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AUSTRALIAN CRIME COMMISSION (WESTERN AUSTRALIA) BILL 2003
Introduction and First Reading

Bill introduced, on motion by Hon Nick Griffiths (Minister for Housing and Works), and read a first time.

Second Reading

HON NICK GRIFFITHS (East Metropolitan - Minister for Housing and Works) [10.09 am]: I move -

That the Bill be now read a second time.

This Bill implements a key element of the agreement reached by Australian government leaders at the Summit on Terrorism and Multi-jurisdiction Crime last year, and forms part of a national cooperative scheme to combat serious and organised crime in this country. At the leaders summit, consideration was given to enhancing the national framework to deal with transnational crime. It was agreed to replace the National Crime Authority with the Australian Crime Commission and for the new body to incorporate the Australian Bureau of Criminal Intelligence and the Office of Strategic Crime Assessments. The rationale behind this change is that the capacity of the NCA to expeditiously respond to emerging threats in the criminal environment was hampered by an overly complex legislative regime of references and unwieldy formal consultation requirements between the States and Commonwealth.
The NCA was established in 1984 to coordinate and lead a national law enforcement response to organised crime. The NCA was intended to overcome the barriers and limitations to effective law enforcement caused by jurisdictional boundaries. Its operations provided for state participation. The operation of the NCA in Australia was underpinned by a commonwealth Act and complementary enabling legislation in each State and Territory, which in Western Australia is the National Crime Authority (State Provisions) Act 1985. The state provisions Act extended the jurisdiction of the NCA to Western Australian offences that had no link to an offence against commonwealth law. The leaders summit agreed to establish the ACC through a cooperative legislative scheme similar to that which existed for the NCA. Pursuant to the leaders summit agreement, the Commonwealth Government enacted the Australian Crime Commission Act 2002, which had effect from 1 January 2003. The ACC is now in operation and has an office in Western Australia.

In the course of discussions between state and commonwealth officials to implement the Council of Australian Governments agreement, Western Australia expressed some concerns that the initial proposals did not give the ACC the capacity to investigate in its own right. Happily, subsequent revision of the proposals now permits this to occur. This is gratifying because it is our view, and that of the other States, that an intelligence-gathering function conducted in isolation is not as effective as that done in conjunction with investigative powers and focus. The commonwealth Act replicates the powers that were available to the former NCA and enables them to be used for both the ACC’s investigative role and its new criminal intelligence role. The commonwealth Act enables the ACC to operate nationally to investigate criminal activities with a commonwealth jurisdictional aspect. However, as a national body dealing with serious and organised crime, the ACC relies heavily on cooperation from state and territory police agencies and other commonwealth agencies.

The commonwealth legislation establishes a board responsible for determining national criminal intelligence priorities, overseeing the strategic direction of the ACC and authorising intelligence operations, investigations and the use of special powers. The board comprises the police commissioners of the eight States and Territories; the Commissioner of Police of the Australian Federal Police, who is also the chair of the board; the secretary to the Attorney-General’s Department; the Chief Executive Officer of the Australian Customs Service; the Chairperson of the Australian Securities and Investments Commission; the Director-General of Security who holds office under the Australian Security Intelligence Organisation Act 1979; and the Chief Executive Officer of the ACC. The operation of the board is subject to oversight by the ministerial intergovernmental committee, known as the IGC-ACC. The IGC-ACC comprises the commonwealth, state and territory police and justice ministers and oversees the ACC by monitoring its work and board as well as providing broad direction. Whereas the NCA’s ability to conduct hearings using coercive powers and investigations was dependent on a ministerial referral and the approval of the IGC, the new legislation enables the ACC to conduct its own investigations and use its coercive powers on the approval of the ACC board. The board can also authorise the use of coercive powers for special intelligence operations or investigations. Those powers are exercised by independent statutory officers called examiners. However, as a check and balance, the IGC-ACC has the power to revoke a determination of the board that allows coercive powers to be used. The National Crime Authority (State Provisions) Act 1985 became redundant upon the commencement of the commonwealth ACC Act. State legislation is required to complement the commonwealth Act, allow appropriate ACC investigations and examinations in this State and ensure that the ACC is empowered to conduct investigations and intelligence operations relating to state offences, including state offences without a federal aspect. It is almost an operational certainty that in the course of investigating offences with a federal aspect, the commission of offences of a purely state nature will also be disclosed.

To further the legislative regime to be implemented by the States and Territories, the intergovernmental committee instructed the national parliamentary counsels committee to draft a model Bill. The Bill before the House is based on that model Bill, with necessary modifications to fit within our statutory framework. Essentially, the differences between the National Crime Authority (State Provisions) Act 1985 and this Bill are a reflection of the old and new commonwealth legislation. The special powers provided to the NCA, including search warrant powers and the use of coercive examination powers, are incorporated in the Bill and will provide for the ACC’s use of those powers for both its investigatory and criminal intelligence-gathering roles. However, the ACC will have access to the special powers for a state investigation or intelligence operation only when it is authorised by the board.

Broadly, the Bill will provide for the operation of the ACC in Western Australia, and will enable intelligence operations and investigations into relevant criminal activity involving state offences, irrespective of whether those offences have a federal aspect. It will also allow for consequential changes to nine other Acts, which are required as a result of the replacement of the NCA with the ACC. The definition in the Bill of “serious and organised crime” is the same as 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 this Bill mirror the offences the former NCA could investigate with the addition of offences involving firearms and cybercrime. The offence of cybercrime has been added to enable the ACC to respond to this emerging issue, and firearms offences have been included 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 which is punishable by three or more years imprisonment and which is not committed in the course of a genuine industrial dispute of a specified kind. The 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 Bill provides for the functions and powers of the ACC, the board and the chief executive officer to exist under state law. The Bill defines the functions of the CEO of the ACC under state law, with the CEO’s key function being the coordination of ACC operations and investigations.

The Bill, in respect of the use of coercive powers for special intelligence operations or investigations, mirrors the commonwealth Act by removing, through omission, the existing uncertain defence of reasonable excuse. There are two main reasons for removing the defence. First, it is uncertain in its scope and application. Second, some people called before National Crime Authority hearings have used the defence to avoid providing documents, answering questions or attending such hearings, resulting in proceedings often being delayed and stalled through the court system. Although these hearings are extraneous to the court system, they have relevance to the evidence that could subsequently be presented in a court and should not be delayed or hampered by a defence of reasonable excuse in effecting a successful investigation of a criminal activity. However, the Bill enshrines the so-called “use immunity” when evidence secured in this manner - in other words, evidence obtained through compulsive power - is not admissible in court to incriminate a witness. Similar provisions to those in this Bill were advanced by the Government in the National Crime Authority (State Provisions) Amendment Bill 2002.

A number of contravention offences will be created by the Bill. These include failing to attend an examination or to answer questions, and failing to produce documents or things when required to do so by summons. The offences in the Bill will reflect the offences contained in the existing NCA legislation and will complement equivalent offences in the commonwealth Act. The penalties for the various offences in the Bill also equal the penalties for equivalent commonwealth offences and will provide a significant deterrent to those who would seek to obstruct or frustrate the Australian Crime Commission’s activities.

The penalties in the Bill are expressed in penalty units. The value of a penalty unit is prescribed as being the equivalent of section 4AA of the commonwealth Crimes Act 1914. The use of penalty units for Western Australian offences is not the general method of stipulating penalties for state offences. Penalty units are used in the Western Australian Road Traffic Act 1974 and a similar regime of penalty units and nexus with the Commonwealth is included in the Western Australian Human Reproductive Technology Amendment Bill 2003. The expression of penalties in penalty units and the nexus with the Commonwealth is considered appropriate, given the nature of the subject matter of this commonwealth-state legislation and the inherently complementary national-state arrangements required for the effective operation of the ACC. The Bill also contains transitional provisions to facilitate the seamless transition from the NCA to the ACC under state law.

This Bill mirrors the national cooperative scheme undertaking to combat serious and organised crime. Like the commonwealth Act, it builds on the successful features of the NCA and, like its predecessor, the ACC has an investigative role that is targeted at combating complex criminal activity of the kind undertaken by high-level and sophisticated criminals. It is hoped that the ACC will become a crucial component in our national law enforcement response to those elements of society who exploit jurisdictional boundaries.

Western Australia has expressed some reservations that this new national body might disproportionately place its endeavours on activity in the eastern seaboard with fewer resources and attention being paid to criminal activity in this jurisdiction. Although it is early days, it is hoped that the collaborative processes of the board, which will set operational priorities for the ACC, will ensure that organised criminal activity of concern in this State is given due attention. The State Government will also continue to prosecute the Commonwealth’s undertakings in relation to funding this crime-fighting body. Although the Bill is silent on funding arrangements, in agreeing to this regime the parties to the COAG agreement were given assurances that the expenditure and contribution of the Commonwealth would not be diminished from that which it spent on the Australian Bureau of Criminal Intelligence - ABCI - the Office of Strategic Crime Assessments - OSCA - and the NCA combined.

From time to time in this place reservations are expressed about whether such cooperative schemes undermine the sovereignty of this Parliament in making laws for the peace, order and good Government of this State. However, it is important to stress that any significant departure from the model will create uncertainty and ambiguity and hamper truly national and cross-jurisdictional investigation of the most serious crimes. The only beneficiaries of such divergence are organised criminals who exploit those differences in furtherance of their criminal enterprise. Although there may be some reservations about elements of the scheme, those are far outweighed by the compelling imperative that this State actively participates in the investigation and conviction of criminals who do not respect borders and whose activities impact on communities throughout Australia.

This Bill and others like it in other States and Territories will ensure that Australia has in place an enhanced and comprehensive national framework to underpin the ACC’s crucial activities in fighting serious and organised crime. I commend the Bill to the House.

Debate adjourned and Bill referred to the Standing Committee on Uniform Legislation and General Purposes, pursuant to standing orders.