Commonwealth Numbered Regulations - Explanatory Statements

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AUSTRALIAN CRIME COMMISSION ESTABLISHMENT (TRANSITIONAL PROVISIONS) REGULATIONS 2003 2003 NO. 4

Statutory Rules 2003 No. 4

Issued by the Authority of the Minister for Justice and Customs

Subject: Australian Crime Commission Establishment Act 2002

Australian Crime Commission Establishment (Transitional Provisions) Regulations 2003

The Australian Crime Commission Establishment Act 2002 (ACCE Act) commenced on 1 January 2003 and amended the National Crime Authority Act 1984 (NCA Act) and a number of other Commonwealth Acts to replace the National Crime Authority (NCA), Australian Bureau of Criminal Intelligence and the Office of Strategic Crime Assessments with the Australian Crime Commission (ACC).

Item 326 of Schedule 1 of the ACCE Act empowers the Governor-General to make regulations prescribing matters of a transitional nature (including prescribing any savings or application provisions) arising out of the amendments made by that Schedule. Item 226 of Schedule 2 of the ACCE Act also empowers the GovernorGeneral to make regulations prescribing matters of a transitional nature (including prescribing any savings or application provisions) arising out of the amendments made by that Schedule. Schedule 2 amends a number of Commonwealth Acts, including the Telecommunications (Interception) Act 1979 (TI Act).

Both items 326 and 226 also provide that despite subsection 48(2) of the Acts Interpretation Act 1901, regulations made under those items within 1 year of commencement (that is, before 31 December 2003) may commence on a day earlier than the day on which they are made (but not earlier than the commencement of the items (that is, 1 January 2003)).

The purpose of the Regulations is to provide for the transition from the NCA to the ACC of the power to vary or revoke a confidentiality order made under the NCA Act, and warrants issued under the TI Act.

Details of the Regulations are set out in the Attachment.

The Regulations commenced retrospectively on 1 January 2003 to ensure that there is a seamless transition from the NCA to the ACC.

Retrospective commencement is particularly relevant to the TI warrants where there is a need to ensure that warrants served on a telecommunication carrier have continuous validity so that any information received from the interception between 1 January 2003 and 7 January 2003 (inclusive) is legally obtained information. The Regulation is limited to the period of 1 January 2003 to 7 January 2003 as the process of revoking warrants issued to the NCA and reissuing them to the ACC was completed by 7 January 2003 (20 were reissued on 2 January, 13 on 3 January, 26 on 6 January and 1 on 7 January). However, it is essential that the proposed Regulations operate retrospectively to cover the intervening period.

The retrospective commencement of the CEO's powers to vary or revoke a confidentiality order is also necessary to ensure the validity of any such variance or revocation that occurred after 1 January 2003 and before the making of the Regulations. As a matter of practice the CEO did not propose to make any such variations until the Regulations had been made, but at the time of drafting the Regulations it was necessary to cover the circumstance that, as a matter of justice, such a variation or revocation may be necessary before making the Regulations.

The details of the Regulations are set out in the Attachment.

ATTACHMENT

Details of the Australian Crime Commission Establishment (Transitional Provisions) Regulations 2003

Regulations 1, 2 and 3

Regulations 1, 2 and 3 set out respectively the name of the Regulations, the commencement date and the definition of certain terms.

Regulation 4

Regulation 4 provides that the Chief Executive Officer (CEO) of the ACC may vary or revoke a confidentiality direction that the NCA or a hearing officer has made before 1 January 2003. Such an order may have been made during the course of a hearing conducted by the NCA or a hearing officer when it is necessary to ensure the protection of the evidence given or the identity of any witness. The NCA or a hearing officer must have made such an order if failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been, or may be, charged with an offence.

Subsections 25(9A) and 25A(13) of the NCA Act enabled the Chair of the NCA to vary or revoke such a direction provided that to do so did not prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been or may be charged with an offence.

Regulation 4 ensures that the CEO may vary or revoke a confidentiality direction made before 1 January 2003 in the same way that the Chair of the NCA could have varied or revoked the direction and commenced retrospectively on 1 January 2003.

Regulation 5

Proposed regulation 5 would deem a warrant issued to the NCA under Part VI of the Telecommunications (Interception) Act 1979 before 31 December 2002 to be a warrant issued to the ACC on 1 January 2003 and authorise the ACC to intercept communications from 1 January 2003 until 7 January 2003 or the date on which the warrant expires, whichever occurs first. Proposed regulation 5 would commence retrospectively on 1 January 2003.

Regulation 6

Item 324 of Schedule 1 of the ACCE Act provides that any evidence (including oral evidence in any form), records, documents, information or other things (including those in electronic form) that were in the possession of the NCA immediately before the commencement time are to be transferred to the ACC. Regulation 6 is an avoidance of doubt provision to confirm that the term "information" in Item 324 applies to 'lawfully obtained information' or 'designated warrant information' within the terms of sections 6E and 6EA of the TI Act. This enables information obtained by the NCA pursuant to TI warrants before 1 January 2003 to transfer to the ACC.