Explanatory Memorandum
(Circulated by authority of the Minister for Justice and Customs, Senatory the Honourable Chris Ellison)Outline and financial impact statement
Outline
This Bill establishes the Australian Crime Commission (ACC) in accordance with the agreement reached between the Prime Minister, the Premiers of the States and the Chief Ministers of the Australian Capital Territory and the Northern Territory. It will combine the functions of the National Crime Authority (NCA), the Australian Bureau Crime Intelligence (ABCI) and the Office of Strategic Crime Assessments (OSCA).
Schedule 1 of the Bill will amend the National Crime Authority Act 1984 (NCA Act) to replace the National Crime Authority (NCA) with the ACC. The functions of the ACC are set out in the Bill and reflect the role that the new body will have in relation to both criminal intelligence and the investigation of federally relevant criminal activity.
The Bill establishes the governing regime for the ACC, including the establishment of a Board comprising the major players in law enforcement in Australia from the Commonwealth, and the States and Territories. The Board will have a pivotal role in determining national criminal intelligence priorities and in overseeing the strategic direction of, and the priorities for, the ACC.
The Bill will also create an office of Chief Executive Officer of the ACC, who will be responsible for the management and administration of the ACC in accordance with the policies and directions of the Board. The CEO will be responsible for managing, coordinating and controlling the ACC operations and investigations to prevent duplication of effort and to ensure that resources are used as effectively and efficiently as possible to implement the priorities of the Board. The CEO will ensure that the ACC maintains its national focus by facilitating the dissemination of criminal information and intelligence to relevant agencies.
While the Bill will retain the existing Inter-Governmental Committee the functions of the IGC will be amended to reflect the existence of the Board and to ensure that the IGC maintains an appropriate monitoring and oversight role. Of importance, however, are the amendments that will streamline the existing reference system to ensure that cumbersome administrative processes do not hinder the ACC while at the same time ensuring that the necessary accountability exists.
The Bill maintains the existing powers that are available to the NCA and amends the provisions to enable the ACC to have access, in accordance with a determination of the Board, to investigatory powers in order for it to carry out both its criminal intelligence and its investigatory roles.
The Board will have the power to authorise the use of coercive powers for intelligence operations or investigations. However, there are special requirements for the composition of the Board and special voting requirements in relation to authorisation applications. While the Board may authorise the availability of coercive powers, the powers will be exercised by independent statutory officers called examiners.
Examiners will exercise the coercive powers currently available to the NCA. These powers will be available for special ACC operations or investigations when the Board has determined that this is necessary in accordance with the specified threshold test. While the CEO will be able to direct an examiner to participate in a special ACC operation or special investigation, the CEO will not have the power to direct the examiner as to whether or how those powers are to be exercised.
The Bill will also ensure that, where State legislation confers a function, duty or power on the ACC, then the ACC will be able to undertake that function or exercise that power or duty, in the same way that the NCA is currently able to act under State legislation.
Schedule 1 of the Bill includes transitional provisions to ensure that there is a seamless transition from the NCA, ABCI and OSCA to the ACC.
Schedule 2 of the Bill amends a number of other Commonwealth Acts consequential on the replacement of the NCA, ABCI and OSCA by the ACC, and on the need to ensure that those Acts operate consistently with, and facilitate the criminal intelligence role of the ACC.
Schedule 3 of the Bill contains amendments that are contingent on the commencement of other Bills, in order to ensure that there are no gaps in the statutory framework within which the ACC will operate.
Financial impact statement
The proposal is cost neutral. The Commonwealth confirms that the current levels of funding provided for the existing agencies, as stipulated in the Forward Estimates for the next three years by the Commonwealth, will be provided to the ACC. Future funding levels will be subject to the normal budgetary processes.
Notes on clauses
Clause 1: Short title
The short title of this Act is the Australian Crime Commission Establishment Act 2002.
Clause 2: Commencement
This clause provides that clauses 1, 2 and 3 of the Bill and any other provision that is not specifically mentioned in this commencement provision, commence on the day on which the Act receives the Royal Assent.
Schedule 1, which contains the principle provisions that will establish the Australian Crime Commission (ACC) via amendments to the National Crime Authority Act 1984 (the NCA Act), will commence on 1 January 2003. Schedule 2, Items 1 to 115 and Items 119 to 226, which amend other Acts consequential on the establishment of the ACC, also commence on 1 January 2003.
Schedule 2, Items 116 and 117, amend the Proceeds of Crime Act 2002 and will commence on 1 January 2003 or immediately after the commencement of the relevant provisions of the Proceeds of Crime Act 2002 whichever is the later date.
Schedule 2, Item 118, amends the Radiocommunications Act 1992 and will commence on 1 January 2003 or immediately after the commencement of the relevant provisions of the Communications Legislation Amendment Act (No. 1) 2002 whichever is the later date.
Schedule 3, Items 1 to 6 commence immediately after Schedule 1 commences, but they do not commence at all if the Proceeds of Crime Act 2002 has not commenced by 1 January 2003.
Schedule 3, Items 7 to 14 and Item 17 commence immediately after, and Schedule 3, Items 15 and 16 commence immediately before, the commencement of the Proceeds of Crime Act 2002, but they do not commence at all if the Proceeds of Crime Act 2002 commences before 1 January 2003.
Clause 3: Schedule(s)
This clause provides that each Act that is specified in a Schedule is amended as set out in that Schedule.
Schedule 2 - other amendments
Part 1 - Amendments
The purpose of this Part is to amend other Commonwealth Acts to replace references to the NCA with references to the ACC, and to ensure that those Acts operate consistently with, and facilitate the expanded criminal intelligence role of, the ACC.
The majority of the amendments are consequential on the replacement of the National Crime Authority with the Australian Crime Commission and the subsuming of the Australian Bureau of Criminal Intelligence and the Office of Strategic Crime Assessments within the new organisation. The amendments do not make any substantive changes to the effect of the primary provisions. The amendments will, however, enable the legislation to operate in the same way in respect of the ACC as it currently does to the NCA. As the ACC will now also undertake a criminal intelligence function, some provisions also require amendment to include references to this new function.
These Items replace references to the NCA and member of the staff of the NCA, in the definition section of the Crimes Act, with references to the ACC and member of the staff of the ACC.
These Items amend Part IAB of the Crimes Act to allow the ACC to engage in controlled operations for the purpose of obtaining evidence about Commonwealth offences. The amendments replace references to the NCA and member of the staff of the NCA with references to the ACC and member of the staff of the ACC and do not provide the ACC with any powers that the NCA does not currently exercise under the existing provisions.
Section 15XA of the Crimes Actdefines a Commonwealth participating agency, for the purposes of the assumed identity provisions of Part 1AC to include the NCA. This Item replaces the reference to the NCA with a reference to the ACC. The amendment will enable the ACC to authorise persons to acquire and use assumed identities in the same manner, and with the same indemnification and protection from criminal liability, as persons can currently be authorised by the NCA under Part 1AC. The amendment does not provide the ACC with any powers that the NCA does not currently exercise under the provisions.
Section 15XA of the Crimes Act defines law enforcement agency for the purposes of the spent convictions scheme in Part VIIC of the Act, to include the NCA and the Australian Bureau of Criminal Intelligence.
These Items amend section 85ZL to replace the reference to the NCA with a reference to the ACC, and to remove the reference to the Australian Bureau of Criminal Intelligence as that organisation is to be subsumed into the ACC.
The effect of the amendments is to exempt the ACC from the operation of the Commonwealth spent convictions scheme in certain circumstances, in the same manner in which the NCA is exempted under current legislation. For example, the ACC may take spent convictions into account for the purpose of assessing prospective employees, and may disclose or record information relating to spent convictions in the discharge of its duties.
These Items amend the provisions of Division 1A of Part XII of the Customs Act, which deal with the use of listening devices in relation to narcotics offences, to replace the references to the NCA and its staff with references to the ACC and its staff.
The amendments will allow the ACC the same access to listening device powers relating to narcotics offences as the NCA has under the current provisions.
Customs Administration Act 1985
Under section 16 of the Customs Administration Act the CEO of the Australian Customs Service may, in certain circumstances, authorise the disclosure of information to Commonwealth agencies. "Commonwealth agency' is defined to specifically include the Australian Bureau of Criminal Intelligence (ABCI).
These Items amend section 16 to remove the reference to the ABCI as that organisation is to be subsumed by the ACC. The CEO may still authorise the disclosure of information to the ACC as it would fall within the definition of a "Commonwealth agency" without needing a specific reference.
Financial Transaction Reports Act 1988
These Items amend the definition section of the Financial Transaction Reports Act by replacing the references to the NCA and its staff with references to the ACC and its staff, and by deleting the reference to the ABCI.
Section 16 of the Financial Transaction Reports Act requires a cash dealer to report suspect transactions to the Director of AUSTRAC, and to provide further information upon the request of the Director, a relevant authority or an investigating officer. "Relevant authority" and "investigating officer" are defined in subsection 16(6) to include respectively the NCA and a member, or member of staff of the NCA.
These Items amend subsection 16(6) by replacing the references to the NCA and its staff, with references to the ACC, its staff and examiners. The effect of the amendments is to allow the communication of reports made by cash dealers in relation to suspect financial transactions to be made to the ACC.
This Item amends paragraph 26(1)(c) of the Financial Transaction Reports Act by replacing the reference to the NCA and its officers with references to the examiners, members of the staff of the ACC and the Chief Executive Officer of the ACC. This amendment will allow information communicated to an investigating officer under section 16 to be communicated to the ACC in the same manner as it can currently be communicated to the NCA.
These Items remove the reference to the ABCI, as an organisation to which the Director of AUSTRAC may conditionally release Financial Transaction Reports information, in section 27 of the Act.
These Items amend section 27 of the Financial Transaction Reports Act by replacing the references to the NCA and its staff, with references to the ACC, its staff and examiners. The effect of these amendments is to place the same restrictions on the communication of Financial Transaction Report information obtained by the ACC as currently apply to the NCA.
In addition, and in recognition of the existence and function of the Board, the amendments will enable the CEO to provide the Financial Transaction Report information to the Board of the ACC. The information must not, however, identify or be reasonably capable of identifying a person to whom the information relates. The CEO may also communicate the information to an examiner who is conducting an examination under the ACC Act and the examiner may divulge the information in the course of such an examination. This recognises the role of the CEO and the examiner in place of the generic reference to the NCA.
These Items remove the reference to the ABCI as a law enforcement agency, and a staff member of the ABCI as a law enforcement officer, for the purpose of section 27 of the Financial Transaction Reports Act.
The proposed amendments to section 6 of the Privacy Act replace references to the NCA and its staff with references to the ACC and its staff, consequential on the replacement of the NCA with the ACC.
The proposed amendments to section 7 of the Privacy Act will exempt the ACC from being defined as an agency for the purposes of the Act in the same way that the NCA is presently exempt.
The reference to the National Crime Authority Act 1984 in the note following subsection 18K(5) will be replaced with a reference to the Australian Crime Commission Act 2002.
The proposed amendment to section 70 will enable the Attorney-General to certify that the furnishing of information to the Privacy Commissioner as to the existence or non-existence of information or a document would be contrary to the public interest on the grounds that it would prejudice the proper performance of the functions of the ACC. Given the new functions of the ACC, this amendment will result in an incidental expansion of the type of information or documents that may be subject to a certificate.
Superannuation Industry (Supervision) Act 1993
Under the proposed amendment, a report made by an inspector investigating a superannuation entity under the Superannuation Industry (Supervision) Act may be given to the CEO of the ACC.
Taxation Administration Act 1953
Changes to the Taxation Administration Act facilitate the obtaining of information from the Commissioner of Taxation for the purposes of an investigation. Under section 3D of the amended legislation, the Commissioner is authorised to disclose information to the ACC for the purposes of a tax-related investigation. The legislation also authorises a Royal Commission or State Commissioner to disclose tax information to the ACC without breaching the Act. Further, the ACC may apply to a judge to have access to particular information that it believes may have been communicated to the Commissioner of Taxation. Section 3D also places restrictions on the distribution of information by the ACC. The powers available to the ACC mirror those previously available to the NCA.