Bills Digest no. 17, 2016–17
PDF version [610KB]
Mary Anne Neilsen
Law and Bills Digest Section
6
October 2016
This Bills Digest updates an earlier
version dated 10 November 2015.
Contents
History of the Bill
Purpose of the Bill
Background
Australian Institute of Criminology
Australian Criminal Intelligence
Commission (formerly the Australian Crime Commission)
Merger of the AIC and ACIC
Committee consideration
Senate Legal and Constitutional
Affairs Legislation Committee
Senate Standing Committee for the
Scrutiny of Bills
Policy position of non-government
parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Parliamentary Joint Committee on
Human Rights
Key issues and provisions
Schedule 1—Australian Crime
Commission Act 2002
Criminological research
Fees for commissioned criminological
research
Disclosure of criminological research
and related information
Schedule 2—Criminology Research Act
1971
Abolition of the AIC and the
Criminology Research Advisory Council
Concluding comments
Date introduced: 14
September 2016
House: House of Representatives
Portfolio: Justice
Commencement: A
single day to be fixed by Proclamation or 1 July 2017, 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 Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at October 2016.
History of the Bill
A version of this Bill was introduced into the 44th
Parliament on 15 October 2015.[1]
That Bill had passed the House of Representatives and was before the Senate
when Parliament was prorogued. The Bill lapsed on prorogation of Parliament.
For the purposes of this Bills Digest that Bill is referred to as the 2015
Bill.
Purpose of the Bill
The purpose of the Australian Crime
Commission Amendment (Criminology Research) Bill 2016 (the Bill) is to
amend the Australian Crime Commission Act 2002[2](ACC Act) and repeal the Criminology Research Act 1971[3](CR Act) in order to merge the functions of the Australian Institute
of Criminology (AIC) into the Australian Criminal Intelligence Commission
(ACIC) and to abolish the AIC as a statutory agency.
Background
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.[4]
Staff of the AIC are generally engaged under the Public Service Act 1999[5]
but may also be employed or engaged by the AIC for a particular project.[6]
According to the 2013-14 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’.[7]
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.[8]
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.[9]
Australian Criminal
Intelligence Commission (formerly the Australian Crime Commission)
The Australian Criminal Intelligence Commission (ACIC)
commenced operations on 1 July 2016 as a result of the merger of CrimTrac and
the Australian Crime Commission (ACC).[10]
This Bills Digest refers to both the ACIC and the ACC, depending on the
context.
The ACC commenced operation on 1 January
2003. It had 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.[11]
According to the latest Annual Report, the aim of the ACC
(or now ACIC) is to ‘reduce serious and organised crime threats of most harm to
Australians and the national interest’.[12]
To achieve this aim, the ACIC 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. [13]
Like the AIC, the ACIC is regulated under
the Public Governance, Performance and Accountability Act and
staff of the ACC are engaged under the Public Service Act.[14]
Merger of the AIC and ACIC
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’.[15]
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.[16]
Prior to the 2015 Budget there had been media speculation
that the two bodies, the AIC and the ACC would merge.[17]
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.[18]
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.[19]
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’.[20]
The AIC is to be incorporated into the ACIC as an independent research branch
known as the Australian Crime and Justice Research Centre (ACJRC).
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. [21]
The Bill provides the necessary legislative framework to
achieve the merger.
Committee consideration
Senate Legal and Constitutional Affairs Legislation Committee
The Bill had not been referred to any Committee at the
time of writing this Bills Digest. However, the earlier version of the Bill
(the 2015 Bill) was referred to the Senate Legal and Constitutional Affairs
Legislation Committee for inquiry and report (the Senate Committee inquiry).
Details of the inquiry are at the inquiry
webpage.[22]
The Committee tabled its report on 26 November 2015 and
the majority report recommended that the Bill be passed. The Committee was
supportive of the objectives of the Bill and accepted the assurances of the
Attorney‑General’s Department and the ACC that the independence and
integrity of criminological research in Australia would be maintained under the
ACJRC.[23] The Labor Party
Senators on the Committee, while not dissenting from the Committee’s
recommendation, had concerns and made further comments and recommendations
about aspects of the Bill.[24]
The Australian Greens, noting that the majority of submissions and evidence had
raised concerns about the Bill recommended that the Bill be rejected by the
Senate.[25]
Further discussion of the Committee Inquiry report and the views of the
submitters and witnesses is provided throughout the Bills Digest.
Senate Standing Committee for
the Scrutiny of Bills
At the time of writing, the Scrutiny of Bills Committee has
not reported on the Bill, although that Committee did report on the 2015 Bill.
In particular, the Scrutiny of Bills Committee raised a concern and sought the
Minister's advice regarding a role for the Australian Information Commissioner.
The Committee asked why the Information Commissioner, who usually investigates
breaches of the Privacy Act 1988 and would do so in relation to the AIC,
should not have jurisdiction under the ACC Act to investigate potential breaches
of the new information disclosure regime that will apply to the ACC in relation
to criminological research.[26]
The Minister in response reiterated the view put in the Explanatory Memorandum:
Given the sensitive nature of the ACC's operations, the
Government's position is that the Information Commissioner (and his office) is
not the most appropriate body to deal with complaints against the ACC. A
separate system of oversight and accountability exists specifically to ensure
that the ACC exercises its powers appropriately while maintaining the
appropriate balance between secrecy and accountability. Any privacy issues
relating to the ACC should be monitored through this separate system. [27]
While noting the Minister’s response, the Committee
remained of the view that it would be appropriate for the Information
Commissioner to be given jurisdiction to investigate breaches of the proposed
disclosure regime.[28]
Policy position of non-government parties/independents
The ALP Senators, while not dissenting from the Senate
Committee recommendation that the Bill be passed, did express some ongoing
concerns with the Bill. In their additional comments attached to the report,
Senators Jacinta Collins and Catryna Bilyk said that they believe that the
AIC’s functions are best undertaken by an independent agency that can guarantee
the independence of the work undertaken. They state:
Labor believes that any positives that are being secured
through the merger of the AIC and the Australian Crime Commission (ACC), such
as access to classified data, can be secured through legislation and/or
inter-agency agreements and does not require a full merger. The continued
integrity and independence of criminological research in Australia is vital for
both the quality of research but also the public trust in crime statistics. It
is not in the public or national interest for such statistics to ever be
perceived to be anything less than completely accurate and compiled by
independent and skilled professionals.[29]
The ALP Senators recommended that the Government further
consider the concerns raised by stakeholders during the public hearing and in
submissions received by the Committee regarding maintaining the integrity and
independence of the research currently undertaken by the AIC.
They further suggested:
If it were to proceed with the merger, amendments to the
Minister's second reading speech and the Explanatory Memorandum to the Bill
would help to address these concerns by committing the verbal assurances given
by the Government regarding these matters to writing.
Further, the Government should consider establishing a
statutory advisory body, similar to the existing AIC Council, to advise the ACC
Board on setting the criminological research agenda and priorities and
allocation of grants.[30]
As noted below, the Explanatory Memorandum and to a lesser
degree the Minister’s Second Reading Speech have in part been amended and would
now appear to address some of these concerns.
The Australian Greens were from the outset publicly
opposed to the 2015 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. [31]
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.[32]
In their dissenting report to the Senate Committee inquiry
into the 2015 Bill, the Australian Greens concluded that should that Bill pass
there is a significant risk that broad ranging criminological research that
focusses on understanding the causes of crime, and recommending crime
prevention strategies, will take second place to the law enforcement needs of
the ACC.[33]
To date, the views of other cross bench members of
Parliament are not known.
Position of major interest
groups
The majority of submissions received and evidence heard by
the Senate Committee inquiry raised concerns about the Bill and the proposed
merger of the AIC and the ACC. Stakeholders argued that merging the research
function of the AIC with the law enforcement function of the ACC would
compromise the perception of the independence of the AIC and possibly result in
a loss of integrity and independence of criminological research in Australia
Professor Janet Ransley, Acting Director of the Griffith
Criminology Institute (GCI) in evidence stated:
I think once you put this research function in a law
enforcement agency there is a capacity for it to be perceived as co-opted by
law enforcement. It will lose that aura of independence. That would be a great
shame for Australia. Whether that will automatically happen or whether
protections can be built in depends, I think, on the strength of the
legislation and the strength of leadership in the research function. [34]
The President of the Australian and New Zealand Society of
Criminologists (ANZSOC) Professor Rick Sarre, stated in evidence to the
Committee that ‘there is no doubt at all that the membership of our
organisation would be with the maintenance of the status quo. I am very happy
to say that’.[35]
Submitters and witnesses also raised questions about the
potential problems of setting the research agenda and priorities for the ACJRC.
Professor Sarre recommended that in order to ameliorate the risk of research by
the ACJRC becoming too focussed on policing and law enforcement, ‘a broadly
based advisory council’ should be consulted when setting the research agenda
and priorities for the ACJRC. That council in his view should include not just
people appointed to the ACC but also for example a nomination from the ANZSOC
or from academia.[36]
Professor Sarre also argued that it should be enshrined in the Bill that such
an advisory body is to be consulted.[37]
In response to this discussion, the ACC CEO, and
the Attorney-General’s Department said that a Research Advisory Committee would
be established. Its membership would include the existing members of the
Criminology Research Advisory Council plus two representatives from the ACC,
two law enforcement representatives (to be selected by the ACC Board) and a
representative from the ANZSOC. They further confirmed that the ACC Board would
take advice from this non-legislated Research Advisory Committee. Both the ACC
and the Attorney‑General’s Department disagreed with the proposal that
this Advisory Committee be enshrined in legislation, arguing this was
undesirable because advice to the ACJRC about its research agenda must be ‘both
contemporary and relevant to the existing environment’ and that ‘putting
something in legislation would actually hamper the flexibility of the
operational arrangements’.[38]
Financial implications
The Explanatory Memorandum states that the merger will be
cost neutral with small savings expected over the forward estimates.[39]
Statement of Compatibility
with Human Rights
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.[40]
Parliamentary Joint Committee
on Human Rights
To date this Committee has not reported on the Bill. The
Committee did consider the 2015 Bill and made no comment.[41]
Key issues and provisions
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.[42]
‘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.[43]
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 ACIC and it is of
note that this explanation has been considerably expanded from the Explanatory
Memorandum for the 2015 Bill:
Under the CR Act, the AIC is limited to the objectives of
promoting justice and reducing crime in performing these functions. The ACIC’s
criminological research and related activities may continue to promote these
objectives, but will not be limited to these objectives.
While some of the criminological research may become
aligned with law enforcement’s high level priorities, the remit of the ACIC’s
criminological function will continue to be widely defined as crime and justice
issues of national importance, extending beyond purely law enforcement.
This Act does not need to confer a new function on the ACIC
Board to mirror the ACIC’s new functions. Under paragraph 7C(1)(b) of the ACC
Act, the ACIC Board already has the function of providing strategic direction
to the ACIC and determining the ACIC’s priorities. Following the broadening of
the ACIC’s functions as set out in proposed paragraph 7A(fb), the Board may
provide strategic direction to the ACIC in relation to these new functions or
determine the ACIC’s criminological research priorities under the broad power
in paragraph 7C(1)(b).
In doing so, the ACIC Board will take advice from a
non-legislated Research Advisory Committee about the ACIC’s strategic research
priorities and Criminology Research Grants program.
The Committee will consist of existing
Criminology Research Advisory Council members (being state and territory
justice agencies and the Commonwealth Attorney-General’s Department), two law
enforcement representatives, two members from the ACIC and a representative
from the Australian and New Zealand Society of Criminology (ANZSOC). Including
an ANZSOC representative ensures that there will be a specialised and
independent criminology research voice on the Committee, which does not
currently exist on the Advisory Council. Having a non-legislated body ensures
there is the flexibility to add other members if subject matter expertise would
assist on particular subjects.[44] [italics added for emphasis indicate new paragraphs
added to the Explanatory Memorandum to the 2016 Bill.]
This long quote is significant for the fact that
paragraphs 2, 3, and 4 were not part of the Explanatory Memorandum for the 2015
Bill. While not acknowledged as such, these additions would appear to be
intended to address some of the concerns raised in the Senate Committee inquiry
into the 2015 Bill.
Further discussion on the role of this non-legislated
Research Advisory Committee can be found below.[45]
Fees for commissioned
criminological research
Item 4 inserts new section 15B into the ACC
Act to enable the ACIC 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.[46]
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.[47]
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 ACIC’s new criminological research and
related information.
Under new subsection 59AE(1), the ACIC 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.[48]
New subsection 59AE(2) will provide additional
requirements where the ACIC’s criminological research or related information
contains ‘personal information’, as defined by the Privacy Act 1988.[49]
Under new subsection 59AE(2), the ACIC 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 ACIC 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 ACIC.
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.[50]
Including these additional requirements in the new disclosure regime will
ensure that personal information collected by the ACIC for research purposes
remain subject to the same disclosure protections that currently apply to the
AIC.[51]
The Senate Scrutiny of Bills Committee commented on proposed section 59AE and
queried its possible impact on personal rights and liberties relating to
privacy. However, given the Explanatory Memorandum’s justification for this
provision, the Committee chose to leave this matter for consideration of the
Senate as a whole.[52]
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.[53]
As noted above, the Senate Scrutiny of Bills Committee
also raised questions about the removal of the disclosure regime for
criminological research from the Information Commissioner’s jurisdiction.
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 ACIC Board will undertake
this role, although neither the CEO nor the Board are criminologists.[54]
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.[55]
The Bill effectively abolishes this position, although the Explanatory
Memorandum states that under the merged agency structure, a Research Advisory
Committee will continue as a non-legislated body providing advice to the ACIC
CEO and ACIC Board.[56]
The role and priorities of the ACIC Board would be quite different from that of
the current Advisory Council—the Board being composed in the main by police
commissioners and the Director-General of ASIO[57],
the Advisory Council currently being composed of representatives of federal,
state and territory governments. As noted above, the role and membership of the new Advisory Committee has been further clarified
in the new Explanatory Memorandum, which
states that ‘the ACIC Board will take[58]
advice from a non-legislated Research Advisory Committee about the ACIC’s
strategic research priorities and Criminology Research Grants program’.[59]
The Research Advisory Committee will consist of existing Criminology Research Advisory Council members (being state
and territory justice agencies and the Commonwealth Attorney-General’s
Department), two law enforcement representatives, two members from the ACIC and
a representative from the Australian and New Zealand Society of Criminology
(ANZSOC). According to the Explanatory Memorandum, ‘including an ANZSOC
representative ensures that there will be a specialised and independent
criminology research voice on the Committee, which does not currently exist on
the Advisory Council’.[60]
Concluding comments
The Government has stated that the merger of the AIC and
ACIC 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’.[61]
The concluding comments in the Bills Digest on the 2015
Bill, in noting concerns with the Bill, suggested that Parliament might
consider whether the Bill ensures that the priorities of the AIC will not be
lost or subsumed in the merger; or whether under the merger a potential for a
conflict of interest could arise, such as when the AIC is conducting research
that requires critiquing the ACC priorities and operations. The Digest further
observed:
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.[62]
Subsequent to publication of that Bills Digest, a Senate
Committee inquiry into the 2015 Bill heard evidence from stakeholders
questioning the merger and expressing concerns about the possible loss of
integrity and independence of criminological research in Australia and the risk
that the new ACJRC’s research agenda and priorities would become too focussed
on policing and law enforcement.
While the 2016 Bill essentially replicates the previous
2015 Bill, the new Explanatory Memorandum and to a lesser degree the Minister’s
second reading speech have been altered in quite significant respects. These
changes would suggest that the Government has gone some way to address the concerns
of stakeholders. For example the Explanatory Memorandum now confirms that the
remit of the work of the ACIC’s criminological function will continue to be
widely defined as crime and justice issues of national importance, extending
beyond purely law enforcement. In addition, the Research Advisory Committee’s
role and profile while not enshrined in the Bill is to be strengthened; the
ACIC Board is to consult the Research Advisory Committee; the Committee’s
membership is to include a member of ANZSOC; and the head of the ACJRC is to be
a criminologist.
It is of note that none of these changes have a
legislative basis and the Bill has not been re-drafted in any way to strengthen
the position of the ACJRC and the Research Advisory Committee. Whether the
changed emphasis and the clarifications added to the Explanatory Memorandum
will mitigate some of the concerns expressed by stakeholders and opposition
parties during the 2015 Senate Committee inquiry remains to be seen.
[1]. Parliament of Australia, ‘Australian Crime Commission Amendment (Criminology Research) Bill
2015 homepage’, Australian Parliament website.
[2]. Australian Crime
Commission Act 2002.
[3]. Criminology Research Act
1971.
[4]. Public Governance,
Performance and Accountability Act 2013.
[5]. Public Service Act 1999.
[6]. CR Act, section 23.
[7]. Australian
Institute of Criminology (AIC), Annual
report 2013–14, AIC, Canberra, October 2014, p. 6.
[8]. ‘The Criminology Research Advisory Council’, Criminology Research Grants website, last updated 19 April 2016.
[9]. AIC, Annual report 2013–14, op. cit., p. 6.
[10]. For background on this merger see: C Barker, Australian Crime Commission Amendment (National Policing
Information) Bill 2015 and Australian Crime Commission (National Policing
Information Charges) Bill 2015, Bills digest, 73, 2015–16,
Parliamentary Library, Canberra, 2016.
[11]. Australian Crime Commission (ACC), Annual
report 2014–15, ‘Chapter 1: Agency overview’, ACC, Canberra, October 2015,
p. 9.
[12]. Ibid.
[13]. S
Harris Rimmer and B Jaggers, Australian Crime Commission Amendment Bill 2007, Bills
digest, 54, 2007–08, Parliamentary Library, Canberra, 2007, p. 3.
[14]. ACC Act, section 47.
[15]. 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.
[16]. Ibid.
[17]. A Greene, ‘Budget
2015: Crime Commission tipped to merge with Institute of Criminology in budget
shake-up’, Australian Broadcasting Corporation (ABC) News, (online edition), 8 May 2015.
[18]. Senate
Legal and Constitutional Affairs Legislation Committee, Official
committee Hansard, 27 May 2015, p. 83.
[19]. M Keenan (Minister for Justice) Interim
director for the Australian Institute of Criminology, media release, 13
July 2015.
[20]. M Keenan (Minister for Justice), New
Crime and Justice Research Centre, media release, 25 September 2015.
[21]. Ibid.
[22]. Senate
Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Crime Commission Amendment (Criminology Research) Bill 2015,
The Senate, Canberra, 26 November 2015.
[23]. Senate Standing Committee on Legal and Constitutional
Affairs, Australian
Crime Commission Amendment (Criminology Research) Bill 2016, The
Senate, Canberra, November 2015, p. 13.
[24]. Ibid., pp 15-16.
[25]. Australian Greens, Dissenting report, Senate
Standing Committee on Legal and Constitutional Affairs, Australian Crime
Commission Amendment (Criminology Research) Bill 2016, The Senate,
Canberra, November 2015, p. 17.
[26]. Senate Standing Committee for the Scrutiny of Bills
(Scrutiny of Bills Committee), Alert
digest, 12, 2015, The Senate, 25 March 2015, p. 2.
[27]. Scrutiny of Bills Committee, Report,
14, 2015, The Senate, Canberra, 2 December 2015, p. 764.
[28]. Ibid.
[29]. Senate Standing Committee on Legal and Constitutional
Affairs, Australian Crime Commission Amendment (Criminology Research) Bill
2016, op. cit., p. 15.
[30]. Ibid., pp. 15–16.
[31]. N McKim (Australian Greens Senator), Getting rid of Australian Institute of Criminology
counter-productive, media release,
5 November 2015.
[32]. Senate Legal and Constitutional
Affairs Legislation Committee, Official committee Hansard, op. cit., p. 84.
[33]. Australian Greens, Dissenting report, Australian Crime
Commission Amendment (Criminology Research) Bill 2016, op. cit., p. 18.
[34]. Quoted
in: Senate Standing Committee on Legal and Constitutional Affairs, Australian
Crime Commission Amendment (Criminology Research) Bill 2015, op. cit., p. 8.
[35]. Ibid., p. 17.
[36]. Ibid.,
p. 8
[37]. Ibid., p. 9.
[38]. Ibid., pp. 9–10.
[39]. Explanatory
Memorandum, Australian Crime Commission Amendment (Criminology Research)
Bill 2016, (referred to as Explanatory Memorandum 2016), p. 2.
[40]. The
Statement of Compatibility with Human Rights can be found at pages 3–4 of the
Explanatory Memorandum to the Bill.
[41]. Parliamentary Joint Committee on Human Rights, 2015 index of bills considered by the committee, The Senate, Canberra, 2015.
[42]. Australian Crime
Commission Act 2002.
[43]. Criminology Research Act
1971.
[44]. Explanatory Memorandum 2016, op. cit., pp. 6–7.
[45]. See pp. 10–11 of this Bills digest.
[46]. M
Keenan, ‘Second
reading speech: Australian Crime Commission Amendment
(Criminology Research) Bill 2016’, House of Representatives, Debates,
(proof), 14 September 2016, p. 26.
[47]. Item
6, Schedule 1.
[48]. Subsection
25A(9) of the ACC Act deals with confidentiality directions in relation
to examinations for the purposes of ACC operations/investigations.
[49]. Privacy Act 1988.
[50]. Explanatory Memorandum 2016, op. cit., p. 4. 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).
[51]. Ibid.
[52]. Scrutiny of Bills Committee, Alert digest, 12, 2015,
op. cit., p. 2.
[53]. Explanatory Memorandum 2016, op. cit., p. 9.
[54]. Although
the Minister’s second reading speech now states that the head of the ACJRC will
be a criminologist. See: M Keenan, ‘Second reading speech: Australian Crime
Commission Amendment (Criminology Research) Bill 2016’, op. cit., p. 26. The
previous second reading speech used the term ‘research specialist’. See: K
O’Dwyer, ‘Second
reading speech: Australian Crime Commission Amendment
(Criminology Research) Bill 2015’, House of Representatives, Debates,
(proof), 15 October 2015, pp. 11312–13.
[55]. Criminology Research Grants website,
op. cit.; CR Act, section 33.
[56]. Explanatory Memorandum 2016, op. cit., p. 7.
[57]. ACC
Act, section 7B.
[58]. The previous Explanatory Memorandum used the words ‘may take
advice’. See: Explanatory
Memorandum, Australian Crime Commission Amendment (Criminology Research)
Bill 2015, p. 2.
[59]. Explanatory Memorandum 2016, op. cit., p. 7.
[60]. Ibid.
[61]. Keenan,
New Crime and Justice Research Centre, op. cit.
[62]. M Neilsen, Australian
Crime Commission Amendment (Criminology Research) Bill 2015, Bills
digest, 44, 2015–16, Parliamentary Library, Canberra, 2015.
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