This article was written by Michelle Makela - Legal Practice Director
Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning. Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...
Crime and Corruption Commission
The Crime and Corruption Act 2001 creates a body known as the Crime and Corruption Commission (CCC), whose task is “to combat and reduce the incidence of major crime and to reduce the incidence of corruption in the public sector”.
The CCC has wide-ranging powers to investigate matters which fall within its ambit, whether because the case involves corruption in public office (the investigation and prosecution of which is a key responsibility of the CCC) or because a secondary body, known as the Crime Reference Committee, asks it to investigate a particular matter.
Once the CCC becomes involved in an investigation it is empowered to exercise some unique powers, including compulsory secret (that is, not open to the public) examinations which a person can be required to attend and at which they must answer questions on oath.
In most circumstances, when a person is subjected to an overt CCC investigation they are entitled to obtain legal advice and/or be legally represented (in the case of, for example, a compulsory hearing). The CCC also has a range of covert investigative powers which, naturally, do not carry any entitlement to legal representation because of their secretive nature.
This part of our website outlines the major powers that the CCC can, and commonly does, exercise and the criminal penalties which can be imposed under them. If you have been spoken to by the CCC, and in particular if you are the subject of a requirement to produce a document or attend a hearing, you should consult an experienced criminal lawyer before you say or do anything.
Compulsory Hearings
Compulsory hearings are governed by the Act. The Crime and Corruption Commission (“CCC”) may authorise the holding of a hearing in relation to any matter relevant to the performance of its functions.
Hearings are not open to the public unless the CCC considers it appropriate under certain criteria.
Who May be Present at Closed Hearings?
Section 179 of the Act states:
- The presiding officer conducting a closed hearing may give a direction about who may be present at the hearing.
- A person must not knowingly contravene a direction under subsection (1).
Maximum penalty – 85 penalty units or 1 year’s imprisonment.
Conduct of Hearings
Section 180 of the Act states:
- When conducting a hearing, the presiding officer:
- must act quickly, and with as little formality and technicality, as is consistent with a fair and proper consideration of the issues before the presiding officer; and
- is not bound by the rules of evidence; and
- may inform himself or herself of anything in the way he or she considers appropriate; and
- may decide the procedures to be followed for the hearing.
Legal Representation and Examination
A witness at a commission hearing may be legally represented. Witnesses may be examined, cross-examined and re-examined on any matter the presiding officer considers relevant.
Refusals
Refusing to comply with aspects of the hearing will result in the witness committing offences unless the person has a reasonable excuse.
Such offences are as follows:
- Refusal to take oath or affirmation – A person attending at a commission hearing to give sworn evidence must not fail to take an oath or affirmation when required by the presiding officer.
- Refusal to answer questions – A witness at a commission hearing must answer a question put to the person at the hearing by the presiding officer, unless the person has a reasonable excuse.
- Refusal to produce – If a person is required to produce a stated document or thing, the person must bring the document or thing to the hearing, and, produce the document or thing.
The maximum penalties for each of the offences are 200 penalty units or 5 years imprisonment
Reasonable excuse is not defined under the Act but can include certain privileges such as self-incrimination.
Deciding claims:
Under section 194 of the Act, if a person claims to have a reasonable excuse for not complying with a requirement to answer a question or produce a document, the presiding officer will decide whether that claim is justified.
Notice to Produce
The CCC has the power to order a person to produce a particular document by serving that person with a “Notice to Produce”.
Section 74 of the Act governs the power of the CCC to serve a Notice to Produce in limited circumstances.
- This section applies only for:
- A crime investigation;
- A specific intelligence operation (crime);
- The witness protection function.
The Act requires the notice to state a “specific document or thing”, reducing the power of the CCC to conduct a fishing exercise by casting a wide net in the hope of finding incriminating material.
It also requires the chairperson to believe, on reasonable grounds, that the particular document is relevant to the investigation, operation or witness protection function. This places further demands on the chairperson to ensure the serving of the notice is relevant and required in the circumstances.
The maximum penalty for not complying with the Notice to Produce is 85 penalty units or 1 year imprisonment.
Possible defences for failing to comply with a notice to produce
Specific defences for non-compliance are provided in the following subsections.
(5) The person must comply with the Notice to Produce, unless the person has a reasonable excuse.
(7) A person who fails to comply with a notice does not commit an offence if the document or thing is subject to privilege.
Which court will hear my matter?
This charge will ordinarily be heard and determined in a Magistrates, or Local Court, though on some rare occasions a charge will be brought before the Federal Court.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.