Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2002-2003
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
AUSTRALIAN CRIME COMMISSION AMENDMENT BILL 2003
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Justice and Customs,
Senator the Honourable Chris Ellison)
AUSTRALIAN CRIME COMMISSION AMENDMENT BILL 2003
GENERAL OUTLINE
The purpose of the Australian Crime Commission
Amendment Bill (ACC Amendment Bill) is to ensure the proper functioning of the
Australian Crime Commission (ACC), under the cooperative scheme with States and
Territories, following its transition from the National Crime Authority (NCA) on
1 January 2003.
The ACC Act provides for the conferral of functions,
duties and powers on the ACC under State legislation. This is to enable the ACC
to investigate, and conduct intelligence operations in relation to, serious and
organised crimes that are offences under State legislation. The ACC Amendment
Bill addresses a number of problems with the ACC Act that have been identified
by States during the process of preparing corresponding State legislation.
These amendments are necessary to ensure the proper functioning of the ACC under
the cooperative legislative scheme.
The ACC Amendment Bill also proposes
to address possible gaps in the coverage of the existing transitional provisions
that have been identified since the establishment of the ACC. In so doing, the
Bill fulfils an undertaking made to the Senate Standing Committee on Regulations
and Ordinances by the Minister for Justice and Customs to address a transitional
issue in relation to telecommunications interception warrants through amendment
to the ACC Act. In order to ensure a smooth and effective transition from the
NCA to the ACC, and thereby to give effect to the intention of Parliament when
the Australian Crime Commission Establishment Act 2002 (ACC Establishment
Act) was enacted, the commencement of the transitional amendments to the
ACC Act would have retrospective application from the date of the establishment
of the ACC.
The ACC Amendment Bill also proposes to rectify a number of
other oversights which occurred during the drafting of the ACC Establishment Act
by adding to the Minister’s powers to suspend the Chief Executive Officer
(CEO) of the ACC, and deleting a provision of the ACC Act which has since been
identified as unnecessary.
The Bill also proposes a small number of
consequential amendments to other Commonwealth legislation.
It proposes
to amend the Administrative Decisions (Judicial Review) Act 1977 (AD(JR)
Act) to exempt certain decisions made under the ACC Act from being subject to
requests for statements of reasons under section 13 of that Act.
It
proposes to amend the Australian Postal Corporation Act 1989 (APS Act) to
allow postal officers to pass information and documents to the ACC where this
disclosure is required by a corresponding State or Territory law.
FINANCIAL IMPACT
The amendments in this Bill have no financial impact on Government revenue.
This is a formal clause which provides for the Act, when it is enacted, to be cited as the Australian Crime Commission Amendment Act 2003.
This clause provides for the commencement of the Act. It provides that
all provisions commence on the day the Act receives the Royal Assent, other than
items 1 to 16 of Schedule 1 (the transitional provisions), which have
retrospective application from the date of the establishment of the ACC –
i.e. from 1 January 2003.
This clause is the formal enabling provision for the Bill. It provides
that each Act specified in a Schedule is amended in accordance with the
applicable items of the Schedule. This Bill amends the Australian Crime
Commission Act 2002, the Administrative Decisions (Judicial Review) Act
1977, and the Postal Corporation Act 1989.
The clause
also provides that any other item in a Schedule has effect according to its
terms. This is a standard enabling clause for transitional, savings and
application items in amending legislation.
This item repeals section 15 of the ACC Act which provides for examiners
to have concurrent functions and powers under State laws in certain
circumstances. This provision is to be repealed as it is unnecessary given the
development of section 55A of the ACC Act, which contains greater safeguards
about the circumstances in which functions, powers and duties may be conferred
on examiners under State laws. Under the ACC Act, examiners are independent
statutory officers who have the capacity to exercise coercive investigation
powers in certain circumstances.
The safeguards in section 55A on the
types of functions, powers and duties that may be conferred on examiners under
State laws are:
• the function, power or duty must relate to the
investigation of, or an intelligence operation in relation to, serious and
organized crime that is an offence under State law,
• the function,
power or duty must be either of the same kind as those conferred under the
Commonwealth legislation or specifically prescribed in Commonwealth regulations,
and
• the exercise of the function, power or duty must be approved by
the ACC Board.
The lesser safeguards in section 15 of the ACC Act on the
types of functions and powers that may be conferred on examiners under State
laws are:
• the Inter-Governmental Committee must consent to the
conferral, and
• the Minister must inform the examiner in writing that
he or she 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 Act.
This item amends subsection 43(1) of the ACC Act to give the Commonwealth
Minister with responsibility for administering the ACC Act the capacity to
suspend the Chief Executive Officer (CEO) if the Minister is of the opinion that
the CEO should be suspended while allegations of misbehaviour against the CEO
are investigated. Subsection 43(1) already gives the Minister the capacity to
suspend the CEO where the Minister is of the opinion that the performance of the
CEO has been unsatisfactory. It is a requirement of subsection 43(1A) that the
Minister not suspend the CEO unless the Minister has first sought and considered
the advice of the Board of the ACC in relation to the proposed suspension. This
requirement will also apply to the new suspension power inserted by this
item.
Section 44 of the ACC Act gives the Governor-General the power to
terminate the CEO for misbehaviour or where the Minister is of the opinion that
the performance of the CEO has been unsatisfactory. It was an oversight during
the drafting of the Australian Crime Commission Establishment Act 2002
that no power was given to the Minister to suspend the CEO pending the
investigation of allegations of misbehaviour.
Subsection 51(2) of the ACC Act makes it an offence for the CEO, a member
of the ACC Board, a member of the staff of the ACC, and an examiner to make a
record of any information, or divulge or communicate any information, where that
information was acquired by that person through the performance of that
person’s duties under the ACC Act. It is an exception to this offence
where the information is recorded, divulged or communicated for the purposes of
the ACC Act or through the performance of the person’s duties under the
ACC Act.
The purpose of this item is to broaden the scope of the
exception to the offence created by subsection 51(2) so that it is not an
offence for information acquired during the performance of duties under the ACC
Act to be recorded, divulged or communicated for the purposes of a
“relevant Act” or through the performance of duties under a
“relevant Act”. Item 5 inserts a definition of “relevant
Act” which includes corresponding State Acts.
Subsection 51(3) of the ACC Act provides that the CEO, a member of the
Board, a member of the staff of the ACC, or an examiner shall not be required to
produce a document in a court, or divulge or communicate information to a court,
that the person has acquired through the performance of his or her duties under
the ACC Act. There are a number of exceptions to this prohibition, and one of
the exceptions is where it is necessary for the document or information be
provided or divulged to the court for the purpose of carrying into effect the
provisions of the ACC Act. The purpose of item 4 is to broaden this exception
to apply where the disclosure is necessary for the purpose of carrying into
effect the provisions of a “relevant Act”. Item 5 inserts a
definition of “relevant Act” which includes corresponding State
Acts.
The purpose of item 5 is to insert a definition of “relevant
Act”, which is a term inserted by items 3 and 4. The term is defined as
including the ACC Act and corresponding State Acts which form part of the ACC
cooperative scheme by conferring functions, duties or powers on the
ACC.
Items 6 - 16
The purpose of items 6 – 16 is to
amend section 55A of the ACC Act (and other consequential provisions) to allow
State laws to confer functions, powers and duties on the Inter-Governmental
Committee of the ACC (IGC-ACC) and members of the Board.
Section 55A of
the ACC Act currently provides for the conferral of duties, functions and powers
by State laws on the ACC, the Board, the Chair of the Board, the Chief Executive
Officer of the ACC, and an examiner or a member of the staff of the ACC. The
omission of references in section 55A to the IGC-ACC and members of the Board
was an oversight during the drafting of section 55A.
States and
Territories are enacting ACC legislation which confers important duties,
functions and powers on the IGC-ACC and members of the Board. For instance, the
IGC-ACC has an important oversight function with respect to the circumstances in
which the ACC can employ its special investigation powers. Consistent with the
ACC Act, the legislation being enacted by States purports to give the IGC-ACC
power to revoke a determination that an investigation/intelligence operation is
a special investigation/intelligence operation (i.e. the determination which
triggers the application of special investigation powers).
Section 55A
provides that State laws can only confer functions, powers and duties on the ACC
and relevant officers in certain circumstances. Those same constraints will
also apply to conferrals on the IGC-ACC and members of the Board.
Item
17
The purpose of item 17 is to insert a transitional provision,
section 55D, into the ACC Act to address possible gaps in the coverage of the
existing transitional provisions that have been identified since the
establishment of the ACC.
The provision has been drafted in a general way
to address a range of transitional issues. Subsection 55D(1) ensures the
application of section 25B of the Acts Interpretation Act 1901 in
relation to the transition from the National Crime Authority to the ACC so that
the body known as the National Crime Authority is taken to have continued in
existence with the altered name Australian Crime Commission. Section 25B of the
Acts Interpretation Act 1901 provides that where the name of a body is
altered then the body continues its identity under the new name, and any
references in legal instruments or proceedings to the body under the old name
will be construed as referring to the body under the new name. The insertion of
subsection 55D(1) ensures that, for example, the ACC will be treated as the
successor of the NCA for matters such as representation in Court hearings and
investigations by the Commonwealth Ombudsman.
The insertion of subsection
55D(1) also honours an undertaking made to the Senate Standing Committee on
Regulations and Ordinances 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. That issue was addressed in
regulation 5 of the Australian Crime Commission Establishment (Transitional
Provisions) Regulations 2003. However, the Senate Standing Committee on
Regulations and Ordinances was uncomfortable about the use of subordinate
legislation to address this issue given that the regulation would have
retrospective application. The Minister for Justice and Customs gave an
undertaking to that Committee to consider including a provision to the same
effect as regulation 5 the next time legislation concerning the ACC came before
Parliament. Subsection 55D(1) is a general transitional provision designed to
cover this transitional issue and any others that are analogous to
it.
The purpose of subsection 55D(2) is to ensure that, regardless of
changes to the internal hierarchy of the organisation (i.e. the reallocation of
functions between offices and the creation of new offices), where a matter that
could be dealt with under the old National Crime Authority legislation can still
be dealt with under the ACC Act, old matters relating to the National Crime
Authority can be dealt with under the corresponding provision of the ACC Act.
This provision has been crafted in a general way to address a range of
transitional issues, including:
• giving the CEO of the ACC the
capacity to consider the reimbursement of witness expenses under subsection
26(2) of the ACC Act for attendance at an NCA hearing, and
• giving a
court the capacity to issue a certificate to the CEO under subsection 25A(12) of
the ACC Act in relation to evidence given at an NCA hearing.
In order to
ensure a smooth and effective transition from the National Crime Authority to
the ACC, and thereby to give effect to the intention of Parliament when the
Australian Crime Commission Establishment Act 2002 was enacted, the
commencement of this item will have retrospective application from the date of
the establishment of the ACC (i.e. 1 January 2003).
Administrative Decisions (Judicial Review) Act
1977
Item 1
The purpose of this item is to amend
schedule 2 of the Administrative Decisions (Judicial Review) Act 1977
(AD(JR) Act) to exempt certain decisions made under the ACC Act from being
subject to requests for statements of reasons under section 13 of the AD(JR)
Act.
Section 13 of the AD(JR) Act provides that, in specified
circumstances, reasons for an administrative decision may be obtained by an
applicant. Schedule 2 of the AD(JR) Act sets out classes of decisions that are
exempt from the operation of section 13. Amongst other matters, schedule 2
provides that section 13 does not apply to ‘decisions relating to the
administration of criminal justice’, which includes decisions in
connection with investigations.
Without the operation of this item,
schedule 2 of the AD(JR) Act would not apply to decisions regarding
“intelligence operations” carried out by the ACC. An
“intelligence operation” is defined in the ACC Act as “the
collection, correlation, analysis or dissemination of criminal information and
intelligence relating to federally relevant criminal
activity”.
Further, without the operation of this item, schedule 2
of the AD(JR) Act would be limited to investigations of offences against a law
of the Commonwealth or of a Territory, whereas the ACC Act allows the ACC to
investigate or conduct intelligence operations concerning offences against a law
of a State that have a Federal aspect.
This item amends the list of
exemptions in schedule 2 of the AD(JR) Act to cover decisions made under the ACC
Act in connection with: intelligence operations, and investigations of State
offences that have a federal aspect.
Australian Postal Corporation
Act 1989
Items 2 and 3
The purpose of these items
is to amend the Australian Postal Corporation Act 1989 (APC Act) to allow
information and documents to be passed by current and former employees of
Australia Post to the ACC where this disclosure is required by a corresponding
State law. Without the operation of these items, current and
former Australia Post employees would be able to disclose information and
documents to the ACC under the ACC Act, however they would not be able to
disclose information to the ACC under a corresponding State law.
Item 2
pertains to current employees of Australia Post, and item 3 pertains to former
employees of Australia Post.