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1998-1999-2000
THE PARLIAMENT OF THE
COMMONWEALTH OF
AUSTRALIA
SENATE
NATIONAL CRIME
AUTHORITY AMENDMENT BILL 2000
EXPLANATORY
MEMORANDUM
(Circulated by
authority of the Minister for Justice and Customs, Senator the Honourable
Amanda Vanstone)
ISBN: 0642 452067
This Bill amends the National Crime Authority Act 1984 (the NCA
Act) to clarify the powers, functions and duties of the National Crime Authority
following the High Court’s decision in R v Hughes (2000) 171 ALR
155.
The High Court’s decision in Hughes raised questions
about the capacity of a Commonwealth authority (such as the National Crime
Authority) to perform functions or exercise powers under State laws when the
function or power conferred on the Commonwealth authority is coupled with a
duty, particularly a duty that has the potential to affect the rights of
individuals. The Court decided that where both a power and a duty are conferred
on the Commonwealth authority pursuant to a Commonwealth/State legislative
scheme, an appropriate Commonwealth head of power must support the conferral of
that power and duty.
The amendments
will:
• confirm the power of the National Crime Authority to
investigate offences under the NCA Act against a law of the Commonwealth, or a
law of a Territory, or when the offence is an offence against a law of a State
and that State offence has a federal aspect;
• clarify that when a
function or power is conferred on the National Crime Authority by a law of a
State in circumstances where the function or power is coupled with a duty, the
Commonwealth’s consent to the conferral will be limited to matters that
have a federal aspect; and
• ensure that when the National Crime
Authority is exercising a function or power under a law of a State where there
is no federal aspect to that function or power, the National Crime Authority
will not be under a duty or obligation under Commonwealth law to perform that
function or exercise that power.
There are no direct financial impacts from this Bill.
NOTES ON CLAUSES
The short title of the Act is the National Crime Authority Amendment Act
2000.
The Act commences on the day on which it receives the Royal Assent.
This clause provides that each Act that is specified in a Schedule is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule has effect according to its terms.
Item 1
This Item inserts a definition of the term
federal aspect into subsection 4(1) and provides that, in relation
to an offence against a law of a State, it will have the meaning given by
proposed subsection 4A(2) (see Item 5).
Item 2
This Item
inserts a definition of the term federally relevant criminal
activity. Relevant criminal activity (defined in subsection 4(1)) will
be “federally relevant criminal activity” where the relevant offence
(defined in subsection 4(1)) is an offence against a law of the Commonwealth, or
of a Territory, or where the relevant offence is an offence against a law of a
State and that State offence has a federal aspect (see
Item 5). Relevant
criminal activity will not be federally relevant criminal activity where the
relevant offence is an offence against a law of a State and that State offence
does not have a federal aspect.
Item 3
This Item amends the
definition of original reference so that it will apply to all
references for which an additional office for a member of the National Crime
Authority (the Authority) may be created under subsection 7(8AA).
This Item amends the definition of related reference so
that it will apply to all references that are stated to be related to another
reference.
This Item inserts a proposed section 4A to identify when a State offence
will have a federal aspect.
Proposed subsection 4A(1) provides that
the object of proposed section 4A is to identify State offences that will have a
federal aspect because:
• the State offence could fall within
Commonwealth legislative power because of the elements of the State offence;
• the State offence could fall within Commonwealth legislative power
because of the circumstances in which the State offence was committed,
regardless of whether or not those circumstances are expressed to be elements of
the offence; or
• the investigation of a matter relating to a relevant
criminal activity that relates to the State offence is incidental to the
investigation of a matter relating to a Commonwealth or a Territory
offence.
Proposed subsection 4A(2) provides that, for the purposes of the
NCA Act, a State offence will have a federal aspect if and only if at least one
of proposed paragraphs 4A(2)(a), (b), (c) or (d) is satisfied.
Proposed
paragraphs 4A(2)(a) and (b) provide that a State offence will have a federal
aspect if:
• the State offence is not an ancillary offence (as
defined) and, assuming that the provision creating the State offence had been
enacted by the Commonwealth Parliament instead of by the relevant State
Parliament, the provision would have been a valid Commonwealth law; or
• the State offence is an ancillary offence that relates to a
particular primary offence and, assuming that the provision creating the primary
offence had been enacted by the Commonwealth Parliament instead of by the
relevant State Parliament, the provision would have been a valid Commonwealth
law.
These provisions will make it clear that, for the purposes of the
powers of the Authority, a State offence will have a federal aspect when the
subject of the State offence is a matter over which the Commonwealth could
legislate. There is no requirement for the Commonwealth to have actually
legislated in relation to that subject, provided that the Commonwealth has a
head of power under which it could legislate on the matter.
Proposed
paragraph 4A(2)(c) provides that, for the purposes of the NCA Act, a State
offence will have a federal aspect if, assuming the Commonwealth Parliament had
enacted a provision that created an offence penalising the specific acts or
omissions involved in committing that State offence, that provision would have
been a valid Commonwealth law.
This provision will make it clear that,
for the purposes of the powers of the Authority, a State offence will have a
federal aspect when the specific acts or omissions involved in committing the
State offence are matters over which the Commonwealth could legislate, that is,
when the circumstances of the particular State offence bring it within the
Commonwealth’s legislative power. For example, if the general offence of
fraud is a State offence, then when fraud is committed by a constitutional
corporation it is an offence that could have been enacted by the Commonwealth
Parliament and therefore it will have a federal aspect. Furthermore, proposed
subsection 4A(3) makes it clear that the specificity of the acts or omissions is
to be determined having regard to the circumstances in which the offence was
committed (whether or not those circumstances are expressed to be elements of
the offence). Therefore, even if the general offence is expressed to be fraud,
the fact that the offence was committed by a body over which the Commonwealth
could legislate will be sufficient to give a federal aspect to the particular
offence committed.
Proposed subsection 4A(4) provides examples of when
a State offence will have a federal aspect for the purposes of proposed
paragraph 4A(2)(c) (that is, because of the circumstances of the offence).
Proposed subsection 4A(5) provides that the examples in proposed subsection
4A(4) are not, however, to limit the definition in proposed paragraph 4A(2)(c).
A State offence will have a federal aspect if it:
• affects the
interests of the Commonwealth, an authority of the Commonwealth or a
constitutional corporation (as defined); or
• was committed by a
constitutional corporation; or
• was committed in a Commonwealth place
(as defined); or
• involved the use of a postal service or other like
service; or
• involved an electronic communication (as defined);
or
• involved trade or commerce:
- between Australia and places
outside Australia,
- among the States, or
- within a Territory, between a
State and a Territory or between two Territories; or
• involved banking
(other than State banking not extending beyond the limits of the State
concerned), or insurance (other than State insurance not extending beyond the
limits of the State concerned); or
• relates to a matter outside
Australia.
Proposed paragraph 4A(2)(d) provides that, for the purposes of
the NCA Act, a State offence will have a federal aspect if the investigation or
possible investigation of a matter that relates to that State offence is
incidental to an investigation being conducted in relation to an offence against
a law of the Commonwealth or of a Territory.
Proposed subsection 4A(6) defines various terms used in proposed section 4A.
An ancillary offence will, in relation to an offence (the primary offence), be an offence of conspiring to commit the primary offence, or an offence of aiding, abetting, counselling or procuring, or being in any way knowingly concerned in, the commission of the primary offence, or an offence of attempting to commit the primary offence.
The term Commonwealth place will have the same meaning as in the Commonwealth Places (Application of Laws) Act 1970.
The term constitutional corporation will mean a corporation to
which paragraph 51(xx) of the Constitution applies, that is, foreign
corporations, and trading or financial corporations formed within the limits of
the Commonwealth.
The definition of the term electronic
communication will be modelled on that in the Electronic
Communications Act 1999 and will mean a communication of information whether
in the form of:
• text; or
• data; or
• speech,
music or other sounds; or
• visual images (animated or otherwise);
or
• any other form; or
• any combination of forms
by means of guided (for example, fixed cable) and/or unguided (for example, satellite) electromagnetic energy.
The term State offence will mean an offence against a law of a State.
Item 6
This Item amends paragraph 7(8AA)(a) so that if the Inter-Governmental Committee of the National Crime Authority considers that the appointment of another member of the Authority will be necessary for the Authority to be able to perform its function in relation to a reference that does not relate to federally relevant criminal activity, then it may create an office of member. This proposed function is in addition to the role of the Committee in relation to the appointment of additional members to deal with references that do relate to federally relevant criminal activity.
Item 7
This Item makes a minor drafting amendment to paragraph
9(1)(a).
As references under section 13 will apply to federally relevant criminal
activity (see Item 21), where the relevant offence is an offence against a law
of the Commonwealth or of a Territory or is a State offence that has a federal
aspect, the following Items will make consequential amendments to the provisions
listed:
• Item 8 amends paragraph 9(1)(b) by inserting the
word “federally” before the words “relevant criminal
activity”. The amendment will provide that a function of the
Inter-Governmental Committee of the National Crime Authority will be to consult
with the Commonwealth Minister in relation to the proposed reference of a
federally relevant criminal activity to the Authority under section 13.
• Item 14 amends subsection 10(4A) by inserting the word
“federally” before the words “relevant criminal
activity”. The amendment will enable the Authority to request the
Commonwealth Minister to refer to it, under section 13, a matter relating to
federally relevant criminal activity.
• Item 16 amends
paragraph 11(2)(a) by inserting the word “federally” before the
words “relevant criminal activity”. The amendment will provide that
a special function of the Authority in relation to references made under section
13 will be the investigation of a matter relating to federally relevant criminal
activity.
• Item 17 amends paragraph 11(2)(a) by deleting
the qualifying phrase “in so far as the relevant offence is, or the
relevant offences are or include, an offence or offences against a law of the
Commonwealth or of a Territory”. The qualifying phrase will no longer be
applicable, as references under section 13 will also relate to offences against
a law of a State that have a federal aspect.
• Item 22
amends subsection 13(1) by deleting the qualifying phrase “in so far as
the relevant offence is, or the relevant offences are or include, an offence or
offences against a law of the Commonwealth or of a Territory”. The
qualifying phrase will no longer be applicable, as references under section 13
will also relate to offences against a law of a State that have a federal
aspect.
• Item 23 amends paragraph 13(2)(a) by inserting the
word “federally” before the words “relevant criminal
activity”. The amendment will provide that a notice referring a matter to
the Authority under subsection 13(1) will describe the general nature of the
circumstances or allegations constituting the federally relevant criminal
activity.
• Item 24 amends paragraph 13(2)(b) by inserting a
reference to an offence against a law of a State. The amendment will enable
references under section 13 to relate to relevant offences where the offence is
an offence against a law of a State (provided that it has a federal aspect) as
well as an offence against a law of the Commonwealth or of a Territory.
This Item makes a minor drafting amendment to paragraph
9(1)(b).
Items 10, 18 and 27
As references under section 14
will apply to federally relevant criminal activity (see Item 25), the following
Items will make consequential amendments to the provisions
listed:
• Item 10 amends paragraph 9(1)(c) by inserting the
word “federally” before the words “relevant criminal
activity”. The amendment will provide that a function of the
Inter-Governmental Committee of the National Crime Authority will be to consider
whether to approve the referral of a matter relating to a federally relevant
criminal activity to the Authority in accordance with section
14.
• Item 18 amends paragraph 11(2)(b) by inserting the
word “federally” before the words “relevant criminal
activity”. The amendment will provide that a special function of the
Authority in relation to references made under section 14 will be the
investigation of a matter relating to federally relevant criminal activity where
the relevant offence is an offence against a law of a State and that State
offence has a federal aspect.
• Item 27 amends paragraph
14(2)(a) by inserting the word “federally” before the words
“relevant criminal activity”. The amendment will provide that a
notice referring a matter to the Authority under subsection 14(1) will describe
the general nature of the circumstances or allegations constituting the
federally relevant criminal activity.
Item 11
This Item
makes a minor drafting amendment to paragraph 9(1)(c).
Item
12
This Item inserts a new function for the Inter-Governmental
Committee of the National Crime Authority. Proposed paragraph 9(1)(ca) provides
that a function of the Committee will be to consider whether to approve the
referral of a matter relating to a relevant criminal activity (other than a
federally relevant criminal activity) under a law of a State by a State
Minister, to the Authority for investigation. This will maintain the role of
the Committee in relation to approving references to the Authority that relate
to State offences.
This Item makes a minor drafting amendment to paragraph 9(1)(d).
As references under sections 13 and 14 will apply to federally relevant
criminal activity (see Items 21 and 25), this Item will make a consequential
amendment to paragraph 11(1)(b) to exclude references made under a law of a
State where the relevant offence does not have a federal aspect, from the
Authority’s general power of investigation in relation to relevant
criminal activities. (References under sections 13 and 14 will continue to be
excluded.)
Item 19
This Item inserts the words “in
relation to federally relevant criminal activities” in subsection 12(1) to
clarify that the duty imposed on the Authority by that subsection will only
apply when the Authority is investigating matters under paragraph 11(1)(b) and
subsection 11(2) that relate to federally relevant criminal activity.
Item 20
This Item inserts the words “in relation to
a federally relevant criminal activities” in paragraph 12(1A)(a) to
provide that the duty imposed on the Authority by that paragraph will only apply
when the Authority is coordinating activities under paragraph 11(1)(d) that
relate to federally relevant criminal activities.
Item
21
This Item inserts the word “federally” before the
words “relevant criminal activity” in subsection 13(1) to make it
clear that the duty to investigate matters referred by the Commonwealth Minister
to the Authority will exist in relation to references that relate to federally
relevant criminal activity. The effect of the amendment will be to expand the
scope of Commonwealth references and the power of the Authority to act under
Commonwealth legislation, to include the investigation of federally relevant
criminal activity where the relevant offence is an offence against a law of a
State provided that the State offence has a federal aspect. Commonwealth
references will continue to refer matters relating to federally relevant
criminal activity to the Authority when the relevant offence is an offence
against a law of the Commonwealth or of a Territory.
Section 13 is the
primary mechanism by which the Authority undertakes activities under
Commonwealth legislation. The proposed expansion of the Authority’s
activities to include the investigation, under section 13, of State offences
with a federal aspect, is reflected in the amendments proposed by the Bill.
Therefore, when the Authority will be acting pursuant to a Commonwealth
reference, the powers, functions and duties that exist in Commonwealth
legislation for the purposes of those references, will now be used for the
purpose of investigating federally relevant criminal activity.
Item
25
This Item inserts the word “federally” before the
words “relevant criminal activity” in subsection 14(1) to make it
clear that the duty to investigate matters referred to the Authority by a State
Minister will only exist in relation to references that relate to federally
relevant criminal activity. The effect of the amendment will be to narrow the
scope of State references so that the Authority will only have a duty to act
under Commonwealth law in relation to State offences that have a federal
aspect.
Item 26
This Item inserts a note at the end of
subsection 14(1) to indicate that the Authority’s power to carry out
investigations under State law (irrespective of whether the relevant offence has
a federal aspect) will be addressed by proposed sections 55A and 55B (see Item
36).
Item 28
This Item amends section 15 to provide that,
when performing a function or exercising a power conferred by a State in
relation to the investigation of a matter relating to a relevant criminal
activity, members of the Authority will not be under a duty or obligation to
perform that function or exercise that power.
Items 29 to 35
(inclusive)
The following Items amend the provisions listed by
limiting the application of the duty imposed by the provision or the coercive
nature of the provision, to the actions of the Authority when it will be
investigating a matter relating to federally relevant criminal
activity:
• Item 29 amends paragraph 19A(1)(b) by inserting
the words “in relation to a federally relevant criminal activity”
after the words “prescribed investigation”. The amendment will
enable a member of the Authority to request information from a Commonwealth
agency provided that the information is relevant to a prescribed investigation
and the prescribed investigation is in relation to federally relevant criminal
activity. Prescribed investigation is defined in subsection
4(1).
• Item 30 amends subsection 19A(2) by inserting the
words “in relation to a federally relevant criminal activity” after
the words “prescribed investigation”. The amendment will enable a
member of the Authority to request the principal officer of a Commonwealth
agency to send to the Authority a document or thing that relates to the
performance by the agency of its functions. The document or thing must be
relevant to a prescribed investigation and the prescribed investigation must be
in relation to federally relevant criminal activity.
• Item
31 amends paragraph 20(1)(b) by inserting the words “in relation to a
federally relevant criminal activity” after the words “prescribed
investigation”. The amendment will enable a member of the Authority to
require certain information to be provided by a Commonwealth agency where that
information is relevant to a prescribed investigation and that prescribed
investigation is in relation to federally relevant criminal
activity.
• Item 32 amends paragraph 20(2)(b) by inserting
the words “in relation to a federally relevant criminal activity”
after the words “prescribed investigation”. The amendment will
enable a member may of the Authority to require the principal officer of a
Commonwealth agency to attend and to produce at a certain time and place, a
document or thing that relates to the performance by the agency of its functions
and that is relevant to a prescribed investigation, provided that the prescribed
investigation is in relation to federally relevant criminal
activity.
• Item 33 amends paragraph 22(1)(a) by inserting
the word “federally” before the words “relevant criminal
activity”. The amendment will enable a member to apply for a search
warrant under subsection 22(2) only in connection with a matter relating to a
federally relevant criminal activity. The power to apply for a search warrant
in relation to a State offence that does not have a federal aspect will, subject
to proposed sections 55A and 55B (see Item 36), continued to be exercised under
the State NCA Act (defined in proposed subsection 55A(13)).
• Item 34 amends paragraph 22(5)(a) by inserting the word
“federally” before the words “relevant criminal
activity”. The amendment will provide that a warrant issued under section
22 must include a reference to the matter relating to the federally relevant
criminal activity into which the Authority is conducting the special
investigation.
• Item 35 amends paragraph 24(1)(a) by
inserting “(being a matter relating to a federally relevant criminal
activity)” after the words “was referred to the Authority”.
The amendment will ensure that the powers in relation to the delivery of a
passport to the Authority are only exercised when the Authority is investigating
a matter that relates to federally relevant criminal activity. Powers in
relation to the delivery of passports where the State offence that does not have
a federal aspect will, subject to proposed sections 55A and 55B (see Item 36),
continued to be exercised under the State NCA Acts (defined in proposed
subsection 55A(13)).
Item 36
This Item replaces
existing section 55A and addresses the ability of the Authority, a member, or a
Judge of the Federal Court to exercise duties, functions and powers arising
under State laws in relation to the investigation of a matter relating to a
relevant criminal activity, where the relevant offence is an offence against a
law of a State.
Proposed subsection 55A(1) provides that the main object
of proposed section 55A is to give legislative consent to the conferral of
certain duties, functions and powers under State laws on the Authority, a
member, or a Judge of the Federal Court. That is, the Authority, a member, or
a Judge of the Federal Court may, subject to the conditions set out in proposed
sections 55A and 55B, exercise duties, functions and powers under a State law,
provided that the Commonwealth has consented to that duty, function or
power.
The Authority
Proposed subsection 55A(2) provides
that a State law may confer any or all of the following duties, functions or
powers on the Authority:
• the function of investigating a matter
relating to a relevant criminal activity if the relevant offence is an offence
against a State law (irrespective of whether that offence has a federal aspect);
and
• a duty, function or power that is for the purposes of such an
investigation and that is of the same kind as a duty, function or power
conferred on the Authority by the NCA Act or any other Act (irrespective of
whether the conferral by the NCA Act or any other Act is in relation to the
investigation of the same matter).
This provision will make it clear that
the Authority is able to carry out duties, functions and powers for the purposes
of its investigatory role under State laws, provided that those duties,
functions and powers are of the same kind as those conferred on the Authority by
the NCA Act or another Commonwealth Act. However, the duties, functions and
powers conferred on the Authority by the NCA Act or another Commonwealth Act
need not have been conferred for the purpose of investigating the same matter
for which the State duties, functions and powers will be or have been conferred.
Furthermore, proposed subsection 55A(3) provides that a State law is not
effective to confer the function of investigating a matter relating to a
relevant criminal activity on the Authority unless the conferral of the function
involves a State Minister referring that matter, by notice in writing, to the
Authority for investigation. The reference must also be made with the approval
of the Inter-Governmental Committee of the National Crime Authority (see Item
12) and the Commonwealth Minister must consent to the Authority performing the
function of investigating that matter.
Member and Judge of the Federal
Court
Proposed subsections 55A(4) and (5) provide that a State law
may confer on a member or 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 if the relevant offence is
or includes an offence against a State law (irrespective of whether the offence
has a federal aspect). The State law may also confer a duty, function or power
on a member or a Judge of the Federal Court, that is associated with a function
conferred on the Authority in relation to the investigation of the matter. The
duty, function or power must also be of the same kind as a duty, function or
power conferred on a member or a Judge of the Federal Court by the NCA Act or
any other Act (irrespective of whether the conferral by the NCA Act or any other
Act is in relation to the investigation of the same matter).
These
provisions will make it clear that a member or a Judge of the Federal Court may
carry out duties, functions and powers in relation to the investigation of a
matter under State laws, provided that those duties, functions and powers are of
the same kind as those conferred on the member or the Judge of the Federal Court
by the NCA Act or another Commonwealth Act. However, the duties, functions and
powers conferred on the member or the Judge of the Federal Court by the NCA Act
or another Commonwealth Act need not have been conferred for the purpose of
investigating the same matter for which the State duties, functions and powers
will be or have been conferred.
Ancillary
provisions
Proposed subsection 55A(6) provides that the conferral of
a duty, function or power on the Authority, a member or a Judge of the Federal
Court does not extend to a duty, function or power of a kind specified in any
regulations made for the purposes of that subsection. That is, the provision
will enable the Commonwealth to make regulations to control or limit the duties,
functions or powers that are conferred by a law of a State on the Authority, a
member, or a Judge of the Federal Court.
Proposed subsection 55A(7)
provides that the conferral of a duty, function or power on the Authority, a
member, or a Judge of the Federal Court 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.
This will include any doctrine of this kind arising out of the decision in
Hughes. Section 15A of the Acts Interpretation Act 1901 will
apply such that the NCA Act is to be read and construed subject to the
Constitution, and so as not to exceed the legislative power of the Commonwealth,
to the intent that where any provision would, but for that section, have been
construed as being in excess of power, it shall nevertheless be a valid
enactment to the extent to which it is not in excess of that power. Thus,
notwithstanding the terms of proposed subsections 55A(2), (4) and (5), a State
law that purports to impose a duty on the Authority, a member, or a Judge of the
Federal Court that is in contravention of any constitutional doctrine
restricting the duties that may be conferred on Commonwealth authorities,
members of Commonwealth authorities, or Judges of a court created by the
Parliament will be ineffective for that purpose.
Concurrent operation
of State laws
Proposed subsection 55A(8) indicates that the
Commonwealth does not intend to cover the field in relation to the investigation
of State offences that have a federal aspect. It will provide that the NCA Act
does not exclude or limit the operation of a State law that confers duties,
functions or powers on the Authority, a member, or a Judge of the Federal Court
provided that the State law is consistent with proposed section 55A and is
capable of operating concurrently with the NCA Act. This provision will ensure
that the Authority is able to exercise functions under both Commonwealth and
State laws provided that the latter comply with proposed section 55A and are
capable of being exercised concurrently with the NCA Act. In particular,
proposed subsection 55A(9) provides that the holding of concurrent duties,
functions or powers under a State law in relation to the investigation of a
matter relating to a federally relevant criminal activity is not prevented so
long as the relevant State law is consistent with proposed section 55A.
Therefore, the Authority will be able to exercise either State or Commonwealth
powers where both are available, for example, in relation to the investigation
of a State offence that has a federal aspect, where the matter is covered by
both State and Commonwealth references.
Proposed subsection 55A(10)
provides that the NCA Act does not prevent the Commonwealth Minister and a State
Minister from separately referring a matter or matters relating to the same
federally relevant criminal activity to the Authority for
investigation.
Proposed subsection 55A(11) provides that proposed section
55A does not limit section 15 of the NCA Act (which allows members of the
Authority to have concurrent State functions and powers under
State).
The same kind
To avoid doubt, proposed subsection
55A(12) is a deeming provision that provides that a duty, function or power
conferred on the Authority, a member, or a Judge of the Federal Court by a State
NCA Act that is in force immediately before the date that the Act is introduced,
is taken to be of the same kind as a duty, function or power conferred on the
Authority, a member or a Judge of the Federal Court by the NCA Act. This
provision will ensure that duties, functions and powers conferred by the State
NCA Acts at the time of introduction of this Act continue to be accepted as
being of the same kind as those imposed by the NCA Act. The provision will not,
however, otherwise limit what is meant by the term “of the same
kind”.
Definitions
Proposed subsection 55A(13)
defines terms used in proposed section 55A.
The term
confer, in relation to a duty, will include impose.
The
term Judge of the Federal Court will mean a Judge of the Federal
Court in a personal capacity and not as a court or a member of a
court.
The term State NCA Act will mean:
• the
New South Wales National Crime Authority (State Provisions) Act 1984
• the Victorian National Crime Authority (State Provisions) Act
1984
• the Queensland National Crime Authority (State
Provisions) Act 1985
• the Western Australian National Crime
Authority (State Provisions) Act 1985
• the South Australian
National Crime Authority (State Provisions) Act 1984
• the
Tasmanian National Crime Authority (State Provisions) Act
1984
• the Northern Territory National Crime Authority
(Territory Provisions) Act 1985
• the Australian Capital Territory
National Crime Authority (Territory Provisions) Act 1991
Item 36
also inserts a proposed section 55B. This provision will make it clear that
when the Authority is investigating a matter relating to a federally relevant
criminal activity, and, for the purposes of that investigation, the Authority
has a choice between exercising powers conferred by this Act or another
Commonwealth Act and those conferred by a law of a State, the Authority will not
be required to choose the former. In addition, this section will have effect
despite anything in subsection 11(2) or section 13 or 14. Therefore, when the
Authority is investigating a State offence that has a federal aspect and it is
able to exercise powers under either Commonwealth or State laws, then
notwithstanding subsection 11(2) or section 13 or 14, the Authority will be able
to choose to exercise its powers under State laws.
Item 36 also inserts
a proposed section 55C. This provision will make it clear that neither the NCA
Act, nor any other Commonwealth law, imposes any obligation on the Authority or
a member to perform a duty or function, or exercise a power:
• in
relation to the investigation of a matter relating to a relevant criminal
activity that is not a federally relevant criminal activity, or
• that
is otherwise in contravention of any constitutional doctrine, including any
doctrine of this kind arising out of Hughes, restricting the duties that
may be conferred on Commonwealth authorities or members of Commonwealth
authorities.
Proposed section 55C also makes it clear that neither the
NCA Act nor any other Commonwealth law imposes any obligation on a Judge of the
Federal Court to perform a duty or function, or exercise a power that relates to
an investigation by the Authority of a matter 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.
Proposed subsection 55C(3) provides that the term Judge
of a Federal Court means a Judge of the Federal Court in a personal
capacity and not as a court or a member of a court.
Item
37
This Item omits the words “in accordance with section
14” from subsection 59(2). As references from State Ministers will also
be able to be made under a law of a State, the amendment will ensure that the
Authority is required to keep the relevant State Minister informed of the
general conduct of its operations in respect of a reference and to comply with
certain requests from that Minister.
Items 38 to 45
(inclusive)
Items 38 to 45 (inclusive) are transitional provisions
that will ensure the validity of certain actions of the Authority undertaken
before the commencement of the particular Item.
• Item 38
provides that the amendments made by the Schedule do not affect the validity of
a notice under subsection 13(1) that is in force immediately before the
commencement of this Item. This will ensure the continuing validity of
Commonwealth references.
• Item 39 applies if a notice was
in force under subsection 14(1) immediately before the commencement of this
Item. The amendments made by the Schedule will not affect the validity of the
notice. However, in determining the scope of the special functions of the
Authority (defined in subsection 11(2)), if some, but not all, of the offences
to which the notice relates have a federal aspect, any offences that do not have
a federal aspect will be disregarded and, if none of the offences to which the
notice relates have a federal aspect, the notice will be disregarded. Whether
an offence has a federal aspect will be determined as a matter of fact, and not
by merely considering the notice itself. In addition, if the notice was given
under a State law, proposed section 55A applies to a duty, function or power
conferred, or purporting to be conferred, by that law in connection with the
giving of the notice.
In this Item the term confer, in
relation to a duty, will include impose.
The effect of this provision, in
relation to the special functions of the Authority, will be to save notices in
relation to State offences where the State offence has a federal aspect.
Furthermore, it will enable the continued conferral of a duty, function or power
under a law of a State, where the conferral is in accordance with proposed
section 55A.
• Item 40 provides that the amendments made by
the Schedule will not affect the validity of a request under section 19A that is
in force immediately before the commencement of this Item, so long as the
investigation to which the request relates is an investigation relating to a
federally relevant criminal activity.
• Item 41 provides
that the amendments made by the Schedule will not affect the validity of a
notice under section 20 that is in force immediately before the commencement of
this Item, so long as the investigation to which the notice relates is an
investigation relating to a federally relevant criminal
activity.
• Item 42 provides that the amendments made by the
Schedule will not affect the validity of a warrant under section 22 that is in
force immediately before the commencement of this Item, so long as the
investigation to which the warrant relates is an investigation relating to a
federally relevant criminal activity.
• Item 43 provides
that the amendments made by the Schedule will not affect the validity of an
order under section 24 that is in force immediately before the commencement of
this Item, so long as the investigation to which the order relates is an
investigation relating to a federally relevant criminal
activity.
• Item 44 provides that the amendments made by the
Schedule will not affect the validity of a summons under section 28 that is in
force immediately before the commencement of this Item, so long as the
investigation to which the summons relates is an investigation relating to a
federally relevant criminal activity.
• Item 45 provides
that the amendments made by the Schedule will not affect the validity of a
notice under section 29 that is in force immediately before the commencement of
this Item, so long as the investigation to which the notice relates is an
investigation relating to a federally relevant criminal activity.