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This Digest was prepared for debate. It reflects the legislation as
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CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer and Copyright Details
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.
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.
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.
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.
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.
-
- 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).
- Senate Standing Committee on Constitutional and Legal Affairs,
The National Crime Authority Bill 1983, AGPS, Canberra,
1984, p. 3.
- Report of the Review of Commonwealth Law Enforcement
Arrangements, AGPS, Canberra, February 1994, p. 329.
- It was repealed by the National Crime Authority Act
1984.
- 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.
- See Report of the Review of Commonwealth Law Enforcement
Arrangements, op.cit.
- Subsection 4(1).
- Section 13.
- 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.
- Alan Leaver, Investigating Crime. A Guide to the Powers of
Agencies Involved in the Investigation of Crime, LBC
Information Services, Sydney, 1997, p. 350.
- 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).
- Integrity: but not by trust alone. AFP & NCA complaints
and disciplinary systems, Report No. 82, AGPS, Canberra, 1996.
- 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.
- 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.
- Explanatory Memorandum, Statute Law (Miscellaneous
Provisions) Bill (No. 2) 1984, p. 37.
- ibid.
- 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.
- Re Wakim; Ex parte McNally, Re Wakim; Ex parte Darvall, Re
Brown; Ex parte Amman, and Spinks v. Prentice (1999)
163 ALR 270.
- For a detailed commentary see Graeme Hill, 'The demise of
cross-vesting,' Federal Law Review, 27(3), 1999, pp.
547-75.
- Page 1.
- 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.
Jennifer Norberry
7 December 1999
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