Australian Crime Commission Amendment (Special Operations and Special Investigations) Bill 2019 - Commentary on Ministerial Responses [2020] AUSStaCSBSD 18 (5 February 2020)

• Australian Crime Commission Amendment (Special Operations and Special Investigations) Bill 2019
• Broad discretionary power1 and no-invalidity clause2
• Retrospective validation5

---

Chapter 2

Commentary on ministerial responses

2.1 This chapter considers the responses of ministers to matters previously raised by the committee.

Australian Crime Commission Amendment (Special Operations and Special Investigations) Bill 2019

Purpose	This bill seeks to amend the Australian Crime Commission Act 2002 to confirm the validity of current and former special Australian Crime Commission operations and special and special investigations determinations The bill also seeks to amend the Australian Crime Commission Act 2002 to amend the process for the Australian Criminal Intelligence Board to make special operations and special investigation determinations
Portfolio	Home Affairs
Introduced	House of Representatives on 27 November 2019
Bill status	Received Royal Assent on 10 December 2019

Broad discretionary power^[1] and no-invalidity clause^[2]

2.2 In Scrutiny Digest 10 of 2019 the committee requested the minister's advice as to why the Board had been provided with broad discretionary powers to authorise special operations or special investigations, and why it was necessary and appropriate to include a no-invalidity clause in relation to the actions of the Board in proposed subsection 7C(4C).^[3]

Minister's response^[4]

2.3 The minister advised:

Prior to passage of the Bill, the Australian Criminal Intelligence Commission Board could determine that an operation or investigation was a special operation or investigation, where traditional law enforcement methods were unlikely to be or had not been effective. The Bill strengthened this threshold by replacing the existing tests with a public interest test. The new test requires that the Board must consider, on the basis of their collective experience, that it is in the public interest that the special operation or special investigation occur.
The public interest test enables the Australian Criminal Intelligence Commission Board to consider all relevant matters in authorising a determination, rather than solely the utility of traditional law enforcement or criminal information/intelligence collection methods in the circumstances. The Australian Criminal Intelligence Commission Board is comprised of the heads of law enforcement agencies nationally, including all state and territory Police Commissioners, the Australian Federal Police Commissioner, the Commonwealth Director-General of Security, and others. As such, the Board is highly experienced in understanding the law enforcement and intelligence environment, and well-placed to make a public interest assessment.
Further, the use of a ‘public interest’ test is well-established in the exercise of decision-making authority under Commonwealth and state and territory legislation (for example, under the Public Interest Disclosure Act 2013 (Cth), Freedom of Information Act 1982 (Cth) and the Government Information (Public Access) Act 2009 (NSW)).

Committee comment

2.4 The committee thanks the minister for this response. The committee notes the minister's advice that the public interest test enables the Australian Criminal Intelligence Commission Board to consider all relevant matters in authorising a determination, rather than solely the utility of traditional law enforcement or criminal information/intelligence collection methods in the circumstances.

2.5 The committee also notes the minister's advice that the use of a ‘public interest’ test is well-established in the exercise of decision-making authority under Commonwealth and state and territory legislation.

2.6 However, the committee reiterates that the changes in the bill significantly expand the discretionary power of the Board to authorise a special operation or special investigation. From a scrutiny perspective, the committee does not consider that the information provided by the minister is sufficient to justify the expansion of such a broad discretionary power, noting the potential for such a power to significantly trespass on individual rights and liberties.

2.7 The committee also notes that the minister's response does not address the appropriateness of including a no-invalidity clause in relation to the actions required of the Board in subsection 7C(4C). The committee reiterates that there are significant scrutiny concerns with no-invalidity clauses as these clauses may limit the practical efficacy of judicial review to provide a remedy for legal errors. For example, as the conclusion that a decision is not invalid means that the decision-maker had the power (i.e. jurisdiction) to make it, review of the decision on the grounds of jurisdictional error is unlikely to be available. The result is that some of judicial review's standard remedies will not be available. Consequently, from a scrutiny perspective, the committee expects a sound justification for the inclusion of a no-invalidity clause and notes that no explanation has been provided by the minister in this instance.

2.8 Noting the limited explanation provided in the explanatory materials and the minister's response, the committee continues to have scrutiny concerns regarding the provisions of the bill. However, in light of the fact that the bill has already passed both Houses of Parliament, the committee makes no further comment on these matters.

Retrospective validation^[5]

2.9 In Scrutiny Digest 10 of 2019 the committee requested the minister's advice as to why it was necessary and appropriate to retrospectively validate both determinations of the Board and the exercise of powers done in connection with any special operation or investigation; the number of persons who may be affected and whether they would suffer a detriment as a result; and whether there are any current matters before the courts that may be affected, and the extent to which they may be affected.^[6]

Minister's response^[7]

2.10 The minister advised:

The ability of the Australian Criminal Intelligence Commission to undertake special operations and special investigations is a key part of its critical role to detect, prevent and disrupt the most serious criminal offending, including emerging organised crime threats, high risk and emerging drug markets, firearms trafficking, and outlaw motorcycle gangs. The Australian Criminal Intelligence Commission Board has been making special operation and special investigation determinations in the same way for at least 10 years, which have been challenged and upheld by intermediate appellate courts on a number of occasions.
While the legality of previous determinations have been upheld, given the critical role of the Australian Criminal Intelligence Commission in combatting serious and organised crime, the Government has a responsibility to provide certainty regarding the status of special operation and special investigation determinations. As such, the Bill contained technical provisions to validate current and former special operation and special investigation determinations, and to provide clarity regarding the validity of future special operation and special investigation determinations.
The validation provisions in the Bill ensure that the Australian public has certainty regarding the status of the activities of the Australian Criminal Intelligence Commission. They also support the Australian Criminal Intelligence Commission to continue to fulfil its important statutory role working towards a safer Australia, and engage with law enforcement and intelligence partners without interruption.

Committee comment

2.11 The committee thanks the minister for this response. The committee notes the minister's advice that while the legality of previous determinations have been upheld, given the critical role of the Australian Criminal Intelligence Commission in combatting serious and organised crime, the Government has a responsibility to provide certainty regarding the status of special operation and special investigation determinations.

2.12 The committee also notes the minister's advice that the validation provisions in the bill ensure that the Australian public has certainty regarding the status of the activities of the Australian Criminal Intelligence Commission.

2.13 The committee reiterates that underlying the basic rule of law principle that all government action must be legally authorised, is the importance of protecting those affected by government decisions from arbitrary decision-making and enabling affected persons to rely on the law as it currently exists. Retrospective validation has the potential to undermine these values.

2.14 The committee reiterates its consistent scrutiny view that the fact that a court overturns previous authority (or may in the future overturn previous authority) is not, in itself, a sufficient basis for Parliament to retrospectively reinstate the earlier understanding of the previous legal position. In saying this, when a precedent is overturned this itself necessarily has a retrospective effect and may overturn legitimate expectations about what the law requires. Nevertheless, the committee considers that where Parliament acts to retrospectively validate decisions which are put at risk it is necessary for Parliament to consider:

• whether affected persons will suffer any detriment by reason of the retrospective changes to the law and, if so, whether this would lead to unfairness; and

• that too frequent resort to retrospective legislation may work to sap confidence that the Parliament is respecting basic norms associated with the rule of law.

2.15 The committee notes that the minister's response does not address the committee's questions regarding the number of persons who may be affected by this retrospective validation, whether any affected persons would suffer a detriment as a result and whether there are any current matters before the courts that may be affected. The committee therefore continues to have scrutiny concerns regarding the effect of this retrospective validation and notes that its concerns have not been adequately addressed by the minister.

2.16 Noting the limited explanation provided in the explanatory materials and the minister's response, the committee continues to have scrutiny concerns regarding the provisions of the bill. However, in light of the fact that the bill has already passed both Houses of Parliament, the committee makes no further comment on this matter.

---

[1] Schedule 1, item 15. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).

[2] Schedule 1, item 15. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iv).

[3] Senate Scrutiny of Bills Committee, Scrutiny Digest 10 of 2019, pp. 1–5.

[4] The minister responded to the committee's comments in a letter dated 10 January 2020. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 1 of 2020 available at www.aph.gov.au/senate_scrutiny_digest.

[5] Schedule 1, items 55 and 56. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i).

[6] Senate Scrutiny of Bills Committee, Scrutiny Digest 10 of 2019, pp. 1–5.

[7] The minister responded to the committee's comments in a letter dated 10 January 2019. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 1 of 2020 available at www.aph.gov.au/senate_scrutiny_digest.