Senate

Revised Explanatory Memorandum

(Circulated by authority of the Attorney-General, The Honourable Nicola Roxon MP)

Schedule 2 - Amendments relating to disclosure of Australian Crime Commission (ACC) information

The ACC is established under the Australian Crime Commission Act 2002 (ACC Act) as a statutory authority. It works collaboratively with Commonwealth, State and Territory agencies to combat serious and organised crime. The ACC is the national body responsible for detecting and investigating serious and organised crime and maintaining a leading capability in national criminal intelligence and information services.

Schedule 2 of this Bill makes a range of amendments to the ACC Act to improve and expand the operation of the ACC's information disclosure arrangements.

Section 59 of the ACC Act sets out a range of circumstances in which the ACC may disclose information that would otherwise be subject to the secrecy provision in section 51 of the ACC Act. These circumstances include disclosure to domestic and foreign law enforcement agencies and to prescribed State and Territory bodies where the information is relevant to the activities of that agency or body. However, section 59 does not allow information to be shared with Commonwealth Ministers other than the Minister administering the ACC Act, members of Parliament or the private sector. Moreover, the provisions for sharing with Commonwealth, State and Territory government agencies are unnecessarily complex.

Currently, the Chair of the ACC Board (the Chair) is the sole conduit for information to be provided by the ACC to the Minister administering the ACC Act, and the Inter-Governmental Committee on the ACC (IGC-ACC).

Part 1 of Schedule 2 will allow the Chief Executive Officer of the ACC (the CEO), in addition to the Chair, to report on matters relating to the ACC's conduct in the performance of its functions. As the head of the ACC, the CEO is expected to deal directly with portfolio Ministers and, in so doing, to provide such information as is necessary to inform Ministers about the functioning of the ACC and to support Ministerial decision making. The CEO is also best placed to report on the ACC's activities as the CEO has more involvement than the Chair in the day-to-day operations of the ACC.

Part 2 of Schedule 2 will amend the ACC Act to clearly set out the Commonwealth, State, Territory and foreign and international bodies with which the ACC will be able to share information and the requirements that must be met before information can be shared, and to provide a clear legislative basis for the ACC to share information with private sector bodies where certain specified requirements are met.

Part 1 - Amendments commencing on day after Royal Assent

Australian Crime Commission Act 2002

Item 1- Section 59 (heading)

This item replaces the heading to section 59 with the heading 'Providing reports and information to members of Parliament' (currently 'Furnishing of reports and information'). This new heading better reflects the content of the amended section 59 proposed in this Schedule.

Item 2- Before subsection 59(1)

This item inserts the subheading 'Information for Minister' before subsection 59(1). This new subheading better reflects the content of the amended subsection 59(1) proposed in this Schedule.

Items 3-5 - Before subsection 59(1), and subsection 59(1)

Current subsection 59(1) requires the Chair to keep the Minister informed about the general conduct of the ACC in the performance of its functions. It also requires the Chair to respond to requests from the Minister for information concerning matters relating to the ACC's conduct in the performance of its functions.

Items 3 to 5 will add the CEO after existing references to 'the Chair of the Board' in subsection 59(1).

These items will require the CEO, as well as the Chair, to keep the Minister informed about the ACC's performance of its functions and they will allow the Minister to require the CEO, as well as the Chair, to provide the above information to the Minister. The CEO has more involvement than the Chair in the day-to-day operations of the ACC and is therefore generally better placed to report on the conduct of the ACC's operations. As the head of an agency, the CEO is expected to deal directly with portfolio Ministers and, in so doing, to provide such information as is necessary to inform Ministers about the functioning of the ACC and to support Ministerial decision making. These amendments will ensure that the CEO has the legislative authority to provide information to portfolio ministers for the purpose of keeping ministers up to date with the ACC's activities.

Item 6 - Before subsection 59(1A)

This item inserts the subheading 'Information for Inter-Governmental Committee' before subsection 59(1A). This new subheading better reflects the content of the amended subsection 59(1A) proposed in this Schedule.

Items 7 and 8 - Subsection 59(1A)

Current subsection 59(1A) requires the Chair to provide information on a specific matter relating to the ACC's performance of its functions to a member of the IGC-ACC if the ACC has undertaken action in the member's jurisdiction.

Items 7 and 8 of Schedule 2 will add the CEO after existing references to 'the Chair of the Board' in subsection 59(1A). These amendments will ensure that the CEO has the legislative authority to provide information to the IGC-ACC for the purpose of keeping ministers up to date with the ACC's activities.

These items will allow the CEO, as well as the Chair, to provide information to a member of the IGC-ACC about conduct of the ACC in that member's jurisdiction. The CEO has more involvement in the day-to-day operations of the ACC and is therefore better placed to report on particular operational matters of the ACC. Allowing the CEO to be another conduit for information between the ACC and the IGC-ACC will ensure that the IGC-ACC is able to be kept fully aware of the ACC's operations.

Items 9 and 10 - Subsection 59(2)

Current subsection 59(2) requires the Chair not to provide information to a member of the IGC-ACC under subsection 59(1A) if he or she considers that disclosure of the information to the public could prejudice the safety or reputation of a person or an operation of a law enforcement agency.

Item 9 will add the CEO after the first occurring existing reference to 'the Chair of the Board' in subsection 59(2). Item 10 will add 'he or she' after 'the Chair' (second occurring).

These items will ensure that the same protection that currently applies to the Chair applies to the CEO if he or she is requested to provide information to a member of the IGC-ACC. As items 7 and 8 will allow the CEO to report to a member of the IGC-ACC on the ACC's operations under subsection 59(1A), it is important that the CEO is also required to not provide information where doing so could prejudice the safety or reputation of a person or a law enforcement agency's operations.

Items 11 and 12 - Subsection 59(3) and Paragraph 59(3)(b)

Currently, subsection 59(3) requires the Chair:

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when requested by the IGC-ACC to provide information to the IGC-ACC concerning a specific matter relating to an ACC operation/investigation, comply with the request, and

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when requested by the IGC-ACC to do so, and may at such other times as he or she thinks appropriate, inform the IGC-ACC about the general conduct of the operations of the ACC.

The only exception to the duty to provide information is set out in subsection 59(5), which provides that the Chair is not to provide information if the disclosure of that information to the public could prejudice the safety or reputation of a person or an operation of a law enforcement agency.

The difference between this subsection and subsection 59(2), is that whereas subsection 59(2) relates to requests for information from individual members of the IGC-ACC, this subsection relates to requests for information from the IGC-ACC itself.

Items 11 and 12 will add the CEO after existing references to the Chair in subsection 59(3).

These items will ensure that the the CEO, as well as the Chair, is able to provide the IGC-ACC with information on a specific matter relating to an ACC operation or investigation, or with information about the general conduct of the operations of the ACC. The CEO will also be able to provide information to the IGC-ACC about the general conduct of the ACC's operations whenever he or she considers it appropriate to do so. As the CEO is generally better placed than the Chair to report on ACC activities, these items will help to ensure that an accurate and complete picture of the ACC's performance of its functions can be provided to the IGC-ACC upon request and that the CEO has the legislative authority to provide information to keep IGC-ACC ministers up to date with the ACC's activities.

Item 13 - Subsection 59(5)

Current subsection 59(5) requires the Chair to not provide information to the IGC-ACC under subsections 59(3) or (4) if the disclosure of that information to the public could prejudice the safety or reputation of a person or an operation of a law enforcement agency. Also, if the findings of an ACC investigation include any prejudicial information, the Chair must prepare a separate report in relation to that matter and provide it to the Minister.

Item 13 will add the CEO (as the case requires) after the first occurring reference to 'the Chair of the Board' in subsection 59(5).

This item will ensure that if the IGC-ACC requests information from the CEO under new subsection 59(3) concerning a specific matter or the general conduct of the operations of the ACC, or if the CEO provides information on his or her own initiative, that the CEO will not be able to disclose information that could prejudice the safety or reputation of a person or an operation of a law enforcement agency. This amendment is important to ensure that the CEO cannot provide information that would be prejudicial to a person's safety or reputation or to a law enforcement agency's operation.

Item 14 - Subsection 60(4)

Section 60 of the ACC Act allows the Board to hold public meetings for the purpose of informing the public about, or receiving submissions in relation to, the performance of the ACC's functions and to publish bulletins for the purpose of informing the public about the performance of the ACC's functions.

Item 14 will amend subsection 60(4) to allow the CEO of the ACC to publish bulletins by inserting 'or the CEO' after 'the Board' in that subsection. Due to the composition of the Board, seeking Board approval for a bulletin is a time-consuming process. There may be occasions where the ACC needs to urgently publish a bulletin, which is often not compatible with the requirement to seek approval from the Board. Allowing the CEO to authorise a bulletin will enable bulletins to be released in a much more timely way. This change is also consistent with other amendments in this Schedule which will allow the CEO to provide information on behalf of the ACC where previously only the Chair of the Board was empowered to do so.

Item 15 - Subsection 60(5)

Subsection 60(5) currently prohibits the Board from including in a public bulletin 'any matter the disclosure of which to members of the public could prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been or may be charged with an offence'. Item 15 will amend subsection 60(5) to ensure that this prohibition also applies to the CEO when authorising a public bulletin under subsection 60(4) as amended by item 14.

Item 16 - Application of this Part

This item will set out the application of amendments made by this Part to section 59 of the ACC Act. The item provides that amendments apply in relation to all information possessed by the ACC, whether the information came into the ACC's possession before or after the commencement of the amendments.

These provisions have a retrospective effect in that they will apply to information that came into the ACC's possession before the commencement of the amendments. This is appropriate because it would be illogical for the CEO to be able to provide to the relevant member of Parliament or body information that was obtained after the commencement of the amendments but not information that was obtained before the commencement of the amendments.

Part 2 - Amendments commencing on Proclamation

Subsections 59(7) to (11) of the ACC Act currently set out the circumstances in which the ACC is able to provide information to Commonwealth, State, Territory and foreign bodies where certain conditions are satisfied. However, the provisions allowing the CEO to disclose ACC information to Commonwealth, State, Territory and foreign government agencies are complex and the ACC Act also makes no express provision for the dissemination of ACC information to the private sector other than through public meetings and bulletins of the Board.

The new provisions inserted by this Part will:

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clearly set out the Commonwealth, State, Territory and foreign and international bodies with which the ACC can share information and the requirements that must be met before information can be shared, and

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provide a clear legislative basis for the ACC to share information with private sector bodies where certain specified requirements are met.

Australian Crime Commission Act 2002

Item 17 - Subsection 4(1)

Subsection 4(1) of the ACC Act sets out the definitions that are relevant to the operation of the ACC Act. This item will insert a definition of 'ACC information' into subsection 4(1) of the ACC Act. It will define ACC information as 'information that is in the ACC's possession'. This will include all information the ACC has in its possession but will not include a thing seized under a search warrant issued under section 22 or a document or thing produced under section 28 or 29 (see the definition of 'returnable item' which will be inserted by item 2 in Schedule 3). This will ensure there is a clear divide between how the ACC deals with 'ACC information' and how it deals with 'returnable items'.

The term 'ACC information' will be used in new sections 59AA and 59AB which will be inserted by item 27. These new sections will govern the disclosure of ACC information to government bodies and to the private sector.

Item 18 - Subsection 4(1)

Subsection 4(1) of the ACC Act sets out the definitions that are relevant to the operation of the ACC Act. This item will insert a definition of 'permissible purpose' into the ACC Act.

Under new sections 59AA and 59AB, which will be inserted by item 27 of Schedule 2, the ACC will be able to share ACC information with public and private bodies if the ACC CEO considers it is relevant to a 'permissible purpose' (in the case of sharing information with public bodies) or necessary for a 'permissible purpose' (in the case of sharing information with private sector bodies).

The definition of permissible purpose will set out the reasons for which the ACC will be able to share information. The definition will include the following purposes.

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Performing functions under section 7A or 7C: Section 7A of the ACC Act sets out the functions of the ACC which include collecting, correlating, analysing and disseminating criminal information and intelligence and to provide strategic criminal intelligence assessments to the Board. Section 7C sets out the functions of the ACC Board which include determining national criminal intelligence priorities, providing strategic direction to the ACC and disseminating strategic criminal intelligence assessments. It is appropriate that the ACC be able to share any information it has for the purposes of sections 7A and 7C. It is appropriate that any information held by the ACC can be used for any function of the ACC whether or not that was the reason for which the information was originally obtained or generated. This purpose will ensure the ACC is able to use all information in its possession in the performance of its functions whether or not they are covered by another purpose in the definition of permissible purpose.

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Preventing, detecting, investigating, prosecuting or punishing criminal offences or activity that might constitute criminal offences: This purpose is essential to the functions of the ACC. As the central criminal intelligence body of Australia it is vital that the ACC is able to pass on any ACC information that relates to criminal offences or criminal patterns more generally, to assist in law enforcement. For example, if the ACC were conducting a special intelligence operation into child pornography rings, it is important that the ACC is able to pass on any information obtained or generated during that investigation to prevent or prosecute child exploitation offences. There also does not have to be a specific criminal offence in mind before the information will be able to be passed on. For example, the ACC may provide information about suspicious activity to law enforcement that, when combined with other information held by other agencies, demonstrates criminal activity requiring further investigation. Alternatively, the ACC may pass on information about criminal associates obtained during a special investigation to assist in detecting and breaking up a child pornography ring.

This purpose extends to preventing, detecting, investigating, prosecuting or punishing both domestic and foreign criminal offences. As serious and organised crime does not respect traditional national borders, it is important the ACC continues to be able to share information it obtains with its international counterparts. For example, in the special investigation into a child pornography ring mentioned above, the ACC might obtain information relating to offences being committed overseas. This purpose will enable the ACC to pass that information on to the relevant authorities in a foreign country.

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Preventing, detecting, investigating, prosecuting or punishing breaches of a law that impose a penalty or sanction: Subsection 59(8) of the ACC Act currently provides that the ACC may furnish any information relevant to the taking of civil remedies to the appropriate authorities. As subsection 59(8) will be repealed by item 26 of this Schedule, this purpose will ensure the ACC will continue to be able to share information for this aspect of the taking of civil remedies.

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Preventing, detecting, investigating, prosecuting or punishing seriously improper conduct: If the ACC obtains information which suggests a public official has engaged in serious misconduct, it is important that the ACC is able to pass that information on to the relevant investigating authorities. For example, the ACC may deem it necessary to notify a particular agency if it receives information about corruption or misconduct, or alternatively it may refer information to regulatory bodies who govern the behaviour of professions.

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Preventing, detecting or investigating threats to national security: For example, if the ACC is conducting a special intelligence operation into armament dealings, it may obtain information that suggests a terrorist attack is imminent. It is essential that any information obtained is able to be shared with relevant authorities to prevent, analyse or investigate that threat or related threats further.

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Preventing serious threats to an individual's life, health or safety or to public health or public safety: For example, if the ACC is carrying out a special investigation into child abuse and obtains information suggesting a particular child, or particular class of children are at risk, it is important that the ACC is able to share that information with the relevant authorities. Similarly, if the ACC is aware of an imminent threat to someone's life on the basis of intelligence it has gathered, it is important that there is a clear legislative basis for the ACC to share that information with the relevant authorities to prevent the threatened activity from occurring.

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Enforcing laws (including laws of a foreign country) relating to proceeds of crime and unexplained wealth: For example, if the ACC is conducting a special intelligence operation relating to drug offences, it is appropriate that any information obtained or generated during that operation is able to be used in confiscation proceedings under the Proceeds of Crime Act 2002 , to seek an order to restrain the property of the suspect. Similarly, if the ACC is conducting an operation into money laundering, it is important that any information obtained is able to be used in applying for an unexplained wealth order against an individual.

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Protecting public revenue: For example, if the ACC become aware a person is avoiding tax liability or illegitimately claiming government benefits, it is important that the ACC is able to disclose the information to a government agency responsible for collecting revenue or providing benefits.

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Developing government policy: ACC information can play an important role in shaping government responses to serious and organised crime. For example, information obtained during an ACC special intelligence operation may be used by government in developing better policy responses to prevent certain crime types such as infiltrating and breaking up child pornography rings or developing better ways of preventing the laundering of funds used in crime.

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Researching criminology: ACC information can be used to better inform criminological research, which in turn can better inform the development of government policy.

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Any other purpose prescribed by the regulations: While the purposes set out in this definition aim to capture all the purposes for which the ACC may need to share information, it is not possible to do so definitively. This is because the ACC may not be in a position to know the full range of purposes for which it may need to share information until it has the information. Therefore, this purpose will ensure that if there is some other reason to share information, the ACC is able to seek prescription of the proposed new purpose in the regulations. The requirement to prescribe purposes provides an appropriate level of Parliamentary scrutiny of additional purposes (as regulations are a disallowable instrument).

Item 19 - Subsection 12(1)(note)

This item amends 'note' to 'note 1' to allow for the inclusion of a second note (item 21).

Item 20 - Subsection 12(1)(note)

Subsection 12(1) of the ACC Act requires the CEO to provide evidence of an offence obtained in carrying out an ACC operation or investigation to the appropriate Commonwealth, State or Territory law enforcement agency or Attorney-General. The note at the end of the subsection states that the ACC CEO may also disseminate information under section 59 of the ACC Act.

Item 27 of this Schedule will insert new sections 59AA and 59AB which will govern the sharing of ACC information. Item 20 will amend the note at the end of subsection 12(1) to refer to sections 59AA and 59AB.

Items 21-23 - At the end of subsection 12(1) and At the end of subsection 12(1A)

Subsection 25A(9) of the ACC Act allows an examiner to make an order restricting publication of evidence given before the examiner. The examiner must make such an order if 'the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been, or may be, charged with an offence'. There has previously been uncertainty over whether orders made under subsection 25A(9) operate to prevent disclosure under sections 12 and 59 of the ACC Act. The Federal Court of Australia recently held, in Australian Crime Commission v OK [2010] FCAFC 61, that such provisions are subject to orders made under subsection 25A(9).

The ability of the examiner to make orders under subsection 25A(9) is an important safeguard against the disclosure of information that may prejudice an individual's safety or right to a fair trial. Accordingly it is important that the ACC Act now explicitly provide that orders under subsection 25A(9) preclude disclosure under other provision of the ACC Act allowing for dissemination of information.

Item 23 states explicitly that any disclosure under section 12 of the Act is subject to any relevant direction given under subsection 25A(9)(confidentiality in relation to examinations). Items 21 and 22 insert notes at the end of subsections 12(1) and 12(1A) respectively stating that each subsection is subject to any directions made under subsection 25A(9).

Item 24 - Subparagraph 47(A)(1)(b)(ii)

Section 47A of the ACC Act allows the CEO to make a declaration that the employment of a member of the staff of the ACC (employed under the Public Service Act 1999 ) was terminated because he or she believes on reasonable grounds that the staff member's conduct:

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amounts to serious misconduct (as defined in subsection 47A(7)), and

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is having, or is likely to have, a damaging effect on:

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the professional self-respect or morale of some or all of the members of staff of the ACC, or

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the reputation of the ACC with the public, or with an Australian or foreign Government or an Australian or foreign law enforcement agency.

Item 27 of this Schedule will amend the ACC Act to insert new section 59AA which specifies a range of bodies with which the ACC will be able to share ACC information. Item 24 will amend subparagraph 47A(1)(b)(ii) to ensure that that new provision refers to all bodies that the ACC will be able to share information with and who therefore have an interest in the reputation of the ACC. It is important that all of these bodies are included as part of the provision setting out those persons and bodies who have an interest in the ACC's reputation.

Item 25 - At the end of subsection 59(1)

Item 27 of this Schedule will insert section 59AC which clarifies that section 59 and the new sections 59AA and 59AB are subject to any direction given under subsection 25A(9).

Item 25 inserts a note at the end of subsection 59(1) regarding this provision, stating that section 59 is subject to any relevant direction given under subsection 25A(9).

Item 26 - Subsections 59(7) to (11)

Subsections 59(7) to (11) of the ACC Act currently set out the circumstances in which the ACC is able to provide information to Commonwealth, State, Territory and foreign bodies.

This item repeals subsection 59(7) to 59(11). These subsections will be replaced by new provisions which will clearly set out how the ACC is able to deal with ACC information (item 17 of this Schedule will insert a definition of ACC information). The new provisions will be consistent with the current sharing provisions, but will set them out in a simpler and clearer manner. The new provisions will be inserted by item 27.

This item will insert a new subsection 59(7) which will allow the Chair or the CEO to give information to a member of either House of the Commonwealth Parliament or a member of a State or Territory Parliament, if he or she considers that it is in the public interest to do so. The ACC relies on cooperation between Commonwealth, State and Territory bodies, so it is important that members of Parliament are able to be kept up to date with the ACC's activities. For example, the ACC may need to brief State or Territory Ministers whose responsibilities are relevant to criminal justice or parliamentary committees that are conducting inquiries on a matter that forms part of, or is relevant to, an ACC investigation. This item will ensure that the ACC can share information with Commonwealth, State and Territory members of parliament as required.

Item 27 - After section 59

Subsections 59(7) to (11) of the ACC Act currently set out the circumstances in which the ACC is able to provide information to Commonwealth, State, Territory and foreign bodies where certain conditions are satisfied. However, the provisions allowing the ACC CEO to disclose ACC information to Commonwealth, State, Territory and foreign government agencies are complex.

The ACC Act also makes no express provision for the dissemination of information outside of government other than through public meetings and bulletins of the Board. With the growing recognition of the importance of public-private partnerships in combating organised crime, a more comprehensive approach to sharing ACC information with the private sector is required.

Issues with the current provisions include:

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subsections 59(7) and (9) authorise disclosure of different but overlapping classes of information to differently described, but overlapping, classes of agencies

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subsection 59(8) provides for the ACC to share information for the taking of civil remedies, however, this is arguably also allowed under both subsection 59(7) and (9) making subsection 59(8) redundant, and

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subsection 59(7) does not allow the ACC to disseminate information to many foreign and international agencies when it would sometimes be desirable to do so.

The new provisions inserted by this item will:

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clearly set out the Commonwealth, State, Territory and foreign and international bodies with which the ACC will be able to share information and the requirements that must be met before information can be shared, and

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provide a clear legislative basis for the ACC to share information with private sector bodies where certain specified requirements are met.

Administratively, the ACC will continue to apply appropriate protection to information provided to it under statutory powers or otherwise, for example through the application of appropriate security classifications and other protections to information including personal or commercially sensitive information. The need to protect such information will be an important factor for the CEO to consider in making a decision as to whether to disclose particular information.

Section 59AA - Disclosing information to government bodies

Section 59AA will replace subsections 59(7), (8), (9) and (11), which will be repealed by item 26 of this Schedule. Section 59AA will closely mirror the ability to share information currently available to the ACC in those subsections. New section 59AA will clearly outline all the bodies with which the ACC will be able to share information and will expand the range of bodies with which the ACC can share information to include foreign intelligence bodies and prescribed international bodies. The amended provisions will remove the need for Commonwealth, State and Territory bodies to be prescribed. The proposed amendments will also clearly and explicitly set out the purposes for which information can be shared, compared with the current provision which simply allows sharing where the information is 'relevant to the activities of the agency or body'.

Subsection 59AA(1)

Subsection 59AA(1) will be the main provision setting out with whom the CEO will be able to share ACC information and the circumstances in which the sharing will be able to take place.

The decision to share information will reside with the ACC CEO. This power will be able to be delegated to any SES level staff of the ACC under the general delegation power in section 59A of the ACC Act. Given the sensitivity of the information held by the ACC, it is appropriate that the decision to share information is limited to more senior employees.

Paragraphs 59AA(1)(a) to (e) will set out the persons and bodies with whom the ACC will be able to share information.

Paragraph 59AA(1)(a) will allow the ACC to give ACC information to a 'body' of the Commonwealth, a State or a Territory. Body will be defined in new subsection 59AA(3). This paragraph will authorise the ACC to share ACC information with any public body (however described) at the Commonwealth, State or Territory level.

Paragraph 59AA(1)(b) will allow information to be shared with a person who holds any office or appointment under a law of the Commonwealth, a State or a Territory. This will ensure that, as well as allowing information sharing with bodies, information will also be able to be shared with statutory office holders. For example, this will allow the ACC to share information containing allegations of child related abuse and violence with the Commissioner for Children and Young People in New South Wales and other similar positions in other States and Territories to ensure the relevant Commissioner is aware of relevant allegations and is able to respond appropriately.

Paragraph 59AA(1)(c) will allow ACC information to be shared with a foreign agency responsible for law enforcement, intelligence gathering or security. As serious and organised crime crosses traditional national borders, it is important the ACC continues to be able to share information with its international counterparts. For example, in investigating a child pornography ring, the ACC may obtain information relevant to foreign offences, or the ACC may have information relating to the illicit movement of funds, commodities or people relevant to a national security context. Given the international nature of organised crime, it is important the ACC is able to share this information with foreign authorities.

Paragraph 59AA(1)(d) will allow the ACC to share information with an international body that has functions relating to law enforcement or gathering intelligence and is prescribed by the regulations. Examples of these international bodies could include INTERPOL and other international policing bodies. The requirement to prescribe agencies provides an added level of scrutiny (as regulations are a disallowable instrument).

Paragraph 59AA(1)(e) will allow the ACC to share ACC information with an international judicial body that is prescribed by the regulations. For example, if the ACC were to discover information that suggests criminals operating in Australia were providing support to, or had knowledge of, the commission of crimes against international law, such as genocide or crimes against humanity, that were under investigation by the International Criminal Court, this will ensure the ACC is able to draw that information to the attention of the Court. The requirement to prescribe agencies provides an added level of scrutiny (as regulations are a disallowable instrument).

Paragraphs 59AA(1)(f) to (h) will set out the circumstances in which ACC information will be able to be shared with the bodies listed in paragraphs (a) to (e).

Paragraph 59AA(1)(f) will state that the ACC CEO will only be able to share information if he or she considers it appropriate to do so. This paragraph replicates current paragraph 59(7)(d) which will be repealed by item 26. This paragraph will require the ACC CEO to specifically turn his or her mind to the need to share the information with that specific body and consider the circumstances in which the sharing will take place.

Paragraph 59AA(1)(g) will state that the ACC CEO will only be able to share information that he or she considers is relevant to a permissible purpose. The definition of permissible purpose will be inserted by item 18. While the definition will include a broad range of purposes, the sharing will still be subject to the limitation in paragraph 59AA(1)(f), that the ACC CEO must consider it appropriate to do so. This will mirror the current position for the ACC.

Paragraph 59AA(1)(h) will replicate current paragraph 59(7)(e) which will be repealed by item 26 and will ensure that, despite the rest of the requirements in subsection 59AA(1), the CEO will only be able to share information if doing so is not contrary to a law of the Commonwealth, a State or a Territory. For example, information provided to the ACC by the ATO could be prevented from further disclosure under the secrecy provision in section 3C of the Taxation Administration Act 1953 .

Subsection 59AA(2)

Subsection 59(11) currently allows the ACC CEO to furnish to the Australian Security Intelligence Organisation any information that has come into the ACC's possession and that is relevant to security.

Subsection 59AA(2) will replace current subsection 59(11). It will replicate the power currently available to the CEO to share information with ASIO. The ACC will only be able to share information with ASIO under this provision where it is relevant to security as defined in the Australian Security Intelligence Organisation Act 1979 .

Subsection 59AA(3)

Subsections 59(7) to (9) currently allow the ACC to share information with a number of different entities including agencies, bodies, departments, administrations and instrumentalities. This has created difficulties for the ACC when it has needed to share information with a body that did not fit within the specific descriptions currently used in these subsections. The current provisions also require a body, other than a law enforcement agency, to be prescribed in the regulations before the ACC can share information.

This subsection will set out a definition of 'body' for the purpose of new section 59AA. This definition will include a reference to any body of the Commonwealth, a State or Territory, however it is defined. The definition will also explicitly include a reference to a law enforcement agency to make it clear that the ACC will retain the power to share information with these agencies.

Section 59AB - Disclosing information to private sector bodies

The ACC Act currently makes no express provision for the dissemination of information outside of government other than through public meetings and bulletins of the Board. With the growing recognition of the importance of public-private partnerships in combating organised crime, a better approach to sharing ACC information with the private sector is required.

In 2005, the Independent Review of Airport Security and Policing for the Government of Australia (the Wheeler Review) recommended that legislation and regulations governing the sharing of information, both among government agencies and between government and the private sector, be examined to facilitate the flow of information needed to counter crime and terrorism that threatens the aviation sector.

The Parliamentary Joint Committee on the Australian Crime Commission, in their 2005 review of the Australian Crime Commission Act 2002 , recommended that legislative solutions to reduce barriers to information sharing by the ACC be pursued by Government. This recommendation was accepted by Government.

More recently, the Parliamentary Joint Committee on Law Enforcement, in their Inquiry into the adequacy of aviation and maritime security measures to combat serious and organised crime made recommendations to review current information sharing arrangements between law enforcement agencies and private organisations in the aviation and maritime sectors in order to enhance security in these sectors (recommendations 5 and 8). It is also desirable to remove legislative impediments that prevent the ACC from sharing information with other private sector organisations (for example, the telecommunications, financial and insurance sectors) where doing so can help prevent serious and organised crime.

Section 59AB will set out the circumstances in which the ACC can share ACC information with the private sector.

Subsection 59AB(1)

New subsection 59AB(1) will set out the private sector bodies with whom the ACC CEO can share ACC information and the circumstances under which the information can be shared.

The ACC CEO will only be able to share ACC information with a body corporate and not private individuals. The body corporate must also be prescribed in regulations, or within a prescribed class of bodies, before it can receive ACC information. Examples of classes of bodies that will be able to be prescribed will include companies that provide a specified type of service, such as banks, financial institutions, telecommunications companies, internet service providers or insurance companies, or companies conducting business in a specified location or type of location, such as specified categories of airports or ports. For example, either a particular bank or 'banks and financial institutions', as a class of bodies corporate, could be prescribed as bodies with which the ACC can share information. Once a class has been prescribed, so long as the other requirements of new section 59AB are met, then the ACC can share ACC information with any body corporate that falls within the prescribed class.

Subsection 59AB(1) will set out certain prerequisites that the ACC CEO must be satisfied of before he or she will be able to share information. These will be consistent with the prerequisites in new section 59AA for sharing ACC information with public bodies or office holders.

Paragraph 59AB(1)(a) will ensure the ACC CEO can only share information when he or she considers it is appropriate to do so. This paragraph will be the same as paragraph current 59(7)(d), which will be repealed by item 26, and consistent with new paragraph 59AA(1)(f) which applies to the disclosure of information to government bodies. New paragraph 59AB(1)(a) will require the ACC CEO to specifically turn his or her mind to the need to share the information with that specific body and consider the circumstances in which the sharing will take place.

Paragraph 59AB(1)(b) will ensure the ACC CEO can only share information if the CEO considers that giving the information to that private sector body is necessary for a permissible purpose. A definition of permissible purpose will be inserted by item 18 of this Schedule. It is important that the ACC can share information with the private sector for the each of the permissible purposes set out below:

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Performing the functions of the ACC or the ACC Board: An important aspect of partnerships with the private sector is developing intelligence on the extent and seriousness of unreported crime against private sector bodies. As part of the process of gathering information and insights from private sector bodies, and in developing any proposals for the ACC Board, it is likely to be necessary to disclose elements of existing ACC intelligence so as to identify the areas where private sector input will be of most assistance.

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Preventing, detecting, investigating, prosecuting or punishing criminal offences or activities that might constitute criminal offences: Through an ACC investigation, certain vulnerabilities that exist in a particular sector may come to light. The ACC may seek to inform operators in those sectors of the vulnerabilities in order to allow them to institute mitigation and prevention strategies to avoid exploitation by criminal enterprises.

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Preventing, detecting or investigating threats to national security: The ACC may pass on information that comes into its possession that is relevant to national security to assist private sector bodies to address security risks and facilitate private sector cooperation with government and law enforcement to mitigate risks.

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Preventing serious threats to an individual's life, health or safety, or to public health or public safety: The ACC may become aware of threats to individuals, plans to harm criminal opponents or other criminal conduct that poses risks to safety. It will be important that any such intelligence is able to be disseminated as a matter of urgency to all bodies that may need to be involved in preventing or responding to the threat.

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Enforcing laws relating to proceeds of crime: The ACC may wish to inform entities required to report under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 about developing criminal techniques, or in some cases about particular false identities, in order to help the reporting entities identify suspicious transactions more effectively.

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Enforcing laws relating to unexplained wealth: For example, the ACC may wish to conduct inquiries designed to eliminate any false claims about legitimate sources of income. Such investigations may require the ACC to provide information to the private sector body alleged to be the source of income in order to test the reliability of the information.

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Protecting public revenue: If a new type of suspected tax fraud is found to involve the deception of providers of accounting services, it may be necessary for the ACC to provide information to accounting firms to assist them to identify persons or methods likely to be involved in future attempts to engage in similar deceptive conduct.

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Developing government policy and researching criminology: If development of policy on, or research into, a particular subject matter involves use of external consultants, the ACC may wish to disclose relevant intelligence product to the consultants as well as to the government agencies involved in the process.

Given the sensitivity of much of the information held by the ACC, it is imperative that the ACC retain its overall discretion over whether or not protected information is disclosed to the private sector, and under what conditions the disclosure is made. Paragraphs 59AB(1)(c) and (d) will ensure the ACC CEO retains control over the conditions of any disclosure and the use that is made of the information.

Paragraph 59AB(1)(c) will require the recipient body to undertake not to use or further disclose the information except for a purpose mentioned in subsection (3) or as otherwise required by a law of the Commonwealth, a State or a Territory. Subsection 59AB(3) will require the CEO to specify in writing any purposes for which the information may be used or further disclosed.

Paragraph 59AB(1)(d) will ensure the CEO is not able to share information unless the recipient has undertaken in writing to comply with any conditions imposed by the ACC CEO under subsection 59AB(4), which will allow the ACC CEO to specify any conditions which must be met by the body receiving the ACC information.

Subparagraph 59AB(1)(e)(i) will ensure that ACC information will only be able to be shared with a private sector body if doing so will not prejudice the safety of a person, or prejudice the fair trial of a person who has been charged with an offence. This will ensure the sharing of information cannot occur when it might endanger someone or put at risk someone's right to a fair trial.

This amendment, in conjunction with proposed paragraph 59AB(4)(c), responds to Recommendation 2 of the House of Representatives Standing Committee on Social Policy and Legal Affairs Advisory Report: Crimes Legislation Amendment (Powers and Offences) Bill 2011 . The Committee recommended that safeguards be introduced to section 59AB that contained similar protections and wording as contained in subsection 25A(9) of the ACC Act.

Subsection 25A(9) of the ACC Act provides for an ACC Examiner to make a direction restricting the publication of information obtained at an ACC examination. An Examiner is required to make such a direction where a failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been, or may be, charged with an offence. The ACC CEO may subsequently revoke or vary a direction made under subsection 25A(9), but not if to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been, or may be, charged with an offence.

Subparagraph 59AB(1)(e)(i) seeks to apply protections for safety and fair trial similar to those contained in subsection 25A(9) to section 59AB. Protections for a person's reputation are addressed by proposed paragraph 59AB(4)(c).

Subparagraph 59AB(1)(e)(ii) will ensure that ACC information will only be able to be shared with a private sector body if doing so will not be contrary to a law of the Commonwealth, a State or a Territory. For example, information provided to the ACC by the ATO may be prevented from further disclosure under the secrecy provision in section 3C of the Taxation Administration Act 1953 . In such a case, the ACC could not pass that information on to a private sector body.

Subsection 59AB(2)

New subsection 59AB(2) will set out limitations on the CEO's ability to share information with a private sector body. Public officials are subject to accountability regimes (eg code of conduct requirements) to hold them accountable for their actions. As members of the private sector are not subject to such accountability regimes, it is important to place greater restraints on what type of information held by the ACC will be able to be disclosed to the private sector.

Paragraph 59AB(2)(a) will prevent 'personal information' within the meaning of the Privacy Act 1988 from being shared unless the CEO considers it necessary for:

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preventing criminal offences or activities that might constitute criminal offences (including under a law of a foreign country)

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detecting criminal offences or activities that might constitute criminal offences (including under a law of a foreign country), or

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facilitating the collection of criminal information and intelligence in relation to criminal offences or activities that might constitute criminal offences (including under a law of a foreign country).

Personal information is defined in the Privacy Act as information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion. It is appropriate to allow personal information to be shared to prevent or detect the commission of criminal offences because of the significant public interest in doing so. A specific offence does not have to have been identified when deciding whether or not to share information.

Sharing personal information for these purposes is also consistent with the National Privacy Principles in the Privacy Act, which allow an organisation to use and disclose personal information where that use or disclosure is reasonably necessary for the prevention, detection, investigation, prosecution or punishment of criminal offences or breaches of a law imposing a penalty.

Paragraph 59AB(2)(b) will ensure that in any circumstance where the information is confidential commercial information relating to another body or person, the ACC will not, under any circumstances, be able to share any information with the private sector. This is appropriate as the ACC should not be providing an unfair advantage to any private sector body over a competitor through the provision of ACC information.

Subsections 59AB(3), (4) and (5)

New subsections 59AB(3), (4) and (5) will enable the ACC CEO to specify any purposes for which the information may be able to be used or further disclosed and any conditions governing the sharing of the information.

New subsection 59AB(3) will allow the ACC CEO to place tight controls on the use and further disclosure of the information by the private sector body. This is important given the sensitivity of the information the ACC may be disclosing. If the body does not undertake to comply with the specified purposes, then the ACC CEO will not be able to share the information as a result of the operation of paragraph 59AB(1)(c). The purposes for which the ACC CEO will be able to allow the information to be used or further disclosed are limited to permissible purposes. A definition of permissible purposes will be inserted by item 18.

The purposes must be specified in writing. This provides certainty if there is ever a dispute as to the purposes for which the information was disclosed. Using the ACC information for a purpose other than a purpose for which the CEO has specified will be an offence under subsection 59AB(5).

New subsection 59AB(4) will apply when the CEO is sharing 'personal information' (within the meaning of the Privacy Act 1988 ) with a body corporate. The CEO will be required to set conditions which the recipient body must meet before the information is shared and once the information has been shared.

Paragraph 59AB(4)(a) will require the CEO to set conditions relating to how the body corporate is to monitor and control further disclosure of the information.

Paragraph 59AB(4)(b) will require the CEO to impose a condition prohibiting disclosure of the information by the body corporate to persons outside the body corporate, other than in specified circumstances.

Paragraph 59AB(4)(c) will require the CEO to impose one or more conditions to ensure that the information is not used or disclosed in a way that might prejudice the reputation of a person. This amendment, in conjunction with proposed subparagraph 59AB(1)(e)(i), responds to Recommendation 2 of the House of Representatives Standing Committee on Social Policy and Legal Affairs Advisory Report: Crimes Legislation Amendment (Powers and Offences) Bill 2011 .

Subsection 59AB(5) will allow the ACC CEO to set any other conditions which he or she considers appropriate in relation to ACC information shared under section 59AB. This will ensure the CEO can specify conditions to ensure that ACC information which is shared with a body corporate will be held securely and will not be inappropriately disclosed within or outside the receiving organisation. Examples of the conditions which will be able to be imposed under this subsection include:

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requirements for how the information is to be managed, handled, treated, stored, re-published, archived, and destroyed

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requiring any person who may have access to the information to have or obtain a security clearance prior to the provision of information, and

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an obligation to return or destroy the disclosed information.

Subsection 59AB(6)

New subsection 59AB(6) makes clear that conditions specified in writing by the CEO under new subsections 59AB(3), (4) and (5) are not legislative instruments.

Subsection 59AB(7)

Section 51 of the ACC Act makes it an offence to make a record of, or divulge information other than in accordance with the performance of duties under the ACC Act.

As section 51 applies only to the ACC CEO, members of the Board, examiners and members of staff of the ACC, there is no offence that currently applies if private sector recipients of information mishandle ACC information. The inclusion of criminal offences specifically targeted at private sector recipients of information will ensure the proper protection of information that has been disclosed under new subsection 59AB(1).

New subsection 59AB(7) will make it an offence to make a record of the information obtained or to disclose the information to any other person otherwise than in accordance with any purposes specified under subsection 59AB(3) or as required by any other law.

An example of where this offence may apply is where the CEO discloses information to Corporation A for the purposes of investigating the corrupt behaviour of a member of staff of Corporation A, Emma. Another staff member of Corporation A, Sally, who has access to the information provided by the ACC, then discloses the information to Emma to tip her off about the investigation. Sally will be guilty of an offence for using the information other than for the purposes allowed by the CEO.

Section 5.6 of the Criminal Code will apply automatic fault elements to the physical elements of the offence set out in new subsection 59AB(7). Therefore the prosecution will need to prove beyond reasonable doubt that the person:

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was reckless as to the fact that the information was disclosed to the person under new subsection 59AB(1)

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intentionally made a record of the information or disclosed the information to an other person, and

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was reckless as to the fact that the further use or disclosure was not for the purpose specified under new subsection 59AB(3) or was not required by any other law.

The offence will apply to both individuals and bodies corporate. Where an employee, director or agent of a body corporate uses information disclosed by the ACC for purposes other than that for which it was disclosed (as described in the example above), then, in accordance with the general principles of corporate criminal responsibility in Part 2.5 of the Criminal Code, the body corporate may also have committed an offence.

The offence will be punishable by 50 penalty units or imprisonment for 12 months or both. Where a body corporate is convicted of this offence the 'corporate multiplier' in subsection 4B(3) of the Crimes Act 1914 would apply to allow a maximum pecuniary penalty five times greater.

Subsection 59AB(8)

New subsection 59AB(8) makes it an offence to do an act, or omit to do an act, which breaches a condition imposed by the CEO under subsection 59AB(4) or (5).

For example, the ACC CEO may impose a condition that the information which has been shared with the private sector body under new subsection 59AB(1), can only be accessed by persons holding a security clearance. A member of staff, Tara, may disclose the information to another member of staff, Cat, knowing that Cat does not have a security clearance. Tara will have committed an offence under subsection 59AB(8).

Section 5.6 of the Criminal Code will apply automatic fault elements to the physical elements of the offence set out in subsection 59AB(8). To establish this offence, the prosecution will need to prove beyond reasonable doubt that the person:

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was reckless as to the fact that the information was disclosed to the person under subsection 59AB(1)

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was reckless as to the fact that the ACC CEO specified a condition under paragraph 59AB(4)(a) or (b) or subsection 59AB(5) in relation to the information

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the person intentionally did an act or intentionally omitted to do an act in relation to the information, and

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was reckless as to the fact that the act or omission breached the condition.

The offence will apply to both individuals and bodies corporate. Where an employee, director or agent of a body corporate uses information disclosed by the ACC for purposes other than that for which it was disclosed, then, in accordance with the general principles of corporate criminal responsibility in Part 2.5 of the Criminal Code, the body corporate may also have committed an offence.

The offence will be punishable by 50 penalty units or imprisonment for 12 months or both. Where a body corporate is convicted of this offence the 'corporate multiplier' in subsection 4B(3) of the Crimes Act 1914 would apply to allow a maximum pecuniary penalty five times greater.

Subsection 59AB(9)

The general defences available under Part 2.3 of the Criminal Code will be available to a person accused of an offence under new subsections 59AB(7) or (8).

New subsection 59AB(9) will set out a further defence to the offences in new subsections 59AB(7) and (8). New subsection 59AB(9) will provide that it is a defence if the information is in the public domain before the person makes the record or disclosure which is the subject of the offence in subsection 59AB(6) or (7).

For the defence to apply, the original disclosure of the information into the public domain (that is the disclosure by the person other than the person subject to the offence) will be required not to have been in contravention of section 51 of the ACC Act or in breach of an undertaking given under paragraph 59AB(1)(a).

The defendant bears the evidential burden of pointing to evidence which supports the defence in subsection 59AB(9). It will generally be much easier for a defendant, rather than the prosecution, to produce evidence showing that the circumstances to which the defence applies do in fact exist because such evidence will be peculiarly within the knowledge of the defendant.

Section 59AC - Confidentiality in relation to examiners

Subsection 25A(9) of the ACC Act allows an examiner to make an order restricting publication of evidence given before the examiner. Under subsection 25A(9), the examiner must make such an order if 'the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been, or may be, charged with an offence'. There has previously been uncertainty over whether orders made under subsection 25A(9) operate to prevent disclosure under sections 12 and 59 of the ACC Act. The Federal Court of Australia recently held, in Australian Crime Commission v OK [2010] FCAFC 61, that such provisions are subject to orders made under subsection 25A(9).

The obligation on the examiner to make orders under subsection 25A(9) is an important safeguard against the disclosure of information that might prejudice an individual's safety or right to a fair trial. Accordingly it is important that it now be made explicit in the legislation that such orders preclude disclosure under existing or new provisions of the ACC Act allowing for disclosure of ACC information.

Section 59AC will state explicitly that any disclosure under sections 59, 59AA and 59AB of the act is subject to any directions made under subsection 25A(9).

Section 59AD - Publication of reports in relation to offences

Subsection 59(10) currently prevents a report under the ACC Act that sets out a finding that an offence has been committed from being made public unless the finding in the report is based on evidence that would be admissible in the prosecution of a person for that offence. Subsection 59(10) will be repealed by item 26 of this Schedule.

New section 59AD will replicate current subsection 59(10) to ensure that the ACC is not able to make a report public where doing so will suggest a person is guilty of an offence based on evidence that would not be admissible in a prosecution of that person.

Item 28 - After paragraph 61(2)(d)

Subsection 61(2) of the ACC Act contains a list of matters which must be included in the annual report prepared by the Chair of the ACC Board. This list currently includes 'the general nature and the extent of any information furnished by the CEO during that year to a law enforcement agency'. Item 28 will amend this section to add to this list a similar requirement in relation to information shared with private sector bodies under section 59AB. This requirement will provide oversight of the ACC's new ability to share information with the private sector by requiring information on such sharing to be publicly available.

Item 29 - Application of this Part

This item provides that this Part applies to any information that is in the ACC's possession, whether it came into the ACC's possession before or after this Part commences. This will allow the ACC to deal consistently with information that it has lawfully acquired or generated prior to the commencement of the amendments.