EXPLANATORY STATEMENT

Select Legislative Instrument 2006 No. 43

Issued by the authority of the Minister for Justice and Customs

Subject:            Australian Crime Commission Act 2002

Australian Crime Commission Amendment Regulations 2006 (No. 1)

Section 62 of the Australian Crime Commission Act 2002 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters that by the Act are required or permitted to be prescribed or are necessary or convenient to be prescribed for carrying out or giving effect to the Act.

The Commonwealth Government established the Australian Crime Commission (ACC) as a cooperative agency to strengthen the fight against nationally significant crime.  The ACC has duties, functions and powers conferred on it by the Act and can also have duties, functions and powers conferred on it by corresponding State laws.  The conferral of duties, functions and powers by State laws provides for the ACC to conduct an intelligence operation or an investigation in relation to a State offence that does not have a federal aspect.  However, for Constitutional reasons, the Commonwealth must consent to the conferral of functions, duties and powers on a Commonwealth body by a State.

Section 55A of the Act provides for the Commonwealth to consent to the conferral of functions, duties and powers by a State on certain ACC bodies through regulations.  The Australian Crime Commission Regulations 2002 (the Principal Regulations) set out the functions, duties and powers conferred by Victorian and New South Wales legislation that the Commonwealth has consented to. 

The Regulations reflect changes to the Victorian legislation, including:

*        the consolidation of the gambling laws through the repeal of the Casino Control Act 1991, the Gaming Machine Control Act 1991 and the Gaming No 2 Act 1997 into the Gambling Regulation Act 2003;

*        the implementation of the model investigative powers legislation, developed by the Joint Working Group on National Investigative Powers, through amendments to the Surveillance Devices Act 1999, and the commencement of the Crimes (Assumed Identities) Act 2004 and the Crimes (Controlled Operations) Act 2004; and

*        amendments to the Witness Protection Act 1991.

Details of the Regulations are set out in the Attachment. 

Schedule 1 to the Regulations commences on the day after registration.  Schedules 2 to 5 to the proposed Regulations commences on a day fixed by legislative instrument made by the Minister.

Consultation was unnecessary for this legislative instrument as this instrument is of a minor or machinery nature and does not substantially alter existing arrangements.  It has no direct, or indirect effect on business.

Attachment

Details of the Australian Crime Commission Amendment Regulations 2006 (No. 1)

Regulation 1 -- Name of Regulations

This regulation provides that the title of the Regulations is the Australian Crime Commission Amendment Regulations 2006 (No. 1).

Regulation 2 -- Commencement

Regulation 2 provides for regulations 1 to 3 and Schedule 1 to the Regulations to commence on the day after registration. 

Regulation 2 provides for Schedules 2 to 5 to the Regulations to commence on a day fixed by legislative instrument made by the Minister.  This is to provide for each Schedule to commence at the same time, or substantially the same time, as the relevant Victorian legislation commences.  For example, the Minister could make a legislative instrument to provide that Schedule 2 commences on the day the Crimes (Assumed Identities) Act 2004 (Vic) commences.  However, where the various provisions within each Victorian Act commence at different times the Minister may fix the commencement of a Schedule to a day after the majority of the relevant Victorian provisions have commenced.

Subregulations 2(2) and 2(3) provide that the legislative instruments made for the purposes of commencing Schedules 2 to 5 is not subject to the disallowance or sunsetting provisions of the Legislative Instruments Act 2003.  These exemptions are appropriate given that the legislative instruments will be similar in effect to a commencement Proclamation, which is exempt from disallowance and sunsetting under the Legislative Instruments Act.  In addition, the exposure of the instrument to potential disallowance would cause uncertainty since the amending Regulations confer powers, duties and functions on the ACC.

Regulation 3 -- Amendment of the Australian Crime Commission Regulations 2002

This regulation provides that the Australian Crime Commission Regulations 2002 (the Principal Regulations) are amended as set out in the Schedules. 

Schedule 1

Schedule 1 to the Regulations removes references in the Principal Regulations to the Casino Control Act 1991, the Gaming Machine Control Act 1991 and the Gaming No. 2 Act 1997, which were repealed by the Gambling Regulation Act 2003 of Victoria.

Schedule 2

Schedule 2 to the Regulations provides the Commonwealth's consent to the conferral of functions, duties and powers on certain ACC bodies through the Crimes (Assumed Identities) Act 2004 of Victoria.  These functions, duties and powers relate to the use of assumed identities by the ACC.

Schedule 3

Schedule 3 to the Regulations provides the Commonwealth's consent to the conferral of functions, duties and powers on certain ACC bodies through the Crimes (Controlled Operations) Act 2004 of

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Victoria.  These functions, duties and powers relate to the use of controlled operations by the ACC, which are operations that allow law enforcement officers to engage in certain conduct that would be illegal but for its status as a controlled operation.

Schedule 4

Schedule 4 to the Regulations removes references in the Principal Regulations to provisions of the Evidence Act 1958 that will be repealed by the Evidence (Witness Protection) Act 2004 of Victoria.  Schedule 4 also provides the Commonwealth's consent to the conferral of functions, duties and powers that will be inserted into the Evidence Act 1958 by the Evidence (Witness Protection) Act 2004.  These functions, duties and powers provide for the ACC to make arrangements for the protection of witnesses.

Schedule 5

Schedule 5 to the Regulations removes references in the Principal Regulations to provisions in the Surveillance Devices Act 1999 that will be repealed by the Surveillance Devices Amendment Act 2004 of Victoria.  Schedule 5 also provides the Commonwealth's consent to the conferral of functions, duties and powers that will be inserted into the Surveillance Devices Act 1999 by the Surveillance Devices Amendment Act 2004.  These functions, duties and powers provide for the ACC to use surveillance devices.