Australian Federal Police and Other Legislation Amendment Act 2004
An Act to integrate the Australian Protective Service into the Australian Federal Police, and for other purposes
1 Short title
australian-federal-police-and-other-legislation-amendment-act-2004.pdf, p.5
2 Commencement
1 Section 1
Table of sections and commencement provision
22 June 2004
2 Section 2
Commencement of provisions within 6 months
1 July 2004
Requires a relation between identifiable temporal intervals for conditional commencement
2 Australian Federal Police and Other Legislation Amendment Act 2004
australian-federal-police-and-other-legislation-amendment-act-2004.pdf, p.6
3 Section 3
Conditional commencement of provisions based on event occurrence.
Requires relation between temporal intervals for commencement.
4 Section 4
Conditional commencement of provisions based on event occurrence
10 March 2005
5 Section 5
Schedule 1 items 10 to 60 at the same time as provision(s) covered by table item 2.
6 Section 6
Conditional commencement of Schedule 2 item 1 based on Aviation Transport Security Act 2004 section 3 commencement.
7 Section 7
8 Section 8
australian-federal-police-and-other-legislation-amendment-act-2004.pdf, p.7
9 Section 9
Schedule 2 items 4 to 7 at the same time as the provision(s) covered by table item 2.
10 Section 10
Conditional commencement of provision(s)
1 January 2005
11 Section 11
Conditional commencement of provision(s) covered by table item 2.
14 Section 14
22 December
3 Schedule(s)
4 Australian Federal Police and Other Legislation Amendment Act 2004
Schedule terms have effect according to their terms.
australian-federal-police-and-other-legislation-amendment-act-2004.pdf, p.8
4 Transitional and application
4(1) Transitional and application
Each APS transferee is taken to have been engaged under section 24 of the Australian Federal Police Act 1979.
(1) Each APS transferee is taken to have been engaged...
...under section 24 of the Australian Federal Police Act 1979.
Establishes a temporal relation between engagement and transfer
Establishes a temporal trace for APS transferees
Establishes an information flow for APS transferees
Represents knowledge about APS transferees
4(2) Transitional and application
Transitional provision declaring transferred PSOs as protective service officers under section 40EA of the amended AFP Act.
Declares transferred PSOs as protective service officers
(2) Each transferred PSO is taken to have been declared, at the transfer time, to be a protective service officer under section 40EA of the amended AFP Act.
Transferred PSOs are protected service officers
Defines temporal relationship between declaration and transfer
Describes spread of declaration and transfer
Describes AI application for transferred PSOs
4(3) Transitional and application
Exempts transferred PSO from a specific provision of the amended AFP Act.
Requires a relation between identifiable temporal intervals
4(4) Transitional and application
Transferred PSO satisfies requirement under paragraph 36(4A)(b) of the amended AFP Act.
4(5) Transitional and application
Definitions for transitional and application provisions
1 Subsection 3A(1)
australian-federal-police-and-other-legislation-amendment-act-2004.pdf, p.9
2 After subsection 3A(5)
2(5A) After subsection 3A(5)
Commissioner may declare AFP employees to be protective service officers.
(5A) Under Division 3A of Part IV, the Commissioner may declare AFP employees to be protective service officers.
The Commissioner must declare AFP employees to be protective service officers if they meet certain conditions.
Temporal relation between declaration and employment status.
The declaration is related to the temporal interval of the employee's employment status.
Recurring trace of declaration and employment status.
The declaration is part of a recurring trace of employee classification.
The Commissioner may declare AFP employees to be protective service officers if they meet certain conditions.
The Commissioner has an obligation to declare AFP employees to be protective service officers if they meet certain conditions.
2(5B) After subsection 3A(5)
Commissioner may appoint special protective service officers.
3 After paragraph 3A(7)(a)
Describes powers of protective service officers and other related powers.
4 Subsection 4(1)
a search of a person conducted by quickly running the hands over the person’s outer garments;
6 Australian Federal Police and Other Legislation Amendment Act 2004
australian-federal-police-and-other-legislation-amendment-act-2004.pdf, p.10
5 Subsection 4(1)
Requires person to remove certain items during search.
6 Subsection 4(1)
Designates Minister's functions under section 8A as protective service functions.
7 Subsection 4(1)
The Australian Federal Police is performing protective service functions.
There exists an offence that falls under the definition of a protective service offence.
Definition includes offences against various Acts and sections
The definition of a protective service offence includes offences against section 24AB, 29, 46 (other than paragraph b), 47, 47A, 79, 89 or 89A of the Crimes Act 1914.
The definition of a protective service offence is a subset of the Crimes Act 1914
Definition includes offences against certain sections and Acts
The definition of a protective service offence includes offences against section 91.1 of the Criminal Code.
The definition of a protective service offence is greater than or equal to the Criminal Code section 91.1
Definition implies certain conditions for an offence to be considered a protective service offence
The definition of a protective service offence includes offences against Division 72 of the Criminal Code that relates to a person, place or thing in respect of which the Australian Federal Police is performing protective service functions.
If an offence falls under Division 72 of the Criminal Code, it implies that the Australian Federal Police is performing protective service functions
Definition includes multiple conditions for an offence to be considered a protective service offence
The definition of a protective service offence includes offences against section 6 of the Crimes Act 1914, or section 11.1 or 11.4 of the Criminal Code that relates to an offence mentioned in paragraph (a)
The definition of a protective service offence is and includes multiple conditions
Definition is related to the Australian Federal Police's role
The definition of a protective service offence is related to the Australian Federal Police's performance of protective service functions.
There exists an offence that falls under the definition of a protective service offence
141 Section 141
Reference to specific sections of the Criminal Code.
australian-federal-police-and-other-legislation-amendment-act-2004.pdf, p.11
8 Subsection 4(1) (subparagraph (a)(v) of the definition of
9 Subsection 4(1) (after subparagraph (a)(v) of the definition
Permits regulation under the Aviation Transport Security Act 2004 or its regulations.
Grants permission for regulation under the specified Acts or regulations.
10 Subsection 4(1)
Definition of "protective service officer"
11 Subsection 4(1)
Definition of special protective service officer
12 Division 1 of Part II (heading)
Repeal heading and substitute with new text.
13 At the end of section 6
Amendment of the Australian Federal Police Act 1979
8 Australian Federal Police and Other Legislation Amendment Act 2004
Add special protective service officers.
australian-federal-police-and-other-legislation-amendment-act-2004.pdf, p.12
14 After paragraph 8(1)(bd)
Inserts duties for Minister to direct protective and custodial functions by notice in writing.
15 After section 8
8A Minister may direct which functions are protective service
The Minister may direct which functions are protective service.
16 Subsection 12A(1)
17 Subsection 12A(1)
18 Subsection 12A(1) (definition of police dog)
19 Subsection 12A(1) (definition of police dog handler)
20 Subsection 12A(1)
21 Subsections 12A(2), (3) and (4)
Omit 'a police dog' and substitute 'an AFP dog'.
australian-federal-police-and-other-legislation-amendment-act-2004.pdf, p.13
22 Subsections 12A(2), (3) and (4)
Omit 'the police dog' and substitute 'the AFP dog'.
23 Subsection 12A(2)
Insertion of 'or a protective service officer' after 'member'
24 Subsection 12A(3)
The original text contains the phrase to be omitted
The modified text does not contain the omitted phrase
25 Paragraph 12A(3)(b)
Insert “or protective service officer” after “member”.
26 Paragraph 12A(4)(a)
Insertion of 'or specified protective service officer' after 'member'
27 At the end of Part II
14A Powers of arrest
A protective service officer may arrest a person without warrant for a protective service offence if they believe on reasonable grounds that the person has committed or is committing the offence.
10 Australian Federal Police and Other Legislation Amendment Act
Ensure appearance before court, prevent continuation or repetition of offence, preserve safety and welfare.
australian-federal-police-and-other-legislation-amendment-act-2004.pdf, p.14
(i) ensuring the appearance of the person before a court of competent jurisdiction for the offence;
Prevent continuation or repetition of offence
(ii) preventing the continuation of, or a repetition of, the offence or the commission of a further protective service offence;
Prevent concealment, loss or destruction of evidence
(iii) preventing the concealment, loss or destruction of evidence of, or relating to, the offence;
(iv) preserving the safety or welfare of the person;
14B Use of force in making arrest etc.
14B(1) Use of force in making arrest etc.
14B(2) Use of force in making arrest etc.
Protective service officer must not cause death or grievous bodily harm unless necessary to protect life.
Prohibition of causing death or grievous bodily harm
14C Arrested person to be informed of grounds of arrest
14C(1) Arrested person to be informed of grounds of arrest
Arrested person must be informed of grounds of arrest.
14C(2) Arrested person to be informed of grounds of arrest
Informing the arrested person of the substance of the offence is sufficient compliance.
Information about the substance of the offence
14C(3) Arrested person to be informed of grounds of arrest
Informing grounds of arrest is not required for protective service officers in certain circumstances.
Protective service officers are exempt from informing the arrested person.
The person's actions make it impracticable for the officer to inform them.
This provision overlaps with other provisions in Schedule 1.
Other provisions are also part of the schedule.
14C(4) Arrested person to be informed of grounds of arrest
Protective service officer must inform arrested person of grounds for arrest if they are unable to understand due to language or disability.
Explanation of the substance of the offence that the person is able to understand
Reasonable grounds for believing the person is unable to understand
Continuous effort to ensure the person understands
14D Search of arrested person
australian-federal-police-and-other-legislation-amendment-act-2004.pdf, p.15
14D(1) Search of arrested person
Lawful arrest allows search of person and property.
Right to conduct search upon lawful arrest.
14D(2) Search of arrested person
Permitted conduct for search of arrested person
12 Australian Federal Police and Other Legislation Amendment Act
australian-federal-police-and-other-legislation-amendment-act-2004.pdf, p.16
12(3) Australian Federal Police and Other Legislation Amendment Act
Exempts good faith searches from liability
12(4) Australian Federal Police and Other Legislation Amendment Act
No excessive force or indignity during search
Prohibition of excessive force and indignity
(4) A protective service officer or other person who conducts a search
must not use more force, or subject an arrested person to greater indignity
Recurring trace of conduct during search
Diffusion of prohibition through conduct
Classification of conduct as excessive force and indignity by AI
12(5) Australian Federal Police and Other Legislation Amendment Act
(5) A protective service officer or other person who lawfully conducts a search under this section may seize:
14E How arrested person to be dealt with
14E(1) How arrested person to be dealt with
Ensure delivery of arrested person to police officer for dealing with according to law.
Protective service officer arrests a person for an offence
Delivery of arrested person must occur after arrest
Delivery of arrested person occurs after arrest
14E(2) How arrested person to be dealt with
14E(3) How arrested person to be dealt with
14F Release of arrested person
Protective service officer must release arrested person from custody.
australian-federal-police-and-other-legislation-amendment-act-2004.pdf, p.17
14G Relationship of Division to other laws
Power of arrest is in addition to other laws
...powers of arrest available to protective service officers under any other law of the Commonwealth or the law of a State or Territory.
14 Australian Federal Police and Other Legislation Amendment Act
australian-federal-police-and-other-legislation-amendment-act-2004.pdf, p.18
14(2) Australian Federal Police and Other Legislation Amendment Act
Arrests made by protective service officers are subject to sections 14B to 14F.
14(3) Australian Federal Police and Other Legislation Amendment Act
Conditional commencement of subsection (2) subject to sections 252 and 253 of the Migration Act 1958.
14(4) Australian Federal Police and Other Legislation Amendment Act
Powers and duties of protective service officers are not exclusive.
14(5) Australian Federal Police and Other Legislation Amendment Act
Protects individual rights and freedoms concurrently with other laws.
Applies to concurrent operation of laws.
14H Definitions
Definitions for designated person and police officer.
Defines a class hierarchy for the terms 'designated person' and 'police officer'
Defines subclasses of 'designated person' and 'police officer'
14I Requirement to provide name etc.
australian-federal-police-and-other-legislation-amendment-act-2004.pdf, p.19
14I(1) Requirement to provide name etc.
Request to provide name, address and reason for presence
14I(2) Requirement to provide name etc.
Suspect must comply with request from designated person.
16 Australian Federal Police and Other Legislation Amendment Act
A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).
australian-federal-police-and-other-legislation-amendment-act-2004.pdf, p.20
14J Stopping and searching
14J(1) Stopping and searching
Designated person may stop and search suspect
(1) This section applies if a designated person suspects...
14J(2) Stopping and searching
Designated person may stop and search suspect.
Person permitted to stop and search suspect.
14J(3) Stopping and searching
Designated person may delegate search to another of the same sex if reasonably available.
14J(4) Stopping and searching
Designated person must explain the meaning of a search to an officer or another person.
Information about the type of search requested
14J(5) Stopping and searching
Good faith and non-contravention of subsection (6) excuse liability for search conduct.
18 Australian Federal Police and Other Legislation Amendment Act
australian-federal-police-and-other-legislation-amendment-act-2004.pdf, p.22
18(6) Australian Federal Police and Other Legislation Amendment Act
18(7) Australian Federal Police and Other Legislation Amendment Act
No detention for longer than reasonably necessary for a search.
18(8) Australian Federal Police and Other Legislation Amendment Act
Search a thing suspected to be brought by the suspect onto premises where Australian Federal Police is performing protective service functions.
(8) If subparagraph (1)(a)(iv) applies, the designated person may...
...search a thing that the designated person suspects on reasonable grounds was brought by the suspect onto premises at which the Australian Federal Police is performing protective service functions.
Search occurs during protective service function
Search may be repeated if new information arises
Search permits are conditional upon subparagraph (1)(a)(iv) applying
18(9) Australian Federal Police and Other Legislation Amendment Act
No force may be used to damage a thing unless certain conditions are met.
14K Seizure of things found
14K(1) Seizure of things found
Designated person has obligation to seize thing
14K(2) Seizure of things found
Seizure of weapons or things suspected to be used for harm
14K(3) Seizure of things found
Designated person must deliver thing into custody of police officer as soon as practicable.
Obligation to deliver thing into custody of police officer.
14L How seized things must be dealt with
australian-federal-police-and-other-legislation-amendment-act-2004.pdf, p.23
14L(1) How seized things must be dealt with
Police officer must serve seizure notice within 7 days after seizure day.
14L(2) How seized things must be dealt with
14L(3) How seized things must be dealt with
20 Australian Federal Police and Other Legislation Amendment Act
australian-federal-police-and-other-legislation-amendment-act-2004.pdf, p.24
20(4) Australian Federal Police and Other Legislation Amendment Act
Owner has obligation to return seized thing
20(5) Australian Federal Police and Other Legislation Amendment Act
Police officer must return seized thing to owner under certain conditions.
Police officer is responsible for the thing.
Must return thing to owner if conditions are met.
Police officer has permission to return thing if conditions are met.
The police officer is responsible for the thing.
May return thing to owner under certain conditions.
Police officer has obligation to return thing if conditions are met.
Must return thing to owner under certain conditions.
Police officer has obligation to protect public from harm.
Must not return thing if it would cause harm to public.
Police officer has obligation to protect owner from harm.
Must not return thing if it would cause harm to owner.
20(6) Australian Federal Police and Other Legislation Amendment Act
Seizure notice must be requested for return within 90 days.
Prohibits action without request for return within 90 days.
Request for return must be made within 90 days.
Seizure notice must be requested within a specific time interval.
Request outside this window results in forfeiture.
20(7) Australian Federal Police and Other Legislation Amendment Act
Return seized thing to owner within 90 days
20(8) Australian Federal Police and Other Legislation Amendment Act
Defines seizure day for a thing seized by a designated person.
22 Australian Federal Police and Other Legislation Amendment Act
australian-federal-police-and-other-legislation-amendment-act-2004.pdf, p.26
14M Application to magistrate
14M(1) Application to magistrate
Police officer may apply to a magistrate for an order.
Police officer has the right to apply to a magistrate.
14M(2) Application to magistrate
Magistrate must allow owner to appear and be heard in application determination
Magistrate must allow owner to appear and be heard
14M(3) Application to magistrate
Magistrate may make orders to retain, forfeit, or sell a thing seized under certain circumstances.
Magistrate prohibits the return of a thing seized under certain circumstances.
...the magistrate may make any of the following orders:
Magistrate authorizes the retention, forfeiture, or sale of a thing seized under certain circumstances.
The text specifies a temporal interval for the retention of a thing seized under subsection 14K(1).
(c) that the thing be retained by the police officer...
...for the period specified in the order:
Magistrate permits the return of a thing seized under certain circumstances.
(e) that the thing is to be sold and the proceeds...
14M(4) Application to magistrate
Magistrate must order return of thing to owner if not satisfied.
Magistrate must order return of thing to owner.
(4) If the magistrate is not satisfied as mentioned in subsection (3),
the magistrate must order that the thing be returned to the owner.
Temporal interval of satisfaction must be greater than or equal to temporal interval of return.
Temporal interval of satisfaction must be less than or equal to temporal interval of return.
14N Relationship of Division to other laws
No other laws can limit or exclude the operation of this Division.
australian-federal-police-and-other-legislation-amendment-act-2004.pdf, p.27
28 After subsection 36(4)
28(4A) After subsection 36(4)
Undertaking to perform duties as a protective service officer
28(4B) After subsection 36(4)
Person appointed to assist in performing protective service functions must enter into an undertaking and make oath or affirmation.
Must perform duties in accordance with undertaking.
29 Section 39
24 Australian Federal Police and Other Legislation Amendment Act
Omit ‘or a special member’, substitute ‘, a special member or a special protective service officer’.
australian-federal-police-and-other-legislation-amendment-act-2004.pdf, p.28
30 Section 40
Omit 'or a special member', substitute ', a special member or a special protective service officer'.
Prohibits omitting 'or a special member'
Substitute ', a special member or a special protective service officer'
31 Paragraph 40(e)
32 Subsection 40A(1)
Omit 'or a special member', substitute 'a special member or a special protective service officer'.
33 Subsection 40A(2)
Omit 'or special member', substitute 'special member or special protective service officer'
34 Section 40B
Insertion of '(other than a protective service officer)' after 'AFP employee'
35 At the end of section 40B
A person who is currently a protective service officer may be declared to be a member if the person ceases to be a protective service officer.
36 After Division 3 of Part IV
Insert clause after Division 3 of Part IV
40EA AFP employees who are protective service officers
Declaration of AFP employee as protective service officer
40EB Determination of competency or qualification requirements
Commissioner may specify competency and qualification requirements by written determination.
australian-federal-police-and-other-legislation-amendment-act-2004.pdf, p.29
40EC Special protective service officers
Commissioner may appoint special protective service officer.
40ED Powers and duties of special protective service officers
Special protective service officers have powers and duties expressly conferred or imposed under this Act.
37 After paragraph 60A(1)(d)
Special protective service officer obligation
38 Subsection 61(1)
26 Australian Federal Police and Other Legislation Amendment Act
australian-federal-police-and-other-legislation-amendment-act-2004.pdf, p.30
39 Paragraph 63(1)(c)
40 Paragraph 63(1)(d)
41 Subsection 63(2)
Prohibits omitting specified subsections
42 After section 63
63A Personation etc. of protective service officer or special
63A(1) Personation etc. of protective service officer or special
Wearing or displaying a uniform or badge of a protective service officer, or possessing certain articles, is prohibited.
63A(2) Personation etc. of protective service officer or special
Defendant bears evidential burden for reasonable excuse.
Defendant has an obligation to provide a reasonable excuse.
Defendant bears the burden of proof for the matter in subsection (2).
63B Possession of documents etc.
australian-federal-police-and-other-legislation-amendment-act-2004.pdf, p.31
63B(1) Possession of documents etc.
Possession of certain documents is prohibited.
63B(2) Possession of documents etc.
Defendant bears evidential burden in relation to reasonable excuse.
Defendant must believe in reasonable excuse.
43 Subsection 64(2)
44 Subsection 64A(1)
45 After section 64A
45(1) After section 64A
Must wear identification number on uniform.
45(2) After section 64A
Strict liability offence after section 64A
45(3) After section 64A
Defence to prosecution for offence against subsection (1)
28 Australian Federal Police and Other Legislation Amendment Act
The Commissioner must take steps to enable protective service officers to comply with subsection (1).
australian-federal-police-and-other-legislation-amendment-act-2004.pdf, p.32
46 After section 64AA
Prohibits AFP employees from exercising powers while suspended.
47 Subsection 64B(1)
Insertion of 'or a protective service officer'
48 At the end of subsection 64B(1)
Insert “or the protective service officer”.
49 Subsection 64B(2)
50 Subsection 64B(4)
51 Subsection 64B(4)
Insertion of 'or the protective service officer'
52 At the end of paragraph 64B(5)(a)
australian-federal-police-and-other-legislation-amendment-act-2004.pdf, p.33
53 At the end of subsection 64B(5)
Add a reference to a special protective service officer.
A reference to a special protective service officer must be included.
54 Subsection 66(1)
55 Subsection 66(2)
Prohibits the use of 'or special member'
56 After subsection 68(4)
Certification of protective service officer declaration
30 Australian Federal Police and Other Legislation Amendment Act
australian-federal-police-and-other-legislation-amendment-act-2004.pdf, p.34
30(4B) Australian Federal Police and Other Legislation Amendment Act
Certification of special protective service officer appointment details
30(4C) Australian Federal Police and Other Legislation Amendment Act
Certification of protective service officer status
57 After section 68
68A Certificates in relation to transferred PSOs
68A(1) Certificates in relation to transferred PSOs
This section applies in relation to a person who is a transferred PSO, instead of subsection 68(4A).
(1) This section applies in relation to a person who is a transferred PSO, instead of subsection 68(4A).
Involves temporal continuity for transferred PSOs
68A(2) Certificates in relation to transferred PSOs
Commissioner must certify a person as a transferred PSO.
68A(3) Certificates in relation to transferred PSOs
The Commissioner must certify certain information about a person.
68A(4) Certificates in relation to transferred PSOs
Document purporting to be a certificate is taken to be valid unless proven otherwise.
Obligation to accept a certificate as valid
68A(5) Certificates in relation to transferred PSOs
Certificate under this section is prima facie evidence of the matters stated in the certificate.
The certificate is prima facie evidence.
68A(6) Certificates in relation to transferred PSOs
Definitions for APS transferees and transferred PSOs
58 After section 69D
australian-federal-police-and-other-legislation-amendment-act-2004.pdf, p.35
69E Commissioner may charge for certain protective services
Commissioner may charge for certain protective services
32 Australian Federal Police and Other Legislation Amendment Act
australian-federal-police-and-other-legislation-amendment-act-2004.pdf, p.36
32(2) Australian Federal Police and Other Legislation Amendment Act
A charge must be reasonably related to the cost of providing services.
32(3) Australian Federal Police and Other Legislation Amendment Act
59 Paragraph 70(a)
60 Paragraph 70(aa)
1 Subsection 3(1) (definition of protective service officer)
Definition of protective service officer
australian-federal-police-and-other-legislation-amendment-act-2004.pdf, p.37
2 The whole of the Act
3 Paragraphs 82(b) and (c)
Omit Australian Protective Service Act 1987, substitute Australian Federal Police Act 1979.
Prohibition of the Australian Protective Service Act 1987
4 Subsection 3(1) (definition of AFP appointee)
Omit “or a special member”, substitute ‘, a special member or a special protective service officer’.
5 Subsection 89(5) (definition of protective service officer)
6 Subsection 3(1) (subparagraph (a)(i) of the definition of
34 Australian Federal Police and Other Legislation Amendment Act
australian-federal-police-and-other-legislation-amendment-act-2004.pdf, p.38
7 Subsection 234ABA(4) (definition of protective service
8 Subsection 7(1) (item 3 of the table)
9 Subsection 5(1) (paragraph (c) of the definition of officer)
10 Subsection 3(1) (definition of protective service officer)
Substitute Australian Federal Police Act 1979 for Australian Protective Service Act 1987.
Imposes a duty on the legislative body to substitute the Act.
11 Section 9
12 Paragraph 5(m)
Omit Australian Protective Service Act 1987 and substitute with Australian Federal Police Act 1979.
13 Subsection 4(1) (definition of protective service officer)
australian-federal-police-and-other-legislation-amendment-act-2004.pdf, p.39
Imposes a duty on the legislative body to make the substitution.
36 Australian Federal Police and Other Legislation Amendment Act
australian-federal-police-and-other-legislation-amendment-act-2004.pdf, p.40
1A Subsection 4(1)
Defines 'federal aspect' in relation to an offence against a law of a State or the Australian Capital Territory.
1 After section 4
4AA State offences that have a federal aspect
4AA(1A) State offences that have a federal aspect
Identify State offences with a federal aspect
(1A) The object of this section is to identify State offences that have a federal aspect because: (a) they potentially fall within Commonwealth legislative power because of the elements of the State offence; or (b) they potentially fall within Commonwealth legislative power because of the circumstances in which the State offence was committed (whether or not those circumstances are expressed to be acts or omissions involved in committing the offence); or (c) the Australian Federal Police investigating them is incidental to the Australian Federal Police investigating an offence against a law of the Commonwealth or a Territory.
4AA(1) State offences that have a federal aspect
A State offence has a federal aspect if certain conditions are met.
States the condition for a State offence to have a federal aspect.
(1) For the purposes of this Act, a State offence has a federal aspect if...
...the provision would have been a valid law of the Commonwealth;
4AA(2) State offences that have a federal aspect
Specify acts or omissions in State offences with federal aspect
38 Australian Federal Police and Other Legislation Amendment Act
australian-federal-police-and-other-legislation-amendment-act-2004.pdf, p.42
38(3) Australian Federal Police and Other Legislation Amendment Act
A State offence is taken to be covered by paragraph (1)(c) if the conduct constituting the State offence affects the interests of the Commonwealth or an authority of the Commonwealth.
38(4) Australian Federal Police and Other Legislation Amendment Act
38(5) Australian Federal Police and Other Legislation Amendment Act
Defines nancillary offence in relation to a primary offence.
2 After paragraph 8(1)(b)
Insertion of investigation of State offences with a federal aspect
australian-federal-police-and-other-legislation-amendment-act-2004.pdf, p.43
3 At the end of subsection 8(1)
Add Amendments relating to the investigation of State offences that have a federal aspect
40 Australian Federal Police and Other Legislation Amendment Act
Note for State offences with a federal aspect
australian-federal-police-and-other-legislation-amendment-act-2004.pdf, p.44
3A After subparagraph 9(1)(c)(iv)
Investigate State offences with a federal aspect
3B Section 12B (at the end of the definition of general
Adding a federal aspect is an obligation.
3C At the end of Division 2 of Part II
12M Concurrent operation of State and Territory laws
Concurrent operation of State and Territory laws
3D Subsection 3(1)
4 Subsection 3(1) (paragraph (a) of the definition of thing
Repeal and substitute paragraph (a) of the definition of thing relevant to an indictable offence with amendments relating to investigation of State offences that have a federal aspect.
5 Subsection 3(1) (paragraph (a) of the definition of thing
Repeal a paragraph and substitute it with two alternatives.
australian-federal-police-and-other-legislation-amendment-act-2004.pdf, p.45
6 After section 3
3AA State offences that have a federal aspect
42 Australian Federal Police and Other Legislation Amendment Act
australian-federal-police-and-other-legislation-amendment-act-2004.pdf, p.46
42(1) Australian Federal Police and Other Legislation Amendment Act
The provision creating the State offence had been enacted by the Parliament of the Commonwealth instead of by the Parliament of the State.
Assuming that the Parliament of the Commonwealth had enacted a provision that created an offence penalising the specific acts or omissions involved in committing the State offence—that provision would have been a valid law of the Commonwealth.
Both: (i) the Australian Federal Police is investigating a matter relating to a relevant criminal activity that relates to an offence against a law of the Commonwealth or a Territory; and (ii) if the Australian Federal Police is investigating, or were to investigate, a matter relating to a relevant criminal activity that relates to the State offence—that investigation is, or would be, incidental to the investigation mentioned in subparagraph (i).
Both: (i) the State offence is not an ancillary offence; and (ii) assuming that the provision creating the State offence had been enacted by the Parliament of the Commonwealth instead of by the Parliament of the State—the provision would have been a valid law of the Commonwealth.
Both: (i) the State offence is an ancillary offence that relates to a particular primary offence; and (ii) assuming that the provision creating the primary offence had been enacted by the Parliament of the Commonwealth instead of by the Parliament of the State—the provision would have been a valid law of the Commonwealth.
42(2) Australian Federal Police and Other Legislation Amendment Act
Determine specificity of acts or omissions in State offences
Determines the specificity of acts or omissions in State offences
42(3) Australian Federal Police and Other Legislation Amendment Act
44 Australian Federal Police and Other Legislation Amendment Act
australian-federal-police-and-other-legislation-amendment-act-2004.pdf, p.48
44(4) Australian Federal Police and Other Legislation Amendment Act
44(5) Australian Federal Police and Other Legislation Amendment Act
Defines nancillary offence, including conspiring to commit an offence and aiding or abetting its commission.
Defines subclass relationships between terms.
6A Subsection 3C(1) (paragraph (b) of the definition of
Omit 'other than the Australian Capital Territory'
Prohibits omission of 'other than the Australian Capital Territory'
7 Subsection 3C(1) (at the end of the definition of offence)
australian-federal-police-and-other-legislation-amendment-act-2004.pdf, p.49
7A Subsection 3D(3)
7B Subsection 3D(4)
8 At the end of section 3D
No federal aspect limitation on concurrent State laws
No permission granted for concurrent State laws limitation
Federal aspect limitation obligation on concurrent State laws
9 Subsection 3ZQA(1) (definition of Commonwealth offence)
Substitutes a new definition for Commonwealth offence
10 Paragraph 15H(b)
Insertion of a new term into the definition of serious Commonwealth offence.
Applicable to temporal relations with federal aspects
11 At the end of section 15HB
46 Australian Federal Police and Other Legislation Amendment Act
Defines serious State offence with a federal aspect.
australian-federal-police-and-other-legislation-amendment-act-2004.pdf, p.50
(2) For the purposes of this Part, serious State offence that has a federal aspect means...
...a State offence that has a federal aspect and that has the characteristics of a serious Commonwealth offence.
Class hierarchy for serious State offences
Implication from definition to application
Definition of serious State offence by AI
12 Subsection 23B(1) (definition of Commonwealth offence)
13 Subsection 23WA(1) (definition of indictable offence)
13A Subsection 23WA(1) (definition of offence)
Omit specified text, substitute new text.
13B Subsection 23WA(1) (at the end of the definition of
Territory does not include the Northern Territory.
Territory is defined as the Australian Capital Territory and the external territories.
The Northern Territory is not included in this definition.
Temporal relation between Territory and Northern Territory
Territory and the Northern Territory are disjoint temporal intervals.
The Northern Territory is excluded from this definition.
14 Subsection 23WA(1) (definition of prescribed offence)
Insertion of a reference to a State offence with a federal aspect after 'Commonwealth'
15 Subsection 23WA(1) (definition of serious offence)
Definition of serious offence includes a State offence with a federal aspect.
16 After Division 11A of Part ID
Insert provision after Division 11A of Part ID
australian-federal-police-and-other-legislation-amendment-act-2004.pdf, p.51