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Australian Crime Commission Amendment (Criminology Research) Bill 2016

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2016

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

Australian Crime Commission AMENDMENT (cRIMINOLOGY RESEARCH) Bill 2016

 

 

EXPLANATORY MEMORANDUM

 

 

 

(Circulated by authority of the

Minister for Justice, the Hon Michael Keenan MP)

                                                                                                        



 

Australian Crime Commission aMEndMENT (CRIMINOLOGY RESEARCH) bILL 2016

general Outline

1.                 The purpose of this Bill is to amend the Australian Crime Commission Act 2002 (ACC Act) and repeal the Criminology Research Act 1971 (CR Act) in order to merge the Australian Institute of Criminology (AIC) with the Australian Criminal Intelligence Commission (ACIC) (also known as the Australian Crime Commission (ACC)).

2.                 This merger brings together Australia’s national criminal intelligence and research capabilities under one banner. Having a unified resource of this type will enrich our national understanding of criminal activity, including serious and organised crime and terrorism, allowing police, justice agencies and policy makers at all levels of government to adopt a more effective, efficient and evidence-based response to crime.

3.                 Under the proposed merger, the AIC will carry its research functions over to the ACIC (including its ability to undertake commissioned research) and the AIC’s corporate functions will be merged with those of the ACIC. The position of AIC Director will be abolished.

4.                 The AIC’s research functions will form a new branch of the ACIC, to be known as the Australian Crime and Justice Research Centre. The branch will be headed by a senior criminologist and research specialist, and its activities will be subject to peer review and overseen by an ethics committee. The structure was agreed based on specific feedback from stakeholders that the merged agency needed to maintain the capability to produce independent research in order to inform evidence-based policy.

5.                 The Bill comprises two schedules.

6.                 Schedule 1 makes amendments to the ACC Act.  The purpose of the amendments in this schedule is to enable the merged agency to:

·          continue to carry out the AIC’s research work

·          share criminological research and information with any person, including the private sector, and

·          carry out commissioned research.

7.                 Schedule 2 repeals the Criminology Research Act to abolish the AIC as a statutory agency.

8.                 The specific amendments are detailed below under the heading ‘Notes on Clauses’.

FINANCIAL IMPACT

9.                 The merger will be cost neutral with small savings expected over the forward estimates.



STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Australian Crime Commission aMEndMENT (CRIMINOLOGY RESEARCH) bILL 2016

10.             This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Overview of the Bill

11.             The Bill amends the Australian Crime Commission Act 2002 (ACC Act) and repeals the Criminology Research Act 1971 (CR Act) to merge the functions of the Australian Institute of Criminology (AIC) into the Australian Criminal Intelligence  Commission (ACIC).

Human rights implications

12.             This Bill engages the right to freedom from unlawful or arbitrary interferences with a person’s privacy under Article 17 of the International Covenant on Civil and Political Rights (ICCPR).

13.             Article 17 of the ICCPR accords everyone the right to protection against arbitrary or unlawful interference with their privacy. Lawful interferences with the right to privacy will be permitted, provided they are reasonable in the particular circumstances. The UN Human Rights Committee has interpreted ‘reasonableness’ in this context to imply that ‘any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case’. [1]

14.             The Bill engages the right to privacy by inserting a new information disclosure regime into the ACC Act that would supplement the ACIC’s existing information dissemination regime and enable the ACIC to disclose and publish criminological research and related information.

15.             The ACC Act currently contains strict information sharing provisions that apply to ‘ACC information’. ‘ACC information’ is broadly defined to mean information that is in the ACC’s possession. Given the breadth of this definition, once the AIC is merged into the ACIC, AIC information, AIC data holdings and future criminological research carried out by the ACIC will become ‘ACC information’ for the purposes of the ACC Act.

16.             While the current provisions of the ACC Act would not prevent the ACIC from disclosing and publishing criminological research, they would subject it to stricter conditions than currently apply under the CR Act.

17.             The Bill will insert a new section 59AE into the ACC Act to allow the ACIC CEO to disclose and publish the ACIC’s criminological research and related information in a similar manner to which the AIC Director can currently disclose that information under the CR Act.

18.             Where the ACIC’s criminological research or related information contains personal information (as defined by the Privacy Act 1988 ), the new information disclosure regime will outline additional requirements that must be met before the ACIC can disclose that information. These additional requirements are modelled on the information use and dissemination provisions of the Privacy Act, particularly Australian Privacy Principle 6. 

19.             Under these additional requirements, the ACIC CEO will be prohibited from disclosing personal information that was collected for the purpose of criminological research for another purpose unless:

 

a)       the individual has consented to the use or disclosure

b)       the individual would reasonably expect the ACC would use or disclose the information for the other purpose and that other purpose is:

a.        if the information is sensitive information within the meaning of the Privacy Act—directly related to the purpose for which the information was collected, or

b.       if the information is not sensitive information—related to the purpose for which the information was collected, or

c)       a permitted general situation within the meaning of the Privacy Act exists in relation to the use or disclosure of the information by the ACC.

20.             The creation of a new information disclosure regime for the ACIC is reasonable in the circumstances and proportionate to the aims of the Bill. The requirement that the ACIC CEO may only disclose criminological research and related information containing personal information in very limited circumstances will ensure that a person’s right to privacy is only affected with their consent, or where they would have a reasonable expectation that their information would be shared, or where disclosing the information is otherwise required to achieve the legitimate aims of lessening or preventing a serious threat to the life, health or safety of any individual or protecting public health and safety. Further, the AIC may currently disclose research containing personal information in these circumstances. 

21.             In these circumstances, the Bill creates permissible limitations on the right to privacy.

Conclusion

27.               The measures in the Bill are compatible with the human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .  To the extent that these measures may limit those rights and freedoms, such limitations are reasonable, necessary and proportionate.

 

 

 

 

NOTES ON CLAUSES

Background

1.                    This Bill implements the Government’s decision to pursue a merger of the Australian Institute of Criminology (AIC) with the Australian Criminal Intelligence Commission (ACIC)(also known as the Australian Crime Commission (ACC)).

2.                    The Bill amends the Australian Crime Commission Act 2002 (Cth)(ACC Act) to enable the ACIC to perform the AIC’s functions, including carrying out criminology research, sharing and publishing that research and carrying out commissioned research.

3.                    The Bill will also repeal the Criminology Research Act 1971 (CR Act) to abolish the AIC as a statutory agency.

Preliminary

Clause 1 - Short title

4.                    Clause 1 provides for the short title of the Act to be the Australian Crime Commission Amendment (Criminology Research) Act 2016.

Clause 2 - Commencement

5.                    This clause set outs when the various parts of the Bill are to commence. 

6.                    Item 1 in the table provides that the whole of the Act will commence on a day to be fixed by Proclamation. If the provisions do not commence before 1 July 2017, they will commence on that day. This is longer than the standard time between Royal Assent and Proclamation. The beginning of the financial year has been chosen as the most administratively convenient time for the proposed machinery of government changes to occur if another date is not fixed by Proclamation.

Clause 3 - Schedules

7.                    This is a formal clause that provides that the Schedules to the Act amend the Acts as set out in the relevant Schedule.



Schedule 1 - Amendments

GENERAL OUTLINE

The purpose of Schedule 1 is to make necessary amendments to the ACC Act to merge the AIC into the ACIC and ensure that the merged agency can carry out the existing functions of the AIC.

Australian Crime Commission Act 2002

Item 1 - Subsection 4(1)

This item inserts a new definition of ‘criminological research’ into subsection 4(1) of the ACC Act. ‘Criminological research’ is defined to mean research in connection with the causes, consequences, correction and prevention of criminal behaviour and any related matter.

This definition reflects the existing definition of criminological research in the CR Act and is used in later provisions to outline the ACIC’s new research functions.

Item 2 - Subsection 4(1) (paragraph (i) of the definition of permissible purpose )

This item repeals ‘researching criminology’ in paragraph (i) of ‘permissible purpose’ and replaces it with ‘criminological research’, for consistency of terms throughout the ACC Act.

Item 3 - After paragraph 7A(fa)

This item inserts a new paragraph (fb) into section 7A of the ACC Act to enable the ACIC to perform the functions currently carried out by the AIC.

Section 7A of the ACC Act sets out the ACIC’s existing statutory functions. Under this provision, the ACIC already has a legislated function to ‘collect and analyse criminal information’. However, this function requires a link to past, present or future criminality by any person.

To remove any doubt as to the scope of the ACIC’s ability to carry out criminological research, new paragraph 7A(fb) will provide the ACIC with a clear power to exercise the following functions currently performed by the AIC, without necessarily requiring a link with past, present or future criminality:

·          conducting criminological research

·          communicating the results of criminological research

·          performing other activities related to the conduct of criminological research (such as holding seminars or compiling crime-related statistics), and

·          administering programs for awarding grants for criminological research and activities related to the research, and assisting the recipients of grants in that research or those activities.

Under the CR Act, the AIC is limited to the objectives of promoting justice and reducing crime in performing these functions.  The ACIC’s criminological research and related activities may continue to promote these objectives, but will not be limited to these objectives.

While some of the criminological research may become aligned with law enforcement’s high level priorities, the remit of the ACIC’s criminological function will continue to be widely defined as crime and justice issues of national importance, extending beyond purely law enforcement.

This Act does not need to confer a new function on the ACIC Board to mirror the ACIC’s new functions.  Under paragraph 7C(1)(b) of the ACC Act, the ACIC Board already has the function of providing strategic direction to the ACIC and determining the ACIC’s priorities.  Following the broadening of the ACIC’s functions as set out in proposed paragraph 7A(fb), the Board may  provide strategic direction to the ACIC in relation to these new functions or determine the ACIC’s criminological research priorities under the broad power in paragraph 7C(1)(b). 

In doing so, the ACIC Board will take advice from a non-legislated Research Advisory Committee about the ACIC’s strategic research priorities and Criminology Research Grants program.

The Committee will consist of existing Criminology Research Advisory Council members (being state and territory justice agencies and the Commonwealth Attorney-General’s Department), two law enforcement representatives, two members from the ACIC and a representative from the Australian and New Zealand Society of Criminology (ANZSOC). Including an ANZSOC representative ensures that there will be a specialised and independent criminology research voice on the Committee, which does not currently exist on the Advisory Council. Having a non-legislated body ensures there is the flexibility to add other members if subject matter expertise would assist on particular subjects.

Item 4 - After section 15A

This item inserts a new section 15B into the ACC Act to enable the ACIC to charge fees for services that it provides in performing any of its functions relating to criminological research, as set out in new paragraph 7A(fb). 

New subsection 15B(2) provides that the fee must not amount to taxation. This means that the fee must be reasonably related to the cost of providing the service.

New subsection 15B(3) would require that any fee charged for this work would be due to the Commonwealth, as the ACIC is a Commonwealth agency, and would be recoverable by the ACIC, on behalf of the Commonwealth.

New section 15B will enable the ACIC to continue to charge for services relating to criminological research on a fee-for-service basis, as the AIC currently does.  The AIC currently undertakes a significant level of commissioned work for Commonwealth, state and territory agencies and the private sector, including research projects, surveys, program evaluations, performance audits, cost-benefit analyses, conferences, secretariat services, webhosting and other administrative type services. The Government proposes that this work would continue through the ACIC post-merger.

 

Item 5 - After section 59AD

This item inserts new section 59AE, which will add an additional information disclosure regime into the ACC Act that will apply specifically to the ACIC’s criminological research and related information.

The new information disclosure regime in section 59AE is intended to supplement the ACIC’s existing information dissemination regime in section 59AA and section 59AB of the ACC Act.

Currently, sections 59AA and 59AB contain strict information sharing provisions that apply to ‘ACC information’. ‘ACC information’ is broadly defined to mean information that is in the ACIC’s possession. Given the breadth of this definition, once the AIC is merged into the ACIC, AIC information, AIC data holdings and future criminological research carried out by the ACIC will become ‘ACC information’ for the purposes of the ACC Act.

Recognising the importance of making criminology research available to the research community and the Australian public, the Australian Crime and Justice Research Centre will continue to have access to the datasets available to the AIC, and will continue to make that data and research available in the same way the AIC currently does.

While the current provisions of the ACC Act would not prevent the ACIC from disclosing and publishing criminological research, they would subject it to stricter conditions than currently apply to the AIC. New subsection 59AE(1) will allow the ACIC CEO to disclose and publish the ACIC’s criminological research in a similar manner to which the AIC Director can currently disclose that information under the CR Act.

Under new subsection 59AE(1), the ACIC CEO will be able to disclose or publish criminological research and information related to that research to any person, if disclosing or publishing that research or information would not be contrary to subsection 25A(9) of the ACC Act or any other law of the Commonwealth or of a state or territory.

New subsection 59AE(2) will provide additional requirements where the ACIC’s criminological research or related information contains ‘personal information’, as defined by the Privacy Act 1988 (Privacy Act).

Under new subsection 59AE(2), the ACIC CEO will be prohibited from disclosing personal information that was collected for the purpose of criminological research for another purpose unless:

a)       the individual has consented to the use or disclosure

b)       the individual would reasonably expect the ACC would use or disclose the information for the other purpose and that other purpose is:

                                 i.             if the information is sensitive information within the meaning of the Privacy Act—directly related to the purpose for which the information was collected, or

                               ii.             if the information is not sensitive information—related to the purpose for which the information was collected, or

c)       a permitted general situation within the meaning of the Privacy Act exists in relation to the use or disclosure of the information by the ACC.

For the avoidance of doubt, subsection 59AE(2) is only intended to apply to the new disclosure regime in section 59AE and should not affect the broader ACIC information disclosure regime in sections 59AA and 59AB of the ACC Act.

These additional requirements are modelled on the information use and dissemination provisions of the Privacy Act, particularly Australian Privacy Principle 6.  It is necessary to replicate these principles in the Bill, as acts and practices of the ACIC are exempt from the scope of the Privacy Act.  Including these additional requirements in the new disclosure regime will ensure that personal information collected by the ACIC for research purposes remain subject to the same disclosure protections that currently apply to the AIC. 

While the Information Commissioner usually investigates breaches of the Privacy Act, he or she will not have jurisdiction under the ACC Act to investigate potential breaches of the new information disclosure regime.  However, the ACIC is subject to a robust accountability framework, which includes oversight by the Commonwealth Ombudsman, Integrity Commissioner and Parliamentary Joint Committee on Law Enforcement.  One or all of these bodies may be able to examine potential breaches of the new regime, depending on the nature of the complaint.

The Bill does not replicate any further provisions of the Privacy Act.  However, the ACIC is an agency that deals with a diverse range of sensitive information, including coercively obtained information and intelligence, as part of its core business, and is very experienced in ensuring that that information is appropriately secured and dealt with. As with the other types of sensitive information it collects, the ACIC will put technical and administrative mechanisms in place to ensure personal information collected for research purposes is collected, used and stored appropriately.  For example, the ACIC’s document management system allows users to lock down content to specific staff to ensure that information can only be accessed on a need-to-know basis. Other mechanisms that the ACIC is considering to ensure research information is sufficiently protected include conducting random audits on access to that information, and a CEO directive and other internal policies that outline how research information will be managed.

The ACIC will also be subject to the ethical requirements set out by National Health and Medical Research Committee guidelines for research involving human subjects. These requirements include the need to obtain informed consent when collecting data from participants and ensuring unit-record data (which has the potential to identify a single participant) is only used for research purposes. An ACIC Ethics Committee will provide oversight of the ACIC’s compliance with these requirements, as is currently the case for the AIC. 

Individuals will also maintain a right to access and correct their own personal information that the ACIC may hold for research purposes through the Freedom of Information Act 1982 .

The merged agency will maintain the JV Barry Library and will continue to provide public access to its holdings on an appointment-basis, as the AIC currently does. As part of the proposed merger, the AIC has also begun digitising parts of the JV Barry Library to improve public access. This process will continue following a merger.

 

 

Item 6 - After section 59E

This item inserts new sections 59F, 59G and 59H into the ACC Act to continue the Criminology Research Special Account (CR Special Account), set out what funds must be credited to the CR Special Account, and specify the purposes of the CR Special Account.

These provisions are intended to replicate section 46 of the CR Act, with amendments as required to reflect the merged agency structure.

Section 59F - Criminology Research Special Account

New subsection 59F(1) continues the CR Special Account that was established by section 46 of the CR Act.

New subsection 59F(2) provides that the CR Special Account is a special account for the purposes of the Public Governance, Performance and Accountability Act 2013 (PGPA Act)  to make it clear that the relevant provisions of the PGPA Act apply to the CR Special Account.

Maintenance of the CR Special Account will ensure that the ACIC can continue to manage the funds associated with commissioned research across financial years, as the AIC currently does.  Using a special account is advantageous as criminological research projects often extend for significant periods of time. 

Section 59G - Credits to the CR Special Account

New section 59G sets out the funds that must be credited to the CR Special Account.  These are:

a)       amounts appropriated by the Parliament for the purposes of the CR Special Account

b)       amounts paid by a State to the ACC for the purpose of performing functions related to criminological research

c)       amounts received by the ACC in relation to performing functions related to criminological research

d)      amounts of any gifts given or bequests made for the purposes of the CR Special Account

This provision replicates subsection 46(3) of the CR Act, with amendments to reflect the merged agency structure.  It is not intended to change the effect of subsection 46(3) of the CR Act.

For example, under paragraph 46(3)(c) of the CR Act, amounts received by the AIC in relation to performing any of its functions under that Act must be credited to the CR Special Account.  New subsection 59G(c) intends to replicate paragraph 46(3)(c) of the CR Act, with amendments as required to reflect changed agency arrangements.  That is, new subsection 59G(c) refers to:

·          the ‘ACC’ instead of the ‘Institute’, since the AIC will be merged with the ACIC through this Act, and

·          amounts received ‘in relation to performing functions relating to criminological research’, rather than ‘performing any functions under the Act’, as the ACIC has much broader functions under the ACC Act than what the AIC had under the CR Act.

Section 59H - Purposes of the CR Special Account

New section 59H sets out the purposes for which the CR Special Account may be debited. Under new section 59H, the CR Special Account may be debited for the following purposes:

a)       paying or discharging the costs, expenses and other obligations incurred by the Commonwealth in the performance of the ACC’s functions related to criminological research

b)       paying any remuneration and allowances payable to any person under the ACC Act connected to the ACC’s functions related to criminological research

c)       meeting the expenses of administering the CR Special Account

d)      paying any amount that is required or permitted to be repaid

e)       reducing the balance of the CR Special Account (and, therefore, the available appropriation for the CR Special Account) without making a real or notional payment.

This provision is intended to replicate subsection 46(4) of the CR Act, with amendments as required to reflect changed agency arrangements.

For example, paragraph 46(4)(b) of the CR Act allows the CR Special Account to be debited for the purpose of any remuneration and allowances payable to a person under that Act.  New subsection 59H(b) enables the CR Special Account to be debited for the purposes of paying any remuneration and allowances payable to any person under the ACC Act connected to the ACC’s functions related to criminological research .

The additional requirement in new subsection 59H(b) that remuneration or allowances must be connected to the ACIC’s criminological research functions reflects the fact that the ACIC has much broader functions under the ACC Act than the AIC had under the CR Act, and that these may require the payment of remuneration or allowances. Without the link to criminological research functions, subsection 59H(b) would enable the CR Special Account to be debited for a much broader range of purposes, which is not the intention of the provision.

Schedule 2 - Repeals

GENERAL OUTLINE

The purpose of Schedule 2 is to repeal the Criminology Research Act 1971 . As a result of the amendments made to the ACC Act, the provisions of the Criminology Research Act are no longer required.

Criminology Research Act 1971

Item 1 - The whole of the Act

This item repeals the Criminology Research Act 1971.

This item will abolish the AIC as a statutory agency and remove the requirement for there to be a Director of the AIC.

The Criminology Research Advisory Council will no longer be a statutory body.  Under the merged agency structure, the Advisory Council will continue as a non-legislated body providing advice to the ACIC CEO and ACIC Board.




[1] Toonen v Australia , CCPR/C/50/D/488/1992, UN Human Rights Committee (HRC), 4 April 1994.