Australian Crime Commission Establishment (Transitional Provisions) Regulations 2003

Administered by Department of Home Affairs

Legislation au F2003B00013 Regulations Not in force Legislative Instrument

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Australian Crime Commission Establishment (Transitional Provisions) Regulations 2003 2003 No. 4

EXPLANATORY STATEMENT

Statutory Rules 2003 No. 4

Issued by the Authority of the Minister for Justice and Customs

Subject: Australian Crime Commission Establishment Act 2002

Australian Crime Commission Establishment (Transitional Provisions) Regulations 2003

The Australian Crime Commission Establishment Act 2002 (ACCE Act) commenced on 1 January 2003 and amended the National Crime Authority Act 1984 (NCA Act) and a number of other Commonwealth Acts to replace the National Crime Authority (NCA), Australian Bureau of Criminal Intelligence and the Office of Strategic Crime Assessments with the Australian Crime Commission (ACC).

Item 326 of Schedule 1 of the ACCE Act empowers the Governor-General to make regulations prescribing matters of a transitional nature (including prescribing any savings or application provisions) arising out of the amendments made by that Schedule. Item 226 of Schedule 2 of the ACCE Act also empowers the GovernorGeneral to make regulations prescribing matters of a transitional nature (including prescribing any savings or application provisions) arising out of the amendments made by that Schedule. Schedule 2 amends a number of Commonwealth Acts, including the Telecommunications (Interception) Act 1979 (TI Act).

Both items 326 and 226 also provide that despite subsection 48(2) of the Acts Interpretation Act 1901, regulations made under those items within 1 year of commencement (that is, before 31 December 2003) may commence on a day earlier than the day on which they are made (but not earlier than the commencement of the items (that is, 1 January 2003)).

The purpose of the Regulations is to provide for the transition from the NCA to the ACC of the power to vary or revoke a confidentiality order made under the NCA Act, and warrants issued under the TI Act.

Details of the Regulations are set out in the Attachment.

The Regulations commenced retrospectively on 1 January 2003 to ensure that there is a seamless transition from the NCA to the ACC.

Retrospective commencement is particularly relevant to the TI warrants where there is a need to ensure that warrants served on a telecommunication carrier have continuous validity so that any information received from the interception between 1 January 2003 and 7 January 2003 (inclusive) is legally obtained information. The Regulation is limited to the period of 1 January 2003 to 7 January 2003 as the process of revoking warrants issued to the NCA and reissuing them to the ACC was completed by 7 January 2003 (20 were reissued on 2 January, 13 on 3 January, 26 on 6 January and 1 on 7 January). However, it is essential that the proposed Regulations operate retrospectively to cover the intervening period.

The retrospective commencement of the CEO's powers to vary or revoke a confidentiality order is also necessary to ensure the validity of any such variance or revocation that occurred after 1 January 2003 and before the making of the Regulations. As a matter of practice the CEO did not propose to make any such variations until the Regulations had been made, but at the time of drafting the Regulations it was necessary to cover the circumstance that, as a matter of justice, such a variation or revocation may be necessary before making the Regulations.

The details of the Regulations are set out in the Attachment.

ATTACHMENT

Details of the Australian Crime Commission Establishment (Transitional Provisions) Regulations 2003

Regulations 1, 2 and 3

Regulations 1, 2 and 3 set out respectively the name of the Regulations, the commencement date and the definition of certain terms.

Regulation 4

Regulation 4 provides that the Chief Executive Officer (CEO) of the ACC may vary or revoke a confidentiality direction that the NCA or a hearing officer has made before 1 January 2003. Such an order may have been made during the course of a hearing conducted by the NCA or a hearing officer when it is necessary to ensure the protection of the evidence given or the identity of any witness. The NCA or a hearing officer must have made such an order if failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been, or may be, charged with an offence.

Subsections 25(9A) and 25A(13) of the NCA Act enabled the Chair of the NCA to vary or revoke such a direction provided that to do so did not prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been or may be charged with an offence.

Regulation 4 ensures that the CEO may vary or revoke a confidentiality direction made before 1 January 2003 in the same way that the Chair of the NCA could have varied or revoked the direction and commenced retrospectively on 1 January 2003.

Regulation 5

Proposed regulation 5 would deem a warrant issued to the NCA under Part VI of the Telecommunications (Interception) Act 1979 before 31 December 2002 to be a warrant issued to the ACC on 1 January 2003 and authorise the ACC to intercept communications from 1 January 2003 until 7 January 2003 or the date on which the warrant expires, whichever occurs first. Proposed regulation 5 would commence retrospectively on 1 January 2003.

Regulation 6

Item 324 of Schedule 1 of the ACCE Act provides that any evidence (including oral evidence in any form), records, documents, information or other things (including those in electronic form) that were in the possession of the NCA immediately before the commencement time are to be transferred to the ACC. Regulation 6 is an avoidance of doubt provision to confirm that the term "information" in Item 324 applies to 'lawfully obtained information' or 'designated warrant information' within the terms of sections 6E and 6EA of the TI Act. This enables information obtained by the NCA pursuant to TI warrants before 1 January 2003 to transfer to the ACC.

 

Overview

The Australian Crime Commission Establishment (Transitional Provisions) Regulations 2003 were enacted to facilitate the transition from the National Crime Authority (NCA) to the Australian Crime Commission (ACC), which was established by the Australian Crime Commission Establishment Act 2002. This legislative change aimed to streamline the transfer of powers, responsibilities, and assets from the NCA to the ACC to ensure continuity in the fight against organised crime in Australia. The Regulations were made under the authority of the Minister for Justice and Customs, enabling the ACC to assume the functions previously held by the NCA, including the power to vary or revoke confidentiality orders and warrants for telecommunications interception. The Regulations were designed to address any transitional issues that might arise during the shift from the NCA to the ACC, ensuring that the newly formed commission could operate effectively from its inception without any legal or procedural interruptions. The policy objective was to provide a seamless transition to maintain the integrity and effectiveness of ongoing investigations and operations.

Scope and Application

The Australian Crime Commission Establishment (Transitional Provisions) Regulations 2003 apply to the transition of powers and functions from the National Crime Authority (NCA) to the Australian Crime Commission (ACC) that was effected by the Australian Crime Commission Establishment Act 2002. The regulations address the continuity of certain powers and responsibilities during the transition period, ensuring that there are no legal gaps or interruptions in the administration of justice. They specifically apply to the transfer of the power to vary or revoke confidentiality orders made under the National Crime Authority Act 1984 and the validity and continuity of warrants issued under the Telecommunications (Interception) Act 1979. The regulations cover the period from 1 January 2003 to 7 January 2003, during which the transition was completed, and they ensure the validity of any actions taken by the NCA during this period under the ACC. The transitional measures are designed to maintain the legal integrity of ongoing investigations and communications interception activities. The regulations apply to entities such as the Chief Executive Officer of the ACC, telecommunication carriers, and other bodies involved in the administration of justice and law enforcement within the Commonwealth of Australia. They do not extend to state or territory entities or local law enforcement bodies, which operate under their respective jurisdictions. The scope of the regulations is limited to the transitional provisions specified in the Australian Crime Commission Establishment Act 2002, and they do not introduce new powers or responsibilities beyond those required for the smooth transition of authority from the NCA to the ACC. The regulations operate within the federal framework and do not provide for any exclusions, exemptions, or thresholds beyond what is necessary to facilitate the transition.

Key Provisions

The Australian Crime Commission Establishment (Transitional Provisions) Regulations 2003 (Regulations) serve to facilitate the transition from the National Crime Authority (NCA) to the Australian Crime Commission (ACC), particularly focusing on the continuity of powers and responsibilities. Regulation 4 allows the Chief Executive Officer (CEO) of the ACC to vary or revoke confidentiality orders made by the NCA or a hearing officer before 1 January 2003. This ensures that any such orders can be altered or revoked in the same manner as the Chair of the NCA could have done, with the Regulations commencing retrospectively on 1 January 2003. Regulation 5 makes it so that any warrant issued to the NCA under the Telecommunications (Interception) Act 1979 (TI Act) before 31 December 2002 is deemed to be issued to the ACC from 1 January 2003, authorising the ACC to intercept communications until 7 January 2003 or the warrant's expiration, whichever comes first. Regulation 6 clarifies that the term "information" in the ACCE Act includes lawfully obtained information or designated warrant information, thus enabling the transfer of such information from the NCA to the ACC. The Regulations impose specific obligations on the ACC and its CEO. They mandate that the CEO can exercise the same powers over confidentiality orders that the NCA Chair could, ensuring no disruption in the protection of sensitive information. Additionally, the ACC must assume the validity of any telecommunications warrants issued to the NCA before the transition, allowing for uninterrupted interception activities. Furthermore, the ACC is responsible for receiving and managing all information held by the NCA before the transition date, ensuring continuity in handling sensitive and lawfully obtained data. Failure to comply with the provisions of these Regulations could result in significant legal consequences. While the Regulations themselves do not explicitly state penalties for non-compliance, breaches of the underlying Acts (such as the NCA Act and the TI Act) could incur penalties. For instance, unauthorised interception of communications under the TI Act can result in substantial fines and imprisonment. Similarly, improper handling of confidential information could lead to legal challenges and civil penalties for any harm caused by such breaches. The seamless transition enabled by these Regulations is crucial to avoid any legal vacuum or disruption in the enforcement activities related to criminal investigations and intelligence gathering.

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Area of Law
Criminal Law
Instrument
Regulation
Concepts
Commencement Provisions
Regulatory Standards
Reporting & Disclosure Obligations
Enforcement Powers
Transitional Provisions

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.