Title Australian Crime Commission Amendment (Special Operations and Special Investigations) Bill 2019
Database Bills Digests
Date 04-12-2019
Source Bills Digest Service
Parl No. 46
Author ELPHICK, Karen
BARKER, Cat
Citation Id 7063379
Key item Yes
Major subject Australian Criminal Intelligence Commission
Criminal investigation
Australian Crime Commission
Minor subject Bills
Legislative amendments
Pages 16p., bibl.
Volume no. 065 (2019-20)
System Id legislation/billsdgs/7063379


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

ISSN 1328-8091

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BILLS DIGEST NO. 65, 2019–20 4 DECEMBER 2019

Australian Crime Commission Amendment (Special Operations and Special Investigations) Bill 2019 Karen Elphick Law and Bills Digest Section Cat Barker Foreign Affairs and Defence Section

This Bill was introduced on 28 November 2019 and is scheduled for debate in the Senate on 4 December 2019. Due to the compressed time frame for analysis, this Digest is preliminary only. If the Bill does not pass the Parliament in the current sittings, a full Digest will be published in due course.

Contents

Purpose of the Bill ........................................................... 3

Structure of the Bill ......................................................... 3

Background ..................................................................... 3

Authorisation of special operations and special investigations .............................................................. 5

Special operations ................................................... 5

Special investigations .............................................. 5

Determinations ......................................................... 6

Safeguards ................................................................. 6

Board must consider whether ordinary policing powers have been effective .................................... 6

Determinations are made by an experienced Board ....................................................................... 7

Voting rules ............................................................. 8

ACIC is not a prosecutor .......................................... 8

CXXXVIII v Commonwealth.......................................... 8

Committee consideration ................................................ 9

Policy position of non-government parties/independents...................................................... 9

Australian Labor Party ............................................... 9

Centre Alliance .......................................................... 9

Other minor parties and independents .................. 10 Position of major interest groups................................... 10

Date introduced: 28 November 2019

House: House of Representatives

Portfolio: Home Affairs

Commencement: Royal Assent

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at December 2019.

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Australian Crime Commission Amendment (Special Operations and Special Investigations) Bill 2019 2

Law Council of Australia .......................................... 10

Financial implications .................................................... 11

Statement of Compatibility with Human Rights.............. 11

Key issues and provisions .............................................. 11

Amendments to the functions of the Board ............. 11 Amendments to the process for approving special ACC operations/investigations .................................. 12

Thresholds for issuing determinations .................... 12 Proposed subjective public interest test ............... 12 No requirement that determination is made in relation to an existing investigation into federally relevant criminal activity .......................... 13

Specificity of determinations .................................. 13

Determinations only effective for three years ........ 15 Retrospective validation of determinations and exercise of powers .................................................... 15

Consequential amendments ................................... 15

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Australian Crime Commission Amendment (Special Operations and Special Investigations) Bill 2019 3

Purpose of the Bill The purpose of the Australian Crime Commission Amendment (Special Operations and Special Investigations) Bill (the Bill) is to amend the Australian Crime Commission Act 2002 (the Act) to:

• respond to concern about the validity of certain ACIC determinations and other documents raised in the case of CXXXVIII v Commonwealth1 by confirming the validity of current and former Australian Crime Commission (ACC) special operations and special investigations, the lawfulness of which has been questioned and

• amend the process by which the Australian Criminal Intelligence Commission (ACIC) Board authorises future special operations and special investigations, including by amending the threshold of which it must be satisfied.

Structure of the Bill The Bill has the usual technical provisions for an amending Act and a single Schedule proposing amendments to the Act. The entire Bill and Schedule will commence immediately on receiving Royal Assent.

Background The Australian Crime Commission (ACC) is the legal name under the Act for the Commonwealth agency known as the Australian Criminal Intelligence Commission (ACIC).2 ACIC was formed when the ACC and CrimTrac merged in 2016.3 ACIC is designed to bring all Australia’s national criminal intelligence and information capabilities under one banner and it is underpinned by supporting legislation in each state and territory.4

Key to the ACIC’s criminal intelligence role is its special coercive powers:

The ACIC’s coercive powers, similar to a Royal Commission, are used in special operations and special investigations to obtain information where traditional law enforcement methods are unlikely to be or have not been effective.

Our coercive powers authorise our examiners to compel people to give evidence for the purposes of special ACIC operations or investigations.

Our examiners can also issue notices requiring people to produce documents or things relevant to a special operation or investigation. This power is broad, and may apply to a person, a corporation or a Commonwealth government agency.

The Governor-General appoints our examiners.

Examinations are held in private. Witnesses may claim protection so the answers, documents or things they provide are not admissible in evidence against them in a criminal proceeding to impose a penalty, except in limited circumstances.[emphasis added] 5

These exceptional powers distinguish special operations and special investigations from traditional criminal investigations. They are not conducted within the context of an adversarial process,

1. CXXXVIII v Commonwealth [2019] HCATrans 206 (18 October 2019). High Court case no. A30/2019. 2. Australian Criminal Intelligence Commission (ACIC) ‘About us – Legislation’, ACIC website, updated 19 September 2019. The alternative name and acronym are authorised by subsection 7(1A) of the Act and section 8 of the Australian Crime Commission Regulations 2018.

3. Australian Crime Commission Amendment (National Policing Information) Act 2016. 4. ACIC, ‘About us – Legislation’, op. cit. 5. Ibid.

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Australian Crime Commission Amendment (Special Operations and Special Investigations) Bill 2019 4

where persons are entitled to refuse to be interviewed or answer questions. Instead they are inquisitorial in nature.

The coercive powers are justified in the legislation by the need to understand, disrupt or prevent ‘federally relevant criminal activity’.6 That definition does not clearly indicate the ‘flavour’ of the activity to be examined; it is necessary to consider a number of the definitions found in section 4 of the Act:

federally relevant criminal activity means:

(a) a relevant criminal activity, where the relevant crime is an offence against a law of the Commonwealth or of a Territory; or

(b) a relevant criminal activity, where the relevant crime:

(i) is an offence against a law of a State; and

(ii) has a federal aspect.

relevant crime means:

(a) serious and organised crime; or

(b) Indigenous violence or child abuse.

Note: See also subsection (2) (which expands the meaning of relevant crime in certain circumstances).

relevant criminal activity means any circumstances implying, or any allegations, that a relevant crime may have been, may be being, or may in future be, committed against a law of the Commonwealth, of a State or of a Territory.

serious and organised crime means an offence:

(a) that involves 2 or more offenders and substantial planning and organisation; and

(b) that involves, or is of a kind that ordinarily involves, the use of sophisticated methods and techniques; and

(c) that is committed, or is of a kind that is ordinarily committed, in conjunction with other offences of a like kind; and

(d) that is a serious offence, an offence against Subdivision B or C of Division 471, or D or F of Division 474, of the Criminal Code, an offence of a kind prescribed by the regulations or an offence that involves any of the following … [enumerates a large number of criminal activities often associated with organised crime]

(da) that is:

(i) punishable by imprisonment for a period of 3 years or more; or

(ii) a serious offence;

but:

(e) does not include an offence committed in the course of a genuine dispute as to matters pertaining to the relations of employees and employers by a party to the dispute, unless the offence is committed in connection with, or as part of, a course of activity involving the commission of a serious and organised crime other than an offence so committed; and

(f) does not include an offence the time for the commencement of a prosecution for which has expired.

6. Subsections 7C(2) and (3) of the Act.

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Australian Crime Commission Amendment (Special Operations and Special Investigations) Bill 2019 5

Authorisation of special operations and special investigations ACIC’s coercive powers may be exercised in relation to ‘special operations’ and ‘special investigations’. Under section 7C of the Act the ACIC Board issues ‘determinations’ which authorise special operations and special investigations and determine work priorities. ACIC has implemented the legislation by issuing determinations for special operations and investigations which are broad in nature and not limited to the investigation of specific offences. It appears that the ACIC’s practice has been to use these broad determinations as an ‘umbrella’ under which a number of specific operations or investigations may be conducted.7 The legality of that approach is being challenged.8

Special operations A ‘special operation’ means an intelligence operation that ACIC is undertaking and that the Board has determined to be a special operation.9 Issuing a determination that an operation is a special operation allows the ACIC to use its coercive powers, such as conducting examinations, to obtain information relevant to the special operation.

While special operations may ultimately result in the laying of charges, their purpose is significantly broader. They allow the ACIC to inquire proactively into the whole context in which organised crime groups operate, contributing to the disruption of ongoing criminal enterprises and the elimination of systemic vulnerabilities:

Special operations focus on gathering intelligence on a particular criminal activity, so informed decisions can be made about the extent, impact and threat of that criminal activity. Coercive powers may be applied to special operations. 10

A number of special operations are described on the ACIC website:

• High Risk and Emerging Drugs No. 4 Special Operation

• National Security Impacts from Serious Organised Crime No. 3 Special Operation

• Outlaw Motor Cycle Gangs No. 2 Special Operation

• Emerging Organised Crime Threats No. 3 Special Operation

• Criminal Exploitation of Australia’s Migration System No. 2 Special Operation

• Cyber-Related Offending No. 2 Special Operation (approved by ACIC Board June 2017)

• Firearm Trafficking No. 2 Special Operation (approved by ACIC Board June 2018).11

Special investigations A ‘special investigation’ means an investigation into matters relating to federally relevant criminal activity that the ACC is conducting and that the Board has determined to be a special investigation.12

Special investigations are designed not only to collect intelligence but also to disrupt and deter identified criminal groups through collecting evidence of criminal activity that may result in arrests

7. CXXXVIII v Commonwealth [2019] HCATrans 206 (18 October 2019) at pp. 3, 8, 13, 15. 8. Ibid., pp. 3–4. 9. Section 4 of the Act ‘special ACC operation/investigation’. 10. ACIC ‘Determinations’, ACIC website, last updated 24 May 2019. 11. Ibid. Most of the special operations described do not give a date for Board approval. 12. Section 4 of the Act ‘special ACC operation/investigation’.

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Australian Crime Commission Amendment (Special Operations and Special Investigations) Bill 2019 6

and/or seizures of illegally obtained assets. Coercive powers, as well as a full range of traditional investigative methods, including telephone interception, surveillance devices and controlled operations legislation, can be applied to special investigations. 13

The following special investigations are described on the ASIC website:

• Highest Risk Criminal Targets No. 3 Special Investigation

• Targeting Criminal Wealth No. 3 Special Investigation.14

Determinations According to subsection 7C(4) of the Act, a Board determination made under subsection 7C(2) or (3) must:

(a) describe the general nature of the circumstances or allegations constituting the federally relevant criminal activity; and

(b) state that the relevant crime is, or the relevant crimes are or include, an offence or offences against a law of the Commonwealth, a law of a Territory or a law of a State but need not specify the particular offence or offences; and

(c) set out the purpose of the operation or investigation.

A determination takes effect immediately after it is made.15 The determinations are not legislative instruments and the only notification ACIC is required to make is to the Inter-Governmental Committee (ACIC-IGC) established by section 8 of the Act.16 Neither the Act nor regulations contain a provision automatically sunsetting or revoking determinations, so it appears they may remain on foot for several years unless revoked.

Safeguards There are several safeguards in the legislation designed to ensure ACIC’s extensive remit is not misused.

Board must consider whether ordinary policing powers have been effective Before determining that an intelligence operation is a special operation, the Board must consider whether methods of collecting the criminal information and intelligence that do not involve the use of powers in this Act have been effective at understanding, disrupting or preventing the federally relevant criminal activity to which the intelligence operation relates.17

Before determining that an investigation into matters relating to federally relevant criminal activity is a special investigation, the Board must consider whether ordinary police methods of investigation into the matters are likely to be effective at understanding, disrupting or preventing the federally relevant criminal activity.18

The Explanatory Memorandum (revised) to the 2002 Bill which established the ACC said:

13. ACIC ‘Determinations’, op. cit. 14. Ibid. 15. Subsection 7C(6) of the Act. 16. Subsection 7C(5) of the Act. The Chair must give a copy of the determination to the Inter-Governmental Committee (ACIC-IGC)

within seven days. The ACIC-IGC is made up of a Minister of the Crown representing the Commonwealth and each State (Section 8(1)). 17. Subsection 7C(2) of the Act. 18. Subsection 7C(3) of the Act.

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Australian Crime Commission Amendment (Special Operations and Special Investigations) Bill 2019 7

Before it determines that an operation is a special operation, therefore allowing for the exercise of coercive powers under the Act, the Board must specifically consider whether methods of collecting the criminal information and intelligence that do not involve the use of those powers have been effective. Before it determines that an investigation is a special investigation and can have access to the coercive powers, the Board must specifically consider whether ordinary police methods of investigation into the matters are likely to be effective. The threshold test for intelligence operations is more restrictive than that applicable to investigations because of the broader scope of intelligence.

These threshold tests provide an important safeguard on the exercise of coercive powers under the Act.

In both cases (ie., for both special intelligence operation and special investigations) the Board’s determination must:

(a) describe the general nature of the circumstances or allegations constituting the federally relevant criminal activity; and

(b) state that the serious and organised crime is, or the serious and organised crimes are or include, an offence or offences against a law of the Commonwealth, a law of a Territory or a law of a State but need not specify the particular offence or offences; and

(c) set out the purpose of the operation or investigation.

This sets the parameters for the operation of investigation and represents another important safeguard on the exercise of coercive powers under the Act. [emphasis added] 19

Determinations are made by an experienced Board Section 7C of the Act allows the ACIC Board to 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.

The Board currently has 14 voting members:

Commissioner, Australian Federal Police (chair)

Secretary, Department of Home Affairs

Commissioner, Australian Border Force

Chairperson, Australian Securities and Investments Commission

Director General of Security, Australian Security Intelligence Organisation

Commissioner of Taxation, Australian Taxation Office

Commissioner, New South Wales Police Force

Chief Commissioner, Victoria Police

Commissioner, Queensland Police Service

Commissioner, South Australia Police

Commissioner, Western Australia Police

Commissioner, Tasmania Police

Commissioner, Northern Territory Police

Chief Police Officer, Australian Capital Territory Police

19. Explanatory Memorandum (revised), Australian Crime Commission Establishment Bill 2002, pp. 10–11.

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Australian Crime Commission Amendment (Special Operations and Special Investigations) Bill 2019 8

Chief Executive Officer, Australian Criminal Intelligence Commission (non-voting member)

Chief Executive Officer, AUSTRAC (non-voting observer)

Secretary, Attorney-General's Department (non-voting observer). 20

Voting rules The Board cannot 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, unless at least nine Board members (including at least two eligible Commonwealth Board members) vote in favour of making the determination.21

ACIC is not a prosecutor The ACIC does not prosecute offences. Subsection 12(1) of the Act provides that where ACIC in carrying out an ACC operation/investigation, obtains evidence of an offence and that evidence would be admissible in a prosecution, the CEO must assemble the evidence and give it to:

(a) the Attorney-General of the Commonwealth or the State, as the case requires; or

(b) the relevant law enforcement agency; or

(c) any person or authority (other than a law enforcement agency) who is authorised by or under a law of the Commonwealth or of the State or Territory to prosecute the offence.

The CEO may also disseminate information in certain circumstances to law enforcement agencies and other bodies (see sections 59AA and 59AB).

CXXXVIII v Commonwealth According to the Australian Financial Review:

Home Affairs Minister Peter Dutton has been forced to act urgently after the High Court granted one of the commission’s targets special leave to appeal against the seizure of his mobile phone. 22

The details of the case that led to the High Court challenge are shrouded in secrecy. What is known is that the ACIC seized the man's phone at Adelaide Airport on June 26 last year, but the ACIC later conceded this notice was incorrectly filled out.

Two days later, after briefly handing the phone back to the man at his lawyer's office, the ACIC produced a second notice and seized it again.

But the man's lawyers say a 2013 determination the ACIC relied on to launch its special investigation could not be ‘so broad, so wide, and so enduring that anything and all manner of matters years down the track must purportedly come within it’. 23

The only recent grant of special leave involving the ACIC was on 18 October 2019, when High Court Justices Gordon and Nettle granted a person, known by the pseudonym CXXXVIII, leave to appeal to the Full Court of the High Court from a decision of the Federal Court.24

20. ACIC ‘Board’, ACIC website, last updated 24 May 2019. 21. Subsection 7G(4) of the Act. 22. A Tillett, ‘ALP backs moves to defeat appeal against crime body’, Australian Financial Review, 4 December 2019. 23. A Tillett, ‘Dutton scrambles to save star chamber's 'unlawful' investigations’, Australian Financial Review, 3 December 2019. 24. The transcript of the application for special leave to appeal proceedings is CXXXVIII v Commonwealth [2019] HCATrans 206

(18 October 2019). High Court case no. A30/2019. The Federal Court case is CXXXVIII v Commonwealth of Australia [2019] FCAFC 54.

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Australian Crime Commission Amendment (Special Operations and Special Investigations) Bill 2019 9

Committee consideration Due to the speed with which the Bill is being considered by the Parliament, it has not been reported on by any of the scrutiny committees and has not been considered for referral by the Senate Selection of Bills Committee.

Policy position of non-government parties/independents

Australian Labor Party The Australian Labor Party (Labor) supported the Bill in the House of Representatives. The Deputy Leader of the Opposition, Mr Marles stated:

This bill will ensure that the commission can continue its work to detect, prevent and disrupt serious and organised crime. It will amend the Australian Crime Commission Act 2002 to streamline the authorisation process for future special operations and special investigations and it will confirm the validity of existing special operations and special investigations determinations…

As the Minister for Home Affairs noted in his second reading speech, through this bill the government is not seeking to expand or otherwise amend the powers available to the commission 'in the course of undertaking a special operation or special investigation'. Labor supports this bill because it wants to ensure that the commission can effectively fulfil its statutory functions and continue its important work.

I'd like to take this opportunity to acknowledge the bipartisan manner in which the Minister for Home Affairs and the government have acted with respect to this matter. I note that the minister has also provided Labor with an assurance that within 12 months of this bill passing the parliament the government will refer operation of the legislation to the Parliamentary Joint Committee on Law Enforcement for review. I thank the minister for providing that assurance.

25

Shadow Minister for Home Affairs, Senator Keneally is reported as saying:

The nature of this legal challenge, if it was successful—and we understand there is a very high likelihood the legal challenge will be successful—would leave the ACIC exposed in terms of its operations as well as the validity of convictions based on previous investigations. 26

Centre Alliance Centre Alliance MP Rebekha Sharkie supported the Bill but noted several concerns and indicated that Centre Alliance would consider the Bill further before the Senate debate. Ms Sharkie noted that the Bill:

… does not expand or in any way alter the powers available to the ACIC in the course of undertaking a special investigation or operation. Rather, the bill streamlines the authorisation process for the ACIC board to determine special future operations and investigations and to confirm the validity of current and former special operations and special investigations. It is the latter that does concern Centre Alliance.

The retrospective application of a law to provide legitimacy to investigations into private citizens is one that should be scrutinised very closely. I am also concerned about the short time frame, in this place, between the introduction of this bill and us voting on the bill. I also note today reports that the High Court is considering the validity of these laws in the context of an alleged unlawful investigation. I do not suggest that the minister has sought to avoid an adverse outcome in the High Court, but I do believe

25. R Marles, ‘Second reading speech: Australian Crime Commission Amendment (Special Operations and Special Investigations) Bill 2019’, House of Representatives, Debates (proof), 3 December 2019, pp. 6–7. 26. A Tillett, ‘ALP backs moves to defeat appeal against crime body’, Australian Financial Review, 4 December 2019.

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Australian Crime Commission Amendment (Special Operations and Special Investigations) Bill 2019 10

that the consequences, even if unintended, should be explored by the appropriate parliamentary committee. 27

Senator Patrick is reported as saying:

Centre Alliance has preliminary concerns about removing safeguards over the very coercive powers that can be invoked for special investigations. The retrospective provisions are also concerning. 28

Other minor parties and independents Greens MP Adam Bandt and Independent MP Andrew Wilkie voted against the Bill in the House of Representatives.29 Senator Jackie Lambie and One Nation have not publicly indicated a position on the Bill.

Position of major interest groups There has been limited opportunity for stakeholders to examine and comment on the Bill.

Law Council of Australia The Law Council of Australia has expressed concern about the Bill, particularly that it would retrospectively validate unlawful conduct. Law Council President, Arthur Moses, SC suggested the trigger for the Bill appeared to be a case currently before the High Court and questioned the appropriateness of Parliament validating decisions that might otherwise be found to be unlawful:

The Law Council is concerned that this legislation appears to go beyond just addressing concerns raised in the case before the High Court and would validate unlawful decisions made by the ACIC. If there have been breaches of the law by government agencies, then it would be odd and inappropriate for Parliament to validate those breaches as there would not be any deterrent for government agencies in the future who breach laws passed by the very same Parliament.

The rule of law means no one is above the law, including government and government agencies. There must be consequences for anyone who breaches the law.

The Bill empowers ACIC to authorise future special operations and investigations in relation to alleged criminal activity “at whatever level of generality the Board considers appropriate”. ‘This significantly broadens the power of the ACIC to prospectively authorise investigations and exercise its coercive powers', Mr Moses SC said.

30

Mr Moses was also reported as saying:

This is an abrogation of the responsibility of parliamentarians to properly scrutinise ... legislation which purports to validate past unlawful conduct by the ACIC and broadens the scope of its coercive powers without understanding the consequences. 31

27. R Sharkie, ‘Second reading speech: Australian Crime Commission Amendment (Special Operations and Special Investigations) Bill 2019’, House of Representatives, Debates (proof), 3 December 2019, p. 7. 28. Tillett, ‘ALP backs moves to defeat appeal against crime body’, op. cit. 29. Australia, House of Representatives, Votes and proceedings, 33, 2019-20, 3 December 2019, p. 545 30. Law Council of Australia, Act now to bolster government accountability and rule of law, 1 December 2019. 31. Tillett, ‘ALP backs moves to defeat appeal against crime body’, op. cit.

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Financial implications There is some uncertainty about the financial implications of the Bill. Since the effect of the amendments may be to abolish existing rights, there is some possibility that the Commonwealth is technically acquiring property (in the form of a right) and may be liable under paragraph 51 (xxxi) of the Constitution to pay compensation if the property was not ‘acquired on just terms’.32

Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.33

The Statement of Compatibility notes that the Act currently provides for ACIC to undertake special operations and special investigations. These are powerful tools utilising coercive powers which enable the ACIC to obtain information that would not otherwise be available or could be obtained only after long and complex investigations.

The Statement of Compatibility says 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. 34

While the Bill does not change the nature of the coercive powers available to the ACIC, the Bill does appear to expand the circumstances in which those powers may be used.35

The Bill also proposes to validate conduct which would otherwise have been unlawful.36 It will therefore alter existing legal rights and affect the capacity of at least some persons to challenge coercive executive action taken against them. The Bill may therefore engage human rights.

Key issues and provisions

Amendments to the functions of the Board Item 13 removes two current functions of the Board:

(c) to authorise, in writing, the ACC to undertake intelligence operations or to investigate matters relating to federally relevant criminal activity

(d) to determine, in writing, whether such an operation is a special operation or whether such an investigation is a special investigation

and substitutes two new functions:

(c) to authorise, by determination, a special ACC operation to occur

(d) to authorise, by determination, a special ACC investigation to occur.

32. Explanatory Memorandum, Australian Crime Commission Amendment (Special Operations and Special Investigations) Bill 2019, p. 2. 33. The Statement of Compatibility with Human Rights can be found at page 18 of the Explanatory Memorandum to the Bill. 34. Ibid. 35. Law Council of Australia, Act now to bolster government accountability and rule of law, op. cit. 36. See items 55 and 56.

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Australian Crime Commission Amendment (Special Operations and Special Investigations) Bill 2019 12

The effect is to remove the requirements:

• that the ACC Board make authorisations/determinations in writing (however, the writing requirement now appears in proposed subsections 7C(2) and (3)) and

• that the ACC confine itself to matters relating to federally relevant criminal activity (however, the definition of an ‘intelligence operation’ in section 4 of the Act retains reference to federally relevant criminal activity and that definition is incorporated into the proposed definition of a ‘special ACC operation’; federally relevant criminal activity is also inserted in the proposed definition of a ‘special ACC investigation’).

Amendments to the process for approving special ACC operations/investigations Items 15–24 amend the process by which the Board authorises special ACC operations/investigations.

Thresholds for issuing determinations Item 15 repeals subsections 7C(2), (3) and (4) and substitutes new provisions.

Proposed subsection 7C(2) will no longer contain the threshold requirement that the Board must, before making a determination:

… consider whether methods of collecting the criminal information and intelligence that do not involve the use of powers in this Act have been effective at understanding, disrupting or preventing the federally relevant criminal activity to which the intelligence operation relates. 37

Proposed subsection 7C(3) will no longer contain the threshold requirement that the Board must, before making a determination:

… consider whether ordinary police methods of investigation into the matters are likely to be effective at understanding, disrupting or preventing the federally relevant criminal activity. 38

Proposed subjective public interest test In place of the existing thresholds noted above, a new ‘public interest’ threshold is contained in proposed subsection 7C(4A):

The only condition for the exercise of the power under subsection (2) or (3) is that the Board considers, on the basis of the collective experience of the Board members voting at the meeting when a determination is made, that it is in the public interest that the Board authorise the special ACC operation or special ACC investigation to occur.

‘Public interest’ will not be defined in the Act, and the Act will provide no guidance on matters to which the Board must have regard in determining whether the public interest test is met.

The proposed threshold is not an objective test of public interest which could be assessed by a court; it only requires that the Board consider that the special ACC operation or special ACC investigation is in the public interest on the basis of the collective experience of those Board members voting on the determination. That assessment could only be challenged on the basis of bad faith, which is a very narrow ground of appeal.

Commending the Bill to the House, the Minister for Home Affairs stated:

37. Subsection 7C(2) of the Act. 38. Subsection 7C(3) of the Act.

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Australian Crime Commission Amendment (Special Operations and Special Investigations) Bill 2019 13

The measures in this bill are technical in nature. They confirm existing special operation and special investigation determinations and streamline the process for the Australian Criminal Intelligence Commission board to make future determinations. These measures are essential to ensuring the Australian Criminal Intelligence Commission is able to fulfil its statutory functions as Australia's national criminal intelligence agency without interruption.

39

However, the thresholds for approving determinations, which were described to Parliament in 2002 as ‘an important safeguard on the exercise of coercive powers under the Act’ is being removed by the Bill.40 Whether this is appropriately categorised as a ‘technical amendment’ may be open to question.41

No requirement that determination is made in relation to an existing investigation into federally relevant criminal activity Proposed subsection 7C(4B) ensures that a determination has effect, regardless of whether the ACC:

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

(b) subsequently investigates any or all of the federally relevant criminal activity to which the determination relates by any means other than through the exercise by an examiner of the powers under Division 2; or

(c) 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.

Specificity of determinations Subsection 7C(4) currently requires:

A determination under subsection (2) or (3) must:

(a) describe the general nature of the circumstances or allegations constituting the federally relevant criminal activity; and

(b) state that the relevant crime is, or the relevant crimes are or include, an offence or offences against a law of the Commonwealth, a law of a Territory or a law of a State but need not specify the particular offence or offences; and

(c) set out the purpose of the operation or investigation.

Proposed subsection 7C(4) will provide that a determination may:

identify the federally relevant criminal activity to which the determination relates at whatever level of generality the Board considers appropriate including (without limitation) by reference to:

(a) categories of relevant criminal activity; or

(b) categories of suspected offender; or

(c) specific allegations of crime; or

(d) specific offenders;

(e) any combination of the above.

39. P Dutton, ‘Second reading speech: Australian Crime Commission Amendment (Special Operations and Special Investigations) Bill 2019’, House of Representatives, Debates (proof), 3 December 2019, p. 7. 40. Explanatory Memorandum (revised), Australian Crime Commission Establishment Bill 2002, pp. 10–11 41. Law Council of Australia, Act now to bolster government accountability and rule of law, op. cit.

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The provision does not amount to a requirement that a determination is limited to a federally relevant criminal activity.

Proposed subsection 7C(4C) also requires:

A determination under subsection (2) or (3) must, to the extent that the Board reasonably considers appropriate having regard to the level of generality at which it has authorised a special ACC investigation or special ACC operation to occur:

(a) describe the general nature of the circumstances or allegations constituting the federally relevant criminal activity to which the determination relates; and

(b) set out the purpose of the investigation or operation;

but, to avoid doubt, the determination is not required to specify:

(c) any particular offence or offences; or

(d) any particular conduct, transaction or person to which the investigation or operation relates; or

(e) any timeframe within which:

(i) any federally relevant criminal activity may have occurred; or

(ii) the investigation or operation must commence or be completed.

The provision retains the word ‘must’, suggesting a compulsory requirement, then immediately removes that compulsion by leaving the requirement to the Board’s discretion. It effectively allows the Board to authorise an operation or investigation at a very high level of generality without specifying:

• the nature of the circumstances or allegation it is investigating and

• the purpose of the investigation or operation.

In addition, under proposed subsection 7C(4C) no determination will be required to specify:

• any particular offence or offences to which the investigation or operation relates (this is unchanged, since it is common ground in the CXXXVIII case that the Act does not currently require a determination to specify a particular crime or offence42)

• any particular conduct, transaction or person to which the investigation or operation relates (this is partially contested in the CXXXVIII case where the applicant concedes that a determination need not specify a person but argues that the Act requires the determination to specify an investigation of a particular type43)

• any particular timeframe (this is directly contested in the CXXXVIII case where the applicant concedes that a determination can be prospective, but argues that the Act currently requires the determination to relate to an existing, or contemplated, investigation44).

Proposed subsection 7C(4J) then provides:

The validity of the determination is not affected by any failure to comply with subsection (4C).

In those circumstances it is difficult to see that proposed subsection 7C(4C) has any effective operation as a safeguard.

42. CXXXVIII v Commonwealth [2019] HCATrans 206 (18 October 2019) at pp. 5–6. 43. Ibid., p. 3. 44. Ibid., pp. 2–3.

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Australian Crime Commission Amendment (Special Operations and Special Investigations) Bill 2019 15

Determinations only effective for three years The current Act does not provide any time limit on the life of determinations. Proposed subsection 7C(4G) will provide that a determination will automatically cease to have force three years after it is made, or when revoked.

Proposed subsection 7(4H) will provide that the automatic ending or revocation of a determination does not prevent the making of another determination in the same terms.

Retrospective validation of determinations and exercise of powers Item 55 will provide for the validation of determinations previously made under subsection 7C(2) or (3) of the Act which would otherwise be invalid or ineffective because they did not satisfy the requirements of the Act.

Item 56 provides for the validation of the exercise of powers in a special operation or investigation.

In his second reading speech the Minister for Home Affairs characterised these amendments as confirming the validity of existing special operation and special investigation determinations. However, the provisions appear to go considerably further by also validating any exercise of powers, including the issue of notices to produce and coercive examination of witnesses, which may have been, at the time of the conduct, unlawful.45

The President of the Law Council, Arthur Moses, SC said:

If there have been breaches of the law by government agencies, then it would be odd and inappropriate for Parliament to validate those breaches as there would not be any deterrent for government agencies in the future who breach laws passed by the very same Parliament.

The concern the profession has is that it will become the norm, not the exception, to use coercive powers that include the power to abrogate the privilege against self-incrimination without special circumstances being established on the facts of a particular case. 46

Consequential amendments The Bill proposes changing certain defined terms in the Act which are also used in other legislation, therefore certain consequential amendment are required:

• Items 57–62 make minor consequential amendments to the Parliamentary Joint Committee on Law Enforcement Act 2010.

• Items 63–68 make minor consequential amendments to the Telecommunications (Interception and Access) Act 1979.

45. P Dutton, ‘Second reading speech: Australian Crime Commission Amendment (Special Operations and Special Investigations) Bill 2019’, House of Representatives, Debates, 28 November 2019, p. 10. 46. A Tillet, ‘Dutton scrambles to save star chamber’s ‘unlawful’ probes’, Australian Financial Review,

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Australian Crime Commission Amendment (Special Operations and Special Investigations) Bill 2019 16

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