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Friday, 15 November 2002
Page: 6480


Senator IAN CAMPBELL (Parliamentary Secretary to the Treasurer) (9:41 AM) —I table a revised explanatory memorandum relating to the bill and move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows

This bill will implement the most significant refocussing and restructuring of Australia's national law enforcement effort since the National Crime Authority was established in 1984.

During the election campaign last year the Prime Minister announced that he would convene a Summit to focus on producing an enhanced national framework to deal with terrorism and transnational crime. The Summit was duly convened in Canberra by the Prime Minister on 5 April and was attended by the Premiers of the States and the Chief Ministers from the Northern Territory and the Australian Capital Territory. The communique announcing the outcomes of the Summit sets out 23 resolutions, 23 initiatives unanimously agreed to by all Leaders, which do indeed constitute an enhanced national framework for dealing with terrorism and transnational crime. This government, under the leadership of the Prime Minister, has delivered, yet again, much needed reforms in the national interest.

The National Crime Authority (NCA) was established in 1984 as a national law enforcement agency whose purpose is to combat serious and organised crime. It was designed to overcome the barriers to effective law enforcement caused by jurisdictional boundaries in the Australian federal system. The continuing support for the activities of the NCA, from Commonwealth, State and Territory Governments, reflects the important role it has played. There is no doubt that the problems caused by serious and organised crime operating across jurisdictional boundaries, continue to pervade all levels of society. The NCA does not deal with simple street level crime, but with the web of complex criminal activity engaged in by highly skilled and resourceful criminal syndicates that utilise expert advice and the latest technologies. The globalisation of markets has brought with it the globalisation of crime. There is a blurring of traditional distinctions. Modern criminal entrepreneurs pay no heed to national or international boundaries. Terrorism is funded by organised criminal activity such as drug trafficking or arms dealings. The events of 11 September last year have heightened in us all an awareness that society is constantly facing new and emerging threats. We must be vigilant, and it is up to governments to ensure that law enforcement is provided with the best possible framework and tools to combat such threats. It is timely therefore to reassess whether the NCA in its present form is best placed to combat such threats in Australia in the twenty first century.

Leaders considered this very issue and agreed, in order to strengthen the fight against organised crime, to replace the NCA with an Australian Crime Commission (ACC). The ACC will build on the successes of the NCA in developing effective national law enforcement operations in partnerships with State and Territory police forces, but will be enhanced by removing the current barriers to its effectiveness.

Agreement reached with the States and Territories

To give effect to the Leaders' Summit resolutions in relation to the establishment of the ACC, Commonwealth, State and Territory Governments have agreed that the ACC will be constituted by Commonwealth legislation as a Commonwealth law enforcement agency, supported by State and Territory legislation.

Functions

The NCA, the Office of Strategic Crime Assessments (OSCA) and the Australian Bureau of Criminal Investigation (ABCI) will be replaced by the ACC which will provide an enhanced national law enforcement capacity through:

· Improved criminal intelligence collection and analysis;

· Setting clear national criminal intelligence priorities; and

· Conducting intelligence led investigations of criminal activity of national significance including the conduct and/or coordination of investigative and intelligence taskforces as approved by the Board.

Intelligence

The ACC will:

· Provide a coordinated national criminal intelligence framework;

· Set national intelligence priorities to avoid duplication;

· Allow areas of new and emerging criminality to be identified and investigated; and

· Provide for investigations to be intelligence driven.

Governance

The Inter-Governmental Committee of the NCA (IGC-NCA) will be renamed the IGC-ACC and it will comprise eight State and Territory representatives and be chaired by the Commonwealth representative. It will monitor the work of the ACC and the Board and provide broad direction.

The Parliamentary Joint Committee (PJC-NCA) oversighting the operations of the NCA will continue its current role and function in oversighting the operation of the ACC.

Board and Chair

The new ACC Board will consist of thirteen voting members and the Chief Executive Officer as a non-voting member. The Chairman of the Board will be the Commissioner of the Australian Federal Police.

The voting members of the Board will be:

· Eight State and Territory Police Commissioners (New South Wales, Victoria, Queensland, South Australia, Western Australia, Tasmania, Northern Territory and the Chief Police Officer of the Australian Capital Territory) and:

· Five Commonwealth Agency Heads— Commissioner of the Australian Federal Police, Director General of Security, the Chair of the Australian Securities and Investments Commission, the CEO of the Australian Customs Service and the Secretary of the Attorney General's Department.

Chief Executive Officer

A Chief Executive Officer to manage the ACC and its operations and investigations will be appointed by the Governor-General on the recommendation of the Commonwealth Minister and Federal Cabinet. Before recommending an appointment, the Commonwealth Minister will accept nominations from members of the Board and consult with members of the Inter-Governmental Committee.

The CEO will be an individual with a strong law enforcement background.

Staffing

Initially the ACC will maintain the current combined operational staffing levels of the NCA, ABCI and OSCA. Over time this will be reviewed by the board to meet operational requirements.

The ACC will have a standing in-house investigative capacity. The mix and composition of in-house and taskforce intelligence and investigative capabilities will be determined by the Board and CEO in accordance with operational priorities.

Offices

Initially ACC offices will remain in all current NCA locations at current operational staffing and funding levels. Over time this will be reviewed by the board to meet operational requirements. The ACC headquarters will be located in Canberra.

Powers

The ACC will have in-house and taskforce access to all coercive and investigatory powers currently available to the NCA. The Board will need to specifically authorise those investigations or operations which are to have access to coercive powers.

The powers will be the same as those available to the NCA. However, having regard to the focus of the ACC on criminal intelligence the bill expressly provides that the coercive powers are also to be available for intelligence operations. It clearly sets out the matters the Board must take into account before making those coercive powers available to an intelligence operation or an investigation.

Coercive hearing powers will be exercised through independent statutory officers, to be called Examiners.

Investigations

Investigative and operational priorities will be determined by the Board in accordance with operational priorities.

The first priority taskforce for the ACC will be illegal hand gun trafficking both into and within Australia.

Operational Expenses

The ACC will fund all in-house resources and operational costs (including salaries, staff overtime and travel allowances) under the same arrangements as currently apply to the NCA and ABCI. The ACC will fund current NCA references as budgeted for in the Commonwealth forward estimates and during that time will maintain its commitment to in-house investigations, subject to the operational requirements as assessed by the Board.

Decisions regarding the composition of taskforces and the contributions of jurisdictions to these taskforces will be determined by agreement between the Board, CEO and relevant jurisdictions on a case by case basis.

This includes a commitment by Commonwealth, State and Territory police forces to cover salary, salary related and other costs of secondees to additional ACC taskforces that they participate in, as agreed by the Board and CEO.

After three years of operation a review will be conducted into the balance and mix of the in-house investigative capacity by the IGC.

Budget

Almost all of the funding of the ACC is to be provided by the Commonwealth.

The current levels of funding provided for the agencies as stipulated in the Forward Estimates by the Commonwealth will be provided to the ACC.

Future funding levels will be subject to the normal budgetary processes.

This, then, is the agreement reached with the States and Territories and the bill amends the National Crime Authority Act 1984 to give effect to that agreement.

The Bill

The Government introduced the bill in the House of Representatives in September. The bill was immediately referred to the Parliamentary Joint Committee on the National Crime Authority (the PJC) for examination and report. The PJC was asked to report on the bill in a very tight timescale and did an excellent job in conducting public hearings, considering extensive submissions and preparing a detailed and comprehensive report on the bill in the time available.

Since the report was tabled on 6 November the Government has consulted with the States and Territories on the PJC's 15 principal recommendations and delivered its response. The bill now before this House incorporates amendments passed by the House of Representatives to give effect to the Government's response.

PJC Recommendations

The Government, with the concurrence of the States and Territories agrees, in whole or in part, with 13 of the 15 recommendations and the amendments give effect to those recommendations for which legislation is required.

Recommendation 1

The PJC recommended that the bill be amended to provide that Austrac be included as a member of the Board.

The Government does not agree with this recommendation. AUSTRAC will provide specialist financial intelligence to the Board. That intelligence will be integral to the ACC's fight against serious and organised crime, in particular, money-laundering. It is not necessary for AUSTRAC to be on the Board to do this.

The recommendation was raised with the States and Territories and the consensus was that this recommendation not be accepted.

Recommendation 2

The PJC recommended that the bill be amended to restore the entitlement for the ACC to develop co-operative relationships with corresponding overseas law enforcement agencies.

The Government agrees to this recommendation and the bill has been amended to reinstate section 17 of the NCA Act.

Recommendation 3

The PJC recommends that the bill be amended to ensure that the relevant state/s are informed of any operation or investigation that is proposed to take place within its boundaries.

The Government agrees with this recommendation. The bill has been amended to oblige a Committee to inform all other Board members of its decisions.

Recommendation 4

The PJC recommends that the bill be amended to explicitly provide that:

· The CEO should be responsible for the overall management of the ACC. The Minister for Justice and Customs of the Commonwealth Parliament should be the Minister, under our system of responsible government, accountable to the Parliament for the work of the ACC.

· The CEO appoint the head of a task force after consultation with and advice from the Board.

· Heads of task forces are responsible to the ACC through the CEO.

The Government agrees with this recommendation.

The bill has been amended to provide that the CEO:

· is responsible for the administration and management of the ACC;

· must manage, coordinate and control ACC operations/investigations;

· must appoint the head of the investigation/operation after having consulted with the Board in relation thereto.

The Minister for Justice and Customs is the Commonwealth Minister responsible for the Australian Crime Commission Act and no amendment is necessary.

Recommendation 5

The PJC recommends that the bill be amended to provide that the suspension of the CEO can only take place on the initiative of the Minister until a meeting of the full Board to consider the matter and that the CEO can only be removed for cause, or, if that is thought to be insufficient scope to allow for the removal of the CEO, by the Minister following a resolution of the full Board passed by a two- thirds majority.

The Government agrees to this recommendation in principle. In relation to the suspension of the CEO, the bill has been amended to provide that the Minister must not suspend the CEO unless the Minister has consulted the Board about the proposed suspension. In relation to the termination of the CEO, the proposed provision enabling termination for “unsatisfactory conduct” is a “for cause” provision.

Recommendation 6

The PJC recommends that the Government give careful consideration to the terms and conditions of ongoing staff to be employed by the new ACC, particularly in the context of their current conditions of service.

The Government agrees to this recommendation. This is to be a priority for the CEO, who is the head of the Statutory Agency and responsible for workplace relations and accountability issues.

Recommendation 7

The PJC recommends that the bill be amended to provide that complaints against all staff of the ACC be investigated by the Commonwealth Ombudsman as a minimum.

The Government agrees with this recommendation in principle. The Commonwealth Ombudsman currently has the jurisdiction to deal with complaint against the National Crime Authority. The bill amends the Ombudsman Act to provide that the ACC is a prescribed authority for the purposes of the Ombudsman Act and maintains the jurisdiction of the Ombudsman over the staff of the ACC.

Recommendation 8

The PJC recommends that the Government, once the ACC has been established, gives urgent attention to ensuring that operational, investigative and support staff work under the same integrity and complaints regime.

The government agrees with this recommendation. This is also to be a priority for the CEO, who is the head of the Statutory Agency and responsible for workplace relations and accountability issues.

Recommendation 9

The PJC recommends that the bill be amended to provide that the ACC is obliged to provide the Parliamentary Committee oversighting its operations with any information sought by the Committee except where that information would identify any particular individual suspected of criminal conduct (unless the matter is already in the public domain) or would, in the opinion of the CEO, risk prejudicing a current inquiry.

The Government agrees to this recommendation in part. The bill has been amended to provide that the PJC-NCA may have access to the same information that the IGC-NCA is able to access and on the same conditions. This includes access to information in relation to an ACC operation or investigation that the ACC is conducting, which the PJC is currently not entitled to access.

Information that would prejudice the safety or reputation of persons or the operations of law enforcement agencies would not be disclosed. Where the Chair of the Board decides that the material should not be disclosed on these grounds, then the PJC will be able to direct the request to the Minister for determination.

Recommendation 10

The PJC recommends that the bill be amended to establish the ACC as a legal entity.

The Government does not agree to this recommendation.

Commonwealth policy provides for a presumption against incorporation of statutory bodies unless there are good reasons for doing so. There are no good reasons in the case of the ACC. There is also a significant increase in accountability for financial management when a body is incorporated and becomes subject to the requirements of the Commonwealth Authorities and Companies Act 1997. This includes additional auditing, reporting and disclosure requirements. To impose the additional financial reporting burdens on an organisation not intended to be covered by them merely complicates processes that the Government wishes to streamline.

The concern underlying the PJC recommendation appears to be that a person having a cause of action against the ACC could be legally disadvantaged if the ACC is not incorporated. This is not correct. As the PJC itself acknowledged the NCA was not incorporated and there is no evidence to suggest that any one has been disadvantaged by that.

Recommendation 11

The PJC recommends that there should be no blanket immunity from suit for the ACC.

The Government agrees with this recommendation. The bill has been amended to provide that the protection from liability for damages should only be available to members of the Board.

Recommendation 12

The PJC recommends that the bill be amended to provide explicitly that any decision by a committee of the Board to authorise an operation/ investigation as a special operation/investigation requires ratification by the full Board.

The Government agrees in principle to this recommendation. The bill has been amended to expressly prohibit a committee determining that an intelligence operation/investigation is a special operation/investigation. The effect will be that all such decisions will have to be taken by the full Board.

Recommendation 13

The PJC recommends that the bill be amended to provide that no part-time examiners can be engaged on a per-hour or per-diem basis.

The Government agrees to this recommendation. The bill has been amended to remove references to part-time examiners.

Recommendation 14

The PJC recommends that the bill be amended to explicitly provide that examiners must satisfy themselves in each case that before they exercise special powers under the Act that it is appropriate and reasonable to do so and that they indicate in writing the grounds for having such an opinion.

The Government agrees to this recommendation. The bill has been amended to provide that examiners must satisfy themselves that it is reasonable in all the circumstances to exercise powers to issue a summons or a notice to produce and will be required to reduce to writing the reasons for taking the decision.

Recommendation 15

The Committee recommends that the bill be amended to provide for a comprehensive public review of the ACC Act to take place after three years have elapsed from the date of commencement of the ACC Act.

The Government agrees to this recommendation. The bill has been amended to provide that there is to be a review of the operation of the ACC as soon as practicable after 1 January 2006.

Additional recommendations by certain members

Finally I turn to the additional recommendations that were made by certain members of the PJC. The Government does not accept these recommendations.

These recommendations arose out of concerns that the power to authorise the use of coercive powers should not reside with the proposed Board of the ACC but should remain with the Inter Governmental Committee. This change was unanimously agreed to by all governments of Australia, Commonwealth, State and Territory and was only taken after serious consideration and debate. It was an essential part of that agreement that the existing cumbersome reference system needed to be streamlined and this bill has given effect to that agreement.

The ACC will significantly enhance Australia's national law enforcement effort. For the first time there will be a focus on national criminal intelligence and investigations and operations will be intelligence driven. It will be under the direction of a Board comprising the heads of the key Australian law enforcement agencies. Between them they are collegiately responsible for Australia's law enforcement and who better to set national law enforcement priorities. The ACC will significantly enhance law enforcement coordination and cooperation at the national level. It will complement rather than compete with existing law enforcement agencies. The ACC will be a key player in the fight against organised crime in Australia well into the twenty first century.

Debate (on motion by Senator Ludwig) adjourned.