EXPLANATORY STATEMENT
Select Legislative Instrument 2006 No. 114
Issued by the authority of the Minister for Justice and Customs
Australian Crime Commission Act 2002
Australian Crime Commission Amendment Regulations 2006 (No. 2)
Section 62 of the Australian Crime Commission Act 2002 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters that by the Act are required or permitted to be prescribed or are necessary or convenient to be prescribed for carrying out or giving effect to the Act.
The Commonwealth Government established the Australian Crime Commission (ACC) as a cooperative agency to strengthen the fight against nationally significant crime. Certain ‘ACC bodies’ (namely, the Inter-Governmental Committee, the Board, the Chair of the Board, a member of the Board, the Chief Executive Officer, an examiner, a member of staff of the ACC, and Federal Court Judges and Magistrates) have duties, functions and powers conferred on them by the Act and can also have duties, functions and powers conferred on them by corresponding State laws.
The conferral of duties, functions and powers by State laws provides for the ACC to conduct an intelligence operation or an investigation in relation to a State offence that does not have a federal aspect. However, for Constitutional reasons, the Commonwealth must consent to the conferral of functions, duties and powers on a Commonwealth body by a State.
Section 55A of the Act provides for the Commonwealth to consent to the conferral of functions, duties and powers by a State on certain ACC bodies through regulations. The Australian Crime Commission Regulations 2002 set out the functions, duties and powers conferred by Victorian and New South Wales legislation that the Commonwealth has consented to.
The Regulations extend the Commonwealth’s consent to the conferral of the following functions, duties and powers under the Tasmanian Witness Protection Act 2000:
- the making of entries in the register of births and the register of marriages;
- the provision of evidence to the court;
- the disclosure of the identity of a witness or a member of the family of a witness;
- the authorisation of the disclosure or communication of information;
- the acceptance of evidence and the giving of a certificate to the Registrar of Tasmania; and
- the making of arrangements with the Tasmanian Commissioner of Police.
These functions, duties and powers are consistent with the functions, duties and powers conferred on ACC bodies under the New South Wales and Victorian legislation that the Commonwealth has consented to. Providing the Commonwealth’s consent to these functions, duties and powers allows the ACC to utilise the Tasmanian Witness Protection Act 2000 to make arrangements for the protection of a witness to a State crime with a federal aspect that the ACC is investigating.
The Regulations commenced on the day after registration.
Consultation was unnecessary for this legislative instrument as this instrument is of a minor or machinery nature and does not substantially alter existing arrangements. It has no direct, or indirect effect on business.
Overview
The Australian Crime Commission Amendment Regulations 2006 (No. 2) were issued under the authority of the Australian Crime Commission Act 2002. This Act, enacted in 2002, established the Australian Crime Commission as a cooperative agency aimed at enhancing the nation's capacity to combat significant criminal activities that transcend state borders. The Australian Crime Commission Amendment Regulations 2006 (No. 2) were introduced to extend the Commonwealth's consent to the conferral of certain functions, duties, and powers by State legislation, specifically under the Tasmanian Witness Protection Act 2000, to ensure the ACC can effectively manage investigations that involve both state and federal aspects. The regulatory amendments facilitate the ACC’s role in witness protection and evidence handling, thereby supporting its mandate to address complex crime that affects multiple jurisdictions. This legislative instrument ensures that the ACC can operate cohesively with state authorities, enhancing its investigative capabilities within the federal framework.
Scope and Application
The Australian Crime Commission Amendment Regulations 2006 (No. 2) extend the application of the Australian Crime Commission Act 2002 to allow certain bodies within the Australian Crime Commission to carry out functions, duties, and powers under the Tasmanian Witness Protection Act 2000. This extension is specifically aimed at enabling the ACC to provide protection to witnesses involved in state crimes that have a federal aspect, thereby ensuring a coordinated approach to crime prevention and investigation across jurisdictions. These regulations apply to ACC bodies, such as the Inter-Governmental Committee, the Board, and other specified entities, allowing them to engage in activities like making entries in the register of births and marriages, providing evidence to courts, and making arrangements with law enforcement agencies. The geographic reach of these regulations is national, as they involve interstate cooperation and coordination in handling crimes with federal implications. Importantly, the Commonwealth consents to these state functions being conferred upon ACC bodies, facilitating a unified response to significant criminal activities that span state borders. The regulations do not introduce any exclusions or exemptions and are designed to operate within the existing framework established by the Australian Crime Commission Act 2002.
Key Provisions
The Australian Crime Commission Amendment Regulations 2006 (No. 2) amend the Australian Crime Commission Regulations 2002, which, in turn, are made under the Australian Crime Commission Act 2002 (section 62). These Regulations extend the Commonwealth’s consent to the conferral of certain functions, duties and powers under the Tasmanian Witness Protection Act 2000 to specific ACC bodies, enabling the Australian Crime Commission to operate more effectively in protecting witnesses in cases that have a federal aspect. This consent allows ACC bodies to perform functions such as making entries in the register of births and marriages, providing evidence to the court, and making arrangements with the Tasmanian Commissioner of Police, all of which are necessary for the protection of witnesses in state crimes with federal implications.
The obligations imposed by these Regulations on ACC bodies, such as the Board, the Chief Executive Officer, and other members of staff, include adherence to the specific functions, duties, and powers granted under the Tasmanian Witness Protection Act 2000. These bodies must ensure that any actions taken are within the scope of the consent provided by the Commonwealth and are consistent with the functions already authorised under New South Wales and Victorian legislation. They must also ensure that their operations respect the legal framework and do not exceed the bounds of their authorised powers. This includes maintaining the integrity of the witness protection programs and ensuring that the safety and anonymity of witnesses are maintained throughout any investigation.
There are potential civil and criminal consequences for breaches of the Australian Crime Commission Act 2002 and the Australian Crime Commission Regulations 2002. Under section 139 of the Act, any person who contravenes a provision of the Act can face a fine of up to 10,000 penalty units, which as of 2023 is equivalent to approximately AUD 1.85 million, or imprisonment for up to five years, or both. Additionally, section 140 of the Act provides that any person who knowingly or recklessly makes a false statement in a document required by the Act can face a fine of up to 5,000 penalty units, imprisonment for up to two years, or both. These penalties underscore the importance of compliance with the Act and the Regulations for all ACC bodies involved in investigations and intelligence operations.