Australian Crime Commission Amendment (Special Operations and Special Investigations) Bill 2019 [2019] AUSStaCSBSD 159 (5 December 2019)

1.1 The committee comments on the following bills and, in some instances, seeks a response or further information from the relevant minister.

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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 27 November 2019

Broad discretionary power^[1]

1.2 Currently, subsection 7C(2) of the Australian Crime Commission Act 2002 (the ACC Act) provides that the Board of the Australian Crime Commission (the Board) may determine that an intelligence operation is a special operation. Before doing so, the Board must consider whether methods of collecting the criminal information and intelligence that do not involve the use of powers in the Act have been effective at understanding, disrupting or preventing the federally relevant criminal activity to which the intelligence operation relates.

1.3 Current subsection 7C(3) of the ACC Act provides that the Board may determine that an investigation into matters relating to federally relevant criminal activity is a special investigation. Before doing so, the Board must consider whether ordinary police methods of investigation into the matters are likely to be effective at understanding, disrupting or preventing the federally relevant criminal activity.

1.4 Where the Board determines that an operation or investigation is a special operation or special investigation, officers will be able to use the extensive examination powers outlined in Division 2 of Part 2 of the ACC Act.

1.5 Item 15 of the bill seeks to amend subsections 7C(2) and 7C(3) to simply provide that the Board may make a determination authorising a special operation or special investigation to occur. Proposed subsection 7C(4A) provides that the only condition for the exercise of the Board's power to authorise a special operation or special investigation is that the Board considers, on the basis of the collective experience of the Board members voting at the meeting when a determination is made, that it is in the public interest that the Board authorise a special operation or special investigation. The committee notes that the changes proposed in the bill would significantly expand the discretionary power of the Board to authorise a special operation or special investigation.

1.6 The committee expects that the inclusion of such a broad discretionary power, that has the potential to unduly trespass on personal rights and liberties, would be thoroughly justified in the explanatory materials. In this instance, the explanatory materials provide no justification as to why it is necessary or appropriate to provide the Board with the broad discretionary power to authorise a special operation or special investigation.

1.7 Additionally, section 16 of the ACC Act currently provides that if an intelligence operation is determined by the Board to be a special operation or an investigation is determined by the Board to be a special investigation then any act or thing done by the ACC because of the determination must not be challenged, reviewed, quashed or called in question in any court on the ground that the determination was not lawfully made.

1.8 Item 24 of the bill seeks to amend section 16 to provide that if a determination is made under subsection 7C(2) or 7C(3), then any act or thing done by the ACC because of the determination must not be challenged, reviewed, quashed or called in question in any court on the ground that the determination was not lawfully made. The committee notes that this provision may limit the rights of affected person to seek judicial review of the making of a determination. However, it is difficult for the committee to accurately assess the impact of the changes when the explanatory materials contain no justification for the need for the amendments.

1.9 As no justification has been provided in the explanatory materials, the committee requests the minister's advice as to why the Board has been provided with broad discretionary powers to authorise special operations or special investigations.

No-invalidity clause^[2]

1.10 Proposed subsection 7C(4C) provides that a determination by the Board to authorise a special operation or special investigation must, to the extent that the board reasonably considers appropriate having regard to the level of generality at which it has authorised the special investigation or special operation, describe the general nature of the circumstances or allegations constituting the federally relevant criminal activity to which the determination relates and set out the purpose of the investigation or operation. Proposed subsection 7C(4J) provides that the validity of a determination is not affected by any failure to comply with subsection 7C(4C).

1.11 A legislative provision that indicates that an act done or decision made in breach of a particular statutory requirement or other administrative law norm does not result in the invalidity of that act or decision, may be described as a 'no-invalidity' clause. 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, the committee expects a sound justification for the inclusion of a no-invalidity clause to be provided in the explanatory memorandum.

1.12 In this instance, the explanatory memorandum does not include a justification for the use of a no-invalidity clause, merely restating the operation of the provision. The committee notes that its scrutiny concerns regarding the use of no-invalidity clauses are heightened in this instance by the broad discretionary powers provided to the Board and the potential serious consequences flowing from a decision of the Board to authorise a special investigation or special operation.

1.13 As no justification has been provided in the explanatory materials, the committee requests the minister's advice as to why it is necessary and appropriate to include a no-invalidity clause in relation to the actions required of the Board in proposed subsection 7C(4C).

Retrospective validation^[3]

1.14 Item 55 of the bill seeks to validate all previous determinations made by the Board if the determination would otherwise be invalid or ineffective because it did not satisfy the requirements of the ACC Act. Item 56 of the bill seeks to validate all 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 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.

1.15 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.

1.16 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:

1.17 The committee notes that the explanatory memorandum does not contain any information as 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

1.18 Additionally, the committee notes that subitem 55(5) of the bill provides that the validation of determinations does not affect rights or liabilities arising between parties to proceedings heard and finally determined by a court. Subitem 56(5) provides the same in relation to the exercise of powers. 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.

1.19 As no justification has been provided in the explanatory materials, and noting the potentially serious scrutiny concerns arising from the retrospective validation of determinations by the Board and the exercise of powers under the Australian Crime Commission Act 2002, the committee requests the minister's advice regarding:

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

Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests