Bills Digest no. 181 2009–10
Parliamentary Joint Committee on Law Enforcement Bill
2010
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
Financial implications
Main provisions
Concluding comments
Contact officer & copyright details
Passage history
Parliamentary Joint Committee on Law
Enforcement Bill 2010
Date introduced: 18 March 2010
House: House
of Representatives
Portfolio: Attorney-General
Commencement: The day after Royal Assent.
Links: The
links to the Bill, its Explanatory Memorandum and second
reading speech can be found on the Bills page, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
at http://www.comlaw.gov.au/.
The purpose of the Parliamentary
Joint Committee on Law Enforcement Bill 2010 (the Bill) is to
improve oversight of the Australian Federal Police (AFP) by
establishing the Parliamentary Joint Committee on Law Enforcement
(PJCLE). This Committee will replace and extend the functions of
the current Parliamentary Joint Committee on the Australian Crime
Commission (PJCACC) and will be responsible for providing
parliamentary oversight of the AFP in addition to the Australian
Crime Commission (ACC).
This Bill is part of a package of reforms and was introduced in
cognate with the National Security Legislation Amendment Bill 2010.
The Library has published a separate Bills Digest on that Bill and
that can be found via the Bills Homepage
here.
The existence of parliamentary committees to oversee law
enforcement agencies is generally seen as beneficial, adding to the
transparency and accountability of such agencies.
The current Parliamentary Joint Committee on the Australian
Crime Commission (PJCACC) was established under Part III of the
Australian Crime Commission Act 2002 and is charged with
monitoring, reviewing and reporting on the activities of the
Australian Crime Commission (ACC). The Committee had existed prior
to 2003 as the Parliamentary Joint Committee on the National Crime
Authority but was renamed in 2003 to reflect the establishment of
the ACC.[1]
The PJCACC and its predecessor have inquired into and reported
on a range of matters including:
- The legislative arrangements to outlaw serious and organised
crime groups (2009)
- Future impact of serious and organised crime on Australian
society (2007)
- Amphetamines and Other Synthetic Drugs (AOSD) (2007)
- Review of the Australian Crime Commission Act 2002
(2005)
- Inquiry into the trafficking of women for sexual servitude
(2005)
- Cybercrime (2004)
- Australian Crime Commission Establishment Bill 2002 (2002)
There are also two other
joint parliamentary committees with functions of overseeing law
enforcement agencies, namely:
- the Parliamentary Joint Committee on Intelligence and Security
(PJCIS), with functions of reviewing matters in relation to various
security agencies (ASIO, ASIS, DIGO, DIO, DSD and ONA), and
- the Parliamentary Joint Committee on the Australian Commission
for Law Enforcement Integrity (PJCACLEI) established in 2007 with
duties including the monitoring and reporting on the Integrity
Commissioner’s performance of his or her functions and
examining trends and changes in law enforcement as far as they
relate to corruption and integrity.
It has been noted[2] that there is an anomaly in this grouping of
parliamentary committees in that the largest and most significant
law enforcement body, the Australian Federal Police (AFP), is not
subject to such parliamentary scrutiny. There have also been
suggestions that not only would there be advantages in extending
parliamentary oversight to the AFP but also in having all law
enforcement bodies then subject to the one parliamentary
committee— thus providing a consistent and informed approach
to oversight and identifying common trends or areas of
overlap.[3]
The Government’s rationale for establishment of the new
PJCLEC is that it forms part of the package of reforms being
progressed to Australia’s national security
legislation—these reforms being aimed at ‘promoting
transparency and ensuring that our laws are appropriately
accountable in their operation’.[4] The most significant difference between
the proposed Committee and the existing Committee’s functions
is that it will have the capacity to monitor and to review the
performance by the AFP of its functions.[5] However, it must be noted that the AFP
is presently not free from scrutiny and accountability. Through the
Commonwealth Ombudsman and parliamentary processes such as Senate
Estimates, the AFP is required to regularly report on its
operations relating to telecommunications interceptions, controlled
operations (under the Crimes Act 1914) and surveillance.
Under section 15 of the ACLEI Act, the Integrity Commissioner has
the function to investigate corruption and integrity matters in the
AFP. Further, the AFP could be compelled to assist or give evidence
to any inquiry that may be established with powers under the
Royal Commissions Act 1902.
An exposure draft of the Bill was released on 12 August 2009 in
the Government’s Discussion Paper on National Security
Legislation. The Attorney-General’s Department has noted that
there were very minimal comments on the exposure draft and that
those submissions were generally supportive of the proposals to
enhance oversight of law enforcement agencies.[6] The Bill as introduced into
Parliament differs only slightly to this exposure draft.[7]
The Bill, together with the National Security Legislation
Amendment Bill 2010, has been referred to the Senate Legal and
Constitutional Affairs Committee for inquiry (The Senate inquiry)
and report by 17 June 2010.
Details of the Senate inquiry are at:
http://www.aph.gov.au/senate/committee/legcon_ctte/National_Security_Legislation/index.htm
Those submissions to the Senate inquiry that commented on this
Bill were generally supportive of the concept of extending
parliamentary scrutiny to the AFP. However there were some
criticisms of the information disclosure provisions in the Bill and
suggestions that these provisions would place limitations on the
PJCLE information gathering powers to the extent that the new
Committee would not have any special ability to meaningfully
oversee the ACC and AFP.
The Australian Federal Police Association
(AFPA) strongly supports the Bill and is pleased with the proposal
that the new Committee have combined oversight of the AFP and ACC
which it hopes ‘will further entrench principles of public
accountability’ and will also ‘provide protections to
AFP employees from unfair criticism by the media and the
public’. Their submission notes that the Association has on a
number of occasions advocated for this reform, but notes that this
support has been the subject of criticism from the AFP.[8]
The Police Federation of Australia also
supports the Bill and considers it achieves an appropriate balance
between the scrutiny warranted and the necessary safeguards for
sensitive information held by law enforcement bodies.[9]
The Law Council of Australia
welcomes the Bill, noting that in contrast to Australian
intelligence agencies and the ACC, it is anomalous that the AFP is
not currently subject to oversight by a dedicated parliamentary
committee. To the extent that the Bill seeks to address this gap,
the Law Council supports this enactment.[10]
However, the Law Council is concerned that the effectiveness of
the new Committee may be undermined by certain provisions in the
Bill. In particular the Law Council is concerned that the
information gathering powers in the provisions in the Bill may not
sufficiently compel the AFP and the ACC to furnish the Committee
with the information it requires to fulfil its functions, such that
the new Committee, like the PJCACC which preceded it, will not have
any special ability to meaningfully oversee the ACC and
AFP.[11]
The Law Council’s submission is referred to in more detail
under the Main Provisions section of this Digest.
The Australian Human Rights Commission (AHRC)
also supports the establishment of the new PJCLE and believes that
the Committee’s oversight function is an important safeguard
on the proper and lawful exercise of the broad police powers. The
AHRC does however have some concerns with the Bill, namely
that:
- the functions of the new Committee as set out in clause 7 do
not include a reference to human rights and particular to the
International Covenant on Civil and Political Rights[12], and
- the mechanisms for protection of sensitive information in
clauses 8 and 9 could prevent the Committee from obtaining the
information necessary for it to adequately fulfil its oversight
functions.[13]
The Australian Crime Commission is supportive
of the Bill.[14]
The Main Provisions section of this Digest contains further
comment from submissions to the Senate inquiry.
The
Explanatory Memorandum states that the amendments in this Bill have
no financial impact on Government revenue.[15]
Clause 5 sets out the administrative
arrangements for establishing the PJCLE and its membership for each
Parliament. The PJCLE will consist of 10 members of Parliament,
with five members of the House of Representatives and five members
of the Senate. Ministers, the President of the Senate and Speaker
of the House of Representatives are not eligible to be committee
members. The provision follows the existing practices of appointing
members to serve on parliamentary joint select committees.
Clause 6 requires that all matters relating to
the powers and proceedings of the Committee are to be determined by
resolution of both Houses of Parliament. Again this is a standard
provision—see for example section 54 of the ACC Act or
section 214 of the Law Enforcement Integrity Commissioner Act
2006.
The functions of the PJCLE are set out in clause
7 and will include:
- monitoring, reviewing and reporting on the ACC’s
performance of its functions
- monitoring, reviewing and reporting on the AFP’s
performance of its functions
- examining both the AFP’s and the ACC’s annual
reports and reporting on matters arising out of such reports
- examining and reporting on trends and changes in criminal
activities, practices and methods, and reporting on any desirable
changes to the ACC’s and the AFP’s functions, powers or
procedures, and
- inquiring into any question in connection with its functions
which is referred to it by either House of Parliament.
Subclause 7(2) places limits on the
PJCLE’s functions and confirms that the PJCLE’s
functions do not extend to:
- undertaking an intelligence operation or investigating a matter
relating to a relevant criminal activity
- reconsidering the findings of the ACC in relation to an
operation/investigation (including completed operations and
investigations)
- reviewing of certain sensitive operational information or
operational methods
- reviewing particular AFP or ACC investigations or
operations
- reviewing information provided by a foreign government or its
agency where that government does not give consent to disclosure of
that information
- conducting inquiries into complaints about the AFP or ACC.
The PJCLE may however examine and report on information
disclosed to it by the CEO of the ACC or by the Commissioner of the
AFP under sections 8 and 9 of the Act (subclause
7(3)).
The Attorney-General’s Department submission to the Senate
inquiry justifies the drafting of this provision on the grounds
that it is based on the similar provisions that currently apply to
the PJCACC. It states that the purpose of the limitations is to
clarify that the role of the PJCLE is to focus broadly on the
performance by the AFP and ACC of their functions. It is not
intended that the PJCLE be concerned with reviewing individual
operations and investigations.[16]
The AFPA notes, by way of comparison, a difference between the
functions of the new PJCLE committee and the functions of the
PJCIS. A primary function of PJCIS is to review the administration
and expenditure of the various intelligence agencies (paragraph
29(1)(a) of the Intelligence Services Act 2001). AFPA
argues that the Bill would benefit from similar coverage to
specifically allow for the review of administration and expenditure
of the AFP and ACC.[17] However, the AFP and ACC are subject to administration
and expenditure review through the Senate Estimates processes as
well as reporting obligations to the Ombudsman.
Clauses 8 and 9 deals with
disclosure of information to the PJCLE by the CEO of the ACC and
the Commissioner of the AFP respectively. In general, under
paragraphs 8(1)(a) and 9(1)(a),
the CEO and the Commissioner must comply with a Committee request
for information in relation to an ongoing operations and
investigations of their agency. The CEO and Commissioner must also
when requested by the Committee, and may at such other times as the
CEO or Commissioner think appropriate, inform the Committee about
the general performance of the ACC or AFP of its functions
(paragraphs 8(1)(b) and 9(1)(b)).
However, the CEO and Commissioner may decide not to comply with
a Committee request if:
- the information is ‘sensitive information’ (as
defined in clause 3), and
- the public interest served in giving the information is
outweighed by the prejudicial consequences that might result
(subclauses 8(2) and 9(2))
In such a situation, the Committee may refer the request to the
relevant Minister (subclauses 8(3) and
9(3)). The Minister must then determine in writing
whether the information is ‘sensitive information’ and
whether the public interest in disclosing it is outweighed by the
prejudicial consequences that might result from disclosure
(subclauses 8(4) and 9(4)). The
Minister may, but is not required to disclose his or her reasons
for such a determination (subclause 8(5)) and
subclause 9(5)))) and such a determination is not
a legislative instrument (subclause 8(4)) and
subclause 9(4)).
‘Sensitive information’ is defined broadly in
clause 3. It includes amongst other things,
information that if disclosed:
- the security,
defence or international relations of Australia
- relations between
the various governments of Australia
- would disclose deliberations or decisions of cabinet
- could reveal a confidential source of information in relation
to law enforcement, or to investigations and operations of the AFP
and ACC
- could endanger life and safety
- would disclose information, the disclosure of which is
prohibited by another Commonwealth law
- could prejudice proper enforcement of the law or the operations
of law enforcement agencies
- could prejudice a person’s reputation
- would unreasonably disclose personal information, or
confidential commercial information.
The Explanatory Memorandum states that it is intended that
clauses 8 and 9 that allow non-disclosure should be relied upon
only in exceptional circumstances. Other options such as providing
the information in a private hearing or on condition that sensitive
information not be included in the PJCLE’s public reports
would be open to the PJCLE in accordance with the powers and
proceedings of the PJCLE as determined in accordance with clause
6.[18]
Clauses 8 and 9 closely replicate those provisions of the
Law Enforcement Integrity Commissioner Act 2006 which
govern the powers of the PJCACLEI to request and receive
information from the Integrity Commissioner. The Law Council of
Australia in their Senate inquiry submission acknowledge that these
clauses are an improvement on the disclosure provisions in the ACC
Act because they recognise that, even where the disclosure of
certain information may have prejudicial consequences, this may be
outweighed by the public interest in the information being
disclosed to the Committee.[19]
Nonetheless, it is the Law Council’s view that the
disclosure provisions in the Bill still suffer from many of the
same shortcomings as those identified with section 59 of the ACC
Act by the PJCACC.[20] For example:
- they offer very little guidance about what information agency
heads should be required to proactively volunteer to the Committee
and when, and instead assume that Committee members will be in a
position to identify and request any pertinent information
- they do not provide any timeframe within which agency heads
must respond to a request for information
- they allow agency heads wide latitude to refuse a request for
information, in relation to which the only remedy is appeal to the
Minister, and
- the Minister is not required to provide any reasons for his or
her determination.[21]
While the Explanatory Memorandum states that the provisions
allowing an agency to refuse a Committee request for information
‘should be relied upon only in exceptional
circumstances’, the Law Council argues that this
sentiment is not reflected in the text of the Bill itself, and in
particular is not captured in the test to be applied by agency
heads or the Minister in determining whether information should be
disclosed:
In the circumstances, the Law Council is
concerned that the provisions of the Bill may not sufficiently
compel the AFP and the ACC to furnish the Committee with the
information it requires to fulfil its functions, such that the new
Committee, like the PJCACC which preceded it, will not have
“any special ability to meaningfully oversee”
the ACC and AFP.[22]
The definition of ‘sensitive information’ contained
in the Bill closely mirrors the definition of sensitive
information’ in the Law Enforcement Integrity
Commissioner Act 2006. However, the definition in the Bill is
slightly more expansive in that it also includes information that
‘could prejudice a person’s reputation’
(proposed subclause 3(h)). This addition to the
definition is perhaps a consequence of the current provisions of
the ACC Act which provide that the Chair of the Board must refuse a
request for information from the PJCACC if he or she considers that
disclosure of information to the public could, amongst other
things, prejudice the reputation of persons.
The Law Council is of the view that it is unnecessarily
restrictive to include information that ‘could prejudice
a person’s reputation’ in the category of
information that might be withheld from the Committee, noting that
parliamentary committees of all types frequently receive evidence
of this nature and have procedures for handling such information,
including receiving such information in private session, expunging
such material from the transcript of evidence and forbidding
publication of that evidence.[23] The submission continues:
The Committee’s inquiries and reports may
from time to time legitimately reveal information which reflects
poorly on a person’s actions, judgments or associations. That
is the nature of a body tasked with oversight and accountability of
another agency. It should be a matter for the Committee and its
judgment to ensure that its processes are not misused as a vehicle
for an unwarranted attack on a person’s reputation.
The Law Council recommends that section 3(h) be deleted from the
Bill.[24]
The Australian Human Rights Commission is also
critical of clauses 8 and 9 in the Bill. It strongly urges the
Senate inquiry to recommend amendments to these provisions to
ensure that the mechanisms for protection of sensitive information
do not prevent the Committee from obtaining the information
necessary for it to adequately fulfil its oversight functions. To
this end it recommends the provisions be replaced with a provision
that would penalise members and staff of the PJCLE for disclosing
any sensitive information and the definition of sensitive
information be amended to remove the references to sensitive
information being information that could prejudice a person’s
reputation or would unreasonably disclose confidential commercial
information.[25]
Clause 10 requires the Commonwealth Ombudsman
to brief the PJCLE at least once a year about the involvement of
the ACC and AFP in controlled operations.[26] This equates to existing section 55AA
of the ACC Act, which requires the Ombudsman to brief the PJCACC on
the ACC’s use of controlled operations under Part 1AB
of the Crimes Act 1914.[27]
The Commonwealth Ombudsman in his submission to the Senate
inquiry recommended amendment of this provision:
In my view, it would benefit the PJC-LE if the
Ombudsman's obligation to brief it extended to providing
information about his oversight activities relating to
telecommunications interceptions, stored communications access and
use of surveillance devices by the AFP and the ACC.
The decision to restrict the matters about
which it is proposed that the Ombudsman brief the PJC-LE may stem
from the differing reporting regimes that apply to the various
oversight functions. As noted above, the Ombudsman's controlled
operations and surveillance devices reports are tabled directly in
Parliament; the telecommunications interception and stored
communications reports are provided to the Attorney-General who
must include in his annual report to Parliament those matters of
concern raised by the Ombudsman.
However, in each case a report is ultimately
made to Parliament on issues identified by the Ombudsman's
inspection of AFP and ACC records and it would seem appropriate to
afford the PJC-LE the opportunity to hear directly from the
Ombudsman about the findings and recommendations from his
inspection reports.
In past years, the Ombudsman has provided
information to the PJC when asked, on the ACC's use of these other
covert policing powers. However, at present the Ombudsman is only
required to brief on the conduct of controlled operations of the
ACC and is not in a position to volunteer information that may be
of concern or interest to the PJC in other areas of covert policing
and which would inform the PJC's Parliamentary oversight role.
In my view, the Bill should be amended to
provide that the Ombudsman should brief the PJC-LE on all matters
concerning the AFP and ACC that are subject to Ombudsman scrutiny
to better inform the PJC-LE in its role and strengthen the external
accountability frameworks in which the ACC and AFP operate.
Clause 11 enables the Governor-General to make
regulations as required or permitted by the Act, or as necessary or
convenient in order to give effect to the Act.
As noted above, the PJCLE is to replace the PJCACC, the
Committee that currently oversees the Australian Crime Commission.
The provisions relating to the PJCACC are in Part III of the ACC
Act and are to be repealed by items 5 and
6 in Schedule 10 of the accompanying National
Security Legislation Amendment Bill 2010.
Concluding comments
The Bill has bipartisan support in the Parliament. This is both
an acknowledgement of the importance of parliamentary scrutiny of
law enforcement bodies and a recognition of the anomaly that the
AFP, unlike other similar agencies, is not currently subject to
oversight by a dedicated parliamentary committee.
Despite this bipartisan support, the Law Council of Australia
and others have concerns regarding the information disclosure
provisions in the Bill, arguing that the provisions may not
sufficiently compel the AFP and the ACC to furnish the new
Committee with the information it requires to fulfil its oversight
functions.
It is of interest that discussion on this Bill, unlike previous
similar reforms, has not included the suggestion that there would
be benefit in having all law enforcement bodies subject to one
parliamentary committee— in terms of providing a consistent
and informed approach to oversight and identifying common trends or
areas of overlap.
Members, Senators and Parliamentary staff can obtain further
information from the Parliamentary Library on (02) 6277 2438.
[18].
Explanatory Memorandum, p.
4.
[19].
The current provisions in the ACC
Act provide simply that the Chair of the ACC board must
not disclose information to the PJCACC if the disclosure of
the information to the public could prejudice the safety or
reputation of persons or the operations of law enforcement
agencies. There is no requirement that this be weighed against the
public interest in the Committee having access to the
information.
[20]. The Law
Council’s submission refers the situation in 2007 relating to
urgent retrospective changes to the Australian Crime Commission
Act. The PJCACC was apparently not adequately informed about the
problems in the ACC that triggered these amendments. In a related
report, the PJCACC made a number of observations about its
oversight role and the limitations of its statutory powers to
access information. A fuller account can be found in: Law Council,
Submission, op. cit., and in: Parliamentary Joint Committee on the
Australian Crime Commission, Inquiry into the
Australian Crime Commission Amendment Act 2007’,
2008, Chapter 4, viewed 15 June 2009,
http://www.aph.gov.au/Senate/committee/acc_ctte/acc_amend_act07/report/report.pdf
Mary Anne Neilsen
16 June 2010
Bills Digest Service
Parliamentary Library
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