EXPLANATORY STATEMENT
Select Legislative Instrument 2006 No. 219
Issued by the authority of the Minister for Justice and Customs
Subject: Australian Crime Commission Act 2002
Australian Crime Commission Amendment Regulations 2006 (No. 3)
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 currently set out the functions, duties and powers conferred by Victorian, New South Wales and Tasmanian legislation that the Commonwealth has consented to.
The proposed Regulations extend the Commonwealth’s consent to the conferral of duties, functions and powers under prescribed laws of Western Australia, the Northern Territory and the Australian Capital Territory.
Details of the proposed Regulations are set out in the Attachment.
The Act specifies no conditions that need to be met before the power to make the proposed Regulations may be exercised.
The proposed Regulations would commence on the day after registration.
The proposed Regulations would be a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Minute recommends that Regulations be made in the form proposed.
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.
Authority: Section 62 of the Australian Crime Commission Act 2002.
Attachment
Details of the proposed Australian Crime Commission Amendment Regulations 2006 (No. 3)
Regulation 1 – Name of Regulations
This regulation provides that the title of the Regulations is the Australian Crime Commission Amendment Regulations 2006 (No. 3).
Regulation 2 – Commencement
Regulation 2 provides for the Regulations to commence on the day after registration.
Regulation 3 – Amendment of the Australian Crime Commission Regulations 2002
This regulation provides that the Australian Crime Commission Regulations 2002 (the Principal Regulations) are amended as set out in Schedule 1.
Schedule 1 Amendments
Schedule 1 to the Regulations makes amendments to Schedules 3, 4 and 5 to the Principal Regulations.
Schedule 3 to the Principal Regulations prescribes the conferral of duties, functions and powers on certain persons and bodies such as the Chair of the Board of the Australian Crime Commission (the ACC), by State laws. Schedule 4 to the Principal Regulations prescribes the conferral of duties, functions and powers on the ACC by State laws and Schedule 5 to the Principal Regulations prescribes the conferral of duties, functions and powers on a Federal Court Judge or Federal Magistrate by State laws.
Item [1]
This item inserts a new Part 4 - Laws of Western Australia into Schedule 3 to the Principal Regulations providing the Commonwealth’s consent to the conferral of functions, duties and powers on the Chair of the Board of the ACC or a member of staff of the ACC by Western Australian legislation in relation to the Surveillance Devices Act 1998 (WA) and the Witness Protection (Western Australia) Act 1996. Among other things, these functions, duties and powers provide a member of staff of the ACC with authority to apply for a surveillance device warrant, and take action in accordance with the warrant to use surveillance devices. These amendments also confer a duty on a staff member of the ACC to comply with requirements for making applications for a warrant and a duty to deliver a written report to a Judge in relation to the use of a surveillance device. These functions, duties and powers also provide the Chair of the Board of the ACC with authority to make arrangements with the Commissioner of Police of Western Australia in relation to the State Witness Protection Program and to apply to the Supreme Court of Western Australia for a new identity order.
Item [2]
This item inserts a new Part 7 - Laws of the Australian Capital Territory into Schedule 3 to the Principal Regulations providing the Commonwealth’s consent to the conferral of functions, duties and powers on the Chair of the Board of the ACC or a member of staff of the ACC by Australian Capital Territory legislation in relation to the Spent Convictions Act 2000 and the Witness Protection Act 1996. Among other things, these functions, duties and powers provide a member of staff of the ACC with authority to make available to another law enforcement agency or court, information about a spent conviction, and the power to enter into arrangements with the Chief Police Officer of the Australian Capital Territory in relation to witness protection.
This item also inserts a new Part 8 - Laws of the Northern Territory into Schedule 3 to the Principal Regulations providing the Commonwealth’s consent to the conferral of functions, duties and powers on the Chair of the Board of the ACC or a member of staff of the ACC by Northern Territory legislation in relation to the Surveillance Devices Act and the Witness Protection (Northern Territory) Act. Among other things, these functions, duties and powers provide a member of staff of the ACC with authority to attach, install, use, maintain or retrieve a listening device or an optical surveillance device in a public place. These amendments also confer a duty on a staff member of the ACC to apply for and be issued a warrant or an urgent authorisation to attach, install, use, maintain or retrieve a data surveillance device. These functions, duties and powers also provide the CEO of the ACC with authority to request that a witness or family member be included in the Territory Witness Protection Program and a duty to comply with the requirements for making an application to the Supreme Court of the Northern Territory for an order authorising the Registrar to make a new entry in the Register.
Item [3]
This item inserts a new Part 4 - Laws of Western Australia into Schedule 4 to the Principal Regulations providing the Commonwealth’s consent to the conferral of functions, duties and powers on the ACC by Western Australian legislation, including the power to receive confidential information under the First Home Owner Grant Regulations 2000 and duties in relation to the keeping and destroying of records or reports obtained by the use of a surveillance device under a warrant or an emergency authorisation in a secure place under the Surveillance Devices Act 1998, and the Surveillance Devices Regulations 1999.
This item also inserts a new Part 7 - Laws of the Australian Capital Territory into Schedule 4 to the Principal Regulations providing the Commonwealth’s consent to the conferral of functions, duties and powers on the ACC by Australian Capital Territory legislation, including the power to authorise a person to receive information under the Gambling and Racing Control Act 1999, the Spent Convictions Act 2000 and the Taxation Administration Act 1999.
Item [4]
This item inserts a new Part 4 - Laws of Western Australia into Schedule 5 to the Principal Regulations providing the Commonwealth’s consent to the conferral of power on a Federal Court Judge by the Australian Crime Commission (Western Australia) Regulations 2005 to give a direction in relation to service of a summons.
Item [5]
This item would omit ‘who is a senior officer’ from all items in Part 2 of Schedule 3 in order to provide drafting consistency across the Principal Regulations.