Bills Digest No. 96  1999-2000 National Crime Authority Amendment Bill 1999


Numerical Index | Alphabetical Index

WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

CONTENTS

Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer and Copyright Details

Passage History

National Crime Authority Amendment Bill 1999

Date Introduced: 24 November 1999

House: House of Representatives

Portfolio: Justice and Customs

Commencement: The Bill's formal provisions commence on Royal Assent. The substantive provisions are given a retrospective operation-from 1 July 1984.

Purpose

To amend the National Crime Authority Act 1984 (the Principal Act) to enable State laws to effectively confer powers and functions on the National Crime Authority (NCA) and Federal Court Judges without the need for corresponding or similar provisions in the Principal Act.

Background

The Principal Act

A National Crimes Commission Act 1982 was passed by the Commonwealth Parliament following a number of Royal Commissions in the 1970s and 1980s which drew attention to the existence, nature and magnitude of organised crime in Australia.(1) In 1984, the Senate Standing Committee on Constitutional and Legal Affairs remarked:

... it is trite to observe that the perpetrators [of organised crime] pursue their schemes without regard to territorial (national or state) boundaries. Yet, every royal commissioner who has reported on aspects of organised crime since Mr Justice Moffit in 1974, has remarked upon various difficulties caused by the fragmentation of power and responsibility for law enforcement inherent in the Australian federal polity. Compounding these problems is the fact that responsibility for law enforcement is divided among the various agencies.(2)

Both the National Crimes Commission Act and the Principal Act responded to the perceived need for 'a new law enforcement agency at the national level, equipped with coercive powers, skills and resources to deal the fight against organised crime.'(3)

The National Crimes Commission Act never commenced operation.(4) Instead, the incoming Hawke Government decided to review it.(5) The Principal Act was the product of that review. The Second Reading Speech for the National Crime Authority Bill 1983 highlighted the Hawke Government's objectives in establishing the NCA and acknowledged the public concerns held about it. In introducing the Bill in the House of Representatives, the Minister for Communications, Hon Michael Duffy, referred to:

  • the need to avoid fragmentation of law enforcement effort in the fight against organised crime
  • the need to take account of fears that had been expressed about a permanent criminal investigation body with unlimited terms of reference and uncontrolled investigative powers, and
  • the need to obtain State involvement in the NCA's activities.(6)

The Principal Act enables the NCA to initiate investigations into what is called 'relevant criminal activity'(7) an expression which is in turn linked to a 'relevant offence' against Commonwealth, State or Territory law. The term, 'relevant offence' is defined as one involving two or more persons in substantial planning and organisation using sophisticated techniques. Further, it must involve an offence such as theft, fraud, tax evasion or illegal drug dealing and the offence must be punishable by imprisonment for at least three years. This definition attempts to confine the NCA to the investigation of organised criminal activity.

Under the Principal Act, the NCA has two types of functions. General functions are set out in subsection 11(1). These include collecting, analysing and disseminating criminal information and intelligence to law enforcement agencies, investing matters of its own choosing, and making arrangements for the establishment of task forces and co-ordinating their work. The NCA's coercive powers cannot be exercised in relation to its general functions.

The NCA's special functions are found in subsection 11(2). They enable the NCA to investigate matters referred to it either by the Commonwealth Minister or the relevant State or Territory Minister. Before referring a matter to the NCA the Commonwealth Minister must consult with the Inter-Governmental Committee.(8) A State or Territory Minister must obtain the approval of the Inter-Governmental Committee before referring a matter to the NCA.(9) The NCA is able to exercise special powers when carrying out its special functions. These powers include 'hearings, including compulsory appearances and production of documents, imposition of penalties and warrants for search and seizure, for arrest and for interception of communications.'(10)

Following the passage of the Principal Act and the National Crime Authority (Consequential Amendments) Act 1984, the States and Territories passed complementary legislation enabling the NCA to investigate offences against State and Territory laws.(11) In addition to allowing the NCA to operate in jurisdictions apart from that of the Commonwealth, underpinning State laws regulate the NCA's exercise of its functions once a matter has been referred to it by a State. They also require the NCA to co-operate with State law enforcement agencies when exercising its special functions and contain a double jeopardy clause providing that a person cannot be punished twice for an offence under Commonwealth and State laws.

Accountability mechanisms are contained in the Principal Act because of concerns about the powers of the NCA. These mechanisms include the Parliamentary Joint Committee on the National Crime Authority which is established under section 53 of the Principal Act. Among other things, the Committee monitors and reviews the performance of the NCA.

The Australian Law Reform Commission recently described the NCA, its role and powers as follows:

The NCA is a national law enforcement body whose main role is to counteract organised crime often by working in partnership with other agencies. The NCA's working definition of organised crime is 'a systematic conspiracy to commit serious offences.' Generally, the NCA investigates relevant criminal activities and collects, analyses and disseminates information and intelligence relating to those activities. Where appropriate it establishes and co-ordinates task forces with other law enforcement bodies for the investigation of those matters. It may also make recommendations for legal and administrative reforms.

The NCA uses multi-disciplinary teams of lawyers, police, financial investigators, intelligence analysts and support staff to investigate organised crime. The Act gives the NCA coercive powers to compel people to produce documents and to give sworn evidence. Those powers are not available to traditional police services. The NCA can only exercise its coercive powers in matters which have been formally referred to it for investigation. These characteristics are meant to enable the NCA to co-ordinate national investigations against major organised crime by complementing the efforts of other law enforcement agencies and by working co-operatively with them.(12)

Statute Law (Miscellaneous Provisions) Act (No. 2) 1984

Amendments made to the Principal Act by the Statute Law (Miscellaneous Provisions) Act (No. 2) 1984 (the Miscellaneous Provisions Act) are further amended by this Bill.

The Miscellaneous Provisions Act is an omnibus enactment described at the time of its introduction as containing 'a large number of non-contentious amendments'(13) to a range of statutes. Changes which it made to the Principal Act were explained as necessary 'tidying up' in order to provide clarification and remove ambiguity following the large number of amendments which had been made to the Principal Act during its passage through the Parliament. Amongst the changes made by the Miscellaneous Provisions Act was the insertion of section 55A into the Principal Act. There appears to be little secondary material about this amendment.(14) The Explanatory Memorandum which accompanied the Bill says of section 55A (which is erroneously referred to as 'new-subsection 56A') (15) that it will be inserted:

... to ensure that a State law may confer powers, functions or duties upon, or vest jurisdiction in, the Federal Court of Australia, and to remove any doubt in this regard.(16)

The Second Reading Speech says of the 1984 amendments to the Principal Act:

The amendments to this Act fall into two main categories: First, fine-tuning adjustments follow the very large number of amendments to the Bill passed in the Senate, particularly, the amendment removing the requirement for the Inter-Governmental Committee's approval of the Commonwealth reference to the Authority. Secondly, the amendments complement the 'underpinning' State legislation. Amendments in this latter group: Give limited jurisdiction to a State Supreme Court to hear appeals where the Authority is acting only under a reference from the State; prevent 'double jeopardy', that is, prevent a person being punished twice for the same matter, under both Commonwealth and State Acts; and make it clear that a State law may confer powers, functions or duties on the Federal Court of Australia where these are also conferred by the Commonwealth Act.

Neither the Second Reading Speech nor the Explanatory Memorandum for the Miscellaneous Provisions Bill refer to the fact that section 55A also provides that a State law can confer a power, function or duty on the NCA so long as that power, function or duty is also imposed by the Principal Act-that is, by the Commonwealth.

Amendments to the Principal Act which were made by the Statute Law (Miscellaneous Provisions) Act 1984 commenced on 1 July 1984-the commencement date of the Principal Act.

Cross-vesting

On 17 June 1999 the High Court struck down certain aspects of two cross-vesting schemes.(17) Under these schemes, the Commonwealth, the States and the Territories conferred jurisdiction on each other's courts. In Re Wakim(18) the High Court said that neither the Commonwealth nor the States can confer State jurisdiction on federal courts because federal courts can only be empowered to hear matters provided for in Chapter III of the Constitution.(19)

The decision in Re Wakim may be relevant to the Bill because section 55A of the Principal Act which the Bill amends deals in part with the exercise of State jurisdiction by the Federal Court and the conferral of powers, duties and functions on Judges of the Federal Court by State laws.

Main Provisions

Clause 2 of the Bill provides that the amendments listed in the Schedule commence immediately after the commencement of the Statute Law (Miscellaneous Provisions) Act 1984. As stated earlier, the Miscellaneous Provisions Act commenced on 1 July 1984.

Item 1 of Schedule 1 amends paragraph 55A(1)(a) of the Principal Act. At present, subsection 55A(1) provides as follows:

Operation of State laws

55A (1) It is hereby declared to be the intention of the Parliament that the operation of a provision of a law of a State that:

(a) confers a power or function, or imposes a duty, on the Authority or on a Judge of the Federal Court, being a power, function or duty that is also conferred or imposed by this Act; or

(b) vests jurisdiction in the Federal Court in a matter in which jurisdiction is also vested in that Court by this Act;

is not prevented or limited by reason of the provisions made by this Act.

The term 'Authority' is defined in section 4 of the Principal Act as the National Crime Authority.

Item 1 omits the words 'being a power, function or duty that is also conferred or imposed by this Act.' One consequence of this amendment is that the effective operation of a State law which confers or imposes powers, functions and duties on the NCA or a Federal Judge will not be limited by a requirement that those powers, functions and duties are replicated by provisions in the Principal Act itself.

Item 2 of the Schedule amends subsection 55A(2) of the Principal Act by omitting the word 'similar'. At present, subsection 55A(2) reads:

(2) It is also declared to be the intention of the Parliament that, except as otherwise declared by the regulations, the Authority and the Judges of the Federal Court may, in addition to the powers, functions and duties conferred or imposed on it or them by this Act, have similar powers, functions and duties conferred or imposed on it or them by a law of a State.

The Bill does not amend subsection 55A(3) of the Principal Act. However, the comments made about cross-vesting schemes in this Digest and the Concluding Comments may be relevant to subsection 55A(3) as well as to subsection 55A(2). Subsection 55A(3) reads:

(3) It is also declared to be the intention of the Parliament that, except as otherwise declared by the regulations, the Federal Court may, in addition to the jurisdiction vested in it by this Act, have similar jurisdiction vested in it by a law of a State.

Concluding Comments

The Explanatory Memorandum for the National Crime Authority Amendment Bill 1999 provides little guidance on the need for and effect of the amendments. In particular, there is no explanation of why the operation of the amendments needs to be backdated to 1984. The Explanatory Memorandum merely comments that the amendments 'clarify the nature of the State and Commonwealth legislative framework that supports the National Crime Authority.'(20) While ambiguities in section 55A of the Principal Act may be corrected by the amendments, those amendments also expand the scope of the NCA's powers. They do so both prospectively and retrospectively.

This retrospective operation appears to have the potential to validate NCA activities as far back as 1984 which were undertaken under a State mandate that had no equivalent provision in the NCA's own legislation-as required by the Principal Act. A question arises about the number and nature of such NCA activities. The Second Reading Speech for the Bill remarks:

The States confer powers, duties and functions on the National Crime Authority in relation to a variety of State investigative laws including laws for the use of assumed identities, controlled operations and electronic surveillance.(21)

A further question which might be asked concerns the provisions in section 55A of the Principal Act which enable the Federal Court to be given State jurisdiction and its Judges powers, functions and duties under State laws. Of course, the implications of the decision in Re Wakim may be not be relevant to powers, functions and duties conferred by State laws on Federal Court Judges in their individual capacities. However, questions might arise about those laws to the extent that they 'impose' powers, functions or duties on Federal Judges and to the extent that they confer State jurisdiction on the Federal Court.

Endnotes

  1. For example, the 1973 NSW Royal Commission into Organised Crime in Clubs (headed by Justice Moffit); the 1977 NSW Royal Commission into Drug Trafficking (headed by Justice Woodward); the 1977 Australian Royal Commission of Inquiry into Drugs (established by the Commonwealth, Victorian, Tasmanian, Western Australian & Queensland Governments and headed by Justice Williams); the 1980 Royal Commission into the Activities of the Federated Ship Painters and Dockers Union (established by the Commonwealth and Victorian Governments and headed by Mr Frank Costigan QC); the 1981 Royal Commission of Inquiry into Drug Trafficking (established by the Commonwealth, NSW, Victorian & Queensland Governments and headed by Justice Stewart).

  2. Senate Standing Committee on Constitutional and Legal Affairs, The National Crime Authority Bill 1983, AGPS, Canberra, 1984, p. 3.

  3. Report of the Review of Commonwealth Law Enforcement Arrangements, AGPS, Canberra, February 1994, p. 329.

  4. It was repealed by the National Crime Authority Act 1984.

  5. The reasons for the review were various. The ALP had opposed the National Crime Commission Bill while in opposition. Further, the Steward Royal Commission had raised doubts about the effectiveness of the legislation, the States were opposed to the establishment of the Commission and it was considered unlikely that they would enact underpinning legislation-see National Crime Authority, Annual Report 1984-85, AGPS, Canberra, 1986. In 1983, a Discussion Paper entitled A National Crimes Commission? was issued by Special Minister of State, Hon Mick Young and the Attorney-General, Senator the Hon Gareth Evans. A National Crimes Commission Conference was held in Parliament House between 28 & 29 July 1983. Additionally, there were discussions held with the States and the Northern Territory culminating in a meeting in September 1983 between the Commonwealth Attorney-General and the Police Ministers at which agreement was reached about a model for a National Crime Authority. A National Crime Authority Bill 1983 was introduced into the Parliament in November 1983 and examined by the Senate Standing Committee on Constitutional and Legal Affairs.

  6. See Report of the Review of Commonwealth Law Enforcement Arrangements, op.cit.

  7. Subsection 4(1).

  8. Section 13.

  9. Section 14. The Inter-Governmental Committee consists of Commonwealth, State and Territory Ministers-see section 8 of the Principal Act. Its functions are set out in section 9.

  10. Alan Leaver, Investigating Crime. A Guide to the Powers of Agencies Involved in the Investigation of Crime, LBC Information Services, Sydney, 1997, p. 350.

  11. National Crime Authority (Territory Provisions) Act 1991 (ACT); National Crime Authority (Territory Provisions) Act 1985 (NT); National Crime Authority (State Provisions) Act 1984 (NSW); National Crime Authority (State Provisions) Act 1984 (Vic); National Crime Authority (State Provisions) Act 1985 (Qld); National Crime Authority (State Provisions) Act 1984 (SA); National Crime Authority (State Provisions) Act 1984 (Tas); National Crime Authority (State Provisions) Act 1985 (WA).

  12. Integrity: but not by trust alone. AFP & NCA complaints and disciplinary systems, Report No. 82, AGPS, Canberra, 1996.

  13. Hon M Duffy MP, Statute Law (Miscellaneous Provisions) Bill (No. 2) 1984, Second Reading, Parliamentary Debates (Hansard), House of Representatives, 13 September 1984, p. 1294.

  14. For example, the NCA's Annual Report for 1984-85, AGPS, Canberra, 1986 which mentions the amendments under the Statute Law (Miscellaneous Provisions) Act (No. 2) 1984.

  15. Explanatory Memorandum, Statute Law (Miscellaneous Provisions) Bill (No. 2) 1984, p. 37.

  16. ibid.

  17. The first scheme was found in the Jurisdiction of Courts (Cross-Vesting) Act 1987 of the Commonwealth, the States and the Northern Territory. The second was found in the Corporations Act 1989 (Cwlth) and the Corporations Act of each State and the Northern Territory. Solutions to the difficulties caused by the decision have been the subject of discussions between the Commonwealth and the States. The Commonwealth Attorney-General has foreshadowed the possibility of a constitutional referendum at the next Federal Election. Another possibility is a referral of powers from the States to the Commonwealth under section 51(xxxvii) of the Commonwealth Constitution. See Andrew Burrell, 'Referendum proposed for a national courts system,' Australian Financial Review, 15 November 1999.

  18. Re Wakim; Ex parte McNally, Re Wakim; Ex parte Darvall, Re Brown; Ex parte Amman, and Spinks v. Prentice (1999) 163 ALR 270.

  19. For a detailed commentary see Graeme Hill, 'The demise of cross-vesting,' Federal Law Review, 27(3), 1999, pp. 547-75.

  20. Page 1.

  21. Parliamentary Debates (Hansard), House of Representatives, 24 November 1999, p. 9298. A description of controlled operations legislation in Australia and the involvement of the NCA in controlled operations is found in Parliamentary Joint Committee on the National Crime Authority, Street Legal. The Involvement of the National Crime Authority in Controlled Operations, December 1999.

Contact Officer and Copyright Details

Jennifer Norberry
7 December 1999
Bills Digest Service
Information and Research Services

This paper has been prepared for general distribution to Senators and Members of the Australian Parliament. While great care is taken to ensure that the paper is accurate and balanced, the paper is written using information publicly available at the time of production. The views expressed are those of the author and should not be attributed to the Information and Research Services (IRS). Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion. Readers are reminded that the paper is not an official parliamentary or Australian government document.

IRS staff are available to discuss the paper's contents with Senators and Members
and their staff but not with members of the public.

ISSN 1328-8091
© Commonwealth of Australia 1999

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Published by the Department of the Parliamentary Library, 1999.

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