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2002
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
AUSTRALIAN CRIME COMMISSION ESTABLISHMENT BILL 2002
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be Moved on Behalf of the Government
(Circulated by authority of the Minister for Justice and Customs,
Senator the Honourable Chris
Ellison)
OUTLINE
The Australian Crime Commission Establishment Bill (the Bill) amends the
National Crime Authority Act 1984 (NCA Act) to establish 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. The ACC will combine
the functions of the National Crime Authority (NCA), the Australian Bureau of
Criminal Intelligence (ABCI) and the Office of Strategic Crime Assessments
(OSCA).
The proposed Government amendments to the Bill will implement the majority of the recommendations contained in the report by the Parliamentary Joint Committee on the National Crime Authority (PJC-NCA) on the Bill. The amendments will:
• reinsert a provision requiring the ACC to act in cooperation with law
enforcement agencies and to coordinate its activities with foreign law
enforcement agencies.
• provide that a Committee must inform
other Board members, who are not on the Committee, of its
decisions.
• provide that an Examiner must be satisfied that the
exercise of a power in relation to the issue of a summons or a notice to produce
is reasonable in all the circumstances and to record reasons for the exercise of
that power.
• provide that the CEO:
• is responsible
for the administration and management of the ACC;
• must manage,
coordinate and control ACC operations/investigations; and
• must, as
soon as practicable after the Board authorises the ACC to undertake an
operation/investigation, determine the head of the investigation/operation after
having consulted with the Chair and other appropriate members of the Board in
relation thereto.
• provide that the Minister must not suspend the
appointment of the CEO unless the Minister has asked the Board for its advice in
relation to the proposed suspension and has considered that advice.
• ensure that the PJC-NCA may have access to the same information
that the IGC-NCA is able to access. This includes information in relation to an
ACC operation/investigation that the ACC is conducting.
• provide
that the protection from liability for damages should only be available to a
member of the Board.
• ensure that the Board cannot determine
that a committee has the function of determining that an intelligence
operation/investigation is a special operation/investigation.
• remove references to part-time examiners.
• insert a requirement for an independent review of the operation of the Act to be undertaken as soon as practicable after 1 January 2006.
The proposed Government amendments will also address the following minor
matters, which are necessary to fully implement, or are consequential on, the
amendments proposed by the Bill:
• provide that the first meeting of the Board must be within 2 months of the commencement rather than 1 month.
• provide the consent mechanism for the Board and Chair of the Board to perform a duty or function or exercise a power under a law of a State.
• clarify 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.
Financial Impact
The amendments will have no financial impact.
NOTES ON ITEMS
Schedule 1 Part 1
Item 1
This Item amends proposed section 7C to remove the requirement for the Board to appoint the head of an ACC operation or investigation. The CEO will now undertake this function (see Item 12). This will expressly recognise that the CEO is responsible for the management, co-ordination and control of ACC operations/investigations.
Item 2
This Item inserts a note after proposed section 7C to refer to the requirement under proposed section 46A for the CEO to appoint the head of an ACC operation/investigation.
Item 3
This Item amends proposed paragraph 7C(2)(a) to provide that the first meeting of the Board must be within 2 months of the commencement rather than 1 month. As the Act will commence on 1 January, this resolves the practical problems associated with holding the first important meeting during January 2003.
Items 4 to 6
These Items amend proposed subsection 7K(4) to prohibit the Board establishing a committee to determine that an ACC operation/investigation is a special ACC operation/investigation. Such a decision, which determines whether the operation/investigation can have access to the special coercive powers, will have to be taken by the full Board. Consequential amendments are made to subsections 7K(6) and 7K(7).
Item 7
This Item omits proposed subsection 7K(8) and substitutes a provision requiring a committee appointed under section 7K to inform other Board members who are not on the Committee of the decision by the Committee. 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.
Item 8
This Item reverses the proposed repeal of section 17 of the NCA Act. The
effect of this will be to retain section 17 (amended to replace references to
the Authority with references to the ACC) so that the ACC will cooperate with
law enforcement agencies within Australia and coordinate its activities with
overseas authorities performing similar functions.
Item 9
This Item inserts a new subsection into section 28 to
provide that before an Examiner exercises the power under subsection 28(1) to
summons a person to appear and give evidence at an examination, the examiner
must be satisfied that it is reasonable in all the circumstances to do so.
While this is inherent in the exercise of any administrative decision, the
express reference emphasises the independent role of the examiners. In
addition, the new provision will require the examiner to record in writing the
reasons for the issue of the summons.
Item 10
This Item inserts a new subsection into section 29 to
provide that before an Examiner exercises the power under subsection 29(1) to
issue a notice to produce, the examiner must be satisfied that it is reasonable
in all the circumstances to do so. Again, while this is inherent in the
exercise of any administrative decision, the express reference emphasises the
independent role of the examiners. In addition, the new provision will require
the examiner to record in writing the reasons for the issue of the summons.
Item 11
This Item inserts a proposed subsection 43(1A) to require the Minister to consult with the Board, and consider its advice, before suspending the appointment of the CEO.
Item 12
This Item omits proposed subsections 46A(1) and (2) and substitutes new
provisions to ensure that the CEO has a clearer role to play in relation to the
management of the ACC and the control of the ACC's investigations and
operations. The proposed subsections 46A(1) to (2B) will provide that the CEO:
• is responsible for the administration and management of the ACC;
• must manage, coordinate and control ACC operations/investigations
(this will ensure that the head of an ACC operation/investigation is responsible
to the Board through the CEO); and
• must, as soon as practicable after
the Board authorises the ACC to undertake an operation/investigation, determine
the head of the investigation/operation after having consulted the Chair and
other members of the Board (as the CEO considers appropriate) in relation
thereto. Appropriate Board members may be determined by the Board and included
in directions issued under subsection 46(1).
Items 13 to
16
These Items amend proposed section 46B to remove the authority to
appoint examiners on a part-time basis. Consequential amendments are also made
to sections 46D (Leave of absence), 46G (Outside employment) and 46H
(Termination of appointment) to remove references to part-time examiners. These
changes will reinforce the independence of examiners by removing any possible
perception that the CEO could, in his or her role of allocating examiners,
affect the level of remuneration of individual examiners and thereby influence
them in the exercise of their independent statutory functions.
These Items amend sections 55A, 55B and 55C to provide the consent
mechanism for the Board and Chair of the Board to perform a duty or function or
exercise a power under a law of a State. These amendments are necessary to
ensure that the Board is able to authorise the ACC to undertake intelligence
operations or investigations under State legislation and to determine when such
operations/investigations are special operation/investigations.
This Item is designed to address the High Court's decision in Macleod
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 proposed amendment repeals the existing subsection
55A(12) (a provision for an unrelated purpose which is no longer required) and
substitutes a new subsection which 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.
Item 29
This Item amends paragraph 59(6A)(a) to provide that
the Parliamentary Joint Committee will be able to request information relating
to an ACC operation/investigation that the ACC has conducted or is conducting.
However, the Chair of the Board must not disclose that information if disclosure
of the information to the public could prejudice the safety or reputation of
persons, or the operations a 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.
This Item replaces proposed section 59B (Liability for damages), which would have covered the Board and members of staff of the ACC, with a new provision that will only cover 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 function and its multi-jurisdictional composition.
Item 31
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.