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AUSTRALIAN CRIME COMMISSION (SOUTH AUSTRALIA) BILL
The Hon. M.J. ATKINSON (Attorney-General) obtained leave and introduced a bill to make provision for the operation of the Australian Crime Commission in South Australia; to repeal the National Crime Authority (State Provisions) Act 1984; to make related amendments to other acts and for other purposes. Read a first time.
The Hon. M.J. ATKINSON: I move:
That this bill be now read a second time.
The National Crime Authority was created by the commonwealth National Crime Authority Act 1984 and started on 1 July 1984. It was created owing to inquiries into organised crime in Australia in the early 1980s and was a national recognition of the need to create a specialist national law enforcement agency to combat organised crime. For obvious constitutional reasons, it was necessary for that body to have underpinning and coordinated state legislation. In South Australia, that was the National Crime Authority (State Provisions) Act 1984.
At the Summit on Terrorism and Multi-jurisdictional Crime on 5 April 2002, Australian government leaders agreed to replace the National Crime Authority with an Australian Crime Commission. Commonwealth legislation to establish the ACC, the Australian Crime Commission Act 2002 (the commonwealth act), started on 1 January 2003. The ACC builds on the strengths of the NCA while removing barriers to its effectiveness. The ACC is a crucial element in the investigation and prosecution of complicated and organised criminal activity of a sophisticated kind. It is important to note that the ACC has a new criminal intelligence role that includes criminal intelligence collection, analysis and dissemination nationally. This function accords with a growing policing emphasis at all levels for intelligence led investigations of serious and organised criminal activity.
Ms Chapman interjecting:
The Hon. M.J. ATKINSON: Yes, that exists. Complementary state and territory legislation is necessary to provide for the operation of the ACC under state and territory law, so as to ensure that the ACC can operate effectively to combat organised crime across jurisdictional boundaries. The state bill will enable the ACC to conduct its operations into activity that breaches state law, whether or not those offences have a federal aspect. I commend the bill to members. I seek leave to have the balance of the second reading explanation incorporated in Hansard without my reading it.
Leave granted.
At its meeting on 5 November, 2002, the Inter-Governmental Committee on the NCA (the IGC-NCA, now the IGC-ACC) agreed to arrangements for the preparation of a model States' and Territories' Bill to complement the Commonwealth Act. Specifically, the IGC-NCA endorsed the preparation of a model Bill by the Parliamentary Counsel's Committee (PCC). A model Bill was finalised by the PCC, in consultation with officers in each State and Territory and the Commonwealth.
Broadly, the model Bill:
× provides for the functions of the ACC under South Australian law, including the functions of conducting investigations and intelligence operations into relevant criminal activity;
× establishes and provides for the new functions of the Board and CEO under South Australian law. The functions complement the provisions of the Commonwealth Act that establish the ACC's governance;
× provides for the authorisation of special intelligence operations and special investigations by the Board (special ACC operations/investigations). The Board's authorisation of special ACC operations/investigations will be subject to a number of safeguards in the form of special requirements for the composition of the Board, special voting requirements and a power for the IGC-ACC to revoke the authorisation;
× provides for the investigatory powers of the ACC under South Australian law, including search powers under warrant and coercive examination powers. These powers will only be available to the ACC in special ACC operations/investigations. The ACC's examination powers under South Australian law will be exercised by examiners, who will be independent statutory officers appointed under the Commonwealth Act;
× creates offences for failure to comply with the provisions of the Act smoothing the effective performance of the ACC's functions under South Australian law. These offences will include failing to attend an examination or failing to answer questions, and failing to produce documents or things when required to do so by a summons. The offences in the Bill will reflect the offences contained in the Commonwealth Act and the existing South Australian NCA legislation; and
× repeals the existing South Australian NCA legislation and contains necessary transitional provisions to smooth the transition from the NCA to the ACC under State law and consequential amendments to other Acts that are necessary because of the NCA's replacement by the ACC.
In general terms, the Bill is a part of complementary legislation enacted both in other States and Territories and at the Commonwealth level to ensure that Australia has an enhanced and effective national framework to allow the new ACC to fight serious organised crime.
I commend the Bill to Members.
Explanation of Clauses
Part 1—Preliminary
1—Short title
2—Commencement
These clauses are formal.
3—Interpretation
This clause defines the words and expressions for the purposes of the Bill. Clause 3(1) includes the following key words and expressions:
ACC operation/investigation means an ACC State intelligence operation or an ACC State investigation. This covers both the ACC's function in relation to intelligence operations and its function in relation to investigating relevant criminal activity.
Relevant criminal activity is defined in the Commonwealth Act to mean any circumstances implying, or any allegations, that a serious and organised crime may have been, may be being, or may in future be, committed against a Commonwealth, State or Territory law. This Commonwealth definition is applied to the Bill under the operation of clause 3(2).
ACC State intelligence operation means an intelligence operation that the ACC is undertaking under clause 5(b). This covers the ACC's function in undertaking intelligence operations in relation to relevant criminal activity relating to State offences.
ACC State investigation means an investigation that the ACC is conducting under clause 5(a). This covers the ACC's function in conducting investigations in relation to relevant criminal activity relating to State offences.
intelligence operation means the collection, correlation, analysis or dissemination of criminal information and intelligence relating to a relevant criminal activity. Intelligence operation has a broad meaning to ensure that the ACC is able to undertake fully its criminal intelligence role under State law.
serious and organised crime is defined to cover a wide range of serious offences that are the same as those contained in the equivalent definition in the Commonwealth Act, except for certain offences under the Commonwealth Proceeds of Crime Act 2002 that are not relevant in a State context. The offences listed in the definition of "serious and organised crime" in the Bill mirror the offences that the former NCA could investigate, with the addition of offences that involve firearms and cybercrime. Cybercrime has been added to enable the ACC to respond to this emerging issue. Firearms offences have been added to the list to ensure that the ACC has a clear power to investigate the illegal trafficking of firearms.
The definition of serious and organised crime covers a listed offence that is punishable by 3 years' imprisonment or more and that is not committed in the course of a genuine industrial dispute of a specified kind. It does not include an offence in relation to which the time for commencement of prosecution has expired.
The wide range of serious offences included within the definition of "serious and organised crime" will ensure that the ACC has a broad basis on which to undertake its investigatory and criminal intelligence functions.
The definition of serious and organised crime covers a listed serious offence where there are also specified organised crime elements involved in the offence in question. In particular, the offence must also—
× involve 2 or more offenders and substantial planning and organisation; and
× involve, or be an offence of a kind that ordinarily involves, the use of sophisticated methods and techniques; and
× be an offence that is committed, or is of a kind that is ordinarily committed, in conjunction with other offences of a like kind.
special ACC operation/investigation means an ACC State intelligence operation or an ACC State investigation that the Board has determined to be a special operation or investigation. This is an important definition as the ACC can only access its special powers, such as search warrants and examinations, as part of a special ACC operation/investigation. It cannot access these powers for other ACC investigations or operations authorised by the Board.
Clause 3(2) applies definitions of terms contained in the Commonwealth Act to the Bill unless the Bill indicates a contrary intention.
Clause 3(3) extends the meaning of the term "serious and organised crime" under the Bill to include incidental offences that are connected with a course of activity involving the commission of a serious and organised crime.
Clause 3(4) makes it clear that references in the Act to a function include a reference to a power or duty, other than in Part 2 (which deals with the functions and governance of the ACC).
4—Act to bind Crown
Clause 4 provides that the Bill binds the Crown in right of the State and, so far as the legislative power of the Parliament permits, the Crown in all its other capacities.
Part 2—The Australian Crime Commission, the Board and the Inter-Governmental Committee
Division 1—The Australian Crime Commission
5—Functions of ACC
Clause 5 sets out the functions of the ACC. This clause complements section 7A of the Commonwealth Act, which provides for the functions of the ACC under that Act.
Clause 5(a) provides for the investigatory function of the ACC, which is similar to the investigatory function previously undertaken by the NCA. This provision will enable the ACC to investigate relevant criminal activity where the Board has consented to the ACC doing so under the Commonwealth Act. The ACC will only be empowered to investigate relevant criminal activity to the extent that it is, or includes, a State offence or offences.
Clause 5(b) provides for the ACC to undertake intelligence operations. This function reflects the new role that the ACC has in relation to criminal intelligence, in addition to the investigatory function previously undertaken by the NCA. This provision will enable the ACC to undertake intelligence operations where the Board has consented to the ACC doing so under the Commonwealth Act. As with its investigatory function, the ACC will only be empowered to undertake intelligence operations in connection with State offences.
Clause 5(c) provides that the ACC must provide reports to the Board on the outcomes of its investigations and intelligence operations.
Clause 5(d) provides that the ACC has such other functions as are conferred on it by other provisions of the Bill or any other Act. For example, functions could be conferred on the ACC by other State laws creating investigative powers, subject to the necessary legislative consent under the Commonwealth Act.
6—CEO to manage ACC operations/investigations
Clause 6 provides that the CEO's functions are to manage, coordinate and control ACC operations and investigations, determine the head of an ACC operation or investigation and arrange for an examiner who is to be able to exercise his or her powers under the Bill in relation to a special ACC operation/investigation. This provision complements a similar provision contained in section 46A of the Commonwealth Act. It should be noted that under section 46A of the Commonwealth Act, the CEO is also responsible for the day to day administration of the ACC.
7—Counsel assisting ACC
Clause 7 enables the CEO to appoint a legal practitioner to assist the ACC. This complements an equivalent provision in section 50 of the Commonwealth Act.
Division 2—The Board of the ACC
8—Functions of Board
Clause 8 sets out the functions of the Board. This clause complements section 7A of the Commonwealth Act, which provides for the functions of the ACC under that Act. This clause should be read together with section 55A(3) of the Commonwealth Act, which requires Board consent under that Act for the ACC to undertake an ACC State intelligence operation or ACC State investigation.
Clause 8(1)(a) provides that the Board has the function of determining whether an ACC operation or investigation is a special operation or investigation, which then allows for the exercise of coercive powers under the Bill.
Clause 8(1)(b) provides that it is a Board function to determine the classes of persons to participate in an ACC State intelligence operation/investigation. For example, the Board may determine that members of a Police Force of a State that are seconded to the ACC are to participate in a particular ACC State intelligence operation/investigation.
Clause 8(1)(c) provides that it is a function of the Board to establish task forces. A task force is one means by which the ACC could conduct an ACC State intelligence operation/investigation.
Clause 8(1)(d) provides that the Board has such other functions as are conferred on it by other provisions of the Bill.
Clauses 8(2) and 8(3) set out threshold tests for the authorisation by the Board of the use of special powers under the Bill.
Before determining that an operation is a special operation, the Board must first consider whether methods of collecting the criminal information and intelligence that do not involve the use of those powers have been effective.
Before determining that an investigation is a special investigation, the Board must first consider whether ordinary police methods of investigation into the matters are likely to be effective.
These provisions provide an important safeguard on the authorisation by the Board of the use of special powers under the Bill.
Clause 8(4) sets out the details that must be contained in a written determination of the Board authorising the use of special powers. The determination must—
× describe the general nature of the circumstances or allegations constituting the relevant criminal activity; and
× state that the serious and organised crime is, or the serious and organised crimes are or include, an offence or offences against a State law; and
× set out the purpose of the operation or investigation.
These details set the parameters for the operation or investigation and represent another safeguard on the exercise of special powers under the Bill.
Clause 8(5) requires the Chair of the Board to provide to the IGC a copy of a determination authorising the use of special powers within 3 days of the determination being made. This is necessary to facilitate the IGC's oversight function under clause 16 in relation to the authorisation of special powers.
Clause 8(7) makes it clear that the provisions in clauses 9 to 15 relating to Board meetings have effect in relation to the Board's functions under the Bill. The provisions in clause 9 to 15 complement equivalent provisions in sections 7D to 7K of the Commonwealth Act.
9—Board meetings
Clause 9 provides for the manner in which Board meetings are to be held. The Chair must ensure that Board meetings are convened in accordance with the complementary provisions governing Board meetings in section 7D of the Commonwealth Act.
10—Presiding at Board meetings
Clause 10 provides that the Chair of the Board or another eligible Commonwealth Board member nominated by the Chair must preside at a Board meeting. An eligible Commonwealth Board member is defined in the Commonwealth Act to mean, in effect, another Commonwealth member of the Board, other than the CEO.
11—Quorum at Board meetings
Clause 11 provides that a quorum of the Board is 7 members, excluding the CEO.
12—Voting at Board meetings
Clause 12 sets out the voting procedures that apply at Board meetings. The CEO is a non-voting member of the Board.
Generally a simple majority vote will determine decisions of the Board. However, special voting requirements apply to Board determinations authorising the use of special powers, as an additional safeguard on the exercise of these powers. The Board can only determine that an ACC operation or investigation is a special operation or investigation if at least 9 Board members agree, including at least 2 eligible Commonwealth Board members.
13—Conduct of Board meetings
Clause 13 provides that the Board may regulate proceedings at its meetings as it considers appropriate and requires minutes of Board meetings to be kept.
14—Resolutions outside of Board meetings
Clause 14 allows decisions of the Board to be taken by resolution out of session to enable the Board to make decisions without a formal meeting being held. The special voting requirements that apply to a determination of the Board authorising the use of special powers will continue to apply to any such determination that is made out of session.
15—Board committees
Clause 15 enables the Board to establish committees to assist in carrying out its functions. This provision recognises the need for the Board to operate by committees where appropriate. However, there are a number of limitations imposed on the establishment and functions of committees to ensure sufficient accountability in relation to the exercise of Board functions by committees. These limitations include the following—
× a committee can only be established with the agreement of all members of the Board (other than the CEO, who is a non-voting member); and
× a committee must comply with any directions given to it by the Board; and
× the Board can dissolve a committee at any time.
Importantly, the Board's function of determining whether an ACC operation or investigation is a special operation or investigation cannot be exercised by a committee. This function can only be exercised by the full Board.
A committee may regulate proceedings at its meetings as it considers appropriate and must ensure that minutes of its meetings are kept.
Division 3—The Inter-Governmental Committee
16—Functions of Committee
Clause 16 provides for the functions of the IGC in relation to the revocation of special determinations made by the Board, and complementary powers for the IGC to obtain further information about a special determination from the Chair of the Board. These provisions complement equivalent provisions in section 9 of the Commonwealth Act. Section 9 of the Commonwealth Act also provides more generally for the oversight and monitoring role of the IGC in relation to the ACC and the Board.
Clauses 16(1) to 16(5) set out procedures for the IGC to obtain further information from the Chair of the Board in relation to a Board determination authorising the use of special powers. The Chair of the Board must not provide information requested by the IGC if the public disclosure of the information could prejudice a person's safety or reputation or the operations of law enforcement agencies. If the Chair of the Board decides, on this ground, not to provide the information sought, the IGC can refer the request to the State Minister, who must determine whether disclosure of the information could prejudice a person's safety or reputation or the operations of law enforcement agencies. This mechanism for referral of the matter to the State Minister provides an additional check on the provision to the IGC of information that it may require in determining whether to revoke a special determination under clause 16(6).
Clause 16(6) provides for the IGC by resolution to revoke a special determination made by the Board. Such a resolution can be made with the agreement of the member of the IGC representing the Commonwealth and at least 5 other members of the IGC. The IGC's power to revoke a special determination is a further safeguard on the exercise of the special powers under the Bill.
Clause 16(7) requires the IGC to notify the Chair of the Board and the CEO if it revokes a special determination. The revocation takes effect when the CEO is so notified.
Part 3—Examinations
17—Examinations
Clause 17 provides that an examiner may conduct an examination for the purposes of a special ACC operation/investigation. This clause complements an equivalent provision in section 24A of the Commonwealth Act.
The power to conduct examinations, which includes coercive powers to produce documents and answer questions, is a powerful investigative tool that is central to the role and functions of the ACC.
Examiners are independent statutory officers appointed by the Governor-General under the Commonwealth Act. Under the Commonwealth Act, an examiner must have been enrolled as a legal practitioner for at least 5 years.
The independence of examiners is an important safeguard on the exercise of the special powers under the Bill. While clause 6(4) enables the CEO to allocate an examiner to a particular special ACC operation/investigation, this does not interfere with the statutory discretion of the examiner in exercising his or her powers.
18—Conduct of examination
Clause 18 regulates the conduct of examinations. This clause complements an equivalent provision in section 25A of the Commonwealth Act.
Clause 18(1) provides that an examiner may regulate the conduct of proceedings as he or she thinks fit.
Clause 18(2) provides for legal representation of witnesses and, in some circumstances, non-witnesses.
Clause 18(3) requires than an examination must be held in private and empowers the examiner to give directions regarding the presence of persons during an examination.
Clause 18(4) makes it clear that such a direction does not prevent the presence of the legal representative of a witness, or the legal representative of a non-witness if the examiner has consented to his or her presence.
Clause 18(5) precludes the presence of a person (other than approved ACC staff members) at an examination unless the examiner has given a direction under clause 18(3) permitting the person to be present or clause 18(4) applies.
Clause 18(6) provides for the examination and cross-examination of witnesses.
Clause 18(7) requires an examiner to inform a witness of the presence of a non-witness at an examination and allow the witness to comment on that person's presence.
Clause 18(8) makes it clear that a non-witness does not cease to be entitled to be present at an examination if the examiner fails to comply with clause 18(7) or a witness comments adversely on the presence of a non-witness. For example, if the ACC is coordinating its activities, in accordance with clause 37(2), with the functions of an overseas authority that performs similar functions to the ACC and a representative of that authority is present at an examination, the examiner must inform a witness of that person's presence.
Clause 18(9) enables an examiner to make a non-publication direction prohibiting the publication of—
×evidence given at an examination or documents or things produced to the examiner; or
×information that might enable a witness to be identified; or
×the fact that a person has or may give evidence at an examination.
This provision would enable an examiner to make a non-publication direction if, for example, the publication of matters relating to the conduct of an examination might compromise the effectiveness of an ACC operation or investigation. An examiner must make a non-publication direction if the failure to do so might prejudice the safety or reputation of a person or the fair trial of a person who has been or may be charged with an offence.
Clauses 18(10) and 18(11) provide for the CEO to revoke a non-publication direction made by an examiner under clause 18(9). This power is consistent with the CEO's functions of managing, regulating and controlling ACC operations and investigations under clause 6(1).
Clause 18(12) sets out a procedure under which a court can require evidence given before an examiner that is subject to a non-publication direction under clause 18(9) to be made available to the court. A court can require evidence to be made available if a person has been charged with an offence and the court considers that it may be desirable in the interests of justice that evidence given before an examiner be made available to that person or his or her legal practitioner. Once the evidence has been made available to the court, clause 18(13) enables the court to make that evidence available to the charged person or his or her legal practitioner.
Clause 18(14) makes it an offence to be present at an examination contrary to clause 18(5) or to contravene a non-publication direction given by an examiner under clause 18(9). The maximum penalty is a fine of $2200 or imprisonment for one year.
Clause 18(15) requires an examiner to give the head of the special ACC operation/investigation at the conclusion of an examination a record of proceedings of the examination and any documents or things given to the examiner.
19—Power to summon witnesses and take evidence
Clause 19 provides for an examiner's powers to summon witnesses and take evidence. This clause complements an equivalent provision in section 28 of the Commonwealth Act.
Clause 19(1) enables an examiner to summon a person to appear before him or her to give evidence and to produce documents or things. The examiner must be satisfied it is reasonable to do so and must record his or her reasons for issuing the summons.
Clause 19(3) requires a summons to be accompanied by a copy of the determination of the Board that the State ACC intelligence operation or investigation is a special operation/investigation.
Clause 19(4) requires a summons to set out the general nature of the matters in relation to which the examiner intends to question the person, unless this would prejudice the effectiveness of the special ACC operation/investigation.
Clauses 19(5) and 19(6) empower an examiner to require a person appearing at an examination to produce a document or thing and take evidence on oath or affirmation.
Clause 19(8) makes it clear that the powers to summon witnesses and take evidence under clause 19 can only be exercised in relation to a special ACC operation or investigation. This means that these powers will be subject to the safeguards that apply under the Bill to the authorisation of the use of special powers.
20—Power to obtain documents
Clause 20 provides for an examiner's power to obtain documents. This clause complements an equivalent provision in section 29 of the Commonwealth Act.
Clause 20(1) enables an examiner, by written notice, to require a person to attend before the examiner or a member of staff of the ACC to produce specified documents or things relevant to a special ACC operation/investigation. The examiner must be satisfied it is reasonable to do so and must record his or her reasons for issuing the notice.
Clause 20(3) makes it clear that a notice may be issued in relation to a special ACC operation/investigation regardless of whether an examination before an examiner is being held.
Clause 20(4) provides that a person must not fail or refuse to comply with a notice to produce documents or things and clause 20(5) makes a contravention of that provision an offence. The maximum penalty is a fine of $22 000 or 5 years' imprisonment.
Clause 20(6) applies the provisions of clause 23(3) to (5) and (7) in relation to a person required to produce certain things under clause 20.
The offence provision at clause 23(6) is applied by clause 20(7) in respect of a contravention of clause 20.
21—Disclosure of summons or notice may be prohibited
Clause 21 provides for the inclusion of a non-disclosure notation in a summons or notice issued under clause 19 or 20 to prohibit the disclosure of information about the summons or notice or any official matter connected with it. This clause complements an equivalent provision in section 29A of the Commonwealth Act.
Clause 21(2) sets out the circumstances in which an examiner may, or must, include a non-disclosure notation in a summons or notice issued under clause 19 or 20. A notation—
× must be included if the examiner is satisfied that failing to do so would reasonably be expected to prejudice a person's safety or reputation, the fair trial of a person or the effectiveness of an ACC operation or investigation; and
× may be included if the examiner is satisfied that failing to do so might prejudice a person's safety or reputation, the fair trial of a person or the effectiveness of an ACC operation or investigation. An examiner may also include a notation if he or she is satisfied that the failure to do so might otherwise be contrary to the public interest.
Clause 21(3) requires that a written statement setting out a person's rights and obligations under clause 22, which creates offences for the contravention of a notation, must accompany the notation.
Clause 21(4) provides for the automatic cancellation of a notation in certain circumstances where it is no longer necessary to prevent disclosure of information about a summons or notice.
Clause 21(5) requires the CEO to serve written notice of the cancellation of a notation to each person who received the summons or notice containing the notation.
22—Offences of disclosure
Clause 22 creates offences for disclosing certain information about a summons or notice that contains a non-disclosure notation under clause 21. These offences reflect equivalent offences in section 29B of the Commonwealth Act.
Clause 22(1) makes it an offence for a person who receives a summons or notice containing such a non-disclosure notation to disclose information about the summons or notice or official matters connected with the summons or notice. The maximum penalty is a fine of $2200 or one year's imprisonment.
Clause 22(2) sets out exceptions to clause 22(1) in which disclosure is permitted. This recognises that there will be circumstances in which it is necessary and appropriate to disclose information about a summons or notice. A person who receives a summons or notice containing a non-disclosure notation can disclose information about the summons or notice or an official matter connected with it—
× in accordance with any circumstances specified in the notation; or
× to a legal practitioner for the purposes of obtaining legal advice or representation; or
× if the person is a body corporate—to an officer or agent of the body corporate to ensure compliance with the summons or notice; or
× if the person is a legal practitioner—for the purposes of obtaining the consent of another person under clause 23(3) to the legal practitioner answering a question or producing a document before an examiner.
Clause 23(3) will apply where a legal practitioner is required to answer a question or produce a document that would disclose communications protected by legal professional privilege, and he or she seeks the agreement of the person to whom the privilege applies to answer the question or produce the document.
Where a person receives information about a summons or notice in accordance with clause 22(2) or (4), clause 22(4) sets out the circumstances in which that person can disclose the information. These are—
× if the person is an officer or agent of the body corporate that received the summons or notice, he or she may disclose the information to another officer or agent to ensure compliance with the summons or notice or to a legal practitioner for the purposes of obtaining legal advice or representation; or
× if the person is a legal practitioner, he or she may disclose the information for the purposes of providing advice or representation.
Clause 22(3) makes it an offence for a person who receives information about a summons or notice in the circumstances set out in clause 22(2) or (4) to disclose information about the summons or notice or official matters connected with the summons or notice in certain circumstances. These are—
× While the person who has received the information remains a person of a kind to whom a disclosure is permitted to be made, he or she cannot disclose information about the summons or notice except in accordance with clause 22(4). For example, a legal practitioner who receives information about a summons or notice for the purposes of providing legal advice or representation can only make a disclosure for that purpose.
× While the person who has received the information ceases to be a person of a kind to whom a disclosure is permitted to be made, he or she cannot disclose information about the summons or notice in any circumstances. For example, a legal practitioner who receives information about a summons or notice for the purposes of providing legal advice or representation cannot disclose that information for any purpose if he or she ceases to be a legal practitioner.
The maximum penalty for contravention of clause 22(3) is a fine of $2200 or one year's imprisonment.
Clause 22(5) provides that the disclosure offences in clause 22 will cease to apply when the notation contained in the summons or notice is automatically cancelled under clause 21(4), or 5 years after the summons or notice has been issued, whichever is sooner. This recognises that once 5 years have elapsed after the issue of a summons or notice, the interests affected by the contravention of a non-disclosure notation in the summons or notice will no longer be such as to warrant criminal punishment for the contravention.
23—Failure of witnesses to attend and answer questions
Clause 23 provides for offences for failure to attend and answer questions at an examination and deals with self-incrimination and use immunity. This clause complements an equivalent provision in section 30 of the Commonwealth Act.
Clause 23(1) provides that a person must not fail to attend an examination in answer to a summons.
Clause 23(2) provides that a witness at an examination must not refuse or fail to take an oath or affirmation, refuse or fail to answer a question or refuse or fail to produce a document or thing in answer to a summons.
Clause 23(3) enables a legal practitioner to refuse to answer questions or produce documents at an examination on the ground of legal professional privilege, subject to a requirement that the legal practitioner provides the name and address of the person to whom the privilege applies if required to do so by the examiner.
Clauses 23(4) and 23(5) set out provisions dealing with self-incrimination and use immunity in relation to evidence given at an examination.
Clause 23(4) sets out the circumstances in which a person may claim the privilege against self-incrimination. A person can claim the privilege if—
× before answering a question that the person is required to answer at an examination; or
× before producing, in answer to a summons, a business document that sets out details of earnings received by the person in respect of his or her employment and does not set out any other information; or
× before producing a thing in answer to a summons,
the person claims that the answer, document or thing might tend to incriminate the person or make the person liable to a penalty.
Clause 23(5) limits the use that can be made of certain evidence if one the situations in clause 23(4) exists. If one of these situations exists, the answer, document or thing cannot be used as evidence against the person, except in confiscation proceedings or proceedings in relation to the falsity of evidence given by the person. However, any evidence that is derived from the answer, document or thing may be used against the person.
Clause 23(6) makes it an offence to contravene clause 23(1), (2) or (3). The maximum penalty is a fine of $22 000 or 5 years' imprisonment.
Clause 23(7) clarifies that clause 23(3) does not affect the law relating to legal professional privilege. Thus, where a legal practitioner is required to provide certain information to an examiner and to do so would disclose privileged information, the legal practitioner may refuse to produce that information, unless the person to whom the privilege applies consents to its disclosure.
24—Warrant for arrest of witness
Clause 24 empowers a Judge of the Federal Court or the Supreme Court to issue a warrant for the arrest of a person in specified circumstances upon an application made by an examiner. This is an important power to ensure that the investigatory process of the ACC is not thwarted. This clause complements an equivalent provision in section 31 of the Commonwealth Act.
Clause 24(1) sets out the grounds for issue of such a warrant. The Judge must be satisfied by evidence on oath that there are reasonable grounds to believe that—
× a person who has been ordered to surrender his or her passport under clause 28 is nevertheless likely to leave Australia to avoid giving evidence before an examiner; or
× a person is attempting or is likely to attempt to evade service of a summons to appear at an examination that has been issued under clause 19(1); or
× a person has committed an offence under clause 23(1) by failing to attend an examination in answer to a summons.
Clause 24(2) enables a warrant to be executed by any person to whom it is addressed. The person executing the warrant is empowered to break and enter premises etc to execute it.
Clause 24(3) precludes a member of the Australian Federal Police from executing a warrant unless he or she is also a member of staff of the ACC. This limitation is intended to ensure that the warrant provisions in clause 24 are within the legislative powers of the State.
Clause 24(4) enables a warrant to be executed even if the warrant is not in the possession of the person executing it.
Clause 24(5) makes it clear that reasonable force can be used in the execution of a warrant.
Clause 24(6) sets out the procedure for dealing with a person who is apprehended under a warrant. He or she must be brought as soon as practicable before a Judge of the Federal Court or the Supreme Court and the Judge or Court may admit the person to bail, order the continued detention of the person to ensure his or her appearance as a witness before an examiner or order the release of the person.
Clause 24(7) requires a person who is detained under clause 24 to be brought back before a Judge of the Federal Court or the Supreme Court within 14 days, or any other period fixed by the Judge or Court. The Judge or Court is then empowered to exercise any of the powers under clause 24(6) in relation to the person.
As the coercive examination powers under the Bill are only available in connection with a special ACC operation/investigation, the power to arrest and detain a person to ensure his or her appearance before an examiner will be subject to the safeguards that apply under the Bill in relation to the authorisation of the use of special powers.
25—False or misleading evidence
Clause 25 makes it an offence to give false or misleading evidence at an examination before an examiner. The maximum penalty is a fine of $22 000 or 5 years' imprisonment. This offence reflects an equivalent offence contained in section 33 of the Commonwealth Act.
26—Protection of witnesses from harm or intimidation
Clause 26 allows an examiner to make arrangements to protect a person who is appearing or has appeared at an examination before an examiner or proposes to give, or has given, information or other documents other than at an examination. An examiner can make arrangements to ensure that the safety of a person is not prejudiced or a person is not subject to intimidation or harassment. This clause complements an equivalent provision in section 34 of the Commonwealth Act.
27—Legal protection of examiners, counsel and witnesses
Clause 27 provides, in relation to an examination before an examiner, the same legal protection and immunity for examiners, witnesses and legal practitioners assisting the ACC or an examiner or representing a witness as would apply in proceedings in the High Court. This ensures that the conduct of an examination is not constrained by a risk of tortious liability that may otherwise arise from things said or done in the conduct of an examination. This clause complements an equivalent provision in section 36 of the Commonwealth Act.
28—Order for delivery to examiner of passport of witness
Clause 28 enables an examiner to apply to a Judge of the Federal Court for an order that a person who has been summonsed in connection with a special ACC operation/investigation to appear before the examiner, or who has appeared before the examiner, must surrender his or her passport to the examiner. This clause complements an equivalent provision in section 24 of the Commonwealth Act.
There must be reasonable grounds for believing that the person may be able to provide evidence, documents or things, or further evidence, documents or things, that could be of particular significance to the special operation/investigation. In addition, an order may only be made where there are reasonable grounds for suspecting that the person intends to leave Australia.
An order can authorise an examiner to retain a person's passport for a specified period of up to one month. This period can be extended, upon application, for a further period of up to one month, up to a maximum total period of 3 months.
As an order for the delivery of a passport can only be made in connection with a special ACC operation/ investigation, this power will be subject to the safeguards that apply under the Bill in relation to the authorisation of the use of special powers.
Part 4—Search warrants
29—Search warrants
Clause 29 enables an eligible person to apply to an issuing officer for a search warrant. This clause complements an equivalent provision in section 22 of the Commonwealth Act.
An eligible person is defined under section 4(1) of the Commonwealth Act to mean an examiner or a member of staff of the ACC who is also a member of the Australian Federal Police or a State police force. An issuing officer is defined under clause 3(1) of the Bill to mean a Federal Court Judge, a Federal Magistrate or a Judge of a State court.
Clause 29(1) provides that an eligible person can apply for a search warrant if he or she has reasonable grounds to suspect that there may be in any premises or other specified place a thing of a particular kind connected with a special ACC operation/investigation which he or she believes on reasonable grounds might be concealed, lost, mutilated or destroyed if a summons for the production of the thing were issued.
This means that a search warrant application can only be made in circumstances where the power to issue a summons for the production of a thing would be effective to secure the production of the thing in question.
Clause 29(2) sets out the things that a search warrant may allow an authorised person to do. An authorised person can enter and search the premises or other specified place and seize any things of the relevant kind, and deliver them to any person participating in the special ACC operation/investigation. An authorised person can use force, if necessary, to execute the warrant.
Clause 29(3) precludes a member of the Australian Federal Police from being an authorised person to execute a warrant unless he or she is also a member of staff of the ACC. This limitation is intended to ensure that the search warrant provisions in the Bill are within the legislative powers of the State.
Clause 29(4) sets outs conditions for the issue of a warrant. An affidavit must have been provided setting out the grounds on which the warrant is sought, the applicant must have provided any further information required by the issuing officer as to why the warrant is sought, and the issuing officer must be satisfied that there are reasonable grounds for issuing the warrant.
Clause 29(5) requires the issuing officer to state the grounds on which a warrant has been issued.
Clause 29(6) specifies the details that must be included in a warrant. The warrant must—
× state the purpose of the warrant, including a reference to the relevant special ACC operation/investigation with which the things the subject of the warrant are connected; and
× state when entry can be made pursuant to the warrant; and
× describe the kind of things that can be seized; and
× specify when the warrant ceases to have effect. The maximum period for which a warrant can be valid is one month.
Clause 29(8) makes it clear that reasonable force can be used in the execution of a warrant.
Clause 29(9) provides for the seizure of evidence of an offence that is found in the course of searching for things of the relevant kind under a warrant. Such evidence can only be seized if the person executing the warrant reasonably believes that the seizure is necessary to prevent its concealment, loss, mutilation or destruction or to prevent the evidence being used to commit an offence.
Clauses 29(10) and 29(11) provide for the retention and delivery of things seized under warrant. Clause 29(10) enables the head of a special ACC operation/investigation to retain a thing seized under warrant for as long as is reasonably necessary for the purposes of the relevant special ACC operation/investigation. If it is not, or ceases to be, reasonably necessary to retain a thing for such a purpose, the thing must be delivered—
× if it may be admissible evidence in proceedings by the Commonwealth, a State or a Territory for a civil remedy, to the relevant person or authority responsible for taking the proceedings; or
× otherwise, to the person who appears to be entitled to the possession of the thing.
These obligations do not apply if the CEO has already given the thing to the relevant Commonwealth or State Attorney-General or to a law enforcement agency or prosecuting authority in accordance with clause 34(1)(a), (b) or (c). That clause requires the CEO to assemble evidence that would be admissible in the prosecution of an offence and give it to the relevant Commonwealth or State Attorney-General, law enforcement agency or prosecuting authority.
Rather than delivering a thing seized under warrant to the person who appears to be entitled to it in accordance with clause 29(10), clause 29(11) enables a participant in a special ACC operation/investigation to deliver the thing to the Attorney-General of the Commonwealth or a State or to a law enforcement agency if it is likely to assist in the investigation of a criminal offence.
Clause 29(12) makes it clear that clause 29 does not affect other rights to apply for a warrant or other powers to issue a warrant. For example, clause 29 would not prevent a member of staff of the ACC who is also a member of the police force of the State from applying under other South Australian laws for a warrant in connection with an offence that is the subject of ACC State investigation.
30—Application by telephone for search warrants
Clause 30 allows an application to be made by telephone where a warrant is required urgently. This clause complements an equivalent provision in section 23 of the Commonwealth Act.
Where an application is made by telephone, the eligible person must first prepare an affidavit setting out the grounds on which the warrant is sought. However, if necessary, the application may be made before the affidavit has been sworn.
Clause 30(3) requires an issuing officer who issues a search warrant by telephone to inform the applicant of the terms of the warrant and the date it was issued and record the reasons it was issued on the warrant.
Clause 30(4) provides that a member of the staff of the ACC or a member of the Police Force of the State may complete a form of warrant in the terms indicated by the issuing officer, and must record the issuing officer's name and the date and time of issuing.
Clause 30(5) requires the applicant, by no later than the day after the warrant expires, to send the issuing officer the completed form of the warrant together with the applicant's sworn affidavit.
Part 5—Performance of functions and exercise of powers
31—Consent of Board may be needed before functions can be performed
Clause 31 provides that the conferral of functions on a Commonwealth body or person is subject to the consent of the Board under the Commonwealth Act. This provision complements section 55A(5A) of the Commonwealth Act, which provides that the CEO or an examiner cannot perform a duty or function or exercise a power under State law relating to the investigation of a relevant criminal activity or the undertaking of an intelligence operation unless the Board has consented to the ACC doing so.
32—Functions not affected by State laws
Clause 32 makes it clear, for the avoidance of doubt, that a Commonwealth body or person is not precluded by any State law from performing functions under the Act.
33—Extent to which functions are conferred
Clause 33 provides that the Act does not purport to impose any duty on a Commonwealth body or person to perform a function if the imposition would be beyond State legislative power. This provision is intended to ensure that the Act does not contravene any constitutional doctrine that restricts the duties that may be imposed on Commonwealth bodies or persons.
Clause 33 does not limit clause 35, which makes it clear that a function conferred on a federal judicial officer under the Act is conferred on him or her in a personal capacity. In addition, clause 33 does not limit section 22A of the Acts Interpretation Act 1915. That section is a general interpretative provision, which will apply such that the Bill will be read so as not to exceed State legislative power.
34—Performance of functions
Clause 34 imposes obligations on the CEO in relation to what he or she must do with information obtained by the ACC and provides for the CEO to make law reform recommendations to Ministers. This clause complements an equivalent provision in section 12 of the Commonwealth Act.
Where admissible evidence is obtained during the course of an ACC operation/investigation, the CEO must assemble the evidence and give it to the relevant Commonwealth or State Attorney-General, law enforcement agency or prosecuting authority. This obligation applies under clause 34(1) in relation to evidence that would be admissible in the prosecution of an offence and under clause 34(2) in relation to evidence that would be admissible in confiscation proceedings.
Clause 34(3) enables the Board to make a law reform recommendation or a recommendation for administrative reform to Ministers.
Clause 34(4) provides that where the ACC obtains information or intelligence in the course of performing one of its functions, that information or intelligence may be used for the purposes of other ACC functions. For example, information obtained during an intelligence operation may be used during an investigation into relevant criminal activity. This provision recognises the integrated nature of the ACC's intelligence and investigatory functions and ensures that the use of information by the ACC is not artificially restricted.
35—Functions of federal judicial officers
Clause 35 makes it clear that a function conferred by the Act on a federal judicial officer (which is defined to mean a Judge of the Federal Court or a Federal Magistrate) is conferred on that person in a personal capacity and not as a court or member of a court, and the federal judicial officer need not accept the function conferred. This provision is intended to ensure that the Act does not breach any constitutional doctrine that restricts the duties that may be conferred on federal judicial officers.
Clause 35(4) affords a federal judicial officer performing a function under the Act the same protection as a member of the court of which he or she is a member. This ensures that the performance by federal judicial officers of functions under the Act is not constrained by a risk of tortious liability that may otherwise arise from the performance of those functions.
36—Limitation on challenge to Board determination
Clause 36 limits, in certain circumstances, the challenges that may be made in relation to activities of the ACC. This clause complements an equivalent provision in section 16 of the Commonwealth Act.
Where the Board has determined that an ACC State intelligence operation/investigation is a special operation/investigation, then an act or thing done by the ACC because of that determination cannot be challenged in any court on the ground that the determination was not lawfully made. This prevents a court from looking behind a determination to see if it was properly made. For example, it prevents a challenge being made on the basis that there was an error in the procedure that led to the determination being made.
This provision does not prevent challenges in relation to the activities of the ACC once a determination is in place. Also, this limitation does not apply to proceedings initiated by the Attorney-General of the Commonwealth or a State.
37—Cooperation with law enforcement agencies and coordination with overseas authorities
Clause 37 makes it clear that the ACC must cooperate with other law enforcement agencies, so far as practicable, in performing its functions under the Act. The ACC may also coordinate its activities with the functions of overseas authorities that perform similar functions to those of the ACC. This clause complements an equivalent provision in section 17 of the Commonwealth Act.
38—Incidental powers of ACC
Clause 38 empowers the ACC to do all things necessary in connection with, or reasonably incidental to, the performance of its functions under the Act. This clause complements an equivalent provision in section 19 of the Commonwealth Act.
Part 6—General
39—Double jeopardy
Clause 39 makes it clear that a person is not liable to be punished for an offence under the Act if he or she has already been punished for the offence under the Commonwealth Act. This clause complements an equivalent provision in section 35A of the Commonwealth Act.
40—Arrangements for Board to obtain information or intelligence
Clause 40 provides that the State Minister may make an arrangement with the Commonwealth Minister for the Board to receive information or intelligence from the State or a State authority relating to relevant criminal activities. This provision complements section 21 of the Commonwealth Act.
This provision is intended to facilitate the making of Ministerial level arrangements in relation to the provision of State information or intelligence to the Board. It is not intended to preclude or limit the provision of information or intelligence to the Board from the State or State agencies by other means, for example, the provision to the Board of information or intelligence directly by the Police Force of the State.
41—Administrative arrangements with the Commonwealth
Clause 41 enables the State Minister to make an arrangement with the Commonwealth for the provision of human resources by the State to perform services for the ACC. This provision complements section 58 of the Commonwealth Act.
42—Judges to perform functions under the ACC Act
Clause 42 makes it clear that a judge of a State court may perform functions conferred on him or her by section 22, 23 or 31 of the Commonwealth Act. Section 22 of the Commonwealth Act empowers an issuing officer, which includes a Judge of a State court, to issue a search warrant and section 23 of the Commonwealth Act enables such a warrant to be issued upon a telephone application. The powers contained in sections 22 and 23 of the Commonwealth Act are equivalent to those contained in clauses 29 and 30, respectively, of the Bill. Section 31 of the Commonwealth Act empowers a Judge of a State Supreme Court to issue a warrant for the arrest of a witness, similarly to the power contained in clause 24.
43—Furnishing of reports and information
Clause 43 deals with the dissemination of reports and information about the performance of the ACC's functions to relevant persons. This clause complements equivalent provisions in section 59 of the Commonwealth Act.
The Chair of the Board must keep the Commonwealth Minister informed of the general conduct of the ACC in the performance of its functions under the Act. This recognises the role of the Commonwealth Minister in monitoring the general conduct of the ACC, as a Commonwealth body established by Commonwealth legislation.
The Commonwealth Minister may also request from the Chair of the Board information concerning a specific matter relating to the performance by the ACC of its functions under the Act.
A State Minister who is a member of the IGC may also request from the Chair of the Board information concerning a specific matter relating to the performance by the ACC of its functions under the Act. This enables the State Minister to obtain information independently about the conduct of the ACC functions as the Minister responsible for the administration of the Act.
The Chair of the Board must comply with the request unless the Chair considers that disclosure of information to the public could prejudice the safety or reputation of a person or the operations of law enforcement agencies. The IGC may request the Chair of the Board to—
× provide information to the IGC concerning a specific matter relating to an ACC operation/investigation that the ACC has or is conducting; and
× inform the IGC about the general conduct of the ACC in the performance of its functions under the Act.
The Chair of the Board must comply with such a request from the IGC, subject to a requirement that the Chair must not furnish a matter the disclosure of which to members of the public could prejudice the safety or reputation of a person or the operations of law enforcement agencies.
In addition to the IGC's power to request information from the Chair of the Board, the Chair of the Board—
× may inform the IGC at such times as he or she considers appropriate about the general conduct of the ACC in the performance of its functions under the Bill; and
× must provide to the IGC a report on the findings of any special ACC operation/investigation conducted by the ACC for transmission to the Governments represented on the IGC,
subject to a requirement that the Chair must not furnish a matter the disclosure of which to members of the public could prejudice the safety or reputation of a person or the operations of law enforcement agencies.
These provisions are intended to facilitate the role of the IGC in monitoring generally the work of the ACC.
Clause 43(8) enables the CEO to disseminate any relevant information that is in the ACC's possession to another law enforcement agency, foreign law enforcement agency or prescribed government authority. The CEO can only disseminate such information if it appears to him or her to be appropriate to do so, and the dissemination would not be contrary to a Commonwealth, State or Territory law that would otherwise apply.
The CEO is also empowered to provide, in specified circumstances, any information that is in the ACC's possession to—
× authorities responsible for taking civil remedies on behalf of the Commonwealth, a State or a Territory, where the information may be relevant for the purposes of taking such remedies in connection with Commonwealth, State or Territory offences; and
× a Commonwealth or State authority or a Territory Administration, where the information relates to the performance of the authority or Administration; and
× the Australian Security Intelligence Organisation, where the information is relevant to security as defined in section 4 of the Commonwealth Australian Security Intelligence Organisation Act 1979.
Clause 43(11) sets out a general prohibition on a report under the Act being made available to the public if it—
× contains a finding that an offence has been committed; or
× makes a recommendation for the prosecution of an offence,
unless the finding or recommendation indicates that it is based on evidence that would be admissible in the prosecution of a person for that offence. This provision is intended to ensure that the publication of a report containing these matters does not compromise the fair trial or reputation of a person.
44—Secrecy
Clause 44 imposes secrecy obligations on specified ACC officers. These officers are the CEO, a member of the Board, a member of staff of the ACC (including a person appointed as counsel assisting the ACC or a person who performs services for such a person) and an examiner. These obligations are intended to ensure that information that could jeopardise the effective conduct of the ACC's functions is not improperly disclosed, and complement similar obligations contained in section 51 of the Commonwealth Act.
Clause 44(2) makes it an offence for a specified ACC officer to record, divulge or communicate information acquired by him or her in the course of performing his or her functions under the Act, except for the purposes of, or in connection with the performance of his or her functions under, a relevant Act. This offence applies to conduct either while a person is a specified ACC officer or after he or she ceases to be such an officer. The maximum penalty for the offence is $5500 or one year's imprisonment.
Clause 44(3) ensures that a specified ACC officer cannot be required to—
× produce to a court documents that have come into the officer's possession in the course of performing his or her functions under the Bill; or
× divulge or communicate to a court matters that have come to the officer's notice in the performance of his or her functions under the Bill.
This is intended to preserve the secrecy of information relating to the ACC's functions in circumstances where a court would otherwise have power to require the production of documents or the answering of questions that would disclose that information.
Clause 44(3) provides for exceptions under which a specified officer can be required to produce the above documents or divulge or communicate the above matters. These are—
× where the ACC, the CEO, the acting CEO, a member of the Board or an examiner in his or her official capacity is a party to the relevant proceeding; or
× if it is necessary to do so to carry into effect the provisions of a relevant Act; or
× if it is necessary to do so for the purposes of a prosecution resulting from an ACC operation or investigation.
Clause 44(4) defines a relevant Act for the purposes of clause 44 to mean the Commonwealth Act, this Act or a corresponding Act of another State or Territory. This definition is necessary to ensure that the secrecy obligations in this clause do not prevent the disclosure of information where this is necessary for the purposes of another Act that forms part of the ACC cooperative scheme.
45—Delegation
Clause 45 allows the CEO to delegate in writing any of his or her powers under the ACC Act to a member of staff of the ACC who is an SES employee. Clause 3(2) applies the definition of SES employee contained in the Commonwealth Act, which in turn applies the definition of this term under the Commonwealth Public Service Act 1999, SES employees consist of those Australian Public Service officers who are classified as Senior Executive Employees under the relevant classification rules under that Act.
This power of delegation affords the CEO flexibility in undertaking administrative matters, while ensuring that delegated powers are only exercised by appropriately senior persons. This clause complements an equivalent provision in section 59A of the Commonwealth Act.
46—Liability for damages
Clause 46 provides that a member of the Board is not liable to an action or other proceeding for damages for or in relation to an act done or omitted in good faith in the performance of functions conferred by this Act.
47—Obstructing, hindering or disrupting the ACC or an examiner
Clause 47 makes it an offence to obstruct or hinder the ACC or examiner in the performance of the ACC's or examiner's functions or to disrupt an examination. The maximum penalty is a fine of $22 000 or 5 years' imprisonment. This offence mirrors an equivalent offence contained in section 35 of the Commonwealth Act.
48—Public meetings and bulletins
Clause 48 provides for public meetings of the Board to inform the public about, or receive submissions in relation to, the performance of the ACC's functions. The Board can also publish bulletins to inform the public about the performance of its functions. This clause complements an equivalent provision contained in section 60 of the Commonwealth Act.
49—Annual report
Clause 49 provides for certain matters to be included in an annual report prepared by the Chair of the Board under section 61 of the Commonwealth Act.
This provision, together with comparable provisions in other States' and Territories' ACC legislation, will ensure that information included in the annual report under section 61 of the Commonwealth Act relating to the performance of the ACC's functions under that Act is supplemented with comparable information about the performance of the ACC's functions under State and Territory law.
Clause 49(2) requires an annual report under section 61 of the Commonwealth Act to include—
× descriptions of any special ACC investigations during the year; and
× descriptions of any patterns of criminal activity and the nature and scope of criminal activity that has come to the ACC's attention during the year; and
× any recommendations for legal or administrative reform the Board considers should be made; and
× the general nature and extent of information provided by the CEO to a law enforcement agency under the Act; and
× the extent to which ACC State investigations have resulted in prosecutions or confiscation proceedings during the year; and
× numbers and results of court proceedings involving the ACC in relation to its functions under the Act that were determined during the year.
Clauses 49(3) and (4) contain provisions to prevent an annual report identifying persons as having being suspected of, or as having committing offences (unless the persons have been convicted of those offences) or identifying a person where this would prejudice a person's safety or reputation or the fair trial of a person who has been or may be charged with an offence.
The State Minister is required to table an annual report within 15 sitting days of receiving the report from the IGC.
50—Things done for multiple purposes
Clause 50 provides that the validity of anything done for the purposes of this Act is not affected only because it was done also for the purposes of the ACC Act.
51—Regulations
Clause 51 provides for a regulation-making power under the Bill.
Schedule 1—Related amendments, repeal and transitional provision
Clauses 2 to 11 of Schedule 1 contain consequential amendments to a number of State Acts that are necessary because of the replacement of the NCA with the ACC and the repeal of the National Crime Authority (State Provisions) Act 1984. The consequential amendments will ensure that those other State Acts operate consistently with the provisions of the Bill.
Clause 12 of Schedule 1 repeals the National Crime Authority (State Provisions) Act 1984, which is the existing State legislation for the NCA, as a consequence of the replacement of the NCA with the ACC under the Commonwealth Act. As the ACC is a new law enforcement body with new governance arrangements and functions, it is appropriate that provision for its operation in South Australia be made under a new principal Bill.
Clauses 13 to 25 of Schedule 1 contain transitional provisions to ensure that the transition from the NCA to the ACC is as seamless as possible. These transitional provisions are necessary as a consequence of the commencement on 1 January 2003 of the Commonwealth Act and the repeal of the National Crime Authority (State Provisions) Act 1984 under clause 12 of Schedule 1.
Clause 13 of Schedule 1 sets out definitions that apply for the purposes of the transitional provisions in Part 7 of Schedule 1.
Clause 14 of Schedule 1 deems an ACC State investigation that relates to a matter that was the subject of an NCA investigation that had been commenced but not completed before 1 January 2003 to be a special ACC investigation. This means that if the Board consents to the ACC conducting an ACC State investigation into a matter that previously had been the subject of an incomplete investigation under the National Crime Authority (State Provisions) Act 1984, it will be unnecessary for the Board to make a new determination authorising the use of special powers under the Bill.
Clause 15 of Schedule 1 imposes on the ACC the obligation under section 34(1) of the Bill to assemble and give to the relevant prosecuting authority evidence that the NCA had obtained before 1 January 2003 but had not assembled and given to the relevant prosecuting authority under section 6(1) of the National Crime Authority (State Provisions) Act 1984 as if that evidence had been obtained by the ACC in carrying out an ACC operation/investigation.
Clause 16 of Schedule 1 ensures that where the State referred a matter to the NCA for investigation before 1 January 2003, the reference continues to be protected from challenges under section 8 of the National Crime Authority (State Provisions) Act 1984 after the repeal of that Act by the Bill. Section 8 protects a reference from challenge on the grounds that any necessary approval had not been obtained or was not lawfully given.
Clause 17 of Schedule 1 provides that an arrangement in force immediately before 1 January 2003 under section 11 of the National Crime Authority (State Provisions) Act 1984 between the State Minister and the Commonwealth Minister for the NCA to receive information or intelligence by the State or a State authority has effect as if it had been made under section 40 of the Bill.
Clause 18 of Schedule 1 ensures that where things seized pursuant to a warrant under section 12 of the National Crime Authority (State Provisions) Act 1984 are in the ACC's possession, the obligations under clauses 29(10) and 29(11) of the Bill regarding the retention and return of things seized under warrant apply to those things.
Clause 19 of Schedule 1 provides that where a non-publication direction was in force under section 16(9) of the National Crime Authority (State Provisions) Act 1984 immediately before 1 January 2003—
× the provisions in clauses 18(10) and (11) of the Bill regarding the revocation of directions and the offence of contravening a non-publication direction contained in clause 18(14)(b) of the Bill apply to that direction; and
× clauses 18(12) and (13) of the Bill, so far as they relate to the CEO of the ACC, apply to evidence that is the subject of such a direction.
These provisions enable a court to obtain evidence that is the subject of a non-publication direction in certain circumstances.
Clause 20 of Schedule 1 ensures that if a non-disclosure notation included in a summons or notice to produce documents was in force under section 18A of the National Crime Authority (State Provisions) Act 1984 immediately before 1 January 2003, the notation is effective and it is an offence under clause 22 of the Bill to make a disclosure in contravention of the notation. If there is an ACC operation/investigation relating to the same matter to which the NCA investigation related, the provisions in clause 21(4) and (5) of the Bill relating to the automatic cancellation of a notation apply.
Clause 21 of Schedule 1 ensures that arrangements in force immediately before 1 January 2003 under section 24 of the National Crime Authority (State Provisions) Act 1984 made by a member or hearing officer of the NCA to protect witnesses from harm or intimidation have effect as if it they been made under section 26 of the Bill.
Clause 22 of Schedule 1 enables arrangements between the State and the Commonwealth that were in force immediately before 1 January 2003 under section 28(b) of the National Crime Authority (State Provisions) Act 1984 under which the State makes persons available to hold office as members of the NCA or to perform services for the NCA to have effect as if those arrangements had been made under section 42 of the Bill.
Clause 23 of Schedule 1 ensures that former officials, being persons who were at any time subject to the secrecy obligations under section 31 of the National Crime Authority (State Provisions) Act 1984, are subject to the secrecy obligations in clause 44(2) and (3) of the Bill.
Clause 24 of Schedule 1 ensures that the Co-operative Schemes (Administrative Actions) Act 2001 continues to apply to administrative actions taken, or purportedly taken, under the National Crime Authority (State Provisions) Act 1984 as if that Act had not been repealed and were still a relevant State Act for the purposes of the Co-operative Schemes (Administrative Actions) Act 2001. The Co-operative Schemes (Administrative Actions) Act 2001 validates certain invalid administrative actions undertaken by Commonwealth officers and authorities, including actions undertaken pursuant to the National Crime Authority (State Provisions) Act 1984, by giving them the effect they would have had if they had been taken by State authorities or officers. This transitional provision ensures that such administrative actions are validated up to time when the National Crime Authority (State Provisions) Act 1984 is repealed by the enactment and commencement of clause 12 of Schedule 1.
Clause 25 of Schedule 1 enables the making of regulations prescribing matters of a transitional nature if there is no sufficient provision in Part 7 of Schedule 1 dealing with the matter. Such regulations that provide that a state of affairs is taken to have existed, or not existed, may be back dated in their operation to 1 January 2003 to ensure that necessary transitional matters for the replacement of the NCA with the ACC can be addressed without gaps. An important safeguard is that such regulations with a backdated operation do not operate so as to—
× prejudicially affect the rights of a person (other than the State or an authority of a State) that existed before the date of the making of the regulations; or
× impose liabilities on any person (other than the State or an authority of a State) in respect of things done or omitted to be done before the date of making of the regulations.
In addition, regulations that are backdated in their operation can only be made up to 12 months after the day on which the National Crime Authority (State Provisions) Act 1984 is repealed by the enactment and commencement of clause 12 of Schedule 1.
#47 Ms CHAPMAN secured the adjournment of the debate.