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
Information and Research Services
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ISSN 1328-8091
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