Senate

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.