Australian Crime Commission Amendment Bill 2007

Date introduced:  18 September 2007

House:  The Senate

Portfolio:  Justice and Customs

Commencement:  There are various commencement dates, see the table on page 2 of the Bill.

Links: The relevant links to the Bill, Explanatory Memorandum and second reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/. When Bills have been passed they can be found at ComLaw, which is at http://www.comlaw.gov.au/.

Disclaimer

This Bill was introduced to the Senate on 18 September 2007 and passed the Senate on that same date after suspension of the relevant standing orders. The Bill is listed for debate in the House of Representatives Main Committee on 20 September 2007. The unusually short time-frames involved in the passage of the Bill have therefore precluded the writing of a more comprehensive Digest. This interim Digest has been produced to allow publication before the debate in the House of Representatives.

Purpose

The Australian Crime Commission Amendment Bill 2007 (the Bill) would amend the Australian Crime Commission Act 2002 (the ACC Act) to clarify that an ACC Examiner can record their reasons for issuing a summons or notice to produce documents before, at the same time as, or as soon as practicable after it has been issued. This is in response to a recent finding in the Victorian Supreme Court (ACC v. Brereton). [1] The Bill also proposes to amend the legislation to allow one examiner to issue a summons and then another to question the person.

Background

The Australian Crime Commission

The Australian Crime Commission (the ACC) (formerly the National Crime Authority but with enhanced intelligence functions) commenced operations on 1 January 2003. According to the latest Annual Report, the aim of the ACC is to ‘reduce the incidence and impact of serious and organised criminal activity on the Australian community’ (see section 7A of the ACC Act). [2]

To achieve this aim, the ACC has a range of special coercive powers such as the capacity to compel attendance at examinations, production of documents and the answering of questions (similar to a Royal Commission). The ACC also has an intelligence-gathering capacity and a range of investigative powers common to law-enforcement agencies, such as the power to tap phones, use surveillance devices and participate in controlled operations.

Key activities of the ACC, as approved by its board, include Special Intelligence Operations, Special Investigations, and Task Forces. Current Special Intelligence Operations include:

Current Special Investigations include:

For background on Project Wickenby, see Thomas John, 'Tax Laws Amendment (2007 Measures No. 1) Bill 2007', Bills Digest no. 123 2006–07, 26 March 2007.

Current Task Forces include the National Indigenous Violence and Child Abuse Intelligence Task Force, [3] and the Outlaw Motorcycle Gangs National Intelligence Taskforce. [4]

Current ACC reviews and legislative amendments

When considering the changes made by the Bill, it is worth noting that it has been introduced in the context of some major amendments to the ACC Act in other Bills before the Parliament, plus the imminent tabling of two major reviews.

The Parliamentary Joint Committee on the Australian Crime Commission presented its report Inquiry into the future impact of serious and organised crime on Australian society on 19 September 2007 (the September Report). The September Report reviews the operation of the ACC in responding to present and future needs.  In particular, the Committee noted problems with the current contempt arrangements. [5] This report follows the previous Review of the Australian Crime Commission Act 2002, which contains some interesting background on the scope and original rationale for the ACC examination powers. [6]

Mark Trowell QC is also conducting a Review of specific provisions of the National Crime Authority Act 1984 and the Australian Crime Commission Act 2002 for the Attorney-General's Department, a report that was due in April.

In the September Report, the Committee recommends that the issue of failure to cooperate with the Australian Crime Commission examination process be resolved immediately; and that the Commonwealth Government release the Trowell Report as a matter of priority. [7]

Bills before Parliament

Schedule 2 of the Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Bill 2007 (part of the NT Bills package) recently amended the definition of 'serious and organised crime' in the ACC mandate to include Indigenous violence or child abuse. The amendments in Division 2 would allow an ACC examiner to request or compel information, documents or things held by a state or territory agency that are relevant to an operation/investigation, provided an arrangement is in force between the Commonwealth and the state or territory.  Presumably this will allow the ACC to compel information from the NT Government. The Division 3 amendments would extend the term of appointment for ACC examiners from five to 10 years. [11]

ACC v Brereton

The measures in the Bill are in response to findings made by Justice Smith of the Victorian Supreme Court in ACC v Brereton [2007] VSC 297, which was handed down on 23 August 2007.

In this case, Melbourne lawyer Michael Brereton was issued a summons to appear before an ACC examiner on 6 March 2006. Mr Brereton attended to answer the summons but refused to be sworn or to make an affirmation.  Two days later he was charged by the Director of Public Prosecutions under section 30 of the ACC Act in respect of that refusal.

Section 30 provides that a person who does any of the following is liable for a penalty of five years imprisonment or a fine of 200 penalty units:

At his committal hearing on 10 November 2006, Mr Brereton issued a subpoena directed at the ACC calling for two categories of documents:

1. Any document pursuant to section 28(1A) of the ACC Act which records or evidences that the examiner was satisfied that it was reasonable to issue an examination summons
2. Any document pursuant to section 28(1A) of the ACC Act which records the reasoning for the issue of the examination summons on Michael Brereton.

Section 28(1) provides:

At the committal proceedings on 10 November, counsel for the ACC applied to have both subpoenas struck out as an abuse of process on the grounds that they served no legitimate forensic purpose and constituted a mere fishing expedition. The Magistrate rejected the application to have the subpoena struck out. The Magistrate found:

The ACC appealed this decision to the Victorian Supreme Court.

On 23 August 2007, Justice Smith handed down his decision, dismissing the appeal. Justice Smith found:

It is unclear what impact this legislation will have on Brereton's particular case.  If Brereton is summoned again to attend an ACC examination, a refusal on his part to swear the oath this time may lead to a prosecution under section 30 outlined above.  The constitutional validity of the Bill could be raised if the original summons is relied upon by the ACC.

Contempt issues

Media reports place Brereton's conduct in this case in the broader context of attempting to block access to client files and generally failing to comply with Federal Court orders relating to Wickenby investigations by the ACC. [15] If the ACC does not appeal, Mr Brereton will face a committal hearing in the Magistrate's Court for refusing to swear an oath.  He faces separate charges laid by the Australian Securities and Investments Commission (ASIC) on another matter.

The Parliamentary Joint Committee on the Australian Crime Commission has noted ongoing problems with the operation of section 30.

A Senate Estimates Committee heard evidence from the ACC on 25 May 2006 that 35 people preferred to be prosecuted under the ACC Act and face a jail term rather than comply with an ACC examination. [17]

Position of significant interest groups/press commentary

In the short time between tabling of the Bill and its passage through the Parliament only the Law Council of Australia has been reported as commenting on the Bill. The Law Council of Australia has been reported as being critical of the Bill, particularly in regard to its retrospective application, and impact on the right to silence. [18]

Political parties views

The ALP supported the Bill in its passage through the Senate on 18 September 2007, while the Australian Democrats and the Australian Greens opposed the Bill. All three of these parties commented on the process by which the Bill is being passed. The Bill was introduced in the Senate on Tuesday 18 September and debated several hours later and passed. While the ALP supported the Bill, Senator Ludwig stated that it did not give the Bill unqualified support. [19] Senator Stott Despoja for the Australian Democrats was particularly critical of the Parliamentary process:

The Minister has indicated that the Bill will be referred to the Parliamentary Joint Committee on the Australian Crime Commission, but this will not occur prior to debate. [21]

Main provisions

Interchange of examiners

Items 1, 3, 4 and 6 seek to amend sections 28 and 29 in the ACC Act to allow one ACC examiner to issue a summons or notice to produce, and then a second examiner to actually question the person. Under the current legislation, the same examiner must issue a summons and then question that person. The Explanatory Memorandum states that this is problematic where the examiner who issued the summons or notice is on leave, ill, or otherwise unavailable.

Note that these proposed changes are not related to the ACC v Brereton case.

Recording of reasons for a summons

Existing subsections 28(1A) and 29(1A) of the ACC Act provide that an examiner must record in writing the reasons for the issue of the summons or notice. As outlined above, in ACC v Brereton Justice Smith has found that the reasons must be recorded prior to the issuing of the summons. The Explanatory Memorandum states that finding is problematic:

Item 2 proposes to add to subsection 28(1A) the clarification that the record is to be made

(a) before the issue of the summons; or

(b) at the same time as the issue of the summons; or

(c) as soon as practicable after the issue of the summons.

Item 7 adds the same clarification to subsection 29(1A) of the Act regarding notices to produce.

Failure to comply with technical requirements

Item 5 proposes to add new subsection 28(8), which will provide that a failure to comply with the requirements for issuing summons as set out in subsections 28(1A), 28(2), and 29A, does not affect the validity of a summons issued under subsection 28(1). The Explanatory Memorandum states that the provision does not apply to ‘substantive procedural obligations’, such as the requirements under subsection 28(1A) that the examiner must be satisfied that it is reasonable in all the circumstances to issue a summons. [23]

Retrospective application

Item 10 provides that a summons issued under subsection 28(1) of the ACC Act prior to the commencement of item 10, [24] and which would be invalid because the record as required by subsection 28(1A) of that Act was made after the summons was issued, is valid, and taken to always have been valid. Item 12 applies to notices to produce in the same way that item 10 relates to summons.

The Government concedes that the retrospective application of these provisions could be detrimental to persons who might otherwise have had scope to challenge the validity of a summons or notice to produce. However, the Government sees the changes as rectifying a 'technicality' and states:

The Law Council of Australia has been particularly critical of the retrospective application of the legislation. They are quoted as stating:

Endnotes