House of Representatives

Revised Explanatory Memorandum

(Circulated by authority of the Minister for Justice and Customs, Senator the Honourable Chris Ellison)

Outline and financial impact statement

Outline

This Bill amends the National Crime Authority Act 1984 (NCA Act) and the Ombudsman Act 1976 to:

•

implement the Governments response to the 3rd evaluation of the National Crime Authority (the Authority) by the Parliamentary Joint Committee on the National Crime Authority (PJC-NCA); and

•

address a number of matters relating to the administration and operation of the Authority.

The Bill also inserts a note in the Privacy Act 1988 and makes consequential amendments to the Financial Transaction Reports Act 1988, Jurisdiction of Courts (Cross-vesting) Act 1987, Telecommunications (Interception) Act 1979, Crimes Act 1914, Witness Protection Act 1994, Customs Act 1901, Proceeds of Crime Act 1987 and Taxation Administration Act 1953.

The Bill also introduces a requirement for a review of the operation of certain provisions to be held after those provisions have been in place for five years.

Schedule 1 of the Bill will amend the NCA Act to:

(a)

remove the defence of reasonable excuse, replace the use derivative-use indemnity with use-indemnity, and increase penalties for non-compliance with the Act;

(b)

enable the Authority to investigate relevant criminal activity that occurs after the date of the reference to the Authority;

(c)

extend the maximum term of appointment of the members of the Authority from 4 to 6 years;

(d)

extend the class of persons who may issue search warrants to include federal magistrates;

(e)

provide that witnesses may be advised of the presence of persons at hearings and given an opportunity to comment, but not object;

(f)

clarify the application of legal professional privilege and remove the defence of legal duty to disclose;

(g)

clarify that only reasonable force may be used in the execution of a warrant;

(h)

clarify the material to which the PJC-NCA may have access;

(i)

apply Chapter 2 of the Criminal Code;

(j)

introduce hearing officers, whose only role is to undertake hearings on behalf of the Authority;

(k)

adopt the definition of "document" from the Evidence Act 1995 and include "money laundering" and "perverting the course of justice" in the definition of relevant offence;

(l)

repeal subsections 12(4) and (5);

(m)

extend the class of persons who may apply for search warrants to include certain members of the staff of the Authority;

(n)

clarify that a prohibition on disclosure relating to the Authoritys process overrides any contrary requirement under the Privacy Act 1988 for so long as the prohibition remains in force;

(o)

enable the Chair to delegate certain powers; and

(p)

provide for the dissemination of information to foreign law enforcement agencies.

Schedule 2 of the Bill inserts a note into the Privacy Act 1988 to alert the reader of that Act to the requirements of the NCA Act.

Schedule 3 of the Bill amends the Ombudsman Act 1976 to extend the jurisdiction of the Commonwealth Ombudsman to deal with complaints against the Authority. The amendments will:

(a)

deem the Authority to be a prescribed authority for the purposes of the Ombudsman Act;

(b)

provide the Commonwealth Ombudsman with a discretion to transfer a complaint to a more appropriate authority;

(c)

enable joint investigations; and

(d)

provide that the Attorney-General may issue certificates preventing the disclosure of certain information to or by the Ombudsman.

Schedule 5 contains consequential amendments similar to those in Schedules 7 to 12 (see below). However, it also contains an additional minor amendment to the Financial Transaction Reports Act 1988.

Schedule 6 contains consequential amendments to the Jurisdiction of Courts (Cross-vesting) Act 1987.

Schedules 7 to 12 make consequential amendments to different Acts in light of the proposed amendments to the NCA Act to replace references to "Chairperson" and "Chairpersons" with references to "Chair" and "Chairs". This proposed amendment was recommended by the PJC-NCA in its report on the Bill. "Chair" is now the default terms for such a position; section 18B of the Acts Interpretation Act 1901 then allows an office of "Chair" to be referred to by other terms.

The amendments summarised by Items (a) to (j) above, and Schedule 3, generally implement most of the Governments response to the 3rd evaluation of the Authority by the PJC-NCA. While that evaluation confirmed the operational value of the Authority as Australias only law enforcement agency not limited by jurisdictional boundaries, it also identified a number of areas where the powers of the Authority required enhancement. This Bill will address those issues. The Bill will also implement the recommendation that there be an independent complaints regime for the Authority.

The amendments summarised by Items (k) to (p) above, and Schedule 2, address a number of matters relating to the administration of the Authority in order to improve the overall effectiveness of the Authority.

Financial impact statement

There are no direct financial impacts from this Bill.

Notes on clauses

Clause 1: Short title

The short title of this Act is the National Crime Authority Legislation Amendment Act 2001.

Clause 2: Commencement

This clause provides that clauses 1, 2, 3 and 4 of the Bill will commence on Royal Assent (clauses 1, 2 and 3 are formal; clause 4 contains the proposed review and report requirements (see Item 2)).

Schedules 1 to 7 and 9 to 12 will commence on a day to be fixed by Proclamation or 6 months after the Act receives the Royal Assent, whichever occurs first. The necessary consequential Regulations will be made during this time.

Schedule 8 will amend the Crimes Act 1914 to replace references to "Chairperson" of the Authority with references to "Chair" of the Authority. As the provisions to be amended will also be amended by the Measures to Combat Serious and Organised Crime Bill (the Measures Bill) the commencement provision has been framed so that the amendments proposed by Schedule 8 may be proclaimed to commence after the commencement of the Measures Bill. If the Measures Bill is not enacted, Schedule 8 will be proclaimed to commence as the amendments proposed by Schedule 8 are able to operate on the existing Crimes Act provisions.

Clause 3: Schedule(s)

This clause provides that each Act that is specified in a Schedule is amended as set out in that Schedule.

Clause 4: Review of effect of the Act

This Item proposes clause 4 of the Bill, which will set out the requirements for a five-year review of the provisions that remove the defence of reasonable excuse, remove derivative-use immunity and increase the penalties for non-compliance with the NCA Act. The purpose of the review is to assess how the operations of the Authority have been enhanced by the improved investigatory powers and to ensure that there is a formal assessment of the continuing appropriateness of these provisions.

The proposed clause provides that:

•

The Minister must appoint a person who, in the opinion of the Minister, is suitably qualified to review and report on the effect the implementation of the specified provisions has had on the operations of the Authority.

•

The review period will be the five-year period beginning on the commencement of Part 1 of Schedule 1 (in which the provisions to be reviewed appear).

•

The review and report must include an assessment of the way in which the specified provisions have facilitated the Authority in the performance of its functions and the extent (if any) to which persons have been unjustifiably prejudiced because of the removal of the defence of reasonable excuse and the removal of derivative-use immunity.

•

The Authority must give all reasonable assistance to the person undertaking the review and such assistance will not result in a contravention of the secrecy or non-disclosure provisions set out in section 51 of the NCA Act.

•

In recognition of the statutory role of the IGC-NCA, a copy of the report is to be provided to the IGC-NCA, before being forwarded to the Commonwealth Minister with administrative responsibility for the Authority.

•

The Commonwealth Minister is to table the report within 15 sitting days of its receipt (that is after the IGC-NCA has considered the report and provided any comments).

Schedule 2- Privacy Act 1988

The purpose of this Schedule is to make a note in the Privacy Act 1988 cross-referring to a provision in the NCA Act, which modifies the application of the Privacy Act 1988.

Item 1

This Item adds a note after subsection 18K(5) to alert a credit reporting agency to the requirements of section 29A of the NCA Act in relation to not annotating a credit file when there is a non-disclosure notice in place and it has not been cancelled (see Items 50 and 51 of Schedule 1).

Schedule 5 - Financial Transaction Reports Act 1988

Items 1 and 2

Items 1 and 2 will replace references to "Chairperson" in subsection 16(6) and paragraph 26(1)(c) with references to "Chair". The amendments are consequential on the proposal to replace all references in Commonwealth legislation to "Chairperson" and "Chairman" of the Authority with references to "Chair" of the Authority.

Item 3

Item 3 will amend subsection 27(5) to insert a new paragraph 27(5)(aa) dealing with the disclosure of information by the Authority to the PJC-NCA. The proposed paragraph will enable the Authority to include appropriately desensitised information about financial transactions in the information to be provided to the PJC-NCA.

The proposed amendment is consequential on proposed Items 60 and 61 of Part 12 of Schedule 1 of the Bill, which clarifies and codifies (for the first time) the right of the PJC-NCA to access certain information held by the Authority.

Items 4 and 5

Items 4 and 5 are technical amendments that are consequential on the addition of proposed paragraph 27(5)(aa) (see Item 3).

Schedule 8 - Crimes Act 1914

Proposed Schedule 8 will amend the Crimes Act 1914. It will be proclaimed to commence after the commencement of the Measures to Combat Serious and Organised Crime Bill (which was introduced into Parliament on 4 April 2001) (the Measures Bill). The amendments are consequential on the proposal to replace all references in Commonwealth legislation to "Chairperson" and "Chairman" of the Authority with references to "Chair" of the Authority.

Items 1, 3, 5 and 6

Items 1, 3, 5 and 6 will replace references to "Chairperson" with references to "Chair" in provisions that will also be amended by the Measures Bill. If the Measures Bill does not amend the provisions, Items 1, 3, 5, and 6 will amend the existing Crimes Act provisions to which they refer.

Item 2

Item 2 will replace a reference to "Chairperson" with a reference to "Chair" in a provision that will be inserted by the Measures Bill. If the Measures Bill does not insert the provision, Item 2 will have no effect.

Item 4

Item 4 will replace a reference to "Chairperson" with a reference to "Chair" in a provision that will be repealed by the Measures Bill. If the Measures Bill does not repeal the provision, Item 4 will amend the existing Crimes Act provision to which it refers.

Schedule 10 - Customs Act 1901

Proposed Schedule 10 will amend the Customs Act 1901 to replace a reference to "Chairman" of the Authority with a reference to "Chair" of the Authority. The amendment is consequential on the proposal to replace all references in Commonwealth legislation to "Chairperson" and "Chairman" of the Authority with references to "Chair" of the Authority.

Schedule 12 - Taxation Administration Act 1953

Proposed Schedule 12 will amend the Taxation Administration Act 1953 to replace a reference to "Chairman" of the Authority with a reference to "Chair" of the Authority. The amendment is consequential on the proposal to replace all references in Commonwealth legislation to "Chairperson" and "Chairman" of the Authority with references to "Chair" of the Authority.