Bills Digest No. 69 2003-04
Australian Crime Commission Amendment Bill
2003
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Australian Crime Commission
Amendment Bill 2003
Date Introduced:
4 December 2003
House: Senate
Portfolio: Attorney-General
Commencement:
All but one of the
provisions commence on the day on which the Act receives Royal
Assent. Item 17 of Schedule 1 operates retrospectively from 1
January 2003.
To make some minor amendments to the
Australian Crime Commission Act 2002 ( the ACC Act ) to
enable the Australian Crime Commission ( the ACC ) to deal better
with organised crime across State/Territory boundaries,
particularly with offences committed under State
laws.(1) The Bill seeks to address transitional issues
which have arisen since the ACC was established on 1 January 2003.
It also seeks to make some minor amendments to the
Administrative Decisions (Judicial Review) Act 1977 ( the
ADJR Act ) and the Australian Postal Corporation Act 1989
( the APC Act ).
Background
The establishment of the ACC was a key
initiative arising from the Commonwealth Government State Summit on
Transnational Crime and Terrorism held in Canberra in April 2002
which resulted in agreement on a series of federal arrangements to
support a new national framework for dealing with terrorism and
transnational crime .(2) The ACC replaced the National
Crime Authority ( the NCA ), the Australian Bureau of Criminal
Intelligence and the Office of Strategic Crime Assessments. It is
empowered to conduct criminal intelligence operations and to
investigate federally relevant criminal activity and serious
offences under State laws. A comprehensive background outlining the
reasons for the establishment of the ACC, and the former roles of
the bodies which merged to comprise it, is set out in the Bills
Digest for the Australian Crime Commission Establishment
Act 2002 (Bills Digest No. 54 of 2002-2003).
According to its website, the ACC was
established to better position Australia to meet the threats posed
by nationally significant crime . Recent examples reported in the
national press of the ACC s involvement in addressing serious and
organised criminal activity include measures to combat identity
fraud(3) and the seizure of nearly 800 key-ring-sized
pistols in Sydney.(4) There have also been calls for the
ACC to use its coercive powers to halt the underworld carnage in
Melbourne.(5)
According to the Explanatory Memorandum for
the Bill, the proposed amendments are necessary to ensure the
proper functioning of the ACC under the cooperative legislative
scheme established by the ACC Act. That Act provides for the
conferral of functions, duties and powers on the ACC under State
legislation to enable it to investigate, and conduct intelligence
operations in relation to, serious organised crimes that are
offences under State legislation . The Bill is designed to overcome
shortcomings in the practical operation of the ACC (which
shortcomings became obvious after the commencement of the ACC
Act).(6)
The Bill also seeks to amend the ADJR Act to
exempt a person who makes certain decisions under the ACC Act from
providing a statement of reasons for the decision (as is ordinarily
required by section 13 of the ADJR Act).
The Bill also seeks to amend the APC Act to
permit a current or former employee of Australia Post to use or
disclose information or a document (acquired or received in the
course of his or her employment) to the ACC under State laws.
As noted in the Background section of this
Digest, the Government seeks to overcome deficiencies in the
legislative framework under which the ACC operates. The amendments
(and the legislation affecting the ACC generally) are part of the
Government s stance on law and order, and its national security
agenda.
There has been no
press commentary or reports on the Bill.
The main objectives of the Bill seem largely
uncontroversial. While it might be said that the powers of the ACC
impinge on civil liberties, the amendments largely seem only to
give the ACC powers which it already had, or was intended to have,
either under State law or in its former guise as the NCA etc.
There is no reference in the media or on the
websites of the ALP, Australian Democrats or the Greens to the
policy position or commitments of these parties to the Bill. On
8 January 2003, Mr Daryl Melham MP (then Shadow Minister for
Justice and Customs) issued a news statement about the role of the
ACC in tackling firearms, saying: The Government knows that illegal
guns are a real problem But while guns continue to flood across our
borders, [the ACC] has barely got off the starting blocks because
the Howard Government refuses to fund it properly
.(7)
Clause 2 provides that each
provision of the Act, except Item 17 of Schedule 1
to the Bill, commences on the day on which the Act receives Royal
Assent. Item 17 of Schedule 1 (which empowers the ACC to do
anything which the NCA was empowered to do under the NCA Act)
operates retrospectively from 1 January 2003.
Schedule 1 contains proposed
amendments to the ACC Act.
Item 1 of Schedule 1 repeals
section 15 of the ACC Act. Section 15 currently provides that
examiners may exercise functions and powers under State laws
concurrently with their responsibilities under the ACC Act,
provided the Inter-Governmental Committee consents and the Minister
[for Justice and Customs] is satisfied that those functions or
powers may conveniently be performed or exercised in conjunction
with the performance or exercise by the ACC of its functions or
powers under the ACC Act. An examiner is appointed by the
Governor-General and, under subsection 46B(3), must be enrolled as
a legal practitioner for at least 5 years.
Section 15 was probably overlooked when the
ACC Act was drafted. It probably ought to have been repealed when
section 55A ( Operation of State laws investigation of offences
against State laws ) was amended by the Australian Crime
Commission Establishment Act 2002 and is now effectively
redundant. Section 15 was part of the earlier NCA regime in which
the Inter-Governmental Committee had extensive powers of the sort
currently exercised by the Board of the ACC. The Inter-Governmental
Committee now only has a general oversight role, rather than
authorising specific operations as it had done in the past. The
repeal of section 15 may avoid inconsistencies in the performance
of State functions and powers under sections 15 and 55A.
If section 15 is repealed, then
subsection 55A(11) of the ACC Act also needs to be
repealed. That provision states: This section does not limit
section 15 . It is therefore meaningless if section 15 is
repealed.
Item 2 of Schedule 1 amends
subsection 43(1) of the ACC Act to provide that in addition to the
current power of the Minister to suspend the Chief Executive
Officer ( the CEO ) of the ACC for unsatisfactory performance, the
Minister will also be empowered to suspend the CEO while
allegations of misbehaviour against the CEO are investigated . The
Minister must provide a written notice of the suspension. Prior to
any proposed suspension, the Minister must seek and consider advice
from the Board of the ACC: subsection 43(1A).
Items 3 to 5 of Schedule 1
amend section 51 of the ACC Act. Section 51 is the secrecy
provision of the ACC Act. It prohibits the making of records and
disclosure of information except for the purposes of [the ACC Act]
or otherwise in connection with the performance of [duties under
the ACC Act] . Item 3 of the Bill seeks to extend
this exception to include activities done by specified persons (eg
the CEO of the ACC or an examiner) under a relevant Act or
otherwise in connection with the performance of his or her duties
under a relevant Act . Likewise, paragraph 51(3)(a) currently
permits certain persons to produce documents to a
court(8) or to divulge information to a court where
production or divulgence is necessary to give effect to provisions
of this Act . Item 4 of the Bill seeks to extend
this permission to cover production or divulgence of information
where it is necessary to give effect to a relevant Act .
Item 5 inserts into subsection 51(4) a
definition of relevant Act . That term means the ACC Act, or a
State law under which the ACC performs a duty or function, or
exercises a power, in accordance with section 55A of the ACC
Act.
Items 6 to 12 of Schedule 1
amend section 55A of the ACC Act. As mentioned above, section 55A
gives legislative consent to the conferral on the ACC, its Board,
examiners, Federal Court judges and Federal Magistrates etc certain
duties, function and powers under State laws . Items 6 to
12 seek to extend the conferral of those duties, functions
and powers to include the Inter-Governmental Committee and a member
of the Board . The Inter-Governmental Committee is established by
section 8 of the ACC Act and consists of the Commonwealth Minister
and, in the case of each participating State, a Minister of the
Crown of each State nominated by the State Premier. The proposed
amendments seem to be a logical enumeration of the persons and
bodies comprising or representing the ACC not already mentioned in
section 55A.
Likewise, Items 13 to 15 of
Schedule 1 amend section 55B of the ACC Act to add the
Inter-Governmental Committee and a member of the Board to the
persons and bodies comprising or representing the ACC already
mentioned in that provision. Section 55B provides that where the
ACC etc is investigating a matter relating to federally relevant
criminal activity, or is undertaking an intelligence operation ,
and the ACC has a choice between exercising powers conferred by the
ACC Act or any other Commonwealth Act and those conferred by State
laws, the ACC is not required to favour exercising powers under
Commonwealth law.
Further, Item 16 amends
paragraph 55C(1)(b) of the ACC Act to extend the operation of that
provision to the Inter-Governmental Committee and a member of the
Board . Section 55C provides that the ACC etc is not obliged to
perform duties where the criminal activity under investigation is
not a federally relevant criminal activity or the imposition of the
obligation would contravene any constitutional doctrine.
At face value, Item 17 of
Schedule 1 would appear to be the most contentious of all the
proposed amendments, because it is intended to operate
retrospectively. However, its purpose is to insert a new
section 55D into the ACC Act to provide further transitional
arrangements for the transfer of power and operations from the NCA
to the ACC. This provision is deemed to have commenced on 1 January
2003 (when the ACC was established). It invokes the operation of
section 25B of the Acts Interpretation Act 1901 (which
deals with the alteration of names and constitutions) to provide
that where the NCA Act empowered the NCA to do a thing or deal with
a matter, and there is a corresponding provision in the ACC Act for
the ACC to do such a thing etc, then the NCA may do the thing under
the ACC Act. In other words, section 25B of the Acts
Interpretation Act operates to provide that the NCA continues
in existence under the new name of the ACC so that its identity is
not affected : paragraph 25B(1)(a). Subsection 25B(2) operates
to provide that the alteration of the NCA s constitution does not
affect any legal or other proceedings brought by or against the NCA
before its name change. Also, the alteration does not affect any
investigation or inquiry brought, or proposed to be brought, by any
tribunal, authority or person (eg the Ombudsman) into the NCA.
According to the Explanatory Memorandum,
Item 17 also honours an undertaking made to the
Senate Standing Committee on Regulations and Ordinances [( the
Senate Committee )] by the Minister for Justice and Customs, to
address through amendment to the ACC Act, the transition to the ACC
of telecommunications warrants issued to the NCA .(9)
While this issue is the subject of the Australian Crime
Commission Establishment (Transitional Provisions) Regulations
2003, the Senate Committee was uncomfortable that such a
provision, with retrospective operation, was contained in delegated
legislation.(10)
Schedule 2 to the Bill amends
the ADJR Act and the APC Act.
Item 1 of Schedule 2 to the
Bill amends Schedule 2 to the ADJR Act. That schedule sets out the
classes of decisions that are not decisions to which section 13 of
the ADJR Act applies. Section 13 provides that where a person is
aggrieved by a decision made under an enactment, he or she may in
certain circumstances request that the decision-maker provide a
written statement of reasons for the decision. Item
1 seeks to add to the schedule a new class ( (ea) )
comprising certain decisions made under the ACC Act not already
covered by the exemption applying to decisions relating to the
administration of criminal justice (enumerated in paragraph (e) of
Schedule 2 to the ADJR Act). The amendment is drafted in similar
form to other section 13 exemptions.
Item 2 of Schedule 2 amends
section 90J of the APC Act. Section 90J currently sets out the
circumstances when a current employee of Australia Post
may use or disclose information or a document acquired or received
by the person in the course of his or her employment. These
circumstances include disclosure under a Commonwealth law (such as
the ACC Act) and disclosure to authorised ASIO officers.
Item 2 seeks to add proposed subsection
90J(6A) to the APC Act to provide that the employee may
disclose the information or document as required under State law if
the ACC is exercising a function or power under that law in
accordance with section 55A of the ACC Act (see above).
Likewise, Item 3 of Schedule
2 amends section 90LC of the APC Act. Section 90LC currently sets
out the circumstances when a former employee of Australia
Post may use or disclose information or a document. Item
3 seeks to add subsection 90LC(6) to the APC Act, which
provision is in the same terms as proposed subsection
90J(6A).
This Bill does
not seem to be controversial or to raise issues of contention. Its
purpose is to overcome practical deficiencies in the operation of
the ACC highlighted since the passage of the ACC Act.
Endnotes
-
The term State is defined in section 4 of the ACC Act to include
the Australian Capital Territory and the Northern Territory.
-
See
http://www.pmc.gov.au/ar/2001-02/pdf/pmc_annual_report2001-02.pdf
(p. 48).
-
Senator the Hon. Christopher Ellison, New report reveals
identity fraud as a billion-dollar threat (Media release E162/03),
12 November 2003.
-
Alex Mitchell et al, Small but very deadly: Thousands of
key-ring-sized pistols seized in raids , The Sun-Herald,
16 November 2003, p. 5.
-
Steve Barrett and Padraic Murphy, Bid to crack open underworld
war , The Australian, 28 November 2003, p. 4, Padraic
Murphy, Six on hit list, with a bullet , The Australian,
15 December 2003, p. 3, and Editorial, Criminal bloodletting
could easily spill over , The Australian, 16 December
2003, p. 12.
-
Explanatory Memorandum to the Australian Crime Commission
Amendment Bill 2003, p. 1.
-
Daryl Melham MP, Imported Pistols Make a Mockery of Howard s Gun
Control Laws , ALP News Statements at: http://www.alp.org.au/media/0103/20003335.html,
8 January 2003.
-
The term court is defined in subsection 51(4) of the ACC Act to
include any tribunal, authority or person having power to require
the production of documents or the answering of questions .
-
Explanatory Memorandum to the Australian Crime Commission
Amendment Bill 2003, p. 5.
-
Explanatory Memorandum to the Australian Crime Commission
Amendment Bill 2003, p. 5.
Morag Donaldson
12 January 2004
Bills Digest Service
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