Crimes and Other Legislation Amendment (Omnibus No 2) Bill 2023 - Initial Scrutiny [2023] AUSStaCSBSD 231 (29 November 2023)

• Crimes and Other Legislation Amendment (Omnibus No. 2) Bill 20235

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Crimes and Other Legislation Amendment (Omnibus No. 2) Bill 2023^[5]

Purpose	The Crimes and Other Legislation Amendment (Omnibus No. 2) Bill 2023 (the bill) would amend the Australian Crime Commission Act 2002 (the ACC Act), the Crimes Act 1914 (Crimes Act) and the Criminal Code Act 1995 (Criminal Code), and make consequential amendments to the Customs Act 1901 (Customs Act) and the Defence Force Discipline Act 1982.
Portfolio	Attorney-General
Introduced	House of Representatives on 14 November 2023
Bill status	Finally passed both Houses on 17 November 2023

Retrospective validation^[6]

1.7 Item 1 of Schedule 3 to the bill provides retrospective validation to things related to federally relevant criminal activity within the meaning of the Australian Crime Commission Act 2002 (the ACC Act) done by a person in reliance on an authorisation or determination of the Board of the Australian Crime Commission on or after 4 September 2013 and before 10 December 2019 under paragraph 7C(1)(c), and subsections 7C(2) and (3) of the ACC Act. This is to the extent that the doing of that thing would, apart from this item, be invalid or ineffective because the relevant authorisation or relevant determination was invalid or ineffective (including because, at the time when the authorisation was given or the determination was made, the authorisation or determination failed to specify or identify federally relevant criminal activity within the meaning of the 31 ACC Act as in force at that time).

1.8 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 legislation has the potential to undermine these values.

1.9 The committee's consistent scrutiny view is that the fact that a court overturns 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 validate decisions which are put at risk, in circumstances where previous authority has been overturned, 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.

1.10 In Scrutiny Digest 10 of 2019 and Scrutiny Digest 1 of 2020 the committee raised similar concerns in relation to the Australian Crime Commission Amendment (Special Operations and Special Investigations) Bill 2019.^[7] In that instance, the bill retrospectively validated determinations of the Board of the Australian Crime Commission and things done by a person in connection with a special operation or special investigation in performing any function or exercising any power under the ACC Act. This retrospective validation was to the extent that doing the thing would otherwise be invalid or ineffective because no investigation or intelligence operation was being undertaken at the time the thing was done.

1.11 As this bill appears to be in effect reproducing the same scrutiny concerns that arose in relation to the 2019 bill, the committee expects that the explanatory memorandum should have addressed the questions posed by the committee in relation to that bill in 2019 and 2020. In Scrutiny Digest 10 of 2019 and Scrutiny Digest 1 of 2020 the committee noted that the explanatory memorandum to the 2019 bill should have:

• justified why it was necessary and appropriate to retrospectively validate both determinations by the Board and the exercise of powers done in connection with any special operation or investigation;

• provide 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 this would lead to unfairness; and

• consider whether there are any current matters before the courts that may be affected and the extent to which a matter may be affected.

1.12 The committee notes that the explanatory memorandum to this bill also does not contain any information as to why it is necessary to retrospectively validate either determinations by the Board to authorise a special operation or investigation or the exercise of powers done in connection with any special operation or investigation.

1.13 Additionally, the committee notes that subitems 1(3) and 1(4) of the bill provide that the thing is done as valid and effective and taken to have always been so, including for the purposes of legal proceedings. However, there is no information on the face of the bill or in the explanatory materials regarding an exception for matters that are currently on foot. As a result, it is unclear to the committee whether there are current matters before the courts that may be detrimentally affected by the retrospective validation.

1.14 The committee remains concerned about the retrospective validation of actions as prescribed by the bill. However, as the bill has already passed both Houses of the Parliament, the committee makes no further comment. The committee notes with concern the speed at which this bill was passed, being introduced on 14 November 2023 and passing both Houses on 17 November 2023, and the impact this has on the ability of the Parliament to scrutinise proposed legislation.

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^[5] This entry can be cited as: Senate Standing Committee for the Scrutiny of Bills, Crimes and Other Legislation Amendment (Omnibus No. 2) Bill 2023, Scrutiny Digest 15 of 2023; [2023] AUSStaCSBSD 231.

^[6] Schedule 3. The committee draws senators’ attention to the schedule pursuant to Senate standing order 24(1)(a)(i).

^[7] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 10 of 2019 (5 December 2019), pp. 3–5; Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 1 of 2020 (5 February 2020), pp. 47–49.