House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Justice, the Hon Michael Keenan MP)

Schedule 1 - Amendment of the Australian Crime Commission Act 2002

GENERAL OUTLINE

8. The purpose of Schedule 1 is to make necessary amendments to the ACC Act to merge CrimTrac into the ACC and ensure that the merged agency can carry out CrimTrac's existing functions.

Australian Crime Commission Act 2002

Item 1 - Subsection 4(1)

9. This item inserts the following definitions into subsection 4(1) of the ACC Act.

Accredited body

10. 'Accredited body' is defined by reference to new subsection 46A(5). An accredited body will be a body that can apply for and receive nationally coordinated criminal history checks about individuals. The ACC CEO will be responsible for approving accredited bodies under the amended Act.

Charges Act

11. 'Charges Act' is defined to mean the Australian Crime Commission (National Policing Information Charges) Act 2015. The Charges Act will provide authority for the merged agency to charge beyond cost recover for certain CrimTrac-type services, as determined by the Minister for Justice on advice of the Board.

Finance Minister

12. 'Finance Minister' is defined to mean the Minister administering the Public Governance, Performance and Accountability Act 2013. The Finance Minister will be able to give written directions that require the Commonwealth to be notionally liable for a charge imposed by the Charges Act.

National policing information

13. 'National policing information' is defined as information that is collected by the Australian Federal Police (AFP), the police force of a State (which also includes the police force of a territory) or a body prescribed by the regulations, and that is of a kind prescribed by the regulations. However, national policing information does not include:

•

a. any further information, opinion, interpretation or conclusion derived by the ACC from collected information, or

•

b. any collected information included in an analysis, report or other presentation by the ACC.

14. This definition is intended to capture all information that is collected, held and disseminated by CrimTrac in support of the services it delivers to police and the community. It is not intended to capture information that is currently collected or held by the ACC, or information that will be collected by the ACC in the future in the performance of its intelligence or investigatory functions.

15. Information, reports or other analysis derived from information falling within the first part of this definition is also excluded from the scope of national policing information. This will ensure that, where the ACC uses that type of information for another purpose (for example, for an intelligence purpose, in the preparation of a strategic assessment or another type of report), that value-added information will not fall within the provisions of the Act applying to national policing information (for example, the limits on dissemination proposed by this bill.

National policing information functions

16. 'National policing information functions' is defined to mean the ACC's functions as set out in new paragraph 7A(fa). This definition is intended to capture all of the functions currently performed by CrimTrac, and all of the 'CrimTrac-like' functions the merged agency may perform in the future.

Item 2 - After subsection 7(1)

17. This item inserts a new subsection (1A) into section 7 of the ACC Act.

18. Subsection 7(1) of the ACC Act currently establishes the 'Australian Crime Commission' as a statutory agency.

19. New subsection 7(1A) will enable the ACC to also be known by a name specified in the regulations.

20. This will allow respective governments to determine, from time to time, the most appropriate name for the merged agency.

21. As the ACC could be legally known as the 'Australian Crime Commission' and any name determined by the regulations under new subsection 7(1A), Commonwealth, state and territory governments will not be required to make consequential amendments to their legislation should the ACC become known by a new name. References to the ACC, including in the state and territory laws that support the ACC's establishment as a national intelligence agency with special investigatory powers, will remain legally valid should this power be exercised.

Item 3 - After paragraph 7A(f)

22. This item inserts a new paragraph (fa) into section 7A of the ACC Act to enable the ACC to perform all of the functions currently carried out by CrimTrac.

23. Section 7A of the ACC Act sets out the ACC's existing statutory functions. Under this provision, the ACC already has a legislated function to 'collect and analyse criminal information'. However, this function requires a link to past, present or future criminality by any person.

24. To remove any doubt as to the scope of the ACC's functions, new paragraph 7A(fa) will provide the ACC with a clear power to exercise the following functions currently performed by CrimTrac, without necessarily requiring a link with past, present or future criminality:

(fa) to provide systems and services relating to national policing information, including the following:

i.

collecting, correlating and organising national policing information

ii.

providing access to national policing information

iii.

supporting and facilitating the exchange of national policing information, and

iv.

providing nationally coordinated criminal history checks on payment of a charge imposed by the Charges Act.

25. This list of functions was developed in close consultation with CrimTrac, and is intended to enable the ACC to carry out all of the functions that CrimTrac currently preforms. It will also enable the ACC to carry out new 'CrimTrac-type' functions in the future. For example, it will enable the ACC to provide new national policing information systems and services, should the Board agree to this.

26. New subparagraph 7A(fa)(iv) links with the Australian Crime Commission (National Policing Information Charges) Bill 2015. Currently, CrimTrac charges for the provision of national coordinated criminal history checks. The Charges Bill will provide a legislative basis for the merged agency to continue this business model. New subparagraph 7A(fa)(vi) clarifies that, like CrimTrac, the ACC will only provide nationally coordinated criminal history checks on payment of a charge imposed by that Bill, once enacted.

Item 4 - after paragraph 7C(1)(a)

27. This item inserts a new paragraph (aa) into subsection 7C(1) of the ACC Act, to provide the ACC Board with a new function of determining priorities in relation to national policing information systems and services.

28. The ACC and CrimTrac are both governed by Boards. Following a merger, there would be a single Board overseeing the merged agency. This role would fall to the ACC Board under the ACC Act. The CrimTrac Board would be abolished, but all agencies represented on the CrimTrac Board are represented on the ACC Board.

29. Subsection 7C(1) of the ACC Act currently sets out all of the ACC Board's functions, which include determining national criminal intelligence priorities, determining the ACC's priorities and authorising the ACC to undertake intelligence operations or to investigate federally relevant criminal activity.

30. To ensure that the ACC Board can set the merged agency's high-level priorities for CrimTrac-type systems and services as the CrimTrac Board currently does, new paragraph 7C(1)(aa) will provide the ACC Board with a clear function of determining national policing information systems and services priorities.

31. This role is intended to be consistent with the type of role the ACC Board currently plays in relation to determining national criminal intelligence priorities and broad ACC priorities.

32. As Agency Head and accountable authority for the ACC, the ACC CEO will retain ultimate responsibility for decisions made in relation to the Public Service Act 1999 and the Public Governance, Performance and Accountability Act 2013.

Item 5- after paragraph 7C(1)(g)

33. The ACC and CrimTrac are both governed by Boards. Following a merger, there would be a single Board overseeing the merged agency. This role would fall to the ACC Board under the ACC Act. The CrimTrac Board would be abolished.

34. This item inserts new paragraphs (ga), (gb), (gc) and (gd) into subsection 7C(1) of the ACC Act to provide the ACC Board with additional, specific functions currently exercised by the CrimTrac Board.

New paragraph 7C(1)(ga)

35. New paragraph 7C(1)(ga) provides the ACC Board with the function of making recommendations to the Minister about expenditure from the National Policing Information Systems and Services Special Account.

36. The Special Account's primary purpose is to support the development and maintenance of new and existing information sharing systems for Australia's police services. Under CrimTrac's current InterGovernmental Agreement, decisions on expenditures from the Special Account are the responsibility of the CrimTrac Board. The CrimTrac Board comprises the Police Commissioner from each state and territory, the Chief Police Officer of the ACT, the AFP Commissioner and a nominated representative from the Commonwealth Attorney-General's Department. Together with the increased Board quorum requirements proposed in this Bill, new paragraph 7C(1)(ga) would ensure that police retain their influence over expenditures on information sharing systems that support police.

New paragraph 7C(1)(gb)

37. New paragraph 7C(1)(gb) provides the ACC Board with the new function of making recommendations to the Minister about charges for national policing information services (including criminal history checks). New subsection 7C(7) requires the Board to make a recommendation before the end of each financial year.

38. CrimTrac currently imposes a charge for the provision of criminal history checks. The amount of a charge for a criminal history check and who must pay the charge is currently set by the CrimTrac Board following consultation with and the agreement of police jurisdictions. While CrimTrac only imposes a charge in respect of criminal history checks, it would be within the CrimTrac Board's remit to impose a charge for the provision of other services, if additional funding were required to support the provision of services to police.

39. The Australian Crime Commission (National Policing Information Charges) Bill 2015(Charges Bill), once enacted, will create a framework that would allow the ACC to impose a charge for the provision of national policing information services. Subsection 7(1) of the Charges Bill allows the Minister to determine the amount of a national policing information charge for an application for, or the provision of, a kind of national policing information service - this would include criminal history checks but can also include other services. Before doing so, subsection 7(3) of the Charges Bill requires the Minister to have regard to the recommendation made by the Board under new subsection 7C(7).

40. Most of the information flowing through CrimTrac's systems that will be used to provide national policing information services is provided by state and territory police. Providing the Board with the ability to make recommendations that the Minister must consider ensures that police commissioners retain influence over the kind of national policing information services that should be subject to a charge, the amount of any charge, as well as who must pay a charge.

New paragraph 7C(1)(gc)

41. New paragraph 7C(1)(gc) provides the ACC Board with the function of determining policies and giving directions to the ACC CEO in relation to the following:

(i)

disclosing national policing information, and

(ii)

approving a body as an accredited body.

42. Under this paragraph, policies and directions must be in writing. Under current subsection 46A(1) of the ACC Act, the ACC CEO must comply with a written policy or direction of the Board.

43. New subparagraph (i) will enable the Board to provide a policy or direction to the ACC CEO about the provision of controlled access to national policing information and systems to appropriate third parties, which can currently be accredited as 'Approved External Agencies' by the CrimTrac Board.

44. New subparagraph (ii) will enable the Board to provide a policy or direction to the CEO about who the ACC CEO may approve as an 'accredited body' under new subsection 46A(5). Accredited bodies are those bodies that can be provided with nationally coordinated criminal history check information.

45. Together, these subparagraphs are intended to enable the ACC Board to set limits or conditions on the level of access a non-Board agency may have to national policing information or the types of bodies that can access a nationally coordinated criminal history check through the ACC. This is intended to ensure that the CrimTrac Board may still play a key role in the release of national policing information to non-Board agencies.

New paragraph 7C(1)(gd)

46. New paragraph 7C(1)(gd) provides the ACC Board with the function of determining any conditions or restrictions that the merged agency must comply with in providing nationally coordinated criminal history checks.

47. Under this paragraph, any conditions or restrictions must be in writing.

48. This provision is intended to enable the ACC Board to set limits or conditions on the level of access an accredited agency or an individual may have to criminal history information. It is intended to provide the Board with a mechanism by which it may control or limit the release of this specific type of national policing information, if it so wishes.

49. This provision links to new subsection 13(2), which clarifies that the ACC must comply with any condition or restriction determined by the ACC Board in providing a nationally coordinated criminal history check.

Item 6 - at the end of section 7C

50. This item inserts new subsections (7), (8) and (9) into section 7C of the ACC Act to provide further detail on the ACC Board's role in determining the amount the ACC may charge for national policing information services (including criminal history checks).

Subsection 7C(7)

51. New subsection 7C(7) provides that before the end of each financial year, the Board must make a written recommendation to the Minister that the Minister either:

a)

vary the legislative instrument under section 7 of the Charges Act in accordance with the recommendation; or

b)

not vary the legislative instrument made under section 7 of the Charges Act.

52. Under CrimTrac's intergovernmental agreement, the CrimTrac Board is responsible for overseeing the operation and financial management of CrimTrac, including the agency's budget and funding model.

53. This subsection requires the Board to make recommendations to the Minister regarding charges to be imposed under section 6 of the Australian Crime Commission (National Policing Information Charges) Bill 2015, once enacted, for the provision of national policing information services. This includes the ability to recommend the kind of national policing information services that should be subject to a charge, the amount of any charge, as well as who must pay a charge. Under subsection 7(3) of the Charges Bill, the Minister must consider this recommendation before varying the instrument under subsection 7(1) of the Charges Bill.

Subsection 7C(8)

54. New subsection 7C(8) provides the conditions that the Board must and may choose to take into account in making a recommendation to the Minister under new subsection 7C(7).

55. Under new subsection 7C(8), in making the recommendation the ACC Board:

a)

must have regard to the principle that the charges and other fees imposed for national policing information services should cover the costs to the ACC of providing national policing information systems and services, and

b)

may have regard to any other matter the Board considers relevant.

56. CrimTrac is currently entirely self-funded, generating revenue from the provision of criminal history checking services to the community. The revenue generated from this service allows CrimTrac to provide other services in support of national policing efforts at no charge to police or governments.

57. The Charges Bill is intended to preserve the flexibility the CrimTrac Board currently has in determining the kind of services that should be subject to a charge, the amount of a charge and who must pay a charge. CrimTrac also charges a fee for service for the provision of specific services for specific purposes.

58. Paragraph (a) ensures that the Board, in making recommendations to the Minister under subsection 7C(7), has regard to the need for charges under the Charges Bill to be linked to the cost of providing the totality of the ACC's national policing information systems and services. This has the intention of:

•

preserving the current CrimTrac funding model, under which revenue generated for certain services support the provision of other services at no cost to police or governments

•

ensuring that charges reflect the changing costs of providing these systems and services, and

•

ensuring sufficient nexus exists between the amount generated from charging activities and the purposes for which charges are imposed.

59. Paragraph (b) allows the Board to consider other matters that may be relevant to a recommendation under subsection 7C(7). This could include matters not directly related to the cost of providing services, such as the need to account for system depreciation, the renewal and replacement of systems, and the development of new systems to respond to emerging national policing needs.

Subsection 7C(9)

60. New subsection 7C(9) provides that if the Board recommends that the Minister vary the instrument under new subsection 7C(7), the recommendation must set out the matters that the Board considered in making that recommendation. This ensures the Minister is informed of the matters the Board considered relevant before the Minister makes a decision to vary the legislative instrument made under subsection 7(1) of the Charges Bill.

Item 7 - section 7F

61. This item raises the quorum for an ACC Board meeting from seven Board members to nine Board members (not including the ACC CEO).

62. The ACC and CrimTrac are both governed by Boards. Following a merger, there would be a single Board overseeing the merged agency. This role would fall to the ACC Board under the ACC Act. The CrimTrac Board would be abolished.

63. The ACC Board currently comprises the Police Commissioner from each state and territory, the Chief Police Officer of the ACT, the AFP Commissioner, six heads of Commonwealth agencies and the ACC CEO.

64. Increasing the quorum requirements from seven Board members to nine Board members (not including the ACC CEO), would ensure that each Board meeting has at least two jurisdictional representatives and/or one Commonwealth representative in attendance.

65. This is more representative of the current membership of the CrimTrac Board, which comprises the Police Commissioner from each state and territory, the Chief Police Officer of the ACT, the AFP Commissioner and a nominated representative from the Commonwealth Attorney-General's Department.

Item 8 - at the end of subdivision B of Division 1 of Part II

66. This item inserts a new section 7L into the ACC Act.

67. Currently, there is nothing in legislation that allows the ACC Board to play a formal role in adding new members to the Board. New section 7L will provide the ACC Board with a new power to make recommendations to the Inter-Governmental Committee of the ACC (IGC-ACC) on this issue.

68. New subsection 7L(1) provides the ACC Board with a new power to make recommendations to the IGC-ACC about the composition and functioning of the Board. This is intended to enable the Board to make recommendations to the IGC-ACC about the addition of new members of the Board.

69. Under new subsection 7L(2), if the ACC Board recommends changes to the Board's composition, it must also recommend what changes, if any, should be made to the Board's:

•

quorum requirements (section 7F)

•

voting requirements (section 7G), and

•

resolutions outside of Board meetings (section 7J).

70. Subsection 7L(2) is intended to ensure that the ACC Board and IGC-ACC consider the impacts a change in composition will have on the functioning of the Board, particularly the balance of Commonwealth to state and territory representatives, and whether any consequential changes to formal arrangements are required as a result of these impacts.

Item 9 - section 12 (heading)

71. This item is a consequential amendment that repeals the current heading for section 12 and replaces it with a new heading - 'Performance of operations/investigations functions'.

Item 10 - after subsection 12(2)

72. This item inserts a new section 13 into the ACC Act. New section 13 will set out some formal requirements relating to the performance of the ACC's new national policing information functions.

New subsection s13(1) and 13(3)

73. Under new subsection 13(1), the ACC must not perform its national policing information functions other than for the purposes set out in paragraphs (a) - (k).

74. This is a reading down provision that is intended to provide clarity on the Constitutional heads of power the Commonwealth has relied on in providing the ACC with its new national policing information functions. It is not intended to apply to any of the ACC's existing functions, including its intelligence functions and special investigatory powers.

75. New subsection 13(3) clarifies that a reference to Territory in this section means a Territory referred to in section 122 of the Constitution. This definition is consequential to new subsection 13(1).

New subsection 13(2)

76. New subsection 13(2) clarifies that the ACC must comply with any condition or restriction determined by the ACC Board in providing a nationally coordinated criminal history check.

77. This links to new paragraph 7C(1)(gd), which provides the ACC Board with the function of determining any conditions or restrictions that the merged agency must comply with in providing nationally coordinated criminal history checks.

Item11- before subsection 12(3)

78. This item is a consequential amendment that inserts a new heading before existing subsection 12(3) - 'Performance of functions - general'. Once the bill is enacted, this heading will follow the new section 13.

Item 12 - subsection 12(3)

79. This item is a consequential amendment that renumbers current subsection 12(3) of the ACC Act as subsection 14(1).

Item 13 - subsection 12(6)

80. This item is a consequential amendment that renumbers current subsection 12(6) of the ACC Act as subsection 14(2).

Item 14 - after section 12

81. This item inserts a new section 15 and a new section 15A into the ACC Act, relating to the fees and charges the ACC may impose for goods or services relating to the performance of its national policing information function.

Section 15 - Fees in relation to national policing information functions

82. New subsection 15(1) will enable the ACC to charge a fee for goods or services that it provides in the course of performing its national policing information functions, as CrimTrac currently does.

83. CrimTrac currently provides some services to specific agencies on a fee-for-service basis. For example, CrimTrac provides certain fingerprinting services to the Department of Immigration and Border Protection on a fee for service basis. This is separate from the charges currently imposed for criminal history checking services, which also fund the delivery of other services to police. The Government proposes that the ability to charge a fee for services, instead of a charge that also subsidises other services, would continue through the ACC post-merger.

84. New subsection 15(2) provides that the fee must not amount to taxation. This means that the fee must be reasonably related to the cost of providing the service.

85. New subsection 15(3) would require that any fee charged for this work would be due to the Commonwealth, as the ACC is a Commonwealth agency, and would be recoverable by the ACC, on behalf of the Commonwealth.

Section 15A - National policing information charges

86. New subsection 15A(1) provides that a charge imposed by the Australian Crime Commission (National Policing Information Charges) Bill 2015, once enacted, is payable to the ACC, on behalf of the Commonwealth.

87. New subsection 15A(2) provides that a charge imposed by the Charges Bill, once enacted, is a debt due to the Commonwealth, as the ACC is a Commonwealth agency, and would be recoverable by the ACC, on behalf of the Commonwealth.

88. New subsection 15A(3) would allow the ACC to, on behalf of the Commonwealth:

a)

waive or reduce a charge imposed by the Charges Act (once enacted) in relation to a national policing information service, or

b)

refund, in whole or in part a charge imposed by the Charges Act (once enacted) in relation to national policing information service.

89. This provision is intended to address any unforeseen consequences that could be brought about as a result of the Charges Act, once enacted. For example, it might be necessary to waive, reduce or refund a charge in the case of mistakes or errors. There are also public interest grounds for waiving or reducing fees in some circumstances, such as where a criminal history check is sought in relation to volunteers. This provision is not intended to displace the Board's authority to recommend, and the Minister's authority to determine, charges under the Charges Act - decisions around who should and should not be required to pay a charge on an enduring basis would continue to be for the Board and the Minister.

90. New subsection 15A(4) provides that the Commonwealth is not liable to pay a charge imposed by the Charges Act, once enacted. Currently, a number of Commonwealth entities pay CrimTrac for criminal history checking services. These entities do not have a separate legal identity from the Commonwealth, and the Commonwealth cannot impose a tax on itself. To ensure that Commonwealth entities continue to pay for CrimTrac services, and are effectively covered by charges under the Charges Bill, a notional liability will apply to them in respect of charges under the Charges Act (once enacted).

91. New subsection 15A(5) allows the Finance Minister to give such written directions as are necessary or convenient to give effect to subsection (4). Such directions could relate to the transfer of money within an account, or between accounts, operated by the Commonwealth.

92. New subsection 15A(6) requires directions under subsection (5) to be complied with despite any other Commonwealth law.

93. New subsection 15A(7) clarifies that directions under subsection (5) are not legislative instruments. This provision is merely declaratory of the law and intended to assist readers, and is not an exemption from the Legislative Instruments Act 2003.

94. New subsection 15A(8) defines the Commonwealth to include a Commonwealth entity (within the meaning of the Public Governance, Performance and Accountability Act 2013) that cannot be made liable to taxation by a Commonwealth law. This definition links to the Commonwealth's notional liability to pay a charge under the Charges Act (once enacted) in new subsections 15A(4) and (5).

Item 15 - subsection 18(2)

95. This item amends subsection 18(2) of the ACC Act to make it clear that the Minister must not give directions or furnish guidelines to the ACC Board with respect to:

a)

particular ACC operations or investigations, or

b)

a matter related to national policing information systems and services (including expenditure from the National Policing Information Systems and Services Special Account),

without the approval of a resolution passed unanimously at a meeting of the Inter-Governmental Committee on the ACC (IGC-ACC).

96. Under current subsection 18(1), the Minister may give directions to the ACC Board with respect to the performance of its functions. The Board must comply with these directions. However, under current subsection 18(2), the Minister may only give a direction to the ACC Board about particular ACC operations or investigations with the unanimous approval of the IGC-ACC.

97. This item ensures that, where the Minister wishes to provide the ACC Board with a direction about the ACC's new national policing information function or the Special Account, he or she should be subject to a similar requirement as currently provided in subsection 18(2). This reflects the key interest states and territories have in these issues.

Item 16 - before subsection 46A(2)

98. This item is a consequential amendment that inserts a new subtitle before subsection 46A(2) - ACC operations/investigations.

Item 17 - at the end of section 46A.

99. This item inserts new subsections (5), (6) and (7) into section 46A, to provide the ACC CEO with the function of approving bodies that may access nationally coordinated criminal history checks through the ACC.

Subsection 46A(5)

100. New subsection 46A(5) provides that the CEO may approve a body of the Commonwealth, a state or territory, or any other body or organisation however described (including those outside Australia) as an accredited body for the purposes of receiving nationally coordinated criminal history checks. Any approval must be in writing.

101. An accredited body is a body that can apply for and receive nationally coordinated criminal history checks about individuals through the merged agency. The CrimTrac CEO is currently responsible for determining which bodies may access nationally coordinated criminal history checks through CrimTrac, within limits set by the Board. New subsection 46A(5) transfers that responsibility to the ACC CEO.

Subsection 46A(6)

102. New subsection 46A(6) provides that in deciding whether to approve a body or organisation under new subsection 46A(5), the CEO must act in accordance with any policy determined, or any direction given, by the ACC Board.

103. This links with the amendments made to the ACC Board's functions (new paragraph 7C(1)(gc)) which enable the Board to determine policies and give directions to the ACC CEO in relation to the following:

•

disclosing national policing information, and

•

approving a body as an accredited body.

104. These provisions are intended to enable the ACC Board to set limits or conditions on the types of bodies that can access a nationally coordinated criminal history check through the ACC, which the ACC CEO must comply with. This is intended provide the Board with a mechanism by which it may control or limit the release of this specific type of national policing information, if it so wishes.

Subsection 46A(7)

105. New subsection 46A(7) clarifies that an instrument approving a body or organisation as an accredited body is not a legislative instrument. This provision is merely declaratory of the law and intended to assist readers, and is not an exemption from the Legislative Instruments Act 2003.

Item 18 - section 55A (heading)

106. This item is a consequential amendment that repeals the heading to section 55A and replaces it with '55A Operation of State laws'.

Item 19 - at the end of subsection 55A(2)

107. This item adds a new paragraph (e) to subsection 55A(2), to enable state and territory laws to impose duties, functions and powers on the ACC relating to national policing information.

108. The purpose of subsection 55A(2)is to give legislative consent to state and territory laws imposing certain duties, functions and powers on the ACC, consistent with the High Court's decision in R v Hughes (2000) 171 ALR 155.

109. Currently, subsection 55A(2) enables states and territory laws to impose duties, functions or powers on the ACC that relate to the ACC:

•

investigating a relevant offence, or

•

undertaking an intelligence operation.

110. Various state and territory laws arguably currently impose function and duties on CrimTrac (for example, legislation enabling CrimTrac to run the national DNA comparison database). It is also foreseeable that, in the future, jurisdictions may agree that the merged agency run a new system that it supported by state and territory legislation.

111. To ensure that this remains constitutionally valid, new paragraph 55A(2)(e) broadens the types of duties, functions or powers a state or territory law can impose on the ACC to include duties, functions and powers relating to national policing information, reflecting the ACC's new national policing information functions.

Item 20 - after paragraph 55A(3)(b)

112. This item inserts a new paragraph (c) into subsection 55A(3).

113. Currently, subsection 55A(3) provides that the ACC cannot investigate a relevant offence or undertake an intelligence operation under a state or territory law, unless the Board has consented to the ACC doing so.

114. Under new paragraph 55A(3)(c), the ACC will also be restricted from performing a duty or function, or exercising a power, relating to national policing information, under a state and territory law, without the ACC Board's consent.

115. This amendment ensures that a state or territory cannot unilaterally impose new functions, powers or duties on the ACC without the agreement of the Board and reflects the national cooperative arrangements that underpin the ACC.

Item 21 - after subsection 55A(5)

116. This item inserts a new subsection (5AA) into section 55A. New subsection 55A(5AA) enables a state or territory law to confer a duty, function or power that relates to national policing information on:

•

the IGC-ACC

•

the ACC Board

•

the Chair of the Board

•

a member of the Board

•

the CEO, and/or

•

an examiner or member of staff of the ACC.

117. This is a consequential amendment that enables a state or territory law to confer duties, functions or powers relating to national policing information on specific entities within the ACC, rather than just upon the agency itself.

Item 22 - after paragraph 55A(5A)(b)

118. This item inserts a new paragraph (c) into subsection 55A(5A).

119. Currently, subsection 55A(5A) provides that the ACC CEO or an examiner cannot perform a duty or function, or exercise a power, under a state or territory law relating to:

a)

the investigation of a relevant criminal activity, or

b)

undertaking an intelligence operation,

without the Board's consent.

120. Under new paragraph 55A(5A)(c), the ACC CEO and/or an examiner will also be restricted from performing a duty or function, or exercising a power, under a state or territory law relating to national policing information, without the Board's consent.

121. This is a consequential amendment that ensures that the ACC CEO or an examiner cannot act under a state or territory law unless the Board has agreed to them doing so. This reflects the national cooperative arrangements that underpin the ACC.

Item 23 - subsections 55A(6) and (7)

122. This item is a consequential amendment that inserts a reference to new subsection 55A(5AA) into subsections 55A(6) and (7).

Item 24 - subsection 55A(9)

123. This item amends subsection 55A(9) to include reference to national policing information.

124. Subsection 55A(9) clarifies that the ACC Act is not intended to prevent the ACC, IGC-ACC, the Board, the Chair of the Board, the CEO, an examiner or a member of staff of the ACC from having concurrent duties, functions or powers under a state or territory law in relation to investigating relevant criminal activities or undertaking an intelligence operation, as long as the state or territory law is consistent with subsection 55A(2)-(7) of the ACC Act.

125. This item replaces reference to 'activities or to the undertaking of an intelligence operation' with 'activities, to the undertaking of an intelligence operation, or to national policing information'.

126. This is consequential amendment that broadens subsection 55A(9) to include state or territory laws imposing functions, duties or powers relating to national policing information.

Item 25 - section 55B

127. This item is a consequential amendment that amends section 55B to make the entirety of current section 55B into subsection 55B(1).

Item 26- at the end of section 55B

128. This item inserts a new subsection (2) into section 55B.

129. New subsection 55B(2) clarifies that:

a.

where the ACC, the IGC-ACC, the ACC Board, the Chair of the Board, a member of the Board, the ACC CEO, an examiner or a member of staff of the ACC is performing a duty or function, or exercising a power, relating to national police information, and

b.

has a choice between exercising powers conferred by the ACC Act or another Commonwealth Act, and exercising powers conferred by a state or territory law,

130. the ACC Act or the other Commonwealth Act do not require the body or person to favour exercising the powers conferred by the ACC Act or that other Act.

131. This provision will ensure that the ACC, or any of the bodies or persons mentioned in the provision, can choose to exercise duties, functions or powers relating to national policing information under a state or territory law, even when the ACC Act or another Commonwealth Act also enable that person or body to perform similar duties, functions or powers.

132. New subsection 55B(2) mirrors new subsection 55B(1), which provides a similar choice in relation to the ACC and its constituent bodies and people performing duties, functions or powers relating to investigating relevant criminal offences or undertaking intelligence operations.

Item 27 - Section 55C (heading)

133. This item repeals the heading to section 55C and replaces it with '55C No obligation to perform duties etc'.

Item 28 - After subsection 55C(2)

134. This item inserts a new subsection (2A) into section 55C.

135. For the avoidance of doubt, new subsection 55C(2A) provides that neither the ACC Act nor any other Commonwealth law, imposes any obligation on the ACC, the IGC-ACC, the ACC Board, the Chair of the Board, a member of the Board, the CEO, an examiner or member of staff of the ACC to perform a duty or function, or exercise a power, relating to national policing information, if the imposition of the obligation is in contravention of any constitutional doctrine restricting the duties that may be conferred on Commonwealth authorities (or members of those authorities).

136. This provision clarifies that the amendments made by this bill do not enable a state or territory law to impose a duty on the ACC or any of its constituent bodies or persons where to do so would be in contravention of the Constitution.

Item 29 - after subsection 59AA(1)

137. This item inserts new subsections (1A) and (1B) into section 59AA, to place restrictions on the ACC CEO's ability to disclose national policing information under that provision.

138. Section 59AA of the ACC Act governs when the ACC may disseminate information held by the ACC to government agencies. Under this provision, the ACC CEO can disclose any information held by the ACC to government bodies, if:

•

the CEO considers it appropriate to do so

•

the CEO considers that the information is relevant to a permissible purpose, and

•

disclosing the information would not be contrary to a law of the Commonwealth, a state or a territory that would otherwise apply.

139. The ACC Act defines 'permissible purpose' to include performing the functions referred to in section 7A of the Act. Noting the amendments made by this bill to broaden the ACC's functions to include national policing information functions, section 59AA will enable the ACC CEO to disseminate national policing information to government bodies where the other requirements of section 59AA are satisfied.

140. The CrimTrac Board currently plays a significant role in determining when information held on CrimTrac systems may be disclosed to non-law enforcement bodies. The amendments made by this item will ensure that the ACC Board continues to play a role in determining when national policing information may be disclosed to non-law enforcement agencies following a merger.

New subsection 59AA(1A)

141. Under new subsection 59AA(1A), when deciding whether to disclose national policing information under section 59AA, the ACC CEO must act in accordance with any policy determined, and any directions given, in writing by the Board.

142. This provision is intended to enable the ACC Board to set limits or conditions on the level of access a government agency may have to national policing information. It links with the Board's new functions under new paragraph 7C(1)(gc).

New subsection 59AA(1B)

143. Under new subsection 59AA(1B), the ACC CEO must obtain the ACC Board's approval before disclosing national policing information to an agency that is not one of the following:

(a)

the Australian Federal Police

(b)

a Police Force of a State

(c)

the Department administered by the Minister who administers the Australian Border Force Act 2015

(d)

the Australian Securities and Investments Commission

(e)

the Australian Security Intelligence Organisation

(f)

the Australian Taxation Office, or

(g)

a body prescribed by the regulations.

144. This provision is intended to require the Board to approve the dissemination of national policing information to any bodies that are not law enforcement agencies, as is currently the case for CrimTrac.

145. To avoid any doubt, the new provision lists the agencies that the ACC CEO may disclose national policing information to without Board approval, rather than relying on the term 'law enforcement agency'. This list includes all agencies that are represented on the Board under the ACC Act, except for the Commonwealth Attorney-General's Department, and any agency prescribed by the regulations for the purposes of this provision.

146. Enabling an agency to be prescribed by the regulations will provide flexibility to the merged agency moving forward, should new agencies be added to the Board, new agencies be created that national policing information should be disseminated to as a matter of course, or should the ACC need to disclose national policing information to an international body on a regular basis. The Commonwealth will consult with Board agencies before prescribing any bodies for the purpose of this provision.

Item 30 - after section 59AA

147. This item inserts a new section 59AAA into the ACC Act to enable the merged agency to disclose nationally coordinated criminal history checks to accredited bodies, as CrimTrac currently does, and/or the person to whom the check relates.

148. Currently, the ACC CEO may disclose information held by the ACC to government bodies under section 59AA and non-government bodies under section 59AB. As accredited bodies can be both government and non-government, disclosure of criminal history checks to these bodies does not fit neatly within the ACC Act's existing information dissemination regime.

149. Further, in the future, the Board may wish to move to a model where individuals can apply for and access a nationally coordinated criminal history check about themselves, without going through an accredited body as an intermediary. The current dissemination provisions in the ACC Act may frustrate the merged agency's national criminal history check business model from evolving in this way without further amendment.

150. To address these issues, new subsection 59AAA will allow the ACC CEO to disclose nationally coordinated criminal history checks to an accredited body, or to the person to whom the check relates, if:

a)

disclosing the information would not be contrary to a Commonwealth, state or territory law that would otherwise apply, and

b)

disclosing the information would not be contrary to any conditions or restrictions determined by the Board in relation to providing nationally coordinated criminal history checks.

151. This new information dissemination provision links to new paragraph 7C(1)(gd) in the ACC Board's amended functions. Under new paragraph 7C(1)(gd), the ACC Board may determine any conditions or restrictions that the merged agency must comply with in providing nationally coordinated criminal history checks.

152. Together, new paragraph 7C(1)(gd) and new subsection 59AAA(b) are intended to enable the ACC Board to set limits or conditions on the level of access an accredited body and/or an individual can have to nationally coordinated criminal history check s. This will enable the Board to play a role in limiting or restricting the disclosure of this specific type of national policing information, if it so wishes.

Item 31 - after subsection 59AB(2)

153. This item inserts new subsections (2A) and (2B) into section 59AB.

154. Section 59AB sets out when the ACC CEO may disseminate ACC information to bodies corporate.

155. Under new subsection 59AB(2A), in deciding whether to disclose national policing information to a body corporate, the ACC CEO must act in accordance with any policy determined, and any direction given, in writing by the Board.

156. This provision is intended to enable the ACC Board to set limits or conditions on the level of access a body corporate may have to national policing information. It links with the Board's new functions under new paragraph 7C(1)(gc).

157. Under new subsection 59AB(2B), the CEO must obtain the Board's approval before disclosing national policing information to a body corporate under section59AB. Consistent with the amendments made to section 59AA above, this provision is intended to require the Board to approve the dissemination of national policing information to a body corporate, as is currently the case for CrimTrac.

Item 32 - after section 59B

158. This item insets new sections 59C, 59D and 59E into the ACC Act to establish the National Policing Information Systems and Services Special Account in legislation, set out the funds that must be credited to that account and set out the purposes for which the account may be debited.

159. The purpose of these new sections taken together is to continue the Special Account in legislation and preserve its effective operation in support of the national policing information functions of the ACC in the same way it has supported CrimTrac functions until now.

New section 59C - National Policing Information Systems and Services Special Account

160. New subsection 59C(1) provides for the continuation of the National Policing Information Systems and Services Special Account through the ACC Act. New subsection 59C(2) clarifies that the Account is a special account for the purposes of the Public Governance, Performance and Accountability Act 2013.

161. The Special Account was established under the Financial Management and Accountability Determination 2006/07 - National Policing Information Systems and Services Special Account Establishment 2006 (Determination 2006/07).

162. The revenue CrimTrac currently generates from charges for its services accrues into this Special Account. This revenue is used to fund its activities, including the provision of services to police and other agencies at no cost to police or governments. Some of this revenue is also earmarked for system upgrades and maintenance. It is intended that this self-funded business model continue to support the ACC's national policing information function and the sustainable delivery of information systems and services to police.

163. Subsection 50(1) of the Legislative Instruments Act 2003 would repeal Determination 2006/07 on 1 October 2016. New section 59D - Credits to the Account

164. New section 59D sets out the amounts that must be credited to the Special Account. The purpose of this section is to substantively continue the crediting provisions in clause 4 of Determination 2006/07, which allowed the following amounts to be credited to the Special Account:

a)

amounts received in the course of the performance of functions that relate to the purposes of the National Policing Information Systems and Services Special Account;

b)

amounts received from any person for the purposes of the National Policing Information Systems and Services Special Account;

c)

amounts debited from the CrimTrac Account for the purpose of crediting the National Policing Information Systems and Services Special Account.

165. The overall scope of the crediting provisions in section 59D is intended to be the same as clause 4 of Determination 2006/07. However, the provisions in section 59D specifically recognise that charges under the Australian Crime Commission Amendment (National Policing Information Charges) Bill (once enacted) and fees under section 15 of the ACC Act (as amended by this bill) must be paid into the Special Account. The provisions in section 59D have also been drafted to tie into the 'national policing information' function , which is intended to reflect CrimTrac's current functions.

166. New paragraphs 59D(a) and (b) will require any amounts paid to the ACC by way of charges under the Charges Act (once enacted) or fees for service under section 15 of the ACC Act (once amended) to be paid into the Special Account.

167. New paragraph 59D(c) will require the payment into the Special Account of any other amounts received by the ACC in connection with the performance of national policing functions.

168. Subclause 4(c) of Determination 2006/07 related to payments from the previous CrimTrac Account, established by a delegate of the Finance Minister on 30 August 2000, into the National Policing Information Systems and Services Special Account. This provision was transitional only and does not need to be replicated in this bill.

New section 59E - Purposes of the Account

169. New section 59E sets out the purposes for which the Special Account can be debited. The purpose of this section is to substantively continue the provisions from clause 5 of Determination 2006/07, which allowed the following amounts to be debited from the Special Account:

a)

scoping, developing, procuring, implementing and operating new and existing information technology systems and services in relation to the Agency and its stakeholders and clients; and

b)

to repay to an original payer amounts credited to the Special Account and residual after any necessary payments made for a purpose mentioned in paragraph (a); and

c)

activities that are incidental to a purpose mentioned in paragraphs (a) or (b); and

d)

to reduce the balance of the Special Account (and, therefore, the available appropriation for the Account) without making a real or notional payment; and

e)

to repay amounts where an Act or other law requires or permits the repayment of an amount received.

170. The overall scope of the crediting provisions in section 59E is intended to be the same as clause 5 of Determination 2006/07. As with section 59D, the provisions in section 59E have been drafted to tie into the 'national policing information' function , which is intended to reflect CrimTrac's current functions.

171. New paragraphs 59E(a) and (b) are intended to substantially continue subclauses 5(1)(a) and (b) of Determination 2006/07. Paragraph 59E(b) would also allow repayment of amounts where an Act or other law requires or permits the repayment in connection with national policing information functions, consistent with clause 5(1)(e) of Determination 2006/07.

172. New paragraph 59E(c) is intended to make clear that remuneration and allowances relating to the national policing information function can be debited from the Special Account. This is necessary to continue current arrangements where staff supporting CrimTrac functions are paid for by Special Account funds, while ACC staff will continue to be remunerated through appropriations.

173. New paragraph 59E(d) is intended to substantially continue subparagraph 5(1)(c) and subclause 5(2) of Determination 2006/07.

174. New paragraph 59E(e) is intended to specifically allow the repayment of all or a part of an amount received from a State in connection with the performance of national policing information functions, if it is not required for the purpose for which it was paid.

175. New paragraph 59(f) allows for any funds to be repaid as a result of the exercise of the ACC's discretion under paragraph 15A(3)(b) to refund in whole or in part a charge imposed by the Charges Bill (once enacted).

176. New paragraph 59(g) is intended to substantially continue subclause 5(d) of Determination 2006/07. This provision is necessary for budgeting and accounting purposes and allows amounts to be returned to the Budget. This provision does not allow amounts to be transferred to another Special Account, or to be allocated for any other purpose, that is not consistent with the purposes of the Special Account.