Mark Dreyfus (Isaacs, Australian Labor Party, Cabinet Secretary) Share this | Link to this | Hansard source

I present a supplementary explanatory memorandum to the bill, and I ask leave of the House to move government amendments (1) to (10), as circulated, together.

Leave granted.

I move government amendments (1) to (10), as circulated, together:

(1) Schedule 1, page 38 (after line 5), after item 191, insert:

19 1A Subsection 6(1)

Insert:

superior Court Judge means:

(a) a Judge of the Federal Court of Australia; or

(b) a Judge of the Federal Circuit and Family Court of Australia (Division 1).

(2) Schedule 1, page 39 (after line 8), after item 197, insert:

197A Sec tion 11

Repeal the section, substitute:

11 Who may issue etc. warrants?

(1) Any warrant under this Part may be issued by:

(a) in relation to an application for a warrant by a law enforcement officer of the National Anti-Corruption Commission—an eligible Judge; or

(b) otherwise—an eligible Judge or a nominated AAT member.

Warrants issued to law enforcement officers of the NACC

(2) An application made under this Part by a law enforcement officer of the National Anti-Corruption Commission may be made only to an eligible Judge.

Note: An application under this Part may be for a warrant, or to extend or vary a warrant.

(3) A warrant issued under this Part to a law enforcement officer of the National Anti-Corruption Commission may be revoked only by an eligible Judge.

Note: Warrants may be revoked under this Part by an eligible Judge or nominated AAT member on their own initiative. As a result of this subsection, warrants issued to law enforcement officers of the National Anti-Corruption Commission may be revoked only by an eligible Judge.

197B Subsection 12(1) (definition of eligible Judge )

Repeal the definition, substitute:

eligible Judge means a person:

(a) in relation to whom a consent under subsection (2) and a declaration under subsection (3) are in force; and

(b) in relation to any of the following issued to, or applied for by, a law enforcement officer of the National Anti-Corruption Commission—who is a superior Court Judge:

(i) a warrant;

(ii) an emergency authorisation;

(iii) an assistance order (within the meaning of subsection 64A(1)).

197C Subsection 13(1)

After "warrants", insert "(except to law enforcement officers of the National Anti-Corruption Commission)".

197D Subsection 33(1)

Repeal the subsection, substitute:

(1) Within 48 hours after giving an emergency authorisation to a law enforcement officer, the appropriate authorising officer who gave the authorisation (or another person on that appropriate authorising officer's behalf) must apply, for approval of the giving of the emergency authorisation, to:

(a) for an authorisation given to a law enforcement officer of the National Anti-Corruption Commission—an eligible Judge; or

(b) otherwise—an eligible Judge or a nominated AAT member.

(3) Schedule 1, page 40 (after line 8), after item 200, insert:

200A Subsection 64A(1)

Omit "to an eligible Judge or to a nominated AAT member".

200B After subsection 64A(1)

Insert:

(1A) The application may be made to:

(a) for an application made by a law enforcement officer of the National Anti-Corruption Commission—an eligible Judge; or

(b) otherwise—an eligible Judge or a nominated AAT member.

(4) Schedule 1, page 43 (after line 19), after item 213, insert:

213A Subsection 5(1) (definition of issuing authority )

Repeal the definition, substitute:

issuing authority (except when used in Schedule 1) means a person:

(a) in respect of whom an appointment is in force under section 6DB; and

(b) in relation to a warrant applied for by the National Anti-Corruption Commission—who is a superior Court Judge.

(5) Schedule 1, page 44 (after line 3), after item 215, insert:

215A Subsection 5(1) (definition of Part 4-1 issuing authority )

Repeal the definition, substitute:

Part 4-1 issuing authority means a person:

(a) in respect of whom an appointment is in force under section 6DC; and

(b) in relation to a warrant applied for by the National Anti-Corruption Commission—who is a superior Court Judge.

(6) Schedule 1, page 45 (after line 17), after item 224, insert:

224A Subsection 5(1)

Insert:

superior Court Judge means:

(a) a Judge of the Federal Court of Australia; or

(b) a Judge of the Federal Circuit and Family Court of Australia (Division 1).

(7) Schedule 1, page 45 (after line 30), after item 228, insert:

228A Subsection 6D(1) (definition of eligible Judge )

Repeal the definition, substitute:

eligible Judge (except when used in Schedule 1) means a Judge:

(a) in relation to whom a consent under subsection (2) and a declaration under subsection (3) are in force; and

(b) in relation to a warrant applied for by the National Anti-Corruption Commission—who is a superior Court Judge.

228B Subsection 6DA(1)

After "warrants", insert "(except to the National Anti-Corruption Commission)".

(8) Schedule 1, page 46 (after line 25), after item 234, insert:

234A Subsection 39(1)

Repeal the subsection, substitute:

(1) An agency may apply for a warrant in respect of a telecommunications service or a person to:

(a) for an application made by the National Anti-Corruption Commission—an eligible Judge; or

(b) otherwise—an eligible Judge or a nominated AAT member.

(9) Schedule 1, page 50 (after line 9), after item 251, insert:

251A Clause 2 of Schedule 1 (definition of issuing authority )

Repeal the definition, substitute:

issuing authority means a person:

(a) in respect of whom an appointment is in force under clause 16; and

(b) in relation to an international production order applied for by the National Anti-Corruption Commission—who is a superior Court Judge.

251B Subclause 14(1) of Schedule 1

Repeal the subclause, substitute:

(1) For the purposes of this Schedule, eligible Judge means a person:

(a) in relation to whom a consent under subclause (2) and a declaration under subclause (3) are in force; and

(b) in relation to an international production order applied for by the National Anti-Corruption Commission—who is a superior Court Judge.

251C Subclause 15(1) of Schedule 1

After "orders", insert "(except to the National Anti-Corruption Commission)".

251D Subclause 22(1) of Schedule 1

Omit "to an eligible Judge or nominated AAT member".

251E After subclause 22(1) of Schedule 1

Insert:

(1A) The interception agency may apply for the order to:

(a) for an application made by the National Anti-Corruption Commission—an eligible Judge; or

(b) otherwise—an eligible Judge or nominated AAT member.

(10) Schedule 1, page 50 (after line 24), after item 256, insert:

256A Subclause 52(1) of Schedule 1

Omit "to an eligible Judge or nominated AAT member".

256B After subclause 52(1) of Schedule 1

Insert:

(1A) The Part 5.3 IPO agency may apply for the order to:

(a) for an application made by the National Anti-Corruption Commission—an eligible Judge; or

(b) otherwise—an eligible Judge or nominated AAT member.

Amendments (1) to (10) amend the National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill 2022 to ensure that warrants and authorisations under the Telecommunications (Interception and Access) Act 1979, the TIA Act, and the Surveillance Devices Act 2004 can only be issued to the National Anti-Corruption Commission by eligible judges of federal superior courts, being judges appointed to the Federal Court of Australia or Division 1 of the Federal Circuit and Family Court of Australia. I commend the amendments to the House.

Max Chandler-Mather (Griffith, Australian Greens) Share this | Link to this | Hansard source

The Greens also support these amendments. I also want to take a moment to put on the record that the member for Melbourne is unable to be here this week, as he is sick with COVID, but he wanted to make it very clear that he fully supports this bill.

Question agreed to.

Mark Dreyfus (Isaacs, Australian Labor Party, Cabinet Secretary) Share this | Link to this | Hansard source

I thank the member for Berowra for his amendment. The consequential bill provides that decisions relating to the commencement of an investigation or inquiry, and intermediary or procedural steps by the commission on the way to reaching its findings, would not be subject to review under the ADJR Act. This is appropriate to ensure that the commission's statutory functions are not undermined and delayed as a result of lengthy litigation at each interlocutory stage of an investigation and that investigations and inquiries can be conducted in a timely manner. A person may still seek judicial review of these intermediary or procedural decisions under the Judiciary Act 1903 or in the High Court's original jurisdiction. The government does not support this amendment.

Sharon Claydon (Newcastle, Australian Labor Party) Share this | Link to this | Hansard source

The question is that the amendment be disagreed to.

Question agreed to.

Bill, as amended, agreed to.