EXPLANATORY STATEMENT
Select Legislative Instrument 2007 No. 289
Issued by the authority of the Minister for Justice and Customs
Subject - Australian Crime Commission Act 2002
Australian Crime Commission Amendment Regulations 2007 (No. 1)
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 required or permitted by this Act to be prescribed, or 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 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, Tasmanian, Western Australian, Northern Territory and Australian Capital Territory legislation that the Commonwealth has consented to.
The Regulations extend the Commonwealth’s consent to the conferral of duties, functions and powers under prescribed laws of Queensland and South Australia.
Further minor amendments ensure that the Principal Regulations reflect recent changes to State laws and also implement revisions and additions to the list of bodies with which the ACC may share information.
Another minor amendment is consequential on recent amendments to the Act by the Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007. Prior to these amendments, much of the Act was based upon the concept of 'serious and organised crime'. In order to allow operational activities with respect to indigenous violence and/or child abuse as well as serious and organised crime, the amendments to the Act involved introducing the concept of 'relevant crime', which is defined to encompass this additional category of crime. The Principal Regulations need to be amended to reflect these changes.
Details of the Regulations are set out in the Attachment.
The Act specifies no conditions that need to be met before the power to make the Regulations may be exercised.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Regulations would commence on the day after registration.
Consultation regarding these regulations was undertaken with the Australian Federal Police and the Australian Crime Commission.
ATTACHMENT
Details of the proposed Australian Crime Commission Amendment Regulations 2007 (No. 1)
Commonwealth legislation can only confer duties, functions and powers on the Australian Crime Commission (the ACC) to conduct an intelligence operation or investigation in relation to Commonwealth offences, or State and Territory offences that have a federal aspect. In order to conduct intelligence operations or investigations in relation to State offences that do not have a federal aspect, the ACC must rely on State legislation to confer the duties, functions and powers. The Commonwealth must then consent to that conferral (to the extent that it is constitutionally possible to do so).
Regulation 8A of the Australian Crime Commission Regulations 2002 (the Principal Regulations) provides that consent to the conferral of duties, functions and powers by State laws is set out in Schedules 3 to 5.
The proposed Regulations would provide the Commonwealth’s consent to the conferral of duties, functions and powers under relevant State laws for South Australia and Queensland, not previously provided in the Principal Regulations.
Further proposed minor amendments would ensure that the Principal Regulations reflect recent changes to State laws and also implement revisions and additions to the list of bodies with which the ACC may share information.
Another proposed minor amendment to the Principal Regulations reflects recent amendments to the Australian Crime Commission Act 2002 (the Act) by the Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007.
Regulation 1 – Name of Regulations
This regulation provides that the title of the Regulations is the Australian Crime Commission Amendment Regulations 2007 (No. 1).
Regulation 2 – Commencement
This regulation provides for the Regulations to commence on the day after they are registered.
Regulation 3 – Amendment of 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
Item [1] – Schedule 1, Form 1
Amendments to the Act were recently made by Schedule 2 to the Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007 (the NT National Emergency Response Act). Prior to these amendments, much of the Act was based upon the concept of 'serious and organised crime'. In order to allow operational activities with respect to indigenous violence and/or child abuse as well as serious and organised crime, the amendments to the Act involved introducing the concept of 'relevant crime', which is defined to encompass this additional category of crime.
Schedule 1 to the Principal Regulations contains Form 1, the form used for the issuing of search warrants under section 22 of the Act. Item [1] will replace the reference in Schedule 2 of Form 1 to ‘serious and organised crime’ with the phrase ‘relevant crime’, in order to reflect the terminology employed in the Act following the amendments made by the NT National Emergency Response Act.
Items [2] and [3] – Schedule 3, Part 1
The Law Enforcement (Controlled Operations) Act 1997 (NSW) has recently been amended by the Law Enforcement (Controlled Operations) Amendment Act 2006 (NSW). As a result, minor consequential amendments are required.
Item [2] will remove Item 119 of Part 1 of Schedule 3 to the Principal Regulations, as it is no longer needed.
Item [3] will replace the reference in Item 130 of the Principal Regulations to a ‘Member of the staff of the ACC’ with ‘CEO’.
Item [4] – Schedule 3, Part 3
Item [4] will insert a new Part 3 into Schedule 3 to the Principal Regulations, entitled ‘Laws of Queensland’. Schedule 3 provides for the Commonwealth’s consent to particular duties, functions and powers conferred on certain persons and bodies by State laws. Proposed Part 3 sets out the conferral of duties, functions and powers under Queensland law to which the Commonwealth consents. Proposed Part 3 consists of a table, consistent with the rest of the existing Schedule 3, setting out the relevant Queensland law, provision, duty, function or power and the person or body on whom the duty, function or power is conferred. The nature of the duties, powers and functions is summarised in the table. The nature of the duties, functions and powers consented to are consistent with the nature of the duties, functions and powers consented to from other States and Territories in existing provisions of the Principal Regulations.
Item [5] – Schedule 3, Part 5
Item [5] will insert a new Part 5 into Schedule 3 to the Principal Regulations, entitled ‘Laws of South Australia’. Proposed Part 5 sets out the conferral of duties, functions and powers under South Australian law to which the Commonwealth consents. Proposed Part 5 consists of a table, consistent with the rest of the existing Schedule 3, setting out the relevant South Australia law, provision, duty, function or power and the person or body on whom the duty, function or power is conferred. The nature of the duties, powers and functions is summarised in the table. The nature of the duties, functions and powers consented to are consistent with the nature of the duties, functions and powers consented to from other States and Territories in existing provisions of the Principal Regulations.
Item [6] – Schedule 3, Part 6, Item 601
This item will amend Item 601 of Part 6 of Schedule 3 to the Principal Regulations to ensure that the particular provision which Item 601 refers to under the Witness Protection Act 2000 (Tas) is accurately reflected. Subsection 7(1) of the Witness Protection Act 2000 (Tas) refers to the power under an authorising court order to cause the Registrar to make an entry in the register of births or register of marriages. Item [6] amends Item 601 by inserting the words ‘authorising court order’.
Item [7] – Schedule 4, Part 3
Item [7] will insert a new Part 3 into Schedule 4 to the Principal Regulations, entitled ‘Laws of Queensland’. Schedule 4 provides for the Commonwealth’s consent to particular duties, functions and powers conferred on the ACC by State laws. Proposed Part 3 sets out the conferral of duties, functions and powers under Queensland law to which the Commonwealth consents. Proposed Part 3 consists of a table, consistent with the rest of the existing Schedule 4, setting out the relevant Queensland law, provision and duty, function or power conferred on the ACC. The nature of the duties, powers and functions is summarised in the table. The nature of the duties, functions and powers consented to are consistent with the nature of the duties, functions and powers consented to from other States and Territories in existing provisions of the Principal Regulations.
Item [8] – Schedule 4, Part 5
Item [8] will insert a new Part 5 into Schedule 4 to the Principal Regulations, entitled ‘Laws of South Australia’. Proposed Part 5 sets out the conferral of duties, functions and powers on the ACC under South Australian law to which the Commonwealth consents. Proposed Part 5 consists of a table, consistent with the rest of the existing Schedule 4, setting out the relevant South Australian law, provision and duty, function or power conferred on the ACC. The nature of the duties, powers and functions is summarised in the table. The nature of the duties, functions and powers consented to are consistent with the nature of the duties, functions and powers consented to from other States and Territories in existing provisions of the Principal Regulations.
Items [9] – [12] – Schedule 6, Part 1
Items [9] – [12] will amend Part 1 of Schedule 6 to the Principal Regulations. Schedule 6 sets out the agencies and bodies to which information may be given by the ACC. Part 1 of Schedule 6 sets out the Commonwealth agencies and bodies to which information may be given.
Item [9] will insert Item 101A into Part 1 of Schedule 6. Item 101A allows for the provision of information by the ACC to the Australian Commission for Law Enforcement Integrity (the ACLEI). The ACLEI was recently established under the Law Enforcement Integrity Commissioner Act 2006, with the purpose of assisting the Integrity Commissioner in the performance of his or her functions. This includes the investigation of corruption issues in the ACC, Australian Federal Police and any other Commonwealth Agency that has law enforcement functions and also the general collection and analysis of information. From time to time it will be appropriate for the ACC to provide the ACLEI with information and intelligence to assist the ACLEI in the performance of its functions.
Item [10] will insert Item 104A into Part 1 of Schedule 6. Item 104A allows for the provision of information by the ACC to the Australian Defence Force. While the Department of Defence is included as a body in Part 1 to which the ACC can provide information (at Item 118), instances have arisen recently where it would be desirable for the ACC to be able to provide information directly to the Australian Defence Force.
Item [11] will insert Item 119B into Part 1 of Schedule 6. Item 119B allows for the provision of information by the ACC to the Department of Finance and Administration. This will allow the provision of operational information by the ACC to the Department of Finance and Administration in relation to issues such as applications for funding and project reporting.
Item [12] will amend existing Item 121. Item 121 allows for the provision of information by the ACC to the Department of Immigration and Multicultural and Indigenous Affairs. Item 121 needs to be amended to reflect the Department’s change in name, to the Department of Immigration and Citizenship.
Item [13] – Schedule 6, Part 1, item 122
Item [13] will amend existing Item 122. Item 122 allows for the provision of information by the ACC to the Department of the Environment and Heritage. Item 122 needs to be amended to reflect the Department’s change in name, to the Department of the Environment and Water Resources.
Item [14] – Schedule 6, Part 2, item 201A
Part 2 of Schedule 6 to the Principal Regulations sets out the New South Wales agencies or bodies to which information may be given by the ACC. Item [12] will insert a new Item 201A into Part 2 of Schedule 6. Item 201A allows for the provision of information by the ACC to the Council of the City of Sydney. The Council of the City of Sydney is a council established in accordance with the Local Government Act 1993 (NSW). Circumstances have arisen in which information held by the ACC can assist the Council in the performance of its functions.