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Dutton scrambles to save star chamber's 'unlawful' investigations

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  • Dutton scrambles to save star chamber's 'unlawful' investigations


    The Morrison government has snuck laws into Parliament that would retrospectively validate investigations by the secretive Australian Criminal Intelligence Commission, ahead of a High Court challenge to its coercive powers.

    One of the commission's targets, identified only by the pseudonym CXXXVIII in court documents, is arguing the seizure of his mobile phone last year was unlawful because the ACIC board – made up of the country's law enforcement chiefs – did not properly authorise the investigation.

    Despite losing at lower court levels, the High Court in October granted the man special leave to appeal, with a hearing likely early next year.

    In granting special leave, Justice Michelle Gordon told the Commonwealth's lawyers: "This whole area is unusual circumstances; that is what you are putting to us, you need these extraordinary powers ... I do not know if that gets you very far."

    But Home Affairs Minister Peter Dutton quietly introduced legislation into the House of Representatives on Thursday in a bid to snuff out potential detrimental judgement, sparking alarm from legal experts.

    According to the explanatory memorandum, the amendments to the Australian Crime Commission Act would confirm the validity of current and former special operations and special investigations, and amend the authorisation process for the ACIC Board to determine a special operation or investigation in the future.

    Mr Dutton's office referred request for comment to his department, which said: "The government has a responsibility to provide certainty regarduing the status of special operations and special investigations determinations made by the ACIC board."

    Labor's shadow cabinet was expected to consider the opposition's stance on Monday night.

    “Labor supports the work of the ACIC and supports sensible and appropriate measures to ensure that current and previous operations and investigations are lawful,” a spokesman for opposition home affairs spokeswoman Kristina Keneally said.

    But Law Council president Arthur Moses said the legislation appeared to go beyond just issues raised in the High Court case and would validate unlawful decisions made by the ACIC.

    "If there have been breaches of the law by government agencies, then it
    would be odd and inappropriate for Parliament to validate those breaches as there would not be any deterrent for government agencies in the future who breach laws passed by the very same Parliament," he said.

    “The concern the profession has is that it will become the norm, not the exception, to use coercive powers that include the power to abrogate the privilege against self-incrimination without special circumstances being established on the facts of a particular case.”
    'Star chamber'

    Under the ACIC's current legislation, it can use its coercive powers – similar to that of a royal commission – in special operations and special investigations to obtain information where traditional law enforcement methods are unlikely to be or have not been effective.

    The commission, which has been labelled a star chamber, targets serious and organised crime by high-risk offenders.

    The Australian Federal Police commissioner chairs the ACIC's board and other members include the heads of Home Affairs, the Tax Office, Australian Securities and Investments Commission, ASIO, Border Force and state police forces.

    The board's role is to authorise special investigations and operations and the use of coercive powers.

    The details of the case that led to the High Court challenge are shrouded in secrecy. What is known is that the ACIC seized the man's phone at Adelaide Airport on June 26 last year, but the ACIC later conceded this notice was incorrectly filled out.

    Two days later, after briefly handing the phone back to the man at his lawyer's office, the ACIC produced a second notice and seized it again.

    But the man's lawyers say a 2013 determination the ACIC relied on to launch its special investigation could not be "so broad, so wide, and so enduring that anything and all manner of matters years down the track must purportedly come within it".

    https://www.afr.com/politics/federal...TwPJS5eNWNYFpQ

    SINNERS MCC AUSTRALIA
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