Bills Digest no. 44 2015–16
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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.
Mary Anne Neilsen
Law and Bills Digest Section
10 November 2015
Contents
Purpose
of the Bill
Background
Committee consideration
Policy position of non-government parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human Rights
Key issues and provisions
Concluding comments
Date introduced: 15
October 2015
House: House of
Representatives
Portfolio: Justice
Commencement: A
single day to be fixed by Proclamation or 1 July 2016, whichever is the
earlier.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent, they
become Acts, which can be found at the ComLaw
website.
The purpose of the Australian Crime
Commission Amendment (Criminology Research) Bill 2015 (the
Bill) is to amend the Australian Crime Commission Act 2002[1]
(ACC Act) and repeal the Criminology Research Act 1971[2]
(CR Act) in order to merge the functions of the Australian Institute
of Criminology (AIC) into the functions of the Australian Crime Commission
(ACC) and to abolish the AIC as a statutory agency.
Australian Institute of Criminology
The AIC was established in 1973 under the CR
Act. As a Commonwealth statutory authority, the AIC is regulated
under the Public Governance, Performance and Accountability Act 2013.[3]
Staff of the AIC are generally engaged under the Public Service Act 1999[4]
but may also be employed or engaged by the AIC for a particular project.[5]
According to the latest Annual report,
[the AIC] has served as Australia’s national research and
knowledge centre on crime and justice for more than 40 years, undertaking and
promulgating new research, monitoring and analysing crime trends, and providing
advice to inform legislative, policy and practice change.
The independent status of the AIC has meant its output is not
only robust, but trusted by government, law enforcement and justice agencies
across the nation and internationally. Much of the AIC’s work falls under the
Commonwealth Government’s strategic research priorities, in particular, the
priority themes of ‘living in a changing environment’, ‘promoting population
health and wellbeing’ and ‘securing Australia’s place in a changing world’.[6]
The Director and Chief Executive of the AIC
is Chris Dawson.
A Criminology Research Advisory Council, established
under the CR Act in 2011 advises the Director on strategic research
priorities, communications and on the Criminology Research Grants program. The
Advisory Council consists of nine members who represent the Australian
Government and all states and territories. This composition ensures that areas
targeted for research funding reflect both national and state/territory
priorities.[7]
The Criminology Research Grants (CRG) program, managed by
the AIC, is funded by the Commonwealth and state and territory governments. The
Director of the AIC approves a series of research grants each year, taking into
account the recommendations of the Criminology Research Advisory Council. The
program funds research that has relevance to jurisdictional policy in the areas
of law, police, judiciary, corrections, mental health, social welfare,
education and related fields.[8]
Australian Crime Commission
The ACC commenced operation on 1 January
2003. It has its origins in the April 2002 Council of Australian Government
Leaders Summit, which agreed that a new national framework was needed to meet
the challenges of multi-jurisdictional crime. It replaced and combined
the strategic and operational intelligence and specialist investigative
capabilities of the National Crime Authority, the Australian Bureau of Criminal
Intelligence, and the Office of Strategic Crime Assessments.[9]
According to the latest Annual Report, the aim of the ACC
is to ‘reduce serious and organised crime threats of most harm to Australians
and the national interest’.[10]
To achieve this aim, the ACC has a range of special
coercive powers such as the capacity to compel attendance at examinations,
production of documents and the answering of questions (similar to a Royal
Commission). The ACC also has an intelligence-gathering capacity and a range of
investigative powers common to law-enforcement agencies, such as the power to
tap phones, use surveillance devices and participate in controlled operations. [11]
Like the AIC, the ACC is regulated under the Public
Governance, Performance and Accountability Act and staff of the ACC are
engaged under the Public Service Act.[12]
Merger of the AIC and ACC
The 2014 Commission of Audit had broached the subject of
the possible merger of various agencies responsible for crime intelligence, and
in particular suggested that Crimtrac should be merged in to the ACC ‘to better
harness their collective resources’.[13]
However in relation to the AIC, the Audit Committee did not suggest the possibility
of merging with the ACC, proposing instead that relocation to a university
should be considered.[14]
Prior to the 2015 Budget there had been media speculation that
the two bodies, the AIC and the ACC would merge.[15]
While there was no Budget announcement to this effect, at Senate Estimates hearings
shortly afterwards, the
Attorney-General indicated that there were ongoing discussions between the two
bodies about a possible merger, although no decision has been
taken to proceed with the merger.[16]
A more definite sign of the impending merger occurred in
July 2015, when the Minister for Justice announced the appointment of ACC CEO
Chris Dawson as the newly appointed Interim Director of the AIC. Mr Keenan
indicated that the Government was considering whether the AIC should be placed
within the ACC, but at that date a final decision had not been made:
In the interim, the ACC and AIC will continue to exist and
operate as separate entities, while working together on expanding existing
relationships.[17]
Finally on 25 September 2015, the Minister for Justice
announced that the AIC would be placed within the ACC to ‘boost research capability
at the nation’s criminal intelligence agency’.[18]
The AIC is to be incorporated into the ACC as an independent research branch
known as the Crime and Justice Research Centre (CJRC).
The Minister stressed that this merger is ‘not about
cutting costs or personnel of either agency; it’s about creating a unified
workforce incorporating staff of both agencies’:
Combining the expertise, capabilities and data and
information holdings of the AIC and the ACC will significantly enhance support
for law enforcement in counter terrorism efforts and in bolstering Australia’s
response to serious and organised crime.
Our law enforcement and protection agencies are increasingly
dependent on accurate research, information and intelligence to ensure that
police on the ground, at our borders and in our intelligence agencies can do
their job.
The more we strengthen our research capabilities, the better
evidence base we have for our agencies to identify the patterns and
associations that can help detect, disrupt and undermine those who seek to do
our communities harm. [19]
The Bill provides the necessary legislative framework to
achieve the merger.
The Bill has not been referred to any Committee.
Senate Standing Committee for the
Scrutiny of Bills
To date, the Committee has not reported on the Bill.
To date, the Labor Party has not publicly commented on the
Bill, although the proposed timetable for parliamentary debate suggests that
the Bill has that party’s support.[20]
The Australian Greens oppose the Bill, arguing that the
takeover of the AIC by the ACC is short-sighted and risks increased crime rates
in the long term. Australian Greens legal affairs spokesperson Senator Nick
McKim stated:
The AIC plays an important role in understanding what causes
crime, and developing policy to reduce crime levels. But it is not a law
enforcement agency, and losing the AIC risks Australia missing out on world class
crime and justice research. It is clear that the takeover will result in the
functions of the AIC being lost or subsumed. This is a short sighted ‘savings’
measure that will ultimately cost Australia in the long run through increased
crime rates. [21]
Similar concerns were discussed at Estimates Committee hearings
in May 2015 by Australian Greens Senator Penny Wright who raised questions
regarding the difficulties of managing the merger of two agencies with very
different functions and very different organisational cultures—one being a
small ‘open’ organisation, the other, a larger, highly secretive one.
Senator Wright also saw a potential conflict of interest between
for example the functions and priorities of the AIC which may include studies
that query the effectiveness of existing legal or administrative crime
frameworks, potentially including the work that the ACC is doing.[22]
To date, the views of other cross bench members of
Parliament are not known.
There has been minimal commentary on the Bill. However in
May 2015, at the time when stories first emerged about a possible merger, criminologist
Rick Sarre from the University of South Australia expressed some concern that
the merger could create a big conflict of interest and even compromise crucial
and independent crime data:
I think that's the concern of criminologists — to ensure that
the independence of the research that's been emerging for decades from the
Australian Institute of Criminology is not compromised.[23]
Professor Sarre expressed concern that the AIC could soon
be trapped in the ‘secretive culture’ of the ACC, believing that could hurt
crime-fighting efforts.
If the Government was serious about cutting costs, one of the
things they should be doing is upping in fact the level of criminological
research in this country, not compromising it potentially by rolling the best
criminological resource we have in this country into a crime-fighting
organisation.[24]
The Explanatory Memorandum states that the merger will be
cost neutral with small savings expected over the forward estimates. [25]
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[26]
Parliamentary Joint Committee on
Human Rights
To date this Committee has not reported on the Bill.
Schedule 1—Australian Crime
Commission Act 2002
Criminological research
Item 1 inserts a new definition of ‘criminological
research’ into subsection 4(1) of the ACC Act.[27]
‘Criminological research’ is defined to mean research in connection with the
causes, consequences, correction and prevention of criminal behaviour and any
related matter. This definition copies to a great extent the existing definition
in the CR Act.[28]
Section 7A of the ACC Act sets out the ACC’s
existing statutory functions. Item 3 inserts new paragraph 7A(fb)
to provide the ACC with an additional power to exercise the following functions
currently performed by the AIC:
- conduct
criminological research
- communicate
the results of criminological research
- perform
other activities related to the conduct of criminological research (such as
holding seminars or compiling crime-related statistics) and
- administer
programs for awarding grants for criminological research and activities related
to the research, and assist the recipients of grants in that research or those
activities.
The Explanatory Memorandum explains how it is intended
these functions will operate within the objectives of the ACC:
Under the CR Act, the AIC is limited to the objectives of
promoting justice and reducing crime in performing these functions. The ACC’s
criminological research and related activities may continue to promote these
objectives, but will not be limited to these objectives.
This Act does not need to confer a new function on the ACC
Board to mirror the ACC’s new functions. Under paragraph 7C(1)(b) of the ACC
Act, the ACC Board already has the function of providing strategic direction to
the ACC and determining the ACC’s priorities. Following the broadening of the
ACC’s functions as set out in proposed paragraph 7A(fb), the Board may provide
strategic direction to the ACC in relation to these new functions or determine
the ACC’s criminological research priorities under the broad power in paragraph
7C(1)(b). In doing so, the Board may take advice from a non-legislated advisory
body that includes both justice and law enforcement representation.[29]
Further discussion on the role of this non-legislated advisory
body can be found below.[30]
Fees for commissioned
criminological research
Item 4 inserts new section 15B into the ACC
Act to enable the ACC to charge fees for commissioned criminological
research. This is to allow states, territories, universities and other
interested organisations to continue to commission specific work from the
merged agency as they currently do from the AIC.[31]
The fee would be paid into the Criminology Research Special Account (proposed
paragraphs 59G(b) and (c)). This Account currently exists under the
CR Act and its continued existence would be facilitated by proposed
sections 59F, 59G and 59H.[32]
Disclosure of criminological
research and related information
Under the ACC Act information disclosure rules are
set out in sections 59AA and 59AB. These are strict information sharing
provisions that apply to ACC information, whereas research conducted by the AIC
often includes information of a more public nature and is currently
disseminated more widely. Item 5 inserts new section 59AE, which
will add an additional information disclosure regime into the ACC Act
that will apply specifically to the ACC’s new criminological research and
related information.
Under new subsection 59AE(1), the ACC CEO will be
able to disclose or publish criminological research and information related to
that research to any person, if disclosing or publishing that research or
information would not be contrary to subsection 25A(9) of the ACC Act or
any other law of the Commonwealth or of a state or territory.[33]
New subsection 59AE(2) will provide additional
requirements where the ACC’s criminological research or related information
contains ‘personal information’, as defined by the Privacy Act 1988.[34]
Under new subsection 59AE(2), the ACC CEO will be
prohibited from disclosing personal information that was collected for the
purpose of criminological research for another purpose unless:
- the
individual has consented to the use or disclosure
- the
individual would reasonably expect the ACC would use or disclose the information
for the other purpose and that other purpose is:
- if
the information is sensitive information within the meaning of the Privacy
Act—directly related to the purpose for which the information was
collected or
- if
the information is not sensitive information—related to the purpose for which
the information was collected or
- a
permitted general situation within the meaning of the Privacy Act exists
in relation to the use or disclosure of the information by the ACC.
These requirements are modelled on Australian Privacy
Principle 6 in the Privacy Act. As the Explanatory Memorandum notes, it
is necessary to replicate these disclosure principles in the Bill, as the ACC
is exempt from the scope of the Privacy Act.[35]
Including these additional requirements in the new disclosure regime will
ensure that personal information collected by the ACC for research purposes
remain subject to the same disclosure protections that currently apply to the
AIC.[36]
Significantly, while the Information Commissioner usually
investigates breaches of the Privacy Act and currently would do so in
relation to the AIC, he or she will not have jurisdiction under the ACC Act
to investigate potential breaches of the new information disclosure regime. The
Explanatory Memorandum states that instead, the ACC is subject to oversight by
the Commonwealth Ombudsman, Integrity Commissioner and Parliamentary Joint
Committee on Law Enforcement and therefore:
One or all of these bodies may be able to examine potential
breaches of the new regime, depending on the nature of the complaint.[37]
Schedule 2—Criminology Research Act
1971
Abolition of the AIC and the
Criminology Research Advisory Council
Item 1 of Schedule 2 repeals the Criminology
Research Act 1971. The effect will be to abolish the AIC as a statutory
agency and remove the requirement for there to be a Director of the AIC.
The removal of the position of Director is significant.
The Director has generally been an academic with a background in criminology or
sociology who steers the direction of the AIC’s research with the help of the
Advisory Council. Under the merger, the CEO or the ACC Board will undertake
this role, although neither the CEO nor the Board are criminologists.
In addition and of some significance, the Advisory Council
will no longer be a statutory body. The Advisory Council was established in
2011 and under the CR Act has responsibilities to advise the AIC
Director on a number of strategic issues, including the AIC’s research
priorities.[38]
The Bill effectively abolishes this position, the Explanatory Memorandum noting
only that under the merged agency structure, the Advisory Council may continue
as a non-legislated body providing advice to the ACC CEO and ACC Board.[39]
The role and priorities of the ACC Board would be quite different from that of
the Advisory Council—the Board being composed in the main by police
commissioners and the Director-General of ASIO[40],
the Advisory Council being composed of representatives of federal, state and
territory governments.
The Government states that the merger of the AIC and ACC
is not a cost saving exercise but an effort to combine the expertise and capabilities
of both agencies, significantly enhancing ‘support for law enforcement in
counter terrorism efforts and in bolstering Australia’s response to serious and
organised crime’.[41]
A final question for the Parliament might be: does the
Bill ensure that the priorities of the AIC will not be lost or subsumed in the
merger as was suggested in discussions at Estimates earlier this year? Is there
also a potential for a conflict of interest to arise, such as when the AIC is
conducting research that requires critiquing the ACC priorities and operations?
The Bill does provide the ACC with capacity to undertake criminological
research, as currently performed by the AIC; there will be a separate
disclosure regime to ensure secrecy provisions necessary for intelligence work
do not impact on the open and transparent environment necessary for research;
and the ACC will continue to commission research from outside bodies as the AIC
currently does. In addition, in light of the Minister’s statement that the
merger is not a cost or personnel cutting exercise, the transfer of staff
should be relatively seamless as both AIC and ACC staff are employed under the Public
Service Act.
On the other hand, the merger does mean the loss of an
independent criminology research organisation in Australia that, importantly,
has a national focus. There is potential for the merger to impact on the AIC’s
current research role.
While the Bill does provide for a Criminology Research
Special Account to fund criminology related matters, the criminology research
function will be just one of many priorities that the ACC Board will need to
consider. In this setting, the existing Advisory Council would arguably have an
important role in advising on or at least monitoring whether the AIC current research
priorities (such as indigenous justice, crime prevention programs, alcohol and
violence and family violence) are being lost or subsumed by higher prioritised
ACC roles such as combatting counter-terrorism. Given the potential for a
lessening or detraction of the criminology research function, it is therefore significant
that the Advisory Council will have a reduced status – moving from being a
statutory authority with legislated advisory responsibilities to a purely non-legislated
body which may or may not advise the ACC Board.
Members, Senators and Parliamentary staff
can obtain further information from the Parliamentary Library on (02) 6277 2500.
[1]. Australian Crime
Commission Act 2002, accessed 6 November 2015.
[2]. Criminology Research Act
1971, accessed 6 November 2015.
[3]. Public Governance,
Performance and Accountability Act 2013, accessed 8 November 2015.
[4]. Public Service Act 1999,
accessed 8 November 2015.
[5]. CR Act, section 23.
[6]. Australian
Institute of Criminology (AIC), Annual
report 2013–14, AIC, 2014, p. 6, accessed 8 November 2015.
[7]. Criminology Research Grants website,
accessed 8 November 2015.
[8]. AIC, op. cit., p. 6.
[9]. Australian Crime Commission (ACC), ‘Agency
overview’, Annual
report 2013–14, ACC, 2014, accessed 8 November 2015.
[10]. Ibid.
[11]. S
Harris Rimmer and B Jaggers, Australian Crime Commission Amendment Bill 2007, Bills
digest, 54, 2007–08, Parliamentary Library, Canberra, 2007, p. 3,
accessed 9 November 2015.
[12]. ACC Act, section 47.
[13]. National Commission of Audit, Towards
responsible government: the report of the National Commission of Audit, Phase 1,
National Commission of Audit, Canberra, February 2014, p. 208, accessed 1
November 2015.
[14]. Ibid.
[15]. Australian Broadcasting Corporation (ABC), ‘Budget
2015: Crime Commission tipped to merge with Institute of Criminology in budget
shake-up, ABC News, (online edition), 8 May 2015, accessed 8
November 2015.
[16]. Senate
Legal and Constitutional Affairs Legislation Committee, Official
committee Hansard, 27 May 2015, p. 83, accessed 8 November 2015.
[17]. M Keenan (Minister for Justice) Interim
director for the Australian Institute of Criminology, 13 July 2015, accessed 8 November 2015.
[18]. M Keenan (Minister for Justice) New
crime and justice research centre, media release, 25 September 2015,
accessed 8 November2015.
[19]. Ibid.
[20]. In the House of Representatives and Senate draft legislation programmes for
week 7/2015, accessed 9 November 2015, the Bill is listed for debate in the
House on 9 November and in the Senate on Wednesday 11 November subject to
introduction and exemption from the Bills cut‑off order.
[21]. N McKim (Australian Greens Senator), Getting rid of the Australian Institute of Criminology counter-productive, media release, 5 November, accessed 5 November 2015.
[22]. Senate, Legal and Constitutional
Affairs Legislation Committee, op. cit., p 84.
[23]. ABC, op. cit.
[24]. Ibid.
[25]. Explanatory
Memorandum, Australian Crime Commission Amendment (Criminology Research)
Bill 2015, p. 2.
[26]. The
Statement of Compatibility with Human Rights can be found at pages 3–4 of the
Explanatory Memorandum to the Bill.
[27]. Australian Crime
Commission Act 2002, accessed 6 November 2015.
[28]. Criminology Research Act
1971, accessed 6 November 2015.
[29]. Explanatory Memorandum, op. cit., p. 2.
[30]. See pp. 6–7 of this Bills Digest.
[31]. K
O’Dwyer, ‘Second
reading speech: Australian Crime Commission Amendment
(Criminology Research) Bill 2015’, House of Representatives, Debates,
(proof), 15 October 2015, p. 4, accessed 9 November 2015.
[32]. Item
6, Schedule 1.
[33]. Subsection
25A(9) of the ACC Act deals with confidentiality directions in relation
to examinations for the purposes of ACC operations/investigations.
[34]. Privacy Act 1988,
accessed 9 November 2015.
[35]. Explanatory Memorandum, op. cit., p. 3. The ACC being an
‘enforcement body’ is exempt from some of the rules regarding disclosure of
personal information (for example clause 3.4, Schedule 1 of the Privacy Act).
[36]. Ibid.
[37]. Ibid.
[38]. Criminology Research Grants website, op.
cit.; CR Act, section 33.
[39]. Explanatory Memorandum, op. cit., p. 6.
[40]. ACC
Act, section 7B.
[41]. M
Keenan, New
crime and justice research centre, op. cit.
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