BILLS DIGEST NO. 44, 2015–16              10 November 2015

Australian Crime Commission Amendment (Criminology Research) Bill 2015

Mary Anne Neilsen
Law and Bills Digest Section 

Date introduced: 15 October 2015

House:  House of Representatives

Portfolio: Justice

Commencement:  A single day to be fixed by Proclamation or 1 July 2016, whichever is the earlier.

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 ComLaw website.

Purpose of the Bill

The purpose of the Australian Crime Commission Amendment (Criminology Research) Bill 2015 (the Bill) is to amend the Australian Crime Commission Act 2002[1] (ACC Act) and repeal the Criminology Research Act 1971[2] (CR Act) in order to merge the functions of the Australian Institute of Criminology (AIC) into the functions of the Australian Crime Commission (ACC) and to abolish the AIC as a statutory agency.

Background

Australian Institute of Criminology

The AIC was established in 1973 under the CR Act. As a Commonwealth statutory authority, the AIC is regulated under the Public Governance, Performance and Accountability Act 2013.[3] Staff of the AIC are generally engaged under the Public Service Act 1999[4] but may also be employed or engaged by the AIC for a particular project.[5]

According to the latest Annual report,

[the AIC] has served as Australia’s national research and knowledge centre on crime and justice for more than 40 years, undertaking and promulgating new research, monitoring and analysing crime trends, and providing advice to inform legislative, policy and practice change.

The independent status of the AIC has meant its output is not only robust, but trusted by government, law enforcement and justice agencies across the nation and internationally. Much of the AIC’s work falls under the Commonwealth Government’s strategic research priorities, in particular, the priority themes of ‘living in a changing environment’, ‘promoting population health and wellbeing’ and ‘securing Australia’s place in a changing world’.[6]

The Director and Chief Executive of the AIC is Chris Dawson.

A Criminology Research Advisory Council, established under the CR Act in 2011 advises the Director on strategic research priorities, communications and on the Criminology Research Grants program. The Advisory Council consists of nine members who represent the Australian Government and all states and territories. This composition ensures that areas targeted for research funding reflect both national and state/territory priorities.[7]

The Criminology Research Grants (CRG) program, managed by the AIC, is funded by the Commonwealth and state and territory governments. The Director of the AIC approves a series of research grants each year, taking into account the recommendations of the Criminology Research Advisory Council. The program funds research that has relevance to jurisdictional policy in the areas of law, police, judiciary, corrections, mental health, social welfare, education and related fields.[8]

Australian Crime Commission

The ACC commenced operation on 1 January 2003. It has its origins in the April 2002 Council of Australian Government Leaders Summit, which agreed that a new national framework was needed to meet the challenges of multi-jurisdictional crime. It replaced and combined the strategic and operational intelligence and specialist investigative capabilities of the National Crime Authority, the Australian Bureau of Criminal Intelligence, and the Office of Strategic Crime Assessments.[9]

According to the latest Annual Report, the aim of the ACC is to ‘reduce serious and organised crime threats of most harm to Australians and the national interest’.[10]

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. [11]

Like the AIC, the ACC is regulated under the Public Governance, Performance and Accountability Act and staff of the ACC are engaged under the Public Service Act.[12]

Merger of the AIC and ACC

The 2014 Commission of Audit had broached the subject of the possible merger of various agencies responsible for crime intelligence, and in particular suggested that Crimtrac should be merged in to the ACC ‘to better harness their collective resources’.[13] However in relation to the AIC, the Audit Committee did not suggest the possibility of merging with the ACC, proposing instead that relocation to a university should be considered.[14]

Prior to the 2015 Budget there had been media speculation that the two bodies, the AIC and the ACC would merge.[15] While there was no Budget announcement to this effect, at Senate Estimates hearings shortly afterwards, the Attorney-General indicated that there were ongoing discussions between the two bodies about a possible merger, although no decision has been taken to proceed with the merger.[16]

A more definite sign of the impending merger occurred in July 2015, when the Minister for Justice announced the appointment of ACC CEO Chris Dawson as the newly appointed Interim Director of the AIC. Mr Keenan indicated that the Government was considering whether the AIC should be placed within the ACC, but at that date a final decision had not been made:

In the interim, the ACC and AIC will continue to exist and operate as separate entities, while working together on expanding existing relationships.[17]

Finally on 25 September 2015, the Minister for Justice announced that the AIC would be placed within the ACC to ‘boost research capability at the nation’s criminal intelligence agency’.[18] The AIC is to be incorporated into the ACC as an independent research branch known as the Crime and Justice Research Centre (CJRC).

The Minister stressed that this merger is ‘not about cutting costs or personnel of either agency; it’s about creating a unified workforce incorporating staff of both agencies’:

Combining the expertise, capabilities and data and information holdings of the AIC and the ACC will significantly enhance support for law enforcement in counter terrorism efforts and in bolstering Australia’s response to serious and organised crime.

Our law enforcement and protection agencies are increasingly dependent on accurate research, information and intelligence to ensure that police on the ground, at our borders and in our intelligence agencies can do their job.

The more we strengthen our research capabilities, the better evidence base we have for our agencies to identify the patterns and associations that can help detect, disrupt and undermine those who seek to do our communities harm. [19]

The Bill provides the necessary legislative framework to achieve the merger.

Committee consideration

The Bill has not been referred to any Committee.

Senate Standing Committee for the Scrutiny of Bills

To date, the Committee has not reported on the Bill.

Policy position of non-government parties/independents

To date, the Labor Party has not publicly commented on the Bill, although the proposed timetable for parliamentary debate suggests that the Bill has that party’s support.[20]

The Australian Greens oppose the Bill, arguing that the takeover of the AIC by the ACC is short-sighted and risks increased crime rates in the long term. Australian Greens legal affairs spokesperson Senator Nick McKim stated:

The AIC plays an important role in understanding what causes crime, and developing policy to reduce crime levels. But it is not a law enforcement agency, and losing the AIC risks Australia missing out on world class crime and justice research. It is clear that the takeover will result in the functions of the AIC being lost or subsumed. This is a short sighted ‘savings’ measure that will ultimately cost Australia in the long run through increased crime rates. [21]

Similar concerns were discussed at Estimates Committee hearings in May 2015 by Australian Greens Senator Penny Wright who raised questions regarding the difficulties of managing the merger of two agencies with very different functions and very different organisational cultures—one being a small ‘open’ organisation, the other, a larger, highly secretive one.

Senator Wright also saw a potential conflict of interest between for example the functions and priorities of the AIC which may include studies that query the effectiveness of existing legal or administrative crime frameworks, potentially including the work that the ACC is doing.[22]

To date, the views of other cross bench members of Parliament are not known.

Position of major interest groups

There has been minimal commentary on the Bill. However in May 2015, at the time when stories first emerged about a possible merger, criminologist Rick Sarre from the University of South Australia expressed some concern that the merger could create a big conflict of interest and even compromise crucial and independent crime data:

I think that's the concern of criminologists — to ensure that the independence of the research that's been emerging for decades from the Australian Institute of Criminology is not compromised.[23]

Professor Sarre expressed concern that the AIC could soon be trapped in the ‘secretive culture’ of the ACC, believing that could hurt crime-fighting efforts.

If the Government was serious about cutting costs, one of the things they should be doing is upping in fact the level of criminological research in this country, not compromising it potentially by rolling the best criminological resource we have in this country into a crime-fighting organisation.[24]

Financial implications

The Explanatory Memorandum states that the merger will be cost neutral with small savings expected over the forward estimates. [25]

Statement of Compatibility with Human Rights

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.[26]

Parliamentary Joint Committee on Human Rights

To date this Committee has not reported on the Bill.

Key issues and provisions

Schedule 1—Australian Crime Commission Act 2002

Criminological research

Item 1 inserts a new definition of ‘criminological research’ into subsection 4(1) of the ACC Act.[27] ‘Criminological research’ is defined to mean research in connection with the causes, consequences, correction and prevention of criminal behaviour and any related matter. This definition copies to a great extent the existing definition in the CR Act.[28]

Section 7A of the ACC Act sets out the ACC’s existing statutory functions. Item 3 inserts new paragraph 7A(fb) to provide the ACC with an additional power to exercise the following functions currently performed by the AIC:

•       conduct criminological research

•       communicate the results of criminological research

•       perform other activities related to the conduct of criminological research (such as holding seminars or compiling crime-related statistics) and

•       administer programs for awarding grants for criminological research and activities related to the research, and assist the recipients of grants in that research or those activities.

The Explanatory Memorandum explains how it is intended these functions will operate within the objectives of the ACC:

Under the CR Act, the AIC is limited to the objectives of promoting justice and reducing crime in performing these functions. The ACC’s criminological research and related activities may continue to promote these objectives, but will not be limited to these objectives.

This Act does not need to confer a new function on the ACC Board to mirror the ACC’s new functions. Under paragraph 7C(1)(b) of the ACC Act, the ACC Board already has the function of providing strategic direction to the ACC and determining the ACC’s priorities. Following the broadening of the ACC’s functions as set out in proposed paragraph 7A(fb), the Board may provide strategic direction to the ACC in relation to these new functions or determine the ACC’s criminological research priorities under the broad power in paragraph 7C(1)(b). In doing so, the Board may take advice from a non-legislated advisory body that includes both justice and law enforcement representation.[29]

Further discussion on the role of this non-legislated advisory body can be found below.[30]

Fees for commissioned criminological research

Item 4 inserts new section 15B into the ACC Act to enable the ACC to charge fees for commissioned criminological research. This is to allow states, territories, universities and other interested organisations to continue to commission specific work from the merged agency as they currently do from the AIC.[31] The fee would be paid into the Criminology Research Special Account (proposed paragraphs 59G(b) and (c)). This Account currently exists under the CR Act and its continued existence would be facilitated by proposed sections 59F, 59G and 59H.[32]

Disclosure of criminological research and related information

Under the ACC Act information disclosure rules are set out in sections 59AA and 59AB. These are strict information sharing provisions that apply to ACC information, whereas research conducted by the AIC often includes information of a more public nature and is currently disseminated more widely. Item 5 inserts new section 59AE, which will add an additional information disclosure regime into the ACC Act that will apply specifically to the ACC’s new criminological research and related information.

Under new subsection 59AE(1), the ACC CEO will be able to disclose or publish criminological research and information related to that research to any person, if disclosing or publishing that research or information would not be contrary to subsection 25A(9) of the ACC Act or any other law of the Commonwealth or of a state or territory.[33]

New subsection 59AE(2) will provide additional requirements where the ACC’s criminological research or related information contains ‘personal information’, as defined by the Privacy Act 1988.[34]

Under new subsection 59AE(2), the ACC CEO will be prohibited from disclosing personal information that was collected for the purpose of criminological research for another purpose unless:

•       the individual has consented to the use or disclosure

•       the individual would reasonably expect the ACC would use or disclose the information for the other purpose and that other purpose is:

–      if the information is sensitive information within the meaning of the Privacy Act—directly related to the purpose for which the information was collected or

–      if the information is not sensitive information—related to the purpose for which the information was collected or

•       a permitted general situation within the meaning of the Privacy Act exists in relation to the use or disclosure of the information by the ACC.

These requirements are modelled on Australian Privacy Principle 6 in the Privacy Act. As the Explanatory Memorandum notes, it is necessary to replicate these disclosure principles in the Bill, as the ACC is exempt from the scope of the Privacy Act.[35] Including these additional requirements in the new disclosure regime will ensure that personal information collected by the ACC for research purposes remain subject to the same disclosure protections that currently apply to the AIC.[36]

Significantly, while the Information Commissioner usually investigates breaches of the Privacy Act and currently would do so in relation to the AIC, he or she will not have jurisdiction under the ACC Act to investigate potential breaches of the new information disclosure regime. The Explanatory Memorandum states that instead, the ACC is subject to oversight by the Commonwealth Ombudsman, Integrity Commissioner and Parliamentary Joint Committee on Law Enforcement and therefore:

One or all of these bodies may be able to examine potential breaches of the new regime, depending on the nature of the complaint.[37]

Schedule 2—Criminology Research Act 1971

Abolition of the AIC and the Criminology Research Advisory Council

Item 1 of Schedule 2 repeals the Criminology Research Act 1971. The effect will be to abolish the AIC as a statutory agency and remove the requirement for there to be a Director of the AIC.

The removal of the position of Director is significant. The Director has generally been an academic with a background in criminology or sociology who steers the direction of the AIC’s research with the help of the Advisory Council. Under the merger, the CEO or the ACC Board will undertake this role, although neither the CEO nor the Board are criminologists.

In addition and of some significance, the Advisory Council will no longer be a statutory body. The Advisory Council was established in 2011 and under the CR Act has responsibilities to advise the AIC Director on a number of strategic issues, including the AIC’s research priorities.[38] The Bill effectively abolishes this position, the Explanatory Memorandum noting only that under the merged agency structure, the Advisory Council may continue as a non-legislated body providing advice to the ACC CEO and ACC Board.[39] The role and priorities of the ACC Board would be quite different from that of the Advisory Council—the Board being composed in the main by police commissioners and the Director-General of ASIO[40], the Advisory Council being composed of representatives of federal, state and territory governments.

Concluding comments

The Government states that the merger of the AIC and ACC is not a cost saving exercise but an effort to combine the expertise and capabilities of both agencies, significantly enhancing ‘support for law enforcement in counter terrorism efforts and in bolstering Australia’s response to serious and organised crime’.[41]

A final question for the Parliament might be: does the Bill ensure that the priorities of the AIC will not be lost or subsumed in the merger as was suggested in discussions at Estimates earlier this year? Is there also a potential for a conflict of interest to arise, such as when the AIC is conducting research that requires critiquing the ACC priorities and operations?

The Bill does provide the ACC with capacity to undertake criminological research, as currently performed by the AIC; there will be a separate disclosure regime to ensure secrecy provisions necessary for intelligence work do not impact on the open and transparent environment necessary for research; and the ACC will continue to commission research from outside bodies as the AIC currently does. In addition, in light of the Minister’s statement that the merger is not a cost or personnel cutting exercise, the transfer of staff should be relatively seamless as both AIC and ACC staff are employed under the Public Service Act.

On the other hand, the merger does mean the loss of an independent criminology research organisation in Australia that, importantly, has a national focus. There is potential for the merger to impact on the AIC’s current research role.

While the Bill does provide for a Criminology Research Special Account to fund criminology related matters, the criminology research function will be just one of many priorities that the ACC Board will need to consider. In this setting, the existing Advisory Council would arguably have an important role in advising on or at least monitoring whether the AIC current research priorities (such as indigenous justice, crime prevention programs, alcohol and violence and family violence) are being lost or subsumed by higher prioritised ACC roles such as combatting counter-terrorism. Given the potential for a lessening or detraction of the criminology research function, it is therefore significant that the Advisory Council will have a reduced status – moving from being a statutory authority with legislated advisory responsibilities to a purely non-legislated body which may or may not advise the ACC Board.

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[1].              Australian Crime Commission Act 2002, accessed 6 November 2015.

[2].              Criminology Research Act 1971, accessed 6 November 2015.

[3].              Public Governance, Performance and Accountability Act 2013, accessed 8 November 2015.

[4].              Public Service Act 1999, accessed 8 November 2015.

[5].              CR Act, section 23.

[6].              Australian Institute of Criminology (AIC), Annual report 2013–14, AIC, 2014, p. 6, accessed 8 November 2015.

[7].              Criminology Research Grants website, accessed 8 November 2015.

[8].              AIC, op. cit., p. 6.

[9].              Australian Crime Commission (ACC), ‘Agency overview’, Annual report 2013–14, ACC, 2014, accessed 8 November 2015.

[10].              Ibid.

[11].              S Harris Rimmer and B Jaggers, Australian Crime Commission Amendment Bill 2007, Bills digest, 54, 2007–08, Parliamentary Library, Canberra, 2007, p. 3, accessed 9 November 2015.

[12].              ACC Act, section 47.

[13].              National Commission of Audit, Towards responsible government: the report of the National Commission of Audit, Phase 1, National Commission of Audit, Canberra, February 2014, p. 208, accessed 1 November 2015.

[14].              Ibid.

[15].              Australian Broadcasting Corporation (ABC), ‘Budget 2015: Crime Commission tipped to merge with Institute of Criminology in budget shake-up, ABC News, (online edition), 8 May 2015, accessed 8 November 2015.

[16].              Senate Legal and Constitutional Affairs Legislation Committee, Official committee Hansard, 27 May 2015, p. 83, accessed 8 November 2015.

[17].              M Keenan (Minister for Justice) Interim director for the Australian Institute of Criminology, 13 July 2015, accessed 8 November 2015.

[18].              M Keenan (Minister for Justice) New crime and justice research centre, media release, 25 September 2015, accessed 8 November2015.

[19].              Ibid.

[20].              In the House of Representatives and Senate draft legislation programmes for week 7/2015, accessed 9 November 2015, the Bill is listed for debate in the House on 9 November and in the Senate on Wednesday 11 November subject to introduction and exemption from the Bills cut-off order.

[21].              N McKim (Australian Greens Senator), Getting rid of the Australian Institute of Criminology counter-productive, media release, 5 November, accessed 5 November 2015.

[22].              Senate, Legal and Constitutional Affairs Legislation Committee, op. cit., p 84.

[23].              ABC, op. cit.

[24].              Ibid.

[25].              Explanatory Memorandum, Australian Crime Commission Amendment (Criminology Research) Bill 2015, p. 2.

[26].              The Statement of Compatibility with Human Rights can be found at pages 3–4 of the Explanatory Memorandum to the Bill.

[27].              Australian Crime Commission Act 2002, accessed 6 November 2015.

[28].              Criminology Research Act 1971, accessed 6 November 2015.

[29].              Explanatory Memorandum, op. cit., p. 2.

[30].              See pp. 6–7 of this Bills Digest.

[31].              K O’Dwyer, ‘Second reading speech: Australian Crime Commission Amendment (Criminology Research) Bill 2015’, House of Representatives, Debates, (proof), 15 October 2015, p. 4, accessed 9 November 2015.

[32].              Item 6, Schedule 1.

[33].              Subsection 25A(9) of the ACC Act deals with confidentiality directions in relation to examinations for the purposes of ACC operations/investigations.

[34].              Privacy Act 1988, accessed 9 November 2015.

[35].              Explanatory Memorandum, op. cit., p. 3. The ACC being an ‘enforcement body’ is exempt from some of the rules regarding disclosure of personal information (for example clause 3.4, Schedule 1 of the Privacy Act).

[36].              Ibid.

[37].              Ibid.

[38].              Criminology Research Grants website, op. cit.; CR Act, section 33.

[39].              Explanatory Memorandum, op. cit., p. 6.

[40].              ACC Act, section 7B.

[41].              M Keenan, New crime and justice research centre, op. cit.