Footnotes
Chapter 1 - Background to the inquiry into the Australian Crime Commission Amendment Act 2007
[1]
Australian Crime Commission, Annual Report 2006-07, p. 10.
[2]
Australian Crime Commission, Annual Report 2006-07, p. 11.
[3]
Section 30 of the Australian Crime Commission Act 2002
[4]
Subsection 28(1A) of the Australian Crime Commission Act 2002
[5]
Subsection 29(1A) of the Australian Crime Commission Act 2002
[6]
ACC v Brereton [2007] VSC 297 (23 August 2007) at 10.
[7]
Australian Crime Commission Amendment Bill 2007,
Explanatory Memorandum, p. 4.
[8]
Senator Eric Abetz, Senate Hansard, 18 September 2007, p. 14.
[9]
Clauses 2 and 7 of the Australian Crime Commission Amendment Bill
2007
[10]
Clauses 10 and 12 of the Australian Crime Commission Amendment Bill
2007
[11]
Subclauses 10(2) and 12(2) of the Australian Crime Commission Amendment
Bill 2007
[12]
Law Council of Australia, Submission 5, p. 2.
[13]
The Senate, Standing Orders and other orders of the Senate,
September 2006, 111 (5), p. 63.
[14]
Senator Natasha Stott Despoja, Senate Hansard, 18 September 2007, p. 10.
[15]
Minister for Justice and Customs, Statement of reasons for introduction
and passage in the 2007 Spring Sittings, Australian Crime Commission Amendment
Bill, Tabled 17 September 2007.
[16]
Senator Joe Ludwig, Senate Hansard, 18 September 2007, p. 12.
[17]
Mr Archibald Bevis MP, House Hansard, Main
Committee, 20 September 2007, p. 120.
[18]
Senator Natasha Stott Despoja, Senate Hansard, 18 September 2007, p. 96.
[19]
Senator Kerry Nettle, Senate Hansard, 18 September 2007, p. 99.
[20]
Senator Kerry Nettle, Senate Hansard, 18 September 2007, p. 99.
[21]
Emeritus Professor Jim Davis, Committee Hansard,
Canberra, 17 June 2008, p. 3.
[22]
Mr Simon Corbell MLA, ACT Attorney-General, Submission 10, p. 2.
[23]
Mr Duncan Kerr MP, House Hansard, 20 September 2007, p. 128.
[24]
Mr Archibald Bevis MP, House Hansard, 20 September 2007, p. 125.
[25]
Senator the Hon. David Johnston, Minister for Justice and Customs, Senate
Hansard, 18 September 2007, pp 99-100.
Chapter 2 - Administrative and procedural issues
[1]
Parliamentary Joint Committee on the National Crime Authority, Australian
Crime Commission Establishment Bill 2002, November 2002, p. 23.
[2]
Parliamentary Joint Committee on the National Crime Authority, Australian
Crime Commission Establishment Bill 2002, November 2002, p. 23.
[3]
Senate Standing Committee for the Scrutiny of Bills, Alert Digest No. 3
of 2008, 14 May 2008, p. 9.
[4]
Senator Eric Abetz, Senate Hansard, 18 September 2007, p. 13.
[5]
Emeritus Professor Jim Davis, Committee Hansard, Canberra, 17 June 2008, p. 3.
[6]
Law Council of Australia, Submission 5, p. 4.
[7]
Law Council of Australia, Submission 5, p. 5. Also, see Liberty Victoria,
Submission 1, p. 2.
[8]
Commonwealth Ombudsman, Australian Crime Commission: use of certain
powers under Division 2, Part II of the Australian Crime Commission Act 2002,
August 2008, p. 6.
[9]
Commonwealth Ombudsman, Australian Crime Commission: use of certain
powers under Division 2, Part II of the Australian Crime Commission Act 2002,
August 2008, pp 5-7.
[10]
Crime and Misconduct Commission Queensland, Submission 7, p. 2.
[11]
Crime and Misconduct Commission Queensland, Submission 7, p. 4.
[12]
Crime and Misconduct Commission Queensland, Submission 7, p. 3.
[13]
Liberty Victoria, Submission 1, p. 2.
[14]
Attorney-General's Department, Submission 2, p. 3.
[15]
Mr Alastair Milroy, CEO, ACC, Committee Hansard, Canberra, 17 June 2008, p. 9.
[16]
Mr Alastair Milroy, CEO, ACC, Committee Hansard, Canberra, 17 June 2008, pp 23-24.
[17]
Commonwealth Ombudsman, Australian Crime Commission: use of certain
powers under Division 2, Part II of the Australian Crime Commission Act 2002,
August 2008, p. 6.
[18]
Mr Alastair Milroy, CEO, ACC, Committee Hansard, Canberra, 17 June 2008, p. 9. Also, see Mr Alastair Milroy, CEO, ACC, Committee Hansard,
Canberra, 9 April 2008, p. 4.
[19]
Attorney-General's Department, Submission 2, pp 6-7.
[20]
Attorney-General's Department, Submission 2, p. 7.
[21]
Crime and Misconduct Commission Queensland, Submission 7, p. 2.
[22]
The Hon. Duncan Kerr MP, House of Representatives Hansard, 20 September 2007, p. 126.
[23]
Crime and Misconduct Commission Queensland, Submission 7, pp 2-3.
[24]
Law Council of Australia, Submission 5, p. 4.
[25]
Liberty Victoria, Submission 1, p. 2. Also, see Civil Liberties
Australia, Submission 3, p. 3. The
Commonwealth Ombudsman may have had similar concerns in mind when he
recommended that records of reason, once finalised, be retained in an
electronic format that cannot subsequently be changed. See: Commonwealth
Ombudsman, Australian Crime Commission: use of certain powers under Division
2, Part II of the Australian Crime Commission Act 2002, August 2008, p. 8.
[26]
Emeritus Professor Jim Davis, Committee Hansard, Canberra, 17 June 2008, p. 2.
[27] Law Council
of Australia, Submission 5, p. 4.
[28]
Senator Eric Abetz, Senate Hansard, 18 September 2007, p. 14.
[29]
Dr Karl Anderson, Assistant Secretary, Attorney-General's Department, Committee
Hansard, Canberra, 17 June 2008, p. 12.
[30]
Attorney-General's Department, Submission 2, p. 6.
[31]
Also see Senator Natasha Stott Despoja, Senate Hansard, 18 September 2007, p. 97.
[32]
Law Council of Australia, Submission 5, pp 7-8.
[33]
Civil Liberties Australia, Submission 3, p. 2.
[34]
Civil Liberties Australia, Submission 3, p. 3.
[35]
Liberty Victoria, Submission 1, p. 2.
[36]
Mr Mark Trowell QC, Committee Hansard, Perth, 4 July 2008, pp 22-23.
[37]
Attorney-General's Department, Submission 2, p. 7.
[38]
Mr Michael Brereton, Submission 11, p. 5.
[39]
Law Council of Australia, Submission 5, p. 6.
[40]
Emeritus Professor Jim Davis, Submission 8, p. 1.
[41]
Law Council of Australia, Submission 5, p. 6.
[42]
Mr Robert Richter QC, Law Council of Australia, Committee Hansard, Canberra,
29 July 2008, p. 7.
[43]
The Hon. Simon Corbell MLA, Attorney-General, Australian Capital Territory,
Submission 10, p. 2.
[44]
Attorney-General's Department, Submission 2, pp 4-5.
[45]
The Hon. Michael Atkinson MP, Attorney-General, Government of South
Australia, Submission 12, p. 1.
[46]
Section 29A of the Australian Crime Commission Act 2002
[47]
Subsections 29B(2) and 29B(3) of the Australian Crime Commission Act 2002
[48]
Subsection 29B(5) of the Australian Crime Commission Act 2002
[49]
This subsection provides that the offence provisions, subsections 29B(1)
and 29B(3) of the Act, lapse upon cancellation of a non-disclosure order or
five years after issue of the summons/notice, which ever is the sooner.
[50]
Mr Peter Brady, Legal Adviser, ACC, Committee Hansard, Canberra, 17 June 2008, p. 20.
[51]
Subsections 25A(9) - 25A(11) of the Australian Crime Commission Act
2002
[52]
Mr Alastair Milroy, CEO, ACC, Committee Hansard, Canberra, 17 June 2008, pp 20-21.
[53]
This is primarily by way of judicial review, including under the Administrative
Decisions (Judicial Review) Act (1977) and the Judiciary Act 1903.
[54]
Schedule 2 of the Australian Crime Commission Regulations 2002
[55]
Subsection 26(2) of the Australian Crime Commission Act 2002
[56]
Section 27 of the Australian Crime Commission Act 2002
[57]
Mr Alastair Milroy, CEO, ACC, Committee Hansard, Canberra, 17 June 2008, p. 8.
[58]
Mr Alastair Milroy, CEO, ACC, Committee Hansard, Canberra, 17 June 2008, p. 19.
Chapter 3 - Retrospection and contempt
[1]
ACC
v Magistrates' Court of Victoria (at Melbourne)
and Michael Richard
Brereton [2007] VSC 297 (23 August 2007)
[2]
Australian Crime Commission, Submission 9, p. 6.
[3]
Mr Alastair Milroy, CEO, ACC, Committee Hansard, Canberra,
17 June 2008, p. 9.
[4]
The Hon. SenatorDavid Johnston, Senate Hansard, 18 September 2007, p. 102.
[5]
Commonwealth Director of Public Prosecutions, Submission 6, pp 2-3.
[6]
Ms Sashi Maharaj QC, Counsel Assisting, Committee Hansard, Canberra,
17 June 2008, p. 10. Also, see Mr Alastair Milroy, CEO, ACC, Committee
Hansard, Canberra, 17 June 2008, p. 9.
[7]
Mr Alastair Milroy, CEO, ACC, Committee Hansard, Canberra,
17 June 2008, p. 9.
[8]
Mr Robert Richter QC, Law Council of Australia, Committee Hansard,
Canberra, 29 July 2008, p. 6. Also see Ms Sashi Maharaj QC, Counsel
Assisting, Committee Hansard, Canberra, 17 June 2008, p. 19. Also, see Bunning v Cross (1978) 141 CLR 54 and Ridgeway v R (1995)
184 CLR 19.
[9]
Mr Robert Richter QC, Law Council of Australia, Committee Hansard,
Canberra, 29 July 2008, pp 8-9.
[10]
Mr Robert Richter QC, Law Council of Australia, Committee Hansard, Canberra,
29 July 2008, p. 8.
[11]
The Hon Duncan Kerr MP, House of Representatives Hansard, 20 September 2007, p. 128.
[12]
Australian Crime Commission, Submission 9, p. 7.
[13]
Emphases added
[14]
Mr Robert Richter QC, Law Council of Australia, Committee Hansard, Canberra,
29 July 2008, pp 4 & 7-8.
[15]
Dr Karl Anderson, Assistant Secretary, Attorney-General's Department, Committee
Hansard, Canberra, 17 June 2008, p. 13.
[16]
Commonwealth Director of Public Prosecutions, Submission 6, pp 2-3.
[17]
Mr Alastair Milroy, CEO, ACC, Committee Hansard, Canberra, 17 June 2008, p. 9.
[18]
Mr Robert Richter QC, Law Council of Australia, Committee Hansard, Canberra,
29 July 2008, p. 3.
[19]
Mr Robert Richter QC, Law Council of Australia, Committee Hansard, Canberra,
29 July 2008, p. 2.
[20]
Mr Robert Richter QC, Law Council of Australia, Committee Hansard, Canberra,
29 July 2008, p. 6. Also, see ACC, Additional Information, Answer to Question
on Notice, No. 1 (received 11 August 2008).
[21]
Commonwealth Ombudsman, Australian Crime Commission: use of certain
powers under Division 2, Part II of the Australian Crime Commission Act 2002,
August 2008.
[22]
Commonwealth Director of Public Prosecutions, Submission 6, p. 2.
[23]
See Appendix 4.
[24]
ACC, Additional Information, Answer to Question on Notice, No. 2 (received
21 May 2008). Also, see Mr Alastair Milroy, CEO, ACC, Committee
Hansard, Canberra, 9 April 2008, p. 5; Attorney-General's Department, Submission
2, p. 4; and Crime and Misconduct Commission Queensland, Submission 7,
p. 5.
[25]
ACC v Magistrates' Court
of Victoria (at Melbourne) and Michael Richard
Brereton [2007] VSC 297 (23 August 2007) Smith J at para 9.
[26]
The Hon. Philip Ruddock MP, Attorney-General, House of Representatives
Hansard, 20 September 2007, p. 134.
[27]
Senator Eric Abetz, Senate Hansard, 18 September 2007, p. 14.
[28]
Emeritus Professor Jim Davis, Submission 7, p. 2.
[29]
Mr Robert Richter QC, Law Council of Australia, Committee Hansard, Canberra,
29 July 2008, p. 11.
[30]
Emeritus Professor Jim Davis, Committee Hansard, Canberra, 17 June 2008, p. 3.
[31]
Law Council of Australia, Submission 5, p.
7. Also see Civil Liberties Australia, Submission 3, p. 1.
[32]
Subsections 30(6)-(8) of the Australian Crime Commission Act 2002
[33]
Civil Liberties Australia, Submission 3, p. 2.
[34]
Mr Robert Richter QC, Law Council of Australia, Committee Hansard, Canberra,
29 July 2008, p. 7.
[35]
Mr Robert Richter QC, Law Council of Australia, Committee Hansard, Canberra,
29 July 2008, p. 3.
[36]
International Covenant on
Civil and Political Rights, Article 15(1). This is similar to Article 7(1) of
the European Convention on Human Rights: No one shall be held guilty of any
criminal offence on account of any act or omission which did not constitute a
criminal offence under national or international law at the time when it was
committed. Nor shall a heavier penalty be imposed than the one that was
applicable at the time the criminal offence was committed.
[37]
Emeritus Professor Jim Davis, Committee Hansard, Canberra, 17 June 2008, p. 5.
[38]
Dr Karl Alderson, Assistant Secretary, Attorney-General's Department, Committee
Hansard, Canberra, 17 June 2008, p. 24.
[39]
Attorney-General's Department, Additional Information, Answer to Question
on Notice, No. 2. (received 15 July 2008)
[40]
Emphasis added
[41]
Mr Robert Richter QC, Law Council of Australia, Committee Hansard, Canberra,
29 July 2008, p. 16.
[42]
Mr Alastair Milroy, CEO, ACC, Committee Hansard, Canberra, 17 June 2008, p. 23.
[43]
Australian Crime Commission, Annual Report 2005-06, Appendix C.
[44]
Australian Crime Commission, Annual Report 2006-07, p. 38.
[45]
Mr Alastair Milroy, CEO, ACC, Committee Hansard, Canberra, 9 April 2008, p. 12. Also, see ACC, Additional Information, Answer to Question on Notice,
Nos. 2 & 3 (received 11 August 2008).
[46]
The Trowell Report was presented in the House of Representatives on 21 February 2008, and was tabled in the Senate on 11 March 2008.
[47]
Mr Mark Trowell QC, Independent
Review of the Provisions of the Australian Crime Commission Act 2002: Report to
the Inter-Governmental Committee, March 2007, p. 3.
[48]
Mr Mark Trowell QC, Independent Review of the Provisions of the
Australian Crime Commission Act 2002: Report to the Inter-Governmental Committee,
March 2007, p. 4.
[49]
Parliamentary Joint Committee on the National Crime
Authority, National Crime Authority Legislation Amendment Bill 2000, March
2001, p. 9 quoting the Attorney-General's Department, Submission 13,
p. 3.
[50]
Parliamentary Joint Committee on the National Crime Authority, National
Crime Authority Legislation Amendment Bill 2000, March 2001, p. 9 quoting
the Attorney-General's Department, Submission 13, p. 2.
[51]
Parliamentary Joint Committee on the National Crime Authority, National
Crime Authority Legislation Amendment Bill 2000, March 2001, p. 13.
[52]
Senator Nick Bolkus, Senate Hansard, 8 August 2001, p. 25835.
[53]
Subsections 29(3A) & (3C), 30(6) & (8) and 35(2) & (4) of the Australian
Crime Commission Act 2002
[54]
Mr Mark Trowell QC, Independent Review of the Provisions of the
Australian Crime Commission Act 2002: Report to the Inter-Governmental
Committee, March 2007, p. 58.
[55]
Mr William Boulton, Examiner, ACC, Committee Hansard, Canberra,
6 July 2007, p. 41.
[56]
Mr Mark Trowell QC, Independent Review of the Provisions of the
Australian Crime Commission Act 2002: Report to the Inter-Governmental
Committee, March 2007, p. 47. Also, see Mr Alastair Milroy, CEO, ACC, Committee
Hansard, Canberra, 30 March 2007, p. 8; and Mr Alastair Milroy, CEO, ACC, Committee
Hansard, Canberra, 9 April 2008, p. 12.
[57]
Mr Mark Trowell QC, Independent Review of the Provisions of the
Australian Crime Commission Act 2002: Report to the Inter-Governmental Committee,
March 2007, p. 47. There are other effects of delayed judicial proceedings,
such as a lack of interest in prosecution, reorganisation of criminal affairs,
etc: see Mr Mark Trowell QC, Committee Hansard, Perth, 4 July 2008, p. 19.
[58]
Mr Michael Outram, Executive Director, ACC, Committee Hansard,
Canberra, 9 April 2008, p.13. Also, see Mr Robert Cornall AO, Secretary, Attorney-General's
Department, Estimates Hansard, 25 May 2006, p. 107.
[59]
Mr Mark Trowell QC, Independent Review of the Provisions of the
Australian Crime Commission Act 2002: Report to the Inter-Governmental Committee,
March 2007, p. 54.
[60]
Mr Mark Trowell QC, Committee Hansard, Perth, 4 July 2008, p. 20.
[61]
Part 15 Clause 67 of the National Crime Authority Legislation Amendment
Bill 2000
[62]
Parliamentary Joint Committee on the Australian Crime
Commission, Review of the Australian Crime Commission Act 2002, November
2005, pp 37- 41.
[63]
The Hon. Jerrold Cripps QC, Commissioner, ICAC, Committee Hansard, Sydney,
9 September 2005, p. 5.
[64]
For example, for search warrants, the surrender of passports, and warrants
for the arrest of a witness. See sections 22, 24 and subsection 31(1) of the Australian
Crime Commission Act 2002, respectively.
[65]
Parliamentary Joint Committee on the Australian Crime Commission, Review
of the Australian Crime Commission Act 2002, November 2005, pp 37-41.
[66]
Mr Mark Trowell QC, Committee Hansard, Perth, 4 July 2008, p. 20.
[67]
Mr Mark Trowell QC, Committee Hansard, Perth, 4 July 2008, p. 19.
[68]
Mr Mark Trowell QC, Committee Hansard, Perth, 4 July 2008, p. 25.
[69] Mr Alastair Milroy,
CEO, ACC, Committee Hansard, Canberra, 9 April 2008, p. 17.
Chapter 4 - Accountability
[1]
Subparagraphs 55(1) (a) and (b) of the Australian Crime Commission
Act 2002
[2]
Police Federation of Australia, Submission 4, p. 2.
[3]
Liberty Victoria, Submission 1, p. 1.
[4]
Subsections 59(6A)-(6D) of the Australian Crime
Commission Act 2002
[5]
National Crime Authority Legislation Amendment Bill 2001,
Explanatory Memorandum, p. 19.
[6]
Parliamentary Joint Committee on the National Crime Authority, National
Crime Authority Legislation Amendment Bill 2000, March 2001, p. 23. Also,
see Senate Committee of Privileges, 70th Report: Questions
arising from proceedings of the Parliamentary Joint Committee on the National
Crime Authority, April 1998.
[7]
Law Council of Australia, Submission 5, p. 6.
[8]
Mr Duncan Kerr MP, House Hansard, 20 September 2007, p. 83.
[9]
Mr Chris Hayes MP, House Hansard, 20 September 2007, p. 130.
[10]
Mr Alastair Milroy, CEO, ACC, Committee Hansard, Canberra, 17 June 2008, p. 21.
[11]
Dr Karl Alderson, Assistant Secretary, Attorney-General's Department, Committee
Hansard, Canberra, 17 June 2008, p. 21.
[12]
Parliamentary Joint Committee on the Australian Crime Commission, Inquiry
into the future impact of serious and organised crime on Australian society,
September 2007, pp 111-112.
[13]
Section 15UB of the Crimes Act 1914
[14]
The Senate, Standing Orders and other orders of the Senate,
September 2006, p. 110.
[15]
Senate Committee of Privileges, 122nd Report, June 2005, p. 37.
[16]
Senator the Hon. David Johnston, Minister for Justice and Customs, Senate
Hansard, 18 September 2007, p. 100.
[17]
Niccolo Machiavelli, Discourses on the First Ten Books of Titus
Livius, Book 3, Chapter III.
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