Bills Digest No.
32, 2022–23
PDF version [359KB]
Dr Shannon Torrens
Law and Bills Digest Section
7
November 2022
Contents
Purpose 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: 26
October 2022
House: House of
Representatives
Portfolio: Attorney-General
Commencement: The
day after 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 November 2022.
Purpose of the
Bill
The purpose of the Australian
Crime Commission Amendment (Special Operations and Special Investigations) Bill
2022 (the Bill) is to provide greater certainty regarding the powers of the
Board of the Australian Criminal Intelligence Commission (ACIC) to authorise
special ACIC operations and special ACIC investigations (Explanatory
Memorandum (EM), p. 2).
The Government outlines that Australian law enforcement
and national security agencies require special ACIC operations and special ACIC
investigations to understand transnational, serious, and organised crime across
Australia (EM, p. 2).
The amendments are intended to simplify the determination
drafting process and render determinations easier to understand to ensure that
the Board can continue to make the necessary determinations to authorise
special ACIC operations and special ACIC investigations (EM, p. 2).
The Bill will:
- make
amendments to definitions in:
The Attorney-General noted in the Bill’s Second
Reading Speech that the amendments were necessary because:
… the existing
provisions in the [ACC Act] include key definitions which
cross-refer to other definitions that are central to the process for making
determinations. This layering of definitions adds unnecessary complexity to the
process in making determinations.
The amendments are therefore focused on clarity rather
than being substantive changes. The Attorney-General
explained:
The bill does not
expand or otherwise alter the powers available to the ACIC when undertaking
ACIC special operations or special investigations.
Background
Australian
Criminal Intelligence Commission
The Australian Criminal
Intelligence Commission (ACIC‑known as the Australian Crime
Commission for legal purposes) is a Commonwealth statutory agency, established
under the ACC Act.
The ACIC is Australia’s national criminal
intelligence agency and ‘protects Australia from serious criminal threats
through coordinating a strategic response and collecting, assessing and
disseminating intelligence and policing information.’ ACIC was formed when the
Australian Crime Commission and CrimTrac merged
in 2016.
ACIC is situated within the Attorney-General’s portfolio
and is accountable to the Attorney‑General.
ACIC says
of its responsibilities:
We work with our
national and international partners to conduct investigations, collect
intelligence
and furnish advice and assessments
to combat serious and organised crime, including cybercrime
and national security threats. We
are the conduit for sharing criminal information and intelligence
between all federal, state and
territory law enforcement agencies.
Specific functions of ACIC
include:
- collecting,
correlating, analysing, and disseminating criminal intelligence and information
- maintaining
a national criminal intelligence database
- developing
strategic criminal intelligence assessments and advice on national criminal intelligence
priorities
- conducting
investigations and intelligence operations into federally relevant criminal
activity
- providing
and maintaining systems that allow information sharing for policing and law enforcement
agencies
- providing
nationally coordinated criminal history checks.
The ACIC
Board and coercive powers
The Board of
the ACIC represents Commonwealth, state and territory law enforcement and
key national security and regulatory agencies. The Board provides strategic
direction to ACIC, authorises intelligence operations and investigations and authorises
by determination, a special ACIC operation or special ACIC operation to occur
which allows the use of ACIC’s coercive powers.
The coercive
powers of ACIC are used to obtain information when the Board determines
that it is in the public interest to do so. The coercive powers can authorise
ACIC examiners, who are appointed by the Governor-General, to compel people, corporations,
or a Commonwealth government agency to give evidence for a special operation or
investigation. Examinations are held in private, and witnesses may claim
protection so that what they provide is not admissible in evidence in a
criminal proceeding against them, except in limited circumstances. Examiners
can also issue notices requiring the production of documents or things related to
a special operation or investigation.
ACIC
special operations and investigations
Special operations conducted by ACIC focus on
gathering intelligence on a criminal activity to inform decisions about the
extent, impact, and threat of that activity. For example:
Special investigations collect intelligence
and disrupt and deter criminal groups through collecting evidence that may
result in their arrest and/or seizures of illegally obtained assets. For
example:
Committee
consideration
The Bill has not been referred to any committee for
inquiry or report.
Senate
Standing Committee for the Selection of Bills
At the time of writing the Senate Standing Committee for
the Selection of Bills had deferred consideration of this Bill to its next
meeting (Report
6, 2022).
Senate
Standing Committee for the Scrutiny of Bills
At the time of writing, the Senate Standing Committee for
the Scrutiny of Bills had not yet considered the Bill (Index
of Bills Considered by the Committee as at 27 October 2022).
Policy
position of non-government parties/independents
At the time of writing, non-government parties and
independents have not commented publicly on the measures contained in the Bill.
Position of
major interest groups
At the time of writing, major interest groups have not
commented publicly on the measures contained in the Bill.
Financial
implications
The EM to the Bill advises that the Bill will not have a
financial impact on the Commonwealth (p. 2).
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 with human rights because it
promotes the protection of human rights (EM, p. 4).
Parliamentary
Joint Committee on Human Rights
The Committee has not
yet considered the Bill.
Key issues
and provisions
The Bill makes a number of definitional rather than
substantive changes, primarily to the ACC Act.
Australian
Crime Commission Act 2002
Schedule 1 of the Bill amends the ACC Act to
firstly insert a new term: ‘federally relevant crime’ into subsection 4(1) of
the Act (Item 1).
The new definition in the Bill provides:
federally relevant crime means a relevant crime
that is:
(a) an offence against a law of the Commonwealth or of a
Territory; or
(b) an offence against a law of a State that has a federal
aspect.
The EM notes that:
The effect of this amendment is to reduce the multiple layers
of definitions that collectively determine the jurisdictional limits of the
Board’s determination power, and reduce unnecessary complexity in the
legislative requirements for making and framing Board determinations. This will
make determinations and the scope of the proper exercise of this power by the
Board easier to understand. The amendment does not expand the power or
jurisdiction of the Board (p. 6).
The Bill repeals (through Item 2) the present definition
of ‘federally relevant criminal activity’ at subsection 4(1) of the ACC Act.
This definition is currently:
federally relevant criminal activity means:
(a) a
relevant criminal activity, where the relevant crime is an offence against a
law of the Commonwealth or of a Territory; or
(b) a relevant criminal activity, where the relevant crime:
(i) is an
offence against a law of a State; and
(ii) has a
federal aspect.
The Bill also changes the definition of ‘Indigenous
violence or child abuse’ through omitting the word ‘committed’ (Item 3).
The current text reads (with proposed deletion underlined):
Indigenous
violence or child abuse means
serious violence or child abuse committed against an Indigenous person.
The Government notes:
This amendment is required to reflect the new definition of relevant
crime under subsection 4(1) which includes crimes that may have been, may
be being, or may in future be committed contrary to a law of the Commonwealth,
or a State or Territory. The operation of the paragraph is not altered, other
than to reflect the new definition (EM, p. 6).
As a consequential amendment, the term ‘federally relevant
criminal activity’ is omitted from the definition of ‘intelligence operation’
under current subsection 4(1) of the ACC Act and substituted with ‘a
federally relevant crime’ (Item 4). The current text reads (with amended
portion underlined):
intelligence operation means an operation
that is primarily directed towards the collection, correlation, analysis or
dissemination of criminal information and intelligence relating to federally
relevant criminal activity, but that may involve undertaking investigations
relating to federally relevant criminal activity.
However, an intelligence operation does
not include an integrity operation.
Further changes to subsection 4(1) of the ACC Act
include that the definition of ‘relevant crime’ is repealed and substituted
with a new definition of ‘relevant crime’ (Item 5). The current text
reads:
relevant crime means:
(a) serious and organised crime; or
(b) Indigenous violence or child abuse.
Note: See also
subsection (2) (which expands the meaning of relevant crime in
certain circumstances).
The proposed amended definition reads:
relevant crime means a serious and organised
crime or Indigenous violence or child abuse:
(a) that may have been, may be being, or may in future be, committed;
and
(b) that is an offence against a law of the Commonwealth, of
a State or of a Territory.
Note: See also subsection (2) (which expands the meaning of
relevant crime in certain circumstances).
The Government notes:
This new definition combines elements of the previous
definitions of relevant crime and relevant criminal activity (the
latter to be repealed) in order to simplify and streamline the multiple levels
of definitions. The new definition does not expand the power or jurisdiction of
the Board (EM, p. 6).
The current definition of ‘relevant criminal activity’ in
subsection 4(1) of the ACC Act is repealed (Item 6) as it has
been effectively incorporated into the proposed definition of ‘relevant crime’,
discussed above. The EM explains the purpose of this change:
The removal of this definition streamlines the layers of
definitions in the ACC Act that relate to the Board’s power to authorise by a
determination a special ACIC operation or special ACIC investigation to occur
(p. 7).
The current text reads:
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.
The current definition of ‘special ACC investigation’ in
subsection 4(1) is repealed and substituted with a new definition (Item 7).
The current text reads:
special ACC investigation means an
investigation relating to federally relevant criminal activity that the Board
has authorised to occur.
Note: The Board authorises such an investigation by making a
determination under subsection 7C(3). A special ACC investigation can
occur only while the determination is in force (see subsection 7C(4F)).
The new definition provides:
special ACC investigation means an
investigation relating to a federally relevant crime that the Board has
authorised to occur under subsection 7C(3).
Note: A special ACC investigation can occur only while a
determination under subsection 7C(3) is in force (see subsection 7C(4F)).
The Government explains: ‘The new definition ensures
consistency with the definitional changes in the Bill which replace the
definition of federally relevant criminal activity with the new definition
“federally relevant crime”.’ (EM, p. 7).
Further, the current definition of ‘special ACC operation’
in subsection 4(1) of the ACC Act is repealed and substituted with a new
definition (Item 8). The current text reads:
special ACC operation means an intelligence
operation that the Board has authorised to occur.
Note: The Board authorises such an operation by making a
determination under subsection 7C(2). A special ACC operation can occur
only while the determination is in force (see subsection 7C(4E)).
The proposed amended text reads:
special ACC operation means an intelligence
operation that the Board has authorised to occur under subsection 7C(2).
Note: A special ACC operation can occur only while a
determination under subsection 7C(2) is in force (see subsection 7C(4E)).
Items 9 to 11 make consequential amendments to
section 4A of the ACC Act, which identifies when State offences have a
federal aspect for the purposes of the Act. The changes reflect the
terminological changes introduced by other items of the Bill (such as the
replacement of the term ‘relevant criminal activity’ with ‘relevant crime’).
Further changes are proposed for section 7A of the ACC
Act which sets out the functions of the ACC. Item 13 of the Bill omits
the words ‘when authorised by a determination made by the Board’ from
paragraphs 7A(b) and (c) of the ACC Act. The current text states (with
proposed deleted text underlined):
The ACC has the following functions:
(a) to
collect, correlate, analyse and disseminate criminal information and
intelligence and to maintain a national database of that information and
intelligence;
(b) when authorised by a determination made by the
Board—to undertake special ACC operations;
(c) when authorised by a determination made by the
Board—to undertake special ACC investigations;
As noted in the EM, this is distinct from the current
provisions in that:
Subsections (b) and (c) of section 7A now provide that it is
a function of the ACC to undertake special ACC operations and special ACC
investigations, without referencing that special ACC operations and special ACC
investigations are authorised by a determination of the Board. This amendment
does not change the process by which the Board authorises a special ACIC operation
or special ACIC investigation, nor does it allow the ACIC to undertake a
special ACIC operation or special ACIC investigation that has not been
authorised by the Board (p. 8).
Section 7C of the ACC Act sets out the functions of
the Board. Current paragraphs (c) and (d) of subsection 7C(1) of the ACC Act
are repealed through the Bill (Item 14). The current text reads (with
the proposed repealed paragraphs underlined):
(1) The Board has the following functions:
(a) to determine national criminal
intelligence priorities;
(aa) to determine priorities in
relation to national policing information systems and services;
(b) to provide strategic direction
to the ACC and to determine the priorities of the ACC;
(c) to authorise, by
determination, a special ACC operation to occur;
(d) to authorise, by
determination, a special ACC investigation to occur;
The Bill inserts the following new paragraphs in their
place:
(c) to
authorise, by determination made under subsection (2), an intelligence
operation to occur;
(d) to
authorise, by determination made under subsection (3), an investigation
relating to a federally relevant crime to occur.
These amendments do not make any substantive changes to
the provision.
The Board makes determinations authorising special ACC operations under subsection
7C(2) and special ACC investigations under subsections 7C(3) of
the ACC Act.
Item 16 omits ‘a special ACC operation’ from
subsection 7C(2) of the ACC Act and substitutes ‘an intelligence
operation’. This subsection provides that the Board may make a determination in
writing authorising an intelligence operation to take place. The current text
reads (with proposed deletion underlined):
(2) The Board may make a determination, in writing,
authorising a special ACC operation to occur.
Note 1: See also subsection 7G(4) for the voting
rule that applies in relation to such a determination.
Note 2: See also Division 2 for the examination
powers available if a determination is made.
Item 17 inserts proposed note 1A after subsection 7C(2)
and before note 1, which states that an intelligence operation authorised by
the Board is a special ACC operation:
Note 1A: An intelligence operation that the Board has
authorised to occur under this subsection is a special ACC operation (see the
definition of special ACC operation in subsection 4(1)).
Item 18 is a consequential amendment which omits ‘a
special ACC investigation’ from subsection 7C(3) of the ACC Act and
substitutes ‘an investigation relating to a federally relevant crime’. Subsection
7C(3) of the ACC Act provides that the Board can make a determination,
in writing, authorising an investigation to occur. The current text reads (with
proposed deletion underlined):
(3) The Board may make a determination, in writing,
authorising a special ACC investigation to occur.
Note 1: See also subsection 7G(4) for the voting
rule that applies in relation to such a determination.
Note 2: See also Division 2 for the examination
powers available if a determination is made.
Further, after subsection 7C(3) and before note 1, the
following is proposed to be inserted (Item 19) to provide that an
investigation relating to federally relevant crime that has been authorised by
the Board is a special ACC investigation:
Note 1A: An investigation relating to a federally relevant
crime that the Board has authorised to occur under this subsection is a special
ACC investigation (see the definition of special ACC investigation in subsection
4(1)).
Thus the provisions are re-worded, but it remains the case
that the Board authorises a special ACC operation under
subsection 7C(2) and a special ACC investigation under
subsections 7C(3) of the ACC Act.
Subsection 7C(4A) provides that the only condition for
making a determination under subsections 7C(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.
Further consequential amendments include omitting the
phrase ‘the special ACC operation or special ACC investigation’ from subsection
7C(4A) and substituting ‘an intelligence operation, or an investigation
relating to a federally relevant crime’ (Item 23).
As noted in the EM (p. 10):
Subsection 7C(4A) of the ACC Act sets out the only condition
for the exercise of the power under new subsection (2) or (3) of section 7C,
which 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 intelligence operation
or investigation relating to federally relevant crimes to occur. The amendment
to this subsection does not alter the condition for the Board to exercise
powers under subsections 7C(2) or 7C(3).
Item 24 omits ‘criminal activity’ from paragraphs
7C(4B)(a) and (b) of the ACC Act and substitutes ‘crimes’. Subsection
7C(4B) of the ACC Act outlines when a determination can be made and when
it has effect.
Item 26 repeals subsection 7C(4C) of the ACC Act
and then substitutes two subsections (4C) and (4CA) which are reworded to incorporate
the definitional changes introduced by the earlier items in the Bill.
The EM clarifies: ‘This amendment does not change the
obligation of the Board to set out the purpose of the operation or
investigation in the relevant determination under subsection 7C(2) or 7C(3).’
(p. 11).
The term ‘criminal activities’ is omitted from subsection
21(1) and (2) of the Act and substituted with ‘crimes’ (Item 27).
Section 21 of the ACC Act sets out arrangements for the Board to obtain
information or intelligence. The current text reads (with proposed deletions
underlined):
21 Arrangements for Board to
obtain information or intelligence
(1) The
Commonwealth Minister may make an arrangement with the appropriate Minister of
the Crown of a State for the Board to receive from the State, or from an
authority of the State, information or intelligence relating to relevant criminal
activities.
(2) The
Board may make an arrangement with a body or person, not being a State or an
authority of a State, for the CEO to obtain from that body or person
information or intelligence relating to relevant criminal activities.
Section 55A of the ACC Act provides that a state law may
confer duties, functions and powers on the ACC, constitutive bodies of the ACC
or judges of specified federal courts. Consequential amendments are made to
section 55A (Items 28 to 34) and
section 55B Item 35), which provides the ACC with a choice between exercising
Commonwealth powers or powers conferred by a state law to reflect the changes
in terminology introduced by other Items). The amendments do not propose any
substantive changes.
Parliamentary
Joint Committee on Law Enforcement Act 2010
Item 39 provides for a new definition of ‘relevant
crime’ in current section 3 of the PJCLE Act to have the same meaning as
the definition contained in the ACC Act. Section 3 of the PJCLE Act
provides for the definitions of terms in that Act. This inclusion is
intended to replace the definition of ‘relevant criminal activity’ in Section 3
of the Act which is repealed by Item 40. The proposed definition
comprises:
relevant crime has the same meaning as in the Australian
Crime Commission Act 2002.
The EM notes: ‘these amendments are required to reflect
the changes to the definitions made by this Bill and ensure consistency and the
continued operation of the PJCLE Act in respect of the ACC.’ (p. 14)
Telecommunications
(Interception and Access) Act 1979
Item 42 of the Bill repeals the definitions of
‘federally relevant criminal activity’ and ‘special investigation’ from
subsection 5(1) of the TIA Act (interpretation) to ensure consistency
with terminology in the ACC Act.
Item 43 is a consequential amendment and omits the
term ‘an ACC special investigation’ from paragraph 5D(1)(f) of the TIA Act
and substitutes it with ‘a special ACC investigation’, for consistency with the
amendments proposed to the ACC Act.
Application
and savings provisions
Items 44 to 48 in Part 2 of the Bill relate to
application and saving provisions.
Item 45 provides that subsections 7C(2) to (4CA) of
the ACC Act, as amended or inserted by Items 16 to 26 of Part
1 of Schedule 1, apply in relation to a determination made after the
commencement of the Bill.
Existing determinations are addressed by Item 46 which
provides that a determination made under subsection 7C(2) or (3) of the ACC
Act prior to the commencement of the Bill and that is still in force
immediately before commencement, will remain in force after commencement as if
it had been made under the amended provisions.
Item 47 provides that an arrangement that the
Commonwealth Minister made under subsection 21(1) with a state Minister
for access by the Board to information or intelligence relating to criminal
activities, before the Bill commences; or an arrangement that the Board made under
subsection 21(2) for the CEO to obtain such information or intelligence before
commencement, continues in effect after the Bill commences as if it had been
made under those provisions as amended by Item 27.
Item 48 provides that ‘a warrant issued under
section 46, 46A or 48 of the TIA Act before the commencement of this
Bill, and that is still in force immediately before commencement, will remain
in force, as if any reference in the warrant to an ACC special investigation
were a reference to a special ACC investigation (within the meaning of the ACC
Act, as amended).’ (EM, pp. 15–16).
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