Commonwealth of Australia Explanatory Memoranda

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AUSTRALIAN CRIME COMMISSION AMENDMENT BILL 2007

                       2004-2005-2006-2007




THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA



                             SENATE




AUSTRALIAN CRIME COMMISSION AMENDMENT BILL 2007




               EXPLANATORY MEMORANDUM




  (Circulated by authority of the Minister for Justice and Customs,
              Senator the Honourable David Johnston)
AUSTRALIAN CRIME COMMISSION AMENDMENT BILL 2007
OUTLINE

The purpose of the Bill is to amend the Australian Crime Commission Act 2002 to
clarify that an Australian Crime Commission examiner can record their reasons for
issuing a summons or notice to produce before, at the same time or as soon as
practicable after the summons or notice has been issued.

The Bill will also provide that summonses or notices issued after the commencement
of the ACC Act, but prior to the commencement of the Bill, are not invalid merely
because reasons were recorded subsequent to their issue.

Further, the Bill will provide that a summons or notice will not be invalid merely
because it fails to comply with technical requirements in the Act.

These aspects of the Bill have been developed in response to findings made by Justice
Smith of the Victorian Supreme Court in ACC v Brereton [2007] VSC 297, which
was handed down on 23 August 2007. Justice Smith held that for a summons to be
valid, reasons for issuing the summons must have been issued prior to the time it was
actually issued.

Other measures

The amendments also allow a witness to appear before an examiner, or produce
documents to an examiner who may not be the same examiner who issued the
summons or notice to produce.

FINANCIAL IMPACT STATEMENT

The amendments in this Bill have no financial impact on Government revenue.
NOTES ON CLAUSES

List of abbreviations used

ACC                     Australian Crime Commission
ACC Act                 Australian Crime Commission Act 2002
ACC v Brereton          ACC v Brereton [2007] VSC 297
NIP Bill                Crimes Legislation Amendment (National Investigative Powers
                        and Witness Protection) Bill 2007
The Bill                Australian Crime Commission Amendment Bill 2007

Clause 1: Short Title

Clause 1 is a formal clause which provides that the Bill may be cited as the Australian
Crime Commission Amendment Act 2007 when it is enacted.

Clause 2: Commencement

Clause 2 sets out when various parts of the Bill commence.

Sections 1 to 3 of the Bill (the short title, commencement and schedule provisions)
will commence on the day the Bill receives Royal Assent.

Item 1 of Schedule 1 to the Bill will commence on the day after the Bill receives
Royal Assent. However, if amendments to paragraphs 28(1)(a) and (c) of the
ACC Act made by the NIP Bill commence either before, or at the same time as, the
Bill receives Royal Assent, this item does not commence at all.

If item 1 does commence before the commencement of the relevant NIP Bill clause,
the item will only remain in force until the relevant provisions of that Bill come into
force, at which time Part 2 of Schedule 1 commences.

Items 2 to 12 of Schedule 1 to the Bill will commence on the day after the Bill
receives Royal Assent.

Part 2 of Schedule 1 will commence the day after the relevant NIP Bill clause
commences. However, if the relevant clause of the NIP Bill does not commence,
Part 2 of the schedule does not commence at all.

Clause 3: Schedule(s)

This is a formal clause that provides that the ACC Act is amended as provided in
Schedule 1 and that other measures in the schedule have effect according to their
terms.




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SCHEDULE 1

Overview of an examiner's power to issue a summons or notice to produce

Part II, Division 2 of the ACC Act allows an ACC examiner to conduct an
examination for the purpose of a special ACC operation/investigation.

Section 28 of the ACC Act empowers ACC examiners, in conducting an examination,
to summon witnesses and to take evidence. Section 29 allows examiners to issue
notices to produce a specified document or thing to an examiner, at a specified time
and place.

PART 1 ­ GENERAL AMENDMENTS

Items 1, 3, 4 and 6

Subsections 28(1) and 29(1) of the ACC Act provide that an examiner may summon a
person to appear before them at an examination, or require that a document or thing
be produced to them at a specified time and place.

As currently drafted, these provisions require a person to appear before or produce
documents or things to the same examiner who issued the summons or notice. This
provision is problematic in circumstances where the examiner who issued the
summons or notice is on leave, ill or otherwise unavailable.

The purpose of items 1, 3, 4 and 6 is to address this problem by allowing a person to
appear before any examiner or supply any examiner with requested documents or
things.

For the commencement of item 1, refer to clause 2 above and item 13 below.

Item 2 and 7

Subsections 28(1A) and 29(1A) of the ACC Act provide that an examiner must record
in writing the reasons for the issue of the summons or notice. In ACC v Brereton, the
Victorian Supreme Court held that reasons must be recorded prior to the issuing of the
summons. This finding is problematic in circumstances where a summons or notice
has to be issued urgently, or where a large number of summonses or notices are being
issued at the one time.

These items amend subsections 28(1A) and 29(1A) of the ACC Act to expressly
provide that an examiner may record their reasons for issuing a summons or notice to
produce before, at the time, or as soon as practicable after the summons or notice has
actually been issued.

The provision is intended to overcome doubt about the operation of the provision
following the decision in ACC v Brereton.




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Item 5

Subsections 28(1A) and 28(2) and section 29A prescribe a range of technical
requirements for issuing a summons under subsection 28(1).

Subsection 28(1A) requires an examiner to record in writing the reasons for the issue
of the notice.

Subsection 28(2) provides that a summons issued under subsection 28(1) must be
accompanied by a copy of the determination by the ACC Board that the intelligence
operation is a special operation, or that the investigation into matters relating to
federally relevant criminal activity is a special investigation.

Section 29A sets out the circumstances in which an examiner who issues a summons
under section 28 is required to include in the summons a notation to the effect that the
disclosure of information about the summons, or any official matters connected with
it, is prohibited (except in circumstances specified in the notice). The section sets out
when a notation must or may be made, prescribes the form and content of the
notation, and provides for cancellation of the notation.

This item adds a new subsection 28(8) to the ACC Act to provide that a failure to
comply with the requirements set out in subsections 28(1A) ­ to the extent that the
subsection relates to the making of a record ­ and 28(2) and section 29A of the
ACC Act does not render a summons issued under subsection 28(1) invalid.

The purpose of this amendment is to ensure that ACC operations/investigations are
not undermined by reason of an examiner's failure to comply with these technical
requirements.

This provision does not apply to substantive procedural obligations, such as the
requirements under subsection 28(1A) that the examiner must be satisfied that it is
reasonable in all the circumstances to issue the summons and under subsection 28(3)
that the summons should, other than in limited circumstances, set out the general
nature of the matters in relation to which the examiner intends to question the person.

Item 8

Subsection 29(1A) and section 29A prescribe the technical requirements for issuing a
notice to produce under subsection 29(1).

Subsection 29(1A) provides that an examiner must record in writing the reasons for
the issue of the notice.

Section 29A applies the same requirement applicable to a summons, in relation to the
inclusion of a notation, to a notice to produce (see item 8 above).

This item adds a new subsection 29(5) to the ACC Act to provide that a failure to
comply with the requirements set out in subsection 29(1A) ­ to the extent that the
subsection relates to the making of a record ­ and section 29A does not render a
notice issued under subsection 29(1) invalid.




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As with item 5, the purpose of this amendment is to ensure that ACC
operations/investigations are not undermined by reason of an examiner's failure to
comply with these technical requirements

This provision does not apply to the requirement under subsection 29(1A) that the
examiner must be satisfied that it is reasonable in all the circumstances to issue the
summons.

Item 9 and 11

These items provide that the amendments to sections 28 and 29 in items 1 to 8 apply
to a summons or notice to produce that is issued after the commencement of this item.

The proposed sections clarify that these amendments are intended to apply
prospectively.

Items 2 to 8 commence on the day after the Bill receives Royal Assent. For the
commencement of item 1, refer to clause 2 above and item 13 below.

Items 10 and 12

Item 10 validates summonses issued prior to commencement of the Bill which would
otherwise be invalid because an examiner did not record their reasons for issuing the
summons prior to the summons actually being issued.

This provision ensures that any summonses that would be rendered invalid on the
reasoning of ACC v Brereton are deemed to be valid and always to have been valid.
This would apply to any summons issued under subsection 28(1) since the
commencement of the ACC Act.

Item 12 applies to notices to produce under subsection 29(1) in the same way that
item 10 applies to summonses.

It is intended that any actions taken in reliance on the validity of a summons or notice
that, but for these provisions, could be invalid, would not be rendered invalid because
the summons or notice was issued before reasons were recorded.

This item applies retrospectively to all summonses and notices to produce issued
under subsection 28(1) or 29(1) prior to the commencement of the Bill.

The retrospective application of these provisions could be detrimental to persons who
might otherwise have had scope to challenge the validity of a summons or notice to
produce. The Government considers, however, that this is a just and appropriate
outcome. It does not consider that a failure to record reasons for issuing a summons
or notice prior to issue of the summons or notice should give a person who would
otherwise have been convicted of an offence technical grounds to challenge the
admissibility of evidence and escape conviction.




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PART 2 ­ AMENDMENTS CONTINGENT ON THE CRIMES LEGISLATION
AMENDMENT (NATIONAL INVESTIGATIVE POWERS AND WITNESS
PROTECTION) ACT 2007

Item 13

Item 13 is in similar terms and is being enacted for the same reasons as item 1.
However, the provision would apply to section 28(1) as amended by the NIP Bill
should that Bill be enacted. If the NIP Bill is not enacted then item 13 will never
commence. Refer also to clause 2.

Item 14

Item 14 provides that the amendments to section 28 in item 13 apply to summonses
issued after the commencement of this item. For commencement refer to clause 2 and
items 13 above.




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