House of Representatives

Explanatory Memorandum

Circulated by authority of the Attorney-General, the Honourable Robert McClelland MP

Schedule 7 - Amendments relating to the Australian Crime Commission

GENERAL OUTLINE

The ACC, established under the ACC Act, is a statutory body that works collaboratively with Commonwealth, State and Territory agencies, to counter serious and organised crime in Australia. Using intelligence and investigative strategies, the ACC endeavours to better position Australia to meet and respond to the threats posed by serious and organised crime groups.

This Schedule will amend to the ACC Act to improve the operation and accountability of the ACC, including enhancing the ACC's powers to deal with uncooperative witnesses, clarifying procedural powers for issuing summons and notices to produce, and requiring regular independent review of the ACC.

Items 1 - 5

Section 4(1) sets out definitions that are relevant to the operation of the Act. Items 1 to 5 will amend existing, or insert new, definitions relevant to the changes that will be made by this Schedule.

Item 1

Item 18 will provide the ACC with the power to refer an uncooperative witness in an examination to a superior court to be dealt with as if the witness was in contempt of that court.

Under the new contempt provisions inserted by Item 18 (in particular under new section 34D), an examiner will be able to direct a constable to detain an uncooperative witness for the purpose of bringing that witness before the court to be dealt with for contempt.

This Item will insert a definition of constable into subsection 4(1) to mean a member or special member of the AFP or a member of the police force or police services of a State. Under subsection 4(1) State includes a Territory. This definition is the same as the definition of constable in subsection 3(1) of the Crimes Act.

Item 2

Division 1 of Part II establishes the governance arrangements for the ACC, and in particular sets out matters relevant to the conduct of ACC Board meetings. Sections 7E, 7G and 7J - which deal with who may preside over Board meetings, voting and resolutions of Board meetings - refer to eligible Commonwealth Board member , which in turn is defined in subsection 4(1). This item will amend the definition of eligible Commonwealth Board member in subsection 4(1) to include the Commissioner of Taxation. This amendment is necessary as a result of Item 7, which will amend subsection 7B(2), to include the Commissioner of Taxation as a member of the ACC Board.

Item 3

Item 18 will provide the ACC with the power to refer an uncooperative witness in an examination to a superior court to be dealt with as if the witness were in contempt of that court. The phrase 'in contempt of the ACC' will be relevant to the new provisions inserted by Item 18. This item will insert a definition of in contempt of the ACC in subsection 4(1) to have the meaning given by section 34A (inserted by Item 18). New section 34A will list the actions that will constitute contempt. These actions are based on offences in the ACC Act (including as amended by this Schedule) for conduct that occurs during an examination.

Item 4

Under section 7C, the ACC Board can authorise the ACC to undertake intelligence operations or to investigate federally relevant criminal activity, and can determine that an intelligence operation or investigation is a special operation or special investigation. A determination that an operation/investigation is a special operation/investigation allows the ACC to use its coercive information gathering powers.

Intelligence operation is defined in subsection 4(1) as the collection, correlation, analysis or dissemination of criminal information and intelligence relating to federally relevant criminal activity. Although investigation is not defined in the ACC Act, an investigation is generally directed towards obtaining evidence that can be used to disrupt the activities of particular criminal groups (eg through criminal prosecution or confiscation proceedings). In practice, however, gathering intelligence and conducting investigations are not always distinct activities. For example, if the ACC were to conduct an intelligence operation into the production of amphetamines they may, in the course of that operation undercover particular instances where drug offences have been committed and in doing so may be conducting what constitutes an investigation.

This item will amend the definition of intelligence operation in subsection 4(1) so that it will also include the investigation of federally relevant criminal activity. This amendment will recognise that a specific investigation can be a part of an intelligence operation, and will allow the ACC to undertake actions which may otherwise be reserved for an 'investigation'. For example, a search warrant under section 3E of the Crimes Act can only be obtained for the investigation of an offence. A search warrant cannot be obtained under the Crimes Act for an intelligence operation or intelligence gathering in general. This amendment will mean that while conducting an intelligence operation, the ACC will be able to obtain a search warrant under the Crimes Act if it is conducting an investigation into an offence which is a necessary part of the operation.

A determination by the ACC Board that an intelligence operation is a special operation, and that an investigation is a special investigation, are separate processes. The changes to the definition of intelligence operation made by this item will not result in an 'investigation' that forms part of a 'special operation' acquiring 'special investigation' status. For that particular investigation to be a 'special investigation', the Board will still be required to make a specific determination under subsection 7C(3). There will be no scope, following the amendment, for an investigation to be deemed to be a 'special investigation' simply because the investigation forms part of a 'special operation'. This is appropriate as the special powers under the ACC Act are only available if something has been authorised to be a special investigation or special operation.

Item 5

Section 28 provides examiners with the power to summons witnesses to appear before an examiner at an examination to give evidence, and to produce such documents or other things, as outlined in the summons. Section 29 provides examiners with the power to require persons to produce a document or thing to a specified person.

Section 29A allows an examiner to include a non-disclosure notation in a summons or notice issued under sections 28 or 29 to prohibit the disclosure of information about the summons or notice or any official matter connected with it.

Section 29B makes it an offence to disclose the existence of, or any information relating to any official matter connected with, the summons or notice where a non-disclosure notation has been included. Section 29B also sets out the circumstances in which a disclosure may be made despite the inclusion of a non-disclosure notation.

Items 15 and 17 will expand the exceptions to the non-disclosure offences to allow disclosure to the Ombudsman for the purpose of making a complaint under the Ombudsman Act 1976 . This item will define Ombudsman as the Commonwealth Ombudsman.

This item will also clarify that all references in the ACC Act to the Ombudsman are references to the Commonwealth Ombudsman.

Item 6

Item 6 makes changes to the definition of intelligence operation in subsection 4A(6) in the same way, and for the same reasons, as the changes to the definition of intelligence operation in subsection 4(1) as amended by Item 4. The definition of intelligence operation in subsection 4A(6) is necessary as it relates to when an offence has a federal aspect, which in turn is relevant to the definition of federally relevant activity in section 4(1).

Item 7

Division 1 of Part II establishes the governance arrangements for the ACC. In particular, Section 7B establishes the ACC Board, and sets out who is a member of the ACC Board. This item will amend subsection 7B(2) to include the Commissioner of Taxation as a member of the ACC Board. This amendment is in accordance with recommendations from four separate PJC-ACC reports: Report of the Review of the Australian Crime Commission Act 2002 ; Examination of the Annual Report for 2004-2005 of the Australian Crime Commission; Examination of the Australian Crime Commission Annual Report 2006-2007; and, Examination of the Australian Crime Commission Annual Report 2007-08. These reports indicated that there would be considerable merit in the Commissioner of Taxation being added to the ACC Board.

The current membership of the Board provides for a diverse range of issues and views to be considered in setting the ACC's priorities. The benefits of adding the Commissioner of Taxation as a Board member is that it will further enhance the ACC Board's expertise and, in light of significant taxation related activity identified in ACC investigations and intelligence operations, increase the ACC's capability to counter the impact of serious and organised crime.

Item 8

Division 1 of Part II establishes the governance arrangements for the ACC, and in particular establishes and sets out the functions of the ACC Board and the IGC-ACC.

Section 7C outlines the functions of the ACC Board, which include authorising the ACC to undertake intelligence operations or to investigate matters relating to federally relevant criminal activity. Under subsections 7C(2) and 7C(3) of the ACC Act, the Board may determine, in writing, that an operation is a special operation and that an investigation is a special investigation. These determinations allow the ACC to access its coercive information gathering powers.

Subsection 7C(5) currently requires that a Board determination made under subsection 7(C)(2) or subsection 7C(3) be provided to the IGC-ACC within three days. This requirement ensures that the IGC-ACC is made aware when the Board determines an operation or investigation is a special operation or special investigation. It also ensures that the IGC-ACC is provided with information relating to the general nature of the circumstances or allegations constituting the federally relevant criminal activity that is to be the subject of the operation or investigation.

This item will amend subsection 7C(5) so that copies of Board determinations relating to special operations and special investigations will be required to be provided to the IGC-ACC within a period of seven days beginning on the day a determination is made. A timeframe of seven days is more administratively practicable than three days, and balances operational and administrative restraints without compromising the need to keep the IGC-ACC informed. For example, if a Board determination is made on Friday, currently the ACC would effectively have only one working day to prepare copies of a determination and provide them to the IGC-ACC.

Items 9 - 14

The ACC has access to coercive information gathering powers where the ACC Board has authorised an intelligence operation or investigation, and has determined that the operation/investigation is a special operation/investigation. In particular, section 28 provides examiners with the power to summons witnesses to appear before an examiner at an examination to give evidence and to produce such documents or other things, as outlined in the summons. Section 29 provides examiners with the power to require persons to produce a document or thing to a specified person.

Subsections 28(1A) and 29(1A) require an examiner, when issuing a summons or notice, to be satisfied that it is reasonable in all the circumstances to do so. The examiner is also required to record in writing the reasons for the issue of the summons or notice.

In August 2007, Justice Smith of the Victorian Supreme Court in ACC v Brereton [2007] VSC 297, held that for a summons issued under section 28 to be valid, reasons for issuing the summons must have been recorded prior to the time the summons was actually issued. While Justice Smith's findings in Brereton were confined to the issuing of summons, his reasoning also had implications for notices to produce issued under section 29.

Justice Smith's findings in Brereton were the basis for the Australian Crime Commission Amendment Act 2007 (ACC Amendment Act), which amended the ACC Act to:

•

clarify that an examiner could record reasons for issuing a summons or notice, before, at the same time, or as soon as practicable after issuing a summons or notice (subsections 28(1A) and 29(1A))

•

validate summonses and notices issued prior to the commencement of the ACC Amendment Act which would otherwise be invalid because an examiner did not records their reasons for issuing the summons or notice prior to the summons or notice being issued, and

•

provide that summonses or notices were not invalid merely because it fails to comply with the technical requirements of the Act (subsection 28(8) and 29(5)).

As a result of the findings of Justice Smith in Brereton , there was at the time a pressing risk of collateral challenge to the validity of summons and notices issued by examiners. Had the amendments not been made urgently, significant prosecutions would have continued to be at risk of being derailed or delayed, based on challenges to the validity of summons and notices.

Notwithstanding its passage, the ACC Amendment Act was examined by the PJC-ACC in 2008. The report of the PJC-ACC, Inquiry into the Australian Crime Commission Act Amendment Act 2007 , was published on 4 September 2008 (2008 Report)

In its 2008 Report, the PJC-ACC noted at pages 16-17 and 20 that:

[A] body invested with intrusive coercive powers should not be permitted to exercise those powers without appropriate audit and record mechanisms. Some form of checks and balances is required, and this is what is envisaged and supplied in subsections 28(1A) and 29(1A) of the Act. [T]he PJC believes that the making of a written record is crucial in the process of issuing either a summons or a notice: the requirement to record reasons in writing evidences the examiners' compliance with subsections 28(1A) and 29(1A) of the Act.

The requirement to record reasons in writing provides a means for testing whether the examiners have properly exercised the ACC's coercive powers, including having had due regard to statutory safeguards...And the committee's recommendations will clarify and strengthen the intention and expectations of the Parliament.

On that basis, the PJC-ACC recommended that subsections 28(1A) and 29(1A) should be amended to ensure that the reasons for the decision to issue a summons or notice be recorded in writing before the issuing of a summons or notice (Recommendation 2).

The PJC-ACC report also noted (at page 22) that the operation of subsections 28(8) and 29(5) 'could negate the safeguards contained in subsections 28(1A) and 29(1A), as well as eliminate a means of accountability.' That is, subsections 28(8) and 29(5) preserved the validity of summonses and notices despite a failure to ever record reasons (and not just a failure to comply with the requirements of when those reasons could be recorded). Accordingly, the PJC-ACC also recommended that subsections 28(8) and 29(5) be repealed (Recommendation 3).

Items 9-14 will respond to the PJC-ACC report to require an examiner to record reasons in writing at or before the time a summons or notice is issued. A failure to do this will invalidate the summons or notice. These amendments will only operate prospectively, that is, the requirements to records reasons before or at the time a summons or notice is issued will only apply to summons or notices issued after the commencement of this Schedule. Accordingly, a failure to comply with such requirements will only invalidate summons or notices issued after the commencement of this Schedule.

Items 9 and 10

These items will narrow the operation of subsection 28(1A) so that the reasons for issuing a summons must be recorded by the examiner at or before the time the summons was issued. An examiner will no longer be able to record the reasons why a summons was issued after the summons has been issued. This will implement Recommendation 2 of the PJC-ACC in its 2008 Report.

Item 11

Subsection 28(8) states that an examiner's failure to:

•

comply with the requirement to record reasons for issuing the summons (subsection 28(1A))

•

attach the relevant Board determination establishing the special operation/investigation to which the summons relates (subsection 28(2)), and

•

issue a non-disclosure notation when required (under section 29A)

do not invalidate the summons.

This item will repeal subsection 28(8) and replace it with a new subsection stating that a failure to comply with requirements set out in section 29A will not invalidate the summons. As such, a failure to comply with the requirement to record reasons and attach the relevant Board determination (subsections 28(1A) and 28(2)) will invalidate the summons.

Recommendation 3 of the PJC-ACC in its 2008 Report was that all of subsection 28(8) be repealed. However, the new subsection 28(8) will state that a failure to issue a non-disclosure notation under section 29A will not invalidate the summons. The 2008 Report focused on ensuring that an examiner be properly satisfied prior to issuing a summons or notice, and that the reasons for issuing the summons or notice be recorded. The requirement to include a non-disclosure notation under section 29A is not related to the decision of whether or not to issue a summons or notice.

Items 12 and 13

These items will narrow the operation of subsection 29(1A) so that the reasons for issuing a notice must be recorded by the examiner at or before the time the notice was issued. An examiner will no longer be able to record the reasons why a notice was issued after the notice has been issued. This will implement Recommendation 2 of the PJC-ACC in its 2008 Report.

Item 14

Subsection 29(5) states that an examiner's failure to:

•

comply with the requirement to record reasons for issuing the notice (subsection 29(1A)); and

•

issue a non-disclosure notation when required (under section 29A)

do not invalidate the notice.

This item will repeal subsection 29(5) and replace it with a new subsection stating that a failure to comply with requirements set out in section 29A will not invalidate the notice. The effect of this amendment will be that a failure to comply with the requirement to record reasons in subsection 29(1A) will invalidate the summons.

Recommendation 3 of the PJC-ACC in its 2008 Report was that all of subsection 29(5) be repealed. However, the new subsection 29(5) will state that a failure to issue a non-disclosure notation under section 29A will not invalidate the summons. The 2008 Report focused on ensuring that an examiner be properly satisfied prior to issuing a summons or notice, and that the reasons for issuing the summons or notice be recorded. The requirement to include a non-disclosure notation under section 29A is not related to the decision of whether or not to issue a summons or notice.

Items 15 - 17

The ACC has access to coercive information gathering powers where the ACC Board has authorised an intelligence operation or investigation, and has determined that the operation/investigation is a special operation/investigation. In particular, section 28 provides examiners with the power to summons witnesses to appear before an examiner at an examination to give evidence and to produce such documents or other things, as outlined in the summons. Section 29 provides examiners with the power to require persons to produce a document or thing to a specified person.

Section 29A requires or allows (depending upon the circumstances) an examiner to include a non-disclosure notation in a summons or notice issued under sections 28 or 29 to prohibit the disclosure of information about the summons or notice or any official matter connected with it. The purpose of a non-disclosure notation is to protect the safety or reputation of a person, the fair trial of a person who has been or may be charged with an offence, and the effectiveness of an operation or investigation.

Subsection 29B(1) makes it an offence to disclose the existence of, or any information relating to any official matter connected with, the summons or notice where a non-disclosure notation has been issued.

Subsection 29B(2) sets out the circumstances in which the person issued with the summons or notice may make a disclosure despite the existence of a non-disclosure notation. These circumstances are:

•

in accordance with the circumstances, if any, specified in the notation

•

to a legal practitioner for the purpose of obtaining legal advice or representation relating to the summons or notice

•

to a legal aid officer for the purpose of obtaining assistance relating to the summons or notice

•

if the person is a body corporate - to an officer or agent of the body corporate for the purpose of ensuring compliance with the summons or notice, or

•

if the person is a legal practitioner - to another person for the purpose of obtaining their agreement to disclose something covered by legal professional privilege.

Subsection 29B(4) outlines the only circumstances in which a person notified of the summons or notice (whether under subsection 29B(2) or 29B(4)) can further disclose the existence of the summons or notice. A person who is notified of the summons or notice must not disclose the summons or notice except for the following reasons:

•

if the person is an officer or agent of a body corporate, to:

•

another officer or agent of the body corporate for the purpose of ensuring compliance with the summons or notice

•

a legal practitioner for the purpose of obtaining legal advice or representation relating to the summons, notice or matter, or

•

a legal aid officer for the purpose of obtaining assistance under section 27 relating to the summons, notice or matter

•

if the person is a legal practitioner - for the purpose of giving legal advice, making representations, or obtaining assistance relating to the summons, notice or matter, or

•

if the person is a legal aid officer - for the purpose of obtaining legal advice or representation relating to the summons, notice or matter.

In its 2008 Report, the PJC-ACC, in examining oversight of the ACC, noted that:

The Commonwealth Ombudsman (Ombudsman) has some oversight of the ACC and its examiners. But the committee suggests that there is some confusion regarding whether the Ombudsman can receive a complaint without the complainant being in breach of a non-disclosure order.

Accordingly, the PJC-ACC recommended that subsection 29B(4) of the ACC Act be amended to allow disclosure to the Commonwealth Ombudsman (Recommendation 4). Items 15 and 17 will respond to the PJC-ACC recommendation to allow disclosure to the Ombudsman.

The non-disclosure provisions in paragraph 29B(2)(b) currently allows the person who is issued with a summons or notice to disclose the summons or notice to a legal practitioner for the purpose of obtaining legal advice or representation in relation to the summons or notice. Paragraph 29B(4)(b) then allows that legal practitioner to further disclose the notice or summons for the purpose of giving legal advice, making representations, or obtaining assistance relating to the summons, notice or matter.

Item 15

This item will expand the circumstances in subsection 29B(2) to include making disclosures to the Ombudsman for the purpose of making a complaint under the Ombudsman Act 1976 , or to the ACLEI for the purpose of referring to the Integrity Commissioner an allegation or information that raises a corruption issue.

Recommendation 3 of the PJC-ACC in its 2008 Report was limited to amending subsection 29B(4). Item 17 will implement this recommendation. However, it is appropriate that all people who are aware of the summons or notice (either under subsection 29B(2) or 29B(4)) will be able to disclose matters connected to the summons or notice to the Ombudsman where appropriate.

ACLEI is responsible for responsible for preventing, detecting and investigating serious and systemic corruption issues in the AFP and the ACC. As such, it is appropriate that a person is able to disclose a summons or notice to ACLEI for the purpose of referring to the Integrity Commissioner an allegation, or information that raises a corruption allegation.

Item 16

This item will amend paragraph 29B(4)(b) so that the legal practitioner notified of the summons or notice under paragraph 29B(2)(b) will be able to disclose the summons or notice for the purposes of obtaining legal advice or representation as well as the current reasons listed in paragraph 29B(4)(b). For example, this amendment will allow a solicitor to refer the matter to counsel.

Item 17

This item will expand the circumstances in subsection 28B(4) to include making disclosures to the Ombudsman for the purpose of making a complaint under the Ombudsman Act 1976 or to the ACLEI for the purpose of referring to the Integrity Commissioner an allegation or information that raises a corruption issue. This item implements Recommendation 3 of the PJC-ACC in its 2008 Report.

ACLEI is responsible for responsible for preventing, detecting and investigating serious and systemic corruption issues in the AFP and the ACC. As such, it is appropriate that a person is able to disclose a summons or notice to ACLEI for the purpose of referring to the Integrity Commissioner an allegation, or information that raises a corruption allegation.

Item 18

This item will enable the ACC to refer an witness who is not cooperating with an ACC examination to a court to be dealt with as if the person was in contempt of that court. This will respond to recommendations made by the PJC-ACC and an independent review of the ACC Act by Mr Mark Trowell QC.

The ACC has access to coercive information gathering powers where the ACC Board has authorised an intelligence operation or investigation, and has determined that the operation/investigation is a special operation/investigation. In particular, section 28 provides examiners with the power to summons witnesses to appear before an examiner at an examination to give evidence and to produce such documents or other things, as outlined in the summons. Section 29 provides examiners with the power to require persons to produce a document or thing to a specified person.

Process for dealing with an uncooperative witness

The Act contains a number of criminal offences aimed at ensuring that a person issued with a notice or summons complies with that notice or summons. These offences target:

•

failing to attend an examination

•

failing to take an oath or affirmation

•

failing to produce a document

•

failing to answer questions

•

giving false or misleading evidence, and

•

obstructing or hindering an examiner or the ACC.

These offences are punishable by up to five years imprisonment or a fine not exceeding 200 penalty units.

An examination will usually occur at an early or critical stage of the investigation or operation. As such, it is crucial that the ACC is able to obtain the information it is seeking at that stage.

There are two issues with the offences as they currently operate. Firstly, there is no immediate threat of detention. At present, if a person is summonsed to appear as a witness and attends the examination but refuses to cooperate, the matter is referred to the CDPP and the prosecution proceeds by way of summons. As a result, there is no immediate detention or threat of immediate detention to the person. Arresting the person is not available as it is not necessary to arrest a witness in order to achieve any of the purposes set out in paragraph 3W(1)(b) of the Crimes Act.

Secondly, the effectiveness of these offences is often compromised by the delay in the commencement of court proceedings. It can often take a long time before a matter is brought before a court and even longer before the court is able to deal with the matter. Witnesses have been prepared to not cooperate with examiners, knowing that no penalty will be imposed for at least 12-18 months. Witnesses are aware that they may also be able to avoid criminal conviction (and therefore any penalty) by eventually agreeing to give evidence prior to the completion of the criminal process knowing that the evidence will have lost its value to the investigation by that stage. By delaying when information is provided, a witness is able to effectively delay and frustrate the operation of an ACC investigation.

Reviews of ACC powers to deal with uncooperative witnesses

In 2001, the National Crime Authority Legislation Amendment Act 2001 (the NCA Amendment Act) amended various provisions of the then National Crime Authority Act 1984 (the NCA Act) to improve the operation of the coercive powers. Section 4 of the NCA Amendment Act imposed an obligation that the operation of the NCA Act be reviewed after a period of five years to monitor the effect of the amendments. The ACC Act replaced the NCA Act, with the ACC replacing the National Crime Authority. The requirement to review the operation of the NCA Amendment Act continued under the ACC Act.

In 2006, the then Minister for Justice and Customs commissioned an independent review and report on the operation of certain provisions in the NCA Act and the ACC Act. The independent review was conducted by Mr Mark Trowell QC. Mr Trowell's report (the Trowell Report) was presented in the House of Representatives on 21 February 2008.

The terms of reference of Mr Trowell's review included analysing, among other matters, whether the ACC Act should be amended to provide the ACC with a contempt power to deal with witnesses who did not fulfil their obligations under the ACC Act.

The Trowell Report found that the lack of a contempt power for dealing with uncooperative witnesses in examinations is a significant impediment to its capacity to combat serious and organised crime. The Trowell Report recommended that the ACC Act be amended to give examiners the capacity to refer an alleged contempt to a superior court to consider and deal with as though it were contempt of that court. The Trowell Report went on to recommend that if, after hearing a contempt application, a court finds the person to be in contempt, the court would have the power to deal with the person as if they were in contempt of court (for instance, the court would have the power to imprison the person).

The issue of including a contempt power for the ACC has since been considered by the PJC-ACC on four occasions.

In its Inquiry into the future impact of serious and organised crime on Australian society , completed on 19 September 2007, the PJC-ACC recommended that the issue of failure to cooperate with the Australian Crime Commission examination process be resolved immediately and that the Commonwealth Government release the Trowell Report as a matter of priority (Recommendation 2). In its Examination of the ACC Annual Report 2006 - 07 , tabled on 18 June 2008, the PJC-ACC recommended that the Government address the emerging problem that refusal to cooperate with the examiners and examination process is being employed as a delaying tactic to thwart or frustrate ACC operations (Recommendation 2). In its 2008 Report, the PJC-ACC again recommended that the ACC Act be amended to include a contempt power (Recommendation 6). In its Examination of the ACC Annual Report 2007-08 , the PJC-ACC further reiterated its recommendation that the ACC be provided with the power to refer uncooperative witnesses to court to be dealt with for contempt (Recommendation 1).

Rationale for changes

This item will implement the key recommendation of the Trowell Report, and respond to the recommendations of the PJC-ACC, by providing an examiner with the power to refer uncooperative witness to a superior court to be dealt with as if the witness was in contempt of that court.

Under the new contempt provisions, the ACC, where appropriate, will be able to deal promptly with an uncooperative witness, while avoiding the delays which are a part of the prosecution process.

Allowing an examiner to refer a person to a court to be dealt with for contempt will provide a swift mechanism for dealing with uncooperative witnesses contempt proceedings bring with them the threat of immediate detention. It is anticipated that the new contempt provisions will motivate an uncooperative witness to reconsider his or her position and comply with the requirements of an examination, and avoid the immediate threat of detention.

Allowing a person to be dealt with through contempt provisions will maintain the integrity of the examination process as an important investigative and intelligence-gathering tool in combating serious and organised crime. The new contempt procedures will bring the ACC into line with other State and Territory agencies similar to the ACC who have had contempt provisions for some time. The experience of those agencies is that the power to cite an uncooperative witness for contempt is used sparingly, and that the threat of such action will be often sufficient to secure compliance.

Section 34A

Section 34A will provide that a person is in contempt of the examiner if he or she:

•

refuses or fails to take an oath/affirmation when required

•

refuses or fails to answer a question when required

•

refuses or fails to produce a document or thing when required under a notice to produce, a summons or otherwise as part of an examination

•

if a claim of legal professional privilege is made by a legal practitioner - refuse or fail to reveal the name and the address of the person to whom the privilege applies

•

provides false or misleading information to an examiner

•

obstructs or hinders an examiner in the performance of his or her functions

•

disrupts an examination before an examiner, or

•

threatens a person present at an examination before an examiner.

These elements of being 'in contempt of the ACC' mirror offences currently in the Act which relate to not cooperating with an ACC examination.

Section 34B

Section 34B will set out the process for an examiner to refer an uncooperative witness to the Federal Court or the Supreme Court of a State or Territory, and for the court to determine whether the person is in contempt of the ACC, and if so, to deal with that person if he or she was in contempt of that court.

Subsection 34B(1) will provide that where an examiner is of the opinion that a person is in contempt of the ACC (within the meaning of section 34A), the examiner can make an application to either the Federal Court or the Supreme Court of the State or Territory in which the examination to is being conducted, to be dealt with for contempt. As an examiner presides over an examination, it is appropriate that the examiner form the initial (but not conclusive) opinion that a person is in contempt. It is the court (under subsection 34B(5)) that determines whether a person is in contempt, and determines the consequences of being in contempt.

Subsection 34B(2) will require the examiner, before making an application under subsection 34B(1) to inform the person they intend to refer them to a court to be dealt with for contempt. This subsection will ensure that a person is given early notification of the consequences of his of her non-compliance, giving him or her an opportunity to comply with the requirements of the examination.

Subsection 34B(3) will provide that the application to the court under subsection 34B(1) must be accompanied by a certificate that sets out the grounds for making the application and the evidence in support of the application. The certificate is necessary to set out the matters relevant to the court's determination of whether a person was in contempt of the ACC. Ordinarily, the certificate would contain a summary of the alleged contempt, and a detailed statement from the examiner outlining why he or she is of the opinion that the person is in contempt. Any additional evidence or statements that become necessary will be able to be adduced under subsection 34B(5).

Subsection 34B(4) will require that a copy of the certificate referred to in subsection 34B(3) is given to the person who is the subject of the contempt proceedings before, or at the same time as, the application is made. This is a necessary and important safeguard to ensure that the person is made aware of the reasons why the examiner believes them to be in contempt and is given an opportunity to prepare their own case that he or she is not in contempt.

Subsection 34B(5) will allow the court to determine that a person was in contempt of the ACC after considering the certificate, and any evidence or statements in support of the ACC or the person. If a court does find that a person was in contempt of the ACC, the Court may deal with the person as if he or she were in contempt of that court.

Subsection 34B(6) will state that the rules and principles in Chapter 2 of the Criminal Code Act 1995 apply to proceedings under the contempt provisions. This section is necessary to ensure that the court can apply the general principles of criminal responsibility in Chapter 2 of the Criminal Code to the contempt proceeding as if it was a proceeding for a criminal offence. For example, this will mean that the circumstances in which there is no criminal responsibility, set out in Part 2.3 of Chapter 2 of the Criminal Code, will apply to the contempt proceeding. This is necessary because the contempt provisions are not statutory offences to which Chapter 2 would ordinarily apply.

Section 34C

Section 34C will provide that contempt proceedings are to be conducted in accordance with the ordinary rules and procedures of the Court to which the examiner applies. This will ensure that the court will retain overall control of the contempt proceedings from the time the person is brought before that court until the application is disposed of. The examiner will simply be a party to the proceeding.

Subsection 34C(3) will also provide that the certificate submitted under subsection 34B(3) by the examiner stating the grounds for making the application and evidence in support of that application is prima facie evidence showing contempt of the ACC. This will allow the court to find the facts of the alleged contempt without necessarily having to rely on any oral testimony. This does not prevent the defendant from challenging the evidence. However, if there is no dispute as to the facts, the certificate will expedite the contempt proceedings.

Section 34D

While it is anticipated that in most instances, uncooperative witnesses will voluntarily attend court, there may be some instances where the assistance of law enforcement is necessary to bring the alleged contemnor to the court. The power to detain a person can also be an effective mechanism to secure compliance from a non-cooperative witnesses because it enables the examiner make an instant and enforceable threat to that witness's liberty. Anecdotal evidence from State coercive bodies, which have the power to cite witnesses for contempt, indicates that this power is an invaluable tool held in reserve for conducting coercive inquiries.

Section 34D will provide an examiner, who proposes to make an application to the court under subsection 34B(1), to direct a constable to detain a person for the purposes of bringing him or her before a court for contempt proceedings. The definition of constable will be inserted by Item 1 to mean a member or special of the AFP or a member of the police of a State. Under subsection 4(1) State includes a Territory.

If a person is detained, the ACC will be required, under subsection 34D(2), to apply to the court under subsection 34B(1) as soon as practicable. Further, there will be a requirement that the person who has been detained be brought before the court as soon as practicable. The court will then be able to, under subsection 34D(3):

•

direct that the person be released from detention on the condition that he or she will appear before the court in relation to the application (paragraph 34D(3)(a)), or

•

order that the person continue to be detained until the contempt proceedings are completed (paragraph 34D(3)(b)).

Subsection34D(4) will allow a court to impose other conditions on a person's release under paragraph 34D(3)(b), including for example, that they surrender their passport, give an undertaking as to their living arrangements, or that they report to a law enforcement agency. Conditions may be necessary as a person unwilling to cooperate with an ACC examiner may also be unwilling to cooperate fully with a contempt hearing. Subsection 34D(5) will allow the court to vary or revoke the conditions made under subsection 34D(4) at any time.

Section 34E

Subsection 34E(1) will enable an examiner to withdraw a contempt application made under subsection 34B(1) at any time. If a person is in detention under section 34D when a contempt application is withdrawn, subsection 34E(2) will require the person to be released from detention immediately.

This section will give a person who initially refuses to comply with an ACC examination a further opportunity to cooperate. It also provides a safeguard measure, ensuring that a person who is not required to appear before a court is released immediately.

Section 34F

Subsection 12(1) provides that if the ACC obtains evidence that would be admissible in a prosecution of an offence, the ACC must give that evidence to either the relevant Commonwealth or State or Territory Attorney-General, a relevant law enforcement agency or any other Commonwealth or State or Territory agency authorised to prosecute the offence.

If a person is dealt with for contempt, it is not appropriate for them to be prosecuted for an offence arising out of the same conduct. Section 34F will provide that the ACC is not required to give evidence relating to the contempt application to a prosecuting authority under subsection 12(1) if the examiner makes an contempt application under subsection 34B(1).

This provision will avoid the person being dealt with twice for the same conduct and respects the principle of double jeopardy. See also Items 21 and 22.

Item 19

The Act contains a number of criminal offences aimed at ensuring that a person issued with a notice or summons, complies with that notice or summons. In particular, under section 35 it is an offence to obstruct or hinder an examiner or the ACC in the performance of their functions or to disrupt an examination before an examiner.

This item will amend section 35 to make it an offence to threaten any person present at an examination. This will include threatening behaviour directed at the examiner. This amendment will ensure that all uncooperative behaviour directed towards not complying with an examination is captured under section 35.

There is precedent for extending the offence in section 35 in this way. For example, subsection 118(d) of the NSW Police Integrity Commission Act 1996 and subsection 9(c) of the Queensland Commissions of Inquiry Act 1950 make it an offence to wilfully threaten or insult any officer of the Commission, any witness or person summoned to attend before the Commission, or any person authorised to appear before, or on behalf of, the Commission.

Section 34C, inserted by Item 60, which will set out when a person is in contempt of the ACC will reflect the conduct captured by section 35 as amended by this item.

Items 20 and 21

Section 35A provides that a person can be prosecuted for his or her conduct constituting an offence either under the Act or under a law of a State or Territory, but not under both. This amendment will extend the operation of section 35A to take into account the possibility of having a person dealt with under the contempt provisions inserted by Item 18.

Items 20 and 21 will add subsections 35A(2) and (3) which will respectively provide that if:

•

a contempt application is made under subsection 34B(1) in respect of conduct of a person, and the court deals with the person under section 34B for that conduct, the person is not liable to be prosecuted for an offence in respect of the same conduct, or

•

a person is prosecuted for an offence in relation to conduct referred to in an application under subsection 34B(1), and application under section 34B(1) in respect of that same conduct cannot be made.

As the proposed contempt regime will overlap with existing criminal offences relating to obstruction of the ACC, an examiner will be able to choose the most appropriate enforcement tool in each circumstance. However, once a person's conduct has been dealt with by one route, proceedings under the other will be barred, consistent with the 'double jeopardy' rule in section 4C of the Crimes Act 1914 .

Item 22

Section 61A requires the Minister to cause independent review of the operation of the Act to be undertaken as soon as practicable after 1 January 2006. Section 61A does not apply if a parliamentary committee has started a review of the Act before that time. The requirement for a review under section 61A was met through the PJC-ACC's Review of the Australian Crime Commission Act 2002 , completed on 10 November 2005. As part of its 2008 Report, the PJC-ACC stated at page 58 that 'legislation that governs an agency such as the ACC, and which grants that agency substantial powers, including intrusive coercive powers, should be regularly reviewed so as to ensure its appropriateness and effectiveness.'

This item repeals section 61A, which is no longer necessary as the review required by that section has been completed. This item then inserts new section 61A to provide for regular, five-yearly review of the operation of the Act. The first five year period for review will begin on the commencement of this Schedule. A review will not have to be conducted in a particular five year period if a parliamentary committee commences a review of the ACC Act in that period.

Part 2 - Consequential amendments

Administrative Decisions (Judicial Review) Act 1977

Item 23

The Administrative Decisions (Judicial Review) Act 1977 (AD(JR) Act) allows a person to seek review of an administrative decision. Section 5 of AD(JR) Act provides a list of the grounds on which decisions may be challenged under the Act. The AD(JR)Act applies to all administrative decisions made under federal laws except decisions made by the Governor-General or decisions that are specifically excluded by Schedule 1 to the Act or regulations made under the Act.

This item will amend Schedule 1 of the AD(JR) Act so that decisions made under sections 34B and 34D (inserted by Item 18) will be exempt from the operation of the AD(JR) Act. This will mean that an administrative decision to apply to a court for a person to be dealt with for contempt, or to direct a constable to detain a person for the purpose of bringing the person before the court, cannot be the subject of an application for judicial review under the AD(JR) Act.

It is appropriate to exempt these decisions from the operation of the AD(JR) Act as the court will already be supervising the matter in determining whether the person should continue to be detained and in hearing the contempt application. Constitutional judicial review, which is available through s 39B of the Judiciary Act 1903 , will not be affected.

Telecommunications (Interception and Access) Act 1979 and Surveillance Devices Act 2004

Item 24

The Surveillance Devices Act 2004 enables law enforcement officers to obtain authorisations for the installation and use of surveillance devices in relation to criminal investigations. The Surveillance Devices Act also restricts the use, communication and publication of information that is obtained through the use of surveillance devices. Section 45 of the Surveillance Devices Act outlines when information obtained under the Act can be disclosed or used in evidence. This includes disclosure for 'relevant proceedings' as defined in subsection 6(1).

This item will add a proceeding in relation to an application under subsection 34B(1) (inserted by Item 18) to the definition of 'relevant proceeding' in subsection 6(1) of the Surveillance Devices Act.

This amendment will allow an agency to provide information obtained under the Surveillance Devices Act to the ACC for the purposes of having a person dealt with under the new contempt provisions (inserted by Item 18). Given that examinations take place in relation to the investigation of defined offences, it is desirable that information obtained under the Surveillance Devices Act be admissible in the contempt hearing.

Item 25

The Telecommunications (Interception and Access) Act 1979 (TIA Act) prohibits the interception of, and other access to, telecommunications except where authorised under the TIA Act. There are exceptions for obtaining and using information in the course of investigations into a defined serious offence and using that information as evidence in defined court proceedings.

This item will add a proceeding in relation to an application under subsection 34B(1) (inserted by Item 60) to the definition of 'exempt proceeding' in section 5B of the TIA Act.

This amendment will allow lawfully intercepted information to be used in evidence in a contempt proceeding (inserted by Item 60). Given that examinations take place in relation to investigations, agencies may need information obtained under the TIA Act to be admissible in the contempt hearing.

Part 3 - Application provisions

Item 26

Items 3 and 18 will provide the ACC with the power to refer someone to court to be dealt with for contempt. Item 19 will amend section 35 to make it an offence to threaten any person present at an examination. Items 20 and 21 will ensure a person can only be dealt with for contempt or for an offence, but not both.

Item 26 will make the amendments in items 3 and 18 to 21 apply only in relation to an examination that commenced on or after the commencement of this item. This ensures a person cannot be referred to a court for contempt, or punished for threatening an examiner in relation to conduct that occurred before the commencement of this item.

Item 27

This item noted that the change to the definition of intelligence operation in Item 4 will apply in relation to operations that began before, on or after commencement of this item.

Item 28

This Item will clarify that amendments made by items 9 to 14 of this Schedule apply to a summons or notice issued on or after the commencement of this item. Therefore any summons or notice that was issued prior to commencement will not be invalidated if the reasons were recorded after the time the summons or notice was issued.

Item 29

This item will clarify that the amendments made by items 24 and 25 will apply to information obtained under the Surveillance Devices Act and the Telecommunication (Interception and Access) Act before, on, or after commencement of this item.