Bills Digest No. 65, 2019–20
PDF version [590KB]
Karen Elphick
Law and Bills Digest Section
Cat Barker
Foreign Affairs and Defence Section
4 December 2019
This Bill was introduced on 28
November 2019 and is scheduled for debate in the Senate on 4 December
2019. Due to the compressed time frame for analysis, this Digest is preliminary
only.
If the Bill does not pass the Parliament in the current sittings, a full Digest
will be published in due course.
Contents
Purpose of the Bill
Structure of the Bill
Background
Committee consideration
Policy position of non-government
parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Key issues and provisions
Date introduced: 28
November 2019
House: House of
Representatives
Portfolio: Home
Affairs
Commencement: Royal
Assent
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at December 2019.
The purpose of the Australian Crime Commission Amendment
(Special Operations and Special Investigations) Bill (the Bill) is to amend the
Australian Crime
Commission Act 2002 (the Act) to:
- respond
to concern about the validity of certain ACIC determinations and other
documents raised in the case of CXXXVIII v Commonwealth[1]
by confirming the validity of current and former Australian Crime Commission (ACC)
special operations and special investigations, the lawfulness of which has been
questioned and
- amend
the process by which the Australian Criminal Intelligence Commission (ACIC)
Board authorises future special operations and special investigations,
including by amending the threshold of which it must be satisfied.
The Bill has the usual technical provisions for an
amending Act and a single Schedule proposing amendments to the Act. The entire
Bill and Schedule will commence immediately on receiving Royal Assent.
The Australian Crime Commission (ACC) is the legal name
under the Act for the Commonwealth agency known as the Australian Criminal
Intelligence Commission (ACIC).[2]
ACIC was formed when the ACC and CrimTrac
merged in 2016.[3]
ACIC is designed to bring all Australia’s national criminal intelligence and
information capabilities under one banner and it is underpinned by supporting legislation in each state and
territory.[4]
Key to the ACIC’s criminal
intelligence role is its special coercive powers:
The ACIC’s coercive powers, similar to a Royal
Commission, are used in special operations and special investigations
to obtain information where traditional law enforcement methods are
unlikely to be or have not been effective.
Our coercive powers authorise our examiners to
compel people to give evidence for the purposes of special ACIC operations or
investigations.
Our examiners can also issue notices requiring
people to produce documents or things relevant to a special operation or investigation.
This power is broad, and may apply to a person, a corporation or a Commonwealth
government agency.
The Governor-General appoints our examiners.
Examinations are held in private. Witnesses may
claim protection so the answers, documents or things they provide are not
admissible in evidence against them in a criminal proceeding to impose a
penalty, except in limited circumstances.[emphasis added][5]
These exceptional powers distinguish special
operations and special investigations from traditional criminal investigations.
They are not conducted within the context of an adversarial process, where
persons are entitled to refuse to be interviewed or answer questions. Instead they
are inquisitorial in nature.
The coercive powers are justified in the
legislation by the need to understand, disrupt or prevent ‘federally
relevant criminal activity’.[6]
That definition does not clearly indicate the ‘flavour’ of the activity to be examined;
it is necessary to consider a number of the definitions found in section 4 of
the Act:
federally relevant criminal activity means:
- a
relevant criminal activity, where the relevant crime is an offence against a
law of the Commonwealth or of a Territory; or
- a relevant criminal activity, where the relevant
crime:
- is an offence against a law of a State; and
- has a federal aspect.
relevant crime means:
- serious and organised crime; or
- Indigenous violence or child abuse.
Note:
See also subsection (2) (which expands the meaning of relevant
crime in certain circumstances).
relevant criminal activity means any
circumstances implying, or any allegations, that a relevant crime may have
been, may be being, or may in future be, committed against a law of the
Commonwealth, of a State or of a Territory.
serious and organised crime means an
offence:
- that involves 2 or more offenders and substantial
planning and organisation; and
- that
involves, or is of a kind that ordinarily involves, the use of sophisticated
methods and techniques; and
- that is
committed, or is of a kind that is ordinarily committed, in conjunction with
other offences of a like kind; and
- that
is a serious offence, an offence against Subdivision B or C of
Division 471, or D or F of Division 474, of the Criminal Code,
an offence of a kind prescribed by the regulations or an offence that involves
any of the following ... [enumerates a large number of criminal activities often
associated with organised crime]
(da) that is:
- punishable by imprisonment for a period of
3 years or more; or
- a serious offence
but:
(e) does
not include an offence committed in the course of a genuine dispute as to
matters pertaining to the relations of employees and employers by a party to
the dispute, unless the offence is committed in connection with, or as part of,
a course of activity involving the commission of a serious and organised crime
other than an offence so committed; and
(f) does
not include an offence the time for the commencement of a prosecution for which
has expired.
ACIC’s coercive powers may be exercised in
relation to ‘special operations’ and ‘special investigations’. Under section 7C of the Act the ACIC Board issues ‘determinations’ which
authorise special operations and special
investigations and determine work
priorities. ACIC has implemented the legislation by issuing determinations for
special operations and investigations which are broad in nature and not limited
to the investigation of specific offences. It appears that the ACIC’s practice
has been to use these broad determinations as an ‘umbrella’ under which a
number of specific operations or investigations may be conducted.[7] The legality
of that approach is being challenged.[8]
A ‘special operation’ means an
intelligence operation that ACIC is undertaking and that the Board has
determined to be a special operation.[9]
Issuing a determination that an operation is a special operation allows the ACIC
to use its coercive powers, such as conducting examinations, to obtain
information relevant to the special operation.
While special operations may ultimately result in the
laying of charges, their purpose is significantly broader. They allow the ACIC to
inquire proactively into the whole context in which organised crime groups
operate, contributing to the disruption of ongoing criminal enterprises and the
elimination of systemic vulnerabilities:
Special operations focus on gathering
intelligence on a particular criminal activity, so informed decisions can be
made about the extent, impact and threat of that criminal activity. Coercive
powers may be applied to special operations.[10]
A number of special
operations are described on the ACIC website:
- High Risk and Emerging Drugs No. 4 Special Operation
- National Security Impacts from Serious Organised Crime No. 3 Special
Operation
- Outlaw Motor Cycle Gangs No. 2 Special Operation
- Emerging Organised Crime Threats No. 3 Special Operation
- Criminal Exploitation of Australia’s Migration System No. 2 Special
Operation
- Cyber-Related Offending No. 2 Special Operation (approved by ACIC Board
June 2017)
- Firearm Trafficking No. 2 Special Operation (approved by ACIC Board
June 2018).[11]
A ‘special investigation’ means an
investigation into matters relating to federally relevant criminal activity
that the ACC is conducting and that the Board has determined to be a special
investigation.[12]
Special investigations are designed not only to
collect intelligence but also to disrupt and deter identified criminal groups
through collecting evidence of criminal activity that may result in arrests
and/or seizures of illegally obtained assets. Coercive
powers, as well as a full range of traditional
investigative methods, including telephone interception, surveillance devices
and controlled operations legislation, can be applied to special
investigations.[13]
The following special
investigations are described on the ASIC website:
- Highest Risk Criminal Targets No. 3 Special Investigation
- Targeting Criminal Wealth No. 3 Special Investigation.[14]
According to subsection 7C(4) of the Act, a Board determination
made under subsection 7C(2) or (3) must:
- describe
the general nature of the circumstances or allegations constituting the
federally relevant criminal activity; and
- state
that the relevant crime is, or the relevant crimes are or include, an offence
or offences against a law of the Commonwealth, a law of a Territory or a law of
a State but need not specify the particular offence or offences; and
- set out the purpose of the operation or
investigation.
A determination takes effect immediately after it is made.[15]
The determinations are not legislative instruments and the only notification
ACIC is required to make is to the Inter-Governmental Committee (ACIC-IGC)
established by section 8 of the Act.[16]
Neither the Act nor regulations contain a provision automatically sunsetting or
revoking determinations, so it appears they may remain on foot for several
years unless revoked.
There are several safeguards in the legislation
designed to ensure ACIC’s extensive remit is not misused.
Before determining that an intelligence operation is a special
operation, the Board must consider whether methods of collecting the
criminal information and intelligence that do not involve the use of powers in
this Act have been effective at understanding, disrupting or preventing the
federally relevant criminal activity to which the intelligence operation
relates.[17]
Before determining that an investigation into matters
relating to federally relevant criminal activity is a special investigation,
the Board must consider whether ordinary police methods of investigation into
the matters are likely to be effective at understanding, disrupting or
preventing the federally relevant criminal activity.[18]
The Explanatory
Memorandum (revised) to the 2002 Bill which
established the ACC said:
Before it determines that an operation is a special
operation, therefore allowing for the exercise of coercive powers under the
Act, the Board must specifically consider whether methods of collecting the
criminal information and intelligence that do not involve the use of those
powers have been effective. Before it determines that an investigation is a
special investigation and can have access to the coercive powers, the Board
must specifically consider whether ordinary police methods of investigation
into the matters are likely to be effective. The threshold test for
intelligence operations is more restrictive than that applicable to
investigations because of the broader scope of intelligence.
These threshold tests provide an important safeguard on
the exercise of coercive powers under the Act.
In both cases (ie., for both special intelligence operation
and special investigations) the Board’s determination must:
(a) describe the general nature of the circumstances or
allegations constituting the federally relevant criminal activity; and
(b) state that the serious and organised crime is, or the
serious and organised crimes are or include, an offence or offences against a
law of the Commonwealth, a law of a Territory or a law of a State but need not
specify the particular offence or offences; and
(c) set out the purpose of the operation or investigation.
This sets the parameters for the operation of investigation
and represents another important safeguard on the exercise of coercive powers
under the Act. [emphasis added][19]
Section 7C of the Act allows the ACIC Board to determine
that an intelligence operation is a special operation or that an investigation
into matters relating to federally relevant criminal activity is a special
investigation.
The Board currently has 14 voting members:
Commissioner, Australian Federal Police (chair)
Secretary, Department of Home Affairs
Commissioner, Australian Border Force
Chairperson, Australian Securities and Investments Commission
Director General of Security, Australian Security
Intelligence Organisation
Commissioner of Taxation, Australian Taxation Office
Commissioner, New South Wales Police Force
Chief Commissioner, Victoria Police
Commissioner, Queensland Police Service
Commissioner, South Australia Police
Commissioner, Western Australia Police
Commissioner, Tasmania Police
Commissioner, Northern Territory Police
Chief Police Officer, Australian Capital Territory Police
Chief Executive Officer, Australian Criminal Intelligence
Commission (non-voting member)
Chief Executive Officer, AUSTRAC (non-voting observer)
Secretary, Attorney-General's Department (non-voting
observer).[20]
The Board cannot determine that an intelligence operation
is a special operation, or that an investigation into matters relating to
federally relevant criminal activity is a special investigation, unless at
least nine Board members (including at least two eligible Commonwealth Board
members) vote in favour of making the determination.[21]
The ACIC does not prosecute offences.
Subsection 12(1) of the Act provides that where ACIC in carrying out an ACC
operation/investigation, obtains evidence of an offence and that evidence would
be admissible in a prosecution, the CEO must assemble the evidence and give it
to:
- the Attorney‑General of the Commonwealth
or the State, as the case requires; or
- the relevant law enforcement agency; or
- any person or authority (other than a law
enforcement agency) who is authorised by or under a law of the Commonwealth or
of the State or Territory to prosecute the offence.
The CEO may also disseminate information in certain
circumstances to law enforcement agencies and other bodies (see
sections 59AA and 59AB).
According to the Australian Financial Review:
Home Affairs Minister Peter Dutton has been forced to act
urgently after the High Court granted one of the commission’s targets special
leave to appeal against the seizure of his mobile phone.[22]
The details of the case that led to the High Court challenge
are shrouded in secrecy. What is known is that the ACIC seized the man's phone
at Adelaide Airport on June 26 last year, but the ACIC later conceded this
notice was incorrectly filled out.
Two days later, after briefly handing the phone back to the
man at his lawyer's office, the ACIC produced a second notice and seized it
again.
But the man's lawyers say a 2013 determination the ACIC
relied on to launch its special investigation could not be ‘so broad, so wide,
and so enduring that anything and all manner of matters years down the track
must purportedly come within it’.[23]
The only recent grant of special leave involving the ACIC
was on 18 October 2019, when High Court Justices Gordon and Nettle granted a
person, known by the pseudonym CXXXVIII, leave to appeal to the Full Court of
the High Court from a decision of the Federal Court.[24]
Due to the speed with which the Bill is being considered
by the Parliament, it has not been reported on by any of the scrutiny
committees and has not been considered for referral by the Senate Selection of
Bills Committee.
The Australian Labor Party (Labor) supported the Bill in
the House of Representatives. The Deputy Leader of the Opposition, Mr Marles
stated:
This bill will ensure that the commission can continue its
work to detect, prevent and disrupt serious and organised crime. It will amend
the Australian Crime Commission Act 2002 to streamline the authorisation
process for future special operations and special investigations and it will
confirm the validity of existing special operations and special investigations
determinations...
As the Minister for Home Affairs noted in his second reading
speech, through this bill the government is not seeking to expand or otherwise
amend the powers available to the commission 'in the course of undertaking a
special operation or special investigation'. Labor supports this bill because
it wants to ensure that the commission can effectively fulfil its statutory
functions and continue its important work.
I'd like to take this opportunity to acknowledge the
bipartisan manner in which the Minister for Home Affairs and the government
have acted with respect to this matter. I note that the minister has also
provided Labor with an assurance that within 12 months of this bill passing the
parliament the government will refer operation of the legislation to the
Parliamentary Joint Committee on Law Enforcement for review. I thank the
minister for providing that assurance.[25]
Shadow Minister for Home Affairs, Senator Keneally is
reported as saying:
The nature of this legal challenge, if it was successful—and
we understand there is a very high likelihood the legal challenge will be
successful—would leave the ACIC exposed in terms of its operations as well as
the validity of convictions based on previous investigations.[26]
Centre Alliance MP Rebekha Sharkie supported the Bill but
noted several concerns and indicated that Centre Alliance would consider the
Bill further before the Senate debate. Ms Sharkie noted that the Bill:
... does not expand or in any way alter the powers available to
the ACIC in the course of undertaking a special investigation or operation.
Rather, the bill streamlines the authorisation process for the ACIC board to
determine special future operations and investigations and to confirm the
validity of current and former special operations and special investigations.
It is the latter that does concern Centre Alliance.
The retrospective application of a law to provide legitimacy
to investigations into private citizens is one that should be scrutinised very
closely. I am also concerned about the short time frame, in this place, between
the introduction of this bill and us voting on the bill. I also note today
reports that the High Court is considering the validity of these laws in the
context of an alleged unlawful investigation. I do not suggest that the
minister has sought to avoid an adverse outcome in the High Court, but I do
believe that the consequences, even if unintended, should be explored by the
appropriate parliamentary committee.[27]
Senator Patrick is reported as saying:
Centre Alliance has preliminary concerns about removing
safeguards over the very coercive powers that can be invoked for special
investigations. The retrospective provisions are also concerning.[28]
Greens MP Adam Bandt and Independent MP Andrew Wilkie
voted against the Bill in the House of Representatives.[29]
Senator Jackie Lambie and One Nation have not publicly indicated a position on
the Bill.
There has been limited opportunity for stakeholders to
examine and comment on the Bill.
The Law Council of Australia has expressed concern about the
Bill, particularly that it would retrospectively validate unlawful conduct. Law
Council President, Arthur Moses, SC suggested the trigger for the Bill appeared
to be a case currently before the High Court and questioned the appropriateness
of Parliament validating decisions that might otherwise be found to be unlawful:
The Law Council is concerned that this legislation appears to
go beyond just addressing concerns raised in the case before the High Court and
would validate unlawful decisions made by the ACIC. If there have been breaches
of the law by government agencies, then it would be odd and inappropriate for
Parliament to validate those breaches as there would not be any deterrent for
government agencies in the future who breach laws passed by the very same
Parliament.
The rule of law means no one is above the law, including
government and government agencies. There must be consequences for anyone who
breaches the law.
The Bill empowers ACIC to authorise future special operations
and investigations in relation to alleged criminal activity “at whatever level
of generality the Board considers appropriate”. ‘This significantly broadens
the power of the ACIC to prospectively authorise investigations and exercise
its coercive powers', Mr Moses SC said.[30]
Mr Moses was also reported as saying:
This is an abrogation of the responsibility of
parliamentarians to properly scrutinise ... legislation which purports to
validate past unlawful conduct by the ACIC and broadens the scope of its
coercive powers without understanding the consequences.[31]
There is some uncertainty about the financial implications
of the Bill. Since the effect of the amendments may be to abolish existing
rights, there is some possibility that the Commonwealth is technically acquiring
property (in the form of a right) and may be liable under paragraph 51 (xxxi)
of the Constitution to pay compensation if the property was not
‘acquired on just terms’.[32]
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[33]
The Statement of Compatibility notes that the Act
currently provides for ACIC to undertake special operations and special
investigations. These are powerful tools utilising coercive powers which enable
the ACIC to obtain information that would not otherwise be available or could
be obtained only after long and complex investigations.
The Statement of Compatibility says the Bill:
Does not expand or otherwise alter the powers available in
the course of special investigations or special operations. As such, this Bill
does not engage human rights.[34]
While the Bill does not change the nature of the coercive
powers available to the ACIC, the Bill does appear to expand the circumstances
in which those powers may be used.[35]
The Bill also proposes to validate conduct which would otherwise
have been unlawful.[36]
It will therefore alter existing legal rights and affect the capacity of at
least some persons to challenge coercive executive action taken against them. The
Bill may therefore engage human rights.
Item 13 removes two current functions of the Board:
(c) to authorise, in writing, the ACC to undertake
intelligence operations or to investigate matters relating to federally
relevant criminal activity
(d) to determine, in writing, whether such an operation is
a special operation or whether such an investigation is a special investigation
and substitutes two new functions:
(c) to authorise, by determination, a special ACC operation
to occur
(d) to authorise, by determination, a special ACC
investigation to occur.
The effect is to remove the requirements:
- that
the ACC Board make authorisations/determinations in writing (however, the
writing requirement now appears in proposed subsections 7C(2) and (3)) and
- that
the ACC confine itself to matters relating to federally relevant criminal
activity (however, the definition of an ‘intelligence operation’ in section 4
of the Act retains reference to federally relevant criminal activity and that
definition is incorporated into the proposed definition of a ‘special
ACC operation’; federally relevant criminal activity is also inserted in
the proposed definition of a ‘special ACC investigation’).
Items 15–24 amend the process by which the Board
authorises special ACC operations/investigations.
Item 15 repeals subsections 7C(2), (3) and (4) and
substitutes new provisions.
Proposed subsection 7C(2) will no longer contain
the threshold requirement that the Board must, before making a determination:
... consider whether methods of collecting the criminal
information and intelligence that do not involve the use of powers in this Act
have been effective at understanding, disrupting or preventing the federally
relevant criminal activity to which the intelligence operation relates.[37]
Proposed subsection 7C(3) will no longer contain
the threshold requirement that the Board must, before making a determination:
... consider whether ordinary police methods of investigation
into the matters are likely to be effective at understanding, disrupting or
preventing the federally relevant criminal activity.[38]
In place of the existing thresholds noted above, a new
‘public interest’ threshold is contained in proposed subsection 7C(4A):
The only condition for the exercise of the power under
subsection (2) or (3) is that the Board considers, on the basis of the
collective experience of the Board members voting at the meeting when a
determination is made, that it is in the public interest that the Board
authorise the special ACC operation or special ACC investigation to occur.
‘Public interest’ will not be defined in the Act, and the
Act will provide no guidance on matters to which the Board must have regard in
determining whether the public interest test is met.
The proposed threshold is not an objective test of public
interest which could be assessed by a court; it only requires that the Board
consider that the special ACC operation or special ACC investigation is in the
public interest on the basis of the collective experience of those Board
members voting on the determination. That assessment could only be challenged
on the basis of bad faith, which is a very narrow ground of appeal.
Commending the Bill to the House, the Minister for Home
Affairs stated:
The measures in this bill are technical in nature. They
confirm existing special operation and special investigation determinations and
streamline the process for the Australian Criminal Intelligence Commission
board to make future determinations. These measures are essential to ensuring
the Australian Criminal Intelligence Commission is able to fulfil its statutory
functions as Australia's national criminal intelligence agency without
interruption.[39]
However, the thresholds for approving determinations,
which were described to Parliament in 2002 as ‘an important safeguard on the
exercise of coercive powers under the Act’ is being removed by the Bill.[40]
Whether this is appropriately categorised as a ‘technical amendment’ may be
open to question.[41]
Proposed subsection 7C(4B) ensures that a determination
has effect, regardless of whether the ACC:
- is, at
the time the determination is made, already investigating any or all of the
federally relevant criminal activity to which the determination relates; or
- subsequently
investigates any or all of the federally relevant criminal activity to which
the determination relates by any means other than through the exercise by an
examiner of the powers under Division 2; or
- decides
to investigate some part of the federally relevant criminal activity to which
the determination relates because of a request for assistance by another law
enforcement agency.
Subsection 7C(4) currently requires:
A determination under subsection (2) or (3) must:
- describe
the general nature of the circumstances or allegations constituting the
federally relevant criminal activity; and
- state
that the relevant crime is, or the relevant crimes are or include, an offence
or offences against a law of the Commonwealth, a law of a Territory or a law of
a State but need not specify the particular offence or offences; and
- set out the purpose of the operation or investigation.
Proposed subsection 7C(4) will provide that a
determination may:
identify the federally relevant criminal activity to which
the determination relates at whatever level of generality the Board considers
appropriate including (without limitation) by reference to:
- categories of relevant criminal activity; or
- categories of suspected offender; or
- specific allegations of crime; or
- specific offenders;
- any combination of the above.
The provision does not amount to a requirement that a
determination is limited to a federally relevant criminal activity.
Proposed subsection 7C(4C) also requires:
A determination under subsection (2) or (3) must, to
the extent that the Board reasonably considers appropriate having regard to the
level of generality at which it has authorised a special ACC investigation
or special ACC operation to occur:
- describe
the general nature of the circumstances or allegations constituting the
federally relevant criminal activity to which the determination relates; and
- set out the purpose of the investigation or operation;
but, to avoid doubt, the determination is not required to
specify:
- any particular offence or offences; or
- any particular conduct, transaction or person to which
the investigation or operation relates; or
- any timeframe within which:
- any federally relevant criminal activity
may have occurred; or
- the investigation or operation must
commence or be completed.
The provision retains the word ‘must’, suggesting a
compulsory requirement, then immediately removes that compulsion by leaving the
requirement to the Board’s discretion. It effectively allows the Board to
authorise an operation or investigation at a very high level of generality without
specifying:
- the
nature of the circumstances or allegation it is investigating and
- the
purpose of the investigation or operation.
In addition, under proposed subsection 7C(4C) no determination
will be required to specify:
- any
particular offence or offences to which the investigation or operation relates
(this is unchanged, since it is common ground in the CXXXVIII case that
the Act does not currently require a determination to specify a particular
crime or offence[42])
- any
particular conduct, transaction or person to which the investigation or
operation relates (this is partially contested in the CXXXVIII case
where the applicant concedes that a determination need not specify a person but
argues that the Act requires the determination to specify an investigation of a
particular type[43])
- any
particular timeframe (this is directly contested in the CXXXVIII case
where the applicant concedes that a determination can be prospective, but
argues that the Act currently requires the determination to relate to an
existing, or contemplated, investigation[44]).
Proposed subsection 7C(4J) then provides:
The validity of the determination is not affected by any
failure to comply with subsection (4C).
In those circumstances it is difficult to see that proposed
subsection 7C(4C) has any effective operation as a safeguard.
The current Act does not provide any time limit on the
life of determinations. Proposed subsection 7C(4G) will provide that a
determination will automatically cease to have force three years after it is
made, or when revoked.
Proposed subsection 7(4H) will provide that the
automatic ending or revocation of a determination does not prevent the making
of another determination in the same terms.
Item 55 will provide for the validation of
determinations previously made under subsection 7C(2) or (3) of the Act which
would otherwise be invalid or ineffective because they did not satisfy the requirements
of the Act.
Item 56 provides for the validation of the exercise
of powers in a special operation or investigation.
In his second reading speech the Minister for Home Affairs
characterised these amendments as confirming the validity of existing special
operation and special investigation determinations. However, the provisions
appear to go considerably further by also validating any exercise of powers,
including the issue of notices to produce and coercive examination of witnesses,
which may have been, at the time of the conduct, unlawful.[45]
The President of the Law Council, Arthur Moses, SC said:
If there have been breaches of the law by government
agencies, then it would be odd and inappropriate for Parliament to validate
those breaches as there would not be any deterrent for government agencies in
the future who breach laws passed by the very same Parliament.
The concern the profession has is that it will become the
norm, not the exception, to use coercive powers that include the power to
abrogate the privilege against self-incrimination without special circumstances
being established on the facts of a particular case.[46]
The Bill proposes changing certain defined terms in the
Act which are also used in other legislation, therefore certain consequential
amendment are required:
[1]. CXXXVIII
v Commonwealth [2019]
HCATrans 206 (18 October 2019). High Court case no. A30/2019.
[2]. Australian
Criminal Intelligence Commission (ACIC) ‘About us – Legislation’,
ACIC website, updated 19 September 2019. The alternative name and acronym are
authorised by subsection 7(1A) of the Act and section 8 of the Australian Crime
Commission Regulations 2018.
[3]. Australian Crime
Commission Amendment (National Policing Information) Act 2016.
[4]. ACIC,
‘About us – Legislation’,
op. cit.
[5]. Ibid.
[6]. Subsections
7C(2) and (3) of the Act.
[7]. CXXXVIII
v Commonwealth [2019]
HCATrans 206 (18 October 2019) at pp. 3, 8, 13, 15.
[8]. Ibid.,
pp. 3–4.
[9]. Section
4 of the Act ‘special ACC operation/investigation’.
[10]. ACIC
‘Determinations’,
ACIC website, last updated 24 May 2019.
[11]. Ibid.
Most of the special operations described do not give a date for Board approval.
[12]. Section
4 of the Act ‘special ACC operation/investigation’.
[13]. ACIC
‘Determinations’,
op. cit.
[14]. Ibid.
[15]. Subsection
7C(6) of the Act.
[16]. Subsection
7C(5) of the Act. The Chair must give a copy of the determination to the
Inter-Governmental Committee (ACIC-IGC) within seven days. The ACIC-IGC is made
up of a Minister of the Crown representing the Commonwealth and each State
(Section 8(1)).
[17]. Subsection
7C(2) of the Act.
[18]. Subsection
7C(3) of the Act.
[19]. Explanatory
Memorandum (revised), Australian Crime
Commission Establishment Bill 2002, pp. 10–11.
[20]. ACIC
‘Board’, ACIC website,
last updated 24 May 2019.
[21]. Subsection
7G(4) of the Act.
[22]. A
Tillett, ‘ALP
backs moves to defeat appeal against crime body’, Australian Financial
Review, 4 December 2019.
[23]. A
Tillett, ‘Dutton
scrambles to save star chamber's 'unlawful' investigations’, Australian
Financial Review, 3 December 2019.
[24]. The
transcript of the application for special leave to appeal proceedings is CXXXVIII
v Commonwealth [2019]
HCATrans 206 (18 October 2019). High Court case no. A30/2019. The Federal
Court case is CXXXVIII v Commonwealth of Australia [2019]
FCAFC 54.
[25]. R
Marles, ‘Second
reading speech: Australian Crime
Commission Amendment (Special Operations and Special Investigations) Bill 2019’,
House of Representatives, Debates (proof), 3 December 2019, pp. 6–7.
[26]. A
Tillett, ‘ALP
backs moves to defeat appeal against crime body’, Australian Financial
Review, 4 December 2019.
[27]. R
Sharkie, ‘Second
reading speech: Australian Crime
Commission Amendment (Special Operations and Special Investigations) Bill 2019’,
House of Representatives, Debates (proof), 3 December 2019, p. 7.
[28]. Tillett,
‘ALP
backs moves to defeat appeal against crime body’, op. cit.
[29]. Australia,
House of Representatives, Votes
and proceedings, 33, 2019-20, 3 December 2019, p. 545
[30]. Law
Council of Australia, Act
now to bolster government accountability and rule of law, 1 December
2019.
[31]. Tillett,
‘ALP
backs moves to defeat appeal against crime body’, op. cit.
[32]. Explanatory
Memorandum, Australian Crime Commission Amendment (Special Operations and
Special Investigations) Bill 2019, p. 2.
[33]. The
Statement of Compatibility with Human Rights can be found at page 18 of the Explanatory
Memorandum to the Bill.
[34]. Ibid.
[35]. Law
Council of Australia, Act
now to bolster government accountability and rule of law, op. cit.
[36]. See
items 55 and 56.
[37]. Subsection
7C(2) of the Act.
[38]. Subsection
7C(3) of the Act.
[39]. P
Dutton, ‘Second
reading speech: Australian Crime
Commission Amendment (Special Operations and Special Investigations) Bill 2019’,
House of Representatives, Debates (proof), 3 December 2019, p. 7.
[40]. Explanatory
Memorandum (revised), Australian Crime
Commission Establishment Bill 2002, pp. 10–11
[41]. Law
Council of Australia, Act
now to bolster government accountability and rule of law, op. cit.
[42]. CXXXVIII
v Commonwealth [2019]
HCATrans 206 (18 October 2019) at pp. 5–6.
[43]. Ibid.,
p. 3.
[44]. Ibid.,
pp. 2–3.
[45]. P
Dutton, ‘Second
reading speech: Australian Crime Commission Amendment (Special Operations and
Special Investigations) Bill 2019’, House of Representatives,
Debates, 28 November 2019, p. 10.
[46]. A
Tillet, ‘Dutton
scrambles to save star chamber’s ‘unlawful’ probes’, Australian
Financial Review,
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