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Australian Crime Commission Amendment Bill 2007

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2004-2005-2006-2007

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

SENATE

 

 

 

 

 

 

 

 

 

 

 

AUSTRALIAN CRIME COMMISSION AMENDMENT BILL 2007

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

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

Senator the Honourable David Johnston)



AUSTRALIAN CRIME COMMISSION AMENDMENT BILL 2007

OUTLINE

 

The purpose of the Bill is to amend the Australian Crime Commission Act 2002 to clarify that an Australian Crime Commission examiner can record their reasons for issuing a summons or notice to produce before, at the same time or as soon as practicable after the summons or notice has been issued.

 

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

 

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

 

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

 

Other measures

 

The amendments also allow a witness to appear before an examiner, or produce documents to an examiner who may not be the same examiner who issued the summons or notice to produce. 

FINANCIAL IMPACT STATEMENT

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



NOTES ON CLAUSES

List of abbreviations used

 

ACC                             Australian Crime Commission

ACC Act                     Australian Crime Commission Act 2002

ACC v Brereton          ACC v Brereton [2007] VSC 297

NIP Bill                       Crimes Legislation Amendment (National Investigative Powers                               and Witness Protection) Bill 2007

The Bill                       Australian Crime Commission Amendment Bill 2007

Clause 1: Short Title

Clause 1 is a formal clause which provides that the Bill may be cited as the Australian Crime Commission Amendment Act 2007 when it is enacted.

Clause 2: Commencement

Clause 2 sets out when various parts of the Bill commence.

Sections 1 to 3 of the Bill (the short title, commencement and schedule provisions) will commence on the day the Bill receives Royal Assent.

Item 1 of Schedule 1 to the Bill will commence on the day after the Bill receives Royal Assent.  However, if amendments to paragraphs 28(1)(a) and (c) of the ACC Act made by the NIP Bill commence either before, or at the same time as, the Bill receives Royal Assent, this item does not commence at all.

If item 1 does commence before the commencement of the relevant NIP Bill clause, the item will only remain in force until the relevant provisions of that Bill come into force, at which time Part 2 of Schedule 1 commences.

Items 2 to 12 of Schedule 1 to the Bill will commence on the day after the Bill receives Royal Assent.

Part 2 of Schedule 1 will commence the day after the relevant NIP Bill clause commences.  However, if the relevant clause of the NIP Bill does not commence, Part 2 of the schedule does not commence at all.

Clause 3: Schedule(s)

This is a formal clause that provides that the ACC Act is amended as provided in Schedule 1 and that other measures in the schedule have effect according to their terms.



SCHEDULE 1

Overview of an examiner’s power to issue a summons or notice to produce

Part II, Division 2 of the ACC Act allows an ACC examiner to conduct an examination for the purpose of a special ACC operation/investigation.

Section 28 of the ACC Act empowers ACC examiners, in conducting an examination, to summon witnesses and to take evidence.  Section 29 allows examiners to issue notices to produce a specified document or thing to an examiner, at a specified time and place.

PART 1 - GENERAL AMENDMENTS

Items 1, 3, 4 and 6

Subsections 28(1) and 29(1) of the ACC Act provide that an examiner may summon a person to appear before them at an examination, or require that a document or thing be produced to them at a specified time and place. 

As currently drafted, these provisions require a person to appear before or produce documents or things to the same examiner who issued the summons or notice.  This provision is problematic in circumstances where the examiner who issued the summons or notice is on leave, ill or otherwise unavailable. 

The purpose of items 1, 3, 4 and 6 is to address this problem by allowing a person to appear before any examiner or supply any examiner with requested documents or things.

For the commencement of item 1, refer to clause 2 above and item 13 below.

Item 2 and 7

Subsections 28(1A) and 29(1A) of the ACC Act provide that an examiner must record in writing the reasons for the issue of the summons or notice.  In ACC v Brereton, the Victorian Supreme Court held that reasons must be recorded prior to the issuing of the summons.  This finding is problematic in circumstances where a summons or notice has to be issued urgently, or where a large number of summonses or notices are being issued at the one time.

These items amend subsections 28(1A) and 29(1A) of the ACC Act to expressly provide that an examiner may record their reasons for issuing a summons or notice to produce before, at the time, or as soon as practicable after the summons or notice has actually been issued. 

The provision is intended to overcome doubt about the operation of the provision following the decision in ACC v Brereton.

Item 5

Subsections 28(1A) and 28(2) and section 29A prescribe a range of technical requirements for issuing a summons under subsection 28(1).

Subsection 28(1A) requires an examiner to record in writing the reasons for the issue of the notice. 

Subsection 28(2) provides that a summons issued under subsection 28(1) must be accompanied by a copy of the determination by the ACC Board that the intelligence operation is a special operation, or that the investigation into matters relating to federally relevant criminal activity is a special investigation.

Section 29A sets out the circumstances in which an examiner who issues a summons under section 28 is required to include in the summons a notation to the effect that the disclosure of information about the summons, or any official matters connected with it, is prohibited (except in circumstances specified in the notice).  The section sets out when a notation must or may be made, prescribes the form and content of the notation, and provides for cancellation of the notation.

This item adds a new subsection 28(8) to the ACC Act to provide that a failure to comply with the requirements set out in subsections 28(1A) - to the extent that the subsection relates to the making of a record - and 28(2) and section 29A of the ACC Act does not render a summons issued under subsection 28(1) invalid.

The purpose of this amendment is to ensure that ACC operations/investigations are not undermined by reason of an examiner’s failure to comply with these technical requirements.

This provision does not apply to substantive procedural obligations, such as the requirements under subsection 28(1A) that the examiner must be satisfied that it is reasonable in all the circumstances to issue the summons and under subsection 28(3) that the summons should, other than in limited circumstances, set out the general nature of the matters in relation to which the examiner intends to question the person.

Item 8

Subsection 29(1A) and section 29A prescribe the technical requirements for issuing a notice to produce under subsection 29(1).

Subsection 29(1A) provides that an examiner must record in writing the reasons for the issue of the notice. 

Section 29A applies the same requirement applicable to a summons, in relation to the inclusion of a notation, to a notice to produce (see item 8 above).

This item adds a new subsection 29(5) to the ACC Act to provide that a failure to comply with the requirements set out in subsection 29(1A) - to the extent that the subsection relates to the making of a record - and section 29A does not render a notice issued under subsection 29(1) invalid.

As with item 5, the purpose of this amendment is to ensure that ACC operations/investigations are not undermined by reason of an examiner’s failure to comply with these technical requirements

This provision does not apply to the requirement under subsection 29(1A) that the examiner must be satisfied that it is reasonable in all the circumstances to issue the summons.

Item 9 and 11

These items provide that the amendments to sections 28 and 29 in items 1 to 8 apply to a summons or notice to produce that is issued after the commencement of this item.

The proposed sections clarify that these amendments are intended to apply prospectively.

Items 2 to 8 commence on the day after the Bill receives Royal Assent.  For the commencement of item 1, refer to clause 2 above and item 13 below.

Items 10 and 12

Item 10 validates summonses issued prior to commencement of the Bill which would otherwise be invalid because an examiner did not record their reasons for issuing the summons prior to the summons actually being issued. 

This provision ensures that any summonses that would be rendered invalid on the reasoning of ACC v Brereton are deemed to be valid and always to have been valid.  This would apply to any summons issued under subsection 28(1) since the commencement of the ACC Act. 

Item 12 applies to notices to produce under subsection 29(1) in the same way that item 10 applies to summonses.

It is intended that any actions taken in reliance on the validity of a summons or notice that, but for these provisions, could be invalid, would not be rendered invalid because the summons or notice was issued before reasons were recorded.

This item applies retrospectively to all summonses and notices to produce issued under subsection 28(1) or 29(1) prior to the commencement of the Bill. 

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

PART 2 - AMENDMENTS CONTINGENT ON THE CRIMES LEGISLATION AMENDMENT (NATIONAL INVESTIGATIVE POWERS AND WITNESS PROTECTION) ACT 2007

Item 13

Item 13 is in similar terms and is being enacted for the same reasons as item 1.  However, the provision would apply to section 28(1) as amended by the NIP Bill should that Bill be enacted.  If the NIP Bill is not enacted then item 13 will never commence.  Refer also to clause 2.

Item 14

Item 14 provides that the amendments to section 28 in item 13 apply to summonses issued after the commencement of this item.  For commencement refer to clause 2 and items 13 above.