Labor and the Coalition worked together to pass a bill that would retrospectively authorize the potentially “unlawful” use of material that was obtained in special investigations conducted by Australia’s most secretive law enforcement agency.
A long-standing legal flaw in the authority of the Australian Criminal Intelligence Commission to carry out special investigations and operations is the subject of this bill by Labor, which represents the third attempt to rectify the situation.
Peter Dutton, the leader of the opposition, touted the law, which was introduced on Tuesday and passed the Senate on Friday, as an example of bipartisan cooperation during heated political debates on the unrelated topic of releases from indefinite detention. The bill was introduced on Tuesday.
On the other hand, Greens senator David Shoebridge stated to the Senate that the “only credible” explanation for the urgency of the measure is if a decade’s worth of “covert warrants and surveillance is likely to have been found to be unlawful and therefore won’t stand up in court.”
The ACIC’s coercive powers are strengthened when an investigation is designated as “special.” This allows the ACIC to compel individuals to produce papers or things or to submit to an examination. Failure to attend and answer questions can result in a maximum sentence of five years in jail.
High-risk criminal targets, illegal motorcycle gangs, criminal exploitation of the migration system, trafficking in guns, “high risk and emerging drugs,” and the effects of severe and organized crime on national security are the primary areas of attention for investigations of this nature.
As a result of concerns that one of the targets was going to prevail in a high court appeal against the exceptional powers, the Minister of Home Affairs, Peter Dutton, was successful in persuading Labor to back an urgent bill that would retrospectively validate the operations of the Australian Criminal Investigations Commission (ACIC).
In November of 2022, the Labor administration of Albanese introduced a second measure with the purpose of “providing greater certainty” regarding the authority of the ACIC board to authorize special operations and investigations.
Adam Bandt, Green Party leader, made a statement in the House of Representatives stating that the act of introducing retrospective legislation was “very serious” and questioned whether or not a government agency had been behaving in a manner that may be considered possibly unconstitutional.
The Attorney General, Mark Dreyfus, stated that the bill guarantees that the Australian Criminal Investigation Commission (ACIC) will be able to continue to carry out its essential statutory responsibility of combating serious and organized crime in Australia and ensuring the safety of the Australian community during Labor rule.
In his response to Bandt, he stated that the amendments for “vital statutory functions” were by definition “standard practice.”
Shoebridge, a member of the Senate, stated that the law seemed to be meant “to protect past illegal activities by these agencies, because there is no other explanation for the rush.”
According to him, “the only credible urgency is that they know the activities were illegal, and they have probably been illegal for a decade, and a whole bunch of covert warrants and surveillance is likely to have been found to be unlawful and therefore won’t stand up in court.” This is the only justification for the urgency that can be considered credible.
A summons for a person to appear before an ACIC examiner was withdrawn in March 2023, as stated in the annual report of the ACIC for the fiscal year 2022-23. This occurred after the individual, who was identified by the alias DCL22, asserted “constitutional grounds” in an appeal to a full federal court at the time.
When a plaintiff known as JAM “raised constitutional issues” in relation to accusations that appeared on his AFP-issued police check, the high court proceedings in a separate case were stopped by consent in February 2023. This occurred after the plaintiff complained about the charges.
In September of 2020, Australia disclosed a number of more instances in which the Australian Competition and Consumer Commission (ACIC) discreetly settled cases or withdrawn notices when the validity of its authority was questioned.
According to a statement made by a spokeswoman for Dreyfus to Australia, “it is necessary for the Labor government to take steps to ensure that agencies can continue to discharge their core functions.” This statement is in line with the practice of previous governments. “This bill does not expand the powers that the ACIC have.”
According to statements made by Dutton on November 14th, the Coalition will back the bill “in relation to an issue around” the ACIC.
In an interview with 2GB Radio, Dutton stated that “those bills pop up all the time to address quirky outcomes that the courts provide for, decisions that we can’t really agree with or understand, but you can patch it up with a change to the law.”
During her testimony before the Senate, Michaelia Cash, the shadow attorney general, stated that the measure is a result of “changes that were initiated during the previous Coalition government and continued by Labor in government.”
In order for the ACIC to continue its fight against severe and organized crime, she stated that it would “preserve the status quo and ensure that there is no legal doubt about decision-making processes undertaken by the ACIC.”
“The Australian Critical Incident Command (ACIC) does not make public statements regarding the exchange of intelligence and information with its partner agencies. The situation is especially the same with regard to cases that might be brought before the courts.