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Report Details


Committee Name:

Uniform Legislation and General Purposes Committee (2002 - 2005)

House:

Legislative Council
Report Type:Report

Title:

Australian Crime Commission (Western Australia) Bill 2003
Report No:15
No of Pages:134
Physical Location:Legislative Council Committee Office

Presentation Date:

06/22/2004
Inquiry Name(s):Australian Crime Commission (Western Australia) Bill 2003


Click here to view the report



    Executive Summary

    The Australian Crime Commission (Western Australia) Bill 2003 is part of a uniform scheme of legislation underpinning the activities of the Commonwealth law enforcement agency, the Australian Crime Commission.

    The Australian Crime Commission commenced operation on January 1 2003 replacing the Commonwealth National Crime Authority and the Commonwealth agencies: the Australian Bureau of Criminal Intelligence and the Office of Strategic Assessments.

    The broad role of the Australian Crime Commission is to provide an enhanced national law enforcement capacity with respect to criminal activity of national significance. In performing this role, the Australian Crime Commission conducts intelligence operations and investigations into serious and organised crime.

    As the Commonwealth Constitution does not give the Commonwealth any specific legislative power in relation to criminal law, a uniform legislative scheme, similar to that underpinning the National Crime Authority supports the national operations of the Australian Crime Commission.

    The Australian Crime Commission is established pursuant to the Australian Crime Commission Establishment Act 2002 (Cth) which amended the National Crime Authority Act 1984 (Cth). The amended Act was named the Australian Crime Commission Act 2002 (Cth).

    Pursuant to the Australian Crime Commission Act 2002 (Cth) the Australian Crime Commission is able to conduct investigations and intelligence operations concerning serious and organised crime relating to Commonwealth offences or State offences (with a federal aspect).

    The primary purpose of the Australian Crime Commission (Western Australia) Bill 2003 is to complement the Australian Crime Commission Act 2002 (Cth) and enable the Australian Crime Commission to conduct intelligence operations and investigations into serious and organised crime in relation to State offences (irrespective of whether those offences have a federal aspect).

    In conducting intelligence operations and investigations into serious and organised crime, the Australian Crime Commission is vested with coercive powers such as the power to require witnesses to attend and give evidence. The use of these powers must be authorized by the Board of the Australian Crime Commission which comprises 13 voting members, nine of whom are the heads of the various Commonwealth and State police forces.

    Under the National Crime Authority regime, the Inter-Governmental Committee (comprising the State and Commonwealth Ministers) approved references by the Commonwealth and State Ministers to the National Crime Authority for the investigation of criminal offences using coercive powers. Under the Australian Crime Commission scheme, the Inter-Governmental Committee is instead responsible for oversight of the Australian Crime Commission.

    There are a number of amendments which are set out below that the Standing Committee on Uniform Legislation and General Purposes considers are required to enable the Australian Crime Commission to operate effectively pursuant to the Australian Crime Commission (Western Australia) Bill 2003.

    In addition, there are a number of other matters the Standing Committee on Uniform Legislation and General Purposes noted:

  • The shift in the responsibility for the authorization of the use of coercive powers from the Inter-Governmental Committee to the Board and the accountability mechanisms relating to the powers of the Australian Crime Commission and the Board (paragraphs 4.2 to 4.7 to and 4.53 to 4.59).
  • The fact that, unlike the National Crime Authority regime, the Board can authorize the Australian Crime Commission to conduct intelligence operations and investigations using coercive powers in relation to State offences within Western Australia irrespective of the consent of the State representative on the Board (paragraphs 2.42 to 2.48).
  • The potential overlap in jurisdiction between the Australian Crime Commission and the Corruption and Crime Commission (paragraphs 3.11 to 3.22).
  • Clause 3 and the potential for the definition of ‘serious and organised crime’ to be expanded by regulation (paragraphs 3.5 to 3.10).
  • Clause 3(3) which enables the Australian Crime Commission to investigate incidental offences to ‘serious and organised crime’ (paragraphs 3.23 to 3.28).
  • Clause 22 and offences of disclosure (paragraphs 3.29 to 3.37).
  • Clause 23 and the abrogation of the privilege against self-incrimination (paragraphs 3.47 to 3.66).
  • Clause 24 and the ability of the Australian Crime Commission to detain persons pursuant to arrest warrants (paragraphs 3.86 to 3.90).
  • Clause 47 and obstructing, hindering or disrupting the Australian Crime Commission or an examiner (paragraphs 3.125 to 3.130).

    Recommendations

    Recommendations are grouped as they appear in the text at the page number indicated:

    Page 43

    Recommendation 1: The Committee recommends that the Australian Crime Commission (Western Australia) Bill 2003 expressly preserve the operation of the Parliamentary Privileges Act 1891. This can be effected in the following manner:

    Clause 32:

    Page 37, after line 11 - To insert -

    (2) Despite subsection (1), the performance or exercize of a function or power conferred or authorized under this Act is subject in every case to the Parliamentary Privileges Act 1891.


    ”.


    Page 45

    Recommendation 2: The Committee recommends that clause 24 of the Australian Crime Commission (Western Australia) Bill 2003 be amended to explicitly state that an application for a warrant for the arrest of a witness is made to a Judge sitting in chambers. This can be effected in the following manner:

    Page 26, line 20 - To insert after “Supreme Court” –

    “ sitting in chambers ”.

    Page 46

    Recommendation 3: The Committee recommends that clause 28 of the Australian Crime Commission (Western Australia) Bill 2003 be amended to explicitly state that an application for an order for delivery to an examiner of the passport of a witness is made to a Judge sitting in chambers. This can be effected in the following manner:

    Page 29, line 17 - To insert after “Court” –

    “ sitting in chambers ”.

    Page 51

    Recommendation 4: The Committee recommends that the Australian Crime Commission (Western Australia) Bill 2003 be amended to ensure that a legal practitioner appointed under clause 7 is within the ambit of clause 44 which is a statutory secrecy provision. This can be effected in the following manner:

    Clause 3:

    Page 5, after line 23 - To insert -

    (2a) For the purposes of this Act (except the definition of “Commonwealth body or person” in subsection (1)) the definition of “member of the staff of the ACC” in section 4(1) of the ACC Act is taken to extend to a legal practitioner appointed under section 7.


    ”.


    Clause 71(2)(d):

    Page 58, line 23 - To insert after “Commonwealth” -


    as extended by section 3(2a) of the Australian Crime Commission (Western Australia) Act 2004.


    ”.

    Page 55

    Recommendation 5: The Committee recommends that clause 45 which relates to the CEO delegating functions under the Australian Crime Commission (Western Australia) Bill 2003 be amended to prevent the CEO from delegating the power of delegation. This can be effected in the following manner:

    Clause 45:

    Page 46, line 12 - To insert after “under” -

    “ another provision of ”.

    Page 60

    Recommendation 6: The Committee recommends that clause 64(3) which permits retrospective transitional regulations and the associated clauses 64(4) and 64(5) be deleted. This can be effected in the following manner:

    Page 53, line 19 to page 54, line 6 - To delete the lines.

    Page 61

    Recommendation 7: The Committee recommends that clause 66 of the Australian Crime Commission (Western Australia) Bill 2003 be deleted. This can be effected in the following manner:

    Page 55, lines 8 to 19 - To delete the clause.

    Page 69

    Recommendation 8: The Committee recommends that clause 43 of the Australian Crime Commission (Western Australia) Bill 2003 be amended to remove the restriction in clause 43(3) applying to the State Minister. This can be effected in the following manner:

    Page 42, line 6 - To delete “Subject to subsection (3),”.

    Page 42, lines 12 to 16 - To delete the lines.

    Page 77

    Recommendation 9: The Committee recommends that the Australian Crime Commission (Western Australia) Bill 2003 be amended to require that upon the State Minister becoming aware that the review conducted under section 61A of the Australian Crime Commission Act 2002 (Cth) has been tabled in the Commonwealth Parliament, that the State Minister do inform the State Parliament of that fact and obtain and table a copy of the report in State Parliament. This can be effected in the following manner:

    Page 49, after line 8 - To insert the following new Clause –


    49A Tabling of the review of the ACC Act

    At the earliest opportunity after the State Minister becomes aware that a report under section 61A of the ACC Act has been laid before the Commonwealth Parliament the State Minister must -

    (a) cause a copy of the report to be laid before each House of Parliament; or

    (b) if copies of the report are not then available, notify each House that a report has been presented under section 61A and indicate when it is expected that a copy will be laid before it.


    ”.

    Page 80

    Recommendation 10: The Committee recommends that the Australian Crime Commission (Western Australia) Bill 2003 be amended to require that the State Minister cause a review of the operation of the Act and table that review in State Parliament. This can be effected in the following manner:

    Page 49, after line 8 - To insert the following new Clause –


    49B Review of Act

    (1) The State Minister must cause an independent review of the operation and effectiveness of this Act to be undertaken as soon as possible after the expiration of 3 years after its commencement.

    (2) A person who undertakes such a review must give the State Minister a written report of the review.

    (3) The State Minister must cause a copy of the report of the review to be laid before each House of Parliament of the State within 4 years after the commencement of this Act.


    ”.

    Page 82

    Recommendation 11: The Committee recommends that the Australian Crime Commission (Western Australia) Bill 2003 be amended to provide for a review of the provisions of the Australian Crime Commission (Western Australia) Bill 2003 in accordance with paragraph 4.79.