National Crime Authority Amendment Bill 1999

Introduction

The Committee dealt with this bill in Alert Digest No. 19 of 1999, in which it made various comments. The Minister for Justice and Customs has responded to those comments in a letter dated 7 December 1999. A copy of the letter is attached to this report. An extract from the Alert Digest and relevant parts of the Minister's response are discussed below.

Extract from Alert Digest No. 19 of 1999

This bill was introduced into the House of Representatives on 24 November 1999 by the Attorney-General. [Portfolio responsibility: Justice and Customs]

The bill proposes to amend the National Crime Authority Act 1984 to clarify that States and Territories may confer powers, functions and duties on the National Crime Authority in relation to the Authority's investigation of relevant criminal activity.

Retrospective application

Subclause 2(2)

Subclause 2(2) of this bill states that the amendments proposed in the bill are to have commenced on 1 July 1984. The substantive amendments proposed are to omit the words “being a power, function or duty that is also conferred or imposed by this Act” from subsection 55A(1)(a) of the Principal Act, and to omit the word “similar” from subsection 55A(2) of the Principal Act.

The Explanatory Memorandum simply notes that the bill “clarifies the nature of the State and Commonwealth legislative framework that supports the National Crime Authority” (NCA). The bill does this by making clear “that States and Territories may confer powers, functions and duties on the National Crime Authority in relation to the Authority's investigation of relevant criminal activity”.

The Minister's Second Reading Speech provides some additional information. It observes that the States confer powers, duties and functions on the NCA in relation to a variety of State investigative laws including laws for the use of assumed identities, controlled operations and electronic surveillance. “This amendment makes clear that the States can confer such powers, duties and functions without the need for the National Crime Authority Act to specifically contain similar provisions”.

It seems that the amendments proposed in the bill are simply declaratory of the intended operation of the Principal Act. However, neither the Explanatory Memorandum nor the Minister's Second Reading Speech fully explains the effect of the changes being made, or why such changes are necessary, and why those changes should operate retrospectively from 1984.

As indicated by its name, an Explanatory Memorandum should explain what is being proposed. It should enable a reader of legislation to understand the reason for its introduction, the changes it proposes to make and the anticipated effect of those changes.

In the case of this bill, it is unclear whether it is simply attempting to remedy a long-standing drafting error, or addressing a factual situation that has developed, or is seeking to validate something that has taken place. It is unclear whether the bill has been introduced in response to a judgment, or in anticipation of litigation, or is totally unconnected with either. The Committee, therefore, seeks the Minister's advice as to the effect of the changes proposed in this bill, why such changes are necessary, and why the changes are to operate retrospectively from 1984.

Pending the Minister's advice, the Committee draws Senators' attention to the provisions, as they may be considered to trespass unduly on personal rights and liberties, in breach of principle 1(a)(i) of the Committee's terms of reference.

Relevant extract from the response from the Minister

I refer to the Committee's comments on the National Crime Authority Amendment Bill 1999 in Alert Digest no 19 of 1999.

The Committee commented on the following matters:

1. the effect of the changes proposed in this bill;

2. why the changes are necessary; and

3. why the changes are to operate retrospectively from 1984.

Introduction

The National Crime Authority (NCA) is established under a cooperative network of Commonwealth, State and Territory legislation. This approach was adopted in order to allow the NCA to investigate organised crime in such a manner that it would not be impeded in its work by artificial jurisdictional boundaries, whilst still being fully accountable for the powers conferred upon it. The NCA was to have the function of investigating breaches of State and Territory laws, as well as of Commonwealth laws.

Section 55A was inserted into the Act shortly after the original Act was passed by the Parliament in 1984. Section 55A of the principal Act provides a mechanism whereby powers, functions and duties may be conferred upon the NCA by a State or Territory without triggering Section 109 of the Constitution.

At the time that section 55A was inserted into the principal Act (in 1984, by the Statute Law (Miscellaneous Provisions) Act (No 2) 1984) the range of powers that might be conferred upon the NCA under State law was very limited.

Since 1984 the States have progressively conferred on the NCA powers relating to the use of controlled operations and electronic surveillance. They have also included the NCA in statutes such as those relating to witness protection. Some examples of the types of legislation the States have enacted includes the Surveillance Devices Act 1999(Vic), the Law Enforcement (Controlled Operations) Act 1997 (NSW) and the Listening Devices Act 1972 (SA).

Doubt has now been expressed about the efficacy of section 55A of the principal Act in allowing such powers to be conferred upon the NCA by State laws. The aim of the Bill is to remove this doubt, both for the future and also in relation to powers, functions or duties conferred upon the NCA since 1984.

The amendments to section 55A of the Act arise from recent evidence given to the Parliamentary Joint Committee on the National Crime Authority by the Queensland Police. Queensland is developing controlled operations legislation and were considering including the NCA in the legislation. The Queensland Police asked whether the Act allowed the States to confer powers on the NCA that were not already specifically contained in the Principal Act. The Parliamentary Joint Committee on the NCA referred the issue to the Attorney-General's Department.

1. The effect of the proposed changes

The Bill amends section 55A of the National Crime Authority Act 1984 by omitting the words `being a power, function or duty that is also conferred or imposed by this Act' from paragraph 55A(1)(a), and the word `similar' from subsection 55A(2).

These changes mean that State legislation can include the NCA in a range of state law enforcement legislation such as controlled operations and surveillance device legislation. The States can do this without reference to the powers, functions and duties already conferred by the National Crime Authority Act 1984.

The powers given to the NCA by State laws are general investigative powers that are also held by State law enforcement agencies. The States and the Commonwealth understood the section to allow the States to impose powers, functions and duties on the NCA to enable it to perform its investigative function.

The Opposition proposes amending the Bill to limit the powers that the States may confer on the NCA to those powers that the Commonwealth has itself conferred on the NCA. The powers the States may confer on the NCA are, however, not to be limited only to the investigation of offences specified in Commonwealth legislation.

2. Why the changes are necessary

The amendments are necessary to put beyond doubt the ability of the States to legislate to confer powers, functions and duties on the NCA.

As noted above, the NCA is supported by Commonwealth and States complementary legislation. The then Attorney-General, Senator Evans, explained the nature of the Commonwealth and State interaction envisaged in the Act, stating it was:

crucially necessary for the Commonwealth authority to be clothed with the formal authority from the States which would make it possible for that Commonwealth body to do its proper investigative job (Senate Hansard, 5 June 1984, page 2523)

The Hansard from the time and the Explanatory Memorandum do not indicate that Parliament intended Section 55A to limit the general investigative powers of the NCA under State laws.

The main purpose of Section 55A is to avoid any inconsistency problem which might trigger Section 109 of the Constitution. However, it is arguable that its drafting has the effect of limiting the powers that the States might provide to the NCA.

A review, by the Attorney-General's Department, of the types of State powers, duties and functions that are imposed on the NCA confirmed that the range of law enforcement powers conferred by the States are sufficiently different from those powers contained in the National Crime Authority Act 1984 to create doubt as to whether they may be applied.

The Bill is intended to make quite clear that such State conferrals are valid, while also preserving the original intention of Section 55A.

3. Why the changes are needed retrospectively

Without retrospective operation NCA actions since 1984, authorised under State law, could be challenged. This would jeopardise a range of matters where the evidence was obtained by reliance on State powers, such as the confiscation of drugs and the prosecution and subsequent conviction of persons involved in organised crime.

The Committee thanks the Minister for this response which indicates that retrospectivity is required to avoid possible challenges to a number of NCA actions authorised under State laws since 1984. Had the information provided in this response been included in the Explanatory Memorandum, there would have been no need to seek any advice from the Minister. The Committee notes that a growing number of Explanatory Memoranda do not satisfactorily explain what is being proposed in a particular bill.

Barney Cooney

Chairman