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National Crime Authority Legislation Amendment Bill 2001

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1998-1999-2000-2001

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

SENATE

 

 

NATIONAL CRIME AUTHORITY LEGISLATION AMENDMENT BILL 2000

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

Amendments to be Moved on Behalf of the Government

 

 

(Circulated by authority of the Minister for Justice and Customs,

Senator the Honourable Chris Ellison)



 

OUTLINE

 

The National Crime Authority Legislation Amendment Bill amends the National Crime Authority Act 1984 (NCA Act), Ombudsman Act 1976 and Administrative Decisions (Judicial Review) Act 1977 to:

 

·                     implement the Government’s response to the 3 rd evaluation of the National Crime Authority (the Authority) by the Parliamentary Joint Committee on the National Crime Authority (PJC-NCA); and

·                     address a number of matters relating to the administration and operations of the Authority.

The proposed Government amendments to the Bill will:

·                introduce a requirement for a five-year review of the operation of the provisions that:

(i)      remove the defence of reasonable excuse (and the consequential removal of the special review mechanism);

(ii)      remove derivative-use immunity for self-incriminatory evidence;

(iii)     increase penalties for non-compliance with the NCA Act; and

(iv)     introduce a contempt regime;

·                enable federal magistrates to issue search warrants

·                narrow the description of material that may be withheld from the Ombudsman when the Ombudsman is investigating a complaint against the Authority; and

·                replace references, in all Commonwealth Acts, to “Chairperson” of the Authority or “Chairman” of the Authority with references to “Chair” of the Authority.

The proposed Government amendments will also address the following minor matters, which are necessary to fully implement, or are consequential on, the amendments proposed by the Bill:

 

·                     amend the definition of “members of the staff of the Authority” to include a reference to the proposed category of staff who will be employed otherwise than under the Public Service Act 1999 ;

·                     amend the Financial Transaction Reports Act 1988 (FTR Act) to enable the PJC-NCA to receive desensitised information about financial transactions in the same manner that the Inter-Governmental Committee of the National Crime Authority (IGC-NCA) may receive such information;

·                     amend the Telecommunications (Interception) Act 1979 (TI Act) to enable a transcript from a hearing of the Authority that includes information obtained via a telephone intercept to be given in any subsequent contempt proceedings;

·                     amend the Ombudsman Act to make it clear that when the Ombudsman enters into an arrangement with a State or Territory complaint authority, that the authority may exercise its investigatory powers to the full extent of those powers;

·                     amend the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cross-Vesting Act) to remove a reference to provisions of the NCA Act that will be repealed by the Bill; and

·                     update a reference to a repealed provision in Schedule 1 of the NCA Act.

 

Financial Impact

 

The amendments will have no financial impact.



NOTES ON ITEMS

Item 1

This Item amends the commencement provisions in clause 2 of the Bill.  Clauses 1, 2, 3 and 4 of the Bill will now commence on Royal Assent (clauses 1, 2 and 3 are formal; clause 4 contains the proposed review and report requirements (see Item 2)).

Schedules 1 (other than Part 17) 2 to 7 and 9 to 12 will commence on a day to be fixed by Proclamation.  This means that all the provisions that are to be subject to the proposed five-year review will commence at the same time so that there will be one concurrent review period.

As Part 17 of Schedule 1 (which introduces hearing officers for the Authority) will amend provisions proposed by Part 15 of the Bill (the contempt regime), Part 17 will commence immediately after the commencement of the remainder of Schedule 1 (which includes Part 15).

Schedule 8 will amend the Crimes Act 1914 to replace references to “Chairperson” of the Authority with references to “Chair” of the Authority.  As the provisions to be amended will also be amended by the Measures to Combat Serious and Organised Crime Bill (Measures Bill) the commencement provision has been framed so that the amendments proposed by Schedule 8 may be proclaimed to commence after the commencement of the Measures Bill.   If the Measures Bill is not enacted, Schedule 8 will be proclaimed to commence as the amendments proposed by Schedule 8 would operate on the existing Crimes Act provisions (Item 34).

Item 2

This Item proposes a new clause 4 of the Bill, which will set out the requirements for a five-year review of the provisions that remove the defence of reasonable excuse, remove derivative-use immunity, increase the penalties for non-compliance with the NCA Act and introduce a contempt regime.  The purpose of the review is to assess how the operations of the Authority have been enhanced by the improved investigatory powers and to ensure that there is a formal assessment of the continuing appropriateness of these provisions.

The PJC-NCA report on the Bill recommended such a review of the contempt and “derivative- use” amendments.

The proposed clause provides that:

·                     The Minister must appoint a person who, in the opinion of the Minister, is suitably qualified to review and report on the effect the implementation of the specified provisions has had on the operations of the Authority. 

·                     The review period will be the five-year period beginning on the commencement of Part 1 of Schedule 1.  Part 1 of Schedule 1 contains all provisions to be reviewed, except contempt.  However, as a result of the proposed amendment to clause 2 the contempt provisions (which are in Part 15 of Schedule 1 and Schedule 4) will commence at the same time as Part 1 of Schedule 1.

·                     The review and report must include:

-          an assessment of the way in which the specified provisions have facilitated the Authority in the performance of its functions and the extent (if any) to which persons have been unjustifiably prejudiced because of the removal of the defence of reasonable excuse and the removal of derivative use immunity;

-          information on the number of contempt applications, a summary of the circumstances in which each was made and evidence in support, the number of withdrawn applications and the reasons why;

·                     The Authority must give all reasonable assistance to the person undertaking the review and such assistance will not result in a contravention of the secrecy or non-disclosure provision set out in section 51 of the NCA Act.

·                     In recognition of the statutory role of the IGC-NCA, a copy of the report is to be provided to the IGC-NCA, before being forwarded to the Commonwealth Minister with administrative responsibility for the Authority.

·                     The Commonwealth Minister is to table the report within 15 sitting days of its receipt (that is after the report has first been considered and the comments if any provided). 

Item 3

This Item amends proposed Item 26 of Part 6 of Schedule 1 to include federal magistrates in the definition of “issuing officer”.  The definition of “issuing officer” is to be inserted in subsection 4(1) of the NCA Act and such persons will be empowered to issue NCA search warrants under section 22 of the NCA Act.

The proposed amendment will mean that federal magistrates may issue NCA search warrants in addition State and Territory magistrates (which is the amendment proposed by Item 26 of the Bill).  The inclusion of federal magistrates will increase the operational flexibility intended by the original amendment.

Item 4

This Item proposes replacing the heading “Part 8 - Delegation of chairperson’s powers” with the heading “Part 8 - Delegation of Chair’s powers”.  The amendment is consequential on the proposal to replace all references in Commonwealth legislation to “Chairperson” and “Chairman” of the Authority with references to “Chair” of the Authority.

Items 5 to 20

These Items replace references to “Chairperson” and “Chairperson’s” with references to “Chair” and “Chair’s” in Items 52 to 54 of Part 8 of Schedule 1 of the Bill. The amendments are consequential on the proposal to replace all references in Commonwealth legislation to “Chairperson” and “Chairman” of the Authority with references to “Chair” of the Authority.

These amendments were recommended by the PJC-NCA in its report on the Bill.  “Chair” is now the default terms for such a position, pursuant to section 18B of the Acts Interpretation Act 1901 , which then allows an office of  “Chair” to be referred to by other terms.

Item 21

This Item proposes to insert Item 142A in Part 18 of Schedule 1 of the Bill.  Item 142A will amend the definition of “members of the staff of the Authority” in subsection 4(1) of the NCA Act to include a reference to the persons who will be employed otherwise than under the Public Service Act 1999 .  (Item 143 of the Bill proposes the amendment of section 47 of the NCA Act to enable the Chair of the Authority to employ staff otherwise than under the Public Service Act on terms and conditions determined by the Chair.)

This amendment was recommended by the PJC-NCA to ensure that the proposed new category of staff of the Authority are able to exercise the same powers, perform the same functions and be subject to the same responsibilities as other members of the staff of the Authority.

Items 22 to 25

These Items replace references to “Chairperson” and “Chairperson’s” with references to “Chair” and “Chair’s” in Item 143 of Part 8 of Schedule 1 of the Bill. The amendments are consequential on the proposal to replace all references in Commonwealth legislation to “Chairperson” and “Chairman” of the Authority with references to “Chair” of the Authority.

Item 26

This Item proposes a new Part 19, which will add Items 144 and 145 to the Bill.  Proposed Items 144 and 145 will amend Schedule 1 of the NCA Act to repeal the reference to regulation 6 of the Reserve Bank Regulations and to replace it with a reference to section 79B of the Reserve Bank Act 1959 .  The proposed amendment is consequential on the repeal of regulation 6 and its re-enactment as section 79B and has no other substantive or operational effect.

Item 27

This Item proposes a new Part 20, which will add Items 146 to 169 to the Bill.  Proposed Items 146 to 169 will amend the NCA Act to replace references to “Chairperson” and “Chairperson’s” with references to “Chair” and “Chair’s”.  The proposed amendments include the repeal of the definition of “Chairperson” in subsection 4(1) of the NCA Act and the insertion of a definition of “Chair”. The proposed amendments also change the heading to sections where appropriate but have no other substantive or operational effect.

Item 28

This Item proposes the amendment of Item 6 of Schedule 3 of the Bill (which proposed the insertion of a new subsection 8B in the Ombudsman Act).  Proposed subsection 8B enabled the Ombudsman to enter into arrangements for joint investigations with an authority of a State or Territory where the State or Territory authority had the power to enter into such arrangements.)

Item 28 proposes an amendment to proposed subsection 8B to make it clear that where the Ombudsman enters into an arrangement with an authority established under a law of a State or Territory for the purposes of investigating a matter that is within the power of that State or Territory authority to investigate, then that State or Territory authority may conduct the investigation to the full extent of its powers under State or Territory law.  This provision will clarify that the amendments are not intended to fetter or regulate the powers of State and Territory authorities in this situation.

Items 29 and 30

These Items propose the amendment of Item 8 of Schedule 3 of the Bill, which described the information that the Attorney-General may certify should not be disclosed to the Ombudsman.  It was proposed that such a certificate could be given where disclosure would be contrary to the public interest by reason that it would prejudice the effectiveness of an investigation by the Authority or the operation of a law enforcement agency.

The proposed amendment will mean that only information where the Attorney-General certifies that disclosure to the Ombudsman would be contrary to the public interest by reason that it would prejudice the safety of a person or the fair trial of a person who has been, or may be, charged with an offence, may be withheld.  This narrows the description of information that maybe withheld from the Ombudsman, while at the same time ensuring that sensitive information is protected.  (Such information may be provided to the Ombudsman, the certificate prevents the Ombudsman from being able to require its production.  This is consistent with the current operation of subsection 9(3) of the Ombudsman Act.)

Item 31

This Item proposes the addition of a new Schedule 5, which will amend the FTR Act

Items 1 and 2 of proposed Schedule 5 will replace references in subsection 16(6) and paragraph 26(1)(c) of the FTR Act to “Chairperson” with references to “Chair”.  The amendments are consequential on the proposal to replace all references in Commonwealth legislation to “Chairperson” and “Chairman” of the Authority with references to “Chair” of the Authority.

Item 3 of proposed Schedule 5 will amend subsection 27(5) of the FTR Act to insert a new paragraph (27(5)(aa)) dealing with the disclosure of information by the Authority to the PJC-NCA.  The proposed paragraph will enable the NCA to include appropriately desensitised information about financial transactions in the information to be provided to the PJC-NCA.

The proposed amendment is consequential on proposed Items 60 and 61 of Part 12 of Schedule 1 of the Bill, which clarifies and codifies (for the first time) the right of the PJC-NCA to access certain information held by the Authority.

Items 4 and 5 of proposed Schedule 5 are technical amendments that are consequential on the addition of proposed paragraph 27(5)(aa) to the FTR Act.

Item 32

This Item proposes the addition of a new Schedule 6, which will amend the Cross-Vesting Act.

Items 1 and 3 of proposed Schedule 6 are technical amendments consequential on the amendment proposed by Item 2.

Item 2 of proposed Schedule 6 proposes the repeal of paragraph (d) of the definition of “special federal matter” in subsection 3(1) of the Cross-Vesting Act.  A “special federal matter” is a matter in respect of which the Supreme Court of a State or Territory would not, apart from the Cross-Vesting Act, have jurisdiction.  Paragraph (d) of the definition of “special federal matters” provides that this includes a matter arising under section 32 (other than as it has effect because of section 32B) of the NCA Act.

As Item 13 of Part 1 of Schedule 1 of the Bill proposes to repeal sections 32, 32A, 32B and 32C of the NCA Act, there is no longer a requirement to include action under those sections in the definition of “special federal matter”.  Therefore, Item 2 of proposed section 6 would repeal of paragraph (d) of that definition.

Item 33

This Item proposes the addition of a new Schedule 7, which will amend the TI Act.

Item 1 of proposed Schedule 7 will amend section 5B of the TI Act to include a proceeding under section 34B of the NCA Act in the definition of exempt proceedings for the purposes of the TI Act.  This means that evidence obtained by an intercept may be given in any contempt proceedings under section 34B.  For example, if such evidence is included in the transcript from the NCA hearing during which the alleged contempt occurred, that transcript may be given in evidence in the contempt hearing.

Items 2 to 9 of proposed Schedule 7 replace references to “Chairman” of the Authority with references to “Chair” of the Authority.  The amendments are consequential on the proposal to replace all references in Commonwealth legislation to “Chairperson” and “Chairman” of the Authority with references to “Chair” of the Authority.

Item 34

This Item proposes the addition of a new Schedule 8, which will amend the Crimes Act 1914 and which will be proclaimed to commence after the commencement of the Measures to Combat Serious and Organised Crime Bill (which was introduced into Parliament on 4 April 2001).

Items 1, 3, 5 and 6 of proposed Schedule 8 will replace references to “Chairperson” with references to “Chair” in provisions that will also be amended by the Measures Bill.  If the Measures Bill does not amend the provisions, Items 1, 3, 5, and 6 will amend the existing Crimes Act provisions to which they refer.

Item 2 of proposed Schedule 8 will replace a reference to “Chairperson” with a reference to “Chair” in a provision that will be inserted by the Measures Bill.  If the Measures Bill does not insert the provision, Item 2 will have no effect.

Item 4 of proposed Schedule 8 will replace a reference to “Chairperson” with a reference to “Chair” in a provision that will be repealed by the Measures Bill.  If the Measures Bill does not repeal the provision, Item 4 will amend the existing Crimes Act provision to which it refers.

The amendments are consequential on the proposal to replace all references in Commonwealth legislation to “Chairperson” and “Chairman” of the Authority with references to “Chair” of the Authority.

 

Item 35

This Item proposes the addition of a new Schedule 9, which will amend the Witness Protection Act 1994.

Item 1 of proposed Schedule 9 will replace a reference to “Chairman” with a reference to “Chair”.  This amendment is consequential on the proposal to replace all references in Commonwealth legislation to “Chairperson” and “Chairman” of the Authority with references to “Chair” of the Authority.

Item 36

This Item proposes the addition of a new Schedule 10, which will amend the Customs Act 1901.

Item 1 of proposed Schedule 10 will replace a reference to “Chairman” with a reference to “Chair”.  This amendment is consequential on the proposal to replace all references in Commonwealth legislation to “Chairperson” and “Chairman” of the Authority with references to “Chair” of the Authority.

Item 37

This Item proposes the addition of a new Schedule 11, which will amend the Proceeds of Crime Act 1987.

Items 1 and 2 of proposed Schedule 11 will replace references to “Chairman” with references to “Chair”. The amendments are consequential on the proposal to replace all references in Commonwealth legislation to “Chairperson” and “Chairman” of the Authority with references to “Chair” of the Authority.

Item 38

This Item proposes the addition of a new Schedule 12, which will amend the Taxation Administration Act 1953.

Item 1 of proposed Schedule 12 will replace a reference to “Chairman” with a reference to “Chair”.  This amendment is consequential on the proposal to replace all references in Commonwealth legislation to “Chairperson” and “Chairman” of the Authority with references to “Chair” of the Authority.