25AConduct of examination

#### 25A Conduct of examination Conduct of proceedings (1) An examiner may regulate the conduct of proceedings at an examination as he or she thinks fit. Representation at examination (2) At an examination before an examiner: (a) a person giving evidence may be represented by a legal practitioner; and (b) if, by reason of the existence of special circumstances, the examiner consents to a person who is not giving evidence being represented by a legal practitioner—the person may be so represented. Persons present at examination (3) An examination before an examiner must be held in private and the examiner may give directions as to the persons who may be present during the examination or a part of the examination. (4) Nothing in a direction given by the examiner under subsection (3) prevents the presence, when evidence is being taken at an examination before the examiner, of: (a) a person representing the person giving evidence; or (b) a person representing, in accordance with subsection (2), a person who, by reason of a direction given by the examiner under subsection (3), is entitled to be present. (5) If an examination before an examiner is being held, a person (other than a member of the staff of the ACC approved by the examiner) must not be present at the examination unless the person is entitled to be present by reason of a direction given by the examiner under subsection (3) or by reason of subsection (4). Witnesses (6) At an examination before an examiner: (a) counsel assisting the examiner generally or in relation to the matter to which the ACC operation/investigation relates; or (b) any person authorised by the examiner to appear before the examiner at the examination; or (c) any legal practitioner representing a person at the examination in accordance with subsection (2); may, so far as the examiner thinks appropriate, examine or cross‑examine any witness on any matter that the examiner considers relevant to the ACC operation/investigation. (7) If a person (other than a member of the staff of the ACC) is present at an examination before an examiner while another person (the witness) is giving evidence at the examination, the examiner must: (a) inform the witness that the person is present; and (b) give the witness an opportunity to comment on the presence of the person. (8) To avoid doubt, a person does not cease to be entitled to be present at an examination before an examiner or part of such an examination if: (a) the examiner fails to comply with subsection (7); or (b) a witness comments adversely on the presence of the person under paragraph (7)(b). Confidentiality (9) An examiner may direct that: (a) any evidence given before the examiner; or (b) the contents of any document, or a description of any thing, produced to the examiner; or (c) any information that might enable a person who has given evidence before the examiner to be identified; or (d) the fact that any person has given or may be about to give evidence at an examination; must not be published, or must not be published except in such manner, and to such persons, as the examiner specifies. The examiner must give such a direction if the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been, or may be, charged with an offence. (10) Subject to subsection (11), the CEO may, in writing, vary or revoke a direction under subsection (9). (11) The CEO must not vary or revoke a direction if to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been or may be charged with an offence. Courts (12) If: (a) a person has been charged with an offence before a federal court or before a court of a State or Territory; and (b) the court considers that it may be desirable in the interests of justice that particular evidence given before an examiner, being evidence in relation to which the examiner has given a direction under subsection (9), be made available to the person or to a legal practitioner representing the person; the court may give to the examiner or to the CEO a certificate to that effect and, if the court does so, the examiner or the CEO, as the case may be, must make the evidence available to the court. (13) If: (a) the examiner or the CEO makes evidence available to a court in accordance with subsection (12); and (b) the court, after examining the evidence, is satisfied that the interests of justice so require; the court may make the evidence available to the person charged with the offence concerned or to a legal practitioner representing the person. Offence (14) A person who: (a) is present at an examination in contravention of subsection (5); or (b) makes a publication in contravention of a direction given under subsection (9); is guilty of an offence punishable, upon summary conviction, by a fine not exceeding 20 penalty units or imprisonment for a period not exceeding 12 months. End of examination (15) At the conclusion of an examination held by an examiner, the examiner must give the head of the special ACC operation/investigation: (a) a record of the proceedings of the examination; and (b) any documents or other things given to the examiner at, or in connection with, the examination. 121 Subsection 26(1) Omit “the Authority or a hearing officer”, substitute “an examiner”. 122 Subsection 26(1) Omit “Chair”, substitute “CEO”. 123 Subsection 26(2) Omit “Chair” (wherever occurring), substitute “CEO”. 124 Subsection 27(1) Omit “the Authority or a hearing officer”, substitute “an examiner”. 125 Subsection 27(3) Omit “the Authority or the hearing officer”, substitute “the examiner”. 126 Subsection 28(1) Omit “A member”, substitute “An examiner”. 127 Subsection 28(1) Omit “the Authority or a hearing officer at a hearing”, substitute “the examiner at an examination”. 127A After subsection 28(1) Insert: (1A) Before issuing a summons under subsection (1), the examiner must be satisfied that it is reasonable in all the circumstances to do so. The examiner must also record in writing the reasons for the issue of the summons. 128 Subsection 28(2) Repeal the subsection, substitute: (2) A summons under subsection (1) requiring a person to appear before an examiner at an examination must be accompanied by a copy of the determination of the Board that the intelligence operation is a special operation or that the investigation into matters relating to federally relevant criminal activity is a special investigation. 129 Subsection 28(3) Omit “the Authority or a hearing officer at a hearing”, substitute “an examiner at an examination”. 130 Subsection 28(3) Omit “the member”, substitute “the examiner”. 131 Subsection 28(3) Omit “a special investigation to which the hearing”, substitute “the special ACC operation/investigation to which the examination”. 132 Subsection 28(3) Omit “the special investigation”, substitute “the special ACC operation/investigation”. 133 Subsection 28(3) Omit “the Authority or the hearing officer” (wherever occurring), substitute “the examiner”. 134 Subsection 28(3) Omit “relates to a special investigation”, substitute “relates to a special ACC operation/investigation”. 135 Subsection 28(4) Repeal the subsection, substitute: (4) The examiner who is holding an examination may require a person appearing at the examination to produce a document or other thing. 136 Subsection 28(5) Repeal the subsection, substitute: (5) An examiner may, at an examination, take evidence on oath or affirmation and for that purpose: (a) the examiner may require a person appearing at the examination to give evidence either to take an oath or to make an affirmation in a form approved by the examiner; and (b) the examiner, or a person who is an authorised person in relation to the ACC, may administer an oath or affirmation to a person so appearing at the examination. 137 Subsection 28(6) Repeal the subsection, substitute: (6) In this section, a reference to a person who is an authorised person in relation to the ACC is a reference to a person authorised in writing, or a person included in a class of persons authorised in writing, for the purposes of this section by the CEO. 138 Subsection 28(7) Omit “a special investigation”, substitute “a special ACC operation/investigation”. 139 Subsection 29(1) Omit “A member”, substitute “An examiner”. 140 Paragraph 29(1)(a) Repeal the paragraph, substitute: (a) to attend, at a time and place specified in the notice, before a person specified in the notice, being the examiner or a member of the staff of the ACC; and 141 Paragraph 29(1)(b) Omit “a special investigation”, substitute “a special ACC operation/investigation”. 141A After subsection 29(1) Insert: (1A) Before issuing a notice under subsection (1), the examiner must be satisfied that it is reasonable in all the circumstances to do so. The examiner must also record in writing the reasons for the issue of the notice. 142 Subsection 29(2) Repeal the subsection, substitute: (2) A notice may be issued under this section in relation to a special ACC operation/investigation, whether or not an examination before an examiner is being held for the purposes of the operation or investigation. 143 Subsection 29(3A) Omit “$20,000”, substitute “200 penalty units”. 144 Subsection 29(3C) Omit “$2,000”, substitute “20 penalty units”. 145 Subsection 29(4) Omit “a hearing before the Authority or a hearing officer”, substitute “an examination before an examiner”. 146 Subsection 29A(1) Omit “member”, substitute “examiner”. 147 Paragraph 29A(2)(a) Omit “member”, substitute “examiner”. 148 Subparagraph 29A(2)(a)(iii) Omit “an investigation”, substitute “an operation or investigation”. 149 Paragraph 29A(2)(b) Omit “member”, substitute “examiner”. 150 Subparagraph 29A(2)(b)(iii) Omit “an investigation”, substitute “an operation or investigation”. 151 Paragraph 29A(2)(c) Omit “member”, substitute “examiner”. 152 Subsection 29A(4) Omit “Authority has concluded the investigation”, substitute “ACC has concluded the operation or investigation”. 153 Paragraph 29A(4)(a) Omit “or (1A)”. 154 Paragraph 29A(4)(b) Omit “or (1A) and the Authority”, substitute “and the CEO”. 155 Paragraph 29A(4)(c) Omit “or (1A)”. 156 Paragraph 29A(4)(d) Omit “or (1A)”. 157 Subparagraph 29A(4)(d)(ii) Omit “Authority”, substitute “CEO”. 158 Subsection 29A(4) Omit “relating to the investigation”, substitute “relating to the operation or investigation”. 159 Subsection 29A(5) Omit “Authority”, substitute “CEO”. 160 Subsection 29A(6) Repeal the subsection. 161 At the end of section 29A Add: (8) In this section: > official matter has the same meaning as in section 29B. 162 Subsection 29B(1) (penalty) Omit “$2,000”, substitute “20 penalty units”. 163 Paragraph 29B(2)(e) Omit “a hearing before the Authority or a hearing officer”, substitute “an examination before an examiner”. 164 Subsection 29B(3) (penalty) Omit “$2,000”, substitute “20 penalty units”. 165 Subsection 29B(7) (paragraph (a) of the definition of official matter) Repeal the paragraph, substitute: (a) the determination referred to in subsection 28(2); 166 Subsection 29B(7) (paragraph (b) of the definition of official matter) Repeal the paragraph, substitute: (b) an ACC operation/investigation; 167 Subsection 29B(7) (paragraph (c) of the definition of official matter) Repeal the paragraph, substitute: (c) an examination held by an examiner; 168 Subsection 30(1) Omit “a hearing before the Authority or a hearing officer”, substitute “an examination before an examiner”. 169 Paragraph 30(1)(b) Omit “a member or the hearing officer, as the case may be”, substitute “the examiner”. 170 Subsection 30(2) Omit “a hearing before the Authority or a hearing officer”, substitute “an examination before an examiner”. 171 Paragraph 30(2)(b) Omit “member presiding at the hearing or the hearing officer”, substitute “examiner”. 172 Paragraph 30(3)(a) Omit “a hearing before the Authority or a hearing officer”, substitute “an examination before an examiner”. 173 Subsection 30(3) Omit “member presiding at the hearing or the hearing officer, furnish to the Authority or the hearing officer”, substitute “examiner, give the examiner”. 174 Subsection 30(4) Omit “a hearing before the Authority or a hearing officer, or documents or things produced at a hearing before the Authority or a hearing officer”, substitute “an examination before an examiner, or documents or things produced at an examination before an examiner”. 175 Paragraph 30(4)(a) Omit “a hearing before the Authority or a hearing officer”, substitute “an examination before an examiner”. 176 Subparagraph 30(4)(a)(i) Omit “member presiding at the hearing or the hearing officer who is holding the hearing”, substitute “examiner”. 177 Subsection 30(6) Omit “$20,000”, substitute “200 penalty units”. 178 Subsection 30(8) Omit “$2,000”, substitute “20 penalty units”. 179 Subsection 31(1) Omit “by or on behalf of the Authority”, substitute “by an examiner”. 180 Paragraph 31(1)(a) Omit “Authority” (first occurring), substitute “examiner”. 181 Paragraph 31(1)(a) Omit “Authority or a hearing officer”, substitute “examiner”. 182 Paragraph 31(3)(a) Omit “Authority or the hearing officer”, substitute “examiner”. 183 Subsection 33(1) Omit “a hearing before the Authority or a hearing officer”, substitute “an examination before an examiner”. 184 Subsection 33(2) Omit “$20,000”, substitute “200 penalty units”. 185 Subsection 33(4) Omit “$2,000”, substitute “20 penalty units”. 186 Section 34 Omit “a member or a hearing officer”, substitute “an examiner”. 187 Paragraph 34(a) Omit “a hearing before the Authority or a hearing officer”, substitute “an examination before the examiner”. 188 Paragraph 34(b) Omit “Authority otherwise than at a hearing before the Authority or a hearing officer”, substitute “ACC otherwise than at an examination before the examiner”. 189 Section 34 Omit “member or the hearing officer, as the case may be,”, substitute “examiner”. 190 Subsection 35(1) Repeal the subsection, substitute: (1) A person must not: (a) obstruct or hinder: (i) the ACC in the performance of its functions; or (ii) an examiner in the performance of his or her functions as an examiner; or (b) disrupt an examination before an examiner. Note: The heading to section 35 is replaced by the heading “Obstructing or hindering the ACC or an examiner etc.”. 191 Subsection 35(2) Omit “$20,000”, substitute “200 penalty units”. 192 Subsection 35(4) Omit “$2,000”, substitute “20 penalty units”. 193 Subsection 36(1) Omit “A member or a hearing officer”, substitute “An examiner”. Note: The heading to section 36 is altered by omitting “members” and substituting “examiners”. 194 Subsection 36(1) Omit “a member or a hearing officer in relation to a hearing before the Authority or the hearing officer”, substitute “an examiner in relation to an examination before the examiner”. 195 Subsection 36(2) Omit “Authority or a hearing officer or representing a person at a hearing before the Authority or a hearing officer”, substitute “ACC or an examiner or representing a person at an examination before an examiner”. 196 Subsection 36(3) Omit “the Authority or a hearing officer”, substitute “an examiner”. 197 Sections 37 to 46A Repeal the sections, substitute: