1Short title
This Act may be cited as the Australian Crime Commission Establishment Act 2002.
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Bill homepage (APH)This Act may be cited as the Australian Crime Commission Establishment Act 2002.
Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, on the day or at the time specified in column 2 of the table.
Commencement information | ||
Column 1 | Column 2 | Column 3 |
Provision(s) | Commencement | Date/Details |
1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table | The day on which this Act receives the Royal Assent | 10 December 2002 |
2. Schedule 1 | 1 January 2003 | 1 January 2003 |
3. Schedule 2, items 1 to 115 | 1 January 2003 | 1 January 2003 |
4. Schedule 2, items 116 and 117 | The later of: (a) the start of the day on which Schedule 1 to this Act commences; and (b) immediately after the commencement of section 213 of the Proceeds of Crime Act 2002 | 1 January 2003 |
5. Schedule 2, item 118 | The later of: (a) the start of the day on which Schedule 1 to this Act commences; and (b) immediately after the commencement of Schedule 3 to the Communications Legislation Amendment Act (No. 1) 2003 |
|
6. Schedule 2, items 119 to 226 | 1 January 2003 | 1 January 2003 |
7. Schedule 3, items 1 to 6 | Immediately after the commencement of Schedule 1 to this Act, subject to subsection (3) | Does not commence at all |
8. Schedule 3, items 7 to 14 | Immediately after the commencement of section 3 of the Proceeds of Crime Act 2002, subject to subsection (4) | 1 January 2003 |
9. Schedule 3, items 15 and 16 | Immediately before the commencement of section 3 of the Proceeds of Crime Act 2002, subject to subsection (4) | 1 January 2003 |
10. Schedule 3, item 17 | Immediately after the commencement of section 3 of the Proceeds of Crime Act 2002, subject to subsection (4) | 1 January 2003 |
This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.
Column 3 of the table is for additional information that is not part of this Act. This information may be included in any published version of this Act.
If section 3 of the Proceeds of Crime Act 2002 commences on or after 1 January 2003, the provisions covered by item 7 of the table do not commence at all.
If section 3 of the Proceeds of Crime Act 2002 commences before 1 January 2003, the provisions covered by items 8, 9 and 10 of the table do not commence at all.
Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Schedule 1—Amendment of the National Crime Authority Act 1984
Part 1—Amendments
1 Title
Omit “a National Crime Authority”, substitute “the Australian Crime Commission, and for related purposes”.
2 Section 1
Omit “National Crime Authority Act 1984”, substitute “Australian Crime Commission Act 2002”.
3 Subsection 4(1)
Insert:
ACC means the Australian Crime Commission established by section 7.
4 Subsection 4(1)
Insert:
ACC operation/investigation means:
an intelligence operation that the ACC is undertaking; or
an investigation into matters relating to federally relevant criminal activity that the ACC is conducting.
5 Subsection 4(1) (definition of Authority)
Repeal the definition.
6 Subsection 4(1)
Insert:
Board means the Board of the ACC.
7 Subsection 4(1)
Insert:
CEO means the Chief Executive Officer of the ACC.
8 Subsection 4(1) (definition of Chair)
Repeal the definition.
9 Subsection 4(1)
Insert:
eligible Commonwealth Board member means the following members of the Board:
the Commissioner of the Australian Federal Police;
the Secretary of the Department;
the Chief Executive Officer of the Australian Customs Service;
the Chairperson of the Australian Securities and Investments Commission;
the Director‑General of Security holding office under the Australian Security Intelligence Organisation Act 1979.
10 Subsection 4(1) (paragraph (a) of the definition of eligible person)
Repeal the paragraph, substitute:
an examiner; or
11 Subsection 4(1) (paragraph (b) of the definition of eligible person)
Omit “Authority”, substitute “ACC”.
12 Subsection 4(1)
Insert:
examiner means a person appointed under subsection 46B(1).
13 Subsection 4(1) (paragraphs (a) and (b) of the definition of federally relevant criminal activity)
Omit “relevant offence”, substitute “serious and organised crime”.
14 Subsection 4(1) (definition of hearing officer)
Repeal the definition.
15 Subsection 4(1)
Insert:
intelligence operation means the collection, correlation, analysis or dissemination of criminal information and intelligence relating to federally relevant criminal activity.
16 Subsection 4(1) (definition of Judge)
Repeal the definition.
17 Subsection 4(1) (definition of member)
Repeal the definition.
18 Subsection 4(1)
Insert:
member of the staff of the ACC means:
a member of the staff referred to in subsection 47(1); or
a person participating in an ACC operation/investigation; or
a member of a task force established by the Board under paragraph 7C(1)(f); or
a person engaged under subsection 48(1); or
a person referred to in section 49 whose services are made available to the ACC; or
a legal practitioner appointed under section 50 to assist the ACC as counsel.
19 Subsection 4(1) (definition of member of the staff of the Authority)
Repeal the definition.
20 Subsection 4(1) (definition of original reference)
Repeal the definition.
21 Subsection 4(1) (definition of prescribed investigation)
Repeal the definition.
22 Subsection 4(1) (definition of related reference)
Repeal the definition.
23 Subsection 4(1) (definition of relevant criminal activity)
Omit “a relevant offence”, substitute “a serious and organised crime”.
24 Subsection 4(1) (definition of relevant offence)
Repeal the definition.
25 Subsection 4(1)
Insert:
serious and organised crime means an offence:
that involves 2 or more offenders and substantial planning and organisation; and
that involves, or is of a kind that ordinarily involves, the use of sophisticated methods and techniques; and
that is committed, or is of a kind that is ordinarily committed, in conjunction with other offences of a like kind; and
that is of a kind prescribed by the regulations or involves any of the following:
theft;
fraud;
tax evasion;
money laundering;
currency violations;
illegal drug dealings;
illegal gambling;
obtaining financial benefit by vice engaged in by others;
extortion;
violence;
bribery or corruption of, or by, an officer of the Commonwealth, an officer of a State or an officer of a Territory;
perverting the course of justice;
bankruptcy and company violations;
harbouring of criminals;
forging of passports;
firearms;
armament dealings;
illegal importation or exportation of fauna into or out of Australia;
cybercrime;
matters of the same general nature as one or more of the matters listed above;
but:
does not include an offence committed in the course of a genuine dispute as to matters pertaining to the relations of employees and employers by a party to the dispute, unless the offence is committed in connection with, or as part of, a course of activity involving the commission of a serious and organised crime other than an offence so committed; and
does not include an offence the time for the commencement of a prosecution for which has expired; and
does not include an offence that is not punishable by imprisonment or is punishable by imprisonment for a period of less than 3 years.
See also subsection (2) (which expands the meaning of serious and organised crime in certain circumstances).
26 Subsection 4(1)
Insert:
special ACC operation/investigation means:
an intelligence operation that the ACC is undertaking and that the Board has determined to be a special operation; or
an investigation into matters relating to federally relevant criminal activity that the ACC is conducting and that the Board has determined to be a special investigation.
27 Subsection 4(1) (definition of special investigation)
Repeal the definition.
28 Subsection 4(1) (definition of Task Force)
Repeal the definition.
29 Subsection 4(2)
Repeal the subsection, substitute:
If the head of an ACC operation/investigation suspects that an offence (the incidental offence) that is not a serious and organised crime may be directly or indirectly connected with, or may be a part of, a course of activity involving the commission of a serious and organised crime (whether or not the head has identified the nature of that serious and organised crime), then the incidental offence is, for so long only as the head so suspects, taken, for the purposes of this Act, to be a serious and organised crime.
30 Paragraph 4A(1)(b)
Repeal the paragraph, substitute:
either:
the ACC investigating them is incidental to the ACC investigating an offence against a law of the Commonwealth or a Territory; or
the ACC undertaking an intelligence operation relating to them is incidental to the ACC undertaking an intelligence operation relating to an offence against a law of the Commonwealth or a Territory.
31 Paragraph 4A(2)(d)
Repeal the paragraph, substitute:
both:
the ACC is investigating a matter relating to a relevant criminal activity that relates to an offence against a law of the Commonwealth or a Territory; and
if the ACC is investigating, or were to investigate, a matter relating to a relevant criminal activity that relates to the State offence—that investigation is, or would be, incidental to the investigation mentioned in subparagraph (i); or
both:
the ACC is undertaking an intelligence operation relating to an offence against a law of the Commonwealth or a Territory; and
if the ACC is undertaking, or were to undertake, an intelligence operation relating to the State offence—that operation is, or would be, incidental to the operation mentioned in subparagraph (i).
32 Subsection 4A(6)
Insert:
intelligence operation means the collection, correlation, analysis or dissemination of criminal information and intelligence relating to a relevant criminal activity.
33 Part II (heading)
Repeal the heading, substitute:
34 Division 1 of Part II (heading)
Repeal the heading, substitute:
35 Section 7
Repeal the section, substitute:
The Australian Crime Commission is established by this section.
The ACC consists of:
the CEO; and
the examiners; and
the members of the staff of the ACC.
The ACC has the following functions:
to collect, correlate, analyse and disseminate criminal information and intelligence and to maintain a national database of that information and intelligence;
to undertake, when authorised by the Board, intelligence operations;
to investigate, when authorised by the Board, matters relating to federally relevant criminal activity;
to provide reports to the Board on the outcomes of those operations or investigations;
to provide strategic criminal intelligence assessments, and any other criminal information and intelligence, to the Board;
to provide advice to the Board on national criminal intelligence priorities;
such other functions as are conferred on the ACC by other provisions of this Act or by any other Act.
The Board of the ACC is established by this section.
Board members
The Board consists of the following members:
the Commissioner of the Australian Federal Police;
the Secretary of the Department;
the Chief Executive Officer of the Australian Customs Service;
the Chairperson of the Australian Securities and Investments Commission;
the Director‑General of Security holding office under the Australian Security Intelligence Organisation Act 1979;
the Commissioner or head (however described) of the police force of each State and of the Northern Territory;
the Chief Police Officer of the Australian Capital Territory;
the CEO.
Chair
The Commissioner of the Australian Federal Police is the Chair of the Board.
The Board has the following functions:
to determine national criminal intelligence priorities;
to provide strategic direction to the ACC and to determine the priorities of the ACC;
to authorise, in writing, the ACC to undertake intelligence operations or to investigate matters relating to federally relevant criminal activity;
to determine, in writing, whether such an operation is a special operation or whether such an investigation is a special investigation;
to determine, in writing, the class or classes of persons to participate in such an operation or investigation;
to establish task forces;
to disseminate to law enforcement agencies or foreign law enforcement agencies, or to any other agency or body of the Commonwealth, a State or a Territory prescribed by the regulations, strategic criminal intelligence assessments provided to the Board by the ACC;
to report to the Inter‑Governmental Committee on the ACC’s performance;
such other functions as are conferred on the Board by other provisions of this Act.
Note: The CEO must determine, in writing, the head of an intelligence operation or an investigation into matters relating to federally relevant criminal activity: see subsection 46A(2A).
Special operations
The Board may determine, in writing, that an intelligence operation is a special operation. Before doing so, it must consider whether methods of collecting the criminal information and intelligence that do not involve the use of powers in this Act have been effective.
Note 1: See also subsection 7G(4) for the voting rule that applies in relation to such a determination.
Note 2: See also Division 2 for the examination powers available if there is a special operation.
Special investigations
The Board may determine, in writing, that an investigation into matters relating to federally relevant criminal activity is a special investigation. Before doing so, it must consider whether ordinary police methods of investigation into the matters are likely to be effective.
Note 1: See also subsection 7G(4) for the voting rule that applies in relation to such a determination.
Note 2: See also Division 2 for the examination powers available if there is a special investigation.
Further details
A determination under subsection (2) or (3) must:
describe the general nature of the circumstances or allegations constituting the federally relevant criminal activity; and
state that the serious and organised crime is, or the serious and organised crimes are or include, an offence or offences against a law of the Commonwealth, a law of a Territory or a law of a State but need not specify the particular offence or offences; and
set out the purpose of the operation or investigation.
Informing the Inter‑Governmental Committee
The Chair of the Board must, within the period of 3 days beginning on the day a determination under subsection (2) or (3) is made, give a copy of the determination to the Inter‑Governmental Committee.
When determination takes effect
A determination under subsection (2) or (3) has effect immediately after it is made.
The Chair of the Board may convene meetings of the Board.
The Chair, in exercising his or her power to convene meetings, must ensure that meetings of the Board are scheduled to meet the following requirements:
the first meeting of the Board must be within 2 months after the commencement of this section;
there must be a minimum of 2 meetings each calendar year;
the Board must meet in accordance with the schedule of Board meetings determined by the Board under this section.
The Board, at its first meeting, must determine, in writing, a schedule of Board meetings.
A meeting of the Board must be presided over by:
if the Chair of the Board is present—the Chair; or
otherwise—another eligible Commonwealth Board member who is present and who is nominated, in writing, by the Chair to preside.
At a meeting of the Board a quorum is constituted by 7 Board members (not including the CEO).
Subject to this section, a question arising at a meeting of the Board is to be determined by a majority of the votes of Board members present.
Person presiding has a casting vote
The person presiding at a meeting has:
a deliberative vote; and
if necessary, also a casting vote.
CEO is not a voting member
The CEO is not entitled to vote on any question arising at a meeting of the Board.
Voting for special ACC operations/investigations
The Board cannot determine that an intelligence operation is a special operation, or that an investigation into matters relating to federally relevant criminal activity is a special investigation, unless at least 9 Board members (including at least 2 eligible Commonwealth Board members) vote in favour of making the determination.
The Board may regulate proceedings at its meetings as it considers appropriate.
Section 33B of the Acts Interpretation Act 1901 provides for people to participate in meetings by various means of communication (e.g. telephone).
The Board must ensure that minutes of its meetings are kept.
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