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National Crime Authority Amendment Bill 2000 (No. 2)

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1998-1999-2000

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

SENATE

 

 

 

 

 

NATIONAL CRIME AUTHORITY AMENDMENT BILL 2000

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Justice and Customs, Senator the Honourable Amanda Vanstone)



NATIONAL CRIME AUTHORITY AMENDMENT BILL 2000

 

OUTLINE

 

This Bill amends the National Crime Authority Act 1984 (the NCA Act) to clarify the powers, functions and duties of the National Crime Authority following the High Court’s decision in R v Hughes (2000) 171 ALR 155.

 

The High Court’s decision in Hughes raised questions about the capacity of a Commonwealth authority (such as the National Crime Authority) to perform functions or exercise powers under State laws when the function or power conferred on the Commonwealth authority is coupled with a duty, particularly a duty that has the potential to affect the rights of individuals. The Court decided that where both a power and a duty are conferred on the Commonwealth authority pursuant to a Commonwealth/State legislative scheme, an appropriate Commonwealth head of power must support the conferral of that power and duty .  

 

The amendments will:

 

·         confirm the power of the National Crime Authority to investigate offences under the NCA Act against a law of the Commonwealth, or a law of a Territory, or when the offence is an offence against a law of a State and that State offence has a federal aspect;

·         clarify that when a function or power is conferred on the National Crime Authority by a law of a State in circumstances where the function or power is coupled with a duty, the Commonwealth’s consent to the conferral will be limited to matters that have a federal aspect; and

·         ensure that when the National Crime Authority is exercising a function or power under a law of a State where there is no federal aspect to that function or power, the National Crime Authority will not be under a duty or obligation under Commonwealth law to perform that function or exercise that power.

 

 

 

 

 

FINANCIAL IMPACT STATEMENT

 

There are no direct financial impacts from this Bill.



NOTES ON CLAUSES

 

Clause 1: Short title

The short title of the Act is the National Crime Authority Amendment Act 2000.

 

Clause 2: Commencement

The Act commences on the day on which it receives the Royal Assent.

 

Clause 3: Schedule(s)

This clause provides that each Act that is specified in a Schedule is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule has effect according to its terms.



Schedule 1 - Amendment of the National Crime Authority Act 1984

 

Item 1

 

This Item inserts a definition of the term federal aspect into subsection 4(1) and provides that, in relation to an offence against a law of a State, it will have the meaning given by proposed subsection 4A(2) (see Item 5).

 

Item 2

 

This Item inserts a definition of the term federally relevant criminal activity .  Relevant criminal activity (defined in subsection 4(1)) will be “federally relevant criminal activity” where the relevant offence (defined in subsection 4(1)) is an offence against a law of the Commonwealth, or of a Territory, or where the relevant offence is an offence against a law of a State and that State offence has a federal aspect (see

Item 5).   Relevant criminal activity will not be federally relevant criminal activity where the relevant offence is an offence against a law of a State and that State offence does not have a federal aspect.

 

Item 3

 

This Item amends the definition of original reference so that it will apply to all references for which an additional office for a member of the National Crime Authority (the Authority) may be created under subsection 7(8AA).

 

Item 4

 

This Item amends the definition of related reference so that it will apply to all references that are stated to be related to another reference.

 

Item 5

 

This Item inserts a proposed section 4A to identify when a State offence will have a federal aspect.  

 

Proposed subsection 4A(1) provides that the object of proposed section 4A is to identify State offences that will have a federal aspect because:

 

·         the State offence could fall within Commonwealth legislative power because of the elements of the State offence;

·         the State offence could fall within Commonwealth legislative power because of the circumstances in which the State offence was committed, regardless of whether or not those circumstances are expressed to be elements of the offence; or

·         the investigation of a matter relating to a relevant criminal activity that relates to the State offence is incidental to the investigation of a matter relating to a Commonwealth or a Territory offence.

 

Proposed subsection 4A(2) provides that, for the purposes of the NCA Act, a State offence will have a federal aspect if and only if at least one of proposed paragraphs 4A(2)(a), (b), (c) or (d) is satisfied.

Proposed paragraphs 4A(2)(a) and (b) provide that a State offence will have a federal aspect if:

 

·         the State offence is not an ancillary offence (as defined) and, assuming that the provision creating the State offence had been enacted by the Commonwealth Parliament instead of by the relevant State Parliament, the provision would have been a valid Commonwealth law; or

·         the State offence is an ancillary offence that relates to a particular primary offence and, assuming that the provision creating the primary offence had been enacted by the Commonwealth Parliament instead of by the relevant State Parliament, the provision would have been a valid Commonwealth law.

 

These provisions will make it clear that, for the purposes of the powers of the Authority, a State offence will have a federal aspect when the subject of the State offence is a matter over which the Commonwealth could legislate.  There is no requirement for the Commonwealth to have actually legislated in relation to that subject, provided that the Commonwealth has a head of power under which it could legislate on the matter.

 

Proposed paragraph 4A(2)(c) provides that, for the purposes of the NCA Act, a State offence will have a federal aspect if, assuming the Commonwealth Parliament had enacted a provision that created an offence penalising the specific acts or omissions involved in committing that State offence, that provision would have been a valid Commonwealth law.  

 

This provision will make it clear that, for the purposes of the powers of the Authority, a State offence will have a federal aspect when the specific acts or omissions involved in committing the State offence are matters over which the Commonwealth could legislate, that is, when the circumstances of the particular State offence bring it within the Commonwealth’s legislative power.  For example, if the general offence of fraud is a State offence, then when fraud is committed by a constitutional corporation it is an offence that could have been enacted by the Commonwealth Parliament and therefore it will have a federal aspect.  Furthermore, proposed subsection 4A(3) makes it clear that the specificity of the acts or omissions is to be determined having regard to the circumstances in which the offence was committed (whether or not those circumstances are expressed to be elements of the offence).  Therefore, even if the general offence is expressed to be fraud, the fact that the offence was committed by a body over which the Commonwealth could legislate will be sufficient to give a federal aspect to the particular offence committed. 

 

Proposed subsection 4A(4) provides examples of when a State offence will have a federal aspect for the purposes of proposed paragraph 4A(2)(c) (that is, because of the circumstances of the offence).  Proposed subsection 4A(5) provides that the examples in proposed subsection 4A(4) are not, however, to limit the definition in proposed paragraph 4A(2)(c).  A State offence will have a federal aspect if it:

 

·         affects the interests of the Commonwealth, an authority of the Commonwealth or a constitutional corporation (as defined); or

·         was committed by a constitutional corporation; or

·         was committed in a Commonwealth place (as defined); or

·         involved the use of a postal service or other like service; or

·         involved an electronic communication (as defined); or

·         involved trade or commerce:

-          between Australia and places outside Australia,

-          among the States, or

-          within a Territory, between a State and a Territory or between two Territories; or

·         involved banking (other than State banking not extending beyond the limits of the State concerned), or insurance (other than State insurance not extending beyond the limits of the State concerned); or

·         relates to a matter outside Australia.

 

Proposed paragraph 4A(2)(d) provides that, for the purposes of the NCA Act, a State offence will have a federal aspect if the investigation or possible investigation of a matter that relates to that State offence is incidental to an investigation being conducted in relation to an offence against a law of the Commonwealth or of a Territory.

Proposed subsection 4A(6) defines various terms used in proposed section 4A.

An ancillary offence will, in relation to an offence (the primary offence ), be an offence of conspiring to commit the primary offence, or an offence of aiding, abetting, counselling or procuring, or being in any way knowingly concerned in, the commission of the primary offence, or an offence of attempting to commit the primary offence.

The term Commonwealth place will have the same meaning as in the Commonwealth Places (Application of Laws) Act 1970 .

The term constitutional corporation will mean a corporation to which paragraph 51(xx) of the Constitution applies, that is, foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth.

 

The definition of the term electronic communication will be modelled on that in the Electronic Communications Act 1999 and will mean a communication of information whether in the form of:

 

·         text; or

·         data; or

·         speech, music or other sounds; or

·         visual images (animated or otherwise); or

·         any other form; or

·         any combination of forms

by means of guided (for example, fixed cable) and/or unguided (for example, satellite) electromagnetic energy.

The term State offence will mean an offence against a law of a State.

 

Item 6

This Item amends paragraph 7(8AA)(a) so that if the Inter-Governmental Committee of the National Crime Authority considers that the appointment of another member of the Authority will be necessary for the Authority to be able to perform its function in relation to a reference that does not relate to federally relevant criminal activity, then it may create an office of member.   This proposed function is in addition to the role of the Committee in relation to the appointment of additional members to deal with references that do relate to federally relevant criminal activity.

Item 7

 

This Item makes a minor drafting amendment to paragraph 9(1)(a).

 

Items 8, 14, 16, 17, 22, 23 and 24

 

As references under section 13 will apply to federally relevant criminal activity (see Item 21), where the relevant offence is an offence against a law of the Commonwealth or of a Territory or is a State offence that has a federal aspect, the following Items will make consequential amendments to the provisions listed:

 

·         Item 8 amends paragraph 9(1)(b) by inserting the word “federally” before the words “relevant criminal activity”.  The amendment will provide that a function of the Inter-Governmental Committee of the National Crime Authority will be to consult with the Commonwealth Minister in relation to the proposed reference of a federally relevant criminal activity to the Authority under section 13.

 

·         Item 14 amends subsection 10(4A) by inserting the word “federally” before the words “relevant criminal activity”.  The amendment will enable the Authority to request the Commonwealth Minister to refer to it, under section 13, a matter relating to federally relevant criminal activity.  

 

·         Item 16 amends paragraph 11(2)(a) by inserting the word “federally” before the words “relevant criminal activity”.  The amendment will provide that a special function of the Authority in relation to references made under section 13 will be the investigation of a matter relating to federally relevant criminal activity.

 

·         Item 17 amends paragraph 11(2)(a) by deleting the qualifying phrase “in so far as the relevant offence is, or the relevant offences are or include, an offence or offences against a law of the Commonwealth or of a Territory”.  The qualifying phrase will no longer be applicable, as references under section 13 will also relate to offences against a law of a State that have a federal aspect.

 

·         Item 22 amends subsection 13(1) by deleting the qualifying phrase “in so far as the relevant offence is, or the relevant offences are or include, an offence or offences against a law of the Commonwealth or of a Territory”. The qualifying phrase will no longer be applicable, as references under section 13 will also relate to offences against a law of a State that have a federal aspect.

 

·         Item 23 amends paragraph 13(2)(a) by inserting the word “federally” before the words “relevant criminal activity”.  The amendment will provide that a notice referring a matter to the Authority under subsection 13(1) will describe the general nature of the circumstances or allegations constituting the federally relevant criminal activity.

 

·         Item 24 amends paragraph 13(2)(b) by inserting a reference to an offence against a law of a State. The amendment will enable references under section 13 to relate to relevant offences where the offence is an offence against a law of a State (provided that it has a federal aspect) as well as an offence against a law of the Commonwealth or of a Territory.

 

Item 9

 

This Item makes a minor drafting amendment to paragraph 9(1)(b).

 

Items 10, 18 and 27

 

As references under section 14 will apply to federally relevant criminal activity (see Item 25), the following Items will make consequential amendments to the provisions listed:

 

·         Item 10 amends paragraph 9(1)(c) by inserting the word “federally” before the words “relevant criminal activity”.  The amendment will provide that a function of the Inter-Governmental Committee of the National Crime Authority will be to consider whether to approve the referral of a matter relating to a federally relevant criminal activity to the Authority in accordance with section 14.

 

·         Item 18 amends paragraph 11(2)(b) by inserting the word “federally” before the words “relevant criminal activity”.  The amendment will provide that a special function of the Authority in relation to references made under section 14 will be the investigation of a matter relating to federally relevant criminal activity where the relevant offence is an offence against a law of a State and that State offence has a federal aspect.

 

·         Item 27 amends paragraph 14(2)(a) by inserting the word “federally” before the words “relevant criminal activity”.  The amendment will provide that a notice referring a matter to the Authority under subsection 14(1) will describe the general nature of the circumstances or allegations constituting the federally relevant criminal activity.

 

Item 11

 

This Item makes a minor drafting amendment to paragraph 9(1)(c).

 

Item 12

 

This Item inserts a new function for the Inter-Governmental Committee of the National Crime Authority.  Proposed paragraph 9(1)(ca) provides that a function of the Committee will be to consider whether to approve the referral of a matter relating to a relevant criminal activity (other than a federally relevant criminal activity) under a law of a State by a State Minister, to the Authority for investigation.   This will maintain the role of the Committee in relation to approving references to the Authority that relate to State offences.

 

Item 13

 

This Item makes a minor drafting amendment to paragraph 9(1)(d).

 

Item 15

 

As references under sections 13 and 14 will apply to federally relevant criminal activity (see Items 21 and 25), this Item will make a consequential amendment to paragraph 11(1)(b) to exclude references made under a law of a State where the relevant offence does not have a federal aspect, from the Authority’s general power of investigation in relation to relevant criminal activities.  (References under sections 13 and 14 will continue to be excluded.)

 

Item 19

 

This Item inserts the words “in relation to federally relevant criminal activities” in subsection 12(1) to clarify that the duty imposed on the Authority by that subsection will only apply when the Authority is investigating matters under paragraph 11(1)(b) and subsection 11(2) that relate to federally relevant criminal activity.

 

Item 20

 

This Item inserts the words “in relation to a federally relevant criminal activities” in paragraph 12(1A)(a) to provide that the duty imposed on the Authority by that paragraph will only apply when the Authority is coordinating activities under paragraph 11(1)(d) that relate to federally relevant criminal activities.

 

Item 21

 

This Item inserts the word “federally” before the words “relevant criminal activity” in subsection 13(1) to make it clear that the duty to investigate matters referred by the Commonwealth Minister to the Authority will exist in relation to references that relate to federally relevant criminal activity. The effect of the amendment will be to expand the scope of Commonwealth references and the power of the Authority to act under Commonwealth legislation, to include the investigation of federally relevant criminal activity where the relevant offence is an offence against a law of a State provided that the State offence has a federal aspect.  Commonwealth references will continue to refer matters relating to federally relevant criminal activity to the Authority when the relevant offence is an offence against a law of the Commonwealth or of a Territory.

 

Section 13 is the primary mechanism by which the Authority undertakes activities under Commonwealth legislation.   The proposed expansion of the Authority’s activities to include the investigation, under section 13, of State offences with a federal aspect, is reflected in the amendments proposed by the Bill.  Therefore, when the Authority will be acting pursuant to a Commonwealth reference, the powers, functions and duties that exist in Commonwealth legislation for the purposes of those references, will now be used for the purpose of investigating federally relevant criminal activity.

 

Item 25

 

This Item inserts the word “federally” before the words “relevant criminal activity” in subsection 14(1) to make it clear that the duty to investigate matters referred to the Authority by a State Minister will only exist in relation to references that relate to federally relevant criminal activity. The effect of the amendment will be to narrow the scope of State references so that the Authority will only have a duty to act under Commonwealth law in relation to State offences that have a federal aspect.

 

Item 26

 

This Item inserts a note at the end of subsection 14(1) to indicate that the Authority’s power to carry out investigations under State law (irrespective of whether the relevant offence has a federal aspect) will be addressed by proposed sections 55A and 55B (see Item 36).

 

Item 28

 

This Item amends section 15 to provide that, when performing a function or exercising a power conferred by a State in relation to the investigation of a matter relating to a relevant criminal activity, members of the Authority will not be under a duty or obligation to perform that function or exercise that power.

 

Items 29 to 35 (inclusive)

 

The following Items amend the provisions listed by limiting the application of the duty imposed by the provision or the coercive nature of the provision, to the actions of the Authority when it will be investigating a matter relating to federally relevant criminal activity:

 

·         Item 29 amends paragraph 19A(1)(b) by inserting the words “in relation to a federally relevant criminal activity” after the words “prescribed investigation”.  The amendment will enable a member of the Authority to request information from a Commonwealth agency provided that the information is relevant to a prescribed investigation and the prescribed investigation is in relation to federally relevant criminal activity.  Prescribed investigation is defined in subsection 4(1).

 

·         Item 30 amends subsection 19A(2) by inserting the words “in relation to a federally relevant criminal activity” after the words “prescribed investigation”.  The amendment will enable a member of the Authority to request the principal officer of a Commonwealth agency to send to the Authority a document or thing that relates to the performance by the agency of its functions. The document or thing must be relevant to a prescribed investigation and the prescribed investigation must be in relation to federally relevant criminal activity.

 

·         Item 31 amends paragraph 20(1)(b) by inserting the words “in relation to a federally relevant criminal activity” after the words “prescribed investigation”.  The amendment will enable a member of the Authority to require certain information to be provided by a Commonwealth agency where that information is relevant to a prescribed investigation and that prescribed investigation is in relation to federally relevant criminal activity.

 

·         Item 32 amends paragraph 20(2)(b) by inserting the words “in relation to a federally relevant criminal activity” after the words “prescribed investigation”.  The amendment will enable a member may of the Authority to require the principal officer of a Commonwealth agency to attend and to produce at a certain time and place, a document or thing that relates to the performance by the agency of its functions and that is relevant to a prescribed investigation, provided that the prescribed investigation is in relation to federally relevant criminal activity.

 

·         Item 33 amends paragraph 22(1)(a) by inserting the word “federally” before the words “relevant criminal activity”.  The amendment will enable a member to apply for a search warrant under subsection 22(2) only in connection with a matter relating to a federally relevant criminal activity.  The power to apply for a search warrant in relation to a State offence that does not have a federal aspect will, subject to proposed sections 55A and 55B (see Item 36), continued to be exercised under the State NCA Act (defined in proposed subsection 55A(13)).  

 

·         Item 34 amends paragraph 22(5)(a) by inserting the word “federally” before the words “relevant criminal activity”.  The amendment will provide that a warrant issued under section 22 must include a reference to the matter relating to the federally relevant criminal activity into which the Authority is conducting the special investigation.

 

·         Item 35 amends paragraph 24(1)(a) by inserting “(being a matter relating to a federally relevant criminal activity)” after the words “was referred to the Authority”.  The amendment will ensure that the powers in relation to the delivery of a passport to the Authority are only exercised when the Authority is investigating a matter that relates to federally relevant criminal activity.  Powers in relation to the delivery of passports where the State offence that does not have a federal aspect will, subject to proposed sections 55A and 55B (see Item 36), continued to be exercised under the State NCA Acts (defined in proposed subsection 55A(13)).     

 

Item 36

 

This Item replaces existing section 55A and addresses the ability of the Authority, a member, or a Judge of the Federal Court to exercise duties, functions and powers arising under State laws in relation to the investigation of a matter relating to a relevant criminal activity, where the relevant offence is an offence against a law of a State.

 

Proposed subsection 55A(1) provides that the main object of proposed section 55A is to give legislative consent to the conferral of certain duties, functions and powers under State laws on the Authority, a member, or a Judge of the Federal Court.   That is, the Authority, a member, or a Judge of the Federal Court may, subject to the conditions set out in proposed sections 55A and 55B, exercise duties, functions and powers under a State law, provided that the Commonwealth has consented to that duty, function or power.

 

The Authority

 

Proposed subsection 55A(2) provides that a State law may confer any or all of the following duties, functions or powers on the Authority:

 

·         the function of investigating a matter relating to a relevant criminal activity if the relevant offence is an offence against a State law (irrespective of whether that offence has a federal aspect); and

·         a duty, function or power that is for the purposes of such an investigation and that is of the same kind as a duty, function or power conferred on the Authority by the NCA Act or any other Act (irrespective of whether the conferral by the NCA Act or any other Act is in relation to the investigation of the same matter).

 

This provision will make it clear that the Authority is able to carry out duties, functions and powers for the purposes of its investigatory role under State laws, provided that those duties, functions and powers are of the same kind as those conferred on the Authority by the NCA Act or another Commonwealth Act.  However, the duties, functions and powers conferred on the Authority by the NCA Act or another Commonwealth Act need not have been conferred for the purpose of investigating the same matter for which the State duties, functions and powers will be or have been conferred.

 

Furthermore, proposed subsection 55A(3) provides that a State law is not effective to confer the function of investigating a matter relating to a relevant criminal activity on the Authority unless the conferral of the function involves a State Minister referring that matter, by notice in writing, to the Authority for investigation. The reference must also be made with the approval of the Inter-Governmental Committee of the National Crime Authority (see Item 12) and the Commonwealth Minister must consent to the Authority performing the function of investigating that matter.

 

Member and Judge of the Federal Court

 

Proposed subsections 55A(4) and (5) provide that a State law may confer on a member or a Judge of the Federal Court (acting in his or her personal capacity) a duty, function or power that relates to the investigation of a matter relating to a relevant criminal activity if the relevant offence is or includes an offence against a State law (irrespective of whether the offence has a federal aspect). The State law may also confer a duty, function or power on a member or a Judge of the Federal Court, that is associated with a function conferred on the Authority in relation to the investigation of the matter. The duty, function or power must also be of the same kind as a duty, function or power conferred on a member or a Judge of the Federal Court by the NCA Act or any other Act (irrespective of whether the conferral by the NCA Act or any other Act is in relation to the investigation of the same matter).

 

These provisions will make it clear that a member or a Judge of the Federal Court may carry out duties, functions and powers in relation to the investigation of a matter under State laws, provided that those duties, functions and powers are of the same kind as those conferred on the member or the Judge of the Federal Court by the NCA Act or another Commonwealth Act.  However, the duties, functions and powers conferred on the member or the Judge of the Federal Court by the NCA Act or another Commonwealth Act need not have been conferred for the purpose of investigating the same matter for which the State duties, functions and powers will be or have been conferred.

 

Ancillary provisions

 

Proposed subsection 55A(6) provides that the conferral of a duty, function or power on the Authority, a member or a Judge of the Federal Court does not extend to a duty, function or power of a kind specified in any regulations made for the purposes of that subsection.  That is, the provision will enable the Commonwealth to make regulations to control or limit the duties, functions or powers that are conferred by a law of a State on the Authority, a member, or a Judge of the Federal Court. 

 

Proposed subsection 55A(7) provides that the conferral of a duty, function or power on the Authority, a member, or a Judge of the Federal Court does not extend to a State law that purports to confer any duty on authorities of the Commonwealth, members of those authorities or Judges of a Court created by Parliament, that is in contravention of any constitutional doctrine that restricts the duties that may be imposed.  This will include any doctrine of this kind arising out of the decision in Hughes .  Section 15A of the Acts Interpretation Act 1901 will apply such that the NCA Act is to be read and construed subject to the Constitution, and so as not to exceed the legislative power of the Commonwealth, to the intent that where any provision would, but for that section, have been construed as being in excess of power, it shall nevertheless be a valid enactment to the extent to which it is not in excess of that power.   Thus, notwithstanding the terms of proposed subsections 55A(2), (4) and (5), a State law that purports to impose a duty on the Authority, a member, or a Judge of the Federal Court that is in contravention of any constitutional doctrine restricting the duties that may be conferred on Commonwealth authorities, members of Commonwealth authorities, or Judges of a court created by the Parliament will be ineffective for that purpose.

 

Concurrent operation of State laws

 

Proposed subsection 55A(8) indicates that the Commonwealth does not intend to cover the field in relation to the investigation of State offences that have a federal aspect.  It will provide that the NCA Act does not exclude or limit the operation of a State law that confers duties, functions or powers on the Authority, a member, or a Judge of the Federal Court provided that the State law is consistent with proposed section 55A and is capable of operating concurrently with the NCA Act.  This provision will ensure that the Authority is able to exercise functions under both Commonwealth and State laws provided that the latter comply with proposed section 55A and are capable of being exercised concurrently with the NCA Act.   In particular, proposed subsection 55A(9) provides that the holding of concurrent duties, functions or powers under a State law in relation to the investigation of a matter relating to a federally relevant criminal activity is not prevented so long as the relevant State law is consistent with proposed section 55A.  Therefore, the Authority will be able to exercise either State or Commonwealth powers where both are available, for example, in relation to the investigation of a State offence that has a federal aspect, where the matter is covered by both State and Commonwealth references.

 

Proposed subsection 55A(10) provides that the NCA Act does not prevent the Commonwealth Minister and a State Minister from separately referring a matter or matters relating to the same federally relevant criminal activity to the Authority for investigation.

 

Proposed subsection 55A(11) provides that proposed section 55A does not limit section 15 of the NCA Act (which allows members of the Authority to have concurrent State functions and powers under State).

 

The same kind

 

To avoid doubt, proposed subsection 55A(12) is a deeming provision that provides that a duty, function or power conferred on the Authority, a member, or a Judge of the Federal Court by a State NCA Act that is in force immediately before the date that the Act is introduced, is taken to be of the same kind as a duty, function or power conferred on the Authority, a member or a Judge of the Federal Court by the NCA Act.  This provision will ensure that duties, functions and powers conferred by the State NCA Acts at the time of introduction of this Act continue to be accepted as being of the same kind as those imposed by the NCA Act.  The provision will not, however, otherwise limit what is meant by the term “of the same kind”.

 

Definitions

 

Proposed subsection 55A(13) defines terms used in proposed section 55A.

 

The term confer , in relation to a duty, will include impose.

 

The term Judge of the Federal Court will mean a Judge of the Federal Court in a personal capacity and not as a court or a member of a court.

 

The term State NCA Act will mean:

 

·         the New South Wales National Crime Authority (State Provisions) Act 1984

·         the Victorian National Crime Authority (State Provisions) Act 1984

·         the Queensland National Crime Authority (State Provisions) Act 1985

·         the Western Australian National Crime Authority (State Provisions) Act 1985

·         the South Australian National Crime Authority (State Provisions) Act 1984

·         the Tasmanian National Crime Authority (State Provisions) Act 1984

·         the Northern Territory National Crime Authority (Territory Provisions) Act 1985

·         the Australian Capital Territory National Crime Authority (Territory Provisions) Act 1991

 

Item 36 also inserts a proposed section 55B.  This provision will make it clear that when the Authority is investigating a matter relating to a federally relevant criminal activity, and, for the purposes of that investigation, the Authority has a choice between exercising powers conferred by this Act or another Commonwealth Act and those conferred by a law of a State, the Authority will not be required to choose the former.  In addition, this section will have effect despite anything in subsection 11(2) or section 13 or 14.  Therefore, when the Authority is investigating a State offence that has a federal aspect and it is able to exercise powers under either Commonwealth or State laws, then notwithstanding subsection 11(2) or section 13 or 14, the Authority will be able to choose to exercise its powers under State laws.

 

Item 36 also inserts a proposed section 55C.  This provision will make it clear that neither the NCA Act, nor any other Commonwealth law, imposes any obligation on the Authority or a member to perform a duty or function, or exercise a power:

 

·         in relation to the investigation of a matter relating to a relevant criminal activity that is not a federally relevant criminal activity, or

·         that is otherwise in contravention of any constitutional doctrine, including any doctrine of this kind arising out of Hughes , restricting the duties that may be conferred on Commonwealth authorities or members of Commonwealth authorities.

 

Proposed section 55C also makes it clear that neither the NCA Act nor any other Commonwealth law imposes any obligation on a Judge of the Federal Court to perform a duty or function, or exercise a power that relates to an investigation by the Authority of a matter relating to a relevant criminal activity if:

 

·         the relevant criminal activity is not a federally relevant criminal activity, or

·         the imposition of the obligation is otherwise in contravention of any constitutional doctrine restricting the duties that may be conferred on Judges of a court created by the Parliament.

 

Proposed subsection 55C(3) provides that the term Judge of a Federal Court means a Judge of the Federal Court in a personal capacity and not as a court or a member of a court.

 

Item 37

 

This Item omits the words “in accordance with section 14” from subsection 59(2).  As references from State Ministers will also be able to be made under a law of a State, the amendment will ensure that the Authority is required to keep the relevant State Minister informed of the general conduct of its operations in respect of a reference and to comply with certain requests from that Minister. 

 

 

Items 38 to 45 (inclusive)

 

Items 38 to 45 (inclusive) are transitional provisions that will ensure the validity of certain actions of the Authority undertaken before the commencement of the particular Item.

 

·       Item 38 provides that the amendments made by the Schedule do not affect the validity of a notice under subsection 13(1) that is in force immediately before the commencement of this Item. This will ensure the continuing validity of Commonwealth references.

 

·         Item 39 applies if a notice was in force under subsection 14(1) immediately before the commencement of this Item.  The amendments made by the Schedule will not affect the validity of the notice.   However, in determining the scope of the special functions of the Authority (defined in subsection 11(2)), if some, but not all, of the offences to which the notice relates have a federal aspect, any offences that do not have a federal aspect will be disregarded and, if none of the offences to which the notice relates have a federal aspect, the notice will be disregarded.   Whether an offence has a federal aspect will be determined as a matter of fact, and not by merely considering the notice itself.   In addition, if the notice was given under a State law, proposed section 55A applies to a duty, function or power conferred, or purporting to be conferred, by that law in connection with the giving of the notice.

 

In this Item the term confer , in relation to a duty, will include impose.

 

The effect of this provision, in relation to the special functions of the Authority, will be to save notices in relation to State offences where the State offence has a federal aspect.  Furthermore, it will enable the continued conferral of a duty, function or power under a law of a State, where the conferral is in accordance with proposed section 55A.

 

·         Item 40 provides that the amendments made by the Schedule will not affect the validity of a request under section 19A that is in force immediately before the commencement of this Item, so long as the investigation to which the request relates is an investigation relating to a federally relevant criminal activity.

 

·         Item 41 provides that the amendments made by the Schedule will not affect the validity of a notice under section 20 that is in force immediately before the commencement of this Item, so long as the investigation to which the notice relates is an investigation relating to a federally relevant criminal activity.

 

·         Item 42 provides that the amendments made by the Schedule will not affect the validity of a warrant under section 22 that is in force immediately before the commencement of this Item, so long as the investigation to which the warrant relates is an investigation relating to a federally relevant criminal activity.

 

·         Item 43 provides that the amendments made by the Schedule will not affect the validity of an order under section 24 that is in force immediately before the commencement of this Item, so long as the investigation to which the order relates is an investigation relating to a federally relevant criminal activity.

 

·         Item 44 provides that the amendments made by the Schedule will not affect the validity of a summons under section 28 that is in force immediately before the commencement of this Item, so long as the investigation to which the summons relates is an investigation relating to a federally relevant criminal activity.

 

·         Item 45 provides that the amendments made by the Schedule will not affect the validity of a notice under section 29 that is in force immediately before the commencement of this Item, so long as the investigation to which the notice relates is an investigation relating to a federally relevant criminal activity.