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2002
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
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 introduce a
further level of Ministerial oversight in relation to the functions of the Board
and the ACC. The Bill currently ensures that there is general ministerial
oversight of, and accountability for, the Board and the ACC, through the
Inter-Governmental Committee (IGC), the Parliamentary Joint Committee on the
National Crime Authority, and Ministerial directions and guidelines. However,
there is no specific ministerial responsibility in relation to the Board
authorising access (via written determinations) to the coercive powers. The
proposed amendments will provide ministerial oversight in relation to those
determinations by introducing an IGC revocation regime.
The amendments
will:
• require the Chair of the Board to provide a copy of a
determination to the IGC;
• enable the IGC to seek more information in
relation to the determination from the Chair of the Board (provided that the
information could not prejudice the safety or reputation of persons or the
operations of law enforcement agencies);
• enable the IGC to revoke a
determination;
• require the IGC to notify that revocation to the Chair
of the Board and the Chief Executive Officer of the ACC;
• provide that
the revocation takes effect when it is so notified;
• ensure that the
validity of any act that is done before a revocation is not effected by that
revocation; and
• provide that the IGC is not under any duty to
exercise this function.
The amendments will also require the IGC to have
at least 2 meetings each calendar year.
Financial Impact
The amendments will have no financial impact.
NOTES ON ITEMS
Item 1
This Item inserts a new subsection in proposed section
7C (Functions of the Board) to provide that the Chair of the Board must, within
3 days of having made a determination that an ACC operation/investigation is a
special ACC operation/investigation, provide a copy of that determination to the
IGC. This will ensure that the IGC is aware the purpose of the operation or
investigation, the general nature of the circumstances or allegations
constituting the federally relevant criminal activity that is to be the subject
of the operation or investigation; and the fact that the serious and organised
crime that is involved is an offence against a law of the Commonwealth, a
Territory or a State. (This information is required to be included in the
determination under proposed subsection 7C(4)).
This Item also adds a new
subsection to provide that a determination made by the Board takes effect
immediately that it is made. This ensures that there is no delay in the
commencement of an investigation.
Item 2
This Item amends
subsection 8(5), which provides that meetings of the IGC shall be held at such
times and places as are from time to time agreed upon by the members of the IGC,
to provide that there must be at least two such meetings in each calendar
year.
Item 3
This Item repeals and substitutes a new
subsection 8(7), which deals with out of session resolutions of the IGC. The
new provision will provide that the voting in relation to resolutions that do
not relate to revoking determinations will remain by majority vote, but any
resolution that relates to revoking a determination must be agreed by the member
representing the Commonwealth and at least five other IGC members. The
amendments will ensure that the special voting requirements for resolutions that
relate to revoking a determination will apply to decisions made by the IGC both
in session and out of session.
Item 4
This Item inserts
provisions enabling the IGC to revoke a determination that an ACC operation or
investigation is a special ACC operation/investigation. This power is
exercisable if, within 30 days of having received the determination from the
Board, the member of the IGC representing the Commonwealth and at least 5 other
members decide that they need more information in relation to the determination
and resolve to request the Chair of the Board provide that information to them.
The Chair of the Board must comply with this request, but must not give the IGC
any information which, if disclosed to the public could prejudice the safety or
reputation of persons or the operations of law enforcement agencies. If the
Chair of the Board considers that the information sought is of this nature, then
the IGC may refer the request to the Commonwealth Minister for
decision.
However, the IGC may, within 30 days of having requested the
additional information, by resolution which is agreed by the member of the IGC
representing the Commonwealth and at least 5 other members, revoke the
determination. The revocation of the determination would mean that the ACC
operation/investigation was no longer a special ACC operation/investigation and
therefore the coercive powers would no longer be available for that
operation/investigation.
If the IGC revokes the determination, the IGC
must notify the Chair of the Board and the CEO. The revocation takes effect
when the CEO is notified, however, the revoking of the determination does not
impact on the validity of any act done in connection with the ACC
operation/investigation before that notification. This means, for example, that
a search warrant executed before revocation was still a valid search warrant
notwithstanding the revocation.
The provisions also provide that the IGC
is not required to consider whether to exercise the powers to either ask for
more information or revoke the determination. That is, the IGC does not have a
duty to reconsider each and every determination and make a decision in relation
thereto. It has a non-compellable power to do so.