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Chapter 8 - Legislative Change
Introduction
8.1
The ACC Act is three years out from its commencement.
From the submissions and evidence, there appear to be no major structural
issues which require amendment or attention. However, there are some important
matters identified in this report which have been the subject of
recommendations. These include:
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Developing legislation to clarify the position
of a person summonsed under section 28 of the ACC Act who is the subject of
criminal proceedings or who becomes the subject of criminal proceedings or
confiscation of proceeds of crime proceedings, during the course of his or her
contact with the Australian Crime Commission.
-
Amending section 55AA of the ACC Act 2002 to
broaden the scope of the Commonwealth Ombudsman's briefing to the PJC to
include any matter relating to the operations of the ACC.
8.2
The Attorney General's Department's submission notes
that the Department and the ACC continually review the effectiveness of the
Act.[311] However, particular attention
has been given to the section 28 matter noted above together with:
-
the powers and immunities of staff members and
in particular the specially commissioned officers as well as secondees;
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non-compliance at examination; and
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the dissemination of criminal information and intelligence
– in particular to the private sector. [312]
8.3
The Committee has already expressed a view in relation
to each of these matters, and notes that they remain the subject of ongoing
discussion with the ACC.
Caselaw
8.4
A body of case law challenging various aspects of the
ACC legislation is being generated in the Federal Court: the main areas of
challenges are noted in Chapter 3. From those the Committee notes that the most
pressing is the section 28 issue noted above, and the effect of the recent decision
in AA Pty Ltd and Mr BB v Australian
Crime Commission [2005] FCA 1178.
8.5
The problem identified by Finkelstein
J is whether the ATO can be construed as a
law enforcement agency under the ACC Act. While saying that it could not, His
Honour suggested that the matter might be remedied by regulation.[313] While the case is being appealed by
the ACC the decision has implications for the ACC and ATO, and in particular
Operation Wickenby in which the ACC, the ATO and the AFP are jointly engaged. Again this is a matter which the Committee
would like to see resolved as a matter of priority.
Availability of legal aid at examinations – ACT Legal Aid office
8.6
The Committee notes in Chapter 3 the position in
relation to Legal Aid and examinations by the ACC. Mr Chris Staniforth of the
Legal Aid Office of the ACT told the Committee:
The act was clearly drafted ...in a way which would make you think
that legal aid would be available through a legal aid commission. There is a
distinction made allowing a person working for a legal aid commission to come
to know material which would not otherwise be allowed. I think any citizen in
any democracy should have access to legal advice in the most accessible form we
can achieve it.[314]
8.7
The present arrangement for a person seeking assistance
for an Examination is through an application to the Attorney General's
Department. This matter is discussed in Chapter 3.
8.8
The Committee
considers that the implications for a person called to an ACC examination are
considerable, and not all witnesses before an examination are 'Mr
Bigs' who can be assumed to be capable of
affording legal assistance. For this reason, the Committee makes the following
recommendation:
Recommendation 18
8.9
The Committee recommends that regulatory, or if
necessary legislative changes be introduced to allow persons summonsed for an
Examination to be eligible for legal aid from the legal aid commissions,
subject to the usual means tests.
Circulation of draft legislative or regulatory proposals
8.10
The Committee also suggests that proposals for
amendments of relevant legislation be circulated to the Committee while the
legislation is being developed. This would make the evaluation stage more
efficient, and would allow the Committee to express views before the matter
becomes a matter for pressing Parliamentary attention.
Senator
Santo Santoro
Committee Chair
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