Bills Digest No. 54 2002-03
Australian Crime Commission Establishment Bill
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
Contact Officer & Copyright Details
Crime Commission Establishment Bill 2002
26 September 2002
House: House of Representatives
Portfolio: Justice and Customs
Amendments to the
National Crime Authority Act 1984 commence on 1 January
To establish an
Australian Crime Commission (ACC) to replace the National Crime
Authority (NCA or the Authority), the Australian Bureau of Criminal
Intelligence (ABCI) and the Office of Strategic Crime Assessments
(OSCA) and to make consequential and transitional amendments
associated with these changes.
On 5 April 2002, a proposal to establish an ACC
to replace the NCA was considered by a Commonwealth, State and
The Background section of this Digest describes
the National Crime Authority, Australian Bureau of Criminal
Intelligence (ABCI) and the Office of Strategic Crime Assessments
(OSCA).(1) It then provides a short summary of the
Leaders Summit on Terrorism and Transnational Crime, its
antecedents and its aftermath.
A National Crimes Commission Act 1982
(National Crimes Commission Act) 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.(2) In 1984, the Senate
Standing Committee on Constitutional and Legal Affairs
... 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.(3)
Both the National Crimes Commission Act
1982 and the National Crime Authority Act 1984 (NCA
Act) responded to a perceived need for a new law enforcement agency
at the national level, equipped with coercive powers, skills and
resources to deal with the fight against organised crime.
The National Crimes Commission Act 1982
never commenced operation.(5) Instead, the incoming
Hawke Labor Government decided to review it. The reasons for the
review were various. The ALP had opposed the National Crimes
Commission Bill while in Opposition. Further, the Stewart Royal
Commission had raised doubts about the effectiveness of the
legislation, the States were opposed to the establishment of the
National Crimes Commission and it was considered unlikely that they
would enact underpinning legislation.(6)
In 1983, a Green Paper entitled A National
Crimes Commission? was issued by Special Minister of State,
Mick Young MP, and Attorney-General Gareth Evans. A National Crimes
Conference was held in Parliament House from 28-29 July 1983.
Additionally, discussions were held with the States and the
Northern Territory, culminating in a meeting in September 1983
between Attorney-General Evans and Police Ministers at which
agreement was reached about a model for a National Crime Authority.
A National Crime Authority Bill was introduced into the Parliament
in November 1983.
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. The Second Reading Speech referred to:
- the need to avoid fragmentation of law enforcement efforts 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
It also made specific reference to the way in
which the States and the Northern Territory would be involved in
the legislative scheme, particularly via the establishment of an
Inter-Governmental Committee (IGC):
there is now satisfactory provision for
participation by the States and the Northern Territory. The
National Crime Authority will consist of a Chairman, and two other
members selected respectively by the unanimous decision of the
Attorneys-General and Police Ministers of the Commonwealth and
participating States. There is further provision for an
inter-governmental committee to generally monitor the work of the
Authority. Each State and the Northern Territory as well as the
Commonwealth will be able to be represented on this committee,
which should give the States a clear window into its
Secondly, the concern widely expressed in
relation to the proposed 1982 Crimes Commission that the body would
be able to roam at will over the whole field of its jurisdiction,
without having to justify its investigations to those politically
accountable, has been specifically addressed by the requirement in
the present Bill that the Authority only exercise coercive
investigative powers in the context of specific references
initiated by the appropriate government and approved by the
inter-governmental committee. There is further provision for the
Committee to request the Authority to provide information as to
specific matters relating to an investigation or as to the general
conduct of operations of the Authority.(8)
The 1983 Bill was referred to the Senate
Standing Committee on Constitutional and Legal Affairs. One of the
issues examined by the Senate Committee was the role and powers of
the IGC. The 1983 Bill enabled the IGC to determine not only
whether references from State Ministers were given to the NCA but
whether references from the Commonwealth Minister were approved.
The Committee recommended that the Commonwealth Minister only be
required to consult with the IGC rather than obtain its approval
when a reference would involve the NCA investigating Commonwealth
or Territory offences. However, it accepted the position taken by
Attorney-General Evans that:
the fact that the Bill provides for an
Inter-Governmental Committee reflects both practical and
constitutional constraints on the Commonwealth in the area of law
enforcement. The practical constraint is that for the Authority to
get co-operation from the States, who are the major repositories of
law enforcement capacity in Australia, they have to be involved in
the organisational machinery of the Authority.(9)
Another issue, raised by the Green Paper in 1983
and discussed periodically since is whether the NCA s functions and
powers in relation to complex organised crime should be exercised
by the police. Among the reasons that have been advanced for the
current NCA scheme, which establishes a permanent commission with
special powers to pursue organised crime, are that:
- police forces operate within jurisdictional boundaries, whereas
organised crime crosses those boundaries
- the NCA is able to place offences and perpetrators in a context
of organised crime, whereas police are directed more to identifying
individual criminals and charging them
- the community would baulk at the police exercising the special
coercive powers available to the NCA.(10)
The NCA s website remarks:
The NCA is not a police service. [it] exists
because of recognition that State/Territory law enforcement
agencies cannot effectively deal with multi-jurisdictional
organised crime in isolation and that many investigations cannot be
successfully undertaken by traditional policing methods. The NCA
approaches organised crime in a strategic, holistic way and must be
very selective in the investigations it undertakes by itself.
Within the NCA, multi-disciplinary teams of
lawyers, seconded officers from partner law enforcement agencies,
financial investigators, intelligence analysts and support staff
bring together the wide range of skills and expertise needed to
effectively combat today's increasingly sophisticated and
entrepreneurial organised criminal activity. The most commonly
investigated offences include drug importation, cultivation,
manufacture and trafficking, money laundering, large scale
organised fraud and revenue evasion, bribery, extortion and
There is no specific head of power over crime in
the Commonwealth Constitution. As a result, the Commonwealth has
used a variety of constitutional powers to create Commonwealth
offences and legislate for the establishment of bodies like the
NCA. Nonetheless, practical considerations (most law enforcement is
in the hands of the States and Territories, the NCA relies on
cooperative relationships with other law enforcement agencies and
State and Territory police services provide criminal investigators
to work in the NCA) and gaps in constitutional power have
necessitated a cooperative legislative approach involving the
States and the Territories. In the case of the NCA the Commonwealth
Act, the National Crime Authority Act 1984 (the NCA Act),
is mirrored by State and Territory legislation.
Apart from the powers conferred on the NCA by
the NCA Act and complementary State and Territory laws, the NCA can
also exercise powers under other Commonwealth statutes most
importantly, the Crimes Act 1914, the Customs Act
1901, the Taxation Administration Act 1953 and the
Telecommunications (Interception) Act 1979.
The following account of the NCA s functions and
powers is taken from the NCA website. It mentions the organisation
s special (coercive) powers which are available when the NCA is
conducting a special investigation authorised at Ministerial level.
Under its statute, the NCA is also empowered to conduct general
investigations. General investigations can be undertaken at the NCA
s own initiative, can involve the use of statutory powers, such as
the power to request information from Commonwealth agencies but
cannot involve the use of coercive powers.
Under its governing Acts, the charter of the NCA
is to investigate complex organised crime on a national basis and
to collect, analyse and disseminate relevant criminal information
and intelligence. It also has important law, policy and
administrative reform functions. The NCA does not conduct
prosecutions. It collects admissible evidence and provides it to
the appropriate prosecuting authority, which then decides whether
or not to proceed.
To facilitate its task, the NCA has been
entrusted with special powers
beyond those given to any police service. These special powers,
which are similar to those available to a number of other statutory
bodies, include the power to obtain documents and other evidence,
and to summons a person to appear at a hearing to give evidence
under oath. The powers are utilised in a confidential manner, to
protect not only the integrity of investigations, but also to
protect the privacy and safety of people called to give evidence or
in relation to whom documents are requested. The Authority regards
the exercise of these powers as one of its most important
The NCA s capacity to conduct hearings and its
powers have been enhanced since its establishment. Recent
amendments include the creation of the position of hearing officer,
the restriction of immunities available to a person who is required
to answer questions at an NCA hearing, and the ability of the NCA
to authorise controlled operations and the use of assumed
Further details of the NCA s powers and
functions can be found in the Main Provisions section of this
The ABCI was established in 1981 as the result
of an Intergovernmental Agreement entered into by Commonwealth,
State and Northern Territory Police Ministers. Its purpose is to
facilitate the exchange of criminal intelligence between Australia
s law enforcement agencies. It provides law enforcement with
services in four main areas: analysis, information technology,
policy and training services.(13)
A Board of Control consisting of all Australian
Police Commissioners oversees the activities of the ABCI. The Board
also determines appropriate policies, procedures and methods for
governing the ABCI s activities .(14)
Amongst other things, ABCI maintains the
Australian Criminal Intelligence Database (ACID). Six Australian
police forces use ACID as their intelligence repository for local
and national intelligence .(15) Subsection 12(2) of the
NCA Act provides that in performing its functions, the Authority
shall cooperate and consult with the ABCI. NCA task forces use the
ABCI central database as a repository and for intelligence sharing.
The ABCI also produces an annual Australian Illicit Drug
Report. The NCA s most recent annual report remarks:
The NCA also provided information for the ABCI s
annual Australian Illicit Drug Report.
The NCA moved to develop closer working
relationships with the Office of Strategic Crime Assessments
OSCA is located in the Criminal Justice Division
of the Attorney-General s Department. The NCA describes OSCA as
OSCA was established in 1995 to provide the
Commonwealth Government with strategic assessments of significant
crime trends and criminal threats to Australia, likely to emerge
within 5 years. The other main function of OSCA is to facilitate
the coordination of intelligence assessment activities within
Commonwealth law enforcement.
OSCA also manages a strategic indications and
warnings system for the law enforcement community. This system
coordinates collection and warning on specified issues to assist
policy decision makers. The systems depends on information provided
by agencies, and the synthesis and analysis of this
In the press release accompanying the Government
s 2001 election policy, A Safer and More Secure Australia,
the Prime Minister said:
One difficulty the Commonwealth has in
effectively fighting transnational crime and terrorism is that
these crimes may not be strictly federal offences. The present
scope for AFP officers to investigate State offences is limited and
the only way that the Commonwealth can intervene is through
referral of an investigation to the National Crime Authority.
However, this referral process is a complex co-operative scheme
which can be very time consuming in commencing investigations,
making it difficult to deal with modern national and transnational
crime syndicates effectively.
The Safer and More Secure Australia
policy foreshadowed a Commonwealth-State Summit on Transnational
Crime and Terrorism to be held in March 2002 and indicated that the
Commonwealth would seek outcomes on:
Ways to improve Australia s ability to combat
transnational crime and terrorism;
Options for reforming or replacing the National
Crime Authority to ensure we have a national body fully equipped to
deal with future transnational criminal activities;
A reference of constitutional power to the
Commonwealth to support an effective national response to threats
of transnational crime and terrorism.
On 21 December 2001, following the return of the
Coalition Government in the 2001 General Election, the
Attorney-General and the Minister for Justice and Customs announced
that former Australian Federal Police Commissioner, Mick Palmer and
former Attorney-General s Department Secretary, Tony Blunn would
conduct a review of the NCA.
Various reasons have been advanced for the
review and the Government s desire to reform or replace the NCA.
These include NCA support of a controlled heroin trial for
dependent users, Government concerns about some NCA activities (for
example, in relation to the John Elliott case), concerns that the
mechanism for referring matters to the NCA is unnecessarily complex
and time consuming and fears that the current NCA structure is
unsuited to tackle the links between organised crime and
terrorism.(17) Some commentators expressed puzzlement
about reported Government plans to confine the NCA to an
intelligence gathering and priority setting role given the fact
that its powers have been enhanced in recent years.(18)
For instance, legislation has been passed creating a new office (of
hearing officer) to conduct NCA hearings, adding to the offences
that can be investigated by the NCA if they are carried out in the
course of organised criminal activity, restricting the immunity
available to witnesses at NCA hearings, enabling the NCA to
authorise and participate in controlled operations and permitting
the NCA to authorise the use of assumed identities.
The Palmer-Blunn report was submitted to Cabinet
on 23 January 2002(19) but was not made public. However,
one newspaper described it as presenting three options for
a reconstructed NCA that would have an expanded
role in strategic intelligence, a cut-down NCA limited to the use
of its coercive powers without responsibility for intelligence, and
the preferred option the abolition of the NCA and its replacement
by an Australian Crime Commission with the AFP playing a leading
On 10 March 2002, the Minister for Justice and
Customs denied reports that the Government was proposing to merge
the NCA and the AFP.(21)
The Prime Minister, Premiers and Chief Ministers
met to discuss transnational crime and terrorism on 5 April 2002.
The communique they released contained the following agreement:
7. To strengthen the fight against organised
crime it is agreed to replace the National Crime Authority (NCA)
with an Australian Crime Commission (ACC) that builds on the
important features of the NCA for effective national law
enforcement operation in partnerships with State and Territory
police forces whilst removing the current barriers to its
8. The ACC to be focussed on criminal
intelligence collection and establishment of national intelligence
9. The ACC to have access to taskforce
investigative capability to give effect to its intelligence
functions and to support its overall operations. The ACC to include
the Office of Strategic Crime Assessments and the Australian Bureau
of Criminal Intelligence.
10. The Board of the ACC to include
representatives from all States and Territories. Ministerial
oversight will be retained by having the Board report to an
Intergovernmental Committee of State and Commonwealth
11. To streamline the process for obtaining
12. The ACC will retain the capacity to use
coercive powers and to investigate criminal activity of national
13. Other details to be settled by mutual
agreement with the new body to come into operation by 31 December
In July 2002, the States are reported to have
rejected the Commonwealth s model for an ACC. Disagreement appears
to have centred on funding, staffing, whether the ACC would have an
operational capability or be an intelligence gathering body, and
the effectiveness of the new organisation.(23) It was
also speculated that the Secretary of the Attorney-General s
Department would chair the ACC Board and concerns were expressed
that such an arrangement would make the ACC an arm of the
bureaucracy rather than a body independent of the Executive
However, on 9 August 2002, a further agreement
was reached between the Commonwealth, States and Territories to
give the ACC greater powers and about issues of funding and
governance.(25) Minister for Justice and Customs,
Senator Chris Ellison said:
The Commonwealth and the States and Territories
have reached final agreement on all outstanding issues. Now that
the principles have been agreed all efforts will be focused on
The ACC will be more streamlined than the NCA
and will bring a national focus to criminal intelligence collection
and coordination. The fact that the Board will comprise the heads
of law enforcement agencies means that it provides a framework for
cooperation and coordination of our national law enforcement effort
not previously known in Australia.
Contrary to some press reports, these
negotiations have been vital to ensure that Australia gets the best
In other action taken by the Government, the
position of the ACC s Chief Executive Officer has been
advertised(27) and an implementation team has begun
preparing for the transition of the NCA to the ACC:
Mr Simon Overland has been seconded to the
[Attorney-General s Department] from his position as the Chief
Operating Officer of the AFP, to work as the Implementation Project
Manager responsible for overseeing the transition to the ACC. Mr
Overland is leading an implementation team which includes
representatives of the NCA, ABCI and OSCA.
The Implementation Project Manager reports to a
Steering Committee chaired by Mr Ian Carnell of [the
Attorney-General s Department], and comprising four State Police
Commissioners and the Chairman of the Australian Securities and
Investments Commission (ASIC). The Steering Committee met for the
first time on 11 June 2002.
Several working groups have also been
established, under the auspices of the Implementation Team, to
formulate administrative and operational structures of the new
The Government has also appointed an acting
Chair and an acting member of the NCA whose appointments will
expire on 31 December 2002, the day before the proposed Australian
Crime Commission Establishment Act commences. Further details about
these appointments can be found in the Main Provisions section of
On 26 September 2002, the Australian Crime
Commission Establishment Bill was referred to the PJC for
consideration and an advisory report by 6 November
2002.(29) The PJC is established by the NCA Act. Among
other things, its functions are to monitor and review the
performance of the NCA and inquire into and report on NCA-related
matters referred to it by the Parliament.(30)
The Main Provisions section of this Digest is
structured so that the current statutory regime for the NCA can be
compared with proposals for reform contained in the Australian
Crime Commission Establishment Bill 2002. Current legislative
provisions contained in the NCA Act are described first, followed
by a description of the regime proposed by the ACC Bill.
At present, the NCA s functions are to:
- collect, analyse and disseminate criminal intelligence and
- conduct investigations into relevant criminal activity . When
conducting general investigations into relevant criminal activity
the NCA can exercise certain powers, like making requests to
Commonwealth agencies for information. However, it cannot use its
coercive powers, for example to summon witnesses and require them
to answer questions and produce documents unless a matter has been
referred to it at Ministerial level (see below).
- establish and coordinate task forces to investigate relevant
- conduct special investigations(31) into federally
relevant criminal activity (32) after a matter has been
referred to it either by the Commonwealth Minister (after
consulting with the Inter-Governmental Committee) or by a State
Minister or Ministers (with the approval of the
IGC).(33) Special investigations can involve the use of
the NCA s coercive powers.
- exercise powers and functions conferred by State law
- keep the Commonwealth Minister informed about the general
conduct of its operations and provide information at the Minister s
request about references the Commonwealth Minister has made under
section 13 of the Act(34)
- provide information to State Ministers who are members of the
IGC, in certain circumstances for instance, when the State Minister
requests information about NCA operations in the performance of its
general functions being operations conducted within the
jurisdiction of that State (35)
- report to the IGC, including provision of the findings of any
special investigations it conducts. If those findings include
information which, if published, would prejudice personal safety or
reputation or the operations of law enforcement agencies, then the
information cannot be disclosed to the IGC but must be included in
a separate report to the referring Minister (either the
Commonwealth Minister or the relevant State
- provide information and reports to the Parliamentary Joint
Committee on the NCA. This information includes information about
investigations that have been conducted by the NCA and information
about the general conduct of NCA operations.(37)
- provide an annual report to the IGC. The IGC then provides the
report, together with any comments it wants to make, to the
Commonwealth Minister and State and Territory Ministers from
Relevant criminal activity , a concept referred
to above, is activity involving a relevant offence against
Commonwealth, State or Territory law. The concept of relevant
offence encapsulates a statutory definition of complex organised
crime. The investigation of complex organised crime is one of the
NCA s core functions.
A relevant offence involves 2 or more offenders,
substantial planning and organisation and the use of sophisticated
techniques involving serious(39) criminal behaviour such
as theft, fraud, tax evasion, illegal drug dealing, extortion or
violence. As a result of subsection 4(2) of the NCA Act, the
Authority can also investigate offences it suspects may be directly
or indirectly connected with a relevant offence , despite the fact
that such offences are not relevant offences per se.
The proposed functions of the ACC are found in
new section 7A (Schedule 1 of the
Bill) and are to:
- collect, correlate, analyse and disseminate criminal
information and intelligence and maintain a national database
- undertake intelligence operations when authorised by the ACC
Board and report to the Board. An intelligence operation is defined
as the collection, correlation, analysis or dissemination of
criminal information and intelligence relating to federally
relevant criminal activity .(40) The ACC Board will
authorise all intelligence operations both those operations where
the ACC can use powers like requesting information from
Commonwealth agencies, and those operations that the Board has
determined to be special operations , during which coercive powers
can be used.(41) The process for determining that an
operation is a special operation is set out below.
- investigate federally relevant criminal activity when
authorised by the ACC Board and report to the Board. As with
intelligence operations, the Board must authorise all
investigations both those general investigations where the ACC can
exercise powers like requesting information from Commonwealth
agencies and those investigations that the Board has determined to
be special investigations , during which coercive powers can be
used.(42) The process for determining that an operation
or investigation will be a special operation or investigation is
- provide strategic criminal intelligence assessments to the
Board and advise on national criminal intelligence priorities
- undertake other statutory functions conferred on it.
Some of these functions flow from the proposed
merger of the NCA with ABCI and OSCA. However, the ability of the
ACC to conduct special intelligence operations involving the use of
coercive powers is new.
The ACC will continue to investigate complex
organised crime. However, the expression relevant offence currently
found in the NCA Act will be replaced with the concept of serious
and organised crime . The definition of serious and organised crime
is substantially the same as the definition of relevant offence
(see previous section) but it adds firearms and cybercrime to the
list of criminal behaviour that can fall within the ambit of
There are also changes to subsection 4(2) of the
Act (item 29 of Schedule 1). They enable the head
of an ACC operation/investigation (rather than, as at present, the
Authority) to investigate an offence suspected of being directly or
indirectly connected with the commission of a serious and organised
crime , although the offence is not a serious and organised crime
per se. The Explanatory Memorandum comments that, As with the NCA,
this enables the ACC to pursue its functions without artificial
boundaries being established surrounding the definition of offence
The Authority consists of a Chair and at least
two other members.(44) The Chair must be a judge, former
judge or lawyer of at least 5 years standing.(45) If the
Chair is a judge then his or her appointment is part-time. Other
members are full-time officeholders.(46)
The Chair and members are appointed by the
Governor-General. The appointment of one of the members must accord
with a unanimous recommendation of the Commonwealth
Attorney-General and the Attorneys of participating States and
Territories.(47) One other member is appointed on the
unanimous recommendation of the Commonwealth, State and Territory
The Chair of the NCA has a number of statutory
functions and powers. For instance, he or she is responsible for
the management of the Authority in accordance with policies and
directions issued by the Authority (section 46A).
The Chair can also call meetings of the
Authority, presides at those meetings and has both a deliberative
and a casting vote (section 46).
Additionally, as a member of the
NCA(49), the Chair can exercise the statutory powers of
a member such as issuing summons and notices to produce documents
and conducting special hearings involving the use of coercive
powers, like requiring witnesses to answer questions.
The Chair is empowered to provide information to
law enforcement agencies that comes into the possession of the NCA
and which relates to the commission or possible commission of
offences.(50) He or she can also pass on information
relevant to security to ASIO and can pass on information in certain
circumstances to foreign law enforcement
Some of the Chair s powers are delegable for
instance, he or she can delegate, to a member or staff member, the
power to provide information to law enforcement agencies about the
commission or possible commission of an offence.(52) The
power to revoke a non-disclosure directive made by the Authority
under subsection 25(9)(53) can be delegated to a member,
as can the Chair s power to direct that a person who has been
required to supply documents to the NCA can have their attendance
Until recently, the Chair of the NCA was Gary
Crooke QC. Mr Crooke was senior counsel assisting the Fitzgerald
Inquiry in Queensland and the Wood Royal Commission into the NSW
Police Service and has been a President of the Australian Bar
Association and a Vice-President of the Law Council of
Australia.(55) On 17 September 2002, the Government
announced that Phillip Bradley had been appointed to act as Chair
of the NCA. Mr Bradley is currently Commissioner of the NSW Crime
Commission. His previous experience included working for the
Stewart Royal Commission and the Commonwealth Director of Public
A former member of the NCA, Marshall Irwin,
whose term expired in 2002 had previously been Deputy Director of
Public Prosecutions in Queensland and later a General Counsel to
the Queensland Criminal Justice Commission. On 28 August 2002, the
Government announced that Mr Irwin had been replaced by Rosemary
Davey as an acting member of the NCA. Ms Davey is a barrister who
has been regularly briefed by the South Australian and Commonwealth
Directors of Public Prosecutions and has also acted for the
National Crime Authority .(57) The other member of the
NCA is Jim Bennett, a former Deputy Senior Crown Prosecutor for
Item 35 of Schedule 1 repeals
section 7 of the NCA Act (which establishes the Authority) and
substitutes a new section which replaces the NCA with an Australian
Crime Commission made up of a Chief Executive Officer (CEO),
examiners and staff members.
The CEO is appointed by the Governor-General
after the Commonwealth Minister has invited the ACC Board to make
nominations and has consulted members of the Inter-Governmental
Committee (new section 37). The CEO is a full-time
The CEO will be responsible for the day-to-day
management of the ACC in accordance with policy and directions
issued by the ACC Board [new section 46A(1)]. He
or she will also sit on the ACC Board and can sit on its committees
but is unable to exercise voting rights or be counted for the
purpose of a quorum (see item 9 and the provisions
inserted by item 35 of Schedule 1).
The CEO will also be responsible for
coordinating ACC operations/investigations and may decide which
examiners conduct special operations and investigations
[new subsections 46A(2) & (3)].
Additionally, some powers and functions
presently exercisable by the Chair of NCA will be transferred to
the CEO. These include the power to revoke a non-publication order
made in a hearing/examination [new subsections 25A(10)
& (11)], pass relevant information to law enforcement
agencies and foreign law enforcement agencies (item
274), and to pass information relating to security to ASIO
(items 283-285). The CEO will also be able to pass
on information to Commonwealth, State and Territory agencies
prescribed by regulation (item 274).
The appointment, terms and conditions of the CEO
are discussed below under Administrative provisions (below).
The ACC Board is established by new
subsection 7B(1). The Board will consist of the AFP
Commissioner (who will also be the Chair), the Secretary of the
Attorney-General s Department, the CEO of Customs, the Chair of the
Australian Securities and Investments Commission, the
Director-General of ASIO, the Police Commissioners of each State
and the Northern Territory, the Chief Police Officer of the ACT and
the CEO of the ACC. In other words there will be six Commonwealth
members on the Board (one of whom, the CEO, is a non-voting member
and one of whom, the AFP Commissioner, will be the Chair and able
to exercise a casting vote) and eight State and Territory
representatives (who will all be police commissioners).
Functions of the Board set out in new
section 7C include:
- determining national criminal intelligence priorities
- giving strategic direction to the ACC and determining its
- authorising the ACC to conduct intelligence operations or
investigate federally relevant criminal activity
- determining which operations and investigations will be special
operations/investigations and thus subject to the use of the ACC s
- deciding who will head an ACC special operation or
- establishing task forces
- distributing strategic criminal assessments
- reporting to the Inter-Governmental Committee on the ACC s
- performing any other functions conferred by the Act.
With the consent of the IGC, Board members can
attend and participate in IGC meetings (item 37 of Schedule
1). (A similar provision is found in existing subsection
8(9) of the NCA Act whereby the Chair and other members of the
Authority can attend IGC meetings if the IGC agrees.)
Other functions of the Board can be found
elsewhere in the Bill. For instance, a State law can confer certain
functions and powers on the ACC (item 228) and on
the CEO, an examiner or ACC staffer. However, neither the ACC nor
the officeholder can exercise functions or powers under State law
involving an investigation or intelligence operation unless the ACC
Board consents. Under existing subsection 55A(3) of the NCA Act a
State law cannot confer an investigative function on the Authority
unless the State Minister refers the matter, the IGC approves and
the Commonwealth Minister consents.
The powers and functions of the Chair of the ACC
Board (the AFP Commissioner) include:
- convening meetings of the Board. There must be at least two
meetings per calendar year and the Board must meet according to a
schedule that it determines [new subsections
- preside at Board meetings (if present). In the absence of the
Chair another eligible Commonwealth Board member must preside.
Eligible Commonwealth Board members are the AFP Commissioner, the
Secretary of the Attorney-General s Department, the CEO of Customs,
the Australian Securities and Investments Commission Chair and the
Director-General of Security. [new subsection 7E & item
9 of Schedule 1]
- exercise both a deliberative and, if necessary, a casting vote
at meetings [new subsection 7G(2)]
- keep the Commonwealth Minister informed about the general
conduct of the ACC and provide him or her with information about
specific matters if requested to do so. The Chair must not provide
the information if he or she considers that its publication could
prejudice safety, reputation or the operations of law enforcement
agencies [new subsections 59(1) and (2), inserted
by item 253].
- provide information to a State Minister who is an IGC member
about ACC conduct in the performance of its functions where that
conduct occurred within the jurisdiction of that State . Once
again, the information must not be supplied if the Chair of the
Board considers that its publication could prejudice safety,
reputation or the operations of law enforcement agencies
[new subsections 59(1A) and (2), inserted by
- provide information to the IGC including information about ACC
operations and investigations. Where the information is a report on
the findings of special operations or investigations then the Chair
of the Board must not supply the information if its publication
could prejudice safety, reputation or the operations of law
enforcement agencies. In such a case, the Chair of the Board must
prepare a separate report and present it to the Commonwealth
Minister. (see, in general, items 254-263)
- provide information to the PJC about the general conduct of the
ACC s operations and information about an operation or
investigation that has been conducted by the ACC [with the same
caveats as above but with an appeal mechanism to the Minister
similar to that in existing subsections 59(6C) & (6D)]
(items 265-273), and
- provide an Annual Report to the IGC. The IGC then transmits
that report, together with any comments that it wants to make, to
the Commonwealth Minister and Ministers in participating
jurisdictions. (items 293-295)
Item 253 in particular appears
to make some significant changes to the provision of information to
Commonwealth and State Ministers. For example, under the NCA Act,
the Authority must provide the Commonwealth Minister with
information about the NCA s operations relating to a special
investigation reference made by the Commonwealth Minister when the
Commonwealth Minister requests it to do so.(59) However,
under the amendments proposed in the Bill if the Commonwealth
Minister requests specific information about the ACC s activities,
the Chair of the Board must comply unless he or she considers that
the disclosure of information to the public could prejudice safety,
reputation or the operations of law enforcement
agencies.(60) The Explanatory Memorandum explains:
This is an important safeguard on the disclosure
of information, places all Ministers on an equal footing and
recognises the changed role that Ministers now have in relation to
the conduct of the ACC.(61)
A question that might be asked here is whether
some of the amendments sit comfortably together for instance, the
ability of the Chair of the Board to refuse to pass on certain
information to the Commonwealth Minister under new
subsection 59(2) because of its potentially prejudicial
character and the provisions in amended subsections
59(6C)-(6D) which enable the PJC to refer to the
Commonwealth Minister requests for information that the Chair has
denied it because that information is potentially prejudicial.
Item 287 repeals existing
section 59A of the NCA Act which enables the Chair to delegate
certain of his or her powers to members, SES employees and, in some
cases, staff members. New section 59A will enable
the CEO to delegate to a member of the staff of the ACC who is an
SES employee, or an acting SES employee, all or any of the CEO s
powers or functions under this Act . Normally, where an Act confers
a power of delegation, the powers that can be delegated do not
include the power to delegate.(62)
External scrutiny of the NCA occurs via the
Commonwealth Minister, State and Territory Parliaments, the
Inter-Governmental Committee, the Parliamentary Joint Committee on
the National Crime Authority and the Ombudsman. Reporting
requirements and provisions enabling NCA records to be inspected
are found not only in the NCA Act but in other pieces of
Commonwealth legislation, such as the Crimes Act 1914 and
the Telecommunications (Interception) Act 1979.
Descriptions of the IGC, PJC and annual
reporting requirements under the NCA Act appear below.
The most recent NCA Annual Report describes the
IGC in the following terms and gives an idea of how it works in
The NCA is accountable to Commonwealth, State
and Territory Ministers responsible for administering its
legislation through the Inter-Governmental Committee (IGC) which is
chaired by the Commonwealth Minister for Justice and Customs. It
provides the legal and political basis for the NCA s
The IGC is responsible for generally overseeing
the work of the NCA and establishing its overall investigative
priorities. It determines the NCA s priorities by authorising
relevant State and Territory Ministers to issue references which
allow the NCA to undertake special investigations utilising its
special powers. The Commonwealth Minister may also issue references
after consulting with the IGC.
As well as the consideration of references, the
IGC monitors the work of the NCA and receives reports from it. The
Committee is also consulted regarding the NCA s Annual Report.
During the year a number of reports on NCA activities, including
those on national task forces, were provided to the Committee. In
addition, at its meetings during the period, the IGC considered a
number of issues of importance to organised crime investigations
such as national consistency of legislation, a national approach to
civil forfeiture of proceeds of crime, the development of uniform
national legislation regarding outlaw motor cycle gangs, and other
law reform matters.(63)
The IGC is established under section 8 of the
NCA Act. It consists of the Commonwealth Minister, and a Minister
from each participating State and Territory nominated by the
Premier or Chief Minister of that jurisdiction. Its functions and
- being consulted by the Commonwealth Minister when he or she
proposes to make a section 13 reference to the NCA.(64)
These are references enabling the Authority to investigate
federally relevant criminal activity using its special coercive
- deciding whether approval should be given for a reference to be
made to the NCA under section 14 when a State Minister or Ministers
wants such a reference to be made.(65) These are
references enabling the Authority to investigate federally relevant
criminal activity that involves offences against State law. Once
again, coercive powers can be used in these investigations.
- considering whether approval should be given for a reference to
be made to the Authority under State law so that the Authority can
investigate relevant criminal activity (other than federally
relevant criminal activity)(66)
- creating additional offices of NCA member when the NCA is
conducting a special investigation. Once such a resolution is made
advice to the Governor-General must be consistent with the
- monitoring the work of the NCA(68)
- requesting and receiving reports from the
- approving (together with the Commonwealth Minister) NCA members
exercising concurrent functions under State
- approving the issuing of Ministerial guidelines to the NCA in
relation to particular cases (71)
- recommending the appointment of persons as hearing officers.
Hearing officers are appointed by the Governor-General but the
appointments must be consistent with a unanimous recommendation by
the Inter-Governmental Committee, and(72)
- receiving an annual report from the NCA. The IGC can comment on
Other IGC functions and powers are contained in
the NCA Act. For instance, the IGC is empowered to consider and
approve requests originating from the NCA for a matter to be
referred to the NCA for investigation.(74) And, a State
law which confers investigative functions on the NCA will not be
effective without a referral from the State Minister, IGC approval
and the consent of the Commonwealth Minister.(75)
Section 53 of the NCA Act provides for the
establishment of a Parliamentary Joint Committee on the National
Crime Authority. Five of its members are appointed by the Senate
and five by the House of Representatives.
The duties of the PJC are set out in section 55
of the NCA Act and include monitoring and reviewing the NCA's
performance, reporting to Parliament about the NCA, commenting on
its annual report, and recommending changes to the NCA s functions,
structure, powers and procedures. The PJC must also be briefed by
the Ombudsman at least once a year about the NCA s involvement in
controlled operations (section 55AA). Additionally, under section
59 of the NCA Act, the PJC can obtain information relating to an
NCA investigation or the general conduct of NCA operations, unless
the information would endanger personal safety, reputation or the
operations of law enforcement agencies. In such cases, the PJC can
refer the request to the Commonwealth Minister [subsections
59(6A)-(6D)]. The PJC can also report on information provided to it
under section 59 [subsection 55(3)].
Section 61 of the NCA Act requires the Authority
to provide an annual report to the IGC, for transmission to
Commonwealth and State Ministers. Subsection 61(2) sets out what
the report must contain including, a description of matters
referred to the NCA for investigation during the year, information
about patterns of criminal activity, recommendations for legal and
policy change, and any prosecutions resulting from NCA
investigations. Subsection 61(6) requires the Minister to table a
copy of the report in Parliament, together with any comments made
by the IGC on the report.
Under the Bill, the Inter-Governmental Committee
is retained and its membership is unchanged, but its functions and
powers are re-written. New section 9 provides that
its functions are to:
- generally monitor the work and oversee the strategic direction
of the ACC and its Board
- receive reports from the Board and transmit them to Governments
represented on the ICG, and
- carry out any other functions conferred by the Act.
At present, if the Commonwealth Minister wishes
to give directions or issue guidelines to the Authority about
particular cases , the IGC must approve [subsections 18(1) and
(2)]. The amendments provide that if the Commonwealth Minister
wishes to issue guidelines or give directions to the ACC Board
about particular ACC operations/investigations , then the IGC must
approve (item 61). It is not clear whether there
is any substantive difference in the expressions, particular cases
and particular ACC operations/investigations .
The amendments relating to the PJC made by the
Bill are consequential on the replacement of the NCA with an ACC
and with changes in statutory functions. Thus, the Parliamentary
Joint Committee on the National Crime Authority will be renamed the
Parliamentary Joint Committee on the Australian Crime
Existing subsection 55(2) of the NCA Act ensures
that the oversight and information gathering powers of the PJC do
not extend to the PJC itself conducting an investigation of a
relevant criminal activity . The Bill extends the ACC s functions
to include conducting criminal intelligence operations. As a
consequence, subsection 55(2) is amended to ensure that the powers
of the PJC do not extend to the PJC itself undertaking an
intelligence operation (item 222).
Consequential changes to the annual reporting
requirements found in section 61 are made by items 293-295
Item 296 repeals paragraph
61(2)(a) which presently provides that the annual report must
contain a description of the matters referred to the Authority for
investigation. The replacement subsection reproduces the
requirement that the annual report describe special investigations
conducted during the year but does not impose similar requirements
in relation to special intelligence operations.
Special investigations are those
investigations relating to federally relevant criminal activity
that can be carried out under the NCA Act using coercive powers
akin to those exercised by a royal commission. These powers include
the power to summon witnesses to NCA hearings and require them to
give sworn answers and produce documents.
As stated earlier, in addition to special
investigations, the Bill will enable the ACC to carry out
special operations. A special operation is an
intelligence operation during which the ACC can exercise
special (coercive) powers. An intelligence operation is
defined as the collection, correlation, analysis or dissemination
of criminal information and intelligence relating to federally
relevant criminal activity (item 15).
As stated earlier, the NCA Act enables special
investigations to be undertaken by the NCA if either the
Commonwealth Minister has referred the matter, following
consultation with the IGC or, where a State Minister/s wants a
special investigation to be undertaken, with the approval of the
ICC. There is no reference to special operations in the NCA
The NCA Act provides that decisions of the
Inter-Governmental Committee can be made either by holding a
meeting or passing a resolution (without a meeting being held). In
general questions are decided by a majority of
votes.(76) However, where the Inter-Governmental
Committee approves a reference for a special investigation by a
State Minister or Ministers, the representative of the State/s
concerned must also vote in favour of the
Before approving a reference to the NCA, the IGC
must consider whether ordinary police methods of investigation are
likely to be effective.(78)
Notices referring matters to the NCA for special
- describe the general nature of the relevant circumstances or
- state, at least in general terms, that the relevant offence/s
are offences against Commonwealth, State or Territory law, and
- set out the purpose of the investigation [subsections 13(2) and
The Bill empowers the ACC Board to issue a
written determination that an operation or investigation will be a
special operation or investigation (enabling coercive powers to be
used). Before approving a special operation, the Board must
consider whether methods of collecting the criminal information and
intelligence that do not involve the use of powers under the Act
have been effective [new subsection 7C(2)].
Similarly, before issuing a written determination authorising a
special investigation the Board must consider whether ordinary
police methods of investigation are likely to be effective
[new subsection 7C(3)].
In addition to being in writing a determination
made under new subsections 7C(2) or (3) must:
- describe the general nature of the circumstances constituting
the federally relevant criminal activity , and
- state at least in general terms that the serious and organised
crime involved involve offences against Commonwealth, State or
Territory law, and
- set out the purpose of the operation or investigation
[new subsection 7C(4)].
Further, a decision must be taken to make such a
determination and can be made in one of three ways. First, under
new subsections 7C(2) or (3), an ACC meeting can
vote in favour of making the determination [new subsection
7G(4)]. At least 9 of the Board members, including at
least 2 eligible Commonwealth Board members (excluding the CEO who
cannot vote at Board meetings(79)) must vote in
Second, voting can occur without a Board meeting
taking place if the question is referred to all Board members. In
this case Board members can resolve by phone or some other means of
communication that a special operation or investigation should be
established (new section 7J). Once again, at least
9 Board members, including at least 2 eligible Commonwealth Board
members (excluding the CEO(80)) must support the
There is a third way in which approval can be
given for a special investigation or operation if the Board
unanimously confers this function on a committee composed of at
least 2 eligible Commonwealth Board members [new
subsections 7K(1) & (4)]. In such a case, any decision
by the committee that an investigation or operation is a special
investigation/operation must be a unanimous one [new
At present, section 24A of the NCA Act gives the
NCA the power to hold a hearing when conducting a special
investigation. Hearings can be either:
- conducted by a member (including the Chair) of the NCA (section
- conducted by a hearing officer, when directed to hold a hearing
by the NCA Chair under paragraph 24A(b) (section 25A).
In general terms, the same procedures apply to
hearings irrespective of whether they are conducted by members
(under section 25) or by hearing officers (under section 25A).
Under the new arrangements proposed for the ACC,
sections 24A, 25 and 25A are repealed (items
118-120). Instead of hearings conducted by NCA members or
hearing officers there will be examinations conducted by examiners.
New section 24A empowers examiners to conduct
examinations for the purposes of a special ACC operation or
investigation. New section 25A sets out procedures
for the conduct of examinations.
For the most part, new section
25A is modelled on existing section 25A. For instance,
examinations are held in private, a person giving evidence at an
examination may be legally represented, an examiner may direct that
evidence or documents obtained are not disclosed and, if the
interests of justice require it, evidence obtained from a person
can be passed on to a court conducting a criminal trial of that
For the purposes of a hearing before the
Authority or a hearing officer:
- a member can summon a person to give evidence and produce
- sworn evidence may be required(83)
- a member can, by notice, require a person to produce a
document.(84) Failure to comply renders the person
liable to a maximum fine of $2,000 or 5 years
- a member can prohibit disclosure of the summons or notice, with
disclosure making the person liable to a maximum fine of $2,000 or
imprisonment for one year(86)
- a witness required to answer questions or produce documents can
make use of a limited privilege against self-incrimination. That
apart, failure to attend a hearing when summoned or answer
questions or produce documents makes the person liable to a maximum
fine of $20,000 or imprisonment for 5 years.(87)
- an application can be made by or on behalf of the NCA to a
superior court judge for an arrest warrant if it is believed, for
instance, that a person issued with a summons has absconded or is
likely to abscond(88)
- it is an offence to give false or misleading evidence at a
hearing maximum penalty, imprisonment for 5 years or a fine of
- it is an offence to hinder or obstruct a hearing maximum
penalty, imprisonment for 5 years or a fine of
For the most part the amendments to Part II,
Division 2 (Hearings) effect minor, consequential changes to the
NCA statutory scheme. Additionally, some amendments replace
dollar-amounts for fines with their equivalent in penalty units.
These amendments will enable penalties to be increased in line with
any changes to the penalty unit regime in the Crimes Act
However, other amendments proposed by the Bill
are more substantial. Thus, under the NCA Act power to summon a
person to attend a hearing, give evidence or produce documents lies
with a member of the NCA not with a hearing officer [see
subsections 28(1) and 29(1)]. Under the amendments, these powers
would be exercised by an examiner appointed under new
section 46B (see items 126 & 139).
Similarly, the power to place non-disclosure conditions on a
summons currently lies with an NCA member (section 29A). The
amendments give this power to an examiner (see items 146,
147, 149 & 151). Lastly, the NCA Act enables an
application for an arrest warrant to be made by or on behalf of the
Authority to a superior court judge [subsection 31(1)]. The
amendments provide that the application is made by an examiner (see
Sections 19-24 of the NCA Act confer other
powers on the Authority, its members and certain of its staff. For
- a member may request, from a Commonwealth agency, information
that is relevant to a general or special investigation being
conducted by the Authority [subsection 19A(1)]
- a member may require a Commonwealth agency to provide
information that is relevant to a general or special investigation
being conducted by the Authority [subsection 20(1)]
- a member or NCA staff member who is police officer can obtain a
warrant in order to search for things relevant to a special
investigation [subsection 22(1)], and
- a member can obtain an order from a Federal Court judge that a
person s passport be delivered to the Authority if, for example,
there are reasonable grounds for believing that a person who has
been summoned to appear before the Authority and has relevant
evidence intends to leave Australia (section 24).
The powers listed above are retained under the
amendments proposed by the Bill. Where presently exercisable by a
member they are now exercisable by an examiner or by an ACC staffer
who is also a police officer [in the case of powers under
subsection 22(1)]. The provisions appear to apply to special and
general operations in the same way as they now apply to special and
general investigations. (see, for instance, items 66-72,
74-75, 77-80, 82, 87, 89, 98, 99, 103-116 of Schedule
Administrative provisions found in Division 3 of
Part II of the NCA Act cover the appointment, terms and conditions
of the Chair of the Authority, members, staff and consultants.
The Chair, members and hearing officers can be
re-appointed to their positions but the total period for which they
can hold office is no more than 6 years (section 37).
Direct or indirect conflicts of interest must be
disclosed as soon as possible by members and hearing officers and
mean that they cannot take part in relevant decision-making by the
Authority (in the case of members) or in relevant hearings (in the
case of hearing officers) (section 42).
The appointment of a member or hearing officer
can be terminated by the Governor-General for misbehaviour,
physical or mental incapacity. An appointment must be terminated if
the member becomes bankrupt, if he or she engages in outside
employment without Ministerial approval, is absent from duty for
more than a specified amount of time or fails to disclose a
conflict of interest [subsection 43(2)]. The appointment of a
hearing officer must be terminated if he or she becomes bankrupt or
fails to disclose a conflict of interest [subsection 43(2A)].
In addition to NCA staff who are engaged under
the Public Service Act 1999 and consultants, staff can be
seconded to the NCA from the AFP, Commonwealth agencies and State
and Territory police services, and counsel assisting can be
appointed (sections 47, 48, 49, 50 & 58).
The ACC s CEO will be appointed by the
Governor-General after the Commonwealth Minister has invited the
ACC Board to make nominations and has consulted with the IGC. The
CEO cannot hold office for more than 5 years. There is no provision
for re-appointment. (new section 37).
The Bill s disclosure of interests provisions
for the CEO and examiners are slightly different to those in the
NCA Act. For instance, in relation to the CEO, new section
41 provides that:
The CEO must give written notice to the
Minister, and to the Chair of the Board, of all interests,
pecuniary or otherwise, that the CEO has or acquires and that could
conflict with the proper performance of the CEO s duties.
The grounds on which the Governor-General can
terminate the CEO s appointment are found in new section
44 and are similar to those in existing section 43
relating to NCA members, with the addition that unsatisfactory
performance is also a ground of termination [new subsection
Examiners will be appointed by the
Governor-General after the Commonwealth Minister has consulted with
the IGC [new subsections 46B(1) & (2)]. A
person cannot be appointed as an examiner unless they are a legal
practitioner of at least 5 years standing. They cannot be appointed
for any more than 5 years in total but can be appointed on a
part-time or a full-time basis [new subsections
Provisions relating to disclosure of interests
and outside employment mirror those applying to the CEO
(new sections 46F and 46G). Termination provisions
are also similar except that there is no provision for the
Governor-General to terminate an examiner s appointment on the
grounds of unsatisfactory performance (new section
Consequential changes are made to staffing and
related provisions by items 199-210 &
Items 225-249 amend sections
55A-55C of the NCA Act. Sections 55A-55C were inserted into the NCA
Act by the National Crime Authority Amendment Act 2000 in
response to the High Court s decision in R v.
Hughes.(92) That decision raised questions about
whether a body like the NCA could perform functions or exercise
powers under State law especially when those powers or functions
are coupled with a duty or are coercive in nature.
The amendments provide that State laws can
confer certain duties, powers and functions on the ACC, the CEO,
examiners, ACC staff members, Federal Court Judges and Federal
Magistrates. At present, these duties, powers and functions can be
conferred on the Authority, members and Federal Court judges. The
amendments extend the duties, powers and functions that can be
conferred to undertaking intelligence operations relating to
serious organised crime that involves offences against State
The NCA Act currently provides that a State law
will not be able to effectively confer an investigative function on
the Authority unless the State Minister refers a matter to the
Authority, the IGC approves and the Commonwealth Minister consents
[subsection 55A(3)]. Under new subsection 55A(3)
the ACC cannot, under a State law, conduct an investigation or
undertake an intelligence operation unless the ACC Board has
consented. Further, the sorts of duties, functions and powers that
are conferred by State law extend not only to the same kinds of
duties, powers and functions that are conferred by the ACC Act but
to duties, powers and functions of a kind specified in regulations
[new subparagraphs 55A(2)(b)(ii) & 55A(4)(b)(ii) &
The NCA is referred to in or given powers by a
raft of other Commonwealth statutes. Schedule 2 of the Bill makes
amendments to 21 Commonwealth statutes.(95) Some of
these amendments are described below.
Under the Crimes Act 1914 (the Crimes
Act), a member of the NCA can authorise a controlled operation
involving the investigation of a serious Commonwealth offence,
where the investigation falls within the NCA s purview [see, for
example, paragraph 15J(2)(c) & subsection 15J(4) of the Crimes
Act]. A controlled operation is an operation that may involve an
otherwise unlawful activity, conducted by law enforcement officers,
to obtain evidence of serious offences against Commonwealth
Items 5-23 of Schedule 2 of the
Bill, amend the relevant controlled operations provisions of the
Crimes Act. As a result, the CEO of the ACC and authorised SES
employees of the ACC will become authorising officers for
controlled operations purposes (items 13 & 14
of Schedule 2).
The Crimes Act requires the Chair of the NCA to
give the Minister and the Ombudsman a quarterly report on decisions
to grant or refuse controlled operations certificates [subsection
15R(2) & section 15UA]. This function will be performed by the
CEO of the ACC (items 20 & 24-25).
An annual report must also be provided to
Parliament by the Commonwealth Minister about controlled
operations. However, if on the basis of information provided by the
NCA Chair, the Minister considers that publication of particular
information is likely to endanger a person s safety or compromise
an investigation or prosecution, then the Minister must exclude
that information from the annual report (section 15T). The Bill
replaces the reference to the NCA Chair with a reference to the CEO
of the ACC (item 22).
The Crimes Act enables the NCA to authorise and
use assumed identities. The ACC will exercise this power
(item 28 of Schedule 2).
The Customs Act 1901 (the Customs Act)
enables an NCA member or staff member who is also a police officer
to apply for a listening device warrant in order to pursue
narcotics inquiries (section 219B).
The Bill amends the Customs Act so that the CEO
of the ACC, an examiner or a staff member who is also a police
officer can apply for a listening device warrant (item 38
of Schedule 2).
Section 16 of the Financial Transactions
Reports Act 1988 (FTR Act) enables a cash
dealer(97) to report information to the Director of
AUSTRAC(98) about transactions that might be relevant to
the investigation or prosecution of a Commonwealth offence or to
the enforcement of proceeds of crime legislation. Such information
(FTR information) can also be communicated to a member or staff
member of the NCA.
Section 27 of the FTR Act enables the NCA to
have access to FTR information. Where the NCA obtains such
information it can be communicated in an anonymised form to the IGC
and the PJC and may be divulged in the course of a hearing or to a
law enforcement agency.
Items 41-76 of Schedule 2 amend
the FTR Act. The amendments enable the CEO, an examiner or an ACC
staff member to obtain FTR information. The amendments also provide
that the CEO can relay the information, in an anonymised form, to
the Chair of the ACC Board. The Chair may then communicate it to
the IGC and the PJC. The CEO can also divulge the information to an
examiner who may divulge it in the course of an examination. An
examiner or a staff member can pass the information to a law
The amendments also delete paragraphs 27(15)(c)
and (d) of the NCA Act which provide that information can be
(c) a barrister or solicitor appointed by the
Attorney-General to assist the NCA;
(d) a person assisting a barrister or solicitor
so appointed. (item 74).
The Explanatory Memorandum does not appear to
comment on these deletions.
Items 78-83 preserve the review
of the 2001 amendments to the NCA Act which is mandated by
National Crime Authority Legislation Amendment Act 2001.
The review is to be carried out by a person appointed by the
Commonwealth Minister who will examine the operation of provisions
that remove the defence of reasonable excuse, abolish derivative
use immunity and increase penalties for
The Taxation Administration Act 1953
(TAA) enables the Commissioner of Taxation to give the NCA
information for the purposes of a tax-related investigation. The
Bill enables the information to be given to the CEO of the ACC
(items 129 & 130).
Section 3D of the TAA provides that a member or
acting member of the NCA can obtain a judicial order requiring the
Taxation Commissioner to supply him or her with information that is
relevant to a special investigation being conducted by the
Authority. Amendments proposed by the Bill (items
132-146) will mean that the applicant for the order and
the recipient of the information will be the CEO. The Bill provides
that information may be required for special operations purposes as
well as for special investigations.
Under existing subsections 3D(11)-(22) of the
TAA information obtained from the Taxation Commissioner can be
disclosed and used in certain ways. The Bill amends the relevant
provisions so that, for instance, information obtained by the CEO
can be disclosed to an examiner conducting an examination under
Division 2 of Part II, the ACC and, by the Chair of the ACC Board,
to the ICG.
Under the Telecommunications (Interception)
Act 1979 (TI Act) a member of the NCA or a staff member who is
also a police officer can apply for and obtain an interception
warrant in order to investigate certain types of offences.
The Bill amends the TI Act so that the CEO, an
examiner or an ACC staff member who is also a police officer will
be able to apply for and obtain an interception warrant
Schedule 2 also removes
references to the ABCI in several statutes (for example,
items 39, 40, 43 & 55).
Items 308-326 of Schedule 1 are
transitional amendments. For instance, they provide that when the
legislation commences, an NCA hearing officer will be taken to be
appointed as an examiner. Transitional provisions will also apply
to NCA consultants, NCA legal practitioners. The amendments will
also continue references made to the NCA, duties, powers and
functions conferred by State laws on the NCA, secrecy obligations
and the PJC.
A Proceeds of Crime Act 2002 has
recently been given Royal Assent. That Act proposes a number of
amendments to the NCA Act. Part 1 of Schedule 3
will amend the Proceeds of Crime Act 2002 if section 3 of
that Act commences before 1 January 2003. However, if section 3 of
the Proceeds of Crime Act 2002 commences on or after 1
January 2003, then the amendments in Part 2 of Schedule
3 will apply.
The Bill proposes some significant changes to
the governance, oversight and operations of the NCA. Among the
debating points that might be raised about the amendments are:
- will the size of the proposed ACC Board (13 voting
members(100)) mean that its powers and functions,
including the endorsement of special operations and investigations,
are likely to be delegated to committees? In this regard, will the
requirement that a committee consist of at least two eligible
Commonwealth Board members lead to more efficient decision-making
or will it concentrate power, including the power to approve the
use of special coercive powers, in the hands of too few people?
Does the fact that a Board decision to delegate its powers to a
committee must be a unanimous one ensure that a committee will be
composed of a sufficient number of members with a range of
experience and interests?
- what are the implications of making the Director-General of
Security an ACC Board member?
- what are the implications of and need for provisions enabling
the ACC to conduct special operations involving the collection of
criminal intelligence using coercive powers?
- what are the implications of the ACC being directed and its
special operations/investigations being authorised, not by an IGC
composed of Commonwealth, State and Territory Ministers as is
currently the case for the NCA, but by a Board chaired by the AFP
Commissioner and including 8 other police commissioners? Will the
ACC effectively become an arm of police services with coercive
powers not generally available to police?
- is it appropriate to give examiners the powers currently
exercised by members of the Authority such as the power to issue
summons and notices to produce documents?
- are accountability and reporting mechanisms adequate? For
instance, under the NCA Act, the Authority must provide the
Commonwealth Minister with information about the NCA s operations
relating to a special investigation reference made by the
Commonwealth Minister.(101) However, under the
amendments proposed in the Bill if the Commonwealth Minister
requests specific information about the ACC s activities, the Chair
of the Board must comply unless he or she considers that the
disclosure of information to the public could prejudice safety,
reputation or the operations of law enforcement
- The functions of the ABCI and OSCA will be subsumed by the ACC.
- 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
- National Crime Authority, Annual Report 1984-85, AGPS,
- See: Report of the Review of Commonwealth Law Enforcement
- Senator Gareth Evans, Second Reading Speech, National Crime
Authority Bill 1983, Senate Hansard, 10 November 1983,
- Senate Standing Committee on Constitutional and Legal Affairs,
Report. National Crime Authority Bill 1983, AGPS,
Canberra, 1984, p. 35.
- See, for example, the Williams Royal Commission, the Costigan
Royal Commission and the Stewart Royal Commission quoted in the
Green Paper, A National Crimes Commission?, June 1983. The
issue of whether there should be a separate body like the NCA was
also considered by the Report of the Review of Commonwealth Law
Enforcement Arrangements, February 1994. The issue of co-location
was discussed briefly in Senate Legal and Constitutional References
Committee, Order in the Law. The Report of the Inquiry into the
Management Arrangements and Adequacy of Funding of the Australian
Federal Police and the National Crime Authority, August 2001.
(accessed 15 October 2002).
(accessed 15 October 2002).
(accessed 15 October 2002).
- National Crime Authority, Transition to the Australian Crime
Commission , http://www.nca.gov.au and click on
What s New (accessed 15 October 2002).
- Australasian Police Ministers Council, National Common
Police Services Annual Report 2000-2001, p. 56.
- National Crime Authority, Transition to the Australian Crime
- See: for example, Editorial , Sydney Morning Herald, 2
November 2001; Crime fighter s mystery death , The Age
[Melbourne], 27 April 2002; Crime reform doesn t pay , The
Courier-Mail, 20 July 2002; Staff exodus puts crime body at
risk , Sunday Age, 21 July 2002; States revive crime
fighting plan , The Australian, 29 July 2002.
- See: for example, "Disaster recipe" for crime fighting body ,
Canberra Times, 19 July 2001.
- National Crime Authority, Transition to the Australian Crime
Commission , 2002.
- PM s bid to break law agency , The Weekend Australian,
9 March 2002.
- Minister for Justice and Customs, NCA/AFP merger ruled out ,
Media Release, 10 March 2002.
- Commonwealth and States and Territories Agreement on Terrorism
and Transnational Crime, Summit Communique, 5 April 2002. See also
Minister for Justice and Customs, Ground-breaking Leaders Summit
takes fight to criminal elements , Media Release, 6 April
- Successor to NCA will fail, say police , Sydney Morning
Herald, 14 June 2002; NCA in warning to police ministers ,
Sunday Age, 14 July 2002; States to fight Fed strategy on
crime , The Courier-Mail, 16 July 2002; Police minister s
block nation s new crime fighter , Sydney Morning Herald,
18 July 2002, Police minsters reject crime-fighting model ,
Canberra Times, 18 July 2002; Crime reform doesn t pay ,
The Courier-Mail, 20 July 2002. See also, Minister for
Justice and Customs, ACC on track , Media Release, 9 July
- States shape new crime body , The Australian, 11 June
2002; Top lawyer hits crime body rush , The Courier-Mail,
7 June 2002; States to fight Fed strategy on crime , The
Courier-Mail, 16 July 2002.
- States agree to revised crime fighting body , The Canberra
Times, 10 August 2002.
- Senator the Hon. Christopher Ellison, Agreement reached on ACC
, Media Release, 9 August 2002.
- Chief ad "too soon" , The Australian, 30 September
- National Crime Authority, Transition to the Australian Crime
- See House of Representatives, Hansard, 26 September
2002, p. 7330.
- Section 55.
- The expression, special investigation , is defined as an
investigation that the Authority is conducting in the performance
of its special functions [subsection 4(1), NCA Act]. Special
functions are conducting investigations, that can involve the use
of coercive powers, when matters are referred at Ministerial level
- The concept of federally relevant criminal activity was
introduced into the NCA Act by the National Crime Authority
Amendment Act 2000, itself a product of the High Court s
decision in R v. Hughes (2000) 171 ALR 155. The decision
in Hughes centred on the extent to which Commonwealth bodies or
officers can exercise powers in relation to State matters.
Federally relevant criminal activity will occur where there is a
Commonwealth or Territory offence or where a State offence has a
federal aspect .
- Section 11.
- Subsection 59(1).
- See, for instance, subsections 59(1A) & (2).
- Subsections 59(3)-(5).
- Subsections 59(6A)-(6D).
- Section 61.
- It does not include offences which are punishable by less than
3 years imprisonment [paragraph (g) of the definition of relevant
- Item 15 of Schedule 1.
- Special operation is defined by item 26 of Schedule
- Special investigation is defined by item 26 of Schedule
- Explanatory Memorandum, p. 7.
- Subsection 7(2).
- Subsection 7(9).
- Subsection 7(5).
- Subsection 7(7). The definition of State in section 4 of the
NCA Act includes the Australian Capital Territory and the Northern
- Subsection 7(8).
- Member is defined in subsection 4(1) as member of the Authority
and includes the Chair .
- Subsection 59(7).
- Subsections 59(11) & (12).
- Subsections 59(7) & (8) and subsection 59A(1).
- Subsection 59A(2).
- Subsection 26(2) and subsection 59A(3).
- National Crime Authority, Annual Report 2000-2001.
- Attorney-General & Minister for Justice and Customs, Acting
Chair of the National Crime Authority , Joint News
Release, 17 September 2002.
- Attorney-General & Minister for Justice and Customs, Acting
member of the National Crime Authority , Joint News
Release, 28 August 2002.
- National Crime Authority, Annual Report 2000-2001.
- Paragraph 59(1)(b).
- See new subsections 59(1) & (2) inserted
by item 253 of Schedule 1.
- Explanatory Memorandum, p.30.
- Paragraph 34AB(b), Acts Interpretation Act 1901
- National Crime Authority, Annual Report 2000-2001, pp.
- Paragraph 9(1)(b).
- Paragraph 9(1)(c).
- Section 9(1)(ca).
- Subsections 7(8AA) and (8AB).
- Paragraph 9(1)(e).
- Paragraph 9(1)(f); subsections 59(1A)-(5).
- Section 15.
- Subsection 18(2).
- Subsection 25A(2).
- Section 61(1). The Annual Report is also provided to the
Commonwealth Minister and the relevant Minister from each
participating State and Territory.
- Section 10.
- Subsection 55A(3).
- Paragraph 8(6)(d).
- Subsection 9(3).
- Subsection 9(2).
- New subsection 7G(3).
- New subparagraph 7J(1)(b)(ii).
- Once again the CEO cannot vote if he or she is a member of a
committee established by the Board.
- Section 28.
- Subsection 28(5).
- Subsection 29(1). A notice can also be issued relating to a
special investigation irrespective of whether a hearing is being
held [subsection 29(2)]
- Subsections 29(3) & (3A).
- Subsections 29A(1) & 29B(1).
- Section 30.
- Section 31.
- Section 33.
- Section 35.
- Section 4AA of the Crimes Act presently sets the value of a
penalty unit at $110.
- (2000) 171 ALR 155.
- Section 55C of the NCA Act states that no Commonwealth law
imposes an obligation on the Authority or a member to perform
duties, functions or exercise powers that does not relate to a
federally relevant criminal activity or that would be
- See also new subparagraphs 55A(5B)(b)(ii) &
55A(5C)(b)(ii) relating to Federal Judges and Magistrates.
- This number includes the National Crime Authority
Legislation Amendment Act 2001.
- Section 15H, Crimes Act 1914 (Cwlth).
- Cash dealers include financial institutions, currency dealers
and insurers. See subsection 3(1).
- The Australian Transaction Reports and Analysis Centre.
- Section 4.
- An additional member, the CEO of the ACC, is a non-voting
- Paragraph 59(1)(b).
- See: new subsections 59(1) & (2) inserted
by item 253 of Schedule 1.
21 October 2002
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