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Australian Crime Commission (State
Provisions) Bill
Circulation Print
EXPLANATORY MEMORANDUM
General
The purpose of this Bill is to complement the Commonwealth Australian
Crime Commission Act 2002 (the Commonwealth Act) to provide for the
operation of the Australian Crime Commission (ACC) in Victoria.
The ACC is established under the Commonwealth Act, which came into
operation on 1 January 2003 and replaced the National Crime Authority
(NCA) with the ACC. The ACC combines the investigative functions of the
former NCA with the criminal intelligence functions of the former Australian
Bureau of Criminal Intelligence and the former Office of Strategic Crime
Assessments, which have also been rolled into the ACC.
The Commonwealth Act maintains the powers that were available to the
former NCA and enables these powers to be used for both the ACC's
investigatory role and its new criminal intelligence role. These powers are
available in relation to intelligence operations and investigations relating to
federally relevant criminal activity.
In addition, the Commonwealth Act establishes the governance regime for
the ACC, including the establishment of a Board and an office of Chief
Executive Officer (CEO) of the ACC. The Board, which comprises
Commonwealth, State and Territory law enforcement representatives, is
responsible under the Commonwealth Act for determining national criminal
intelligence priorities and overseeing the strategic direction of the ACC, as
well as authorising intelligence operations and investigations and the use of
special powers. The CEO is responsible under the Commonwealth Act for
managing the day to day administration of the ACC and for coordinating
ACC operations and investigations.
The Commonwealth Act also establishes the Inter-Governmental Committee
(IGC), which is responsible for maintaining an appropriate monitoring and
oversight role in relation to the ACC.
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551049 BILL LA CIRCULATION 8/5/2003
Lastly, the Commonwealth Act provides for the coercive examination
powers that were available to the former NCA to be exercised by examiners.
These powers were formerly exercised by members and hearing officers of
the NCA.
The Bill and comparable legislation in other States and Territories will
complement the Commonwealth Act by enabling the ACC to undertake like
functions to those under the Commonwealth Act in relation to relevant
criminal activity that relates to State or Territory offences, irrespective of
whether those offences have a federal aspect. This will ensure that the ACC
can operate as effectively and seamlessly as possible on a national basis.
The Bill provides for the functions and powers of the ACC, the Board, and
the CEO under State law. Similarly to the Commonwealth Act, the Bill
maintains the powers that were available to the former NCA and enables
these powers to be used for both the ACC's investigatory and criminal
intelligence roles.
The Bill creates offences for contraventions of the provisions of the Act to
facilitate the effective performance of the ACC's functions. These offences
reflect equivalent offences that are contained in the Commonwealth Act. It is
intended that the same mental elements that apply to the offences under the
Commonwealth Act will also apply to the offences contained in the Bill.
The penalties for the offences in the Bill are the same as the penalties for the
equivalent offences in the Commonwealth Act.
The Bill will repeal the existing State legislation for the NCA, the National
Crime Authority (State Provisions) Act 1984, as a consequence of the
replacement of the NCA with the ACC under the Commonwealth Act.
The Bill contains transitional provisions to facilitate the seamless transition
from the NCA to the ACC under State law.
The Bill also contains consequential amendments that are necessary because
of the replacement of the NCA with the ACC and the repeal of the National
Crime Authority (State Provisions) Act 1984.
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the purposes of the Bill, which are to--
· provide for the operation of the ACC in Victoria;
· repeal the National Crime Authority (State
Provisions) Act 1984;
· make consequential amendments to various Acts.
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Clause 2 provides for the commencement of the Bill on the day after the
day on which it receives Royal Assent, other than the provisions
in sub-clause (2), which require a delayed commencement to
align with associated Commonwealth action. These provisions
will commence on a day or days to be proclaimed.
It is necessary to delay the commencement of paragraphs (d) and
(e) of the definition of "Commonwealth body or person" in
clause 3(1), clause 15, Division 3 of Part 2 and clause 44(1)(b)
until an associated amendment is made to section 55A of the
Commonwealth Act. These provisions confer functions, powers
or duties on members of the Board and the IGC or contain
associated provisions to complement equivalent provisions in the
Commonwealth Act.
Section 55A(4) of the Commonwealth Act provides a legislative
consent to State laws conferring duties, functions or powers of
the same kind to those contained in the Commonwealth Act on
certain officers of the ACC. However, this legislative consent
does not currently extend to members of the Board and the IGC.
Accordingly, an amendment to section 55A(4) of the
Commonwealth Act to include Board members and the IGC is
necessary to ensure the validity of these clauses.
It is also necessary to delay the commencement of items 11 and
14 of Schedule 1, which contain consequential amendments to
the Surveillance Devices Act 1999 and the Witness Protection
Act 1991, until associated regulations are made for the purposes
of section 55A(4)(b) of the Commonwealth Act. Section 55A(4)
of the Commonwealth Act provides a legislative consent to the
conferral by State laws of duties, functions or powers of a kind
specified by regulations on the CEO, members of staff and other
specified officers of the ACC. As the effect of the consequential
amendments in items 11 and 14 of Schedule 1 will be to impose
duties, functions and/or powers on ACC officers, regulations for
the purposes of section 55A(4)(b) of the Commonwealth Act are
necessary to ensure the validity of these consequential
amendments.
Clause 3 defines certain words and expressions for the purposes of the
Bill.
Clause 3(1) defines certain words and expressions that it is
necessary to define specifically for the purposes of the Bill.
This includes definitions for the following key terms--
· "ACC operation/investigation" means an ACC State
intelligence operation or an ACC State investigation.
This covers both the ACC's function in relation to
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intelligence operations and its function in relation to
investigating relevant criminal activity.
Relevant criminal activity is defined in the Commonwealth Act
to mean any circumstances implying, or any allegations, that a
serious and organised crime may have been, may be being, or
may in future be, committed against a Commonwealth, State or
Territory law. This definition is applied to the Bill under the
operation of clause 3(2).
· "ACC State intelligence operation" means an
intelligence operation that the ACC is undertaking
under clause 5(b). This covers the ACC's function in
undertaking intelligence operations in relation to
relevant criminal activity relating to State offences.
· "ACC State investigation" means an investigation that
the ACC is conducting under clause 5(a). This covers
the ACC's function in conducting investigations in
relation to relevant criminal activity relating to State
offences.
· "intelligence operation" means the collection,
correlation, analysis or dissemination of criminal
information and intelligence relating to a relevant
criminal activity. Intelligence operation has a broad
meaning to ensure that the ACC is able to undertake
fully its criminal intelligence role under State law.
· "serious and organised crime" is defined to cover a wide
range of serious offences that are the same as those
contained in the equivalent definition in the
Commonwealth Act, except for certain offences under
the Commonwealth Proceeds of Crime Act 2002 that
are not relevant in a State context. The offences listed
in the definition of "serious and organised crime" in the
Bill mirror the offences that the former NCA could
investigate, with the addition of offences that involve
firearms and cybercrime. Cybercrime has been added to
enable the ACC to respond to this emerging issue.
Firearms offences have been added to the list to ensure
that the ACC has a clear power to investigate the illegal
trafficking of firearms.
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The definition of serious and organised crime covers a listed
offence that is punishable by 3 years' imprisonment or more and
that is not committed in the course of a genuine industrial dispute
of a specified kind.
The wide range of serious offences included within the definition
of "serious and organized crime" will ensure that the ACC has a
broad basis on which to undertake its investigatory and criminal
intelligence functions.
The definition of serious and organised crime covers a listed
serious offence where there are also specified organised crime
elements involved in the offence in question. In particular, the
offence must also--
· involve 2 or more offenders and substantial planning
and organisation; and
· involve, or be an offence of a kind that ordinarily
involves, the use of sophisticated methods and
techniques; and
· be an offence that is committed, or is of a kind that is
ordinarily committed, in conjunction with other
offences of a like kind.
· "special ACC operation/investigation" means an ACC
State intelligence operation or an ACC State
investigation that the Board has determined to be a
special operation or investigation. This is an important
definition as the ACC can only access its special
powers, such as search warrants and examinations, as
part of a special ACC operation/investigation. It cannot
access these powers for other ACC investigations or
operations authorised by the Board.
Clause 3(2) applies definitions of terms contained in the
Commonwealth Act to the Bill unless the Bill indicates a
contrary intention.
Clause 3(3) extends the meaning of the term "serious and
organised crime" under the Bill to include incidental offences
that are connected with a course of activity involving the
commission of a serious and organised crime.
Clause 3(4) makes it clear that references in the Act to a function
include a reference to a power or duty, other than in Part 2
(which deals with the functions and governance of the ACC).
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Clause 4 provides that the Bill binds the Crown in right of the State and, to
the extent of State legislative power, the Crown in its other
capacities.
PART 2--THE AUSTRALIAN CRIME COMMISSION, THE
BOARD AND THE INTER-GOVERNMENTAL COMMITTEE
Division 1--The Australian Crime Commission
Clause 5 sets out the functions of the ACC. This clause complements
section 7A of the Commonwealth Act, which provides for the
functions of the ACC under that Act.
Clause 5(a) provides for the investigatory function of the ACC,
which is similar to the investigatory function previously
undertaken by the NCA. This provision will enable the ACC to
investigate relevant criminal relevant criminal activity where the
Board has consented to the ACC doing so under the
Commonwealth Act. The ACC will only be empowered to
investigate relevant criminal activity to the extent that it is, or
includes, a State offence or offences.
Clause 5(b) provides for the ACC to undertake intelligence
operations. This function reflects the new role that the ACC has
in relation to criminal intelligence, in addition to the
investigatory function previously undertaken by the NCA.
This provision will enable the ACC to undertake intelligence
operations where the Board has consented to the ACC doing so
under the Commonwealth Act. As with its investigatory
function, the ACC will only be empowered to undertake
intelligence operations in connection with State offences.
Clause 5(c) provides that the ACC must provide reports to the
Board on the outcomes of its investigations and intelligence
operations.
Clause 5(d) provides that the ACC has such other functions as are
conferred on it by other provisions of the Bill or any other Act.
For example, functions could be conferred on the ACC by other
State laws creating investigative powers, subject to the necessary
legislative consent under the Commonwealth Act.
Clause 6 provides that the CEO's functions are to coordinate ACC
operations and investigations, determine the head of an ACC
operation or investigation and arrange for an examiner who is to
be able to exercise his or her powers under the Bill in relation to
a special ACC operation/investigation. This provision
complements a similar provision contained in section 46A of the
Commonwealth Act. It should be noted that under section 46A
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of the Commonwealth Act, the CEO is also responsible for the
day to day administration of the ACC.
Clause 7 enables the CEO to appoint a legal practitioner to assist the ACC.
This complements an equivalent provision in section 50 of the
Commonwealth Act.
Division 2--The Board of the ACC
Clause 8 sets out the functions of the Board. This clause complements
section 7A of the Commonwealth Act, which provides for the
functions of the ACC under that Act. This clause should be read
together with section 55A(3) of the Commonwealth Act, which
requires Board consent under that Act for the ACC to undertake
an ACC State intelligence operation or ACC State investigation.
Clause 8(1)(a) provides that the Board has the function of
determining whether an ACC operation or investigation is a
special operation or investigation, which then allows for the
exercise of coercive powers under the Bill.
Clause 8(1)(b) provides that it is a Board function to determine
the classes of persons to participate in an ACC State intelligence
operation/investigation. For example, the Board may determine
that members of a Police Force of a State that are seconded to the
ACC are to participate in a particular ACC State intelligence
operation/investigation.
Clause 8(1)(c) provides that it is a function of the Board to
establish task forces. A task force is one means by which the
ACC could conduct an ACC State intelligence
operation/investigation.
Clause 8(1)(d) provides that the Board has such other functions
as are conferred on it by other provisions of the Bill.
Clauses 8(2) and 8(3) set out threshold tests for the authorisation
by the Board of the use of special powers under the Bill.
Before determining that an operation is a special operation, the
Board must first consider whether methods of collecting the
criminal information and intelligence that do not involve the use
of those powers have been effective.
Before determining that an investigation is a special
investigation, the Board must first consider whether ordinary
police methods of investigation into the matters are likely to be
effective.
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These provisions provide an important safeguard on the
authorisation by the Board of the use of special powers under the
Bill.
Clause 8(4) sets out the details that must be contained in a written
determination of the Board authorising the use of special powers.
The determination must--
· describe the general nature of the circumstances or
allegations constituting the relevant criminal activity;
and
· state that the serious and organised crime is, or the
serious and organised crimes are or include, an offence
or offences against a State law; and
· set out the purpose of the operation or investigation.
These details set the parameters for the operation or investigation
and represent another safeguard on the exercise of special powers
under the Bill.
Clause 8(5) requires the Chair of the Board to provide to the IGC
a copy of a determination authorising the use of special powers
within 3 days of the determination being made. This is necessary
to facilitate the IGC's oversight function under clause 16 in
relation to the authorisation of special powers.
Clause 8(7) makes it clear that the provisions in clauses 9 to 15
relating to Board meetings have effect in relation to the Board's
functions under the Bill. The provisions in clause 9 to 15
complement equivalent provisions in sections 7D to 7K of the
Commonwealth Act.
Clause 9 provides for the manner in which Board meetings are to be held.
The Chair must ensure that Board meetings are convened in
accordance with the complementary provisions governing Board
meetings in section 7D of the Commonwealth Act.
Clause 10 provides that the Chair of the Board or another eligible
Commonwealth Board member nominated by the Chair must
preside at a Board meeting. An eligible Commonwealth Board
member is defined in the Commonwealth Act to mean, in effect,
another Commonwealth member of the Board, other than the
CEO.
Clause 11 provides that a quorum of the Board is 7 members, excluding the
CEO.
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Clause 12 sets out the voting procedures that apply at Board meetings.
The CEO is a non-voting member of the Board.
Generally a simple majority vote will determine decisions of the
Board. However, special voting requirements apply to Board
determinations authorising the use of special powers, as an
additional safeguard on the exercise of these powers. The Board
can only determine that an ACC operation or investigation is a
special operation or investigation if at least 9 Board members
agree, including at least 2 eligible Commonwealth Board
members.
Clause 13 provides that the Board may regulate proceedings at its meetings
as it considers appropriate and requires minutes of Board
meetings to be kept.
Clause 14 allows decisions of the Board to be taken by resolution out of
session to enable the Board to make decisions without a formal
meeting being held. The special voting requirements that apply
to a determination of the Board authorising the use of special
powers will continue to apply to any such determination that is
made out of session.
Clause 15 enables the Board to establish committees to assist in carrying
out its functions. This provision recognises the need for
the Board to operate by committees where appropriate.
However, there are a number of limitations imposed on the
establishment and functions of committees to ensure sufficient
accountability in relation to the exercise of Board functions by
committees. These limitations include the following--
· a committee can only be established with the agreement
of all members of the Board (other than the CEO, who
is a non-voting member); and
· a committee must comply with any directions given to it
by the Board; and
· the Board can dissolve a committee at any time.
Importantly, the Board's function of determining whether an
ACC operation or investigation is a special operation or
investigation cannot be exercised by a committee. This function
can only be exercised by the full Board.
A committee may regulate proceedings at its meetings as it
considers appropriate and must ensure that minutes of its
meetings are kept.
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Division 3--The Inter-Governmental Committee
Clause 16 provides for the functions of the IGC in relation to the revocation
of special determinations made by the Board, and complementary
powers for the IGC to obtain further information about a special
determination from the Chair of the Board. These provisions
complement equivalent provisions in section 9 of the
Commonwealth Act. Section 9 of the Commonwealth Act also
provides more generally for the oversight and monitoring role of
the IGC in relation to the ACC and the Board.
Clauses 16(1) to 16(5) set out procedures for the IGC to obtain
further information from the Chair of the Board in relation to
a Board determination authorising the use of special powers.
The Chair of the Board must not provide information requested
by the IGC if the public disclosure of the information could
prejudice a person's safety or reputation or the operations of law
enforcement agencies. If the Chair of the Board decides, on this
ground, not to provide the information sought, the IGC can refer
the request to the State Minister, who must determine whether
disclosure of the information could prejudice a person's safety
or reputation or the operations of law enforcement agencies.
This mechanism for referral of the matter to the State Minister
provides an additional check on the provision to the IGC of
information that it may require in determining whether to revoke
a special determination under clause 16(6).
Clause 16(6) provides for the IGC by resolution to revoke a
special determination made by the Board. Such a resolution can
be made with the agreement of the member of the IGC
representing the Commonwealth and at least 5 other members of
the IGC. The IGC's power to revoke a special determination is a
further safeguard on the exercise of the special powers under the
Bill.
Clause 16(7) requires the IGC to notify the Chair of the
Board and the CEO if it revokes a special determination.
The revocation takes effect when the CEO is so notified.
PART 3--EXAMINATIONS
Clause 17 provides that an examiner may conduct an examination for the
purposes of a special ACC operation/investigation. This clause
complements an equivalent provision in section 24A of the
Commonwealth Act.
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The power to conduct examinations, which includes coercive
powers to produce documents and answer questions, is a
powerful investigative tool that is central to the role and
functions of the ACC.
Examiners are independent statutory officers appointed by the
Governor-General under the Commonwealth Act. Under the
Commonwealth Act, an examiner must have been enrolled as a
legal practitioner for at least 5 years.
The independence of examiners is an important safeguard on the
exercise of the special powers under the Bill. While clause 6(4)
enables the CEO to allocate an examiner to a particular special
ACC operation/investigation, this does not interfere with the
statutory discretion of the examiner in exercising his or her
powers.
Clause 18 regulates the conduct of examinations. This clause complements
an equivalent provision in section 25A of the Commonwealth
Act.
Clause 18(1) provides that an examiner may regulate the conduct
of proceedings as he or she thinks fit.
Clause 18(2) provides for legal representation of witnesses and,
in some circumstances, non-witnesses.
Clause 18(3) requires than an examination must be held in
private and empowers the examiner to give directions regarding
the presence of persons during an examination. Clause 18(4)
makes it clear that such a direction does not prevent the presence
of the legal representative of a witness, or the legal representative
of a non-witness if the examiner has consented to his or her
presence.
Clause 18(5) precludes the presence of a person (other than
approved ACC staff members) at an examination unless the
examiner has given a direction under clause 18(3) permitting the
person to be present or clause 18(4) applies.
Clause 18(6) provides for the examination and cross-examination
of witnesses.
Clause 18(7) requires an examiner to inform a witness of the
presence of a non-witness at an examination and allow the
witness to comment on that person's presence. Clause 18(8)
makes it clear that a non-witness does not cease to be entitled to
be present at an examination if the examiner fails to comply with
clause 18(7) or a witness comments adversely on the presence of
a non-witness. For example, if the ACC is coordinating its
activities, in accordance with clause 37(2), with the functions of
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an overseas authority that performs similar functions to the ACC
and a representative of that authority is present at an examination,
the examiner must inform a witness of that person's presence.
Clause 18(9) enables an examiner to make a non-publication
direction prohibiting the publication of--
· evidence given at an examination or documents or
things produced to the examiner; or
· information that might enable a witness to be identified;
or
· the fact that a person has or may give evidence at an
examination.
This provision would enable an examiner to make a non-
publication direction if, for example, the publication of matters
relating to the conduct of an examination might compromise the
effectiveness of an ACC operation or investigation. An examiner
must make a non-publication direction if the failure to do so
might prejudice the safety or reputation of a person or the fair
trial of a person who has been or may be charged with an
offence.
Clauses 18(10) and 18(11) provide for the CEO to revoke a non-
publication direction made by an examiner under clause 18(9).
This power is consistent with the CEO's functions of managing,
regulating and controlling ACC operations and investigations
under clause 6(1).
Clause 18(12) sets out a procedure under which a court can
require evidence given before an examiner that is subject to a
non-publication direction under clause 18(9) to be made available
to the court. A court can require evidence to be made available if
a person has been charged with an offence and the court
considers that it may be desirable in the interests of justice that
evidence given before an examiner be made available to that
person or his or her legal practitioner. Once the evidence has
been made available to the court, clause 18(13) enables the court
to make that evidence available to the charged person or his or
her legal practitioner.
Clause 18(14) makes it an offence to be present at an
examination contrary to clause 18(5) or to contravene a non-
publication direction given by an examiner under clause 18(9).
The maximum penalty is a fine of $2200 or imprisonment for one
year.
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Clause 18(15) requires an examiner to give the head of the
special ACC operation/investigation at the conclusion of an
examination a record of proceedings of the examination and any
documents or things given to the examiner.
Clause 19 provides for an examiner's powers to summon witnesses and take
evidence. This clause complements an equivalent provision in
section 28 of the Commonwealth Act.
Clause 19(1) enables an examiner to summon a person to appear
before him or her to give evidence and to produce documents or
things. The examiner must be satisfied it is reasonable to do so
and must record his or her reasons for issuing the summons.
Clause 19(3) requires a summons to be accompanied by a copy of
the determination of the Board that the State ACC intelligence
operation or investigation is a special operation/investigation.
Clause 19(4) requires a summons to set out the general nature of
the matters in relation to which the examiner intends to question
the person, unless this would prejudice the effectiveness of the
special ACC operation/investigation.
Clauses 19(5) and 19(6) empower an examiner to require a
person appearing at an examination to produce a document or
thing and take evidence on oath or affirmation.
Clause 19(8) makes it clear that the powers to summon witnesses
and take evidence under clause 19 can only be exercised in
relation to a special ACC operation or investigation. This means
that these powers will be subject to the safeguards that apply
under the Bill to the authorisation of the use of special powers.
Clause 20 provides for an examiner's power to obtain documents.
This clause complements an equivalent provision in section 29
of the Commonwealth Act.
Clause 20(1) enables an examiner, by written notice, to require a
person to attend before the examiner or a member of staff of the
ACC to produce specified documents or things relevant to a
special ACC operation/investigation. The examiner must be
satisfied it is reasonable to do so and must record his or her
reasons for issuing the notice.
Clause 20(3) makes it clear that a notice may be issued in relation
to a special ACC operation/investigation regardless of whether an
examination before an examiner is being held.
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Clause 20(4) provides that a person must not fail or refuse to
comply with a notice to produce documents or things and
clause 20(5) makes a contravention of that provision an
indictable offence. The maximum penalty is a fine of $22 000 or
5 years' imprisonment.
Clause 20(6) applies the same provisions in clause 23(3) (which
allows a legal practitioner to refuse to provide information to an
examiner on the ground of legal professional privilege subject to
a requirement that the legal practitioner identifies the person to
whom the privilege applies), clauses 23(4) and (5) (which deal
with self-incrimination) and clause 23(7) (which makes it clear
that clause 23(3) does not affect the law relating to legal
professional privilege) that apply to a person who is required to
produce a document or thing at an examination to the production
of documents or things pursuant to a notice under clause 20.
Clause 20(7) applies the offence provision in clause 23(6) if a
legal practitioner contravenes the requirement in clause 23(3), as
applied by clause 20(6), to identify the person to whom privilege
applies where the legal practitioner refuses to produce a
document or thing pursuant to a clause 20 notice on the ground of
legal professional privilege. This makes such a contravention an
indictable offence with a maximum penalty of a fine of $22 000
or 5 years' imprisonment. Clause 20(7) also applies section 53(1)
of the Magistrates' Court Act 1989 to a contravention of
clause 23(3) as applied by clause 20(6). Section 53(1) of the
Magistrates' Court Act 1989 enables the Court to hear and
determine summarily a charge of an indictable offence with the
consent of the defendant if the Court considers it appropriate to
do so.
Clause 21 provides for the inclusion of a non-disclosure notation in a
summons or notice issued under clause 19 or 20 to prohibit the
disclosure of information about the summons or notice or any
official matter connected with it. This clause complements an
equivalent provision in section 29A of the Commonwealth Act.
Clause 21(2) sets out the circumstances in which an examiner
may, or must, include a non-disclosure notation in a summons or
notice issued under clause 19 or 20. A notation--
· must be included if the examiner is satisfied that failing
to do so would reasonably be expected to prejudice a
person's safety or reputation, the fair trial of a person or
the effectiveness of an ACC operation or investigation;
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· may be included if the examiner is satisfied that failing
to do so might prejudice a person's safety or reputation,
the fair trial of a person or the effectiveness of an ACC
operation or investigation. An examiner may also
include a notation if he or she is satisfied that the failure
to do so might otherwise be contrary to the public
interest.
Clause 21(3) requires that a written statement setting out a
person's rights and obligations under clause 22, which creates
offences for the contravention of a notation, must accompany the
notation.
Clause 21(4) provides for the automatic cancellation of a notation
in certain circumstances where it is no longer necessary to
prevent disclosure of information about a summons or notice.
Clause 21(5) requires the CEO to serve written notice of the
cancellation of a notation to each person who received the
summons or notice containing the notation.
Clause 22 creates offences for disclosing certain information about a
summons or notice that contains a non-disclosure notation
under clause 21. These offences reflect equivalent offences in
section 29B of the Commonwealth Act.
Clause 22(1) makes it an offence for a person who receives a
summons or notice containing such a non-disclosure notation to
disclose information about the summons or notice or official
matters connected with the summons or notice. The maximum
penalty is a fine of $2200 or one year's imprisonment.
Clause 22(2) sets out exceptions to clause 22(1) in which
disclosure is permitted. This recognises that there will be
circumstances in which it is necessary and appropriate to disclose
information about a summons or notice. A person who receives a
summons or notice containing a non-disclosure notation can
disclose information about the summons or notice or an official
matter connected with it--
· in accordance with any circumstances specified in the
notation; or
· to a legal practitioner for the purposes of obtaining legal
advice or representation; or
· if the person is a body corporate, to an officer or agent
of the body corporate to ensure compliance with the
summons or notice; or
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· if the person is a legal practitioner, for the purposes
of obtaining the consent of another person under
clause 23(3) to the legal practitioner answering a
question or producing a document before an examiner.
Clause 23(3) will apply where a legal practitioner is
required to answer a question or produce a document
that would disclose communications protected by legal
professional privilege, and he or she seeks the
agreement of the person to whom the privilege applies
to answer the question or produce the document.
Where a person receives information about a summons or notice
in accordance with clause 22(2) or (4), clause 22(4) sets out the
circumstances in which that person can disclose the information.
These are--
· if the person is an officer or agent of the body corporate
that received the summons or notice, he or she may
disclose the information to another officer or agent to
ensure compliance with the summons or notice or to a
legal practitioner for the purposes of obtaining legal
advice or representation; or
· if the person is a legal practitioner, he or she may
disclose the information for the purposes of providing
advice or representation.
Clause 22(3) makes it an offence for a person who receives
information about a summons or notice in the circumstances set
out in clause 22(2) or (4) to disclose information about the
summons or notice or official matters connected with the
summons or notice in certain circumstances. These are--
· While the person who has received the information
remains a person of a kind to whom a disclosure is
permitted to be made, he or she cannot disclose
information about the summons or notice except in
accordance with clause 22(4). For example, a legal
practitioner who receives information about a summons
or notice for the purposes of providing legal advice or
representation can only make a disclosure for that
purpose.
16
· While the person who has received the information
ceases to be a person of a kind to whom a disclosure is
permitted to be made, he or she cannot disclose
information about the summons or notice in any
circumstances. For example, a legal practitioner who
receives information about a summons or notice for the
purposes of providing legal advice or representation
cannot disclose that information for any purpose if he or
she ceases to be a legal practitioner.
The maximum penalty for contravention of clause 22(3) is a fine
of $2200 or one year's imprisonment.
Clause 22(5) provides that the disclosure offences in clause 22
will cease to apply when the notation contained in the summons
or notice is automatically cancelled under clause 21(4), or 5 years
after the summons or notice has been issued, whichever is
sooner. This recognises that once 5 years have elapsed after the
issue of a summons or notice, the interests affected by the
contravention of a non-disclosure notation in the summons or
notice will no longer be such as to warrant criminal punishment
for the contravention.
Clause 23 provides for offences for failure to attend and answer questions at
an examination and deals with self-incrimination and use
immunity. This clause complements an equivalent provision in
section 30 of the Commonwealth Act.
Clause 23(1) provides that a person must not fail to attend an
examination in answer to a summons.
Clause 23(2) provides that a witness at an examination must not
refuse or fail to take an oath or affirmation, refuse or fail to
answer a question or refuse or fail to produce a document or
thing in answer to a summons.
Clause 23(3) enables a legal practitioner to refuse to answer
questions or produce documents at an examination on the ground
of legal professional privilege, subject to a requirement that the
legal practitioner provides the name and address of the person to
whom the privilege applies if required to do so by the examiner.
Clauses 23(4) and 23(5) set out provisions dealing with self-
incrimination and use immunity in relation to evidence given at
an examination.
17
Clause 23(4) sets out the circumstances in which a person may
claim the privilege against self-incrimination. A person can claim
the privilege if--
· before answering a question that the person is required
to answer at an examination; or
· before producing, in answer to a summons, a business
document that sets out details of earnings received by
the person in respect of his or her employment and does
not set out any other information; or
· before producing a thing in answer to a summons--
the person claims that the answer, document or thing might tend
to incriminate the person or make the person liable to a penalty.
Clause 23(5) limits the use that can be made of certain evidence
if one the situations in clause 23(4) exists. If one of these
situations exists, the answer, document or thing cannot be used as
evidence against the person, except in confiscation proceedings
or proceedings in relation to the falsity of evidence given by the
person. However, any evidence that is derived from the answer,
document or thing may be used against the person.
Clause 23(6) makes it an indictable offence to contravene
clause 23(1), (2) or (3). The maximum penalty is a fine of
$22 000 or 5 years' imprisonment.
Clause 23(7) clarifies that clause 23(3) does not affect the law
relating to legal professional privilege. Thus, where a legal
practitioner is required to provide certain information to an
examiner and to do so would disclose privileged information, the
legal practitioner may refuse to produce that information, unless
the person to whom the privilege applies consents to its
disclosure.
Clause 24 empowers a Judge of the Federal Court or the Supreme Court to
issue a warrant for the arrest of a person in specified
circumstances upon an application made by an examiner. This is
an important power to ensure that the investigatory process of the
ACC is not thwarted. This clause complements an equivalent
provision in section 31 of the Commonwealth Act.
Clause 24(1) sets out the grounds for issue of such a warrant.
The Judge must be satisfied by evidence on oath that there are
reasonable grounds to believe that--
18
· a person who has been ordered to surrender his or her
passport under clause 28 is nevertheless likely to leave
Australia to avoid giving evidence before an examiner;
or
· a person is attempting or is likely to attempt to evade
service of a summons to appear at an examination that
has been issued under clause 19(1); or
· a person has committed an offence under clause 23(1)
by failing to attend an examination in answer to a
summons.
Clause 24(2) enables a warrant to be executed by any person to
whom it is addressed. The person executing the warrant is
empowered to break and enter premises etc to execute it.
Clause 24(3) precludes a member of the Australian Federal
Police from executing a warrant unless he or she is also a
member of staff of the ACC. This limitation is intended to
ensure that the warrant provisions in clause 24 are within the
legislative powers of the State.
Clause 24(4) enables a warrant to be executed even if the warrant
is not in the possession of the person executing it.
Clause 24(5) makes it clear that reasonable force can be used in
the execution of a warrant.
Clause 24(6) sets out the procedure for dealing with a person who
is apprehended under a warrant. He or she must be brought as
soon as practicable before a Judge of the Federal Court or the
Supreme Court and the Judge or Court may admit the person to
bail, order the continued detention of the person to ensure his or
her appearance as a witness before an examiner or order the
release of the person.
Clause 24(7) requires a person who is detained under clause 24 to
be brought back before a Judge of the Federal Court or the
Supreme Court within 14 days, or any other period fixed by the
Judge or Court. The Judge or Court is then empowered to
exercise any of the powers under clause 24(6) in relation to the
person.
As the coercive examination powers under the Bill are only
available in connection with a special ACC
operation/investigation, the power to arrest and detain a person to
ensure his or her appearance before an examiner will be subject
to the safeguards that apply under the Bill in relation to the
authorisation of the use of special powers.
19
Clause 25 makes it an indictable offence to give false or misleading
evidence at an examination before an examiner. The maximum
penalty is a fine of $22 000 or 5 years' imprisonment.
This offence reflects an equivalent offence contained in
section 33 of the Commonwealth Act.
Clause 26 allows an examiner to make arrangements to protect a person
who is appearing or has appeared at an examination before an
examiner or proposes to give, or has given, information or other
documents other than at an examination. An examiner can make
arrangements to ensure that the safety of a person is not
prejudiced or a person is not subject to intimidation or
harassment. This clause complements an equivalent provision in
section 34 of the Commonwealth Act.
Clause 27 provides, in relation to an examination before an examiner, the
same legal protection and immunity for examiners, witnesses and
legal practitioners assisting the ACC or an examiner or
representing a witness as would apply in proceedings in the High
Court. This ensures that the conduct of an examination is not
constrained by a risk of tortious liability that may otherwise
arise from things said or done in the conduct of an examination.
This clause complements an equivalent provision in section 36 of
the Commonwealth Act.
Clause 28 enables an examiner to apply to a Judge of the Federal Court for
an order that a person who has been summonsed in connection
with a special ACC operation/investigation to appear before the
examiner, or who has appeared before the examiner, must
surrender his or her passport to the examiner. This clause
complements an equivalent provision in section 24 of the
Commonwealth Act.
There must be reasonable grounds for believing that the person
may be able to provide evidence, documents or things, or further
evidence, documents or things, that could be of particular
significance to the 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.
An order can authorise an examiner to retain a person's passport
for a specified period of up to one month. This period can be
extended, upon application, for a further period of up to one
month, up to a maximum total period of 3 months.
As an order for the delivery of a passport can only be made in
connection with a special ACC operation/ investigation, this
power will be subject to the safeguards that apply under the Bill
in relation to the authorisation of the use of special powers.
20
PART 4--SEARCH WARRANTS
Clause 29 enables an eligible person to apply to an issuing officer for a
search warrant. This clause complements an equivalent provision
in section 22 of the Commonwealth Act.
An eligible person is defined under section 4(1) of the
Commonwealth Act to mean an examiner or a member of staff of
the ACC who is also a member of the Australian Federal Police
or a State police force. An issuing officer is defined under
clause 3(1) of the Bill to mean a Federal Court Judge, a Federal
Magistrate or a Judge of a State court.
Clause 29(1) provides that an eligible person can apply for a
search warrant if he or she has reasonable grounds to suspect that
there may be in any premises or other specified place a thing of a
particular kind connected with a special ACC
operation/investigation which he or she believes on reasonable
grounds might be concealed, lost, mutilated or destroyed if a
summons for the production of the thing were issued.
This means that a search warrant application can only be made in
circumstances where the power to issue a summons for the
production of a thing would be effective to secure the production
of the thing in question.
Clause 29(2) sets out the things that a search warrant may allow
an authorised person to do. An authorised person can enter and
search the premises or other specified place and seize any things
of the relevant kind, and deliver them to any person participating
in the special ACC operation/investigation. An authorised person
can use force, if necessary, to execute the warrant.
Clause 29(3) precludes a member of the Australian Federal
Police from being an authorised person to execute a warrant
unless he or she is also a member of staff of the ACC.
This limitation is intended to ensure that the search warrant
provisions in the Bill are within the legislative powers of the
State.
Clause 29(4) sets outs conditions for the issue of a warrant.
An affidavit must have been provided setting out the grounds on
which the warrant is sought, the applicant must have provided
any further information required by the issuing officer as to why
the warrant is sought, and the issuing officer must be satisfied
that there are reasonable grounds for issuing the warrant.
Clause 29(5) requires the issuing officer to state the grounds on
which a warrant has been issued.
21
Clause 29(6) specifies the details that must be included in a
warrant. The warrant must--
· state the purpose of the warrant, including a reference to
the relevant special ACC operation/investigation with
which the things the subject of the warrant are
connected; and
· state when entry can be made pursuant to the warrant;
and
· describe the kind of things that can be seized; and
· specify when the warrant ceases to have effect.
The maximum period for which a warrant can be valid
is one month.
Clause 29(8) makes it clear that reasonable force can be used in
the execution of a warrant.
Clause 29(9) provides for the seizure of evidence of an offence
that is found in the course of searching for things of the relevant
kind under a warrant. Such evidence can only be seized if the
person executing the warrant reasonably believes that the seizure
is necessary to prevent its concealment, loss, mutilation or
destruction or to prevent the evidence being used to commit an
offence.
Clauses 29(10) and 29(11) provide for the retention and delivery
of things seized under warrant. Clause 29(10) enables the head
of a special ACC operation/investigation to retain a thing seized
under warrant for as long as is reasonably necessary for the
purposes of the relevant special ACC operation/investigation.
If it is not, or ceases to be, reasonably necessary to retain a thing
for such a purpose, the thing must be delivered--
· if it may be admissible evidence in proceedings by the
Commonwealth, a State or a Territory for a civil
remedy, to the relevant person or authority responsible
for taking the proceedings; or
· otherwise, to the person who appears to be entitled to
the possession of the thing.
22
These obligations do not apply if the CEO has already given the
thing to the relevant Commonwealth or State Attorney-General
or to a law enforcement agency or prosecuting authority in
accordance with clause 34(1)(a), (b) or (c). That clause requires
the CEO to assemble evidence that would be admissible in the
prosecution of an offence and give it to the relevant
Commonwealth or State Attorney-General, law enforcement
agency or prosecuting authority.
Rather than delivering a thing seized under warrant to the person
who appears to be entitled to it in accordance with clause 29(10),
clause 29(11) enables a participant in a special ACC
operation/investigation to deliver the thing to the Attorney-
General of the Commonwealth or a State or to a law enforcement
agency if it is likely to assist in the investigation of a criminal
offence.
Clause 29(12) makes it clear that clause 29 does not affect other
rights to apply for a warrant or other powers to issue a warrant.
For example, clause 29 would not prevent a member of staff of
the ACC who is also a member of the police force of the State
from applying under other Victorian laws for a warrant in
connection with an offence that is the subject of ACC State
investigation.
Clause 30 allows an application to be made by telephone where a warrant is
required urgently. This clause complements an equivalent
provision in section 23 of the Commonwealth Act.
Where an application is made by telephone, the eligible person
must first prepare an affidavit setting out the grounds on which
the warrant is sought. However, if necessary, the application
may be made before the affidavit has been sworn.
Clause 30(3) requires an issuing officer who issues a search
warrant by telephone to inform the applicant of the terms of the
warrant and the date it was issued and record the reasons it was
issued on the warrant.
Clause 30(4) provides that a member of the staff of the ACC or a
member of the Police Force of the State may complete a form of
warrant in the terms indicated by the issuing officer, and must
record the issuing officer's name and the date and time of issuing.
Clause 30(5) requires the applicant, by no later than the day after
the warrant expires, to send the issuing officer the completed
form of the warrant together with the applicant's sworn affidavit.
23
PART 5--PERFORMANCE OF FUNCTIONS AND EXERCISE
OF POWERS
Clause 31 provides that the conferral of functions on a Commonwealth
body or person is subject to the consent of the Board under the
Commonwealth Act. This provision complements section
55A(5A) of the Commonwealth Act, which provides that the
CEO or an examiner cannot perform a duty or function or
exercise a power under State law relating to the investigation of a
relevant criminal activity or the undertaking of an intelligence
operation unless the Board has consented to the ACC doing so.
Clause 32 makes it clear, for the avoidance of doubt, that a Commonwealth
body or person is not precluded by any State law from
performing functions under the Act.
Clause 33 provides that the Act does not purport to impose any duty on
a Commonwealth body or person to perform a function if
the imposition would be beyond State legislative power.
This provision is intended to ensure that the Act does not
contravene any constitutional doctrine that restricts the duties that
may be imposed on Commonwealth bodies or persons.
Clause 33 does not limit clause 35, which makes it clear that a
function conferred on a federal judicial officer under the Act is
conferred on him or her in a personal capacity. In addition,
clause 33 does not limit section 6 of the Interpretation of
Legislation Act 1984. That section is a general interpretative
provision, which will apply such that the Bill will be read so as
not to exceed State legislative power.
Clause 34 imposes obligations on the CEO in relation to what he or she
must do with information obtained by the ACC and provides for
the CEO to make law reform recommendations to Ministers.
This clause complements an equivalent provision in section 12 of
the Commonwealth Act.
Where admissible evidence is obtained during the course of an
ACC operation/investigation, the CEO must assemble the
evidence and give it to the relevant Commonwealth or State
Attorney-General, law enforcement agency or prosecuting
authority. This obligation applies under clause 34(1) in relation
to evidence that would be admissible in the prosecution of an
offence and under clause 34(2) in relation to evidence that would
be admissible in confiscation proceedings.
Clause 34(3) enables the Board to make a law reform
recommendation or a recommendation for administrative reform
to Ministers.
24
Clause 34(4) provides that where the ACC obtains information or
intelligence in the course of performing one of its functions, that
information or intelligence may be used for the purposes of other
ACC functions. For example, information obtained during an
intelligence operation may be used during an investigation into
relevant criminal activity. This provision recognises the
integrated nature of the ACC's intelligence and investigatory
functions and ensures that the use of information by the ACC is
not artificially restricted.
Clause 35 makes it clear that a function conferred by the Act on a federal
judicial officer (which is defined to mean a Judge of the Federal
Court or a Federal Magistrate) is conferred on that person in a
personal capacity and not as a court or member of a court, and
the federal judicial officer need not accept the function conferred.
This provision is intended to ensure that the Act does not breach
any constitutional doctrine that restricts the duties that may be
conferred on federal judicial officers.
Clause 35(4) affords a federal judicial officer performing a
function under the Act the same protection as a member of the
court of which he or she is a member. This ensures that the
performance by federal judicial officers of functions under the
Act is not constrained by a risk of tortious liability that may
otherwise arise from the performance of those functions.
Clause 36 limits, in certain circumstances, the challenges that may be made
in relation to activities of the ACC. This clause complements an
equivalent provision in section 16 of the Commonwealth Act.
Where the Board has determined that an ACC State intelligence
operation/investigation is a special operation/investigation, then
an act or thing done by the ACC because of that determination
cannot be challenged in any court on the ground that the
determination was not lawfully made. This prevents a court from
looking behind a determination to see if it was properly made.
For example, it prevents a challenge being made on the basis that
there was an error in the procedure that led to the determination
being made.
This provision does not prevent challenges in relation to the
activities of the ACC once a determination is in place. Also, this
limitation does not apply to proceedings initiated by the
Attorney-General of the Commonwealth or a State.
25
Clause 37 makes it clear that the ACC must cooperate with other law
enforcement agencies, so far as practicable, in performing its
functions under the Act. The ACC may also coordinate its
activities with the functions of overseas authorities that perform
similar functions to those of the ACC. This clause complements
an equivalent provision in section 17 of the Commonwealth Act.
Clause 38 empowers the ACC to do all things necessary in connection with,
or reasonably incidental to, the performance of its functions
under the Act. This clause complements an equivalent provision
in section 19 of the Commonwealth Act.
PART 6--GENERAL
Clause 39 makes it clear that a person is not liable to be punished for an
offence under the Act if he or she has already been punished for
the offence under the Commonwealth Act. This clause
complements an equivalent provision in section 35A of the
Commonwealth Act.
Clause 40 provides that the State Minister may make an arrangement with
the Commonwealth Minister for the Board to receive information
or intelligence from the State or a State authority relating to
relevant criminal activities. This provision complements
section 21 of the Commonwealth Act.
This provision is intended to facilitate the making of Ministerial
level arrangements in relation to the provision of State
information or intelligence to the Board. It is not intended to
preclude or limit the provision of information or intelligence to
the Board from the State or State agencies by other means, for
example, the provision to the Board of information or
intelligence directly by the Police Force of the State.
Clause 41 enables the State Minister to make an arrangement with the
Commonwealth for the provision of human resources by the State
to perform services for the ACC. This provision complements
section 58 of the Commonwealth Act.
Clause 42 makes it clear that a judge of a State court may perform functions
conferred on him or her by section 22, 23 or 31 of the
Commonwealth Act. Section 22 of the Commonwealth Act
empowers an issuing officer, which includes a Judge of a State
court, to issue a search warrant and section 23 of the
Commonwealth Act enables such a warrant to be issued upon a
telephone application. The powers contained in sections 22 and
23 of the Commonwealth Act are equivalent to those contained in
clauses 29 and 30, respectively, of the Bill. Section 31 of the
26
Commonwealth Act empowers a Judge of a State Supreme Court
to issue a warrant for the arrest of a witness, similarly to the
power contained in clause 24.
Clause 43 deals with the dissemination of reports and information about the
performance of the ACC's functions to relevant persons.
This clause complements equivalent provisions in section 59 of
the Commonwealth Act.
The Chair of the Board must keep the Commonwealth Minister
informed of the general conduct of the ACC in the performance
of its functions under the Act. This recognises the role of the
Commonwealth Minister in monitoring the general conduct of
the ACC, as a Commonwealth body established by
Commonwealth legislation.
The Commonwealth Minister may also request from the Chair of
the Board information concerning a specific matter relating to the
performance by the ACC of its functions under the Act.
A State Minister who is a member of the IGC may also request
from the Chair of the Board information concerning a specific
matter relating to the performance by the ACC of its functions
under the Act. This enables the State Minister to obtain
information independently about the conduct of the ACC
functions as the Minister responsible for the administration of the
Act.
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 a person or the operations of
law enforcement agencies.
The IGC may request the Chair of the Board to--
· provide information to the IGC concerning a specific
matter relating to an ACC operation/investigation that
the ACC has or is conducting; and
· inform the IGC about the general conduct of the ACC in
the performance of its functions under the Act.
The Chair of the Board must comply with such a request from the
IGC, subject to a requirement that the Chair must not furnish a
matter the disclosure of which to members of the public could
prejudice the safety or reputation of a person or the operations of
law enforcement agencies.
27
In addition to the IGC's power to request information from the
Chair of the Board, the Chair of the Board--
· may inform the IGC at such times as he or she considers
appropriate about the general conduct of the ACC in the
performance of its functions under the Bill; and
· must provide to the IGC a report on the findings of any
special ACC operation/investigation conducted by the
ACC for transmission to the Governments represented
on the IGC--
subject to a requirement that the Chair must not furnish a matter
the disclosure of which to members of the public could prejudice
the safety or reputation of a person or the operations of law
enforcement agencies.
These provisions are intended to facilitate the role of the IGC in
monitoring generally the work of the ACC.
Clause 43(8) enables the CEO to disseminate any relevant
information that is in the ACC's possession to another law
enforcement agency, foreign law enforcement agency or
prescribed government authority. The CEO can only disseminate
such information if it appears to him or her to be appropriate to
do so, and the dissemination would not be contrary to a
Commonwealth, State or Territory law that would otherwise
apply.
The CEO is also empowered to provide, in specified
circumstances, any information that is in the ACC's possession
to--
· authorities responsible for taking civil remedies on
behalf of the Commonwealth, a State or a Territory,
where the information may be relevant for the purposes
of taking such remedies in connection with
Commonwealth, State or Territory offences; and
· a Commonwealth or State authority or a Territory
Administration, where the information relates to the
performance of the authority or Administration; and
· the Australian Security Intelligence Organisation, where
the information is relevant to security as defined in
section 4 of the Commonwealth Australian Security
Intelligence Organisation Act 1979.
28
Clause 43(11) sets out a general prohibition on a report under the
Act being made available to the public if it--
· contains a finding that an offence has been committed;
or
· makes a recommendation for the prosecution of an
offence--
unless the finding or recommendation indicates that it is based on
evidence that would be admissible in the prosecution of a person
for that offence. This provision is intended to ensure that the
publication of a report containing these matters does not
compromise the fair trial or reputation of a person.
Clause 44 imposes secrecy obligations on specified ACC officers.
These officers are the CEO, a member of the Board, a member of
staff of the ACC (including a person appointed as counsel
assisting the ACC or a person who performs services for such a
person) and an examiner. These obligations are intended to
ensure that information that could jeopardise the effective
conduct of the ACC's functions is not improperly disclosed, and
complement similar obligations contained in section 51 of the
Commonwealth Act.
Clause 44(2) makes it an offence for a specified ACC officer to
record, divulge or communicate information acquired by him or
her in the course of performing his or her functions under the
Act, except for the purposes of, or in connection with the
performance of his or her functions under, a relevant Act.
This offence applies to conduct either while a person is a
specified ACC officer or after he or she ceases to be such an
officer. The maximum penalty for the offence is $5500 or one
year's imprisonment.
Clause 44(3) ensures that a specified ACC officer cannot be
required to--
· produce to a court documents that have come into the
officer's possession in the course of performing his or
her functions under the Bill; or
· divulge or communicate to a court matters that have
come to the officer's notice in the performance of his or
her functions under the Bill.
29
This is intended to preserve the secrecy of information relating to
the ACC's functions in circumstances where a court would
otherwise have power to require the production of documents or
the answering of questions that would disclose that information.
Clause 44(3) provides for exceptions under which a specified
officer can be required to produce the above documents or
divulge or communicate the above matters. These are--
· where the ACC, the CEO, the acting CEO, a member of
the Board or an examiner in his or her official capacity
is a party to the relevant proceeding; or
· if it is necessary to do so to carry into effect the
provisions of a relevant Act; or
· if it is necessary to do so for the purposes of a
prosecution resulting from an ACC operation or
investigation.
Clause 44(4) defines a relevant Act for the purposes of clause 44
to mean the Commonwealth Act, this Act or a corresponding Act
of another State or Territory. This definition is necessary to
ensure that the secrecy obligations in this clause do not prevent
the disclosure of information where this is necessary for the
purposes of another Act that forms part of the ACC co-operative
scheme.
Clause 45 allows the CEO to delegate in writing any of his or her powers
under the ACC Act to a member of staff of the ACC who is an
SES employee. Clause 3(2) applies the definition of SES
employee contained in the Commonwealth Act, which in turn
applies the definition of this term under the Commonwealth
Public Service Act 1999. Under that Act, SES employees consist
of those Australian Public Service officers who are classified as
Senior Executive Employees under the relevant classification
rules under that Act.
This power of delegation affords the CEO flexibility in
undertaking administrative matters, while ensuring that delegated
powers are only exercised by appropriately senior persons.
This clause complements an equivalent provision in section 59A
of the Commonwealth Act.
30
Clause 46 makes it an indictable offence to obstruct or hinder the ACC or
examiner in the performance of the ACC's or examiner's
functions or to disrupt an examination. The maximum penalty is
a fine of $22 000 or 5 years' imprisonment. This offence mirrors
an equivalent offence contained in section 35 of the
Commonwealth Act.
Clause 47 provides for public meetings of the Board to inform the public
about, or receive submissions in relation to, the performance of
the ACC's functions. The Board can also publish bulletins to
inform the public about the performance of its functions.
This clause complements an equivalent provision contained in
section 60 of the Commonwealth Act.
Clause 48 provides for certain matters to be included in an annual report
prepared by the Chair of the Board under section 61 of the
Commonwealth Act.
This provision, together with comparable provisions in other
States' and Territories' ACC legislation, will ensure that
information included in the annual report under section 61 of the
Commonwealth Act relating to the performance of the ACC's
functions under that Act is supplemented with comparable
information about the performance of the ACC's functions under
State and Territory law.
Clause 48(2) requires an annual report under section 61 of the
Commonwealth Act to include--
· descriptions of any special ACC investigations during
the year; and
· descriptions of any patterns of criminal activity and the
nature and scope of criminal activity that has come to
the ACC's attention during the year; and
· any recommendations for legal or administrative reform
the Board considers should be made; and
· the general nature and extent of information provided by
the CEO to a law enforcement agency under the Act;
and
· the extent to which ACC State investigations have
resulted in prosecutions or confiscation proceedings
during the year; and
31
· numbers and results of court proceedings involving the
ACC in relation to its functions under the Act that were
determined during the year.
Clauses 48(3) and (4) contain provisions to prevent an annual
report identifying persons as having being suspected of, or as
having committing offences (unless the persons have been
convicted of those offences) or identifying a person where this
would prejudice a person's safety or reputation or the fair trial of
a person who has been or may be charged with an offence.
The State Minister is required to table an annual report within
15 sitting days of receiving the report from the IGC.
Clause 49 provides that it is the intention of clauses 36, 56 and 64 to alter or
vary section 85 of the Constitution Act 1975.
Clause 36 is intended to prevent, in specified circumstances,
challenges that can be made in relation to the activities of the
ACC, including in the Supreme Court, because of an
administrative problem with a Board determination.
The transitional provision in clause 56 is intended to ensure that
State NCA references that were made before 1 January 2003
continue to be protected from challenges under section 8 of the
National Crime Authority (State Provisions) Act 1984 after
the repeal of that Act by the Bill. Similarly to clause 36 of the
Bill, section 8 of the National Crime Authority (State
Provisions) Act 1984 protects from challenge, including in the
Supreme Court, certain activities of the NCA because of an
administrative problem with a State reference.
The transitional provision in clause 64 is intended to ensure that
the Co-operatives Schemes (Administrative Actions) Act 2001
continues to apply to validate certain invalid administrative
actions undertaken by Commonwealth officers and authorities
pursuant to the National Crime Authority (State Provisions)
Act 1984 up to time when that Act is repealed by the enactment
and commencement of clause 51 of the Bill. This provision will
prevent actions being brought against the State, including in the
Supreme Court, in relation to such administrative actions.
Clause 50 provides for a regulation-making power under the Bill.
32
PART 7--REPEAL OF THE NATIONAL CRIME AUTHORITY
(STATE PROVISIONS) ACT 1984 AND AMENDMENTS TO
OTHER ACTS
Clause 51 repeals the National Crime Authority (State Provisions) Act
1984, which is the existing State legislation for the NCA, as a
consequence of the replacement of the NCA with the ACC under
the Commonwealth Act.
As the ACC is a new law enforcement body with new
governance arrangements and functions, it is appropriate that
provision for its operation in Victoria be made under a new
principal Bill. The Bill contains transitional provisions in Part 8
to facilitate the seamless transition from the NCA to the ACC
under State law. In addition, Schedule 1 to the Bill contains
consequential amendments to a number of State Acts that are
necessary because of the replacement of the NCA with the ACC
and the repeal of the National Crime Authority (State
Provisions) Act 1984. The consequential amendments will
ensure that those other State Acts operate consistently with the
provisions of the Bill.
Clause 52 provides for the consequential amendments of Acts as set out in
Schedule 1 to the Bill.
PART 8--TRANSITIONAL
Part 8 contains transitional provisions to ensure that the transition from the
NCA to the ACC is as seamless as possible. These transitional provisions are
necessary as a consequence of the commencement of the Commonwealth
Act, which commenced operation on 1 January 2003, and the repeal of the
National Crime Authority (State Provisions) Act 1984 by clause 51 of the
Bill.
Clause 53 sets out definitions that apply for the purposes of the transitional
provisions in Part 8 of the Bill.
Clause 54 deems an ACC State investigation that relates to a matter that
was the subject of an NCA investigation that had been
commenced but not completed before 1 January 2003 to be a
special ACC investigation. This means that if the Board consents
to the ACC conducting an ACC State investigation into a matter
that previously had been the subject of an incomplete
investigation under the National Crime Authority (State
Provisions) Act 1984, it will be unnecessary for the Board to
make a new determination authorising the use of special powers
under the Bill.
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Clause 55 imposes on the ACC the obligation under section 34(1) of the
Bill to assemble and give to the relevant prosecuting authority
evidence that the NCA had obtained before 1 January 2003 but
had not assembled and given to the relevant prosecuting authority
under section 6(1) of the National Crime Authority (State
Provisions) Act 1984 as if that evidence had been obtained by
the ACC in carrying out an ACC operation/investigation.
Clause 56 ensures that where the State referred a matter to the NCA for
investigation before 1 January 2003, the reference continues to be
protected from challenges under section 8 of the National Crime
Authority (State Provisions) Act 1984 after the repeal of that
Act by the Bill. Section 8 protects a reference from challenge on
the grounds that any necessary approval had not been obtained or
was not lawfully given.
Clause 57 provides that an arrangement in force immediately before
1 January 2003 under section 11 of the National Crime
Authority (State Provisions) Act 1984 between the State
Minister and the Commonwealth Minister for the NCA to receive
information or intelligence by the State or a State authority has
effect as if it had been made under the Bill.
Clause 58 ensures that where things seized pursuant to a warrant under
section 12 of the National Crime Authority (State Provisions)
Act 1984 are in the ACC's possession, the obligations under
clauses 29(10) and 29(11) of the Bill regarding the retention and
return of things seized under warrant apply to those things.
Clause 59 provides that where a non-publication direction was in force
under section 16(9) of the National Crime Authority (State
Provisions) Act 1984 immediately before 1 January 2003--
· the provisions in clauses 18(10) and (11) regarding the
revocation of directions and the offence of contravening
a non-publication direction contained in clause
18(14)(b) apply to that direction; and
· clauses 18(12) and (13), so far as they relate to the CEO
of the ACC, apply to evidence that is the subject of such
a direction. These provisions enable a court to obtain
evidence that is the subject of a non-publication
direction in certain circumstances.
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Clause 60 ensures that if a non-disclosure notation included in a summons
or notice to produce documents was in force under section 18A
of the National Crime Authority (State Provisions) Act 1984
immediately before 1 January 2003, the notation is effective and
it is an offence under clause 22 of the Bill to make a disclosure in
contravention of the notation. If there is an ACC
operation/investigation relating to the same matter to which the
NCA investigation related, the provisions in clause 21(4) and (5)
relating to the automatic cancellation of a notation apply.
Clause 61 ensures that arrangements in force immediately before 1 January
2003 under section 24 of the National Crime Authority (State
Provisions) Act 1984 made by a member or hearing officer of
the NCA to protect witnesses from harm or intimidation have
effect as if it they been made under the Act.
Clause 62 enables arrangements between the State and the Commonwealth
that were in force immediately before 1 January 2003 under
section 28(b) of the National Crime Authority (State
Provisions) Act 1984 under which the State makes persons
available to hold office as members of the NCA or to perform
services for the NCA to have effect as if those arrangements had
been made under the Bill.
Clause 63 ensures that former officials, being persons who were at any time
subject to the secrecy obligations under section 31 of the
National Crime Authority (State Provisions) Act 1984, are
subject to the secrecy obligations in clause 44(2) and (3) of the
Bill.
Clause 64 ensures that the Co-operatives Schemes (Administrative
Actions) Act 2001 continues to apply to administrative actions
taken, or purportedly taken, under the National Crime
Authority (State Provisions) Act 1984 as if that Act had not
been repealed and were still a relevant State Act for the purposes
of the Co-operatives Schemes (Administrative Actions) Act
2001. The Co-operatives Schemes (Administrative Actions)
Act 2001 validates certain invalid administrative actions
undertaken by Commonwealth officers and authorities, including
actions undertaken pursuant to the National Crime Authority
(State Provisions) Act 1984, by giving them the effect they
would have had if they had been taken by State authorities or
officers. This transitional provision ensures that such
administrative actions are validated up to time when the National
Crime Authority (State Provisions) Act 1984 is repealed by the
enactment and commencement of clause 51 of the Bill.
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Clause 65 enables the making of regulations prescribing matters of a
transitional nature if there is no sufficient provision in Part 8
dealing with the matter. Such regulations that provide that a state
of affairs is taken to have existed, or not existed, may be back
dated in their operation to 1 January 2003 to ensure that
necessary transitional matters for the replacement of the NCA
with the ACC can be addressed without gaps.
An important safeguard is that such regulations with a backdated
operation do not operate so as to--
· prejudicially affect the rights of a person (other than the
State or an authority of a State) that existed before the
date of the making of the regulations; or
· impose liabilities on any person (other than the State or
an authority of a State) in respect of things done or
omitted to be done before the date of making of the
regulations.
In addition, regulations that are backdated in their operation can
only be made up to 12 months after the day on which the
National Crime Authority (State Provisions) Act 1984 is
repealed by the enactment and commencement of clause 51 of
the Bill.
SCHEDULE 1
Item 1 replaces a reference to the NCA in the Casino Control Act 1991
with a reference to the ACC.
Item 2 replaces references to the NCA and the Commonwealth National
Crime Authority Act 1984 in the Crimes Act 1958 with
references to the ACC and the Commonwealth Act respectively.
Item 3 replaces a reference to the NCA in the Gaming and Betting Act
1994 with a reference to the ACC.
Item 4 replaces a reference to the NCA in the Gaming Machine
Control Act 1991 with a reference to the ACC.
Item 5 replaces a reference to the NCA in the Health Records Act 2001
with a reference to the ACC.
Item 6 replaces a reference to the NCA in the Information Privacy Act
2000 with a reference to the ACC.
Item 7 replaces a reference to the NCA in the Interactive Gaming
(Player Protection) Act 1999 with a reference to the ACC.
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Item 8 inserts a new clause 66 in Schedule 4 to the Magistrates' Court
Act 1989 to include a reference to indictable offences under the
Bill. This will mean that section 53 of the Magistrates' Court
Act 1989 will apply to a defendant charged with any of these
offences to enable the Court to hear and determine the charge
summarily with the consent of the defendant if the Court
considers it appropriate to do so. Where a charge is determined
summarily under section 53 of the Magistrates Court Act 1989,
the procedure set out in section 54 of that Act will apply.
The maximum penalty for an indictable offence under the Bill
that is heard and determined summarily is a fine of $2200 or one
year's imprisonment.
The power to determine summarily the offences created or
applied under the Bill is consistent with the existing power under
the National Crime Authority (State Provisions) Act 1984 to
determine summarily the indictable offences under that Act.
Item 9 repeals section 4(2A) of the Police Regulation Act 1958.
That section provides for the appointment to the rank of Assistant
Commissioner of a member of the Force who is seconded to the
position of Director of the Australian Bureau of Criminal
Intelligence for the duration of the secondment. This section is
redundant as the Australian Bureau of Criminal Intelligence has
been subsumed within the ACC and no longer exists.
Item 10 replaces references to the NCA and the Commonwealth National
Crime Authority Act 1984 in the Prostitution Control Act 1994
with references to the ACC and the Commonwealth Act
respectively.
Item 11 replaces references to the NCA, the Chair of the NCA and staff
of the NCA in the Surveillance Devices Act 1999 with
references to the ACC, the CEO of the ACC and staff of the ACC
respectively. This item also amends the definition of "senior law
enforcement officer" by replacing a reference to a member of the
NCA, including the Chair, with a reference to the CEO or an
ACC examiner. It is necessary to amend this definition as the
ACC, unlike the former NCA, does not have members or a Chair.
The effect of this consequential amendment is that the CEO and
ACC examiners will be senior law enforcement officers for the
purposes of the Act and will be able to exercise powers such as
authorising an application for a surveillance devices warrant.
This item also replaces the definition of "National Crime
Authority" with a definition of the ACC.
37
Item 12 replaces a reference to the NCA or a person authorised by that
Authority in section 7(1) of the Taxation (Reciprocal Powers)
Act 1987 with a reference to the CEO of the ACC or persons
authorised him or her. Section 7(1) enables the State
Commissioner to disclose certain taxation information to
specified persons and authorities, including the NCA or persons
authorised by that Authority. In addition to replacing the
reference to the NCA with a reference to the ACC, this
consequential amendment will make it clear that the CEO of the
ACC is the appropriate ACC officer to receive information under
section 7(1) or to authorise others to do so.
Item 13 replaces a reference to the NCA in the Telecommunications
(Interception) (State Provisions) Act 1988 with a reference to
the ACC.
Item 14 replaces a reference to the Chair of the NCA in the definition of
"approved authority" in the Witness Protection Act 1991 with a
reference to the CEO of the ACC. This item also amends the
definition of "officer of an approved authority", insofar as that
definition applies to the ACC, to mean a member of staff of the
ACC. The definition of "officer of an approved authority", as it
currently applies to the NCA, means a member of the NCA. It is
necessary to amend this definition as the ACC, unlike the former
NCA, does not have members. As the functions imposed on an
officer of an approved authority under the Witness Protection
Act 1991 are administrative in nature, it is appropriate that
members of staff of the ACC perform these functions. This item
also makes a related amendment to section 22 of the Witness
Protection Act 1991 to enable members of staff of the ACC to
perform certain functions and powers that can be exercised
currently by a member of the NCA.
In addition, this item inserts a transitional provision in section 26
of the Witness Protection Act 1991 in relation to arrangements
under section 21 of that Act, which enables the Chief
Commissioner of Police to make arrangements with an approved
authority, including the Chair of the NCA, about a matter
connected with the administration of a complementary witness
protection law. This item provides for such arrangements that
were in force immediately before 1 January 2003 to continue in
force for the purposes of the Witness Protection Act 1991 as if
they were made by the Chief Commissioner of Police and the
CEO of the ACC.
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