(a)a reference to a controlled operation were a reference to a controlled operation under this part; and

(b)a reference to an authority for a controlled operation, or a variation of a controlled operation, were a reference to an approval or variation under this part; and

(c)a reference to an offence were a reference to a corruption offence.

(2)As soon as practicable after the end of each financial year, but within 4 months after the end of the financial year, the committee must prepare and give the chairperson of the parliamentary committee a written report on the committee’s activities under this Act.

(3)The chairperson of the parliamentary committee must table a copy of the annual report in the Legislative Assembly within 14 sitting days after receiving the report.

(4)The annual report must not contain information that—

(a)discloses or may lead to the disclosure of the identity of—

(i)any covert operative; or

(ii)any person who has been, is being, or is to be, investigated; or

(b)indicates a particular investigation has been, is being, or is to be, conducted.

s 138 prev s 138 om 2005 No. 45 s 67 sch 3

pres s 138 ins 2005 No. 45 s 69

amd 2000 No. 5 s 810 sch 4 (amd 2006 No. 26 ss 84, 86); 2014 No. 21 s 94 (1) sch 1

ch 3 pt 6A div 3 hdg ins 2005 No. 45 s 69

139Application for approval

(1)An authorised commission officer may apply to the approving officer for approval to conduct an operation under this part (controlled operation).

(2)The approving officer must be the chairperson or a senior executive officer.

(3)However, if a person to be investigated under a proposed controlled operation is or may be a police officer—

(a)the application must be made to the chairperson; and

(b)the chairperson is the approving officer for the proposed operation.

(4)The application must be written and include enough information to enable the approving officer to properly consider whether the proposed operation should be approved.

(5)In particular, the application must state the following for the proposed controlled operation—

(a)an identifying name or number;

(b)a description of the suspected corruption offence in relation to which it is proposed to conduct the operation;

(c)if a previous application relating to the same corruption offence has been made under this division, whether the application was approved or refused;

(d)the name of each person who it is intended will act as a covert operative for the operation;

(e)a precise description of each otherwise unlawful activity a covert operative who is not a commission officer may be required to engage in as part of the operation;

(f)a description of the general classes of otherwise unlawful activities a covert operative who is a commission officer may be required to engage in as part of the operation.

(6)For subsection (5)(c), an application made under the Police Powers and Responsibilities Act 2000, chapter 10, part 2, division 3 as in force at any time before the commencement of this section is taken to have been made under this division.

Editor’s note—

As previously enacted, this was a reference to the Police Powers and Responsibilities Act 2000, chapter 5 (Controlled operations and controlled activities), part 2 (Controlled operations), division 3 (Approval of controlled operations). The reference was changed by 2006 Act No. 26, sections 84 and 86.

s 139 prev s 139 om 2005 No. 45 s 67 sch 3

pres s 139 ins 2005 No. 45 s 69

amd 2000 No. 5 s 810 sch 4 (amd 2006 No. 26 ss 84, 86); 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

140Application must be referred to committee

(1)The approving officer must refer the application to the committee without deciding the application.

(2)However, if the approving officer considers the application does not have enough merit to justify referring it to the committee, the approving officer may refuse to refer the application to the committee.

(3)This section is subject to sections 141 and 142.

s 140 prev s 140 om 2005 No. 45 s 67 sch 3

pres s 140 ins 2005 No. 45 s 69

141Particular controlled operations

(1)This section applies to an application made to the chairperson under section 139(3) for approval to conduct a controlled operation.

(2)The chairperson may approve the application without referring it to the committee but, before approving the application, the chairperson must consult with the independent member and obtain the independent member’s agreement to the proposed operation.

(3)However, the chairperson may approve an application made to the chairperson in urgent circumstances without complying with subsection (2), but must consult with the independent member about the controlled operation as soon as possible after approving the application.

s 141 prev s 141 amd 2002 No. 68 s 283 sch 3

om 2005 No. 45 s 67 sch 3

pres s 141 ins 2005 No. 45 s 69

amd 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

142Procedure in urgent circumstances other than if s 141 applies

(1)This section applies to an application for approval to conduct a controlled operation made to an approving officer in urgent circumstances.

(2)However, this section does not apply if section 141 applies.

(3)The approving officer may approve the application without referring it to the committee, but must refer the application to the committee as soon as practicable after approving it.

(4)The committee may consider the application as if the approval had not been given.

(5)The approving officer must consider the committee’s recommendations on the application but is not bound by the recommendations.

s 142 prev s 142 om 2005 No. 45 s 67 sch 3

pres s 142 ins 2005 No. 45 s 69

143Consideration and approval of application

(1)After considering the committee’s recommendations on an application for approval to conduct a controlled operation, the approving officer may approve or refuse to approve the application.

(2)The approving officer must not approve an application under section 139, 141 or 142 if the approving officer considers, because of the way the proposed controlled operation is to be conducted, it is probable that any of the following will happen in the operation—

(a)injury to, or the death of, a person;

(b)serious damage to property;

(c)a serious loss of property;

(d)someone could be encouraged or induced by a covert operative to engage in criminal activity of a kind the person could not reasonably be expected to have engaged in if not encouraged or induced by the covert operative to engage in it.

(3)Also, the approving officer must not approve the application unless satisfied—

(a)the purpose of the proposed controlled operation is to gather evidence of a corruption offence; and

(b)a controlled operation represents an effective use of public resources for investigating the corruption offence; and

(c)any proposed covert operative for the operation has received appropriate training for the purpose; and

(d)if a proposed covert operative for the operation is not a commission officer, it is wholly impractical in the circumstances for a commission officer to perform the role the proposed covert operative is to perform in the operation; and

(e)the committee has recommended the controlled operation be approved.

(4)Subsection (1) and (3)(e) do not apply to the approval of a controlled operation mentioned in section 141 or 142.

s 143 prev s 143 om 2005 No. 45 s 67 sch 3

pres s 143 ins 2005 No. 45 s 69

amd 2014 No. 21 s 94 (1) sch 1

144What approval must state

(1)An approval for a controlled operation must be written and state the following—

(a)a description of the suspected corruption offence to which the controlled operation relates;

(b)the period, of not more than 6 months, for which the approval has effect;

(c)the name of each covert operative who may engage in otherwise unlawful activities for the purposes of the operation;

(d)a precise description of each otherwise unlawful activity a person who is not a commission officer may engage in while acting as a covert operative for the operation;

(e)a description of the general classes of otherwise unlawful activities a commission officer may be required to engage in while acting as a covert operative for the operation;

(f)any conditions the approving officer considers appropriate.

(2)For subsection (1)(c), it is enough to state an assumed name or code name in the approval if the actual identity of the covert operative is included in a register kept for the purpose by the chairperson.

s 144 prev s 144 om 2005 No. 45 s 67 sch 3

pres s 144 ins 2005 No. 45 s 69

amd 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

145Effect of approval

It is lawful for a person named in an approval of a controlled operation—

(a)to act as a covert operative for the controlled operation to which the approval relates; and

(b)to engage in the otherwise unlawful activity described in the approval for the purposes of the controlled operation.

s 145 prev s 145 om 2005 No. 45 s 67 sch 3

pres s 145 ins 2005 No. 45 s 69

ch 3 pt 6A div 4 hdg ins 2005 No. 45 s 69

146Application to vary approval

(1)An authorised commission officer may apply to the approving officer for a variation of an approval for a controlled operation.

(2)However, if, the chairperson was the approving officer for the controlled operation because the operation relates to a person who is or may be a police officer, the application must be made to the chairperson.

(3)The application must be written and include enough information to enable the approving officer to properly consider whether the approval should be varied and if so how it should be varied.

(4)In particular, the application must state the following for the controlled operation—

(a)the identifying name or number for the operation;

(b)a description of the suspected corruption offence in relation to which the operation was approved;

(c)if a previous application for variation of the approval for the operation has been made under this division, whether the approval was varied because of the application;

(d)if it is intended to change particulars relating to persons who are or are intended to be covert operatives, the name of each person to whom the change relates and particulars of the change sought;

(e)if it is intended to change the description of the suspected corruption offence in relation to which the operation was approved, a description of the suspected corruption offence for which approval is sought.

(5)For subsection (4)(c), an application made under the Police Powers and Responsibilities Act 2000, chapter 10, part 2, division 4 as in force at any time before the commencement of this section is taken to have been made under this division.

Editor’s note—

As previously enacted, this was a reference to the Police Powers and Responsibilities Act 2000, chapter 5 (Controlled operations and controlled activities), part 2 (Controlled operations), division 4 (Variation of approval for controlled operation). The reference was changed by 2006 Act No. 26, sections 84 and 86.

s 146 ins 2005 No. 45 s 69

amd 2000 No. 5 s 810 sch 4 (amd 2006 No. 26 ss 84, 86); 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

146AApplication must be referred to committee

(1)The approving officer must refer the application to the committee without deciding the application.

(2)However, if the approving officer considers the application does not have enough merit to justify referring it to the committee, the approving officer may refuse to refer the application to the committee.

(3)This section is subject to sections 146B and 146C.

s 146A ins 2005 No. 45 s 69

146BParticular controlled operations

(1)This section applies if an application for the variation of an approval for a controlled operation is made to the chairperson under section 146(2).

(2)The chairperson may approve the application without referring it to the committee but, before approving the application, the chairperson must consult with the independent member and obtain the independent member’s agreement to the proposed variation.

(3)However, the chairperson may approve an application made to the chairperson in urgent circumstances without complying with subsection (2), but must consult with the independent member about the variation as soon as possible after approving it.

s 146B ins 2005 No. 45 s 69

amd 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

146CProcedure in urgent circumstances other than if s 146B applies

(1)This section applies to an application for the variation of an approval for a controlled operation that is made to an approving officer in urgent circumstances.

(2)However, this section does not apply if section 146B applies.

(3)The approving officer may approve the application without referring it to the committee, but must refer the application to the committee as soon as practicable after approving it.

(4)The committee may consider the application as if the approval had not been given.

(5)The approving officer must consider the committee’s recommendations on the application but is not bound by the recommendations.

s 146C ins 2005 No. 45 s 69

146DWhen approval may be given

The approving officer must not approve the application unless reasonably satisfied the variation is necessary for the continued effective investigation of the corruption offence.

s 146D ins 2005 No. 45 s 69

amd 2014 No. 21 s 94 (1) sch 1

146EHow approval may be varied

(1)The approving officer may vary the approval but only by—

(a)extending the period of the approval from time to time by not more than 6 months at a time; or

(b)changing particulars about who may act as a covert operative under the approval; or

(c)changing particulars of the corruption offence to which the approval relates.

(2)The approval mentioned in section 145, as varied under subsection (1), has the effect mentioned in section 145.

s 146E ins 2005 No. 45 s 69

amd 2014 No. 21 s 94 (1) sch 1

ch 3 pt 6A div 6 hdg ins 2005 No. 45 s 69

146IAuthorised controlled activities

(1)This section applies if the chairperson or a senior executive officer considers it is reasonably necessary for a police officer or a commission officer to engage in conduct that—

(a)is directed to obtaining evidence of the commission of a suspected corruption offence by a police officer (relevant officer); and

(b)involves the following (a controlled activity)—

(i)a single meeting between a police officer or commission officer and the relevant officer, whether or not the meeting was the result of a written or oral communication with the person;

(ii)deliberately concealing the true purpose of the communication between the police officer or commission officer and the relevant officer;

(iii)the commission by the police officer or commission officer of otherwise unlawful activity.

(2)The chairperson or senior executive officer may, in accordance with any policy of the commission, authorise a police officer or commission officer to engage in a stated controlled activity.

(3)The authority must be written and state the controlled activity the police officer or commission officer is authorised to engage in.

(4)The person authorised to engage in the controlled activity must comply with any relevant policy of the commission.

s 146I ins 2005 No. 45 s 69

amd 2009 No. 13 s 213 sch 5; 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

ch 3 pt 6A div 7 hdg ins 2005 No. 45 s 69

146JDisclosure of information

(1)This section applies to a person to whom the existence of any of the following (relevant information) becomes known—

(a)an application for—

(i)approval of a controlled operation; or

(ii)a variation of an approval given for a controlled operation;

(b)a decision of the committee to recommend the approval of, or the variation of an approval for, a controlled operation, and the committee’s recommendation;

(c)an approval of—

(i)a controlled operation; or

(ii)a variation of an approval given for a controlled operation;

(d)information about a controlled operation;

(f)the actual identity of a covert operative.

(2)The person must not disclose relevant information, other than—

(a)for the purposes of this part; or

(b)with the approval of the commission; or

(c)to the extent—

(i)the information has generally been made known; or

(ii)it is in the public interest to disclose the information.

Maximum penalty—85 penalty units or 1 year’s imprisonment.

s 146J ins 2005 No. 45 s 69

amd 2007 No. 37 s 162 sch

146KProtection from liability

(1)This section applies to each of the following persons (a relevant person)—

(a)a member of the committee;

(b)the chairperson;

(c)a senior executive officer;

(d)a person who is or was a covert operative;

(e)a person who, as part of a controlled operation, provides a covert operative with help, including by giving the covert operative things necessary for the purposes of the controlled operation;

(f)a person who authorised a controlled activity;

(g)a person who is or was authorised under this part to engage in a controlled activity.

(2)A relevant person does not incur civil liability for an act done, or omission made, under this part.

(3)If subsection (2) prevents a civil liability attaching to the person, the liability attaches instead to the State.

(4)Also, a relevant person does not incur criminal liability for an act done, or omission made—

(a)in accordance with an approval given for a controlled operation; or

(b)in accordance with—

(i)an authority given for a controlled activity; or

(ii)the commission’s policy about controlled activities.

(5)In addition, a relevant person who is a police officer or a commission officer does not incur criminal liability for an act done, or omission made, that, because of a controlled operation, was reasonably necessary for—

(a)protecting the safety of any person; or

(b)protecting the identity of a covert operative; or

(c)taking advantage of an opportunity to gather evidence in relation to a corruption offence not mentioned in the approval.

(6)However, subsection (5) does not relieve a police officer or a commission officer from criminal liability for an act done or omission made if the act or omission results in—

(a)injury to, or the death of, a person; or

(b)serious damage to property; or

(c)a serious loss of property; or

(d)someone being encouraged or induced by a covert operative to engage in criminal activity of a kind the person could not reasonably be expected to have engaged in if not encouraged or induced by the covert operative to engage in it.

(7)This section does not limit the Police Service Administration Act 1990, section 10.5.

s 146K ins 2005 No. 45 s 69

amd 2009 No. 48 s 139; 2014 No. 21 s 24; 2016 No. 19 s 45 (1)

146LAdmissibility of evidence obtained through controlled operation

It is declared that evidence gathered because of a controlled operation or controlled activity is not inadmissible only because it was obtained by a person while engaging in an unlawful act if the unlawful act was authorised under this part.

s 146L ins 2005 No. 45 s 69

146MEvidentiary provision

(1)In a proceeding, a certificate of the chairperson stating any of the following is evidence of the things it states—

(a)at a stated time a stated person was an approving officer for this Act;

(b)at a stated time a stated person was a covert operative;

(c)on a stated day a stated person approved the conduct of a stated controlled operation or controlled activity;

(d)on a stated day a stated person varied an approval for a stated controlled operation in a stated way.

(2)For subsection (1)(b), it is enough to state an assumed name or code name in the certificate if the actual identity of the covert operative is included in a register kept for the purpose by the chairperson.

s 146M ins 2005 No. 45 s 69

amd 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

146NPowers not to be delegated

(1)Powers of an approving officer under this part may not be delegated.

(2)Also, powers of the chairperson or a senior executive officer under section 146I may not be delegated.

(3)Subsections (1) and (2) apply despite any other Act.

s 146N ins 2005 No. 45 s 69

amd 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

ch 3 pt 6B hdg ins 2006 No. 26 s 92

ch 3 pt 6B div 1 hdg ins 2006 No. 26 s 92

146OPurpose of pt 6B

The main purpose of this part is to facilitate investigations and intelligence gathering in relation to corruption offences.

s 146O ins 2006 No. 26 s 92

amd 2014 No. 21 s 94 (1) sch 1

146PHow purpose is achieved

The purpose is to be achieved primarily by providing for the lawful acquisition and use of an assumed identity.

s 146P ins 2006 No. 26 s 92

146QDefinitions for pt 6B

In this part—

acquire, an assumed identity, means acquire evidence, or take steps to acquire evidence, of the identity.

agency means—

(a)an issuing agency; or

(b)the commission.

authorised civilian means a person, other than a commission officer, who is authorised under an authority to acquire or use an assumed identity.

authorised identity officer means a commission officer who is authorised under an authority to acquire or use an assumed identity.

authorised person means—

(a)an authorised civilian; or

(b)an authorised identity officer.

authority means an authority granted under section 146T to acquire or use an assumed identity, including the authority as varied under section 146W.

birth certificate approval see section 146Y.

conduct includes any act or omission.

doing a thing, includes failing to do the thing.

evidence, of identity, means a document or other thing, including, for example, a driver licence, birth certificate, credit card or identity card, that evidences or indicates, or can be used to evidence or indicate, a person’s identity or any aspect of a person’s identity.

government issuing agency, in relation to an authority, means an entity that—

(a)is named in the authority; and

(b)issues evidence of identity as part of performing any function of the government.

issuing agency means—

(a)a government issuing agency; or

(b)a non-government issuing agency.

non-government issuing agency, in relation to an authority, means an entity, other than a government issuing agency, that—

(a)is named in the authority; and

(b)issues evidence of identity.

officer, of an agency, includes a person employed or engaged in the agency.

supervisor, of an authorised civilian, means the authorised commission officer, appointed under section 146T(3), who supervises or is to supervise the acquisition or use of an assumed identity by the authorised civilian.

use an assumed identity, includes representing, whether expressly or impliedly, or by saying or doing something, the identity to be real when it is not.

s 146Q ins 2006 No. 26 s 92

146RPublic Records Act 2002 does not apply to divs 2–7

The Public Records Act 2002 does not apply to activities or records under divisions 2 to 7.

s 146R ins 2006 No. 26 s 92

sub 2009 No. 13 s 213 sch 5

ch 3 pt 6B div 2 hdg ins 2006 No. 26 s 92

146SApplication for authority to acquire or use assumed identity

(1)A commission officer may apply to the chairperson for an authority for the officer or another person to do either or both of the following—

(a)acquire an assumed identity;

(b)use an assumed identity.

(2)A separate application must be made for each assumed identity to be acquired or used.

(3)An application—

(a)must be in writing in the form decided by the chairperson; and

(b)must contain all of the following information—

(i)the applicant’s name;

(ii)if a person other than the applicant is to be authorised to acquire or use an assumed identity—that person’s name;

(iii)if the person mentioned in subparagraph (ii) is not a commission officer—the name and rank or position of the person proposed to be appointed as supervisor, and an explanation of why it is necessary for a person who is not a commission officer to acquire or use the assumed identity;

(iv)details of the proposed assumed identity;

(v)reasons for the need to acquire or use an assumed identity;

(vi)details, to the extent known, of the investigation or intelligence gathering exercise in which the assumed identity will be used;

(vii)details of any issuing agencies and the types of evidence to be issued by them.

(4)The chairperson may require the applicant to give additional information about the application the chairperson considers appropriate for consideration of the application.

s 146S ins 2006 No. 26 s 92

amd 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

146TDeciding application

(1)After considering an application for an authority to acquire or use an assumed identity, and any additional information given under section 146S(4), the chairperson—

(a)may grant an authority to acquire or use the assumed identity, with or without conditions; or

(b)may refuse the application.

(2)The chairperson must not grant an authority to acquire or use an assumed identity unless the chairperson is satisfied on reasonable grounds of all of the following—

(a)the assumed identity is necessary for the purposes of an investigation or intelligence gathering in relation to a corruption offence;

(b)the risk of abuse of the assumed identity by the authorised person under the authority is minimal;

(c)if the application is for authorisation of an assumed identity for a person who is not a commission officer—it would be impossible or impracticable in the circumstances for a commission officer to acquire or use the assumed identity for the purpose sought.

(3)If an authority is granted for an authorised civilian, the chairperson must appoint an authorised commission officer to supervise the acquisition or use of the assumed identity by the authorised civilian.

(4)An authority may also authorise—

(a)an application to the independent member for a birth certificate approval; or

(b)a request under section 146ZB.

(5)A separate authority is required for each assumed identity.

s 146T ins 2006 No. 26 s 92

amd 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

146UForm of authority

(1)An authority must be—

(a)in writing in the form decided by the chairperson; and

(b)signed by the person granting it.

(2)An authority must state all of the following—

(a)the name of the person granting the authority;

(b)the date of the authority;

(c)details of the assumed identity under the authority;

(d)details of the evidence of the assumed identity that may be acquired under the authority;

(e)the conditions, if any, to which the authority is subject;

(f)why the authority is granted;

(g)if the authority relates to an authorised identity officer—the name of the official;

(h)if the authority relates to an authorised civilian—

(i)the name of the authorised civilian; and

(ii)the name of the civilian’s supervisor under the authority; and

(iii)the period, of not more than 3 months, for which the authority remains in force.

(3)The authority also must state the following—

(a)whether it authorises an application to the independent member for a birth certificate approval;

(b)each issuing agency to which a request may be made under section 146ZB.

s 146U ins 2006 No. 26 s 92

amd 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

146VPeriod of authority

(1)An authority for an authorised identity officer remains in force until cancelled under section 146W.

(2)An authority for an authorised civilian remains in force until the end of the period stated in the authority under section 146U(2)(h)(iii), unless the authority is sooner cancelled under section 146W.

s 146V ins 2006 No. 26 s 92

146WVariation or cancellation of authority

(1)The chairperson—

(a)may vary or cancel the authority at any time; and

(b)must cancel the authority if satisfied, on a review under section 146X or otherwise, that use of the assumed identity under the authority is no longer necessary.

(2)The chairperson must give written notice of the variation or cancellation to—

(a)the authorised person to whom the authority relates; and

(b)if the authorised person is an authorised civilian—the authorised person’s supervisor.

(3)The notice must state the reasons for the variation or cancellation.

(4)The variation or cancellation has effect on—

(a)the day the notice is given to the authorised person; or

(b)if a later day is stated in the notice—the later day.

s 146W ins 2006 No. 26 s 92

amd 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

146XReview of authority

(1)The chairperson must, at least once a year, review each authority granted by the chairperson and in force under this chapter.

(2)The purpose of a review is to decide whether use of the assumed identity under the authority is still necessary.

(3)If the chairperson is satisfied on a review that use of the assumed identity is no longer necessary, the chairperson must cancel the authority under section 146W.

(4)If the chairperson is satisfied on a review that use of the assumed identity is still necessary, the chairperson must record the chairperson’s opinion, and the reasons for it, in writing.

s 146X ins 2006 No. 26 s 92

amd 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)–(2)

ch 3 pt 6B div 3 hdg ins 2006 No. 26 s 92

ch 3 pt 6B div 3 sdiv 1 hdg ins 2006 No. 26 s 92

146YApproval for creation of birth certificate for assumed identity

(1)The chairperson may apply to the independent member for authority to create a birth certificate (a birth certificate approval) for an assumed identity for an authorised person.

(2)The application must be written and include enough information to enable the independent member to properly consider whether the birth certificate approval should be granted.

(3)The independent member may grant the birth certificate approval only if satisfied granting the approval is justified having regard to the nature of the activities undertaken or to be undertaken by the authorised person under the authority for the assumed identity.

(4)A birth certificate approval granted under this section must be written, signed by the independent member, and state that a named commission officer is authorised under this section to create a birth certificate for the purpose of concealing the identity of an authorised person.

s 146Y ins 2006 No. 26 s 92

amd 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

146ZGiving effect to birth certificate approval

(1)On the production to the registrar-general, for inspection, of a birth certificate approval—

(a)the commission officer named in the approval may create a birth certificate as authorised under the approval; and

(b)the registrar-general must give the officer any help the officer reasonably requires for the purpose.

(2)The commission officer must, if practicable, give the registrar-general at least 3 days notice of the day the officer intends to create the birth certificate under the birth certificate approval.

s 146Z ins 2006 No. 26 s 92

146ZA Destruction of birth certificate created under s 146Z

(1)This section applies in relation to a birth certificate created under a birth certificate approval (a created birth certificate).

(2)As soon as practicable after the authority for an assumed identity to which the created birth certificate relates is cancelled, the chairperson—

(a)must cause the created birth certificate to be destroyed; and

(b)must notify the registrar-general that the created birth certificate is no longer being used and has been destroyed.

s 146ZA ins 2006 No. 26 s 92

amd 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

ch 3 pt 6B div 3 sdiv 2 hdg ins 2006 No. 26 s 92

146ZB Request for evidence of assumed identity

(1)This section applies if an authority authorises a request under this section.

(2)The chairperson may ask the chief executive officer of an issuing agency stated in the authority to—

(a)produce evidence of an assumed identity in accordance with the authority; and

(b)give evidence of the assumed identity to the authorised person named in the authority.

(3)The request must state a reasonable period for compliance with the request.

(4)A request can not be made under this section for the creation of a birth certificate or a certified copy of a marriage certificate.

(5)In this section—

evidence means evidence similar to that ordinarily produced or given by the issuing agency.

s 146ZB ins 2006 No. 26 s 92

amd 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

146ZC Government issuing agency to comply with request

The chief executive officer of a government issuing agency who receives a request under section 146ZB must comply with the request within the reasonable period stated in the request.

s 146ZC ins 2006 No. 26 s 92

146ZD Non-government issuing agency may comply with request

The chief executive officer of a non-government issuing agency who receives a request under section 146ZB may comply with the request.

s 146ZD ins 2006 No. 26 s 92

146ZE Cancelling evidence of assumed identity

(1)The chief executive officer of an issuing agency who produces evidence of an assumed identity under this part must cancel the evidence if directed in writing to do so by the chairperson.

(2)In this section—

cancel includes delete or alter an entry in a record of information.

s 146ZE ins 2006 No. 26 s 92

amd 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

ch 3 pt 6B div 3 sdiv 3 hdg ins 2006 No. 26 s 92

146ZF Protection from criminal responsibility—officer of issuing agency

(1)A person who does something under subdivision 1 or 2 that, apart from this section, would be an offence, is not criminally responsible for the offence, if the thing is done to give effect to a birth certificate approval.

(2)Also, the chief executive officer, or an officer, of an issuing agency who does something that, apart from this section, would be an offence, is not criminally responsible for the offence if the thing is done to comply with a request under section 146ZB or a direction under section 146ZE.

s 146ZF ins 2006 No. 26 s 92

146ZG Indemnity for issuing agency and officers in relation to creation of birth certificates

(1)This section applies if a birth certificate approval is produced to the registrar-general under section 146Z.

(2)The commission must indemnify the registrar-general, or an officer of the registrar-general, for any civil liability incurred by the registrar-general or officer, including reasonable costs, if—

(a)the liability is incurred because of something done by the registrar-general or officer to comply with section 146Z; and

(b)the requirements, if any, prescribed under a regulation have been met.

s 146ZG ins 2006 No. 26 s 92

146ZH Indemnity for issuing agency and officers in relation to other evidence of assumed identities

(1)This section applies if the chairperson makes a request under section 146ZB or gives a direction under section 146ZE to the chief executive officer of an issuing agency.

(2)The commission must indemnify the issuing agency, or an officer of the agency, for any civil liability incurred by the agency or officer, including reasonable costs, if—

(a)the liability is incurred because of something done by the agency or officer to comply with the request or direction in the course of duty; and

(b)the requirements, if any, prescribed under a regulation have been met.

s 146ZH ins 2006 No. 26 s 92

amd 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

146ZI Protection from criminal responsibility for particular ancillary conduct

(1)This section applies to conduct, for example aiding or enabling the commission of an offence or conspiring to commit an offence (ancillary conduct), for which a person may be criminally responsible because it involves conduct engaged in by another person for which the other person would, apart from section 146ZF, be criminally responsible (the related conduct).

Note—

The Criminal Code, section 7(1)(b) and (c) makes provision for a person who aids or enables the commission of an offence, and the Criminal Code, chapter 56, makes provision for conspiracy.

(2)Despite any other Act or law, a person who engages in ancillary conduct that is an offence, whether or not the person is an authorised person or an officer of an issuing agency, is not criminally responsible for the offence if at the time the person engaged in the ancillary conduct the person believed the related conduct was being engaged in, or would be engaged in, by an authorised person or an issuing officer of an agency.

s 146ZI ins 2006 No. 26 s 92

ch 3 pt 6B div 4 hdg ins 2006 No. 26 s 92

146ZJ Assumed identity may be acquired and used

(1)An authorised identity officer may acquire or use an assumed identity if the acquisition or use is—

(a)in accordance with an authority; and

(b)in the course of duty.

(2)An authorised civilian may acquire or use an assumed identity if the acquisition or use is in accordance with—

(a)an authority; and

(b)the directions of the authorised civilian’s supervisor.

s 146ZJ ins 2006 No. 26 s 92

146ZK Protection from criminal responsibility—authorised person

If an authorised person does something that, apart from this section, would be an offence, the authorised person is not criminally responsible for the offence if—

(a)the thing is done in the course of acquiring or using an assumed identity under an authority; and

(b)the thing is done—

(i)for an authorised identity officer—in the course of duty; or

(ii)for an authorised civilian—in accordance with the directions of the authorised civilian’s supervisor; and

(c)doing the thing would not be an offence if the assumed identity were the authorised person’s real identity.

s 146ZK ins 2006 No. 26 s 92

146ZL Indemnity for authorised person

(1)This section applies if the chairperson grants an authority.

(2)The commission must indemnify the authorised person under the authority against any civil liability, including reasonable costs, incurred by the person, because of something done by the person if—

(a)the thing is done in the course of acquiring or using an assumed identity under the authority; and

(b)the thing is done—

(i)for an authorised identity officer—in the course of duty; or

(ii)for an authorised civilian—in accordance with the directions of the authorised civilian’s supervisor; and

(c)the requirements, if any, prescribed under a regulation have been met.

(3)This section does not limit the Police Service Administration Act 1990, section 10.5.

s 146ZL ins 2006 No. 26 s 92

amd 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

146ZM Particular qualifications

(1)Sections 146ZK and 146ZL do not apply to anything done by an authorised person if—

(a)a particular qualification is needed to do the thing; and

(b)the person does not have the qualification.

(2)Subsection (1) applies whether or not the authorised person has acquired, as evidence of an assumed identity, a document that indicates that the person has the qualification.

s 146ZM ins 2006 No. 26 s 92

146ZN Effect of being unaware of variation or cancellation of authority

(1)If an authority to acquire or use an assumed identity has been varied in a way that limits its scope, this part continues to apply to the authorised person to whom the authority relates as if it had not been varied in that way, for as long as the person—

(a)is unaware of the variation; and

(b)is not reckless about the existence of the variation.

(2)If an authority to acquire or use an assumed identity has been cancelled, this part continues to apply to the authorised person to whom the authority related as if it had not been cancelled, for as long as the person—

(a)is unaware of the cancellation; and

(b)is not reckless about the existence of the cancellation.

(3)For this section, a person is reckless about the existence of the variation or cancellation of an authority if—

(a)the person is aware of a substantial risk that the variation or cancellation has happened; and

(b)having regard to the circumstances known to the person, it is unjustifiable to continue to use the assumed name in a way that was, but may no longer be, authorised by the authority because of the variation or cancellation.

s 146ZN ins 2006 No. 26 s 92

ch 3 pt 6B div 5 hdg ins 2006 No. 26 s 92

146ZO Misuse of assumed identity

(1)An authorised identity officer commits an offence if—

(a)the official intentionally, knowingly or recklessly acquires evidence of, or uses, an assumed identity covered by the officer’s authority; and

(b)the official knows that, or is reckless as to whether, the acquisition or use is not—

(i)in accordance with the officer’s authority; or

(ii)in the course of duty.

Maximum penalty—2 years imprisonment.

(2)An authorised civilian commits an offence if—

(a)the person intentionally, knowingly or recklessly acquires evidence of, or uses, an assumed identity covered by the person’s authority; and

(b)the person knows that, or is reckless as to whether, the acquisition or use is not in accordance with—

(i)the person’s authority; or

(ii)the directions of the person’s supervisor under the authority.

Maximum penalty—2 years imprisonment.

(3)This section does not limit section 213.

s 146ZO ins 2006 No. 26 s 92

146ZP Disclosing information about assumed identity

(1)A person commits an offence if—

(a)the person intentionally, knowingly or recklessly discloses any information; and

(b)the person knows that, or is reckless as to whether, the information reveals, or is likely to reveal, that an assumed identity acquired or used by another person is not the other person’s real identity; and

(c)the person knows that, or is reckless as to whether, the disclosure is not made—

(i)in connection with the administration or execution of this part; or

(ii)for the purposes of any legal proceeding arising out of or otherwise related to this part or of any report of the proceedings; or

(iii)in accordance with any requirement imposed by law.

Maximum penalty—2 years imprisonment.

(2)A person commits a crime if the person commits an offence against subsection (1) in circumstances in which the person—

(a)intends to endanger the health or safety of any person or prejudice the effective conduct of an investigation or intelligence gathering in relation to corruption; or

(b)knows that, or is reckless as to whether, the disclosure of the information—

(i)endangers or will endanger the health or safety of any person; or

(ii)prejudices or will prejudice the effective conduct of an investigation or intelligence gathering in relation to corruption.

Maximum penalty—10 years imprisonment.

(3)This section does not affect section 213.

s 146ZP ins 2006 No. 26 s 92

amd 2014 No. 21 s 94 (1) sch 1

ch 3 pt 6B div 6 hdg ins 2006 No. 26 s 92

146ZQ Report about authorities for assumed identities etc.

(1)As soon as practicable after the end of each financial year, the chairperson must give to the chairperson of the parliamentary committee a written report containing the following information in relation to the commission for the financial year—

(a)the number of authorities granted;

(b)a general description of the activities undertaken by authorised persons when using assumed identities under this part;

(c)the number of applications for an authority that were refused;

(d)a statement about whether or not any fraud or other unlawful activity was identified by an audit under section 146ZS;

(e)any other information relating to authorities, assumed identities or the administration of this part that the parliamentary commissioner considers appropriate.

(2)The report must not contain information that, if made public, could reasonably be expected to—

(a)endanger a person’s safety; or

(b)prejudice an investigation or prosecution; or

(c)compromise any law enforcement agency’s operational activities or methodologies.

(3)The chairperson of the parliamentary committee must table a copy of the report in the Legislative Assembly within 14 sitting days after the chairperson receives the report.

(4)This section does not limit section 64.

s 146ZQ ins 2006 No. 26 s 92

amd 2014 No. 21 s 24A, s 94 (1) sch 1; 2016 No. 19 s 45 (1)

146ZR Record keeping

(1)The chairperson must keep appropriate records about the commission’s operations under this part.

(2)The records must contain all of the following information about each authority granted under this part in relation to the commission—

(a)the date on which the authority was granted and the name of the person who granted it;

(b)if the authority was varied or cancelled under this part—the date it was varied or cancelled, and the name of the person who varied or cancelled it;

(c)the name of the authorised person under the authority;

(d)details of the assumed identity to which the authority relates;

(e)details of any request made to an issuing agency under section 146ZB in relation to the authority;

(f)the general nature of the duties undertaken by the authorised person under the assumed identity;

(g)general details of relevant financial transactions entered into using the assumed identity;

(h)details of reviews of the authority under section 146X.

s 146ZR ins 2006 No. 26 s 92

amd 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

146ZS Audit of records

(1)The chairperson must have the records kept under section 146ZR for each authority granted in relation to the commission audited by the parliamentary commissioner—

(a)at least once every 6 months while the authority is in force; and

(b)at least once in the 6 months after the cancellation or expiry of the authority.

(2)The parliamentary commissioner must give the chairperson a written report of the results of the audit.

s 146ZS ins 2006 No. 26 s 92

amd 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

ch 3 pt 6B div 7 hdg ins 2006 No. 26 s 92

146ZT Delegation generally

Other than as provided by this part, and despite any other Act or law to the contrary, the powers of the chairperson under this part may not be delegated to any other person.

s 146ZT ins 2006 No. 26 s 92

amd 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (1)

146ZU Delegation—chairperson

(1)The chairperson may delegate any of the chairperson’s powers under this part relating to the following to the chief executive officer or a senior executive officer—

(a)the granting, variation and cancellation of authorities;

(b)conducting reviews under section 146X;

(c)authorising the making of an application to the independent member for a birth certificate approval for an assumed identity;

(d)making requests under section 146ZB.

(2)Also, the chairperson may delegate to an authorised commission officer the chairperson’s power under section 146Y to apply to the independent member for authority to create a birth certificate for an assumed identity.

(3)No more than 4 delegations may be in force under this section at any time.

s 146ZU ins 2006 No. 26 s 92

amd 2014 No. 21 s 25; 2016 No. 19 s 45 (1)–(2)

147Application of pt 7

This part applies only for a crime investigation.

148Covert search warrant applications

(1)An authorised commission officer, with the chairperson’s approval, may apply to a Supreme Court judge for a warrant (covert search warrant) to enter and search a place for evidence of the commission of major crime being investigated by the commission.

(2)For subsection (1), an authorised commission officer who is a police officer must be of at least the rank of inspector.

(3)The application must—

(a)be sworn and state the grounds on which the warrant is sought; and

(b)state that the covert search warrant is being sought to enter and search a place for evidence of the commission of major crime being investigated by the commission; and

(c)fully disclose all matters, of which the authorised commission officer is aware, both favourable and adverse to the issuing of the warrant sought; and

(d)include information required under a regulation about any warrants issued within the previous year in relation to the place or person suspected of being involved in the major crime to which the application relates.

(4)Subsection (3)(d) applies only to—

(a)information kept in a register that the officer may inspect; and

(b)information the officer otherwise actually knows.

(5)The applicant must advise the public interest monitor of the application under arrangements decided by the monitor.

(6)The judge may refuse to consider the application until the applicant gives the judge all the information the judge requires about the application in the way the judge requires.

Example—

The judge may require additional information supporting the application to be given by statutory declaration.

s 148 amd 2014 No. 21 s 94 (1) sch 1; 2016 No. 19 s 45 (2)

149Who may be present at consideration of application

(1)The judge must hear an application for a covert search warrant in the absence of anyone other than the following—

(a)the applicant;

(b)a monitor;

(c)someone the judge permits to be present;

(d)a lawyer representing anyone mentioned in paragraphs (a) to (c).

(2)Also, the judge must hear the application—

(a)in the absence of the person the subject of the application (the relevant person) or anyone likely to inform the relevant person of the application; and

(b)without the relevant person having been informed of the application.

150Consideration of application

Before deciding the application, the judge must, in particular, and being mindful of the highly intrusive nature of the exercise of power under a covert search warrant, consider the following—

(a)the nature and seriousness of the major crime being investigated;

(b)the extent to which issuing the warrant would help prevent, detect, or provide evidence of the commission of, the major crime;

(c)the benefits derived from any previous covert search warrants, search warrants or surveillance warrants in relation to the relevant person or place;

(d)the extent to which commission officers investigating the matter have used or can use conventional ways of investigation;

(e)how much the use of conventional ways of investigation would be likely to help in the investigation of the matter;

(f)how much the use of conventional ways of investigation would prejudice the investigation of the matter;

(g)any submissions made by a monitor.

151Issue of covert search warrant

(1)After considering the application, the judge may issue the warrant if satisfied there are reasonable grounds for believing evidence of the commission of the major crime—

(a)is at the place; or

(b)is likely to be taken to the place within the next 72 hours.

(2)The judge may impose any conditions on the warrant that the judge considers are necessary in the public interest.

152What covert search warrant must state

A covert search warrant must state the following—

(a)that a stated commission officer, or any commission officer, may, with reasonable help and force, enter the place, covertly or by subterfuge and exercise covert search powers under the warrant;

(b)the major crime for which the warrant was issued;

(c)any evidence or samples of evidence that may be seized under the warrant;

(d)that the warrant may be executed at any time of the day or night;

(e)that, if practicable, the search must be videotaped;

(f)the day and time the warrant starts and when the warrant ends, being not more than 30 days after the warrant starts;

(g)any conditions imposed under section 151(2).

s 152 amd 2002 No. 68 s 283 sch 3

153Duration and extension of covert search warrant

(1)A covert search warrant is in force until the earlier of the following—

(a)when the warrant is stated to end;

(b)when the initial search is complete.

(2)However, the warrant may be extended from time to time on application.

(3)The provisions of this part for an application for a covert search warrant apply to an application for an extension, with all necessary changes.

154Restriction about records and access to covert search warrant applications

(1)Despite the Recording of Evidence Act 1962, a transcript of an application for a covert search warrant or an extension of a covert search warrant and any order made on the application must not be made.

(2)A person must not publish a report of a proceeding on an application for a covert search warrant or an extension of a covert search warrant.

Maximum penalty—85 penalty units or 1 year’s imprisonment.

(3)A person is not entitled to search information in the custody of the Supreme Court in relation to an application for a covert search warrant, unless a Supreme Court judge otherwise orders in the interests of justice.

(4)Nothing in this section prevents a person who was present at a proceeding on an application for a covert search warrant or an extension of a covert search warrant from giving oral evidence to a court about things that happened at the proceeding.

155Powers under covert search warrant

A commission officer to whom a covert search warrant is directed may, subject to the warrant, lawfully exercise the following powers under the warrant (covert search powers)—

(a)power to enter the place stated in the warrant (the relevant place), covertly or through subterfuge, as often as is reasonably necessary for the purposes of the warrant and stay at the place for the time reasonably necessary;

(b)power to pass over, through, along or under another place to enter the relevant place;

(c)power to search the relevant place for anything sought under the warrant;

(d)power to open anything at the relevant place that is locked;

(e)power to seize a thing or part of a thing found at the relevant place that the commission officer reasonably believes is evidence of the commission of major crime stated in the warrant;

(f)power to photograph anything the commission officer reasonably believes may provide evidence of the commission of major crime stated in the warrant;

(g)power to inspect or test anything found at the place.

156Report on covert search

(1)A commission officer must give to the Supreme Court judge who issued the covert search warrant and a monitor a report containing information required under a regulation on the exercise of the powers under the warrant.

(2)The report must be given to the judge and a monitor within 7 days after the warrant is executed or, if that is impracticable because of the unavailability of the judge, as soon as practicable after the warrant is executed.

(3)The officer must, if practicable, also take before the judge anything seized under the warrant and any photograph taken during the search.

(4)The judge may, in relation to a thing mentioned in subsection (3), order that it—

(a)be held by the commission until any proceeding in which the thing may be evidence ends; or

(b)be dealt with in the way the judge orders.

157Application of pt 8

(1)This part applies only for a corruption investigation or a crime investigation relating to terrorism.

(2)In this section—

terrorism includes something that is—

(a)preparatory to the commission of terrorism; or

(b)undertaken to avoid detection of, or prosecution for, terrorism.

s 157 amd 2004 No. 8 s 8; 2014 No. 21 s 94 (1) sch 1

158Additional powers warrant applications

(1)With the chairperson’s approval, an authorised commission officer may apply to a Supreme Court judge for a warrant (additional powers warrant) authorising the use of powers under this part.

(2)For subsection (1), an authorised commission officer who is a police officer must be of at least the rank of inspector.

(3)The application must—

(a)be sworn and state the grounds on which the warrant is sought; and

(b)state the powers sought; and

(c)fully disclose all matters, of which the applicant is aware, both favourable and adverse to the issuing of the warrant sought by the applicant.

(4)The applicant must advise any person the judge directs is to be advised of the application.

(5)The judge may refuse to consider the application until the applicant gives the judge all the information the judge requires about the application in the way the judge requires.

Example—

The judge may require additional information supporting the application to be given by statutory declaration.

s 158 amd 2014 No. 21 s 25; 2016 No. 19 s 45 (2)