House of Representatives

Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Honourable Robert McClelland MP)

Schedule 10: Consequential amendments relating to the establishment of the Parliamentary Joint Committee on law Enforcement

Overview

Schedule 10 sets out consequential amendments that arise as a consequence of the Parliamentary Joint Committee on Law Enforcement Bill 2010 (PJC-LE Bill). The PJC-LE Bill will establish the Parliamentary Joint Committee on Law Enforcement (PJC-LE). The PJC-LE will replace the current Parliamentary Joint Committee on the Australian Crime Commission (PJC-ACC). It will have the same functions as the PJC-ACC in relation to the Australian Crime Commission (ACC), but will also have additional functions relating to review of the Australian Federal Police (AFP).

The consequential amendments will repeal the provisions in the Australian Crime Commission Act 2002 (ACC Act) that relate to the current PJC-ACC, and update any references to the PJC-ACC in other legislation to refer to the PJC-LE.

Schedule 10 also includes transitional provisions that will detail arrangements relating to the transition of the PJC-ACC to the PJC-LE.

Administrative Decisions (Judicial Review) Act 1977

Item 1: After paragraph (db) of Schedule 2

Section 13 of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) provides that reasons for a decision may be obtained in certain circumstances, upon application to the Federal Court or the Federal Magistrates Court. Schedule 2 of the ADJR Act outlines the classes of decisions that are not decisions to which section 13 applies.

This item will insert a new paragraph (dc) of Schedule 2 to the ADJR Act, which will provide that decisions under subsection 8(4) or 9(4) of the Parliamentary Joint Committee on Law Enforcement Act 2010 (PJC-LE Act) are not decisions to which section 13 applies. The effect of this item is that the Minister will not be required to provide reasons for decisions in relation to a determination under subsections 8(4) or 9(4) of the PJC-LE Act.

Anti Money-Laundering and Counter-Terrorism Financing Act 2006

Item 2: Paragraph 128(14)(c)

Section 128 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Anti-Money Laundering Act) outlines the circumstances when AUSTRAC information can be passed on by an official of a designated agency. Under section 5 of the Anti-Money Laundering Act, the ACC is included in the definition of a 'designated agency'.

This item will amend paragraph 128(14)(c) of the Anti-Money Laundering Act by substituting the reference in this paragraph to 'the Chair of the Board' with 'the Chief Executive Officer' (CEO). This change is necessary as the PJC-LE Bill places the obligation to comply with a request for information on the CEO of the ACC rather than the Chair of the Board of the ACC.

Item 3: Paragraph 128(14)(c)

This item will replace the reference to the PJC-ACC and subsection 59(6A) of the ACC Act with reference to the PJC-LE and subsection 8(1) of the PJC-LE Act. The effect of items 2 and 3 will be that under paragraph 128(14)(c), the CEO of the ACC may communicate AUSTRAC information to the PJC-LE, providing it is in a manner that does not enable the person to whom the AUSTRAC information relates to be identified.

Australian Crime Commission Act 2002

Item 4: Subsection 51(4) (at the end of the definition of 'relevant Act')

This item will amend the definition of 'relevant Act' in subsection 51(4) by adding the PJC-LE Act for the purpose of the secrecy provision in section 51 of the ACC Act. The effect of this new paragraph will be to ensure that the secrecy offence will not prevent the CEO of the ACC, the Chair of the ACC, a staff member of the ACC or an ACC examiner from providing information to the PJC-LE.

Item 5: Part III

This item will repeal Part III of the ACC Act, which sets out the legislative basis for the PJCACC. As the PJC-LE will replace the PJC-ACC, Part III of the ACC Act will no longer be necessary.

Item 6: Subsections 59(6A), (6B), (6C) and (6D)

Subsections 59(6A) to (6D) of the ACC Act provide for the furnishing of reports and information to the PJC-ACC. This item will repeal subsections 59(6A) to (6D), as similar provisions in relation to providing information to the PJC-LE are included in the PJC-LE Bill.

Item 7: Transitional - Committee on the Australian Crime Commission

This item will provide that the current PJC-ACC will continue in existence but be known, after the commencement of this item, as the PJC-LE. Members of Parliament who were elected to the PJC-ACC before the commencement of this item continue to be members of the PJC-LE. Similarly, any reviews being conducted by the PJC-ACC may continue to be conducted by the PJC-LE.

The transitional provisions will also provide that the Ombudsman is not required to give the PJC-LE a briefing about the AFP or the ACC's involvement in controlled operations under Part IAB of the Crimes Act 1914 before 31 December 2010, if the Ombudsman has already provided a briefing immediately before the commencement of the item. However, this will not preclude the Ombudsman from delivering such a briefing. This is intended to ensure the Ombudsman is not required to duplicate briefings to the Committee if the Ombudsman has already provided a briefing to the PJC-ACC on the ACC's involvement in controlled operations in the current calendar year. However, there remains flexibility for the Ombudsman and the PJC-LE to make arrangements for the Ombudsman to provide such a briefing if this would be appropriate.

Australian Federal Police Act 1979

Item 8: After paragraph 60A(2)(e)

Section 60A of the Australian Federal Police Act 1979 (AFP Act) provides that certain persons must not directly or indirectly make a record of or divulge or communicate any prescribed information to any other person except for certain persons provided for in subsection 60A(2).

This item will amend subsection 60A(2) of the AFP Act by adding a reference to the PJC-LE Act or regulations under that Act. This will ensure that the secrecy offence will not prevent AFP officers and others to whom the secrecy offence applies from providing information to the PJC-LE in accordance with its functions.

Item 9: Paragraph 60A(2)(f)

This item will amend subsection 60A(2) of the AFP Act to ensure that paragraph 60A(2)(f) covers the PJC-LE Act. This will ensure that the secrecy offence in section 60A of the AFP Act does not cover acts that are permitted or required by the PJC-LE Act or Regulations under the Act.

Proceeds of Crime Act 2002

Item 10: Subsection 179U(1)

This item will replace the reference to the PJC-ACC with a reference to the PJC-LE.