Australian Crime Commission Amendment (Special Operations and Special Investigations) Bill 2022


Bills Digest No. 32, 2022–23

PDF version [359KB]

Dr Shannon Torrens
Law and Bills Digest Section
7 November 2022

Key points

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

 

Date introduced:  26 October 2022
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 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 November 2022.

Purpose of the Bill

The purpose of the Australian Crime Commission Amendment (Special Operations and Special Investigations) Bill 2022 (the Bill) is to provide greater certainty regarding the powers of the Board of the Australian Criminal Intelligence Commission (ACIC) to authorise special ACIC operations and special ACIC investigations (Explanatory Memorandum (EM), p. 2).

The Government outlines that Australian law enforcement and national security agencies require special ACIC operations and special ACIC investigations to understand transnational, serious, and organised crime across Australia (EM, p. 2).

The amendments are intended to simplify the determination drafting process and render determinations easier to understand to ensure that the Board can continue to make the necessary determinations to authorise special ACIC operations and special ACIC investigations (EM, p. 2).

The Bill will:

The Attorney-General noted in the Bill’s Second Reading Speech that the amendments were necessary because:

… the existing provisions in the [ACC Act] include key definitions which cross-refer to other definitions that are central to the process for making determinations. This layering of definitions adds unnecessary complexity to the process in making determinations.

The amendments are therefore focused on clarity rather than being substantive changes. The Attorney-General explained:

The bill does not expand or otherwise alter the powers available to the ACIC when undertaking ACIC special operations or special investigations.

Background

Australian Criminal Intelligence Commission

The Australian Criminal Intelligence Commission (ACIC‑known as the Australian Crime Commission for legal purposes) is a Commonwealth statutory agency, established under the ACC Act.

The ACIC is Australia’s national criminal intelligence agency and ‘protects Australia from serious criminal threats through coordinating a strategic response and collecting, assessing and disseminating intelligence and policing information.’ ACIC was formed when the Australian Crime Commission and CrimTrac merged in 2016.

ACIC is situated within the Attorney-General’s portfolio and is accountable to the Attorney‑General.

ACIC says of its responsibilities:

We work with our national and international partners to conduct investigations, collect intelligence
and furnish advice and assessments to combat serious and organised crime, including cybercrime
and national security threats. We are the conduit for sharing criminal information and intelligence
between all federal, state and territory law enforcement agencies.

Specific functions of ACIC include:

  • collecting, correlating, analysing, and disseminating criminal intelligence and information
  • maintaining a national criminal intelligence database
  • developing strategic criminal intelligence assessments and advice on national criminal intelligence priorities
  • conducting investigations and intelligence operations into federally relevant criminal activity
  • providing and maintaining systems that allow information sharing for policing and law enforcement agencies
  • providing nationally coordinated criminal history checks.

The ACIC Board and coercive powers

The Board of the ACIC represents Commonwealth, state and territory law enforcement and key national security and regulatory agencies. The Board provides strategic direction to ACIC, authorises intelligence operations and investigations and authorises by determination, a special ACIC operation or special ACIC operation to occur which allows the use of ACIC’s coercive powers.

The coercive powers of ACIC are used to obtain information when the Board determines that it is in the public interest to do so. The coercive powers can authorise ACIC examiners, who are appointed by the Governor-General, to compel people, corporations, or a Commonwealth government agency to give evidence for a special operation or investigation. Examinations are held in private, and witnesses may claim protection so that what they provide is not admissible in evidence in a criminal proceeding against them, except in limited circumstances. Examiners can also issue notices requiring the production of documents or things related to a special operation or investigation.

ACIC special operations and investigations

Special operations conducted by ACIC focus on gathering intelligence on a criminal activity to inform decisions about the extent, impact, and threat of that activity. For example:

Special investigations collect intelligence and disrupt and deter criminal groups through collecting evidence that may result in their arrest and/or seizures of illegally obtained assets. For example:

Committee consideration

The Bill has not been referred to any committee for inquiry or report.

Senate Standing Committee for the Selection of Bills

At the time of writing the Senate Standing Committee for the Selection of Bills had deferred consideration of this Bill to its next meeting (Report 6, 2022).

Senate Standing Committee for the Scrutiny of Bills

At the time of writing, the Senate Standing Committee for the Scrutiny of Bills had not yet considered the Bill (Index of Bills Considered by the Committee as at 27 October 2022).

Policy position of non-government parties/independents

At the time of writing, non-government parties and independents have not commented publicly on the measures contained in the Bill.

Position of major interest groups

At the time of writing, major interest groups have not commented publicly on the measures contained in the Bill.

Financial implications

The EM to the Bill advises that the Bill will not have a financial impact on the Commonwealth (p. 2).

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 with human rights because it promotes the protection of human rights (EM, p. 4).  

Parliamentary Joint Committee on Human Rights

The Committee has not yet considered the Bill.

Key issues and provisions

The Bill makes a number of definitional rather than substantive changes, primarily to the ACC Act.

Australian Crime Commission Act 2002

Schedule 1 of the Bill amends the ACC Act to firstly insert a new term: ‘federally relevant crime’ into subsection 4(1) of the Act (Item 1).

The new definition in the Bill provides:

federally relevant crime means a relevant crime that is:

(a) an offence against a law of the Commonwealth or of a Territory; or

(b) an offence against a law of a State that has a federal aspect.

The EM notes that:

The effect of this amendment is to reduce the multiple layers of definitions that collectively determine the jurisdictional limits of the Board’s determination power, and reduce unnecessary complexity in the legislative requirements for making and framing Board determinations. This will make determinations and the scope of the proper exercise of this power by the Board easier to understand. The amendment does not expand the power or jurisdiction of the Board (p. 6).

The Bill repeals (through Item 2) the present definition of ‘federally relevant criminal activity’ at subsection 4(1) of the ACC Act. This definition is currently:

federally relevant criminal activity means:

(a)   a relevant criminal activity, where the relevant crime is an offence against a law of the Commonwealth or of a Territory; or

(b)  a relevant criminal activity, where the relevant crime:

(i)  is an offence against a law of a State; and

(ii)  has a federal aspect.

The Bill also changes the definition of ‘Indigenous violence or child abuse’ through omitting the word ‘committed’ (Item 3). The current text reads (with proposed deletion underlined):

Indigenous violence or child abuse means serious violence or child abuse committed against an Indigenous person.

The Government notes:

This amendment is required to reflect the new definition of relevant crime under subsection 4(1) which includes crimes that may have been, may be being, or may in future be committed contrary to a law of the Commonwealth, or a State or Territory. The operation of the paragraph is not altered, other than to reflect the new definition (EM, p. 6).

As a consequential amendment, the term ‘federally relevant criminal activity’ is omitted from the definition of ‘intelligence operation’ under current subsection 4(1) of the ACC Act and substituted with ‘a federally relevant crime’ (Item 4). The current text reads (with amended portion underlined):

intelligence operation means an operation that is primarily directed towards the collection, correlation, analysis or dissemination of criminal information and intelligence relating to federally relevant criminal activity, but that may involve undertaking investigations relating to federally relevant criminal activity.

However, an intelligence operation does not include an integrity operation.

Further changes to subsection 4(1) of the ACC Act include that the definition of ‘relevant crime’ is repealed and substituted with a new definition of ‘relevant crime’ (Item 5). The current text reads:

relevant crime means:

(a)  serious and organised crime; or

(b)  Indigenous violence or child abuse.

Note: See also subsection (2) (which expands the meaning of relevant crime in certain circumstances).

The proposed amended definition reads:

relevant crime means a serious and organised crime or Indigenous violence or child abuse:

(a) that may have been, may be being, or may in future be, committed; and

(b) that is an offence against a law of the Commonwealth, of a State or of a Territory.

Note: See also subsection (2) (which expands the meaning of relevant crime in certain circumstances).

The Government notes:

This new definition combines elements of the previous definitions of relevant crime and relevant criminal activity (the latter to be repealed) in order to simplify and streamline the multiple levels of definitions. The new definition does not expand the power or jurisdiction of the Board (EM, p. 6).

The current definition of ‘relevant criminal activity’ in subsection 4(1) of the ACC Act is repealed (Item 6) as it has been effectively incorporated into the proposed definition of ‘relevant crime’, discussed above. The EM explains the purpose of this change:

The removal of this definition streamlines the layers of definitions in the ACC Act that relate to the Board’s power to authorise by a determination a special ACIC operation or special ACIC investigation to occur (p. 7).

The current text reads:

relevant criminal activity means any circumstances implying, or any allegations, that a relevant crime may have been, may be being, or may in future be, committed against a law of the Commonwealth, of a State or of a Territory.

The current definition of ‘special ACC investigation’ in subsection 4(1) is repealed and substituted with a new definition (Item 7). The current text reads:

special ACC investigation means an investigation relating to federally relevant criminal activity that the Board has authorised to occur.

Note: The Board authorises such an investigation by making a determination under subsection 7C(3). A special ACC investigation can occur only while the determination is in force (see subsection 7C(4F)).

The new definition provides:

special ACC investigation means an investigation relating to a federally relevant crime that the Board has authorised to occur under subsection 7C(3).

Note: A special ACC investigation can occur only while a determination under subsection 7C(3) is in force (see subsection 7C(4F)).

The Government explains: ‘The new definition ensures consistency with the definitional changes in the Bill which replace the definition of federally relevant criminal activity with the new definition “federally relevant crime”.’ (EM, p. 7).

Further, the current definition of ‘special ACC operation’ in subsection 4(1) of the ACC Act is repealed and substituted with a new definition (Item 8). The current text reads:

special ACC operation means an intelligence operation that the Board has authorised to occur.

Note: The Board authorises such an operation by making a determination under subsection 7C(2). A special ACC operation can occur only while the determination is in force (see subsection 7C(4E)).

The proposed amended text reads:

special ACC operation means an intelligence operation that the Board has authorised to occur under subsection 7C(2).

Note: A special ACC operation can occur only while a determination under subsection 7C(2) is in force (see subsection 7C(4E)).

Items 9 to 11 make consequential amendments to section 4A of the ACC Act, which identifies when State offences have a federal aspect for the purposes of the Act. The changes reflect the terminological changes introduced by other items of the Bill (such as the replacement of the term ‘relevant criminal activity’ with ‘relevant crime’).

Further changes are proposed for section 7A of the ACC Act which sets out the functions of the ACC. Item 13 of the Bill omits the words ‘when authorised by a determination made by the Board’ from paragraphs 7A(b) and (c) of the ACC Act. The current text states (with proposed deleted text underlined):

The ACC has the following functions:

(a)   to collect, correlate, analyse and disseminate criminal information and intelligence and to maintain a national database of that information and intelligence;

(b)  when authorised by a determination made by the Board—to undertake special ACC operations;

(c)  when authorised by a determination made by the Board—to undertake special ACC investigations;

As noted in the EM, this is distinct from the current provisions in that:

Subsections (b) and (c) of section 7A now provide that it is a function of the ACC to undertake special ACC operations and special ACC investigations, without referencing that special ACC operations and special ACC investigations are authorised by a determination of the Board. This amendment does not change the process by which the Board authorises a special ACIC operation or special ACIC investigation, nor does it allow the ACIC to undertake a special ACIC operation or special ACIC investigation that has not been authorised by the Board (p. 8).

Section 7C of the ACC Act sets out the functions of the Board. Current paragraphs (c) and (d) of subsection 7C(1) of the ACC Act are repealed through the Bill (Item 14). The current text reads (with the proposed repealed paragraphs underlined):

(1)  The Board has the following functions:

(a)    to determine national criminal intelligence priorities;

(aa)  to determine priorities in relation to national policing information systems and services;

(b)  to provide strategic direction to the ACC and to determine the priorities of the ACC;

(c)    to authorise, by determination, a special ACC operation to occur;

(d)  to authorise, by determination, a special ACC investigation to occur;

The Bill inserts the following new paragraphs in their place:

        (c)                to authorise, by determination made under subsection (2), an intelligence operation to occur;

        (d)               to authorise, by determination made under subsection (3), an investigation relating to a federally relevant crime to occur.

These amendments do not make any substantive changes to the provision.

The Board makes determinations authorising special ACC operations under subsection 7C(2) and  special ACC investigations under subsections 7C(3) of the ACC Act.

Item 16 omits ‘a special ACC operation’ from subsection 7C(2) of the ACC Act and substitutes ‘an intelligence operation’. This subsection provides that the Board may make a determination in writing authorising an intelligence operation to take place. The current text reads (with proposed deletion underlined):

(2)  The Board may make a determination, in writing, authorising a special ACC operation to occur.

Note 1:      See also subsection 7G(4) for the voting rule that applies in relation to such a determination.

Note 2:      See also Division 2 for the examination powers available if a determination is made.

Item 17 inserts proposed note 1A after subsection 7C(2) and before note 1, which states that an intelligence operation authorised by the Board is a special ACC operation:

Note 1A: An intelligence operation that the Board has authorised to occur under this subsection is a special ACC operation (see the definition of special ACC operation in subsection 4(1)).

Item 18 is a consequential amendment which omits ‘a special ACC investigation’ from subsection 7C(3) of the ACC Act and substitutes ‘an investigation relating to a federally relevant crime’. Subsection 7C(3) of the ACC Act provides that the Board can make a determination, in writing, authorising an investigation to occur. The current text reads (with proposed deletion underlined):

(3)  The Board may make a determination, in writing, authorising a special ACC investigation to occur.

Note 1:      See also subsection 7G(4) for the voting rule that applies in relation to such a determination.

Note 2:      See also Division 2 for the examination powers available if a determination is made.

Further, after subsection 7C(3) and before note 1, the following is proposed to be inserted (Item 19) to provide that an investigation relating to federally relevant crime that has been authorised by the Board is a special ACC investigation:

Note 1A: An investigation relating to a federally relevant crime that the Board has authorised to occur under this subsection is a special ACC investigation (see the definition of special ACC investigation in subsection 4(1)).

Thus the provisions are re-worded, but it remains the case that the Board authorises a special ACC operation under subsection 7C(2) and a special ACC investigation under subsections 7C(3) of the ACC Act.

Subsection 7C(4A) provides that the only condition for making a determination under subsections 7C(2) or (3) is that:

the Board considers, on the basis of the collective experience of the Board members voting at the meeting when a determination is made, that it is in the public interest that the Board authorise the special ACC operation or special ACC investigation to occur. 

Further consequential amendments include omitting the phrase ‘the special ACC operation or special ACC investigation’ from subsection 7C(4A) and substituting ‘an intelligence operation, or an investigation relating to a federally relevant crime’ (Item 23).

As noted in the EM (p. 10):

Subsection 7C(4A) of the ACC Act sets out the only condition for the exercise of the power under new subsection (2) or (3) of section 7C, which is that the Board considers, on the basis of the collective experience of the Board members voting at the meeting when a determination is made, that it is in the public interest that the Board authorise the intelligence operation or investigation relating to federally relevant crimes to occur. The amendment to this subsection does not alter the condition for the Board to exercise powers under subsections 7C(2) or 7C(3).

Item 24 omits ‘criminal activity’ from paragraphs 7C(4B)(a) and (b) of the ACC Act and substitutes ‘crimes’. Subsection 7C(4B) of the ACC Act outlines when a determination can be made and when it has effect.

Item 26 repeals subsection 7C(4C) of the ACC Act and then substitutes two subsections (4C) and (4CA) which are reworded to incorporate the definitional changes introduced by the earlier items in the Bill.

The EM clarifies: ‘This amendment does not change the obligation of the Board to set out the purpose of the operation or investigation in the relevant determination under subsection 7C(2) or 7C(3).’ (p. 11).

The term ‘criminal activities’ is omitted from subsection 21(1) and (2) of the Act and substituted with ‘crimes’ (Item 27). Section 21 of the ACC Act sets out arrangements for the Board to obtain information or intelligence. The current text reads (with proposed deletions underlined):

21  Arrangements for Board to obtain information or intelligence

(1)  The Commonwealth Minister may make an arrangement with the appropriate Minister of the Crown of a State for the Board to receive from the State, or from an authority of the State, information or intelligence relating to relevant criminal activities.

(2)  The Board may make an arrangement with a body or person, not being a State or an authority of a State, for the CEO to obtain from that body or person information or intelligence relating to relevant criminal activities.

Section 55A of the ACC Act provides that a state law may confer duties, functions and powers on the ACC, constitutive bodies of the ACC or judges of specified federal courts. Consequential amendments are made to section 55A (Items 28 to 34) and section 55B Item 35), which provides the ACC with a choice between exercising Commonwealth powers or powers conferred by a state law to reflect the changes in terminology introduced by other Items). The amendments do not propose any substantive changes.

Parliamentary Joint Committee on Law Enforcement Act 2010

Item 39 provides for a new definition of ‘relevant crime’ in current section 3 of the PJCLE Act to have the same meaning as the definition contained in the ACC Act. Section 3 of the PJCLE Act provides for the definitions of terms in that Act. This inclusion is intended to replace the definition of ‘relevant criminal activity’ in Section 3 of the Act which is repealed by Item 40. The proposed definition comprises:

relevant crime has the same meaning as in the Australian Crime Commission Act 2002.

The EM notes: ‘these amendments are required to reflect the changes to the definitions made by this Bill and ensure consistency and the continued operation of the PJCLE Act in respect of the ACC.’ (p. 14)

Telecommunications (Interception and Access) Act 1979

Item 42 of the Bill repeals the definitions of ‘federally relevant criminal activity’ and ‘special investigation’ from subsection 5(1) of the TIA Act (interpretation) to ensure consistency with terminology in the ACC Act.

Item 43 is a consequential amendment and omits the term ‘an ACC special investigation’ from paragraph 5D(1)(f) of the TIA Act and substitutes it with ‘a special ACC investigation’, for consistency with the amendments proposed to the ACC Act.

Application and savings provisions

Items 44 to 48 in Part 2 of the Bill relate to application and saving provisions.

Item 45 provides that subsections 7C(2) to (4CA) of the ACC Act, as amended or inserted by Items 16 to 26 of Part 1 of Schedule 1, apply in relation to a determination made after the commencement of the Bill.

Existing determinations are addressed by Item 46 which provides that a determination made under subsection 7C(2) or (3) of the ACC Act prior to the commencement of the Bill and that is still in force immediately before commencement, will remain in force after commencement as if it had been made under the amended provisions.

Item 47 provides that an arrangement that the Commonwealth Minister made under subsection 21(1) with a state Minister for access by the Board to information or intelligence relating to criminal activities, before the Bill commences; or an arrangement that the Board made under subsection 21(2) for the CEO to obtain such information or intelligence before commencement, continues in effect after the Bill commences as if it had been made under those provisions as amended by Item 27.

Item 48 provides that ‘a warrant issued under section 46, 46A or 48 of the TIA Act before the commencement of this Bill, and that is still in force immediately before commencement, will remain in force, as if any reference in the warrant to an ACC special investigation were a reference to a special ACC investigation (within the meaning of the ACC Act, as amended).’ (EM, pp. 15–16).

 

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