Div 5Investigative powers

Division 5—Investigative powers 40VA  Application of Division  (1) This Division applies if a person (the investigator):  (a) is investigating a category 3 conduct issue or a corruption issue under Division 3; or  (b) is conducting an inquiry under Division 4.  (2) The powers provided for in this Division are in addition to any other powers the investigator may have. Note: For example, if the investigator is a member, or special member, of the Australian Federal Police and the investigation or inquiry involves a possible criminal offence against a law of the Commonwealth, the investigator may have powers in relation to the investigation of offences against the laws of the Commonwealth. 40VB  Manner of conducting investigation or inquiry  (1) The investigation or inquiry is to be conducted, subject to this Division, in such manner as the investigator thinks fit.  (2) If the Ombudsman makes an arrangement with the Commissioner under section 8D of the Ombudsman Act 1976 in relation to the investigation of the issue, the investigator must:  (a) investigate the issue jointly with the Ombudsman; and  (b) investigate the issue in accordance with the arrangement.  (3) If:  (a) the investigator is investigating a category 3 conduct issue or a corruption issue; and  (b) the head of the unit constituted under section 40RD allocated the issue to the investigator; the head of that unit may give the investigator directions as to the manner in which the investigation is to be conducted and the investigator must comply with those directions.  (4) Subsection (3) has effect subject to subsection (2).  (5) If:  (a) the investigator is investigating a category 3 conduct issue or a corruption issue; and  (b) the Commissioner allocated the issue to the investigator; the Commissioner may give the investigator directions as to the manner in which the investigation is to be conducted and the investigator must comply with those directions.  (6) Subsection (5) has effect subject to subsection (2).  (7) If the investigator is conducting an inquiry under Division 4, the Minister may give the investigator directions as to the manner in which the investigation is to be conducted and the investigator must comply with those directions.  (8) A direction given to the investigator under subsection (3), (5) or (7) is not a legislative instrument. 40VC  Obtaining information and making inquiries  (1) For the purposes of the investigation or inquiry, the investigator may obtain information from such persons, and make such inquiries, as he or she thinks fit.  (2) Subsection (1) has effect subject to this Division. 40VD  Relationship with other laws  (1) Sections 40VB and 40VC do not authorise an AFP appointee to contravene, or fail to comply with, a law that would, if those sections had not been enacted, apply in relation to the investigation or inquiry.  (2) Nothing in subsection (1) affects the operation of any other provision of this Division. 40VE  Directions to AFP appointee Investigator may give directions to AFP appointee  (1) The investigator may, for the purposes of the investigation or inquiry, direct an AFP appointee:  (a) to give the investigator information (in the manner and form specified in the direction); or  (b) to produce to the investigator a document, record or thing; or  (c) to answer a question; or  (d) to do anything else that is reasonably necessary for the purposes of obtaining evidence in relation to the investigation or inquiry. Note: Failure to comply with the direction is an offence against subsection 40VH(1).  (2) A direction under subsection (1) has no effect unless the investigator:  (a) states in the direction that the AFP appointee to whom the direction is given is being expressly directed under that subsection; and  (b) specifies in the direction the substance of the subject matter of the investigation or inquiry; and  (c) if it is practicable to do so—gives the direction in writing; and  (d) if the direction is given in writing—gives the AFP appointee a copy of the direction. Obligation to comply with direction  (3) If an AFP appointee is directed under subsection (1) to give information, produce a document, record or thing, answer a question or do something else for the purposes of obtaining evidence, the AFP appointee is not excused from complying with the direction:  (a) on the ground that complying with the direction:  (i) would be contrary to the public interest; or  (ii) might make him or her liable to a penalty; or  (b) on the ground that the information, the production of the document, record or thing, the answer to the question or the evidence obtained by doing that thing might tend to incriminate him or her; or  (c) on any other ground. Use to which information etc. may be put  (4) The information, the production of the document, record or thing, the answer to the question or the evidence obtained by doing that thing, is not admissible in evidence against the AFP appointee in any civil or criminal proceedings other than:  (a) proceedings for an offence against subsection 40VH(1); or  (b) proceedings in relation to termination action taken in relation to the AFP appointee; or  (c) proceedings under the Safety, Rehabilitation and Compensation Act 1988; or  (d) proceedings in tort that the AFP appointee institutes against the Commonwealth.  (5) Nothing in subsection (4) is taken to affect the admissibility in evidence, in any civil or criminal proceedings, of:  (a) any information given by an AFP appointee to the investigator; or  (b) the production of a document, record or thing by an AFP appointee to the investigator; or  (c) an answer given by an AFP appointee to a question put to him or her by the investigator; or  (d) evidence obtained by an AFP appointee doing something for the purposes of obtaining evidence at the request of the investigator; if the AFP appointee has not been expressly directed, under subsection (1), to give the information, to produce the document, record or thing, to answer the question or to do that thing.  (6) If a document, record or thing is produced to the investigator under a direction under subsection (1), the investigator may:  (a) examine the document, record or other thing; and  (b) retain possession of the document, record or other thing for such period as is necessary for the purposes of the investigation or inquiry. If the investigator retains possession of a document, record or thing under paragraph (b) during a particular period, the investigator must allow a person who would be entitled to inspect the document, record or thing if it was not in the investigator’s possession to inspect the document, record or thing at all reasonable times.  (7) If a document or record is produced to the investigator under a direction under subsection (1), the investigator may take extracts from, or a copy of, the document or record.  (8) For all the purposes of this Act, and the regulations in force under this Act, a direction given by the investigator under subsection (1) has effect as if it had been given by the Commissioner.  (9) An AFP appointee is not liable to any penalty (other than a penalty under this Act) merely because the appointee:  (a) gives information; or  (b) produces a document, record or thing; or  (c) answers a question; or  (d) does something else; when directed to do so by the investigator under this section. Direction is not a legislative instrument  (10) If a direction given by an investigator under subsection (1) is in writing, the direction is not a legislative instrument. 40VF  Entering and searching AFP premises  (1) For the purposes of the investigation or inquiry, the investigator may:  (a) enter, at any time, premises occupied by the Australian Federal Police; and  (b) carry on the investigation or inquiry on those premises; and  (c) search those premises; and  (d) examine any document, record or other thing that is on those premises and that is relevant to the investigation or inquiry; and  (e) take extracts from, or a copy of, any document or record that is on those premises and that is relevant to the investigation or inquiry; and  (f) retain possession of the document, record or thing for such period as is necessary for the purposes of the investigation or inquiry.  (2) If the investigator retains possession of a document, record or thing under paragraph (1)(f) during a particular period, the investigator must allow a person who would be entitled to inspect the document, record or thing, if it was not in the investigator’s possession, to inspect the document, record or thing at all reasonable times.  (3) The document, record or thing referred to in paragraph (1)(d), (e) or (f) need not be one that is being used by the Australian Federal Police.  (4) In this section: premises includes a place, vehicle, vessel and aircraft. 40VG  Special powers if investigator conducting inquiry under Division 4 Section applies to inquiries  (1) This section applies if the investigator is conducting an inquiry under Division 4. Investigator may give direction  (2) For the purposes of the inquiry, the investigator may:  (a) direct an AFP appointee to attend before him or her at the time and place specified in the direction and to answer questions relevant to the inquiry when the AFP appointee attends; and  (b) administer an oath or affirmation to the AFP appointee; and  (c) examine the AFP appointee on oath or affirmation; and  (d) by means of sound recording apparatus or otherwise, make a record of any information furnished, or answer given, in compliance with such a direction or cause such a record to be made. Note: Failure to comply with a direction under paragraph (a), or to be sworn or make an affirmation under paragraph (b), is an offence (see subsection 40VH(1)).  (3) A direction under subsection (2) has no effect unless the investigator:  (a) states in the direction that the AFP appointee to whom the direction is given is being expressly directed under that subsection; and  (b) specifies in the direction the substance of the subject matter of the inquiry; and  (c) if it is practicable to do so—gives the direction in writing; and  (d) if the direction is given in writing—gives the AFP appointee a copy of the direction. Obligation to comply with direction  (4) If an AFP appointee is directed under subsection (2) to answer a question, the AFP appointee is not excused from complying with the direction:  (a) on the ground that answering the question:  (i) would be contrary to the public interest; or  (ii) might make him or her liable to a penalty; or  (b) on the ground that the answer to the question might tend to incriminate him or her; or  (c) on any other ground. Use to which answer may be put  (5) The answer to the question is not admissible in evidence against the AFP appointee in any civil or criminal proceedings other than:  (a) proceedings for an offence against subsection 40VH(1); or  (b) proceedings in relation to termination action taken in relation to the AFP appointee; or  (c) proceedings under the Safety, Rehabilitation and Compensation Act 1988; or  (d) proceedings in tort that the AFP appointee institutes against the Commonwealth.  (6) Nothing in subsection (5) is taken to affect the admissibility in evidence, in any civil or criminal proceedings, of an answer given by an AFP appointee to a question put to him or her by the investigator if the AFP appointee has not been expressly directed, under subsection (2), to answer the question. Direction has same effect as if given by Commissioner  (7) For all the purposes of this Act, and the regulations in force under this Act, a direction given by the investigator under subsection (2) has effect as if it had been given by the Commissioner. AFP appointee not liable to penalty for answering question  (8) An AFP appointee is not liable to any penalty (other than a penalty for an offence against subsection 40VH(1)) under the provisions of any other law because the AFP appointee answers a question when directed to do so by the investigator under subsection (2). Direction is not a legislative instrument  (10) If a direction given by an investigator under subsection (2) is in writing, the direction is not a legislative instrument. 40VH  Offences  (1) An AFP appointee commits an offence if the AFP appointee:  (a) refuses or fails to comply with a direction given under subsection 40VE(1) or 40VG(2); or  (b) refuses or fails to be sworn or make an affirmation, when required to do so under subsection 40VG(2); or  (c) gives information or makes a statement to the investigator knowing that it is false or misleading in a material particular. Penalty: Imprisonment for 6 months.  (2) Subsection (1) does not apply if the AFP appointee has a reasonable excuse. Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).  (3) In any proceedings for an offence against subsection (1), the prosecution bears the onus of proving that:  (a) the investigator complied with subsection 40VE(2) in relation to a direction under subsection 40VE(1); or  (b) the investigator complied with subsection 40VG(3) in relation to a direction under subsection 40VG(2).