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2002
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
SENATE
AUSTRALIAN CRIME COMMISSION
ESTABLISHMENT BILL 2002
REVISED EXPLANATORY
MEMORANDUM
(Circulated by authority of the Minister for Justice
and
Customs, Senator the Honourable Chris Ellison)
THIS
MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY THE HOUSE OF REPRESENTATIVES TO
THE BILL AS INTRODUCED
AUSTRALIAN CRIME COMMISSION ESTABLISHMENT BILL 2002
OUTLINE
This Bill establishes the Australian Crime Commission (ACC) in accordance
with the agreement reached between the Prime Minister, the Premiers of the
States and the Chief Ministers of the Australian Capital Territory and the
Northern Territory. It will combine the functions of the National Crime
Authority (NCA), the Australian Bureau Crime Intelligence (ABCI) and the Office
of Strategic Crime Assessments (OSCA).
Schedule 1 of the Bill will amend
the National Crime Authority Act 1984 (NCA Act) to replace the National
Crime Authority (NCA) with the ACC. The functions of the ACC are set out in
the Bill and reflect the role that the new body will have in relation to both
criminal intelligence and the investigation of federally relevant criminal
activity.
The Bill establishes the governing regime for the ACC,
including the establishment of a Board comprising the major players in law
enforcement in Australia from the Commonwealth, and the States and Territories.
The Board will have a pivotal role in determining national criminal intelligence
priorities and in overseeing the strategic direction of, and the priorities for,
the ACC.
The Bill will also create an office of Chief Executive
Officer of the ACC, who will be responsible for the management and
administration of the ACC in accordance with the policies and directions of the
Board. The CEO will be responsible for managing, coordinating and controlling
the ACC operations and investigations to prevent duplication of effort and to
ensure that resources are used as effectively and efficiently as possible to
implement the priorities of the Board. The CEO will ensure that the ACC
maintains its national focus by facilitating the dissemination of criminal
information and intelligence to relevant agencies.
While the Bill will
retain the existing Inter-Governmental Committee the functions of the IGC will
be amended to reflect the existence of the Board and to ensure that the IGC
maintains an appropriate monitoring and oversight role. Of importance, however,
are the amendments that will streamline the existing reference system to ensure
that cumbersome administrative processes do not hinder the ACC while at the same
time ensuring that the necessary accountability exists.
The Bill
maintains the existing powers that are available to the NCA and amends the
provisions to enable the ACC to have access, in accordance with a determination
of the Board, to investigatory powers in order for it to carry out both its
criminal intelligence and its investigatory roles.
The Board will have
the power to authorise the use of coercive powers for intelligence operations or
investigations. However, there are special requirements for the composition of
the Board and special voting requirements in relation to authorisation
applications. While the Board may authorise the availability of coercive
powers, the powers will be exercised by independent statutory officers called
examiners.
Examiners will exercise the coercive powers currently
available to the NCA. These powers will be available for special ACC operations
or investigations when the Board has determined that this is necessary in
accordance with the specified threshold test. While the CEO will be able to
direct an examiner to participate in a special ACC operation or special
investigation, the CEO will not have the power to direct the examiner as to
whether or how those powers are to be exercised.
The Bill will also
ensure that, where State legislation confers a function, duty or power on the
ACC, then the ACC will be able to undertake that function or exercise that power
or duty, in the same way that the NCA is currently able to act under State
legislation.
Schedule 1 of the Bill includes transitional provisions to
ensure that there is a seamless transition from the NCA, ABCI and OSCA to the
ACC.
Schedule 2 of the Bill amends a number of other Commonwealth Acts
consequential on the replacement of the NCA, ABCI and OSCA by the ACC, and on
the need to ensure that those Acts operate consistently with, and facilitate the
criminal intelligence role of the ACC.
Schedule 3 of the Bill contains
amendments that are contingent on the commencement of other Bills, in order to
ensure that there are no gaps in the statutory framework within which the ACC
will operate.
FINANCIAL IMPACT STATEMENT
The proposal is cost neutral. The Commonwealth confirms that the current
levels of funding provided for the existing agencies, as stipulated in the
Forward Estimates for the next three years by the Commonwealth, will be provided
to the ACC. Future funding levels will be subject to the normal budgetary
processes.
NOTES ON CLAUSES
Clause 1: Short title
The short title of this Act is the
Australian Crime Commission Establishment Act 2002.
Clause 2:
Commencement
This clause provides that clauses 1, 2 and 3 of the Bill
and any other provision that is not specifically mentioned in this commencement
provision, commence on the day on which the Act receives the Royal Assent.
Schedule 1, which contains the principle provisions that will establish
the Australian Crime Commission (ACC) via amendments to the National Crime
Authority Act 1984 (the NCA Act), will commence on 1 January 2003. Schedule
2, Items 1 to 115 and Items 119 to 226, which amend other Acts consequential on
the establishment of the ACC, also commence on 1 January 2003.
Schedule
2, Items 116 and 117, amend the Proceeds of Crime Act 2002 and will
commence on 1 January 2003 or immediately after the commencement of the relevant
provisions of the Proceeds of Crime Act 2002 whichever is the later
date.
Schedule 2, Item 118, amends the Radiocommunications Act
1992 and will commence on 1 January 2003 or immediately after the
commencement of the relevant provisions of the Communications Legislation
Amendment Act (No. 1) 2002 whichever is the later date.
Schedule 3,
Items 1 to 6 commence immediately after Schedule 1 commences, but they do not
commence at all if the Proceeds of Crime Act 2002 has not commenced by 1
January 2003.
Schedule 3, Items 7 to 14 and Item 17 commence immediately
after, and Schedule 3, Items 15 and 16 commence immediately before, the
commencement of the Proceeds of Crime Act 2002, but they do not commence
at all if the Proceeds of Crime Act 2002 commences before 1 January
2003.
Clause 3: Schedule(s)
This clause provides that each
Act that is specified in a Schedule is amended as set out in that Schedule.
Schedule 1 – Amendment of the National Crime Authority Act 1984
Part 1 - Amendments
The purpose of this Part is to amend
the NCA Act to replace the NCA with the ACC and to establish the governing and
administrative regime for the new body. The amendments
will:
• repeal the NCA and associated terminology, definitions and
concepts;
• establish the ACC and describe its
functions;
• establish the Board of the ACC and describe its
functions;
• provide for the administrative issues associated with the
Board such as holding meetings, quorums, voting and the role of
committees;
• rename, and revise the functions of, the
Inter-Governmental Committee;
• rename the Parliamentary Joint
Committee;
• create the position of CEO and set out the manner of
appointment and other provisions relating to conditions of
employment;
• create examiners and set out the manner of appointment
and other provisions relating to conditions of employment; and
• make
other changes to the NCA Act consequential on the establishment of the ACC and
its role in relation to criminal intelligence operations and investigations into
federally relevant criminal activity.
Item 1
This Item
amends the long title of the National Crime Authority Act 1984 to provide
that the long title of the Act is “An Act to establish the Australian
Crime Commission, and for related purposes”.
Item
2
This Item amends the short title of the Act so that the Act may be
cited as the Australian Crime Commission Act 2002. This means that
although the NCA Act has not been repealed, from 1 January 2003, it will be
known as the Australian Crime Commission Act 2002.
Items 3 to
28
These Items amend the interpretation section of the NCA Act to
insert definitions for terms that are relevant to the establishment and
operation of the ACC and to remove definitions for terms that relate to the NCA
and which are no longer required.
Definitions are inserted for the
following terms:
• ACC means the Australian Crime
Commission established by section 7 - see Item 35.
• ACC
operation/investigation. This term covers both the ACC’s function
in relation to intelligence operations and its function in relation to
investigating federally relevant criminal activity, and is used when the
particular provision (for example, the powers to issue a notice to produce)
applies to both functions.
The term is used throughout the Bill to
expand the operation of provisions in the NCA Act from their current application
with respect to the investigation of federally relevant criminal activity, to
cover the intelligence operation function of the
ACC.
• Board means the Board of the ACC established
by section 7B - see Item 35.
• CEO means the Chief
Executive Officer of the ACC appointed under section 37 - see Item
197.
• eligible Commonwealth Board member means the
Commonwealth members of the Board who are eligible to vote at Board meetings.
This excludes the CEO - see Item 35.
• examiner means
a person appointed by the Governor-General under section 46B - see Item 197.
An examiner is an independent statutory officer holder who will
undertake examinations for the purposes of ACC investigations/operations,
but only when that investigation or operations has been determined by the
Board to be a special ACC
operation/investigation.
• intelligence operation.
This, together with the definition of “serious and organised crime”,
is a key term in relation to the ACC.
“Intelligence
operation” has a broad meaning to ensure that, within constitutional
limitations, the ACC is able to undertake a criminal intelligence role. This
involves the collection, correlation, analysis and dissemination of criminal
information and intelligence, in relation to federally relevant criminal
activity.
This means that the ACC will be able to undertake, when
authorised by the Board, intelligence operations in relation to any
circumstances implying, or any allegation, that a serious and organised crime
(see below) has been, is being or may in the future be, committed against a law
of the Commonwealth or a law of the State or Territory (provided that the latter
has a federal aspect).
• member of the staff of the
ACC. This is a generic description and covers persons engaged under the
Public Service Act 1999, a person participating in an ACC
operation/investigation, a member of a task force established by the Board,
consultants, seconded persons, and the counsel assisting the ACC. The term is
generally used to describe who may exercise a particular power or function
conferred by a provision of the Act or another Act.
• serious
and organised crime. This is a key term in relation to the ACC as it
delineates the nature of the offences that the ACC may have regard to (and
criminal activity associated therewith) for both ACC intelligence operations and
investigations.
The ACC will be able to undertake, when authorised by
the Board, investigations in relation to federally relevant criminal activity.
That is, the ACC will be able to investigate any circumstances implying, or any
allegation, that a serious and organised crime has been, is being, or may in the
future be, committed against a law of the Commonwealth or a law of the State or
Territory (provided that the latter has a federal aspect).
The definition
draws on the existing definition of “federally relevant criminal
activity”, “relevant criminal activity” and “relevant
offence” to provide the criteria for determining when an offence will
amount to a serious and organised crime.
The list of offences covered
within the definition of serious and organised crime duplicates the list in the
definition of “relevant offence” in the NCA Act, with two
exceptions:
• “firearms“ has been added to the list to
ensure that the ACC has a clear power to investigate the illegal importation and
trafficking in firearms, and
• “cybercrime” has been added
in so that the ACC is able to act in relation to this emerging issue.
• special ACC operation/investigation. The Board is
empowered to authorise the ACC to undertake intelligence operations and
investigations into serious and organised crime. The ACC may exercise certain
powers (such as requesting a Commonwealth authority to provide specified
information) in relation to these functions. However, the ACC cannot access the
more coercive powers available to the NCA (and to be available to the ACC) such
as search warrants, notices to produce evidence at an examination, summons to
attend before an examiner to answer questions and the general power to conduct
those examinations as part of a normal operation/investigation. These powers
will only be available to the ACC when the Board determines that an ACC
operation/investigation is a special ACC operation or investigation.
The
threshold tests for determining that an ACC operation/investigation is a special
ACC operation or investigations, the voting in relation thereto and the
information that the Board must include in that determination are described at
Item 35.
The following terms are deleted as they are not
relevant to the operation and functioning of the ACC: “Authority”;
“Chair”; “hearing officer”; “Judge”;
“member”; “member of the staff of the Authority”;
“original reference”; prescribed investigation”;
“related reference”; “relevant offence”; “special
investigation”; and “Task Force”.
Item
29
This Item repeals subsection 4(2) and substitutes a new provision
which provides that where the head of the ACC operation/investigation suspects
that an offence may be directly or indirectly connected with a serious and
organised crime, the ACC is able to act in relation to that offence as if it too
were a serious and organised crime. The same power is currently available to
the NCA. As with the NCA, this enables the ACC to pursue its functions without
artificial boundaries being established surrounding the definition of offence.
Items 30 to 32
These Items amend section 4A of the Act,
which sets out when a State offence will have a federal aspect. If a State
offence has a federal aspect (for example because it potentially falls within
Commonwealth legislative power) then the Commonwealth is able to confer on the
ACC the function of conducting an intelligence operation or an investigation in
relation to that offence. If the State offence does not have a federal aspect,
then there is a need to rely on State legislation to confer the function, with
the Commonwealth consenting to that conferral to the extent that it is
constitutionally possibly to do so (see section 55A which sets out the consent
provisions).
The amendments to section 4A are consequential on:
• the replacement of the NCA with the ACC (resulting in references
to “the Authority” being replaced with references to “the
ACC”); and
• the need to address the new intelligence function
(so that the provision sets out when a State offence will have a federal aspect
for the purposes of ACC’s intelligence function as well as its
investigatory function).
Item 33
This Item repeals and
replaces the heading to Part II of the Act. The new heading to Part II is
“The Australian Crime Commission (the ACC)”.
Item
34
This Item repeals and replaces the heading to Division 1 of Part
II of the Act. The new heading for Division 1 of Part II is
“Establishment and functions of the Australian Crime Commission, the Board
and the Inter-Governmental Committee”.
Item 35
The
purpose of this Item is to provide for the establishment of, and to set out the
functions for, the Australian Crime Commission and the Board of the ACC. The
Item also addresses matters incidental to the establishment of the Board, such
as the conduct of meetings, quorums and voting.
This Item repeals section
7 (which provided for the establishment and constitution of the National Crime
Authority) and substitutes the following legislative
framework:
Subdivision A - The Australian Crime Commission
Section
7 - The Australian Crime Commission
Section 7A - Functions of the
ACC
Subdivision B - The Board of the ACC
Section 7B -
Establishment of the Board
Section 7C - Functions of the Board
Section 7D
- Board meetings
Section 7E - Presiding at Board meetings
Section 7F -
Quorum at Board meetings
Section 7G - Voting at Board meetings
Section 7H
- Conduct of Board meetings
Section 7J - Resolutions outside of Board
meetings
Section 7K - Board committees
Subdivision A - The
Australian Crime Commission
Section 7 establishes the ACC and
provides that it consists of the CEO (appointed under section 37), examiners
(appointed under section 46B) and the members of the staff of the ACC (as
defined in subsection 4(1)).
Section 7A sets out the functions of the
ACC. The functions represent those that were previously undertaken by ABCI,
OSCA and the NCA.
Paragraph 7A(a) provides a general intelligence
function designed to give the ACC the widest possible power to collect,
correlate, analyse and disseminate criminal information and intelligence with
prior approval by the Board. This function enables the ACC to pursue lines of
inquiry (including conducting probes), receive information and assess the value
of that information so long as it is within priorities endorsed by the Board.
The power is not limited by reference to any offence or criminal
activity and nor is it linked to any particular investigation or other function
of the ACC. However, for the information and intelligence to be “criminal
information and intelligence” there must be a nexus between that
information or intelligence and, for example, past, present or future criminal
offences, activities or associations.
Paragraph 7A(a) also provides
that the ACC is to maintain a national database of that criminal information and
intelligence. This database is currently maintained by the ABCI and enables the
exchange of information to all law enforcement and other relevant agencies.
Paragraph 7A(b) sets out what is in effect a subset of the general
intelligence function of the ACC. It provides that the ACC has the function of
undertaking intelligence operations (as defined in section 4(1)), when
authorised to do so by the Board. The need for the Board to authorise an
intelligence operation does not mean that the Board must authorise every aspect
of that operation; it does mean, however, that the Board must authorise the
overall and general nature of the intelligence operation. An authorisation also
serves the purpose of separating intelligence operations from the broader
intelligence function. This is important, as the legislative framework within
which the ACC operates will enable the ACC to access certain powers in relation
to conducting the operation, including obtaining information from Commonwealth
agencies. These powers are not available in relation to the general
intelligence function.
The authorisation process reflects the role of the
Board in governing the activities of the ACC and in determining its priorities.
Paragraph 7A(c) provides the investigatory function of the ACC and is
similar to that previously undertaken by the NCA. As with intelligence
operations, the Board must authorise the overall and general nature of the
investigation into federally relevant criminal activity. Again this is
important as it enables the ACC to access investigatory
powers.
Paragraphs 7A(d), (e) and (f) reflect the fact that the ACC will
be a central repository of significant criminal intelligence and information,
and the need to ensure that its governing body, the Board, receives that
information in order to carry out its fundamental role in determining national
criminal intelligence priorities.
Paragraph 7A(d) provides that the ACC
must provide reports to the Board on the outcomes of its intelligence operations
or investigations. Paragraph 7A(e) addresses the importance of the ACC’s
analysis role by providing that the ACC is to provide strategic criminal
intelligence assessments to the Board and paragraph 7A(f) provides that the ACC
is to advise the Board on national criminal intelligence priorities.
Subdivision B - The Board of the ACC
Section 7B
establishes the Board of the ACC and provides that it consists of the key
players in law enforcement from the Commonwealth, States and Territories. This
includes the Commissioner of the Australian Federal Police (as Chair), the
Secretary of the Commonwealth Attorney-General’s Department, the CEO of
the Australian Customs Service, the Chair of the Australian Securities and
Investment Commission, the Director-General of Security (Australian Security
Intelligence Organisation) and the head of the police force from each State and
Territory.
The presence of the head of ASIC, ASIO and Customs will foster
relationships between law enforcement agencies, regulatory authorities and
national security authorities to provide a better understanding of the
activities undertaken by each, and the links that exist between their separate
but often interrelated functions. This presence does not, however, represent a
merging of those separate functions and responsibilities.
Section 7C sets
out the functions of the Board. The Board has been established to provide, for
the first time, a body that is charged with determining national criminal
intelligence priorities. It will do this, having regard to the input provided
by all members of the Board (including the CEO of the ACC).
In addition,
the ACC will provide:
• reports to the Board on the outcomes of
operations or investigations;
• strategic criminal intelligence
assessments, and any other criminal information and intelligence, to the Board;
and
• advice to the Board on national criminal intelligence
priorities.
The determination of national criminal intelligence
priorities will form the basis for the action undertaken by law enforcement
authorities across Australia, whether it be the ACC or police forces from the
Commonwealth, States and Territories.
This will provide an enhanced and
coordinated national law enforcement capacity, which will set national law
enforcement priorities.
The Board will also have the function of
authorising ACC intelligence operations and investigations and determining when
such an operation or investigation is a special operation or investigation.
This means that all ACC operations and investigations must be authorised by the
Board and this is an important feature of the relationship between the Board and
the ACC.
Before it determines that an operation is a special operation,
therefore allowing for the exercise of coercive powers under the Act, the Board
must specifically consider whether methods of collecting the criminal
information and intelligence that do not involve the use of those powers have
been effective. Before it determines that an investigation is a special
investigation and can have access to the coercive powers, the Board must
specifically consider whether ordinary police methods of investigation into the
matters are likely to be effective. The threshold test for intelligence
operations is more restrictive than that applicable to investigations because of
the broader scope of intelligence.
These threshold tests provide an
important safeguard on the exercise of coercive powers under the Act.
In
both cases (ie., for both special intelligence operation and special
investigations) the Board’s determination must:
(a) describe the
general nature of the circumstances or allegations constituting the federally
relevant criminal activity; and
(b) state that the serious and organised
crime is, or the serious and organised crimes are or include, an offence or
offences against a law of the Commonwealth, a law of a Territory or a law of a
State but need not specify the particular offence or offences; and
(c) set
out the purpose of the operation or investigation.
This sets the
parameters for the operation of investigation and represents another important
safeguard on the exercise of coercive powers under the Act.
Section 7D
provides the manner in which Board meetings will be held. While the Chair of
the Board may convene meetings of the Board at any time, there are special rules
that govern when he or she must convene meetings. This includes the fact that
the first meeting of the Board must be held within 2 months after the
commencement of the Act, there must be a minimum of 2 meetings each calendar
year; and the Board must meet in accordance with the schedule of Board meetings
determined by the Board under this section.
To ensure that there is a
schedule, the provision also provides that at its first meeting, the Board must
determine, in writing, a schedule of Board meetings. While the legislation does
not specify the period the schedule should cover, it is anticipated that the
Board would agree a schedule on an annual basis.
Section 7E provides that
the Chair of the Board or another eligible Commonwealth member (as defined - see
Item 42 (this excludes the CEO as he or she does not have voting rights))
nominated by the Chair must preside. This Commonwealth presence recognises the
fact that the ACC is a Commonwealth body.
Section 7F provides that a
quorum of the Board is 7 members and subsection 7G(1) provides that generally a
simple majority vote will determine decisions of the Board.
There are,
however, special voting requirements relating to determinations by the Board
that an ACC operation/investigation is a special ACC operation/investigation.
In relation to the Board’s power to determine that an ACC
operation/investigation is a special ACC operation/investigation, the decision
must have the agreement of at least 9 Board members, including at least two
eligible Commonwealth members (see subsection 7G(4)).
Section 7H provides
that the Board may regulate proceedings at its meetings as it considers
appropriate. In this regard, section 33B of the Acts Interpretation Act
1901 is applicable. This provision enables people to participate in
meetings by various means of communication, including by telephone, fax and
videolink.
There will be situations, however, in which the Board will
need to make decisions without a formal meeting being held. Section 7J provides
for this by allowing decisions of the Board to be taken by resolution out of
session. It is important to note that the special rules that apply to a
determination of the Board that an ACC operation/investigation is a special ACC
operation/investigation, will continue to apply to any such determination that
is made out of session.
Section 7K is an important provision recognising
the need for the Board to operate by committees when appropriate. However, to
ensure that there is sufficient accountability in relation to the functions
exercised by committees and control over the nature of their activities, the
section provides a number of rules relating to the establishment and function of
committees. For example:
• The Board may only establish, and
determine the functions of, a committee with the unanimous agreement of all the
members of the Board (not including the CEO who does not have voting
rights).
• The Board cannot determine that a committee has the function
of determining whether an operation/investigation is a special
operation/investigation.
• A question arising at a meeting of a
committee is to be determined by a majority of the votes of committee members
present.
• In performing its functions, a committee must comply with
any directions given to it by the Board.
• The Board may dissolve a
committee at any time.
On an administrative level, a committee may
regulate proceedings at its meetings as it considers appropriate, must ensure
that minutes of its meetings are kept and must inform the other members of the
Board of its decisions.
A committee of the Board must also inform members
of the Board who are not on the commit`tee of its decisions. The purpose is to
ensure that any decision that could impact on a State or Territory is made known
to the member of the Board from that State or Territory.
The
Inter-Governmental Committee
Item 36
This Item makes a
drafting change by inserting a new heading to Subdivision C of Part II, entitled
“The Inter-Governmental Committee.”
Section 8, which deals
with the establishment and constitution of the Inter-Governmental Committee, is
not (with one amendment - see Item 37) altered by the Bill. However, given the
introduction of the Board of the ACC and its governing role in relation to the
ACC, particularly in relation to determining when the ACC is to have access to
coercive powers, the majority of the provisions dealing with the IGC have been
amended.
Item 37
This Item amends subsection 8(9) of the
NCA Act to provide that any member of the Board may, with the consent of the
members of the IGC who are present at a meeting, attend that meeting. This
replaces the previous references to the Chair and other members of the
Authority, and recognises the role of the Board as the link between the IGC and
the ACC.
Item 38
This Item repeals section 9 and inserts a
new provision dealing with the functions of the IGC.
The IGC will
continue to have an important role in overseeing and monitoring the work and
strategic direction of the ACC but without being involved in day-to-day
operational issues. This recognises the importance of Ministerial oversight,
while at the same time reflecting the introduction of the Board.
The
IGC will also have a role in relation to overseeing and monitoring the work and
strategic direction of the Board. To this end, it is to receive reports from
the Board and may request information from the Board in certain circumstances
(see section 59). The IGC must also be consulted in relation to the appointment
of both the CEO (section 37) and examiners (section 46B). In addition, the
Commonwealth Minister is unable to give any directions to the Board in relation
to particular cases without a resolution in support from the members of the IGC
(subsection 18(2)).
Items 39 and 40
These Items repeal
section 10 (which dealt with the Authority requesting the IGC’s approval
of a reference) and section 11 (which set out the functions of the NCA).
Neither provision is needed for the ACC.
Item 41
This
Item makes a drafting change by inserting a new heading - Division 1A of Part
II, titled “Performance of functions and exercise of powers”. This
Division deals with issues such as referring information to prosecuting
authorities, Ministerial directions and guidelines and search
warrants.
Items 42 to 49
These Items amend section 12 of
the NCA Act, which deals with what the Authority must do with information that
it obtains (including evidence that would be admissible in a prosecution) during
the course of performing its functions. The amendments are consequential on the
replacement of the Authority with the ACC and:
• replace the
concept of NCA investigations with the concept of ACC operations/investigations
(so that admissible evidence that is obtained during the course of an ACC
operation/investigation must be assembled and given to the relevant prosecuting
authority);
• repeal a provision that deals with evidence obtained
during an investigation coordinated by the Authority (as such evidence is now
obtained as a part of an ACC operation/investigation); and
• recognise
the role of the Board (replacing the Authority) in making law reform
recommendations to Ministers.
Subsection 12(6) continues to provide that
where the ACC obtains information or intelligence in the course of performing
one of its functions then that information or intelligence may be used for the
purposes of other ACC functions. For example, information and intelligence that
is obtained during the course of the ACC’s general intelligence function,
may be used in an intelligence operation and information obtained during an
intelligence operation may be used during the course of an investigation into
federally relevant criminal activity. This is an important provision that
recognises the continuum between intelligence, intelligence operations and
investigations. It is essential that the use of information that is relevant to
one function is not artificially restricted by unnecessary compartmentalisation
of the functions of the ACC.
Items 50 and 51
These Items
repeal section 13 (References by Commonwealth) and section 14 (Functions under
State law) as they are no longer required. The provisions provided the
mechanism (based on a referral system) whereby the NCA received authorisation to
access the coercive powers for the purpose of an investigation. This mechanism
was cumbersome and time consuming, often resulting in delays before the NCA was
fully empowered to undertake national investigations into criminal activity.
For example, before the Commonwealth Minister was able to refer a matter to the
NCA, he or she had to consult with the members of the IGC-NCA. Before a State
or Territory Minister could refer a meter to the NCA, this had to have the
agreement of the IGC-NCA and the consent of the Commonwealth Minister.
The ACC will still have access to the coercive powers, but the process
will be streamlined and involve the members of the Board (as described in Item
35) and not the members of the IGC.
Items 52 to 56
These
Items amend section 15 (Members may have concurrent functions and powers under
State laws) consequential on the replacement of “members” with
“examiners” and the “Authority” with the
“ACC”.
Item 57
This Items repeal and
substitute section 16, which limits, in certain specified situations, the
challenges that may be made in relation to the activities of the ACC because of
a possible administrative problem with a Board determination. It provides that
where the Board has determined that an ACC operation/investigation is a special
ACC operation/investigation, then any act or thing done by the ACC because of
that determination must not be challenged etc in any court on the ground that
the determination was not lawfully made. This means that there cannot be a
challenge to what the ACC does in reliance on the determination based on, for
example, a possible error in the procedure that led to the making of that
determination.
Importantly, however, the provision does not prevent
challenges in relation to the activities of the ACC once a determination is in
place. A court simply cannot look behind a determination to see whether the
determination was properly made.
Secondly, the limitation does not apply in
proceedings initiated by the Attorney-General of the Commonwealth, a State or a
Territory.
This provision will operate in relation to ACC determinations
in the same way that it operated in relation to NCA references.
Item
58
This Item amends section 17 (Co-operation with law enforcement
agencies and co-ordination with oversees authorities) consequential on the
replacement of the “Authority” with the “ACC”.
Items 59 to 62
These Items amend section 18 (Directions
and guidelines to the Authority) to recognise the role of the Board as the link
between Ministerial directions and the ACC.
The Commonwealth Minister
may give directions or guidelines to the Board with respect to the performance
of the functions of the Board (which includes providing strategic direction to
the ACC and determining its priorities) and the Board must comply with those
directions or guidelines. For example, the Minister could give directions in
relation to Board members working together to achieve the objects of the Act.
However, the Minister cannot give any directions or guidelines in respect of a
particular ACC operation/investigation without the approval of a resolution
passed by the IGC.
The requirements for directions and guidelines to be
gazetted and tabled continue to apply in relation to the ACC.
Items 63
to 65
These Items amend section 19 (Incidental powers of Authority)
as a consequence of the replacement of the Authority with the ACC. This means
that the ACC will have the power to do all things necessary in connection with
or reasonably incidental to the performance of its functions.
Items 66
to 76
These Items amend section 19A (Requesting information from
Commonwealth Agencies) to:
• replace references to members with
references to examiners; and
• replace references to NCA prescribed
investigations with references to ACC operations/investigations.
This
means that an examiner will be able to request information from Commonwealth
agencies in relation to an ACC operation/investigation in the same way a member
of the Authority could request information in relation to an NCA investigation.
In neither case is the power limited to an investigation that has been
determined to be a special investigation, however, the ACC may only conduct an
ACC operation/investigation with the authority of the Board.
The Items
also make two minor drafting amendments to section 19A to:
• correct a reference to the Human Rights and Equal Opportunity
Commission; and
• replace the reference to a penalty of $1,000 with a
reference to a penalty of 10 penalty units. This does not alter the actual level
of the penalty as under sections 4AA and 4AB of the Crimes Act 1914
$1,000 equates to $1,100, which is 10 penalty units.
Items 77 to
83
These Items amend section 20 (Requiring information from
Commonwealth Agencies) to:
• replace references to members with
references to examiners;
• replace references to NCA prescribed
investigations with references to ACC operations/investigations;
and
• replace a reference to “a member of the staff of the
Authority” with a reference to “a member of the staff of the
ACC”.
This means that an examiner will be able to require a
principal officer of a Commonwealth agency to provide information to the ACC in
the same way that a member of the NCA could require information to be provided
to the NCA. As with section 19A, the power is not limited to an investigation
that has been determined to be a special investigation, however, the ACC may
only conduct an ACC operation/investigation with the authority of the
Board.
These Items also make a minor drafting amendment to section 20 to
replace the reference to a penalty of $1,000 with a reference to a penalty of 10
penalty units. This does not alter the actual level of the penalty as under
sections 4AA and 4AB of the Crimes Act 1914 $1,000 equates to $1,100,
which is 10 penalty units.
Item 84
This Item amends
subsection 21(1) (Arrangements to obtain information and intelligence) to
replace a reference to the Authority with a reference to the Board. This means
that the Commonwealth Minister may make arrangements with his or her counterpart
in the States or Territories for the Board to receive information or
intelligence from the State in relation to relevant criminal
activity.
Item 85 and 86
These Items amend subsection 21(2)
(Arrangements to obtain information and intelligence) to provide that the Board
may make arrangements with a non-State or Territory body for information or
intelligence to be provided to the CEO.
The amendments to section 21
will continue to enable memoranda to be established governing the provision of
intelligence and information that is relevant to the activities of the
ACC.
Items 87 to 100
These Items amend section 22 (Search
warrants) to ensure that an eligible person (as defined in subsection 4(1)) will
be able to apply for a search warrant in relation to a special ACC
operation/investigation in the same circumstances in which an eligible person
could apply for a search warrant in relation to a special NCA investigations.
Although search warrants may now be obtained for intelligence operations, the
existing threshold tests and the operation of the provision are not otherwise
altered by the amendments.
Item 100 makes the point that an issuing
officer need not accept the function conferred in recognition that the power is
being exercised in a personal capacity and not as a member of a Court.
Items 101 and 102
These Items make minor amendments to
section 23 (Application by telephone for search warrants) to provide that a copy
of a warrant issued under section 22 in response to an application made by
telephone is to be sent to the CEO (replaces reference to the Authority).
Reference to “a member of the staff of the Authority” is replaced
with a reference to “a member of the staff of the ACC”. The
amendments do not alter the operation of the provision.
Items 103 to
116
These Items make minor amendments to section 24 (Order for
delivery of passport of witness) to ensure that an examiner can apply to a Judge
of the Federal Court for an order that a person who has been summonsed to appear
before the examiner, or who has appeared before the examiner, surrenders his or
her passport to the examiner. There must be reasonable grounds for believing
that the person may be able to provide evidence, documents or things that could
be of particular significance to a special operation/investigation. In
addition, an order may only be made where there are reasonable grounds for
suspecting that the person intends to leave Australia. The amendments are
consequential on the replacement of:
• replacing references to
members with reference to examiners; and
• references to matters
referred to the Authority with references to special ACC operations or
investigations.
Item 110 also makes a drafting change to the reference to
the penalty, replacing the reference to $5,000 with a reference to a penalty of
50 penalty units. This does not alter the actual level of the penalty as under
sections 4AA and 4AB of the Crimes Act 1914 $5,000 equates to $5,500,
which is 50 penalty units.
Item 117
This Item repeals the
heading to Division 2 of Part II and substitutes “Division 2 -
Examinations.
Item 118
This Item repeals section 24A (which
dealt with Hearings) and substitutes a new section 24A, which provides that an
examiner may conduct an examination for the purposes of a special ACC
operation/investigation.
This is a central provision to the role and
significance of the ACC as it enables examinations (which include coercive
powers to produce documents and answer questions) to be conducted in relation to
special ACC operations and investigations.
Examinations will be conducted
by examiners who are appointed by the Governor-General for a period of 5 years.
Sections 46B to 46J (Item 197) deal with the administrative aspects of the
appointment of examiners and the terms and conditions of appointment.
The
independence of examiners is an important safeguard to the exercise of the
coercive powers. While the Board may determine that an operation or
investigation is a special ACC operation or investigations and this will result
in the coercive powers being available for that operation or investigation, this
does not interfere with the statutory discretion of the examiner to determine
how, when and why to use those powers once a determination is in place. In
addition, while subsection 46A(3) (Item 197) provides that the CEO may allocate
an examiner to a particular special ACC operation or investigation, this does
not interfere with the statutory discretion of the examiner in exercising his or
her powers.
Item 119
This Item repeals section 25 (Hearings
of the Authority) as it is no longer required. Section 25A (Item 120) regulates
the conduct of examinations and includes similar provisions to section 25 in
relation to representation, witnesses and persons allowed to be present at an
examination.
Item 120
This Item repeals section 25A
(Hearings by hearing officers) and substitutes a new section 25A dealing with
the conduct of examinations. This Item provides that an examiner may regulate
the conduct of proceedings as he or she sees fit. It provides for legal
representation of witnesses and, in some circumstances, non-witnesses. It also
regulates the presence of persons at an examination, examination of witnesses,
and confidentiality of evidence. The section includes offences for being
present at an examination without authority and making a publication in
contravention of a direction given by the examiner under the confidentiality
provisions.
There is no substantive change to the provisions.
Examiners will conduct examinations in the same way that the Authority conducted
hearings.
Item 120 includes a minor drafting amendment. Subsection
25A(14) refers to 20 penalty units instead of $2,000 (which was in subsection
25A(17)). This does not alter the actual level of the penalty as under sections
4AA and 4AB of the Crimes Act 1914 $2,000 equates to $2,000, which is 20
penalty units.
Items 121 and 122
These Items make minor
amendments to subsection 26(1). A witness appearing before an examiner,
replacing reference to the Authority or a hearing officer, shall be paid in
respect of their expenses according to a prescribed scale, or in the absence of
such a scale, such an amount as the CEO (replacing reference to the Chair)
determines.
Item 123
This Item amends subsection 26(2) to
replace all references to the Chair with the CEO. The CEO may direct that a
person producing a document or thing pursuant to a notice under section 29 may
be paid expenses. Payment is in accordance with a prescribed scale or, in the
absence of such a scale, an amount determined by the CEO.
Items 124
and 125
These Items amend section 27. This provision allows a
witness appearing before an examiner, replacing references to the Authority or a
hearing officer, to apply to the Attorney-General for legal or financial
assistance in relation to his or her appearance.
These Items amend section 28 (Power to summon witnesses and take
evidence). References to “member” and “the Authority or a
hearing officer” are replaced by references to an examiner. An examiner
may summon a person to appear before him or her to give evidence or produce
documents or things. A new subsection 28(1A) is inserted to provide that,
before an examiner exercises this power, the examiner must be satisfied that it
is reasonable in all the circumstances to do so and that the examiner must
record in writing the reasons for the issue of the summons. Subsection 28(2) is
amended to require that the summons must be accompanied by a copy of the
determination of the Board that the intelligence operation is a special
operation or the investigation is a special investigation.
An examiner
may require a person to produce a document or thing and take evidence on oath or
affirmation. The section will only apply in relation to a special ACC
operation/investigation. Although the powers to summon witnesses and take
evidence will now apply to intelligence operations, the existing protections in
the provision continue to apply and the operation of the provisions is not
otherwise altered by the amendments.
Items 139 to 145
These
Items amend section 29 (Power to obtain documents) to ensure that an examiner
(replacing a member) may, by written notice, require a person to attend before
the examiner or a member of staff of the ACC (replacing a member of the
Authority, a member of the staff of the Authority or a hearing officer) to
produce specified documents or things relevant to a special ACC
operation/investigation (replacing a special investigation). A new subsection
29(1A) is inserted to provide that, before an examiner exercises this power, the
examiner must be satisfied that it is reasonable in all the circumstances to do
so and that the examiner must record in writing the reasons for the issue of the
notice. A notice may be issued regardless of whether an examination before an
examiner is being carried out.
Item 143 makes a minor drafting amendment
to subsection 29(3A) to replace the reference to a penalty of $20,000 with a
reference to a penalty of 200 penalty units. This does not alter the actual
level of the penalty as under sections 4AA and 4AB of the Crimes Act 1914
$20,000 equates to $22,000, which is 200 penalty units. Item 144 makes a
similar amendment in relation to subsection 29(3C), changing the reference to a
penalty of $2000 to 20 penalty units.
Item 145 provides that the
offences set out in subsections 30(3), (5) and (9) apply in relation to a person
required to produce a document or thing under section 29 in the same manner as
if the person were required to produce that document or thing in relation to an
examination before an examiner (replacing reference to a hearing before the
Authority or a hearing officer).
The provisions will continue to apply to
the ACC in the same way that they applied to the NCA.
Items 146 to
161
These Items amend section 29A (Disclosure of summons or notice
etc. may be prohibited) setting out the circumstances where an examiner
(replacing reference to a member) may, or must, include a notation in a summons
or notice issued under sections 29 or 30 to the effect that the disclosure of
information about the summons is prohibited except as set out in the notation.
The circumstances where a notation must or may be included are identical to
those that currently apply other than that they apply to both an operation and
investigation not merely an investigation.
Subsection 29(4) is amended
to omit reference to subsection 12(1A), which is repealed. This subsection
applies to the conclusion of an operation or investigation by the ACC and
references to the Authority in paragraphs 29A(4)(b) and (d) now refer to the CEO
(replacing reference to the Authority).
If a notation is cancelled, the
CEO (replacing the Authority) must give notice, under subsection 29(5), to each
person served with a summons or notice containing the notation. Subsection
29A(6) is repealed, as it refers to section 25, which is also repealed. A new
subsection 29A(8) is inserted providing a definition for “official
matter.”
Items 162 to 167
These Items amend section
29B (Offences of disclosure). Item 162 makes a minor drafting amendment to
subsection 29B(1) to replace the reference to a penalty of $2,000 with a
reference to a penalty of 20 penalty units. This does not alter the actual
level of the penalty as under sections 4AA and 4AB of the Crimes Act 1914
$2,000 equates to $2,200, which is 20 penalty units. Item 144 makes a similar
amendment in relation to subsection 29B(3), changing the reference to a penalty
of $2000 to 20 penalty units.
Section 29B will continue to apply to the
disclosure of a summons or notice containing a notation made under section 29A
in the same way as it applies to non-disclosure notices issues by the
NCA.
Items 168 to 178
These Items amend section 30 (Failure
of witnesses to attend and answer questions) to provide offences for failure to
attend an examination before an examiner and failure to answer questions at such
an examination. The amendments are consequential on the replacement
of:
• references to a hearing before the Authority or a hearing
officer with references to an examination before an examiner;
and
• references to a member presiding at the hearing or a hearing
officer with references to an examiner.
The section, including the
provisions dealing with self-incrimination and use-immunity, will continue to
operate in the same way as it presently operates in relation to the
NCA.
Item 177 makes a minor drafting amendment to subsection 30(6) to
replace the reference to a penalty of $20,000 with a reference to a penalty of
200 penalty units. This does not alter the actual level of the penalty as under
sections 4AA and 4AB of the Crimes Act 1914 $20,000 equates to $22,000,
which is 200 penalty units. Item 178 makes a similar amendment in relation to
subsection 30(8), changing the reference to a penalty of $2000 to 20 penalty
units.
Items 179 to 182
These Items contain minor
amendments to section 31 (Warrant for arrest of witness) to grant an examiner
the power to apply to a Court for a warrant for the arrest of a person in
specified circumstances. This is the same power that is available to the NCA in
relation to persons likely to attempt to evade a hearing or a summons under
section 28 or who have committed an offence under section 30.
Items
183 to 185
These Items amend section 33 (False or misleading
evidence) so that a person commits an offence against subsection 33(1) if they
give false or misleading evidence at an examination before an examiner (replaces
a hearing before the Authority or a hearing officer).
Item 184 makes a
minor drafting amendment to subsection 33(2) to replace the reference to a
penalty of $20,000 with a reference to a penalty of 200 penalty units. This
does not alter the actual level of the penalty as under sections 4AA and 4AB of
the Crimes Act 1914 $20,000 equates to $22,000, which is 200 penalty
units. Item 185 makes a similar amendment in relation to subsection 33(4),
changing the reference to a penalty of $2000 to 20 penalty units.
The
provisions will continue to apply to the ACC in the same way that they applied
to the NCA.
Items 186 to 189
These Items amend section 34
(Protection of witnesses etc.) to allow an examiner (replacing reference to a
member or a hearing officer) to make arrangements to ensure the safety of a
person is not prejudiced or they are not subject to intimidation or harassment.
The power applies to a person who is appearing or has appeared at an examination
before an examiner or proposes to give, or has given, information or documents
other than in an examination before an examiner.
The provisions will
continue to apply to the ACC in the same way that they applied to the
NCA.
Items 190 to 195
These Items amend section 35
(Contempt of Authority). The heading for this section in changed to –
Obstructing or hindering the ACC or an examiner etc to better reflect the nature
of the offence. The section provides offences for obstructing the ACC in the
performance of its functions, an examiner in the performance of his or her
functions or disrupting an examination before an examiner. These offences are
the same as those available in relation to the Authority and hearing
officers.
Item 191 makes a minor drafting amendment to subsection 35(2)
to replace the reference to a penalty of $20,000 with a reference to a penalty
of 200 penalty units. This does not alter the actual level of the penalty as
under sections 4AA and 4AB of the Crimes Act 1914 $20,000 equates to
$22,000, which is 200 penalty units. Item 192 makes a similar amendment in
relation to subsection 35(4), changing the reference to a penalty of $2000 to 20
penalty units.
Items 193 to 196
These Items amend section
36 (Protection of members etc.) to ensure that the protection and immunity
attached to members and hearing officers or legal practitioners or witnesses
appearing before them apply in relation to examiners and those who appear before
them.
Item 197
The purpose of this Item is to deal with
the administrative arrangements for appointing the CEO and examiners of the ACC
and includes related matters such as remuneration and termination of
appointments.
This Item repeals sections 37 to 46A of the NCA Act, which
provided the administrative arrangements for the appointment of members to the
National Crime Authority, and substitutes the following legislative framework in
Division 3 (Administrative provisions):
Subdivision A – Chief
Executive Officer; and
Subdivision B – Examiners.
Subdivision
A – Chief Executive Officer
Section 37 sets out the
requirements for appointing a CEO of the ACC. The Governor-General must make
the appointment by written instrument, the appointment is to be on a full-time
basis and must not exceed 5 years (although a CEO may be re-appointed).
Before the Governor-General can make the appointment, the Minister must
invite the Board of the ACC to make nominations for appointment and must consult
the members of the IGC in relation to the appointment.
Sections 38 to 42
set out the terms and conditions of the appointment of the CEO including
remuneration and allowances, leave, and the conditions relating to resignation,
outside employment and conflict of interests. These terms and conditions are
standard for statutory appointments of this kind.
Sections 43 and 44
provide the basis for suspending or terminating the appointment of the CEO.
Under section 43, the Minister may suspend the appointment of the CEO if he or
she is of the opinion that the CEO’s performance has been unsatisfactory.
This provision will ensure that an organisation as significant as the ACC always
has an effective CEO. Before suspending the appointment of the CEO, the
Minister must consult with the Board and consider its advice. The Minister must
specify whether the suspension is with or without remuneration and allowances
and the period of that suspension. However, the suspension must be for a
maximum period of 3 months.
Under section 44, the Governor-General may
terminate the appointment of the CEO for unsatisfactory performance. The
Governor-General may also terminate the appointment of the CEO for misbehaviour
or physical or mental incapacity and must terminate the appointment for any one
of a number of reasons including becoming bankrupt or engaging in outside
employment without appropriate approval. This provision is consistent with
standard powers to terminate a statutory appointment.
Section 45 allows
the Governor-General to determine in writing terms and conditions of the
CEO’s appointment not covered by the Act.
Section 46 enables the
Minister to appoint a person to act as the CEO in certain circumstances,
including during a vacancy in the office or during a period when a CEO has been
suspended or is absent from duty.
Section 46A provides that the
CEO’s functions include the management and administration of the ACC, the
management, coordination and control, of ACC operations and investigations,
determining after consultation with the Chair and such other members of the
Board as the CEO thinks appropriate, the head of each ACC
operation/investigation and determining which examiner is able to exercise his
or her powers under the Act in relation to a special ACC
operation/investigation.
Therefore the CEO has a role in relation to the
general business of the ACC, including the financial, industrial relations,
administrative and other non-operational matters. The coordination function will
prevent duplication of effort and to ensure that resources are used effectively
and efficiently to implement the priorities of the Board. The CEO will ensure
that the ACC maintains its national focus by facilitating the dissemination of
criminal information and intelligence to relevant agencies (see Item
274).
The power to allocate an examiner to a particular special ACC
operation or investigation, reflects the role that the CEO has in relation to
the resources of the ACC (who is available for what tasks) and does not enable
the CEO to interfere with the statutory discretion of the examiner in relation
to determining how, when and why he or she exercises his or her coercive powers
(see Items 127A and 141A).
Subdivision B -
Examiners
Section 46B sets out the requirements for appointing
examiners of the ACC. The Governor-General must make the appointment by written
instrument, the appointment is to be on a full-time basis and must not exceed 5
years in duration (an examiner cannot be re-appointed). An examiner must have
been enrolled as a legal practitioner for at least 5 years.
Before the
Governor-General may make an appointment, the Minister must consult the members
of the Inter-Governmental Committee in relation to the
appointment.
Sections 46C to 46G set out the terms and conditions of the
appointment of an ACC examiner including remuneration and allowances, leave, and
the rules relating to resignation, outside employment and conflict of interests.
These terms and conditions are standard for statutory appointments of this
kind.
Section 46H establishes the rules for terminating the appointment
of an examiner. Under section 46H, the Governor-General may terminate the
appointment of an examiner for misbehaviour or physical or mental incapacity and
must terminate the appointment for any one of a number of reasons including
becoming bankrupt or engaging in outside employment without appropriate
approval.
Section 46J allows the Governor-General to determine in writing
terms and conditions of the examiner’s appointment not covered by the
Act.
Item 198
This Item inserts a new heading to
Subdivision C of Division 3 “Staff etc”.
Items 199 and
200
These Items make minor consequential amendments to section 47
(Staff) by substituting “Authority” with “ACC” and
“Chair” with “CEO”. This means that the CEO and the
staff engaged under the Public Service Act 1999 constitute a Statutory Agency
and the CEO is the Head of that Statutory Agency.
Items 201 to
203
These Items make minor consequential amendments to section 48
(Employment of consultants etc.) by substituting “Authority” with
“ACC” and “Chair” with “CEO”. This means
that the CEO will be able to engage consultants in the same way that the Chair
could engage consultants.
Item 204
This Item makes a minor
consequential amendment to section 49, which deals with persons whose services
are made available to the Authority, including members of the Australian Federal
Police, officers and employees of the Commonwealth, and those where an
arrangement is in place under section 58, by substituting
“Authority” with “ACC”.
Item 205 and
206
These Items make minor consequential amendments to section 50
(Counsel assisting Authority) by substituting “Authority” with
“ACC” and “Chair” with “CEO”. This means
that the CEO may appoint a legal practitioner to assist the ACC in the same way
that the Chair could appoint a legal practitioner to assist the
Authority.
Items 207
This Item inserts a new heading to
Subdivision D of Division 3 “Secrecy etc”.
Items 208 to
215
These Items amend section 51 (Secrecy) to replace references to
“Authority” with ACC; “hearing officer” is replaced with
“examiner” and the definition of “member of the staff of the
Authority” is replaced with a definition of the “member of staff of
the ACC”. The Items all insert a reference to the CEO and a member of the
Board.
Section 51, which makes it an offence to disclosure of information
otherwise than in specified circumstances will therefore continue to apply to
the ACC, with the expansion of its coverage to include the CEO and the members
of the Board.
In addition to the consequential amendments, Item 211
amends subsection 51(2) by substituting “$5,000” with “50
penalty units”. This does not alter the actual level of the penalty as
under sections 4AA and 4AB of the Crimes Act 1914 $5,000 equates to
$5,500, which is 50 penalty units.
Item 216
This Item
repeals the heading to Part III and substitutes a new heading “Part III -
Parliamentary Joint Committee on the Australian Crime
Commission”.
Item 217
This Item makes a minor
consequential amendment to section 52, which is the interpretation section for
Part III, by substituting “National Crime Authority” with
“Australian Crime Commission”.
Item 218
This
Item amends section 53 (Joint Committee on the National Crime Authority) by
repealing subsection 53(1) and substituting a new subsection 53(1). The
provision recognises that the Parliamentary Joint Committee on the National
Crime Authority will continue in existence as the Parliamentary Joint Committee
on the Australian Crime Commission.
Items 219 to 223
These
Items make consequential amendments to section 55 (Duties of the Committee)
recognising the establishment of the ACC and its role in relation to criminal
intelligence. For example references in paragraphs 55(1)(a), (b) and (d) to
“Authority” are replaced with “ACC”, the reference in
paragraph 55(2)(b) to “Authority in relation to a particular
investigation” is replaced with “ACC in relation to a particular ACC
operation/investigation”, and paragraph 55(2)(a) is amended to take into
account the ACC’s criminal intelligence role.
The provisions will
otherwise operate in elation to the PJC-ACC as they did for the
PJC-NCA.
Item 224
This Item makes a minor consequential
amendment to section 55AA (Ombudsman to brief committee about controlled
operations) by substituting “Authority’s” with
“ACC’s”.
Items 225 to 242
These Items
amend section 55A to provide the consent mechanism for the Board, Chair of the
Board, ACC, CEO, examiners, members of the staff of the ACC, Judges of the
Federal Court and Federal Magistrates to perform a duty or function or exercise
a power under a law of a State.
Subsection 55A(1) will continue to state
the main object of the section, with the necessary consequential amendments to
recognise the ACC. The main object of section 55A is to give legislative
consent to the conferral of certain duties, functions and powers under State
laws on the Board, the Chair of the Board, the ACC, the CEO, an examiner, or a
member of the staff of the ACC, a Judge of the Federal Court or a Federal
Magistrate.
The ACC
Subsection 55A(2) is amended to
refer to the ACC exercising powers etc under State law in place of the
Authority. The amendments include references to the ACC undertaking
intelligence operations under State laws as well as investigations. However,
while the existing limitation that the power function or duty be of the same
kind as that imposed on the ACC by a Commonwealth law will remain, the provision
also enables regulations to be made prescribing other functions, duties or
powers. This ensures that there is the necessary Parliamentary oversight to the
nature of the powers, functions and duties that are conferred on the ACC by
State legislation.
In lieu of the need for the IGC to consent to the
exercise of the powers (which was a parallel consent mechanism to the reference
system) subsection 55A(3) provides that the ACC cannot undertake an
investigation into relevant criminal activity or undertake an intelligence
operation without the consent of the Board. This is consistent with the need
for the Board to authorise all operations and investigations.
The
Board, Chair of the Board, CEO, examiners, and members of the staff of the
ACC
In recognition of the introduction of the Board and its Chair,
and of examiners and the CEO and to fill a gap that otherwise exists in relation
to the members of the staff of the ACC, subsections 55A(4) and (5) operate to
consent to a law of a State conferring a duty, function or powers on the Board
and those officers in relation to both investigations into relevant criminal
activity and intelligence operations. Again the power, function or duty must be
of the same kind or prescribed. In addition, the Board must consent to the CEO
or an examiner acting under state legislation.
Judge of the
Federal Court or Federal Magistrates
Subsection 55A(5B) continues to
provide that a State law may confer on a Judge of the Federal Court (acting in
his or her personal capacity) a duty, function or power that relates to the
investigation of a matter relating to a relevant criminal activity, and
subsection 55A(5C) expands this to intelligence operations. Both provisions
also now include a reference to federal magistrates in recognition of the role
that they have in relation to the issue of search warrants.
The duty,
function or power must also be of the same kind as a duty, function or power
conferred on a Judge of the Federal Court or a federal magistrate by a
Commonwealth Act or be prescribed.
Ancillary
provisions
Subsection 55A(6), which provides that the conferral of a
duty, function or power does not extend to a duty, function or power of a kind
specified in any regulations made for the purposes of that subsection, is
amended to ensure that the conferral on all entities has the same caveat. That
is, the provision will continue to enable regulations to be made to control or
limit the duties, functions or powers that are conferred by a law of a State on
the ACC, the CEO, an examiner, a member of the staff of the ACC, a Judge of the
Federal Court or a Federal Magistrate.
There is a similar consequential
amendment to subsection 55A(7), which provides that the conferral of a duty,
function or power does not extend to a State law that purports to confer any
duty on authorities of the Commonwealth, members of those authorities or Judges
of a Court created by Parliament, that is in contravention of any constitutional
doctrine that restricts the duties that may be imposed.
Concurrent
operation of State laws
Subsections 55A(8) and (9) will continue to
provide that the Commonwealth does not intend to cover the field with respect to
the investigation of State offences that have a federal aspect and that the ACC
is able to exercise functions under both Commonwealth and State laws provided
that the latter comply with section 55A and are capable of being exercised
concurrently with the ACC Act.
Subsection 55A(10), which dealt with
separate referrals by the Commonwealth Minister and a State Minister in relation
to the same federally relevant criminal activity to the Authority for
investigation, is repealed (see Item 238) consequential on the repeal of the
reference process.
State officers do not lose State
powers
A new subsection 55A(10) is inserted to make it clear that
nothing in the ACC Act results in a person, who is an officer of a State and who
becomes a member of the staff of the ACC, ceasing to be able to perform any duty
or function, or to exercise any power, that is conferred on the person under a
law of the State in his or her capacity as such an officer.
Interpretation – conferral of a duty, function or power by a
law of a State
The current subsection 55A(12) relates to powers,
functions and duties in force immediately before 12 October 2000 and is repealed
as it is no longer required. A new subsection 55A(12) is substituted to address
the High Court’s decision in McLeod v Australian Securities and
Investments Commission [2002] HCA 37, which raised a question about whether
a power, function or duty was conferred by or under a State law. The new
subsection clarifies that a reference to a State law conferring a duty, function
or power includes a reference to the conferral of a duty, function or power
under a law of a State.
There are minor amendments to subsection 55A(13)
to add a provision that federal magistrates are acting in their personal
capacity and to repeal a redundant definition of State NCA Act. Subsection
55A(14) inserts a special definition for intelligence operation to ensure that
it covers all relevant criminal activity and not just federally relevant
criminal activity. This is for the purposes of section 55A, except subsection
55A(9), which deals with concurrent powers, where “intelligence
operation” will continue to be limited to federally relevant criminal
activity.
Item 243
This Item repeals section 55B
“Choice of Commonwealth and State powers” and substitutes a new
provision.
The new provision makes it clear that when the ACC undertakes
an investigation into federally relevant criminal activity or an intelligence
operation and the serious and organised crime is or includes an offence against
a law of a State, the Board, the Chair of the Board, the ACC etc has a choice
between exercising powers conferred by this Act or another Commonwealth Act and
those conferred by a law of a State.
Items 244 to 249
These
Items make consequential amendments to section 55C (which provides that there is
no obligation to perform duties etc. in relation to a relevant criminal activity
that is not a federally relevant criminal activity) to recognise the
establishment of the Board and the ACC and their role in relation to criminal
intelligence. For example paragraph 55(1)(a), which referred to “the
Authority”, is repealed and replaced by a new paragraph referring to
“the ACC”. Paragraph 55C(1)(c) and subsection 55C(2) are amended to
take into account the ACC’s criminal intelligence role.
The amended
section 55C will operate in the same way as it does for the NCA, and make it
clear that neither the ACC Act, nor any other Commonwealth law, imposes any
obligation on the ACC, the Board, the Chair of the Board, the CEO of the ACC, an
ACC examiner or a member of the staff of the ACC to perform a duty or function,
or exercise a power:
• in relation to the investigation of a
matter, or to the collection, correlation, analysis or dissemination of criminal
information or intelligence, relating to a relevant criminal activity that is
not a federally relevant criminal activity, or
• that is otherwise in
contravention of any constitutional doctrine restricting the duties that may be
conferred on Commonwealth authorities or members of Commonwealth authorities.
The amended section 55C also makes it clear that neither the ACC Act nor
any other Commonwealth law imposes any obligation on a Judge of the Federal
Court or a Federal Magistrate to perform a duty or function, or exercise a power
that relates to an investigation by the ACC of a matter, or to the collection,
correlation, analysis or dissemination of criminal information or intelligence,
relating to a relevant criminal activity if:
• the relevant
criminal activity is not a federally relevant criminal activity, or
• the imposition of the obligation is otherwise in contravention of
any constitutional doctrine restricting the duties that may be conferred on
Judges of a court created by the Parliament.
Item 250
This
Item repeals section 56 “Transfers of certain materials to the
Authority”, as it is a historical provision that is no longer
relevant.
Item 251
This Item makes a minor amendment to
section 57 “Application of Administrative Decisions (Judicial Review)
Act” to delete a reference to the National Crime Authority Act 1984
and to replace it with a reference to the Australian Crimes Commission Act
2002.
The provision will continue to apply to the ACC in the same way
that it applied to the NCA.
Item 252
This Item repeals
subsection 58(1) and replaces it with a new subsection. The new provision will
continue to enable the Minister to enter arrangements with the States for the
provision of State human resources to perform services for the ACC. Subsection
58(2) will continue to provide that the arrangements may address financial
issues associated with making the persons available.
Items 253 to
286
These Items amend section 59 to ensure that information is able
to be disseminated to all relevant persons.
Subsection 59(1) continues to
provide that the Chair of the Board (in lieu of the Chair of the Authority) must
keep the Minister informed of the general conduct of the ACC in the performance
of the ACC’s functions. This recognises the fact that the ACC is a
Commonwealth body established by Commonwealth legislation.
Subsection
59(1) also provides that the Minister may request information concerning a
specific matter, and subsection 59(1A) provides that a State IGC Minister may
also request that the Chair of the Board provide him or her with certain
information about the conduct of the ACC, being conduct that occurred within the
jurisdiction of that State. In both cases, the Chair of the Board must comply
with the request unless the Chair considers that disclosure of information to
the public could prejudice the safety or reputation of persons or the operations
of law enforcement agencies.
This is an important safeguard on the
disclosure of information, places all Ministers on an equal footing and
recognises the changed role that Ministers now have in relation to the conduct
of the ACC.
Subsections 59(3) to 59(5) will continue to apply to requests
for information by the IGC, expanding the provisions to information that relates
to ACC operations/investigations.
Subsections 59(6A) to 59(6D) will
continue to apply to requests for information by the PJC, expanding the
provisions to information that relates to operations/ investigations that the
ACC has conducted or is conducting. It will now be the Chairman of the Board
who must either comply with the PJC’s request or reject the request if he
or she considers that disclosure of the information to the public could
prejudice the safety or reputation of persons or the operations of law
enforcement agencies. The effect of this amendment is to permit the PJC access
to the same information, and subject to the same conditions, as the
Inter-Governmental Committee.
Subsection 59(7), which dealt with the
provision of information to law enforcement agencies, is repealed and a new
provision addressing both law enforcement agencies and foreign law enforcement
agencies (previously subsection 59(12)) is inserted. The new provision will
enable the CEO to disseminate any information that is in the ACC’s
possession and that is relevant to the activities of another agency, to that
other agency but only if it appears to the CEO to be appropriate to do so, and
to do so would not be contrary to a law of the Commonwealth, a State or a
Territory that would otherwise apply.
This subsection deals with
dissemination to law enforcement agencies, foreign law enforcement agency and
any other agency or body of the Commonwealth, a State or a Territory prescribed
by the regulations.
The requirement for the information to be relevant to
the activities of the agency and not to be contrary to any other law that
prevents secondary disclosure, such as the Financial Transaction Reports Act,
Telecommunications (Interception) Act and the Taxation Administration
Act.
Subsections 59(8) to 59(11) will continue to operate for disclosure
by the ACC in the same way that they operate for the NCA.
Item
287
This Item repeals section 59A “Delegation” and
replaces it with a new section 59A “Delegation” and 59B
“Liability for damages”.
Delegation
The new
section 59A allows the CEO to delegate any of his or her powers under the ACC
Act to a member of the staff of the ACC who is an SES employee. The delegation
must be in writing. The power to delegate recognises the need for flexibility
in relation to administrative matters, while at the same time ensuring that the
powers so delegated are exercised by appropriately senior
persons.
Liability for damages
The new section 59B provides
protection from liability for acts or omissions of members of the Board.
Similar protection has not been found necessary for the staff of the NCA or
other law enforcement agencies, but the Board is in a special position because
of the nature of its functions and its multi-jurisdictional composition.
Provided the person relying on the provision acts in good faith, section 59B is
broad enough to act as a defence to actions or other proceedings for damages.
Vicarious liability will continue to operate where appropriate, and the
provision does not provide protection for acts done in bad
faith.
Items 288 to 292
These Items make consequential
amendments to section 60 “Public sittings and bulletins” recognising
the establishment of the ACC. For example, the reference in subsection 60(5) to
“Authority” is replaced with “Board”.
Section
60 will provide for public meetings of the Board in lieu of public sittings of
the Authority, recognising the different roles of the Board and the
Authority.
Items 293 to 307
These Items amend section 61,
which deals with the annual report. In recognition of the role of the Board,
the Chair of the Board will be responsible for preparing the annual report and
providing it to the IGC. The report is to include a description of any
investigation into relevant criminal activity.
The amendments make it
clear that the Minister is required to table the report within 15 sitting days
of the report having been received by him or her from the IGC and not when he or
she receives it as a member of the IGC. This clarifies the intent of the
provision.
Item 307A
This Item inserts a proposed section
61A that will require the Minister to cause an independent review of the
operation of the Act to be undertaken as soon as practicable after 1 January
2006.
Part 2 – Transitional provisions
The purpose of
this Part 2 is to ensure that there is a seamless transition from the NCA, ABCI
and OSCA to the ACC.
The transition of staff to the ACC is not
addressed in these provision as the issue will be addressed under the provisions
of the Public Service Act 1999. Section 8 of the Acts Interpretation
Act 1901 is also relevant in relation to the effect of the repeal of an Act
on matters such as rights, privileges, obligations and liabilities or any
investigation, legal proceeding, or remedy in respect of any such right,
privilege, obligation or liability (see Item 325).
Item
308
This Item defines terms that are used in this Part.
Item 309
This Item deals with the appointment of the first
CEO of ACC. The ACC will commence operation on 1 January 2003. To ensure that
the ACC has a CEO on 1 January 2003, this Item provides that the first
appointment of the CEO will be in accordance with section 4 of the Acts
Interpretation Act 1901, which enables the Governor-General to appoint a CEO
after this Act receives Royal Assent but before 1 January 2003.
However,
to satisfy the criteria specified in section 37 for the appointment of a CEO,
that is, receiving nominations from the Board, the Item provides that this
requirement is taken to be satisfied if the Minister invite those persons who
will be members of the Board to make nominations for the
appointment.
Section 37 also requires the Minister to consult with the
IGC. As the IGC currently exists and will continue in existence in the same
name and composition under the ACC Act, consultation before 1 January 2003 will
satisfy the requirement for consultation for the appointment of the CEO without
the need for an express statutory provision. (While the IGC is known
administratively as the IGC-NCA and will, after 1 January be known as the
IGC-ACC, this is not a statutory title.)
Item 310
This Item
provides that on 1 January 2003 the NCA hearing officers will become examiners
under the ACC Act. A person who becomes an examiner under this Item will hold
that office on the same terms and conditions as applied to, and for the
unexpired portion of, their appointment as an NCA hearing officer. Those terms
and conditions may, however, be varied. In addition, as the sum of an examiners
terms of appointment cannot exceed 5 years, the Item provides that an
appointment of a person as an examiner under the Item is taken to be the
examiners first appointment, to avoid any doubt about the length of a person
appointment.
Item 311
This Item provides that on 1 January
2003 NCA consultants will become consultants under the ACC Act. A person who
becomes an ACC consultant under this Item will continue to be engaged on the
same terms and conditions as applied before 1 January 2003.
Item
312
This Item provides that on 1 January 2003 the NCA legal
practitioners will become legal practitioners under the ACC Act.
Item
313
This Item enables the ACC to complete NCA investigations that are
ongoing as at 1 January 2003 where the investigation is pursuant to a
Commonwealth reference or a State reference and there is a federal aspect to the
matter being investigated. Where there is not a federal aspect to the matter
being investigated, the transition of those investigations is a matter for State
legislation.
To satisfy the requirements for the continued access to
coercive powers in relation to the References, the Item provides that on 1
January 2003:
• the investigations are deemed to have been authorised
by the Board;
• the Board is taken to have determined that the
investigation is a special investigations;
• persons carrying out the
relevant NCA investigation are taken to be persons participating in the special
ACC investigation; and
• the person in charge is taken to be the head
of the ACC special investigation.
Item 314
This Item
provides for a continuation of the Commonwealth’s consent in relation to
the ACC exercising a duty, function or power under State law in the same
circumstances that the Commonwealth consented to the NCA so acting. Currently,
the NCA may only act in relation to a Reference under State law (irrespective of
whether the matter has a federal aspect) with the agreement of the IGC and the
consent of the Commonwealth Minister. After 1 January 2003, the Board must
consent to the ACC undertaking such investigations. This Item therefore
provides that the Board is taken to have consented to the ACC investigating the
matter. This provision only deals with the consent that is required; it cannot
deal with the reference itself (unless that reference has a federal aspect - see
Item 313).
Item 315
This Item enables the ACC to complete
NCA investigations that are ongoing as at 1 January 2003 that are not pursuant
to a Commonwealth or State reference but which relate to federally relevant
criminal activity.
To satisfy the requirements for the ACC to undertake
the investigation, on 1 January 2003:
• the investigations are
deemed to have been authorised by the Board;
• the persons carrying
out the relevant NCA investigation are taken to be persons participating in the
ACC investigation; and
• the person in charge is taken to be the head
of the ACC investigation.
Item 316
This Item continues the
obligation on the ACC under subsection 12(1) to assemble and give evidence to
the relevant prosecuting authority evidence obtained by the NCA before 1 January
2003 as if that evidence had been obtained by the ACC in carrying out an ACC
operation/investigation.
Item 317
This Item ensures that
where the Commonwealth or a State has referred a matter to the NCA for
investigation before 1 January 2003, that reference continues to be protected
after 1 January 2003 from challenges on the grounds that any necessary approval
had not been obtained or was not lawfully given.
Item
318
This Item provides that arrangements in force immediately before
1 January 2003 and made by the Commonwealth or the NCA to receive information or
intelligence from a State, Authority of a State or a person, will continue to be
in force after 1 January 2003 as if those arrangements had been made under the
ACC Act.
Item 319
This Item ensures that secrecy
obligations that applied to persons immediately before 1 January 2003 continue
to apply after 1 January 2003.
Item 320
This Item enables
the Parliamentary Joint Committee on the National Crime Authority to continue in
existence on 1 January 2003 as the Parliamentary Joint Committee on the
Australian Crime Commission.
Item 321
Under the ACC Act,
the Ombudsman is required at least once in each year to provide a briefing on
ACC involvement in controlled operations over the past 12 months. This Item
requires the first briefing of the Ombudsman to cover also any NCA involvement
in controlled operations during the preceding 12 months.
Item
322
This Item enables arrangements between the Commonwealth and a
State that are in force immediately before 1 January 2003 and under which the
State makes persons available to hold office as members of the NCA or to perform
services for the NCA, to continue to be in force after 1 January 2003 as if
those arrangements had been made under the ACC Act.
Item
323
Under the ACC Act, the Chair of the Board shall, as soon as
practicable after each 30 June, prepare a report of the ACC’s operations
during the year that ended on that 30 June. To ensure there is no hiatus in
reporting, this Item requires the Chair of the Board to include in his or her
first report details of matters that would have been required in an annual
report under the NCA Act that covered the same period.
Item
324
This Item provides that any material (including any evidence,
records, documents etc) that is in the possession of the NCA before 1 January
2003 is transferred to the ACC.
Item 325
This Item states
that Part 2 is not intended to limit the application of section 8 of the Acts
Interpretation Act 1901, which deals with the effect of an Act that repeals
in whole or in part a former Act.
Item 326
To help
facilitate a seamless transition from the NCA, ABCI and OSCA to the ACC, this
Item enables the Governor-General to make regulations prescribing matters of a
transitional nature. The commencement of any such regulations which are made
before 1 January 2004 may be dated back to 1 January 2003 to ensure that all
matters that are necessary for the effective and efficient replacement of the
NCA is able to be addressed without any gaps. This is to prevent any prejudice
to any person that might otherwise result.
Schedule 2 – Other Amendments
Part 1 – Amendments
The purpose of this Part is to
amend other Commonwealth Acts to replace references to the NCA with references
to the ACC, and to ensure that those Acts operate consistently with, and
facilitate the expanded criminal intelligence role of, the ACC.
The
majority of the amendments are consequential on the replacement of the National
Crime Authority with the Australian Crime Commission and the subsuming of the
Australian Bureau of Criminal Intelligence and the Office of Strategic Crime
Assessments within the new organisation. The amendments do not make any
substantive changes to the effect of the primary provisions. The amendments
will, however, enable the legislation to operate in the same way in respect of
the ACC as it currently does to the NCA. As the ACC will now also undertake a
criminal intelligence function, some provisions also require amendment to
include references to this new function.
Archives Act
1983
Item 1
This Item amends section 33 of the
Archives Act to ensure that records identifying persons providing confidential
information to the ACC are exempt from being made available to the public under
that Act. The exemption presently applies to the NCA.
Australian
Security and Intelligence Organisation Act 1979
Items 2 to
4
These Items amend the Australian Security and Intelligence
Organisation Act to enable the Director-General of ASIO to communicate
information relating to the commission of indictable offences against the law of
the Commonwealth or of a State or Territory to the ACC in the same circumstances
in which he or she could communicate such information to the NCA under the
current NCA legislation.
In addition, the Director-General may
communicate information concerning matters outside Australia that the
Director-General to the ACC in the same circumstances in which he or she could
communicate such information to the NCA.
The amendments do not make any
substantive change to the nature of the information that is, or the way in which
that information is, currently disclosed currently disclosed by ASIO to the
NCA.
The Items also make a drafting change to insert a definition of
“member of staff of the ACC”.
Crimes Act
1914
Items 5 to 9
These Items replace references to
the NCA and member of the staff of the NCA, in the definition section of the
Crimes Act, with references to the ACC and member of the staff of the
ACC.
Items 11 to 27
These Items amend Part IAB of the
Crimes Act to allow the ACC to engage in controlled operations for the purpose
of obtaining evidence about Commonwealth offences. The amendments replace
references to the NCA and member of the staff of the NCA with references to the
ACC and member of the staff of the ACC and do not provide the ACC with any
powers that the NCA does not currently exercise under the existing
provisions.
Item 28
Section 15XA of the Crimes Act
defines a Commonwealth participating agency, for the purposes of the assumed
identity provisions of Part 1AC to include the NCA. This Item replaces the
reference to the NCA with a reference to the ACC. The amendment will enable the
ACC to authorise persons to acquire and use assumed identities in the same
manner, and with the same indemnification and protection from criminal
liability, as persons can currently be authorised by the NCA under Part 1AC.
The amendment does not provide the ACC with any powers that the NCA does not
currently exercise under the provisions.
Items 29 and
30
Section 15XA of the Crimes Act defines law enforcement agency for
the purposes of the spent convictions scheme in Part VIIC of the Act, to include
the NCA and the Australian Bureau of Criminal Intelligence.
These Items
amend section 85ZL to replace the reference to the NCA with a reference to the
ACC, and to remove the reference to the Australian Bureau of Criminal
Intelligence as that organisation is to be subsumed into the ACC.
The
effect of the amendments is to exempt the ACC from the operation of the
Commonwealth spent convictions scheme in certain circumstances, in the same
manner in which the NCA is exempted under current legislation. For example, the
ACC may take spent convictions into account for the purpose of assessing
prospective employees, and may disclose or record information relating to spent
convictions in the discharge of its duties.
Criminal Code Act
1995
Items 31 and 32
Part 7.8 of the Criminal Code
creates a range of offences relating to causing harm to, impersonating or
obstructing a Commonwealth public official. There are additional penalties in
the harm and threaten harm offences where the victim is a Commonwealth law
enforcement officer, which is defined in section 146.1 to include persons whose
occupation exposes them to the danger of being harmed by criminals.
These Items amend section 146.1 to replace the references to
members or members of staff of the NCA, in the definition of “Commonwealth
law enforcement officer”, with references to members of the Board of the
ACC, examiners and members of the staff of the ACC.
Customs Act
1901
Items 33 to 38
These Items amend the
provisions of Division 1A of Part XII of the Customs Act, which deal with the
use of listening devices in relation to narcotics offences, to replace the
references to the NCA and its staff with references to the ACC and its staff.
The amendments will allow the ACC the same access to listening device
powers relating to narcotics offences as the NCA has under the current
provisions.
Customs Administration Act 1985
Items
39 and 40
Under section 16 of the Customs Administration Act the CEO
of the Australian Customs Service may, in certain circumstances, authorise the
disclosure of information to Commonwealth agencies. “Commonwealth
agency’ is defined to specifically include the Australian Bureau of
Criminal Intelligence (ABCI).
These Items amend section 16 to remove the
reference to the ABCI as that organisation is to be subsumed by the ACC. The
CEO may still authorise the disclosure of information to the ACC as it would
fall within the definition of a “Commonwealth agency” without
needing a specific reference.
Financial Transaction Reports Act
1988
Items 41 to 51
These Items amend the
definition section of the Financial Transaction Reports Act by replacing the
references to the NCA and its staff with references to the ACC and its staff,
and by deleting the reference to the ABCI.
Items 52 and
53
Section 16 of the Financial Transaction Reports Act requires a
cash dealer to report suspect transactions to the Director of AUSTRAC, and to
provide further information upon the request of the Director, a relevant
authority or an investigating officer. “Relevant authority” and
“investigating officer” are defined in subsection 16(6) to include
respectively the NCA and a member, or member of staff of the NCA.
These
Items amend subsection 16(6) by replacing the references to the NCA and its
staff, with references to the ACC, its staff and examiners. The effect of the
amendments is to allow the communication of reports made by cash dealers in
relation to suspect financial transactions to be made to the ACC.
Item
54
This Item amends paragraph 26(1)(c) of the Financial Transaction
Reports Act by replacing the reference to the NCA and its officers with
references to the examiners, members of the staff of the ACC and the Chief
Executive Officer of the ACC. This amendment will allow information
communicated to an investigating officer under section 16 to be communicated to
the ACC in the same manner as it can currently be communicated to the
NCA.
Items 55 and 56
These Items remove the reference to
the ABCI, as an organisation to which the Director of AUSTRAC may conditionally
release Financial Transaction Reports information, in section 27 of the Act.
Items 57 to 74
These Items amend section 27 of the
Financial Transaction Reports Act by replacing the references to the NCA and its
staff, with references to the ACC, its staff and examiners. The effect of these
amendments is to place the same restrictions on the communication of Financial
Transaction Report information obtained by the ACC as currently apply to the
NCA.
In addition, and in recognition of the existence and function of the
Board, the amendments will enable the CEO to provide the Financial Transaction
Report information to the Board of the ACC. The information must not, however,
identify or be reasonably capable of identifying a person to whom the
information relates. The CEO may also communicate the information to an
examiner who is conducting an examination under the ACC Act and the examiner may
divulge the information in the course of such an examination. This recognises
the role of the CEO and the examiner in place of the generic reference to the
NCA.
Items 75 and 76
These Items remove the reference
to the ABCI as a law enforcement agency, and a staff member of the ABCI as a law
enforcement officer, for the purpose of section 27 of the Financial Transaction
Reports Act.
Human Rights and Equal Opportunity Commission Act
1986
Item 77
This Item amends section 24 of the
Human Rights and Equal Opportunity Commission Act to enable the Attorney-General
to certify that the furnishing of information as to the existence or
non-existence of information of a document to HREOC would be contrary to the
public interest on the grounds that it would prejudice the proper performance of
the functions of the ACC. This restriction on the giving of information to
HREOC presently applies to the NCA in identical terms.
National
Crime Authority Legislation Amendment Act 2001
Items 78 to
83
The National Crime Authority Legislation Amendment Act made a
number of substantial changes to the NCA Act in relation to powers to obtain
information from Commonwealth agencies and the coercive powers available during
hearings. In particular, these amendments removed the defence of reasonable
excuse, increased penalties, and removed the availability of
derivative-use-immunity in relation to failure of witnesses to attend and answer
questions at a hearing. Section 4 of the Act provides that the Minister must
order a review of the operation of the first 5 years of these amendments.
Section 4 provides protection from the secrecy provisions of the NCA Act to
people assisting in the conduct of the review. It also requires the Authority
to give all reasonable assistance to the review.
Items 78 to 83 retain
the requirement to undertake a review as required by section 4 and extend the
protection it affords to any current or former CEO of the ACC and any current or
former members of the staff of the ACC. These people are also required to give
all reasonable assistance to the review.
Ombudsman Act
1976
Items 84 to 98
The proposed amendments to the
Ombudsman Act replace references to the NCA and its staff with references to the
ACC and its staff, in relation to:
• the transfer of complaints
about the ACC to a more appropriate authority;
• arrangements between
the Ombudsman and other authorities for the investigation of ACC actions;
and
• authorising the Attorney-General to provide a certificate
restricting the disclosure of certain ACC information by the
Ombudsman.
Those amendments are consequential on the replacement of the
NCA with the ACC and the subsuming of the ABCI and the OSCA within the new
organisation. As a consequence of the new functions of the ACC, the amendments
expand the restriction on the disclosure of ACC information by the Ombudsman.
Under the current provision, the restriction only applies if the disclosure
would be contrary to the public interest by reason that it would prejudice the
effectiveness of an investigation by the NCA. Under the amendment proposed at
Item 475, the restriction will apply where disclosure would prejudice the proper
performance of the functions of the ACC, including an intelligence operation.
However, the Ombudsman will continue to exercise the same role in relation to
the ACC as it currently has in relation to the NCA.
Privacy Act
1988
Items 99 to 106
The proposed amendments to
section 6 of the Privacy Act replace references to the NCA and its staff with
references to the ACC and its staff, consequential on the replacement of the NCA
with the ACC.
The proposed amendments to section 7 of the Privacy Act
will exempt the ACC from being defined as an agency for the purposes of the Act
in the same way that the NCA is presently exempt.
The reference to the
National Crime Authority Act 1984 in the note following subsection 18K(5)
will be replaced with a reference to the Australian Crime Commission Act
2002.
The proposed amendment to section 70 will enable the
Attorney-General to certify that the furnishing of information to the Privacy
Commissioner as to the existence or non-existence of information or a document
would be contrary to the public interest on the grounds that it would prejudice
the proper performance of the functions of the ACC. Given the new functions of
the ACC, this amendment will result in an incidental expansion of the type of
information or documents that may be subject to a
certificate.
Proceeds of Crime Act 1987
Items 107
to 115
These Items amend the Proceeds of Crime Act to make the CEO of
the ACC responsible for the care and control of property provided to the ACC,
and for its return in certain circumstances.
The amendment to section
74 will allow financial institutions to disclose the existence of monitoring
orders to the ACC and allow the ACC to disclose the existence of such orders to
other specified organisations.
Proceeds of Crime Act
2002
Items 116 and 117
These Items amending the
Proceeds of Crime Act are contingent upon its passing into law. The amendment
to section 213 will allow the ACC to give a financial institution a notice
requiring the production of certain information or documents. The CEO of the
ACC, an examiner and a member of staff of the ACC will be authorised officers
for the purposes of the Act. Such officers will have a range of powers
including applying for monitoring orders under the amended section
219.
Radiocommunications Act 1992
Item
118
The proposed amendment to section 27 of the Radiocommunications
Act is contingent on the passage of the Communications Legislation Amendment
Bill (No.1) 2002. That Bill amends section 27 so that the Australian
Communications Authority may determine in writing that the acts of persons to
whom the section applies are exempt from the operation of parts 3.1, 4.1 and 4.2
of the Act. That Bill also inserts a number of new organisations to which
persons to be exempted may belong, including the NCA. The ACC Bill substitutes
the ACC for the NCA in section 27. This would give the ACC exemption from
requirements of the Act in relation to matters such as unlicensed
radiocommunications, use of prohibited devices and interference with
radiocommunications. These exemptions are essential to ensure the ACC can carry
out its functions, including its intelligence gathering
functions.
Retirement Savings Accounts Act
1997
Item 119
The proposed amendment of section 114
of the Retirement Savings Accounts Act will enable a copy of a report made by an
inspector carrying out an investigation of a retirement savings account provider
may be passed to the CEO of the ACC where it relates to a contravention of the
law of the Commonwealth, of a State or of a Territory.
Royal
Commissions Act 1902
Items 120 to 123
Section 6P of
the Royal Commissions Act presently allows for the communication of information
from a Royal Commission to the NCA in relation to an investigation. The amended
section would allow communication in relation to the functions of the ACC, which
include intelligence gathering functions not enjoyed by the NCA. However,
section 6P presently also provides for the passing of information to the
Australian Bureau of Criminal Intelligence, which will be incorporated in the
ACC, and currently exercises an intelligence gathering role. Therefore the
proposal for a Royal Commission to pass information to the ACC in relation to
both investigation and intelligence operations does not expand the existing
dissemination powers.
Superannuation Industry (Supervision) Act
1993
Item 124
Under the proposed amendment, a
report made by an inspector investigating a superannuation entity under the
Superannuation Industry (Supervision) Act may be given to the CEO of the
ACC.
Taxation Administration Act 1953
Items 125
to 187
Changes to the Taxation Administration Act facilitate the
obtaining of information from the Commissioner of Taxation for the purposes of
an investigation. Under section 3D of the amended legislation, the Commissioner
is authorised to disclose information to the ACC for the purposes of a
tax-related investigation. The legislation also authorises a Royal Commission
or State Commissioner to disclose tax information to the ACC without breaching
the Act. Further, the ACC may apply to a judge to have access to particular
information that it believes may have been communicated to the Commissioner of
Taxation. Section 3D also places restrictions on the distribution of
information by the ACC. The powers available to the ACC mirror those previously
available to the NCA.
Telecommunications Act
1997
Items 188 and 189
The ACC Bill will amend the
Telecommunications Act to include the ACC in the definition of agency in section
7, in place of the NCA. This will ensure the ACC has access to the powers
presently available to the NCA, such as being consulted about the implementation
of new technology under section 332G. The ACC also replaces the NCA in the
definition of “criminal law-enforcement agency” in section 282 of
the Act. Broadly speaking, section 282 provides an exemption to the
prohibitions on disclosure of information set out in 276 and 277 of the Act. In
particular, subsections 282(3), 282(4) and 282(5) allow for the disclosure of
information to a criminal law enforcement agency in specified
circumstances.
Telecommunications (Interception) Act
1979
Items 190 to 224
These Items amend the
Telecommunications (Interception) Act to enable the CEO of the ACC, an examiner
or a member of a police force who is a member of the staff of the ACC (replaces
reference to a member of the Authority or a member of a police force who is also
a member of the staff of the Authority) to apply for a warrant in respect of a
telecommunications service or a person.
An application for a warrant may
only be made in relation to an offence into which the ACC is conducting a
special investigation. However, lawfully obtained information may be used or
disclosed in relation to any ACC intelligence operation or investigation, or for
the purposes of making a report to the Board in relation to the outcome of such
an operation/investigation. As such, this provides an incidental expansion of
how the ACC can handle lawfully obtained information as the NCA may only use or
disclose information in relation to an investigation.
Other than in
relation to the permitted use of lawfully obtained information, the amendments
do not affect the substantive operation of the Act. In particular, the
amendments do not alter the way in which warrants are obtained, and they retain
existing safeguards such as the retention of records.
Witness
Protection Act 1994
Item 225
This Item amends
section 3 of the Witness Protection Act to include the CEO of the ACC in the
definition of approved authority. Approved authorities have a number of
privileges under the Act, including having access to the new identity of a
person in certain circumstances.
Part 2 – Transitional
provisions
Item 226
This Item allows the
Governor-General to make regulations in relation to matters of a transitional
nature which, provided they are made within a year of the commencement of this
Item, may be retrospective to that date.
Schedule 3 – Contingent Amendments
The operation of the amendments in this Schedule is dependent on whether
the Proceeds of Crime Act 2002 commences before or after 1 January 2003.
If section 3, the interpretation provision, of that Act commences before
1 January 2003, the amendments in Part 1 of the Schedule will apply.
Alternatively, if section 3 of that Act commences on or after 1 January 2003,
the amendments in Part 2 of this Schedule will apply.
Section 3 of the
Proceeds of Crime Act 2002 is to commence on a day to be fixed by
Proclamation or, 6 months from the date of Royal Assent, whichever is the
earlier.
Part 1 – Amendments
The amendments in this
Part will only apply if section 3 of the Proceeds of Crime Act 2002 (POCA
2002) commences before the establishment of the ACC on 1 January 2003. POCA
2002 amends the NCA Act. The purpose of this Part is to amend those amendments
so that they operate in relation to the ACC. This means that immediately after
the commencement of the ACC Act, Items 1 to 6 of this Part will take effect to
amend the Australian Crime Commission Act 2002 to “correct” the
amendments made by POCA 2002. If POCA 2002 commences on or after 1 January
2003, then Items 1 to 6 of this Part do not commence at
all.
Australian Crime Commission Act 2002
Items 1
to 4
POCA 2002 amended the definition of relevant offence in the NCA
Act to include serious offences within the meaning of the Proceeds of Crime
Act 2002. These items amend the definition of “serious and organised
crime” in the ACC Act, to achieve the same purpose.
Items
5
POCA 2002 inserts a new subsection 12(1B) into the NCA Act. This
Item amends that subsection to replace a reference to “an investigation in
relation to relevant criminal activity” with a reference to an ACC
operation/investigation” and to include a reference to the CEO. The CEO
may assemble evidence that would be admissible in confiscation proceedings to
give that evidence to the Commonwealth or a relevant State Attorney-General, or
a relevant law enforcement agency, or any person or authority that is authorised
to commence confiscation proceedings.
Item 6
POCA 2002
inserts a new paragraph in section 61, which deals with annual reports, to
require the Chair of the Board to include information on the extent to which
investigations have resulted in confiscation proceedings. This Item makes a
technical amendment to that paragraph.
Part 2 – Alternative
amendments
The amendments in this Part will only apply if section 3
of the Proceeds of Crime Act 2002 (POCA 2002) commences after the
establishment of the ACC on 1 January 2003. The purpose of this Part is amend
the ACC Act in the same way that POCA 2002 would have amended the NCA Act. That
is, as POCA 2002 is amending the NCA Act and not the ACC Act, the following
provisions will amend the ACC Act to achieve the same result and the amendments
that POCA would have made to the NCA Act will not commences (see Item 16).
Australian Crime Commission Act 2002
Items 7 to
11
These Items amend section 4(1) of the ACC Act to include
definitions relevant to the POCA 2002.
Item 12
This Item
adds a new subsection 12(1A) to require the CEO to assemble evidence that would
be admissible in confiscation proceedings and to give that evidence to the
Commonwealth or a relevant State Attorney-General, or a relevant law enforcement
agency, or an y person or authority who is authorised to commence confiscation
proceedings.
Item 13
This Item amends subsection 30(5) of
the ACC Act to provide that information gathered from a witness by an ACC
examiner will not be inadmissible in confiscation proceedings.
Item
14
This Item requires the Chair of the ACC Board to include in the
ACC annual report information about the extent to which investigations by the
ACC have resulted in confiscation proceedings.
Proceeds of Crime
(Consequential Amendments and Transitional Provisions) Act 2002
Items 15 and 16
This Item provides that amendments
to the NCA Act made by POCA 2002 are repealed if POCA 2002 does not commence
before 1 January 2003.
Telecommunications (Interception)
Act 1979
Item 17
POCA amends paragraph 6L(2)(a) if
the Telecommunications (Interception) Act, to include a reference to the
Authority. This Item amends that paragraph to replace the reference to
“Authority” with a reference to the “ACC”.