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Australian Crime Commission Amendment Bill 2003 [2004]

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2002-2003

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

SENATE

 

 

 

 

AUSTRALIAN CRIME COMMISSION AMENDMENT BILL 2003

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

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

Senator the Honourable Chris Ellison)



AUSTRALIAN CRIME COMMISSION AMENDMENT BILL 2003

GENERAL OUTLINE

 

The purpose of the Australian Crime Commission Amendment Bill (ACC Amendment Bill) is to ensure the proper functioning of the Australian Crime Commission (ACC), under the cooperative scheme with States and Territories, following its transition from the National Crime Authority (NCA) on 1 January 2003.

 

The ACC Act provides for the conferral of functions, duties and powers on the ACC under State legislation.  This is to enable the ACC to investigate, and conduct intelligence operations in relation to, serious and organised crimes that are offences under State legislation.  The ACC Amendment Bill addresses a number of problems with the ACC Act that have been identified by States during the process of preparing corresponding State legislation.  These amendments are necessary to ensure the proper functioning of the ACC under the cooperative legislative scheme.

 

The ACC Amendment Bill also proposes to address possible gaps in the coverage of the existing transitional provisions that have been identified since the establishment of the ACC.   In so doing, the Bill fulfils an undertaking made to the Senate Standing Committee on Regulations and Ordinances by the Minister for Justice and Customs to address a transitional issue in relation to telecommunications interception warrants through amendment to the ACC Act.  In order to ensure a smooth and effective transition from the NCA to the ACC, and thereby to give effect to the intention of Parliament when the Australian Crime Commission Establishment Act 2002 (ACC Establishment Act) was enacted, the commencement of the transitional amendments to the ACC Act would have retrospective application from the date of the establishment of the ACC.

 

The ACC Amendment Bill also proposes to rectify a number of other oversights which occurred during the drafting of the ACC Establishment Act by adding to the Minister’s powers to suspend the Chief Executive Officer (CEO) of the ACC, and deleting a provision of the ACC Act which has since been identified as unnecessary.

 

The Bill also proposes a small number of consequential amendments to other Commonwealth legislation. 

 

It proposes to amend the Administrative Decisions (Judicial Review) Act 1977 (AD(JR) Act) to exempt certain decisions made under the ACC Act from being subject to requests for statements of reasons under section 13 of that Act. 

 

It proposes to amend the Australian Postal Corporation Act 1989 (APS Act) to allow postal officers to pass information and documents to the ACC where this disclosure is required by a corresponding State or Territory law.

 

FINANCIAL IMPACT

The amendments in this Bill have no financial impact on Government revenue.



NOTES ON CLAUSES

Clause 1  Short Title

This is a formal clause which provides for the Act, when it is enacted, to be cited as the Australian Crime Commission Amendment Act 2003 .

Clause 2  Commencement

 

This clause provides for the commencement of the Act.  It provides that all provisions commence on the day the Act receives the Royal Assent, other than items 1 to 16 of Schedule 1 (the transitional provisions), which have retrospective application from the date of the establishment of the ACC - i.e. from 1 January 2003.

 

Clause 3  Schedule(s)

 

This clause is the formal enabling provision for the Bill.  It provides that each Act specified in a Schedule is amended in accordance with the applicable items of the Schedule.  This Bill amends the Australian Crime Commission Act 2002 , the Administrative Decisions (Judicial Review) Act 1977 , and the Postal Corporation Act 1989 .

 

The clause also provides that any other item in a Schedule has effect according to its terms.  This is a standard enabling clause for transitional, savings and application items in amending legislation.

 

Schedule 1 - Amendment of the Australian Crime Commission Act 2002

 

Item 1

 

This item repeals section 15 of the ACC Act which provides for examiners to have concurrent functions and powers under State laws in certain circumstances.  This provision is to be repealed as it is unnecessary given the development of section 55A of the ACC Act, which contains greater safeguards about the circumstances in which functions, powers and duties may be conferred on examiners under State laws.  Under the ACC Act, examiners are independent statutory officers who have the capacity to exercise coercive investigation powers in certain circumstances. 

 

The safeguards in section 55A on the types of functions, powers and duties that may be conferred on examiners under State laws are:

·          the function, power or duty must relate to the investigation of, or an intelligence operation in relation to, serious and organized crime that is an offence under State law,

·          the function, power or duty must be either of the same kind as those conferred under the Commonwealth legislation or specifically prescribed in Commonwealth regulations, and

·          the exercise of the function, power or duty must be approved by the ACC Board.

The lesser safeguards in section 15 of the ACC Act on the types of functions and powers that may be conferred on examiners under State laws are:

·          the Inter-Governmental Committee must consent to the conferral, and

·          the Minister must inform the examiner in writing that he or she is satisfied that those functions or powers may conveniently be performed or exercised in conjunction with the performance or exercise by the ACC of its functions or powers under the Act.

 

Item 2

 

This item amends subsection 43(1) of the ACC Act to give the Commonwealth Minister with responsibility for administering the ACC Act the capacity to suspend the Chief Executive Officer (CEO) if the Minister is of the opinion that the CEO should be suspended while allegations of misbehaviour against the CEO are investigated.  Subsection 43(1) already gives the Minister the capacity to suspend the CEO where the Minister is of the opinion that the performance of the CEO has been unsatisfactory.  It is a requirement of subsection 43(1A) that the Minister not suspend the CEO unless the Minister has first sought and considered the advice of the Board of the ACC in relation to the proposed suspension.  This requirement will also apply to the new suspension power inserted by this item.

 

Section 44 of the ACC Act gives the Governor-General the power to terminate the CEO for misbehaviour or where the Minister is of the opinion that the performance of the CEO has been unsatisfactory.  It was an oversight during the drafting of the Australian Crime Commission Establishment Act 2002 that no power was given to the Minister to suspend the CEO pending the investigation of allegations of misbehaviour.

 

Item 3

 

Subsection 51(2) of the ACC Act makes it an offence for the CEO, a member of the ACC Board, a member of the staff of the ACC, and an examiner to make a record of any information, or divulge or communicate any information, where that information was acquired by that person through the performance of that person’s duties under the ACC Act.  It is an exception to this offence where the information is recorded, divulged or communicated for the purposes of the ACC Act or through the performance of the person’s duties under the ACC Act.

 

The purpose of this item is to broaden the scope of the exception to the offence created by subsection 51(2) so that it is not an offence for information acquired during the performance of duties under the ACC Act to be recorded, divulged or communicated for the purposes of a “relevant Act” or through the performance of duties under a “relevant Act”.  Item 5 inserts a definition of “relevant Act” which includes corresponding State Acts.

 

Item 4

 

Subsection 51(3) of the ACC Act provides that the CEO, a member of the Board, a member of the staff of the ACC, or an examiner shall not be required to produce a document in a court, or divulge or communicate information to a court, that the person has acquired through the performance of his or her duties under the ACC Act.  There are a number of exceptions to this prohibition, and one of the exceptions is where it is necessary for the document or information be provided or divulged to the court for the purpose of carrying into effect the provisions of the ACC Act.  The purpose of item 4 is to broaden this exception to apply where the disclosure is necessary for the purpose of carrying into effect the provisions of a “relevant Act”.  Item 5 inserts a definition of “relevant Act” which includes corresponding State Acts.

 

Item 5

 

The purpose of item 5 is to insert a definition of “relevant Act”, which is a term inserted by items 3 and 4.  The term is defined as including the ACC Act and corresponding State Acts which form part of the ACC cooperative scheme by conferring functions, duties or powers on the ACC.

 

Items 6 - 16

 

The purpose of items 6 - 16 is to amend section 55A of the ACC Act (and other consequential provisions) to allow State laws to confer functions, powers and duties on the Inter-Governmental Committee of the ACC (IGC-ACC) and members of the Board.

 

Section 55A of the ACC Act currently provides for the conferral of duties, functions and powers by State laws on the ACC, the Board, the Chair of the Board, the Chief Executive Officer of the ACC, and an examiner or a member of the staff of the ACC.  The omission of references in section 55A to the IGC-ACC and members of the Board was an oversight during the drafting of section 55A.

 

States and Territories are enacting ACC legislation which confers important duties, functions and powers on the IGC-ACC and members of the Board.  For instance, the IGC-ACC has an important oversight function with respect to the circumstances in which the ACC can employ its special investigation powers.  Consistent with the ACC Act, the legislation being enacted by States purports to give the IGC-ACC power to revoke a determination that an investigation/intelligence operation is a special investigation/intelligence operation (i.e. the determination which triggers the application of special investigation powers).

 

Section 55A provides that State laws can only confer functions, powers and duties on the ACC and relevant officers in certain circumstances.  Those same constraints will also apply to conferrals on the IGC-ACC and members of the Board.

 

Item 17

 

The purpose of item 17 is to insert a transitional provision, section 55D, into the ACC Act to address possible gaps in the coverage of the existing transitional provisions that have been identified since the establishment of the ACC.

 

The provision has been drafted in a general way to address a range of transitional issues. Subsection 55D(1) ensures the application of section 25B of the Acts Interpretation Act 1901 in relation to the transition from the National Crime Authority to the ACC so that the body known as the National Crime Authority is taken to have continued in existence with the altered name Australian Crime Commission.  Section 25B of the Acts Interpretation Act 1901 provides that where the name of a body is altered then the body continues its identity under the new name, and any references in legal instruments or proceedings to the body under the old name will be construed as referring to the body under the new name.  The insertion of subsection 55D(1) ensures that, for example, the ACC will be treated as the successor of the NCA for matters such as representation in Court hearings and investigations by the Commonwealth Ombudsman.

 

The insertion of subsection 55D(1) also honours an undertaking made to the Senate Standing Committee on Regulations and Ordinances by the Minister for Justice and Customs to address, through amendment to the ACC Act, the transition to the ACC of telecommunications warrants issued to the NCA.  That issue was addressed in regulation 5 of the Australian Crime Commission Establishment (Transitional Provisions) Regulations 2003 .  However, the Senate Standing Committee on Regulations and Ordinances was uncomfortable about the use of subordinate legislation to address this issue given that the regulation would have retrospective application.  The Minister for Justice and Customs gave an undertaking to that Committee to consider including a provision to the same effect as regulation 5 the next time legislation concerning the ACC came before Parliament.  Subsection 55D(1) is a general transitional provision designed to cover this transitional issue and any others that are analogous to it.

 

The purpose of subsection 55D(2) is to ensure that, regardless of changes to the internal hierarchy of the organisation (i.e. the reallocation of functions between offices and the creation of new offices), where a matter that could be dealt with under the old National Crime Authority legislation can still be dealt with under the ACC Act, old matters relating to the National Crime Authority can be dealt with under the corresponding provision of the ACC Act.  This provision has been crafted in a general way to address a range of transitional issues, including:

·          giving the CEO of the ACC the capacity to consider the reimbursement of witness expenses under subsection 26(2) of the ACC Act for attendance at an NCA hearing, and

·          giving a court the capacity to issue a certificate to the CEO under subsection 25A(12) of the ACC Act in relation to evidence given at an NCA hearing.

 

In order to ensure a smooth and effective transition from the National Crime Authority to the ACC, and thereby to give effect to the intention of Parliament when the Australian Crime Commission Establishment Act 2002 was enacted, the commencement of this item will have retrospective application from the date of the establishment of the ACC (i.e. 1 January 2003).

 



Schedule 2 - Amendment of other Acts

 

Administrative Decisions (Judicial Review) Act 1977

 

Item 1

 

The purpose of this item is to amend schedule 2 of the Administrative Decisions (Judicial Review) Act 1977 (AD(JR) Act) to exempt certain decisions made under the ACC Act from being subject to requests for statements of reasons under section 13 of the AD(JR) Act.

 

Section 13 of the AD(JR) Act provides that, in specified circumstances, reasons for an administrative decision may be obtained by an applicant.  Schedule 2 of the AD(JR) Act sets out classes of decisions that are exempt from the operation of section 13.  Amongst other matters, schedule 2 provides that section 13 does not apply to ‘decisions relating to the administration of criminal justice’, which includes decisions in connection with investigations.

 

Without the operation of this item, schedule 2 of the AD(JR) Act would not apply to decisions regarding “intelligence operations” carried out by the ACC.  An “intelligence operation” is defined in the ACC Act as “the collection, correlation, analysis or dissemination of criminal information and intelligence relating to federally relevant criminal activity”.

 

Further, without the operation of this item, schedule 2 of the AD(JR) Act would be limited to investigations of offences against a law of the Commonwealth or of a Territory, whereas the ACC Act allows the ACC to investigate or conduct intelligence operations concerning offences against a law of a State that have a Federal aspect.

 

This item amends the list of exemptions in schedule 2 of the AD(JR) Act to cover decisions made under the ACC Act in connection with: intelligence operations, and investigations of State offences that have a federal aspect.

 

Australian Postal Corporation Act 1989

 

Items 2 and 3

 

The purpose of these items is to amend the Australian Postal Corporation Act 1989 (APC Act) to allow information and documents to be passed by current and former employees of Australia Post to the ACC where this disclosure is required by a corresponding State law.   Without the operation of these items, current and former Australia Post employees would be able to disclose information and documents to the ACC under the ACC Act, however they would not be able to disclose information to the ACC under a corresponding State law.

 

Item 2 pertains to current employees of Australia Post, and item 3 pertains to former employees of Australia Post.