2019

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

AUSTRALIAN CRIME COMMISSION AMENDMENT (SPECIAL OPERATIONS AND SPECIAL INVESTIGATIONS) BILL 2019

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Home Affairs, the Hon Peter Dutton MP)

Australian Crime Commission Amendment (Special Operations and Special Investigations) Bill 2019

OUTLINE

1.                   The Australian Crime Commission Amendment (Special Operations and Special Investigations) Bill 2019 (the Bill) amends the Australian Crime Commission Act 2002 (the ACC Act) to confirm the validity of current and former special ACC operations and special ACC investigations determinations.

2.                   The Bill also amends the process in the ACC Act for the Australian Criminal Intelligence Commission (ACIC) Board to make future special operations and special investigations determinations, and to make consequential amendments. 

PURPOSE

3.                   The purpose of the Bill is to introduce a streamlined regime in the ACC Act by amending the process by which the ACIC Board determines to authorise the ACC to undertake a special operation or special investigation, to ensure the validity of current, former and future special operation and special investigation determinations.

4.                   Schedule 1 to the Bill will confirm the validity of current and former special operations and special investigations, and will amend the authorisation process for the ACIC Board to determine a special operation or investigation in the future.  The ACIC can access specific powers under the ACC Act for the purposes of a special operation or investigation, including examination powers under Division 2 of Part II of the Act. 

FINANCIAL IMPACT STATEMENT

5.                   If the validation provided for by the Bill results in the acquisition of property from a person otherwise than on just terms (within the meaning of paragraph 51(xxxi) of the Constitution, the Commonwealth is liable to pay a reasonable amount of compensation to the person. However, this is anticipated to have minimal financial impacts on Government revenue.   

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

6.                   A statement of compatibility with human rights has been prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 and is at Attachment A .

AUSTRALIAN CRIME COMMISSION AMENDMENT (SPECIAL OPERATIONS AND SPECIAL INVESTIGATIONS) BILL 2019

NOTES ON INDIVIDUAL CLAUSES

 

Clause 1                      Short title

1.                   Clause 1 provides for the Act to be cited as the Australian Crime Commission Amendment (Special Operations and Special Investigations) Act 2019.

Clause 2                      Commencement

2.                   Clause 2 of the Bill sets out the times at which the various provisions of the Act commence.

3.                   Subclause 2(1) of the Bill provides that each provision of the Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

4.                   The table at subclause 2(1) provides that the Act commences on the day the Act receives Royal Assent.

5.                   The note in subclause 2(1) makes it clear that the table relates only to the provisions of the Act as originally enacted. The table will not be amended to deal with any later amendments to the Act.

6.                   Subclause 2(2) of the Bill provides that any information in column 3 of the table is not part of the Act. Information may be inserted in column 3, or information in it may be edited, in any published version of the Act. There is currently no information in column 3 of the table.

Clause 3                      Schedule s

7.                   Clause 3 of the Bill provides that legislation that is specified in a Schedule to the Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the Act has effect according to its terms.

8.                   The purpose of this clause is to clarify that Schedule 1 to the Bill sets out the amendments to the Act, and that the particular provisions mentioned in that Schedule are amended in accordance with the particular items in that Schedule.

Schedule 1 - Amendments

 

Australian Crime Commission Act 2002

 

Item 1             Subsection 4(1) (definition of ACC operation/investigation )

9.                   This item repeals the current definition of ACC operation/investigation under current subsection 4(1) of the Australian Crime Commission Act 2002 (ACC Act).

Item 2             Subsection 4(1) (definition of intelligence operation )

10.               This item is a consequential amendment to omit the words ‘the investigation of matters relating’ and substitute ‘undertaking investigations relating’ in the definition of intelligence operation in current subsection 4(1) of the ACC Act.

Item 3 Subsection 4(1) (paragraph (b) of the definition of member of the staff of the ACC )

11.               This item is a consequential amendment to omit the words ‘an ACC’ and substitute ‘a special ACC’ in the definition of member of the staff of the ACC in current subsection 4(1) of the ACC Act.

Item 4             Subsection 4(1) (paragraph (b) of the definition of official matter )

12.               This item is a consequential amendment to omit the words ‘an ACC’ and substitute ‘a special ACC’ in the definition of official matter in current subsection 4(1) of the ACC Act.

13.               The current definition of official matter under subsection 4(1) of the ACC Act provides that determinations referred to in subsection 28(2) of the ACC Act, ACC operations/investigations, examinations held by an examiner and court proceedings are official matters.

Item 5             Subsection 4(1)

14.               This item inserts a new definition of special ACC investigation in subsection 4(1) of the ACC Act. This new definition provides that a special ACC investigation is an investigation relating to federally relevant criminal activity that the Board has authorised to occur. Federally relevant criminal activity is defined under current subsection 4(1) of the ACC Act as a relevant criminal activity where the relevant crime is an offence against a law of the Commonwealth or a Territory, or an offence against a law of a State with a federal aspect.

15.               This new definition of special ACC investigation includes a note that the Board authorises such an investigation by making a determination under subsection 7C(3) of the ACC Act. A special ACC investigation can occur only while the determination is in force.

16.               This item inserts a new definition of special ACC operation in subsection 4(1) of the ACC Act. This new definition provides that a special ACC operation is an intelligence operation that the Board has authorised to occur.

17.               This new definition of special ACC operation includes a note that the Board authorises such an operation by making a determination under subsection 7C(2). A special ACC operation can occur only while the determination is in force.

Item 6             Subsection 4(1) (definition of special ACC operation/investigation )

18.               This item repeals and substitutes the definition of special ACC operation/investigation into subsection 4(1) of the ACC Act. The exclusion of integrity operations from this definition reflects the current position in the existing definition of special ACC operation/investigation in subsection 4(1) of the ACC Act. This new definition provides that a special ACC operation/investigation is a special ACC operation or a special ACC investigation . This new definition of special ACC operation/investigation further provides that a special ACC operation/investigation does not include an integrity operation. Integrity operation is defined under subsection 4(1) of the ACC Act as a controlled operation authorised by an integrity testing controlled operation authority granted under Part IAB of the Crimes Act 1914 (the Crimes Act) or an integrity testing operation authorised by an integrity testing authority granted under Part IABA of the Crimes Act.

Item 7             Subsection 4(1A) (paragraph (b) of the example)

19.               This item is a consequential amendment to insert the word ‘special’ before ‘ACC’ in paragraph (b) of the note to subsection 4(1A). The note provides guidance on expressions to which subsection 4(1A) applies.

Item 8             Subsection 4(2)

20.               This item is a consequential amendment to omit the words ‘an ACC’ and substitute ‘a special ACC’ in subsection 4(2) of the ACC Act. Current subsection 4(2) of the ACC Act provides that where the head of an ACC operation/investigation suspects that an offence that is not a relevant crime may be directly or indirectly connected with, or may be a part of, a course of activity involving the commission of a relevant crime (whether or not the head has identified the nature of that relevant crime), then the incidental offence is, for so long only as the head so suspects, taken, for the purposes of the ACC Act, to be a relevant crime.

Item 9             Subparagraph 4A(2)(d)(i)

21.               This item is a consequential amendment to omit the words ‘is investigating a matter relating to’ and substitute ‘is undertaking an investigation relating to’ in subparagraph 4A(2)(d)(i) of the ACC Act. Section 4A of the ACC Act provides the requirements that must be met for a State offence to have a federal aspect for the purposes of the ACC Act. 

Item 10           Subparagraph 4A(2)(d)(ii)

22.               This item is a consequential amendment to omit the words ‘investigating, or were to investigate, a matter relating to’ and substitute ‘undertaking, or were to undertake, an investigation relating to’ in subparagraph 4A(2)(d)(ii) of the ACC Act. Section 4A of the ACC Act provides the requirements that must be met for a State offence to have a federal aspect for the purposes of the ACC Act.  

Item 11           Subsection 4A(6) (definition of intelligence operation )

23.               This item is a consequential amendment to omit the words ‘the investigation of matters relating’ and substitute ‘undertaking investigations relating’ in the definition of intelligence operation in subsection 4A(6) of the ACC Act. Subsection 4A(6) of the ACC Act defines the terms ancillary offence, Commonwealth place , constitutional corporation , electronic communication , intelligence operation and State offence for the purposes of section 4A of the ACC Act. Section 4A of the ACC Act provides the requirements that must be met for a State offence to have a federal aspect for the purposes of the ACC Act.   

Item 12           Paragraphs 7A(b) and (c)

24.               This item repeals current paragraphs (b) and (c) of section 7A of the ACC Act and inserts new paragraphs (b) and (c) into section 7A of the ACC Act. Section 7A of the ACC Act sets out the functions of the Australian Crime Commission (ACC).

25.               New paragraph (b) of section 7A provides that it is a function of the ACC to, when authorised by a determination made by the Board, undertake special ACC operations.

26.               New paragraph (c) of section 7A provides that it is a function of the ACC to, when authorised by a determination made by the Board, undertake special ACC investigations.

Item 13           Paragraphs 7C(1)(c) and (d)

27.               This item repeals current paragraphs (c) and (d) of subsection 7C(1) of the ACC Act and inserts new paragraphs (c) and (d) into subsection 7C(1) of the ACC Act. Section 7C of the ACC Act sets out the functions of the Australian Criminal Intelligence Commission (ACIC) Board (the Board).

28.               New paragraph (c) of subsection 7C(1) provides that it is a function of the Board to determine a special ACC operation to occur.

29.               New paragraph (d) of subsection 7C(1) provides that it is a function of the Board to determine a special ACC investigation to occur.

Item 14           Subsection 7C(1) (note)

30.               This item is a consequential amendment to omit the words ‘into matters’ from the note in subsection 7C(1) of the ACC Act. The note currently provides that the ACIC CEO must determine, in writing, the head of an intelligence operation or an investigation into matters relating to federally relevant criminal activity.

Item 15           Subsections 7C(2), (3) and (4)

31.               This item repeals current subsections (2), (3) and (4) of section 7C of the ACC Act, and inserts new subsections (2), (3), (4), (4A), (4B), (4C), (4D), (4E), (4F), (4G), (4H), (4J) and 4(K) into section 7C of the ACC Act.

32.               New subsection (2) of section 7C of the ACC Act provides that the Board may make a determination, in writing, authorising a special ACC operation to occur. New subsection (3) of section 7C of the ACC Act provides that the Board may make a determination, in writing, authorising a special ACC investigation to occur. The determination is the instrument which authorises the special ACC operation or special ACC investigation to occur.

33.               New subsection (4) of section 7C of the ACC Act provides that a determination under new subsections (2) or (3) of section 7C of the ACC Act may identify federally relevant criminal activity to which the determination relates at whatever level of generality the Board considers appropriate. This may include (without limitation) reference to categories of relevant criminal activities or suspected offenders, specific allegations of crime or specific offenders, or any combination of such references.

34.               New subsection (4A) of section 7C of the ACC Act sets out the only condition for the exercise of the power under new subsection (2) or (3) of section 7C of the ACC Act. On the basis of the collective experience of the voting Board members, the Board must consider that it is in the public interest that the Board authorise the special ACC operation or special ACC investigation occur for the Board to make such a determination.

35.               New subsection (4B) of section 7C of the ACC Act provides that, to avoid doubt, a determination under new subsections (2) or (3) of section 7C can be made, and has effect, regardless of whether the ACC:

·          is, at the time the determination is made, already investigating any or all of the federally relevant criminal activity to which the determination relates

·          subsequently investigates any or all of the federally relevant criminal activity to which the determination relates by any means (other than through an examiner exercising powers under Division 2 of Part II of the ACC Act), or

·          decides to investigate some part of the federally relevant criminal activity to which the determination relates because of a request for assistance by another law enforcement agency.

36.               New subsection (4C) of section 7C of the ACC Act provides that a determination made under new subsections (2) or (3) of section 7C must, to the extent that the Board reasonably considers appropriate having regard to the level of generality at which it has authorised that a special ACC investigation or special ACC operation occur:

·          describe the general nature of the circumstances or allegations constituting the federally relevant criminal activity to which the determination relates, and

·          set out the purpose of the investigation or operation.

37.               However, a determination is not required to specify any particular offence/s, to specify any particular conduct, transaction or person to which the investigation or operation relates, or to set out any timeframes in which the criminal activity may have occurred. A determination is not required to specify a timeframe in which an investigation or operation must commence or be completed.

38.               New subsection (4D) of section 7C of the ACC Act provides that the Board may, at any time, revoke a determination made under new subsections (2) or (3) of section 7C.

39.               New subsection (4E) of section 7C of the ACC Act provides that a special ACC operation can be undertaken only while a determination under new subsection (2) of section 7C is in force.

40.               New subsection (4F) of section 7C of the ACC Act provides that a special ACC investigation can be undertaken only while a determination under new subsection (3) of section 7C is in force.

41.               New subsection (4G) of section 7C of the ACC Act provides that a determination under new subsections (2) or (3) of section 7C is in force during the period beginning immediately after the determination is made, and ending at the earliest of the following:

a.        the end of the period of three (3) years beginning immediately after the determination is made

b.       the end of the day on which the determination is revoked under new subsection (4D) of section 7C

c.        if the determination is revoked under subsection 9(7)—when the CEO is notified of the revocation.

42.               New subsection (4H) of section 7C of the ACC Act provides that new paragraph (4G)(b) of section 7C does not prevent the making of another determination under new subsections (2) or (3) of section 7C in the same terms as the expired or revoked determination. The making of another determination in the same terms as the expired or revoked determination is subject to the same condition in subsection (4A) of section 7C of the ACC Act. Subsection (4A) provides that, on the basis of the collective experience of the voting Board members, the Board must consider that it is in the public interest that the Board authorise the special ACC operation or special ACC investigation occur for the Board to make such a determination.

43.               New subsection (4J) of section 7C of the ACC Act provides that the validity of the determination is not affected by any failure to comply with new subsection (4C) of section 7C.

44.               New subsection (4K) of section 7C of the ACC Act provides that a determination made under subsection (2) or (3) of the new section 7C is not a legislative instrument. This provision is merely declaratory of the law and intended to assist readers, and is not an exemption from the Legislation Act 2003 .

Item 16           Subsection 7C(6)

45.               This item repeals the subsection. Current subsection 7C(6) of the ACC Act provides that a determination under subsection (2) or (3) of section 7C has effect immediately after it is made. The period for which determinations are in force is provided for in new subsection 7C(4G) of the ACC Act.

Item 17           Subsection 7G(4)

46.               This item is a consequential amendment to omit the words ‘determine that an intelligence operation is a special operation, or that an investigation into matters relating to federally relevant criminal activity is a special investigation,’, and substitute ‘make a determination under subsection 7C(2) or (3)’ in subsection 7G(4) of the ACC Act. Section 7G of the ACC Act provides for voting at ACIC Board meetings.

Item 18           Subparagraph 7J(1)(b)(ii)

47.               This item is a consequential amendment to omit the words ‘determine that an intelligence operation is a special operation, or that an investigation into matters relating to federally relevant criminal activity is a special investigation’ and substitute ‘make a determination under subsection 7C(2) or (3)’ in subparagraph 7J(1)(b)(ii) of the ACC Act. Current subparagraph 7J(1)(b)(ii) of the ACC Act provides that, for resolutions outside of Board meetings, the Board cannot determine that an investigation relating to federally relevant criminal activity is a special investigation or an operation is a special operation unless at least nine Board members, including two eligible Commonwealth Board members, vote in favour of making the determination. 

Item 19           Subsection 7K(4)

48.               This item is a consequential amendment to omit all words after the words ‘the function of’ and substitute ‘making a determination under subsection 7C(2) or (3)’ in subsection 7K(4) of the ACC Act. Section 7K of the ACC Act provides that the Board can establish and disband committees to assist the Board in the carrying out of its function. Current subsection 7K(4) of the ACC Act provides that the Board cannot determine that a committee has the function of determining when an investigation or operation is a special investigation or operation.

Item 20           Subsection 9(8) (note)

49.               This item is a consequential amendment to repeal the note under current subsection 9(8) of the ACC Act.

Item 21           Subsection 9(9)

50.               This item is a consequential amendment to insert the word ‘special’ before ‘ACC’ in current subsection 9(9) of the ACC Act. Section 9 of the ACC Act sets out the functions of ACC-Inter-Governmental Committee, with subsection (9) providing that the revocation of a determination does not affect the validity of any act undertaken in connection with the operation or investigation concerned prior to the ACIC CEO being notified of the revocation.

Item 22           Subsections 12(1) and (1A)

51.               This item is a consequential amendment to omit the words ‘an ACC’ and substitute the words ‘a special ACC’ in current subsections 12(1) and (1A) of the ACC Act. Section 12 of the ACC Act provides that the ACIC CEO must assemble evidence obtained during the carrying out of an investigation or operation if the evidence would be admissible in the prosecution of an offence against a law of the Commonwealth, a State or a Territory, or would be admissible in confiscation proceedings. The assembled evidence must be provided to the Attorney-General of the Commonwealth or the State, or a relevant law enforcement agency, or any person or authority who is authorised to prosecute the offence or commence confiscation proceedings.

Item 23           Section 16

52.               This item is a consequential amendment to insert the words ‘a determination is made under’ after ‘If’ in current section 16 of the ACC Act. Current section 16 of the ACC Act provides for limitations on challenges to Board determinations that an investigation is a special investigation or an operation is a special operation.

Item 24           Paragraphs 16(a) and (b)

53.               This item is repeals current paragraphs (a) and (b) of section 16 of the ACC Act and insert new paragraphs (a) and (b) under current section 16 of the ACC Act. New paragraph (a) of section 16 limits challenges to a determination made under new subsection 7C(2), and new paragraph (b) limits challenges to a determination made under new subsection 7C(3).

Item 25           Paragraph 18(2)(a)

54.               This item is a consequential amendment to insert the word ‘special’ before the word ‘ACC’ in current paragraph 18(2)(a) of the ACC Act. New paragraph 18(2)(a) of the ACC Act provides that the Minister must not, without approval of the ACC-Inter-Governmental Committee, give directions or furnish guidelines to the Board in relation to particular special ACC operations/investigations . 

Item 26           Paragraph 19A(1)(b)

55.               This item is a consequential amendment to omit the words ‘an ACC’ and substitute ‘a special ACC’ in current paragraph 19A(1)(b) of the ACC Act. Section 19A of the ACC Act provides that examiners may request information from agencies that is relevant to an investigation or operation.

Item 27           Subsection 19A(2)

56.               This item is a consequential amendment to omit the words ‘an ACC’ and substitute the ‘a special ACC’ in current paragraph 19A(2) of the ACC Act. Section 19A of the ACC Act provides that examiners may request information from agencies that is relevant to an investigation or operation.

Item 28           Subsection 19A(8) (paragraph (c) of the definition of relevant matters )

57.               This item is a consequential amendment to insert the word ‘special’ before the word ‘ACC’ in paragraph (c) of the definition of relevant matters in current subsection 19A(8) of the ACC Act. Subsection 19A(8) of the ACC Act defines terms, including relevant matters , for the purposes section 19A of the ACC Act.

Item 29           Paragraphs 20(1)(b) and (2)(b)

58.               This item is a consequential amendment to omit the words ‘an ACC’ and substitute ‘a special ACC’ in current paragraphs 20(1)(b) and (2)(b) of the ACC Act. Section 20 of the ACC Act provides that examiners may require information from agencies that is relevant to an investigation or operation, in certain cases.

Item 30           Paragraph 24ABA(1)(a)

59.               This item is a consequential amendment to insert the word ‘special’ after ‘purposes of the’ in current paragraph 24ABA(1)(a) of the ACC Act. Section 24ABA of the ACC Act provides for when returnable items seized or produced must be returned.

Item 31           Subsection 25A(6)

60.               This item is a consequential amendment to insert the word ‘special’ before ‘ACC’, wherever occurring, in current subsection 25A(6) of the ACC Act. Section 25A provides for the conduct of examinations before an examiner.

Item 32           Subsection 25A(6A)

61.               This item is a consequential amendment to insert the word ‘special’ before ‘ACC’ in current subsection 25A(6A) of the ACC Act. Section 25A provides for the conduct of examinations before an examiner.

Item 33           Subsection 28(2)

62.               This item is a consequential amendment to omit all words after ‘determination’ and substitute ‘made by the Board under subsection 7C(2) or (3)’ in current subsection 28(2) of the ACC Act. Section 28 of the ACC Act provides for the power to summon witnesses and to take evidence before an examiner at an examination.

Item 34           Subsection 46A(2) (heading)

63.               This item is a consequential amendment to repeal and substitute the heading to current subsection 46A(2), so that it will read ‘ Special ACC operations/investigations’.

Item 35           Subsection 46A(2)

64.               This item is a consequential amendment to insert the words ‘special’ before the word ‘ACC’ in current subsection 46A(2) of the ACC Act. Section 46 of the ACC Act provides for the responsibilities and obligations of the ACIC CEO in managing and administrating the ACIC.

Item 36           Subsection 46A(2A)

65.               This item is a consequential amendment to repeal and substitute subsection 46A(2A) of the ACC Act. New subsection 46A(2A) states that as soon as practicable after the Board makes a determination under subsection 7C(2) or (3), the ACIC CEO must determine, in writing, the head of the special ACC operation or the special ACC investigation. Section 46 of the ACC Act provides for the responsibilities and obligations of the ACIC CEO in managing and administrating the ACIC.

Item 37           Subsection 46A(3)

66.               This item is a consequential amendment to omit the words ‘an ACC’ and substitute the words ‘a special ACC’ in current subsection 46A(3) of the ACC Act. Section 46 of the ACC Act provides for the responsibilities and obligations of the ACIC CEO in managing and administrating the ACIC.

Item 38           Paragraph 46A(4)(b)

67.               This item is a consequential amendment to insert the word ‘special’ after ‘nature of the’ in current paragraph 46A(4)(b) of the ACC Act. Section 46 of the ACC Act provides for the responsibilities and obligations of the ACIC CEO in managing and administrating the ACIC.

Item 39           Paragraph 55A(2)(a)

68.               This item is a consequential amendment to omit the words ‘investigating a matter’ and substitute ‘undertaking an investigation’ in current paragraph 55A(2)(a) of the ACC Act. Subsection 55A(2) of the ACC Act provides that a law of a State may confer duties, functions or powers on the ACIC including for the purposes of an investigation or undertaking of an intelligence operation.

Item 40           Subparagraph 55A(2)(b)(i)

69.               This item is a consequential amendment to omit the words ‘of that matter’ in current subparagraph 55A(2)(b)(i) of the ACC Act. Subsection 55A(2) of the ACC Act provides that a law of a State may confer duties, functions or powers on the ACIC including for the purposes of an investigation or undertaking of an intelligence operation.

Item 41           Paragraph 55A(3)(a)

70.               This item is a consequential amendment to omit the words ‘investigate a matter’ and substitute ‘undertake an investigation’ in current paragraph 55A(3)(a) of the ACC Act. Subsection 55A(3) of the ACC Act provides that the ACIC cannot investigate relevant criminal activity, undertake an intelligence operation or perform a duty or function, or exercise a power relating to national policing information, under a law of a State without consent of the Board.

Item 42           Paragraph 55A(4)(a)

71.               This item is a consequential amendment to omit the words ‘the investigation of a matter’ and substitute ‘an investigation’ in current paragraph 55A(4)(a) of the ACC Act. Subsection 55A(4) of the ACC Act provides that a law of a State may confer functions, powers or duties on the ACC-IGC, the Board, the Chair of the Board, a member of the Board, the ACIC CEO, an examiner or a member of the staff of the ACC in relation to an investigation relating to relevant criminal activity. 

Item 43           Subparagraph 55A(4)(b)(i)

72.               This item is a consequential amendment to omit the words ‘of that matter’ in current subparagraph 55A(4)(b)(i) of the ACC Act. Subsection 55A(4) of the ACC Act provides that a law of a State may confer functions, powers or duties on the ACC-IGC, the Board, the Chair of the Board, a member of the Board, the ACIC CEO, an examiner or a member of the staff of the ACC in relation to an investigation relating to relevant criminal activity.

Item 44           Paragraph 55A(5A)(a)

73.               This item is a consequential amendment to omit the words ‘the investigation of a matter’ and substitute ‘an investigation’ in current paragraph 55A(5A)(a) of the ACC Act. Subsection 55A(5A) of the ACC Act provides that the ACIC CEO or an examiner cannot perform duties or functions, or exercise powers, under a law of a State in relation to investigations, intelligence operations or national policing information without the consent of the Board.

Item 45           Subparagraph 55A(5B)(a)

74.               This item is a consequential amendment to omit the words ‘the investigation of a matter’ and substitute ‘an investigation’ in current subparagraph 55A(5B)(a) of the ACC Act. New subsection 55A(5B) of the ACC Act provides for a law of a State to confer on a Judge of the Federal Court or Federal Circuit Court certain duties, functions or powers, in relation to an investigation relating to relevant criminal activity, which are of the same kind as those conferred under the ACC Act or any other Act, or specified in regulations.

Item 46           Subparagraph 55A(5B)(b)(i)

75.               This item is a consequential amendment to omit the words ‘of that matter’ in current subparagraph 55A(5B)(b)(i) of the ACC Act. Subsection 55A(5B) of the ACC Act provides that a law of a State may confer functions, powers or duties on a Judge of the Federal Court or a Judge of the Federal Circuit Court in relation to an investigation relating to relevant criminal activity.

Item 47           Subsection 55A(9)

76.               This item is a consequential amendment to omit the words ‘the investigation of a matter or matters’ and substitute ‘undertaking investigations’ in current subsection 55A(9) of the ACC Act. Subsection 55A(9) of the ACC Act provides that the ACC Act is not intended to prevent the ACIC, the ACC-IGC, the Board, the Chair of the Board, a member of the Board, the ACIC CEO, an examiner, a member of the staff of the ACC, a Judge of the Federal Court or a Judge of the Federal Circuit Court from having concurrent duties, functions or powers under a law of a State in relation to the investigation of federally relevant criminal activities, the undertaking of intelligence operations or national policing information, so long as the relevant law of the State is consistent with subsections (2) to (7) of section 55A of the ACC Act.

Item 48           Paragraph 55B(1)(a)

77.               This item is a consequential amendment to omit the words ‘investigating a matter’ and substitute ‘undertaking an investigation’ in current paragraph 55B(1)(a) of the ACC Act. Section 55B of the ACC Act provides a choice between exercising Commonwealth powers or powers conferred by a law of a State.

Item 49           Paragraph 55C(1)(c)

78.               This item is a consequential amendment to omit the words ‘of a matter’ in current paragraph 55C(1)(c) of the ACC Act. Section 55C of the ACC Act provides that there is no obligation to perform a duty or function, or exercise a power in certain circumstances.









Item 50           Subsection 55C(2)

79.               This item is a consequential amendment to omit the words ‘of a matter’ in current subsection 55C(2) of the ACC Act. Section 55C of the ACC Act provides that there is no obligation to perform a duty or function, or exercise a power in certain circumstances.

Item 51           Paragraph 59(3)(a)

80.               This item is a consequential amendment to omit the words ‘an ACC’ and substitute the words ‘a special ACC’ in current paragraph 59(3)(a) of the ACC Act. Section 59 of the ACC Act provides for the provision of reports and information to members of Parliament, including the Minister and the members of either House of Parliament or the Parliament of a State.

Item 52           Paragraph 61(2)(a)

81.               This item repeals current paragraph (a) of subsection 61(2) of the ACC Act and inserts new paragraph (a) under subsection 61(2) of the ACC Act. New paragraph (a) of subsection 61(2) provides that the Chair of the Board’s annual report on the ACIC’s operations shall include descriptions of any special ACC investigations.

Item 53           Application provisions

82.               Subitem (1) provides that despite the amendment of paragraph (b) of the definition of official matter in subsection 4(1) of the Australian Crime Commission Act 2002 made by this Schedule, that paragraph continues to apply, after the commencement of this item, in relation to notices issued under section 21A and summonses issued under section 28 before that commencement as if that amendment had not happened.

83.               Subitem (2) provides that the amendments of sections 19A and 20 of the Australian Crime Commission Act 2002 made by this Schedule apply in relation to requests and requirements made after the commencement of this item, regardless of whether:  

·          the special ACC operation/investigation commenced before or after that commencement; or

·          the information, documents and things were acquired, or came into existence, before or after that commencement.

Item 54           Transitional provisions

84.               This item provides that a Board determination under subsections 7C(2) or (3) of the ACC Act (the old determination ) that was in effect immediately before the commencement of this Bill is taken to be a determination made by the Board ( the new determination ) under the same subsection, as amended, on and after commencement of the provisions in this Bill.

85.               Subitem (3) provides that for the purposes of paragraph 7C(4G)(a) and subparagraph 7C(4G)(b)(i) of the Australian Crime Commission Act 2002 , as inserted by this Schedule, the new determination is taken to have been made when the old determination was made.

Item 55           Validation of determinations

86.               This item applies to Board determinations made or purported to be made before the commencement of this item, under subsections 7C(2) and (3) of the ACC Act (as in force immediately before the commencement of this Bill) if the determination would, apart from this item, be invalid or ineffective because it did not satisfy the requirements of the ACC Act. Subitem (2) provides that such determinations, and any thing done in relation to the determination, is as valid and effective, and is taken always to have been as valid and effective, as if the determination had satisfied those requirements.

87.               Subitem (3) provides that, to the extent that validating a determination and any thing done in relation to the determination would result in the acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person other than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person.

88.               Subitem (4) provides that, if an amount of compensation cannot be agreed between the Commonwealth and the person, the person may institute proceedings in the Federal Court of Australia for recovery of a reasonable amount of compensation from the Commonwealth, as determined by the Federal Court. 

89.               Subitem (5) provides that rights and liabilities arising between the parties to a proceeding heard and finally determined by a court on or before commencement of this item are not affected, to the extent that such rights or liabilities arose from, or were affected by, a determination referred to in subitem (1).

90.               For the purposes of this item, a determination includes a purported determination.

Item 56           Validation of the exercise of powers etc.

91.               This item applies in relation to a thing done by a person before the commencement of this item in connection with a special ACC operation/investigation in performing any function or exercising any power under the ACC Act, to the extent that doing the thing would otherwise be invalid or ineffective because no investigation or intelligence operation was being undertaken at the time the thing was done.

92.               Subitem (2) provides that the thing done is as valid and effective, and is taken to have always been as valid and effective, as it would have been if an investigation or intelligence operation were being undertaken at the time the thing was done.

93.               Subitem (3) provides that, to the extent that item 55 would result in the acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person other than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person.

94.               Subitem (4) provides that, if an amount of compensation cannot be agreed between the Commonwealth and the person, the person may institute proceedings in the Federal Court of Australia for recovery of a reasonable amount of compensation from the Commonwealth, as determined by the Federal Court.

95.               Subitem (5) provides that rights and liabilities arising between the parties to a proceeding heard and finally determined by a court on or before commencement of this item are not affected, to the extent that such rights or liabilities arose from, or were affected by, the doing of a thing referred to in subitem (1).

96.               Subitem (6) provides that, for the purposes of this item, an exercise of a power includes the purported exercise of a power and the performance of a function includes a purported performance of a function.

Parliamentary Joint Committee on Law Enforcement Act 2010

Item 57           Section 3 (definition of ACC operation/investigation )

97.               This item repeals the current definition of ACC operation/investigation in section 3 of the Parliamentary Joint Committee on Law Enforcement Act 2010 (PJCLE Act). Section 3 of the PJCLE Act provides for the definition of terms in that Act.

Item 58           Section 3 (subparagraph (c)(v) of the definition of sensitive information )

98.               This item is a consequential amendment to omit the words ‘an ACC’ (wherever occurring) and substitute ‘a special ACC’ in current subparagraph (c)(v) of the definition of sensitive information in section 3 of the PJCLE Act.

Item 59           Section 3

99.               This item inserts a new definition of special ACC operation/investigation into current section 3 of the PJCLE Act. The new definition provides that special ACC operation/investigation has the same meaning as in the ACC Act.

Item 60           Paragraph 7(2)(b)

100.           This item is a consequential amendment to omit the words ‘particular ACC operation/investigation (including an ACC’ and substitute ‘particular special ACC operation/investigation (including a special ACC’ in current paragraph 7(2)(b) of the PJCLE Act. Section 7 of the PJCLE Act provides for the functions of the Parliamentary Joint Committee on Intelligence and Security (the Committee).

  Item 61          Paragraph 8(1)(a)

101.           This item is a consequential amendment to omit the words ‘an ACC’ (wherever occurring) and substitute ‘a special ACC’ in current paragraph 8(1)(a) of the PJCLE Act. Section 8 of the PJCLE Act provides for disclosures of information to the Committee by the ACIC CEO.

Item 62           Application of amendments

102.           This item provides that, despite the amendments of the Parliamentary Joint Committee on Law Enforcement Act 2010 made by this Schedule, that Act (as in force immediately before the commencement of this item) continues to apply on and after that commencement in relation to ACC operations/investigations commenced before that commencement (including concluded ACC operations/investigations) as if those amendments had not happened.

Telecommunications (Interception and Access) Act 1979

Item 63           Subsection 5(1) (definition of ACC operation/investigation )

103.           This item repeals the current definition of ACC operation/investigation in subsection 5(1) of the Telecommunications (Interception and Access) Act 1979 (TIA Act). Section 5 of the TIA Act provides for the interpretation of that Act.

Item 64           Subsection 5(1) (subparagraph (aa)(i) of the definition of permitted purpose )

104.           This item is a consequential amendment to omit the words ‘an ACC’ and substitute ‘a special ACC’ in current subparagraph (aa)(i) of the definition of permitted purpose in subsection 5(1) of the TIA Act.

Item 65           Subsection 5(1) (paragraph (a) of the definition of prescribed investigation )

105.           This item is a consequential amendment to omit the words ‘an ACC’ and substitute ‘a special ACC’ in current subparagraph (a) of the definition of prescribed investigation in subsection 5(1) of the TIA Act.

Item 66           Subsection 5(1)

106.           This item inserts a new definition of special ACC investigation into current subsection 5(1) of the TIA Act. This new definition provides that special ACC investigation has the same meaning as in the ACC Act.

107.           This item inserts a new definition of special ACC operation/investigation into current subsection 5(1) of the TIA Act. This new definition provides that special ACC operation/investigation has the same meaning as in the ACC Act.

Item 67           Paragraph 5D(1)(f)

108.           This item is a consequential amendment to omit the words ‘a special investigation’ and substitute ‘an ACC special investigation’ in current paragraph 5D(1)(f) of the TIA Act. Current section 5D of the TIA Act provides for the offences considered to be serious offences under that Act.

Item 68           Application of amendments

109.           This item provides that, despite the amendments of the Telecommunications (Interception and Access) Act 1979 made by this Schedule, that Act (as in force immediately before the commencement of this item) continues to apply on and after that commencement in relation to ACC operations/investigations commenced before that commencement as if those amendments had not happened.

 

 

 

 

Attachment A

Statement of compatibility with human rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Australian Crime Commission Amendment (Special Operations and Special Investigations) Bill 2019

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Overview of the Bill

The Australian Crime Commission Amendment (Special Operations and Special Investigations) Bill 2019 (the Bill) amends the Australian Crime Commission Act 2002 (the ACC Act) to confirm the validity of current and former special ACC operations and special ACC investigations determinations.

The Bill also amends the process in the ACC Act for the Australian Criminal Intelligence Commission (ACIC) Board to make future special operations and special investigations determinations, and make consequential amendments.

Human rights implications

The Bill relates to the ability of the ACIC to undertake special operations and special investigations. The amendments ensure the validity of current and former special operations and special investigations determinations made by the ACIC Board. The amendments also clarify the operation of provisions relevant to future special operations and special investigations determinations made by the ACIC Board.

Special operations and special investigations are powerful tools which enable the ACIC to obtain information that would not otherwise be available, or which could only be obtained after long and complex investigations. The ACC Act currently provides for the ACIC to undertake special operations and special investigations, and the Bill does not expand or otherwise alter the powers available in the course of special investigations or special operations. As such, this Bill does not engage human rights.

Conclusion

This Bill is compatible with human rights as it does not raise any human rights issues.

 

The Hon Peter Dutton MP, Minister for Home Affairs