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2008-2009-2010
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
PARLIAMENTARY JOINT COMMITTEE ON LAW ENFORCEMENT BILL 2010
EXPLANATORY MEMORANDUM
(Circulated by authority of the Attorney-General,
the Honourable Robert McClelland MP)
PARLIAMENTARY JOINT COMMITTEE ON LAW ENFORCEMENT BILL 2010
OUTLINE
This Bill establishes the Parliamentary Joint Committee on Law Enforcement
(PJC-LE). The Bill sets out the functions and administrative arrangements
for the PJC-LE. The PJC-LE will be established by renaming and extending
the functions of the current Parliamentary Joint Committee on the
Australian Crime Commission (PJC-ACC).
The PJC-LE will be responsible for providing broad Parliamentary oversight
of the Australian Federal Police (AFP) and the Australian Crime Commission
(ACC). It will also examine trends and changes in criminal activities, and
inquire into any question in connection with its functions that is referred
to the PJC-LE by either House of Parliament.
As the PJC-LE will replace the current PJC-ACC, the provisions relating to
the PJC-ACC in Part III of the Australian Crime Commission Act 2002 (ACC
Act) will be repealed and replaced by the provisions in this Bill. The
consequential amendments and the transitional arrangements are included in
Schedule 10 of the National Security Legislation Amendment Bill 2010.
FINANCIAL IMPACT STATEMENT
The amendments in this Bill have no financial impact on Government revenue.
ACRONYMS
ACC Australian Crime Commission
ACC Act Australian Crime Commission Act 2002
AFP Australian Federal Police
AFP Act Australian Federal Police Act 1979
CEO Chief Executive Officer
PJC-ACC Parliamentary Joint Committee on the Australian Crime
Commission
PJC-LE Parliamentary Joint Committee on Law Enforcement
Part 1- Preliminary
Clause 1: Short title
Clause 1 provides that when the Bill is enacted, it is to be cited as the
Parliamentary Joint Committee on Law Enforcement Act 2010.
Clause 2: Commencement
The Bill will commence on the day after it receives the Royal Assent.
Clause 3: Definitions
Several terms are defined in clause 3. Many of the terms are technical
terms relating to the AFP and ACC, and are consistent with definitions in
related legislation, such as the ACC Act and the AFP Act.
The term sensitive information is defined for the purposes of clauses 8 and
9 of the Bill, which provide that in certain circumstances the CEO of ACC
and the Commissioner of the AFP may decide not to provide sensitive
information to the PJC-LE. The definition of 'sensitive information' has
been modelled upon a similar definition in the Law Enforcement Integrity
Commissioner Act 2006. However, the definition has been modified in this
Bill to apply to the roles, responsibilities and functions of the ACC and
AFP rather than the Australian Commission for Law Enforcement Integrity.
Clause 4: Extension to external Territories
Clause 4 provides that the Bill applies to all external territories.
Part 2-Joint Parliamentary Committee on Law Enforcement
Clause 5: Joint Parliamentary Committee on Law Enforcement
Clause 5 is modelled on section 53 of the ACC Act. It sets out the
administrative arrangements for establishing the PJC-LE and its membership
for each Parliament. The PJC-LE will consist of 10 members of Parliament,
with five members of the House of Representatives and five members of the
Senate. The members are to be appointed in accordance with the practice of
Parliament. Clause 5 also sets out when a member ceases to hold office as
a member of the PJC-LE, the requirements for the resignation of a member
and how a vacancy on the Committee is to be filled.
Clause 6: Powers and proceedings of the Committee
Clause 6 replicates section 54 of the ACC Act. It requires all matters
relating to the powers and proceedings of the Committee to be determined by
resolution of both Houses of Parliament.
Clause 7: Functions of the Committee
Clause 7 sets out the functions of the PJC-LE, which will include:
. monitoring and reporting to Parliament on the performance by the ACC of
its functions,
. monitoring and reporting to Parliament on the performance by the AFP of
its functions, and
. examining trends and changes in criminal activities, practices and
methods and reporting on any desirable changes to the functions,
structure, powers and procedures of the ACC or the AFP.
These functions are similar to the duties of the current PJC-ACC, but
include review of the AFP in addition to the ACC.
Subclause 7(2) clarifies that the PJC-LE's functions do not extend to
review of certain sensitive operational matters, review of particular
investigations or operations or inquiring into complaints about the AFP or
ACC. As is the case with the PJC-ACC, the PJC-LE's functions do not
include reviewing or reconsidering the findings of any ACC or AFP operation
or investigation. This provision is intended to clarify that the PJC-LE's
functions relate to the broad operation and effectiveness of the ACC and
AFP, rather than particular operations or responding to individual
complaints or concerns. Individual operations and investigations are
subject to oversight through the process of ministerial responsibility.
Similarly, the investigation of individual complaints about the AFP and ACC
can be dealt with by complaints handling bodies such the Commonwealth
Ombudsman, the AFP's Professional Standards Operations Monitoring Centre
and the Law Enforcement Integrity Commissioner.
The PJC-LE may, subject to clauses 8 and 9, consider information about
particular operations or investigations if this is relevant to the
Committee's functions. For example, the PJC-LE may consider an operation
or investigation in the course of considering trends and changes in crime,
or in considering the AFP or ACC's performance of their functions, but the
PJC-LE's function is not to review or reconsider the findings of that
particular investigation or operation.
Subclause 7(3) provides that the PJC-LE may examine, and report to both
Houses of Parliament, on information provided to the Committee in
accordance with clauses 8 and 9. This will enable the Committee to make
its report public and examine individuals on the content of the disclosed
information.
Clause 8: Disclosure to Committee by CEO of the ACC
Clause 8 creates a clear obligation for the CEO of the ACC to comply with
requests by the PJC-LE to provide information about the performance of the
ACC's functions. This provision is not intended to exhaustively set out
the PJC-LE's powers to request or require information. Clause 6 provides
that the PJC-LE's powers and procedures are to be determined by resolution
of both Houses of the Parliament. Therefore, it would be open for the PJC-
LE to request other persons to provide information or attend hearings.
Clause 8 is intended to set out a statutory duty that requires the CEO of
the ACC to comply with a request to provide information. It also sets out
that in limited circumstances the CEO may decide not to comply with such a
request.
Under subclause 8(2) the CEO of the ACC may decide not to comply with a
request to provide the PJC-LE with particular information if he or she is
satisfied that the information requested is sensitive information (defined
in clause 3) and the prejudicial consequences outweigh the public interest
served by providing the information to the PJC-LE.
If the CEO of the ACC decides not to provide information to the PJC-LE in
accordance with these provisions, the PJC-LE may refer the request to the
responsible Minister for the ACC, who must determine in writing whether the
information is sensitive information and whether the public interest in
providing that information to the PJC-LE is outweighed by the prejudicial
consequences. As the Minister's reasons for making a determination may
themselves be sensitive and could have prejudicial consequences, the
Minister is not required to disclose his or her reasons. However, where no
prejudicial consequences are likely, the Minister would not be prevented
from providing his or her reasons to the PJC-LE.
It is intended that these provisions should be relied upon only in
exceptional circumstances. Other options such as providing the information
in a private hearing or on condition that sensitive information not be
included in the PJC-LE's public reports would be open to the PJC-LE in
accordance with the powers and proceedings of the PJC-LE as determined in
accordance with clause 6.
Subclause 8(6) provides that a determination by the Minister responsible
for the ACC under subclause 8(4) is not a legislative instrument. This
provision is intended to assist readers. A determination by the Minister
under subclause 8(4) would not come within the meaning of a legislative
instrument under the Legislative Instruments Act 2003. Subclause 8(6) is
merely declaratory and does not create an exemption from the Legislative
Instruments Act 2003.
Clause 9: Disclosure to Committee by Commissioner of the AFP
Clause 9 replicates clause 8 but applies to the Commissioner of the AFP.
The Commissioner of the AFP is also required to comply with a request from
the PJC-LE for information in relation to an investigation, but may decide
not to comply with a request if the information is sensitive information
and the prejudicial consequences outweigh the public interest in providing
the information to the PJC-LE.
Subclause 9(6) provides that a determination by the Minister responsible
for the AFP under subclause 9(4) is not a legislative instrument. This
provision is intended to assist readers. A determination by the Minister
under subclause 9(4) would not come within the meaning of a legislative
instrument under the Legislative Instruments Act 2003. Subclause 9(6) is
merely declaratory and does not create an exemption from the Legislative
Instruments Act 2003.
Clause 10: Ombudsman to brief Committee about controlled operations
Clause 10 provides that the PJC-LE must meet in private at least once a
year to receive a briefing from the Commonwealth Ombudsman about the
involvement of the ACC and AFP in controlled operations. Controlled
operations are law enforcement operations that are carried out for the
purpose of obtaining evidence that may lead to prosecution of a person for
a serious offence, and may involve a law enforcement officer or other
person engaging in conduct that would constitute an offence if not
authorised in accordance with Part IAB of the Crimes Act 1914.
Division 2A of Part IAB of the Crimes Act gives the Commonwealth Ombudsman
a role in monitoring controlled operations. The Ombudsman is required to
inspect the records of the AFP and the ACC in relation to controlled
operations at least once every 12 months, and may inspect these records at
any time to ascertain whether the agencies have complied with the
requirements of the Crimes Act.
The Ombudsman is to brief the PJC-LE each year on the involvement of the
ACC and AFP in controlled operations in the previous 12 months. This
requirement is consistent with the current requirement in section 55AA of
the Australian Crime Commission Act, which requires the Ombudsman to brief
the PJC-ACC on the ACC's use of controlled operations. Clause 10 will
continue the requirement for the Ombudsman to provide a briefing about the
ACC's use of controlled operations, and will extend the requirement to
include briefing on the AFP's use of controlled operations. A similar
requirement exists for the Ombudsman to brief the Parliamentary Joint
Committee on the Australian Commission for Law Enforcement Integrity
(ACLEI) on ACLEI's use of controlled operations.
A briefing about controlled operations is likely to disclose sensitive
operational details. Therefore, it is necessary for the Committee to meet
in private in order to maintain the confidentiality of persons involved and
to ensure that sensitive operational information is not disclosed in a
public forum.
Part 3 - Miscellaneous
Clause 11: Regulations
This clause enables the Governor-General to make regulations as required or
permitted by the Bill, or as necessary or convenient in order to give
effect to the Bill.