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.