The Australian Crime Commission Amendment Bill amends the Australian Crime Commission Act 2002 (the ACC Act) to clarify that an Australian Crime Commission (ACC) examiner can record their reasons for issuing a summons or notice to produce before, at the same times as, or as soon as practicable after, the summons or notice has been issued.

The Bill will also provide that summonses or notices issued after the commencement of the ACC Act, but prior to the commencement of the Bill, are not invalid where reasons were recorded subsequent to their issue. 

Further, the Bill will provide that a summons or notice will not be invalid merely because it fails to comply with technical requirements set out in the Act.

These aspects of the Bill have been developed in response to findings made by Justice Smith of the Victorian Supreme Court in ACC v Brereton [2007] VSC 297, which was handed down on 23 August 2007.  Justice Smith held that for a summons to be valid, reasons for issuing the summons must have been issued prior to the time the summons was actually issued. 

While Justice Smith’s findings in Brereton are confined to the issuance of summonses, his reasoning also has implications for notices to produce issued under the ACC Act. 

By clarifying that an ACC examiner may record their reasons for issuing a summons or notice to produce as soon as practicable after the summons or notice has been issued, the provisions of the Bill address potential operational difficulties for the ACC presented by the decision in Brereton. 

In particular, the amendments proposed by the Bill will address situations where summonses or notices need to be issued in urgent situations, or where large numbers need to be issued simultaneously.

The Bill will also address potential problems arising from the decision in relation to current operations/investigations, and prosecutions currently before the courts.  The Bill ensures that summonses and notices relied upon for current investigations/operations and prosecutions are not invalidated simply because reasons were recorded after they were issued. 

Preservation of procedural safeguards

This Bill preserves important procedural safeguards that ensure the integrity and fairness of examinations conducted under the ACC Act, and of convictions secured as a result of evidence obtained through those means.

The Bill, in so far as it provides that a summons or notice will not be invalid merely because it fails to comply with technical requirements set out in the Act, does not remove substantive procedural obligations.  The Bill preserves, for instance, the requirement that an examiner be satisfied that it is reasonable in all the circumstances to issue a summons or a notice to produce.  Similarly, the requirement that a summons should, other than in limited circumstances, set out the general nature of the matters in relation to which the examiner intends to question the person, is preserved in the Bill.

Retrospective application of provisions in the Bill

I note that some provisions in the Bill apply retrospectively to provide that summonses or notices to produce issued after the commencement of the ACC Act, but prior to the commencement of the Bill, are not invalid where reasons were recorded subsequent to their issue.

I understand that the retrospective application of these provisions could be detrimental to persons who might otherwise have had scope to challenge the validity of a summons or notice to produce.  The Government considers, however, that this is a just and appropriate outcome.  It does not consider that a failure to record reasons for issuing a summons or notice prior to issue of the summons or notice should give a person who would otherwise have been convicted of an offence technical grounds to challenge the admissibility of evidence and escape conviction.

Further measures

The Bill also makes minor amendments that would allow for a person to appear before, or produce documents to, an examiner who is not the same examiner who issued the summons or notice.

The amendments made by the Bill will enable the ACC to continue to play a key role in the investigation and prosecution of serious and organised crime in Australia.  The ACC’s intelligence gathering and law enforcement powers are critical to disrupting criminal organisations and significant individuals.  Therefore, the Government considers it important that these issues are resolved as soon as possible so that matters before the courts are not unduly affected.