Bills Digest no. 1 2015–16
PDF version [827KB]
WARNING: This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
Cat Barker, Foreign Affairs, Defence and Security Section
Jonathan Mills and Mary Anne Neilsen, Law and Bills Digest Section
5 August 2015
Contents
The Bills Digest at a glance
Purpose and
structure of the Bill
Commencement
Background
Committee
consideration
Policy
position of non-government parties and independents
Position of
major interest groups
Financial
implications
Statement of
Compatibility with Human Rights
Schedule 1—Serious
drug offences
Schedule 2—Bribing
foreign public officials
Schedule
3—Outrages upon personal dignity
Schedule 4—Forced
marriage
Schedule
5—Knowingly Concerned
Schedule 6—Penalties
for firearms trafficking offences
Schedule
7—Sentencing and parole
Schedule
8—Transfer of prisoners
Schedule
9—Sharing information relevant to federal offenders
Schedule 10—AUSTRAC
Schedule 11—Australian
Commission for Law Enforcement Integrity
Schedule 12—Australian
Crime Commission
Schedule
13—Proceeds of crime—penalties
Schedule
14—Proceeds of crime—other matters
Schedule 15—
State law enforcement agencies
Schedule 16—Controlled
operations
Schedule
17—Technical corrections
Date introduced: 19
March 2015
House: House of
Representatives
Portfolio: Attorney-General
Commencement: See
page four of this Digest for details.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent, they
become Acts, which can be found at the ComLaw
website.
-
The Crimes Legislation Amendment (Powers, Offences and Other
Measures) Bill 2015 will amend a range of crime related provisions across
several Acts. The amendments in the different schedules are quite separate, and
are dealt with as such in this Digest. Some schedules contain largely technical
or minor and non‑controversial amendments. However, some amendments that
are represented as such in the accompanying explanatory material are more
significant than they may appear.
- The
more significant amendments proposed include the following.
- Schedule 1
contains two amendments to serious drug offences, both of which will lessen the
degree of fault that the prosecution must establish to prove an offence (in the
first case, for an attempted drug offence and in the second, for an offence of
import or export of a border controlled substance). Stakeholders have
questioned both the need for, and appropriateness of, these measures.
- Schedule 5
will provide an additional form of secondary criminal liability for being
‘knowingly concerned’ in the commission of an offence. This form of secondary
criminal liability was previously available under the Crimes Act 1914,
but was not included in the Criminal Code Act 1995, having been rejected
for inclusion in the model criminal code in 1992 for being too open ended and
uncertain for a provision of general application. Legal and human rights groups
have expressed similar concerns in the context of the Bill. However, the
absence of this form of secondary criminal liability has attracted judicial
criticism and prosecuting authorities have stated that ‘knowingly concerned’ would
be more adaptable to the circumstances of criminal offending, and more likely
to be understood and properly applied.
- Schedule 6
will introduce mandatory minimum sentences of five years for firearms
trafficking offences. This measure has been reintroduced by the Government
after it failed to pass the Senate in an earlier Bill. The Australian Labor Party
(ALP) and the Australian Greens are opposed to this measure.
- Schedule 7
will introduce amendments relating to the sentencing, imprisonment and release
of federal offenders, including requiring a court to set a non-parole period rather
than issue a recognizance release order permitting release on certain
conditions such as good behaviour, for federal sentences exceeding three years.
Stakeholders have raised concerns that this may be a restraint on the exercise
of judicial discretion, and would impact on a court’s ability to determine a
sentence that it considers to be appropriate in the individual circumstances of
each case.
- Schedule
9 will provide for increased information sharing relevant to federal
offenders between federal and state or territory authorities. Concerns have
been raised by the Directors of Public Prosecutions in New South Wales and
Victoria that the proposed power for the Commonwealth to require information to
be provided may override state privacy laws, legal professional privilege and
non-publication orders.
- Schedule 10
will reduce the scope of the privilege against self-incrimination in the
context of certain information and documents provided under the Anti-Money
Laundering and Counter-Terrorism Financing Act 2006. Limited
justification has been provided for this measure and it has attracted criticism
from some stakeholders as well as the Parliamentary Joint Committee on Human
Rights (PJCHR).
- Schedule 11
will change the definition of ‘significant corruption issue’, give the head of
the Australian Commission on Law Enforcement Integrity discretion as to when
and how much information is provided to persons who have referred corruption
matters, and address other issues identified through operational experience
with the Act. The first of these changes may have broader implications than
intended, particularly with respect to systemic corruption. This issue was not
raised in submissions to, or considered by, the Senate Legal and Constitutional
Affairs Legislation Committee.
- The
majority report on the Senate Legal and Constitutional Affairs Legislation
Committee’s inquiry into the Bill did not recommend any changes, but dissenting
reports by the ALP and the Greens recommended some measures (including those in
Schedules 5 and 6) be removed from the Bill. The PJCHR raised concerns with
Schedule 6 as well as Schedule 10. The Scrutiny of Bills Committee
commented on several measures, but largely left a determination of the
appropriateness of those provisions to the Senate as a whole.
The purpose of the Crimes Legislation Amendment (Powers,
Offences and Other Measures) Bill 2015 (the Bill) is to:
- amend
the Criminal Code Act 1995 (the Criminal Code) to:
- introduce
mandatory minimum sentences for firearms trafficking offences (Schedule 6)
- make
aspects of serious drug offences simpler to prosecute (Schedule 1)
- clarify
the operation of the foreign bribery offence (Schedule 2)
- clarify
the war crime offence of outrages upon personal dignity in a non-international
armed conflict (Schedule 3)
- expand
the definition of forced marriage and increase penalties for forced marriage
offences (Schedule 4) and
- insert
the concept of being ‘knowingly concerned’ in the commission of an offence as
an additional form of secondary criminal liability (Schedule 5)
- amend
the Crimes Act 1914 and the Commonwealth Places (Application of Laws)
Act 1970 to rectify administrative inefficiencies, address certain
legislative anomalies and clarify provisions relating to federal offenders (Schedule
7)
- amend
the Transfer of Prisoners Act 1983 to allow the interstate transfer of
federal prisoners to occur at a location other than a prison (Schedule 8)
- amend
the Crimes Act to:
-
facilitate
information sharing about federal offenders between the Attorney-General’s
Department and relevant third party agencies (Schedule 9) and
-
make
aspects of the approval process for controlled operations more stringent (Schedule 16)
- amend
the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF
Act) to address issues identified through operational experience with the
Act (Schedule 10)
- amend
the Law Enforcement Integrity Commissioner Act 2006 to change the
definition of ‘significant corruption issue’, give the Integrity Commissioner
discretion as to when and how much information is provided to persons who have
referred corruption matters, and address other issues identified through
operational experience with the Act (Schedule 11)
- make
minor and technical amendments to the Australian Crime Commission Act 2002
(Schedule 12)
- amend
the Proceeds of Crime Act 2002 (POC Act) to increase
penalties for failing to comply with a production order or with a notice to a
financial institution in proceeds of crime investigations, to address ambiguity
in the provisions, streamline the appointment of proceeds of crime examiners
and support the administration of confiscated assets by the Official Trustee, and
to make related amendments to other Acts (Schedules 13 and 14)
- amend
several Commonwealth Acts to give the Independent Commissioner Against
Corruption of South Australia (ICAC SA), whose Office became operational
in September 2013, consistently with other state anti‑corruption bodies, the
ability to access information from Commonwealth agencies; defences for certain
Commonwealth telecommunications offences; and the ability to apply for certain
types of search warrants; as well as to update references to reflect the new
name and titles associated with the Queensland Crime and Corruption
Commission (Schedule 15) and
- make
minor corrections to the Classification (Publications, Films and Computer
Games) Act 1995 (Schedule 17).
Sections 1 to 3 will commence on Royal Assent.
Schedules 1 to 14 and Part 1 of Schedule 15 will commence
the day after Royal Assent. Schedule 16 will commence 28 days after
Royal Assent.
Part 2 of Schedule 15 contains amendments
contingent on the Telecommunications (Interception and Access) Amendment
(Data Retention) Act 2015 (Data Retention Act). Item 52 will
commence the day after Royal Assent, or not at all if item 7 of
Schedule 2 to the Data Retention Act commences on or before that
day. Item 53 will commence the later of the day after Royal Assent and
immediately after the commencement of item 3 of Schedule 2 of the Data
Retention Act, but will not commence at all if the latter provision does
not commence.[1]
Schedule 17 will commence the later of the day after
Royal Assent and immediately after the commencement of Part 3 of
Schedule 3 to the Classification (Publications, Films and Computer
Games) Amendment (Classification Tools and Other Measures) Act 2014.[2]
The Bill will amend a range of crime related provisions
across several Acts. The amendments in the different schedules are quite
separate. For this reason, background relevant to specific
measures is provided separately in the analysis of Schedules to the Bill. In
his second reading speech for the Bill, the Minister for Justice
outlined the overarching purpose of the Bill as follows:
The Crimes Legislation
Amendment (Powers, Offences and Other Measures) Bill 2015 delivers on the
government's commitment to tackle crime and to make our communities safer. By
providing our law enforcement agencies with the tools and powers they need to
do their job, and by ensuring Commonwealth laws are robust and effective, this Bill
reflects this government's efforts to target criminals and reduce the heavy
cost of crime for all Australians.[3]
This section briefly highlights which parts of the Bill have
featured in comments or recommendations of parliamentary committees. The
measures, and concepts relevant to understanding them, are explained in the analysis
of schedules beginning on page ten of this Digest.
Senate Legal and Constitutional
Affairs Legislation Committee
The Senate Legal and Constitutional Affairs Legislation
Committee tabled its report on the Bill on 16 June 2015.[4]
The majority of the Committee, chaired by Senator Ian Macdonald, did not
recommend any changes to the Bill.[5]
The dissenting report of the Australian Labor Party (ALP)
recommended:
- Schedule 5
(introduction of ‘knowingly concerned’ as an additional form of secondary
criminal liability) be removed from the Bill and
- Schedule 6
(mandatory minimum sentences for firearms offences) be replaced with provisions
introducing aggravated forms of the firearms offences modelled on those
included in its Crimes Legislation Amendment (Organised Crime and Other
Measures) Bill 2012.[6]
The dissenting report of the Australian Greens recommended:
- Schedule 6
be removed from the Bill
- Schedules 1
(serious drug offences), 5, 7 (sentencing and parole), 9
(sharing information relevant to federal offenders) and 10 (amendments
to the AML/CTF Act) be removed from the Bill and subject to further
consultation with state and territory governments and other stakeholders and
- Schedule 4
(forced marriage offences) be passed.[7]
The same committee has previously considered proposed
amendments to introduce mandatory minimum sentences for firearms trafficking.
For details, see the analysis of Schedule 6 of the Bill in this Digest.
Senate Standing Committee for the
Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of Bills
(Scrutiny of Bills Committee) sought further information from the Minister for
Justice about:
- the
imposition of a legal burden instead of an evidential burden on a defendant to
displace a presumption that a person under the age of 16 years is not
capable of understanding the nature and effect of a marriage ceremony, in
amendments relating to forced marriage in Schedule 4
- the
scope, application and justification for the re-introduction, in Schedule 5,
of being ‘knowingly concerned’ with the commission of an offence as a form of
secondary criminal liability which had been previously included in the Crimes
Act 1914 and
- whether
application provisions relating to amendments to the POC Act and related
legislation in Schedule 14 might operate unfairly.[8]
The Committee considered the Minister’s response in its Fifth
Report of 2015.
On the first two matters above, it was satisfied with the
explanations provided and asked that the additional information be incorporated
into the Explanatory Memorandum.[9]
On the third, the Committee was satisfied with the
information provided in relation to amendments concerning the interaction
between state or territory restraining orders and property considered to be
proceeds of an offence under the POC Act. However, the Committee
remained of the view that the amendments to the POC Act may create an
adverse effect and that other proposed amendments could retrospectively
constrain the ability of a person to dispose of or otherwise deal with
restrained property. This is due to the expansion of the definition of ‘related
offence’ to include acts or omissions which occur as part of a single chain of
events, which may include offences that occurred prior to commencement.[10]
The Scrutiny of Bills Committee also noted that several other
measures may be considered to trespass unduly on personal rights and liberties.
In particular:
- amendments
in Schedule 1 will amend fault elements associated with certain
serious drug and precursor offences to make them simpler to prosecute
- amendments
in Schedule 6 will introduce mandatory minimum sentences for
firearms trafficking
- amendments
in Schedule 10 will reduce the scope of the privilege against
self-incrimination in the context of certain information and documents provided
under the AML/CTF Act and
- amendments
in Schedule 13 will increase the maximum penalty for offences of failing
to comply with certain notices issued under the POC Act from six months
imprisonment (and/or 30 penalty units) to two years imprisonment (and/or
100 penalty units), and that this is of particular concern as a defendant
bears an evidential burden in relation to a defence to those offences.[11]
However, it did not seek any additional information from the
Minister in relation to those amendments. Instead it noted the explanation
provided in the Explanatory Memorandum and has left the question of the
appropriateness of those provisions to the Senate as a whole.[12]
Parliamentary Joint Committee on
Human Rights
The Parliamentary Joint Committee on Human Rights (PJCHR) has
commented on two measures in the Bill.
Mandatory minimum sentences for
firearms trafficking (Schedule 6)
The PJCHR considered the introduction of mandatory minimum
sentences for firearms trafficking when it was proposed in a 2014 Bill.[13]
It considered the measure was ‘likely to be incompatible’ with the right not to
be arbitrarily detained and the right to a fair trial.[14]
It recommended that if the provisions were retained, they be amended to clarify
that the minimum sentence was not intended as a ‘sentencing guidepost’, and that
there could be significant differences between the total sentence and the
non-parole period imposed.[15]
Information to that effect is included in the Explanatory Memorandum for this
Bill, but not in the actual provisions.[16]
In its report on this Bill, the PJCHR reiterated its recommendation that the
provisions themselves be amended so the scope of discretion available to judges
is clear on the face of the legislation.[17]
The Minister for Justice noted this recommendation but indicated it would not
be taken up by the Government.[18]
Amendments to the Anti-Money
Laundering and Counter-Terrorism Funding Act 2006 (Schedule 10)
The Bill reduces the scope of the privilege against
self-incrimination where certain information and documents are required to be
provided under the AML/CTF Act. The PJCHR considered the statement
of compatibility failed to identify a legitimate objective for this change. It
sought the advice of the Minister for Justice on the objective, the connection
between the proposed limitations on the rights to a fair trial and fair hearing
and that objective, and whether those limitations are a reasonable and
proportionate means of achieving the objective.[19]
On receiving the Minister’s advice, the PJCHR was satisfied that the measure
was compatible with the right to a fair trial.[20]
Schedule 6 would introduce mandatory minimum
penalties for firearms trafficking offences.
The ALP, with the support of Greens Senators, Liberal
Democrats Senator David Leyonhjelm and Independent Senator Nick Xenophon, was
successful in passing amendments in the Senate to remove identical provisions from
an earlier Government Bill.[21]
The ALP and the Greens remain opposed to the measure and both recommended the
provisions be removed from the Bill in reports dissenting from the majority
Senate Legal and Constitutional Affairs Legislation Committee report on the
Bill.[22]
Palmer United Party Senators, Senator Muir of the
Australian Motoring Enthusiasts Party and Senator Day of the Family First Party
supported the mandatory sentencing provisions in the earlier Bill.[23]
As noted in the ‘Committee consideration’ section of this
Digest, the Greens also recommended Schedules 1, 5, 7,
9 and 10 be removed from the Bill and subject to further
consultation.
This section briefly highlights the positions of
stakeholders on aspects of the Bill. The measures, and concepts relevant to
understanding them, are explained in the analysis of schedules beginning on page ten
of this Digest.
Mandatory minimum sentences for
firearms trafficking
This measure, in Schedule 6 of the Bill, is
opposed by:
- the
Law Council of Australia (LCA)[24]
- the
Law Society of New South Wales[25]
- the
Australian Human Rights Commission (AHRC)[26]
- Australian
Lawyers for Human Rights (ALHR)[27]
and
- Liberty
Victoria.[28]
These organisations oppose this measure, and mandatory
sentencing in general, on several grounds. First, it does not achieve the
stated aim of deterrence. Second, that it can produce inconsistent and
disproportionate outcomes. Third, it may breach Australia’s obligations under
international human rights instruments to which it is a party.[29]
The LCA and the Law Society of NSW also made submissions
opposing this measure when it was included in a 2014 Bill.[30]
The LCA notes that that some of the ‘alternative recommendations’ in its
submission on the 2014 Bill (if its recommendation to drop the measure was not
taken up), which were endorsed by the Senate Legal and Constitutional Affairs
Legislation Committee, are reflected in the Explanatory Memorandum, mitigating
some of its concerns. However, it remains opposed to the measure and considers
it continues to risk undermining community confidence in the judiciary and the
criminal justice system more broadly.[31]
The Sporting Shooters Association of Australia ‘cautiously
welcomes’ this measure and states ‘[i]f the amendments ... deter or aid in
stemming the illicit firearms market’ it supports them.[32]
Amendments to serious drug offences
The LCA, ALHR, Liberty Victoria and the Australian Drug
Law Reform Initiative (ADLaRI; based at the University of New South Wales
School of Law) raised concerns about aspects of amendments to serious drug
offences in Schedule 1 of the Bill.[33]
All objected to the proposed modification of the general rules of attempt in
relation to an element of those offences. All but ALHR also took issue with the
proposed removal of the ‘intent to manufacture’ element of the border
controlled precursor offences. Further detail is provided separately
in the analysis of Schedule 1.
ADLaRI considers that the term ‘knowingly concerned’,
proposed as an additional form of secondary criminal liability, may be too
broad to be appropriate for defining criminal responsibility.[34]
ADLaRI referred to the comments of the Model Criminal Code Officers Committee
(MCCOC), that the term was ‘too open ended and uncertain for a general
provision in a model code’.[35]
ADLaRI proposed alternative prosecutorial approaches to the situations noted in
the Explanatory Memorandum for this Bill, using the existing forms of extended
liability provided in the Criminal Code.[36]
The LCA and other rights and law groups have also expressed similar criticisms
of the changes proposed by Schedule 5.[37]
The Australian Securities and Investments Commission (ASIC)
supports the introduction of the term ‘knowingly concerned’. ASIC considers
that the term will provide clarity in this area of criminal law, will be more
adaptable to circumstances than the words currently in the Criminal Code,
and has been interpreted in a straightforward manner by Australian courts.[38]
The LCA has raised concerns with the proposed amendments in Schedule
7 to sections 19AB and 19AC of the Crimes Act relating to non-parole
periods and recognizance release orders permitting release on certain
conditions such as good behaviour. The amendments would remove the ability to
make a recognizance release order, and require the court to fix a non-parole
period, in relation to sentences exceeding three years imprisonment.[39] This is stated
by the LCA to be a restraint on the exercise of judicial discretion, removing
the ability to consider the individual circumstances of the case. It further
notes that:
The nature of a non-parole period order and a recognizance
release order are fundamentally different in an important respect. The former
is one pre-condition to release, that the release decision subsequently being
made by a different decision maker based on different factors and subject to
limited methods of review. In contrast, the recognizance release order, while
still imposing conditions on release, is an immediate sentencing solution
decided by the sentencing judge as appropriate having regard to all the
circumstances and evidence at the time of sentencing.[40]
The LCA has recommended that these proposed amendments be
removed from the Bill.[41]
Liberty Victoria raised similar concerns regarding these
proposed amendments, also noting that the proposed increase in decision making
at parole will require additional resources.[42]
The Directors of Public Prosecutions (DPPs) in NSW and
Victoria have both expressed concerns that the proposed measures in Schedule
9 may result in requests for information that could conflict with state
laws relating to privacy and information sharing.[43]
Both DPPs also noted that proposed subsections 20BZA(4) and (5) will
provide that the request must be complied with ‘despite any other law of the
Commonwealth, a State or a Territory’. Further detail is provided separately in
the analysis of Schedule 9.
Amendments to the Anti-Money
Laundering and Counter-Terrorism Funding Act
The AHRC has questioned the need for an amendment to the AML/CTF
Act to expand the range of proceedings in which self-incriminating material
provided in certain information and documents may be used in evidence, and
whether the measure is reasonable and proportionate to address that aim.[44]
Amendments to the forced marriage
offences
The LCA, AHRC, ALHR, Library Victoria and Anti-Slavery
Australia support the amendments to the Criminal Code that would expand
the definition of forced marriage and increase the penalties for forced
marriage offences.[45]
However, Liberty Victoria qualifies this support, raising
concerns about placing a reverse burden of proof on an accused person with
regard to the forced marriage offences.[46]
While not directly relevant to the Bill, the LCA also
recommends that these amendments should be accompanied by awareness raising
education in the community, and that consideration be given to the framing of
sexual and other offences that may accompany an offence of forced marriage and
criminalising the procuring of an underage marriage.[47]
The Bill does not have any direct financial implications.
The Explanatory Memorandum states that Schedule 14 of the Bill
(amendments to the POC Act) will ‘improve the Commonwealth’s ability to
manage confiscated proceeds of crime’.[48]
In its submission to the inquiry into the 2014 Bill,
the NSW DPP raised concerns about the potential impact of mandatory sentencing
for firearms offences on NSW court and prosecutorial resources.[49]
Its submission on this Bill states that it remains opposed to the measure on
those grounds.[50]
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[51]
However, as noted in the ‘Committee consideration’ section above, the PJCHR
recommended an amendment to Schedule 6 of the Bill and requested further
information from the Minister for Justice on an amendment in Schedule 10.
Part 9.1 of the Criminal Code contains a range
of drug related offences, including trafficking, selling, import and export.
The offences cover controlled and border controlled drugs, precursors and
plants. [52] Part 2.4
of the Criminal Code provides for several extensions of criminal
responsibility that apply to Commonwealth offences, including that of attempt.
Under section 11.1, a person who attempts to commit an offence is guilty
of the offence of attempt.
Schedule 1 of the Bill will make two main
amendments to Part 9.1 of the Criminal Code to make those offences
simpler to prosecute, in response to difficulties identified by the
Commonwealth Director of Public Prosecutions (CDPP).
Attempted offences
To establish an offence against Part 9.1, the
prosecution must prove (among other matters) that the defendant was reckless
as to whether the relevant substance was a controlled or border controlled drug
or precursor, or that the relevant plant was a controlled or border controlled
plant. However, under general rules that apply to prosecution of attempted
offences under subsection 11.1(3) of the Criminal Code, in order to
establish an attempted offence against section 11.1 and Part 9.1 of
the Criminal Code, the prosecution must instead prove intent
(awareness) or knowledge (belief) in relation to that circumstance. The
Explanatory Memorandum states that both criminal methodologies and particular
law enforcement methodologies (in particular, controlled operations, which are
used regularly in drug investigations[53])
have made that threshold difficult or impossible for the CDPP to meet.[54]
Item 2 of Schedule 1 will insert proposed
section 300.6 into the Criminal Code. The amendment will modify the
application of the general rule for establishing an attempted offence (set out
in subsection 11.1(3) of the Criminal Code) to the drug offences in
Part 9.1. It will mean that the prosecution will only need to prove a
defendant was reckless as to whether the relevant substance was a
controlled or border controlled drug or precursor, or that the relevant plant
was a controlled or border controlled plant (as opposed to being aware
or holding a belief that it was).
Stakeholder concerns
As noted above, the LCA, ALHR, Liberty Victoria and ADLaRI
are opposed to this amendment. Most point out that the requirement to prove
intent or knowledge for all physical elements of an attempted offence is
intended to balance the fact that a person is being held liable for an offence
despite not having completed all of the relevant physical elements.[55]
The LCA and Liberty Victoria also point out that the
possibility of applying the fault element of recklessness to attempted offences
was considered and rejected through a comprehensive national consultation
process undertaken by the Model Criminal Code Officers Committee.[56]
Further, those submitters point to case law that may indicate courts are
prepared to determine intent through inferential reasoning, indicating the
proposed amendment may not be necessary.[57]
Import and export of border
controlled precursors
Precursors are substances that can be used in the
manufacture of drugs (a well-known example is the use of pseudoephedrine to
manufacture methamphetamine).[58]
The Explanatory Memorandum states that increased domestic
controls aimed at preventing diversion of amphetamine-type stimulants (ATS)
precursor chemicals from legitimate sources within Australia have reduced local
availability, meaning criminal groups have turned increasingly to direct
importation.[59]
It points to the increasing number of ATS precursor detections at the
Australian border, the increasing number of clandestine laboratories detected (most
of which manufacture ATS[60]),
and the increasing proportion of laboratories that can be categorised as
industrial scale, as evidence of this trend.[61]
It should be acknowledged that these measures are indirect and may to some
extent reflect improved detection as much as increased criminal activity. Further,
while the figures remain higher than most previous years, the weight of ATS
precursor detections decreased from 2011–12 (1,747.85 kilograms) to 2012–13 (1,701
kilograms), and again, to 1,505.24 kilograms, in
2013–14.[62]
Subdivision D of Division 307 of the Criminal
Code contains offences for importing and exporting border controlled
precursors, with maximum penalties of seven to 25 years imprisonment,
depending on the quantity involved.
To establish an offence against Subdivision D, the
prosecution must currently prove that the person who imported or exported the
substance either intended to use it to manufacture a controlled drug, or
believed that someone else had such an intention (‘intent to manufacture’
element). Presumptions intended to assist the prosecution are included in
section 307.14. Specific defences exist for offences relating to less than
commercial quantities (sections 307.12 and 307.13). The Explanatory
Memorandum states that despite these inclusions, the offences and accompanying
presumption have not functioned as intended, with difficulties arising
particularly where defendants are part of a larger operation where the
information held by each individual is deliberately limited, and in cases
involving extensions of criminal liability.[63]
Items 3 and 5 of Schedule 1
will repeal paragraphs 307.11(1)(b), 307.12(1)(b) and 307.13(1)(b) to remove
the intent to manufacture element of the offences for import and export of
border controlled precursors. Items 4, 6 and 7
will repeal the associated defences and presumptions. The prosecution will
still need to prove:
- the
person imported or exported a substance (to which the fault element of
intention applies)
- the
substance was a border controlled precursor (to which the fault element of recklessness
applies) and
- for
an offence against section 307.11 or 307.12, that the quantity of the
substance was a commercial or marketable quantity respectively (to which
absolute liability applies).[64]
While the specific defences relating to intent to
manufacture will be repealed, defendants will still have access to the general
defences in Part 2.3 of the Criminal Code, of which the defence of
lawful authority (section 10.5) would be relevant if a person has
authorisation to import or export the substance for a legitimate purpose.[65]
Stakeholder concerns
The LCA, Liberty Victoria and ADLaRI do not support these
amendments.
Liberty Victoria points to the substantial maximum penalties
for these offences and considers that where a person cannot be shown to have
knowledge or intent, the more appropriate course of action would be to pursue
possession charges under state laws.[66]
The LCA and ADLaRI acknowledge the difficulties associated
with the current provisions, but propose alternative amendments. The LCA notes
that one of the difficulties identified in the Explanatory Memorandum is that
the presumptions in section 307.14 of the Criminal Code cannot be relied
on when prosecuting an offence involving an extension of criminal liability
(such as attempt).[67]
It suggests that instead of the proposed amendments, a different amendment be
considered that would make those presumptions available in such circumstances.[68]
ADLaRI suggests the alternative of expanding the ‘intent to manufacture’
element to include intent to sell or supply the precursor.[69]
Related issue—consistency of
serious drug offences
The intent to manufacture element and accompanying
presumption and defences currently used for the offences for importing and
exporting border controlled precursors are similar to the approach in several
other offences in Part 9.1 of the Criminal Code. For example:
- offences
in Division 305 for commercial manufacture of controlled drugs only apply
where the defendant manufactures a substance with the intention of selling any
of it, or believing another person intends to sell any of it and
- some
offences in Subdivision A of Division 307 for import and export of
border controlled drugs and plants include exceptions that apply if the
defendant can prove that he or she neither intended, nor believed that another
person intended, to sell any of the drug or plant in question.[70]
The Explanatory Memorandum does not explain why the intent
or belief element is problematic in the context of the offences for import and
export of border controlled precursors, but not in the context of other
offences in Part 9.1. It is unclear if, and if so why, the difficulty is
unique to the offences the Bill will amend.
Australia ratified the Organisation for Economic
Cooperation and Development (OECD) Convention on Combating Bribery of
Foreign Officials in International Business Transactions (Anti-Bribery
Convention) in 1999.[71]
It introduced Division 70 of the Criminal Code, which implements
the key obligation of criminalising bribery of foreign public officials, the
same year.[72]
The OECD Working Group on Bribery completed its third assessment of Australia’s
implementation of the Anti-Bribery Convention in 2012. While welcoming some
positive efforts, the Working Group expressed ‘serious concerns that overall
enforcement of the foreign bribery offence to date has been extremely low’.[73]
It went on to make 33 recommendations and identify an additional 11 issues for
follow‑up.[74]
While some related to the legislative framework, the main focus of the recommendations
was on improvements relating to Australia’s enforcement of that framework.
One of the recommendations for legislative change will be
addressed by Schedule 2 of the Bill. The Government’s written follow-up to
the Working Group’s report, published in April 2015, outlines its proposed
response to the other legislative recommendations and steps taken to progress
recommendations about enforcement.[75]
One of the matters that must be proven to establish an
offence of bribing a public official under section 70.2 of the Criminal
Code is that the defendant intended to influence a foreign public official
in order to obtain or retain business, or an illegitimate business advantage.[76]
Item 1 of Schedule 2 will repeal and replace
subsection 70.2(1A) to clarify that it is not necessary for the defendant
to have intended to influence a particular foreign public official for
the offence to apply, implementing recommendation 2(b) of the Working
Group’s report.
Subdivision F of Division 268 of the Criminal Code
relates to war crimes that are serious violations of Article 3, which is common
to the four Geneva Conventions, and that are committed in the course of a
non-international armed conflict (NIAC). Section 268.74 creates offences for ‘outrages
upon personal dignity’ such as severely humiliating, degrading or otherwise
violating the dignity of persons who are not taking an active part in the
hostilities. It also creates an offence for similar conduct towards the body of
a person, although this offence is currently limited to the body of a person
who was not actively involved in the conflict before their death.
The Explanatory Memorandum states that the distinction
between persons alive or dead may create difficulties for the prosecution in
proving the sequence of the offence and the victim’s death. Furthermore, any
distinction between alive or dead victims is irrelevant in the context of
offences against persons who were not taking part in hostilities at the time of
the offence.[77]
Item 1 of Schedule 3 proposes amendments
to paragraph 268.74(1)(a) that will clarify that the offence in that subsection
applies to victims who are alive or dead. Item 2 will repeal subsections
268.74(2) and (3) and insert proposed subsection 268.74(2) to clarify
that references to persons not taking an active part in hostilities includes
persons who are dead. These amendments would make it irrelevant, for the
purposes of the offence, whether or not the victim was participating in the
hostilities prior to their death.
Extending the protections of dignified treatment for
non-combatants to the dead is consistent with Australia’s obligations under the Additional
Protocol II to the Geneva Conventions 1949 and Rule 113 of customary
international humanitarian law, relating to Treatment of the Dead.[78]
In 2013, the then Labor Government introduced offences
into the Criminal Code criminalising forced marriage.[79]
The specific criminalisation of forced marriage followed the release of a government
discussion paper in 2010 that considered how the law could respond to forced
and servile marriage within Australia, or to cases where Australian citizens
and residents face forced marriage abroad.[80]
Under section 270.7A in the Criminal Code, a marriage
is a forced marriage if, because of the use of coercion, threat or deception,
one party to the marriage (the victim) entered into the marriage without freely
and fully consenting. This definition incorporates a broad definition of
‘coercion’ which states that coercion can include force, duress, detention,
psychological oppression, abuse of power, and taking advantage of a person’s
vulnerability (section 270.1A). ‘Marriage’ is also defined
broadly to include registered relationships; marriages and registered
relationships of foreign countries; and marriages or marriage-like
relationships that are void, invalid or not recognised by law (subsection 270.7A(2)).
Section 270.7B creates two offences of forced marriage: The
first offence is causing a person to enter into a forced marriage. The second
offence is that of being a party to a forced marriage which targets the conduct
of a person who remains in a marriage to a victim of a forced marriage.
Schedule 4 of the Bill contains amendments to these
two provisions.
Item 1 will amend section 270.7A to expand
the definition of forced marriage. A marriage is a forced marriage if one party
to the marriage (the victim) entered into the marriage without freely and fully
consenting;
- because
of the use of coercion, threat or deception or
- because
the victim is incapable of understanding the nature and effect of a marriage
ceremony.
The Explanatory Memorandum states that this amendment (proposed
paragraph 270.7A(1)(b)) will make clear that the forced marriage offences
apply where a person cannot give their free and full consent to marry,
including for reasons such as age or mental capacity.[81]
The Government’s rationale for broadening the definition
of forced marriage is that, since forced marriage was criminalised in 2013, referrals
to the Australian Federal Police (AFP) have included matters of
children aged as young as 12 who purported to ‘consent’ to a marriage.[82]
The Explanatory Memorandum also states that anecdotal evidence from other
jurisdictions suggests that people with intellectual disabilities may be forced
into marriages they do not have the capacity to consent to, including as a
means of securing care arrangements.[83]
Item 3, which will insert proposed subsection
270.7A(4), is a related amendment. It will provide that for the purposes of
proving a forced marriage offence (or any of the slavery-like offences under
Divisions 270 and 271[84]),
a person under 16 is presumed, unless the contrary is proven, to be not capable
of understanding the nature and effect of a marriage ceremony. The defendant
would bear the legal burden of proving the contrary on the balance of
probabilities. Generally, where a burden of proof is placed on a defendant it
is an evidential burden only.[85]
An evidential burden requires the defendant to adduce or point to evidence that
suggests a reasonable possibility that the matter either does exist or does not
exist. If the defendant discharges an evidential burden, the prosecution must
then disprove the relevant matters beyond reasonable doubt. A legal burden (the
burden of proving the existence of the matter) requires a higher standard of
proof and the Code provides that a defendant will have a legal burden of
proof only if the law creating the offence so provides.[86]
The Explanatory Memorandum provides reasons why a legal burden rather than the
more usual evidential burden is imposed.[87]
As noted earlier in this Digest, the Senate Scrutiny of
Bills Committee raised questions regarding item 3, and in particular
queried why in this case—where the onus of proof is reversed—there is a need
for the imposition of a legal burden on a defendant rather than the lower
threshold evidential burden.
In the Committee’s view applying a legal burden to
displace a presumption should only be imposed in rare instances, and must be
thoroughly justified and address the relevant principles contained in the Guide
to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers.[88]
The Committee acknowledged the gravity of the conduct that
this provision is seeking to address. However, it sought the Minister’s more
detailed explanation as to why an evidential burden is considered insufficient
in this case. As the Committee noted, the only justification provided in the
Explanatory Memorandum is that this lower threshold ‘might easily be discharged
if the defendant adduced evidence that, for example, the child had been
sexually active in the past or was otherwise mature for his or her age’. The
Committee expressed interest in whether this has actually occurred and in any
other considerations relevant to the imposition of a legal burden.[89]
The Minister in response has given reasons why in his view
the proposed imposition of a legal burden on the defendant in forced marriage
matters involving children under the age of 16 is appropriate and in accordance
with the principles set out in the Guide to Framing Commonwealth Offences,
Infringement Notices and Enforcement Power. He states:
Operational evidence has shown that forced marriage matters
are likely to involve not only the spouse but also the family and community of
the alleged victim, who would have peculiar knowledge of the child's relative
maturity, personality, education and understanding. If only an evidential
burden were imposed, the defendant or defendants would need only to point to
evidence which suggested a reasonable possibility that the child was capable
of understanding the nature and effect of a marriage ceremony, in order to
discharge the burden. Evidence of the child's apparent maturity would be
readily and easily available to the defendant or defendants. Once an evidential
burden was discharged, the burden would then shift back to the prosecution to
rebut the evidence beyond reasonable doubt. Where the child's family and
community were involved, and the child purported to have consented, the
prosecution would not have a witness with personal knowledge of the child,
making it extremely difficult to prove, beyond reasonable doubt, that the child
was incapable of understanding the nature and effect of a marriage ceremony. [90]
The Minister cites a particular example of a 12 year old
girl married to a 26 year old man where the Commonwealth Director of Public
Prosecutions decided not to prosecute the matter as there were no reasonable
prospects of success for the very reasons set out above.[91]
The Committee, while remaining concerned generally about a
legal burden, accepted the Minister’s response, requesting also that the
additional information provided be included in the Explanatory Memorandum.[92]
Items 4-6 will amend section 270.7B to
increase the penalties for the forced marriage offences. Under the current
provisions, a forced marriage offence carries a maximum penalty of four years
imprisonment for a base offence and a maximum of seven years imprisonment for
an aggravated offence. The penalties will be increased to seven years and
nine years respectively, the rationale being to align the penalties for forced
marriage offences with those for the serious slavery-related offence of
deceptive recruiting for labour and services in section 270.7.[93]
The amendments proposed under Schedule 5 would add
being ‘knowingly concerned in’ the commission of an offence to the forms of
secondary liability listed in section 11.2 of the Criminal Code. Secondary
liability applies to persons who were not directly involved in the commission
of an offence, but who were nevertheless responsible in some way. The forms of
secondary liability currently listed in the Criminal Code are aiding,
abetting, counselling or procuring the commission of an offence by another
person.[94]
These amendments will increase options for prosecutors where
cases do not fit easily within the existing classes of extended criminal
responsibility.
As noted in the Explanatory Memorandum, the concept of ‘knowingly
concerned’ was previously included in then-section 5(1) of the Crimes Act.[95]
The Gibbs Committee, in the 1990 report Principles of Criminal
Responsibility and Other Matters, found that the ‘knowingly concerned’
concept in the Crimes Act had the merit of ensuring that
circumstances amounting to knowing involvement in an offence, but not amounting
to participation as a principal or as an aider, abetter, counsellor or
procurer, would nevertheless fall within the reach of that provision.[96]
The term ‘knowingly concerned’ was not transferred across to
the Criminal Code, following the Model Criminal Code Officers
Committee’s (MCCOC) determination that it would ‘add little’ to the already
sufficient scope of the terms ‘aid, abet, counsel or procure’. In contrast to
the Gibbs Committee, the MCCOC considered that the broader scope of the term
may be less clear than would be appropriate for application to criminal
offences.[97]
The CDPP has stated that the absence of the term ‘knowingly
concerned’ as a prosecuting option is a significant impediment to the
prosecution of certain offenders, such as key organisers of criminal
activities, and has rendered certain prosecutions more complex and less
certain.[98]
The absence of a ‘knowingly concerned’ extension of criminal
liability in Commonwealth legislation was criticised by Justice Weinberg
of the New South Wales Court of Criminal Appeal in
Campbell v R [2008] NSWCCA 214, noting:
‘the decision to omit the phrase ‘knowingly concerned’ from
the various forms of complicity available under federal criminal law...appears to
me to have left a lacuna in the law that was certainly never intended.’[99]
Justice Weinberg also stated:
The Gibbs Committee had the acuity and foresight to observe
that these words had the merit of ensuring that circumstances amounting to
knowing involvement in an offence, which did not amount to participation as a
principal and to which the expressions ‘aid, abet, counsel or procure’ (or
whatever equivalents were used) were not obviously apt, would nevertheless fall
within the reach of the provision.[100]
Following the decision in Campbell v R, the
definition of ‘import’ for the purposes of the serious drug offences in
Part 9.1 of the Criminal Code (in section 300.2) was amended
in 2010 to include both:
(a) bring the substance into Australia, and
(b) deal with the substance in connection with its
importation.[101]
The Explanatory Memorandum for the 2010 amendment described
the need for an expansion of the scope of the drug offences as follows:
This amendment extends the definition of import to bring the
current drug importation offences into line with earlier drug importation
offences. The amendment reverses any inadvertent narrowing of the provisions
that occurred when the previous drug offences in the Customs Act 1901
were replaced by new drug offences inserted into Division 300 of the Criminal
Code Act 1995 through the Law and Justice Legislation Amendment (Serious
Drug Offences and Other Measures) Act 2005 (Cth).[102]
In contrast to the 2010 amendments, the proposed amendments in
Schedule 5, make amendments to the extensions of criminal liability in
‘Chapter 2 - General principles of criminal responsibility’, and so will apply
to all offences in the Criminal Code, not just those of importation.
The Australian Capital Territory amended its Criminal
Code 2002 in 2010 to include the concept of ‘knowingly concerned’ in an equivalent
provision dealing with complicity and common purpose, section 45.[103]
This provision has been successfully relied upon to charge offenders since its
introduction.[104]
The term ‘knowingly concerned’ also occurs in many existing provisions in
Commonwealth, state and territory legislation.[105]
As noted earlier in this Digest, several human rights and
law bodies are opposed to this measure, and agree with the comment made by the
MCCOC that the term may be too broad for general use in criminal offences. In a
dissenting report to the majority Senate Legal and Constitutional Affairs
Legislation Committee report on the Bill, ALP Committee members shared these
concerns and recommended that Schedule 5 be removed.[106]
This is also one of several Schedules the Greens recommended be removed from
the Bill and subject to further consultation.[107]
Schedule 6 of the Bill will introduce mandatory
minimum penalties of five years imprisonment for firearms trafficking offences.
Background
The former ALP Government introduced amendments to
Commonwealth firearms trafficking offences in 2012, following an agreement on
combating firearms crime reached by Commonwealth, state and territory ministers
in June 2012.[108]
The Bill lapsed ahead of the 2013 Federal election. The relevant Bills Digest
contains background on the agreement, offences as they existed then, and the
number and sources of illicit firearms in Australia.[109]
In July 2014, the Government introduced the Crimes
Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014 to
amend the Commonwealth firearms trafficking offences.[110]
As outlined in the relevant Bills Digest, most of the amendments were the same
or similar to those included in the 2012 ALP Bill.[111]
Both included amendments to expand the offences to cover firearms parts as well
as whole firearms and introduce new offences for international firearms
trafficking. The key difference was that:
-
the 2012 Bill had sought to establish two sets of offences (basic
offences, with maximum penalties of ten years imprisonment, and aggravated
offences (based around the number of firearms/firearm parts involved) with
maximum penalties of life imprisonment) and
-
the 2014 Bill sought to establish a single set of offences, with
maximum penalties of ten years imprisonment, but introduce mandatory
minimum penalties of five years imprisonment (as committed to in The
Coalition’s policy to tackle crime[112]).
The Senate Legal and Constitutional Affairs Legislation
Committee considered the 2014 Bill and reported in September 2014.[113]
The majority of the Committee, chaired by Senator Ian Macdonald, did not
recommend any changes to the firearms amendments, but did recommend some
amendments to the Explanatory Memorandum:
... to make clear that it is intended that: sentencing
discretion should be left unaffected in respect of the non-parole period; in
appropriate cases there may be significant differences between the non-parole
period and the head sentence; and that the mandatory minimum is not intended to
be used as a sentencing guidepost (where the minimum penalty is appropriate for
'the least serious category of offending').[114]
Information to that effect is included in the Explanatory
Memorandum for this Bill.[115]
ALP Senators (in additional comments) and the Greens (in a
dissenting report) recommended the provisions introducing mandatory minimum
sentences be removed from the 2014 Bill, with the ALP recommending they be
replaced with aggravated forms of the firearms offences modelled on those
included in its Crimes Legislation Amendment (Organised Crime and Other
Measures) Bill 2012.[116]
Both parties have made the same recommendations in dissenting reports to the
majority Senate Legal and Constitutional Affairs Legislation Committee report
on this Bill.[117]
When the 2014 Bill reached the Senate, Opposition
amendments to remove the provisions that would have introduced mandatory
minimum sentences were passed with the support of Greens Senators, Senator
Xenophon and Senator Leyonhjelm.[118]
The Bill as amended was passed by the Parliament on 23 February 2015.[119]
The Act received Royal Assent on 5 March 2015 and the firearms
amendments commenced the following day.[120]
Provisions
Divisions 360 and 361 of the Criminal Code
contain offences for firearms trafficking across state borders and across the
Australian border respectively. The offences carry maximum penalties of
ten years imprisonment, 2,500 penalty units, or both.[121]
Item 1 of Schedule 6 will insert proposed
section 360.3A into the Criminal Code to require a court to
impose a sentence of imprisonment of at least five years on a person convicted
of an offence relating to domestic firearms trafficking, unless it can be
established on the balance of probabilities that the person was
under 18 years of age when the offence was committed. Item 2
will insert proposed section 361.5, an equivalent provision for
international firearms trafficking.
Issue – mandatory minimum penalties
The Explanatory Memorandum notes that this amendment would
implement an election commitment and justifies the measure with reference to
the ‘clear and serious social and systemic harms associated with firearms
trafficking’:
The entry of even a small number of illegal firearms into the
Australian community can have a significant impact on the size of the illicit market,
and, due to the imperishable nature of firearms, a firearm can remain within
that market for many years. This provides a growing pool of firearms which can
be accessed by groups who would use them to commit serious and violent crimes,
such as murder. For example, in 2012, firearms were identified as being the
type of weapon used in 25% of homicides in Australia (Australian crime: Facts
and figures 2013, Australian Institute of Criminology).[122]
While the Explanatory Memorandum points to evidence of the
harms associated with illicit firearms, it does not provide evidence that
mandatory minimum penalties are an effective response to those harms.
Mandatory minimum penalties have rarely been applied to
Commonwealth offences and when they have been used,[123]
they have attracted criticism.[124]
The Guide to Framing Commonwealth Offences, Infringement Notices and
Enforcement Powers advises against fixed and minimum penalties for several
reasons, including that they:
- interfere
with judicial discretion to impose a penalty appropriate to all the
circumstances of a particular case
- can
‘create an incentive for defendants to fight charges, even where there is
little merit in doing so’
- preclude
the imposition of alternative sanctions such as community service orders that
would otherwise be available under Part IB of the Crimes Act and
- may
encourage the judiciary to look for technical grounds to avoid the restriction
on sentencing discretion, leading to anomalous decisions.[125]
Similar arguments have been made by the LCA, AHRC, ALHR,
the Law Society of NSW and Liberty Victoria in their submissions to the inquiry
into this Bill, and in submissions to the inquiry that examined the 2014 Bill,
including legal organisations and the Tasmanian ODPP.[126]
The LCA and the Law Society of NSW were among those who made submissions
opposing this measure when it was included in the 2014 Bill.[127]
The LCA notes that that some of the ‘alternative recommendations’ in its
submission on the 2014 Bill (if its recommendation to drop the measure was not
taken up), which were endorsed by the Senate Legal and Constitutional Affairs
Legislation Committee, are reflected in the Explanatory Memorandum, mitigating
some of its concerns. However, it remains opposed to the measure and considers
it continues to risk undermining community confidence in the judiciary and the
criminal justice system more broadly.[128]
Some organisations and commentators have also questioned
the actual deterrent value of mandatory minimum sentences. John Coyne, a Senior
Analyst at the Australian Strategic Policy Institute and former AFP officer, argues
that this measure ‘sends a strong message about government’s
commitment but won’t deliver the desired results’.[129] He suggests that the
Government’s objectives can be more effectively achieved through measures
targeted at increasing the likelihood of offenders being caught (such as the
National Border Targeting Centre[130])
instead of increasing the penalties that apply to those who are.[131]
A media release issued by the Minister for Justice when
the Bill was introduced further states ‘[t]hese measures also reflect the
Australian Government’s commitment to act quickly to implement the
firearms-related recommendations from the joint Commonwealth‑NSW Review
into the Martin Place Siege’. [132]
The report on that review was finalised in January 2015 (before amendments
to the 2014 Bill were moved in the Senate), and released on
22 February 2015. It included four recommendations relating to
firearms, none of which related specifically to offences or penalties:
6. The Commonwealth, States and Territories should simplify
the regulation of the legal firearms market through an update of the technical
elements of the National Firearms Agreement.
7. CrimTrac, in cooperation with Commonwealth and State
Police and law enforcement agencies should prioritise bringing the National
Firearms Interface into operation by the end of 2015.
8. States and Territories’ police forces should conduct an
urgent audit of their firearms data holdings before the National Firearms
Interface is operational where this has not already occurred.
9. The Commonwealth and the States and Territories should
give further consideration to measures to deal with illegal firearms.[133]
However, the report noted the reforms in the 2014 Bill
(including but not limited to introduction of mandatory sentencing) and stated that
its passage ‘would strengthen the Commonwealth’s ability to tackle illegal
trafficking of firearms and firearm parts into and out of Australia’.[134]
Schedule 7 will introduce amendments to provisions about
sentencing, imprisonment and release of federal offenders in Part IB of
the Crimes Act relating to:
- general
deterrence
- remissions
and reductions in sentence
- non-parole
periods and recognizance release orders
- rectifications
of errors in sentencing orders
- parole
- the
effect of state and territory sentences on parole orders
- early
release on parole
- amendments
of parole orders and licences
- conditional
release and
- alternative
sentencing options.
The Schedule will also introduce a consequential amendment
to clause 1 of the Schedule of the Commonwealth Places (Application of Laws)
Act 1970 to remove a reference to section 21E of the Crimes Act, a
section which would be repealed under this Schedule.
The amendments address a number of provisions that the
Explanatory Memorandum identifies as containing anomalies or requiring further
clarification. The Explanatory Memorandum claims that the provisions in their
current form have created a number of administrative and operational difficulties
for courts, the Attorney‑General’s Department and state and territory
agencies.
Section 16A of the Crimes Act sets out the matters
that a court must consider when imposing sentence on a federal offender,
including the nature and circumstances of the offence; the personal
circumstances of any victim; the impact of the offence on the victim and the character,
antecedents, age, means and physical or mental condition of the offender.[135]
Proposed paragraph 16A(2)(ja), at item 1 of Schedule 7, will add
‘general deterrence’ as a matter to be considered by the courts when passing
sentence on federal offenders. This will add the new consideration of ‘the
deterrent effect that any sentence or order under consideration may have on
other persons’ to the existing list of considerations which include, at
paragraph 16A(2)(j), the deterrent effect on the actual offender. The
Explanatory Memorandum states that the lack of general deterrence as a
sentencing factor has caused judicial concern, and that the factor is included
in state and territory legislation.[136]
Under the legislation as it stands, courts have applied the general principles
of sentencing law to read in general deterrence, despite its absence from
paragraph 16A(2)(j).[137]
The amendment proposed by item 1 of Schedule 7 would codify this
approach.
Item 2 is an application provision that will provide
that the amendment made by item 1 would also apply to sentence determinations
made in respect of persons convicted before the commencement of the item.
Section 19AA of the Crimes Act sets out how state and
territory laws relating to remission or reduction of sentences apply to federal
sentences. Subsection 19AA(1) currently provides that a law that provides for
the remission or reduction of state or territory sentence applies in the same
way to the remission or reduction of a federal sentence being served in that state
or territory, but that this does not apply to the remission or reduction of non-parole
periods or pre-release periods of imprisonment in respect of recognizance
release orders.
Item 8 will insert proposed subsections 19AA(1) and
(1A) to clarify the language of the existing subsection 19AA(1). This may
be necessary following the decision in Frost v R, which provided that the
application of Tasmania’s remission laws to federal prisoners was not impacted
by the exclusion in subsection 19AA(1).[138]
This meant that such a prisoner could be granted a remission that reduces the
pre‑release period on a recognizance release order. The Explanatory
Memorandum notes that this proposition is not in accordance with the
Commonwealth’s policy views about the remission of pre-release periods.[139]
The proposed subsections will ensure that it is clear that ‘strike
remissions’, provided under existing subsection 19AA(4), are the only types
of remissions available on federal non-parole and pre-release periods of
imprisonment. A remission is a reduction in the term of a sentence, and a
strike remission is a reduction to compensate for hardship experienced during
periods of industrial action in prisons. This amendment is designed to ensure
that state and territory courts cannot reduce the pre-release period on a
recognizance release order of federal prisoners in their jurisdictions, except
to compensate for strike action.
Item 10 will replace existing section 19AB with
proposed section 19AB. This change will remove a court’s ability to fix a
recognizance release order for federal sentences exceeding three years, and
require a non-parole period to be set in respect of that sentence. A recognizance
release order is an order that a court may issue to permit an offender to be
released, after a certain period, on conditions set by the court, such as being
of good behaviour and satisfying any other conditions which may be set, for a specified
period of time. If the offender satisfies the conditions of the order there will
be no further punishment. This is in contrast to a non-parole period, which
results in the person’s release after that period being discretionary and under
parole conditions which will be set by the Attorney-General’s Department. On
release on parole a person will be under the supervision of state or territory
parole authorities.
This change is intended to reflect the likely seriousness of
offences that attract such sentences and the consequent consideration that
parole, rather than recognizance release, would be a more appropriate form of
release.[140]
As noted above in the ‘Position of major interest groups’
section of this Digest, this amendment has been criticised as a restraint on the
exercise of judicial discretion, due to fact that it will impact on a sentencing
court’s ability to determine a sentence that it considers appropriate in the
individual circumstances of the case and will prevent the court from determining
release conditions at the time of sentencing. A further criticism is that this
amendment may require increased resources to consider the likely increase in
parole applications.
Section 19AC provides that where a federal offender receives
a sentence of imprisonment of three years or less, the court may only make a
recognizance release order, rather than impose a non-parole period. The court is
required to make such an order in relation to sentences of between six
months and three years duration, except if the court considers that this would
not be appropriate ‘having regard to the nature and circumstances of the
offence or offences concerned and to the antecedents of the person’ (subsection
19AC(4)). Item 12 will repeal and replace subsections 19AC(4) and (5) to
add to the circumstances in which a court is not required to make a
recognizance order. This is a technical amendment in recognition of
circumstances in which such an order would be of no practical effect because
the person is concurrently serving a state or territory prison sentence that
exceeds the federal sentence, and so cannot be released from prison at the end
of their federal sentence (or any earlier time proposed under a recognizance
release order).
Section 19AL of the Crimes Act deals with release of
federal offenders on parole. Subsection 19AL(1) requires the Attorney-General
to consider whether to release a federal offender on parole at the end of the
prisoner’s non‑parole period. Subsection 19AL(4) provides, however, that
the Attorney-General is not required to consider the release on parole of a
federal prisoner who is also serving a state or territory sentence if the state
or territory sentence will end after their entire federal sentence has been
served. If the federal offender is serving a federal life sentence and a state
or territory sentence, the Attorney-General is not required to consider the
prisoner’s release on federal parole until the person is eligible to be
released on the state or territory sentence.
Part 7 of Schedule 7 will repeal and replace
subsection 19AL(4) to clarify that the Attorney-General need not make a parole
order where that would be of no practical effect due to an ongoing state or
territory sentence, but must consider whether to make a federal parole order
before the offender is eligible for release on the state or territory sentence.
If the prisoner is eligible to be released on parole for the state or territory
sentence, the Attorney‑General must consider the person’s release on
federal parole before the end of their state or territory non-parole period.
Section 20AB of the Crimes Act allows courts to
impose certain alternative sentences on federal offenders, where those types of
sentences may be imposed on state or territory offenders. The types of
alternative sentences that may be imposed are those that are set out at
subsection 20AB(1), such as community service orders and periodic detention, or
sentences that are similar to the listed sentences orders, or are prescribed in
the regulations.[141]
Part 11 will repeal subsection 20AB(1) and substitute proposed
subsections 20AB(1) and 20AB(1AA). These provisions will expand the
range of state and territory alternative sentencing options listed in the Crimes
Act as being applicable to federal offenders, while retaining the ability
to prescribe additional types of alternative sentences and orders in the
regulations.
Schedule 8 will make minor amendments to the Transfer of
Prisoners Act 1983.[142]
This Act provides for the transfer of federal prisoners from a prison in one
state or territory to a prison in another state or territory. Such transfers
may be for prisoner welfare, or for purposes of a trial or security.
Item 3 of Schedule 8 will insert proposed
subsection 17(3A), which will allow prisoners to be delivered into the
custody of a state or territory escort at an authorised place. The existing
provisions of section 17 require prisoners to be delivered into the custody of
a superintendent or officer in charge, at a specified prison.
Items 2, 4 and 5 will make minor amendments to
sections 17 and 26 to specifically include ‘remand prisoners’ in
provisions of general application, alongside the existing references to
‘prisoners’.
Schedule 9 will insert proposed Division 9A into Part
IB of the Crimes Act to provide for the sharing of information relevant
to federal offenders between federal and state or territory authorities.[143]
Proposed section 20BZA will allow the Attorney-General or a
delegate to request or require a relevant person to provide information
relating to federal offenders. Proposed section 20BZB will permit the
Attorney-General’s Department to disclose federal offender information to a
relevant person.
The definition of relevant person will be contained in proposed
section 20BZ and will include employees of many federal law enforcement and
justice bodies, as well as employees of state and territory justice and parole
agencies, corrective services, courts or DPPs.
As noted in the ‘Position of major interest groups’ section
of this Digest, concerns have been raised by the DPPs in NSW and Victoria
regarding the scope of proposed Division 9A, in particular the proposed
power for the Commonwealth to require information to be provided, as soon as
practicable and despite any other law of the Commonwealth, a state or territory.[144]
Concerns include the possibility that notices requiring information under proposed
subsections 20BZA(4) and (5) may override state privacy laws, legal
professional privilege and non‑publication orders.
The Victorian DPP does not believe that Directors and
Offices of Public Prosecutions should be included in the definition of
‘relevant person’ in proposed section 20BZ, or if they remain in the
definition they should be subject to an exemption similar to that provided for
court registrars and officers under proposed subsection 20BZA(6), which
provides that courts are not required to provide information that relates to
proceedings that are still before the court.[145]
The Victorian DPP also noted:
- proposed
subsection 20BZA(5) may be broader than necessary to meet its objectives
relating to dealing with inconsistent laws and
- proposed
section 20BZA is ambiguous due to the provisions for both requests (written
or otherwise) and requirements. Requests should be in writing and ‘reasonable
belief’ should be clarified.[146]
The NSW DPP requested that the new provision should allow
‘each request (to) be considered on its merits, and that the form and content
of the information should be negotiable’.[147]
Section 167 of the Anti-Money Laundering and
Counter-Terrorism Financing Act 2006 (AML/CTF Act) provides
powers for authorised officers to require information and documents relevant to
the operation of the Act or associated regulations or rules.[148]
Section 169 abrogates the privilege against self-incrimination, but
provides that neither the information or documents, or the giving of the
information or document, is admissible in evidence against the person, except
in certain proceedings as listed in that provision. The prohibition on the use
of such information in proceedings against the person who provided it is known
as ‘use immunity’. Section 169 does not prohibit the use of that
information to obtain other information that may be used against the person, a
further protection known as ‘derivative use immunity’.
Item 3 of Schedule 10 will repeal
and replace paragraphs 169(2)(c) and (d) to broaden the proceedings
in which information obtained under section 167 may be used in evidence against
the person, thereby reducing the protection offered by the use immunity, as set
out below.
- Currently,
the only civil proceedings not covered by the use immunity are those under the Proceeds
of Crime Act that relate to the AML/CTF Act. Item 3
would allow self-incriminating evidence to also be used in evidence for civil
proceedings under the AML/CTF Act.
- Currently,
the only criminal proceedings not covered by the use immunity are those for
offences relating to non-compliance with the notice and provision of false or
misleading information or documents. Item 3 would allow
self-incriminating evidence to also be used in evidence for criminal
proceedings under the AML/CTF Act or an offence in the Criminal Code
that relates to the AML/CTF Act.
Lack of justification
The Explanatory Memorandum states that this further
abrogation of the privilege against self-incrimination is ‘precise and narrow
in scope’ and makes section 169 consistent with the approach to
self-incrimination under section 205 of the AML/CTF Act, thereby
achieving ‘greater consistency in the operation and interpretation of the Act’.[149]
The amendments are relatively narrow in scope, in that self-incriminating
evidence may only be used for proceedings under limited Acts. However, they are
not precise. By not specifying particular provisions of the AML/CTF Act
or the Criminal Code, the proceedings in which self-incriminating
evidence may be used could expand over time as amendments are made to those
Acts, without due consideration given to the impact. The argument based on
consistency fails to take account of the more narrowly defined set of
information that may be required from a person under the notice provisions to
which section 205 relates. Further, no explanation is provided as to why
consistency should not instead be achieved by making section 205
consistent with section 169. Finally, the Explanatory Memorandum wrongly
claims that section 169 provides both use and derivative use immunity. The
Parliament may require further information on why this amendment is proposed
and what the impact will be in order to determine its appropriateness. Some
additional information was provided by the Minister for Justice in his response
to the PJCHR, but it does not fully address the issues outlined here.[150]
Schedule 11 of the Bill will make several amendments
to the LEIC Act to improve internal consistency and address difficulties
identified through operational experience with the Act. The more significant of
these are outlined below.
Amendments to the definition of
‘significant corruption issue’
The LEIC Act differentiates between corruption
issues and significant corruption issues. There are some differences in the way
significant corruption issues and other corruption issues are treated.
‘Significant corruption issue’ is currently defined in subsection 5(1)
of the LEIC Act as follows (emphasis added):
(a) a corruption issue that relates to corrupt conduct that
constitutes serious corruption or systemic corruption or
(b) a corruption issue that:
(i) relates to a law
enforcement agency and
(ii) is
of a kind that the Integrity Commissioner and the head of the agency have
agreed under paragraph 17(1)(a) to be a significant corruption issue in
relation to staff members of the agency or
(c) a corruption issue of a kind that is prescribed by the
regulations for the purposes of this paragraph. [151]
‘Serious corruption’ (generally, that which could result
in being charged with an offence with a maximum penalty of imprisonment for 12
months or more) and ‘systemic corruption’ (generally, that which reveals a
pattern of corrupt conduct in a law enforcement agency or in law enforcement
agencies) are defined in the same subsection. Under the current definition of
significant corruption issue, all conduct that falls within paragraph (a) is
treated as a significant corruption issue, as well as any that falls
under paragraph (b).
Item 1 of Schedule 11 will amend the
above definition so that paragraph (a) will only apply if there is no
agreement in place under subsection 17(1). This change could only result
in fewer corruption issues falling within the definition of significant
corruption issue and, therefore, being treated as such. This is because any
conduct that would be included in an agreement subsection 17(1), but that
would not otherwise fall under paragraph (a), would already be captured under
the current definition. The only impact will be that conduct that would fall
within current paragraph (a), but is not included in an agreement, will no
longer be taken to be a significant corruption issue.
Whether a corruption issue is a significant corruption issue
(SCI) or not has implications for:
- which
body investigates the issue:
- under
section 20 of the LEIC Act, ACLEI must take over all investigations for
SCIs referred by law enforcement agency heads (though it can refer them back)
-
under
section 22, the relevant law enforcement agency must initiate or complete its
own investigation of corruption issues that are not SCIs (ACLEI has the
discretion to take over the investigation, but that is the default position)
and
- decisions
on how to deal with corruption issues:
- under
section 27, the Integrity Commissioner must have regard to certain matters
when deciding how to deal with a corruption issue or whether to take no further
action; the matters include, under paragraph 27(2)(e):
the need to ensure a balance
between:
(i) the Integrity Commissioner’s role
in dealing with corruption issues in law enforcement agencies (particularly in dealing
with significant corruption issues); and
(ii) ensuring that the heads of
law enforcement agencies take responsibility for managing their agencies.[152]
Issue: excluding systemic
corruption from the definition of significant corruption issue
Removing the blanket coverage within the definition of
significant corruption issue of all corrupt conduct that could result in a
charge for an offence with a maximum penalty of imprisonment for 12 months may
be a sensible move that means ACLEI has more discretion to direct its limited
resources where they are most needed. However, it is more difficult to identify
a rationale for removing blanket coverage of all matters relating to systemic
corruption, and the Explanatory Memorandum does not address this aspect of the
proposed amendment. In the absence of any examples of where it would be
appropriate for a corruption issue relating to systemic corruption (instances
of corruption that ‘reveal a pattern of corrupt conduct in a law enforcement
agency or in law enforcement agencies’) not to be treated as a significant
corruption issue and be investigated by ACLEI in the first instance, the
Parliament may wish to consider an alternative amendment. In particular, such
an amendment could instead ensure all instances of systemic corruption continue
to be dealt with as significant corruption issues, while providing more
flexibility on the serious corruption aspect of the definition.
Changes to obligations to keep
someone who has referred a corruption issue informed of progress
Section 23 of the LEIC Act enables people (other
than the heads of law enforcement agencies and the Minister responsible for
ACLEI, for which there are specific provisions) to refer an allegation or
information that raises a corruption issue to ACLEI. Section 25 allows
someone who has made a referral under section 23 to elect to be kept
informed about actions taken in response. ACLEI is then obligated under
sections 34, 52, 58, 65 and 68 to provide certain information to that person at
certain stages of consideration and investigation of the matter.
Items 7, 13 and 17–21 of Schedule 11
will repeal section 25 and repeal and replace parts of sections 34, 52, 58, 65
and 68 so that instead of having to comply with specific obligations to keep
the person who referred a matter informed of progress, ACLEI has the discretion
to do so. The Explanatory Memorandum explains that compliance with the current
obligations may in some instances undermine the operational security and
integrity of an investigation.[153]
The amendments will address that issue by giving ACLEI flexibility about the
timing and extent of information shared with a person who has referred an
issue.
This Schedule will make several minor and technical
amendments to the Australian Crime Commission Act 2002.[154]
This Schedule will amend the POC Act to increase the
penalties for failing to comply with a production order, or with a notice given
to a financial institution in proceeds of crime investigations.[155]
These penalties will be increased from six months imprisonment (and/or 30
penalty units) to two years imprisonment (and/or 100 penalty units).[156]
This Schedule will introduce a series of amendments to the POC
Act and related sections of certain other acts.[157]
Items 1 and 2 of Schedule 14 will
repeal paragraph 330(4)(e) and replace it with proposed paragraph 330(4)(e)
to provide a new definition of situations in which property ceases to be
proceeds of an offence under the POC Act due to similar proceedings
under another law.
The current paragraph provides that this may occur where an
interstate restraining order or an interstate forfeiture order is satisfied in
respect of the property. The Explanatory Memorandum states that a consequence
of this wording is that the making of an interstate restraining order may be
sufficient to change the nature of property for the purposes of the POC Act,
regardless of whether the property is ultimately forfeited to the state or territory,
and that this is contrary to the intended operation of paragraph 330(4)(e). The
proposed paragraph will clarify that property will cease to be proceeds of an
offence under the POC Act only if the property is forfeited,
confiscated or otherwise disposed of under a corresponding law. This paragraph
will rely on the existing definition of ‘corresponding law’ in the POC Act
and regulations, which specifies the proceeds of crime laws of all states and territories.
Items 3 and 4 will expand the existing
definition of ‘related offence’ in section 338 of the POC Act. This
section currently defines related offences as ones in which the physical
elements are substantially the same acts or omissions. The proposed definition
will expand the scope to include acts or omissions in a single series. This
will result in orders made under the POC Act remaining in place after a
person is acquitted or charges are withdrawn, providing the person is charged
with another offence arising from the same series of acts or omissions. The
Explanatory Memorandum notes that this is intended to ‘ensure that a person is
not able to dissipate previously restrained assets in the period between the
withdrawal of charges or acquittal and the granting of a restraining order or
confiscation order in relation to the related offence.’[158]
Items 5 to 10 will implement similar changes
in related Acts.
The Minister, in response to concerns raised by the Scrutiny
of Bills Committee, noted that although the operation of the proposed definition
would be ‘partially retrospective because it may apply in relation to related
offences that occurred prior to the commencement of the measures’, the intent
is to allow courts to determine all relevant acts when considering restraining
orders.[159]
The Minister also considered that this measure would not adversely affect a
person’s rights as it related only to the preserving of property and would not
affect the court’s discretion in making restraining or confiscation orders.[160]
The Committee remained of the view that the amendments may create an adverse
effect and that the ability of a person to dispose of or otherwise deal with
restrained property could be retrospectively constrained.
Items 11 and 12 will expand the definition of
‘approved examiner’ provided in subsection 183(4) and clarify the
administrative arrangements surrounding their appointment, resignation and
revocation. An approved examiner is a person who is authorised under section
183 to issue a written notice to a person requiring them to submit to an examination
for information gathering purposes. The approved examiner may then examine that
person according to section 187. The categories of persons who may be currently
appointed as approved examiners are a person who holds an office, or is included
in a group of people, specified in the Regulations, or a person who is appointed
by the Minister.
Proposed paragraphs 183(4)(a) and (b) will make it
clear what steps the Minister must take to appoint an approved examiner, and
will require approved examiners to either belong to a class specified in the
Regulations, or be a legal practitioner of at least five years standing.
Item 13 will insert proposed section 315C into
the POC Act to enable the Official Trustee in Bankruptcy to bring
proceedings on behalf of the Commonwealth. The Explanatory Memorandum states
that this will clarify the standing of the Official Trustee to make
applications under the POC Act after doubts were raised by the
unpublished decision in Official Trustee v Gale Pty Ltd ACN [2009]
NSWSC, in which the court found that the Official Trustee did not have standing
in certain circumstances.[161]
The ICAC SA was established by the Independent
Commissioner Against Corruption Act 2012 (SA) in 2012 to provide for the
identification and investigation of corruption and misconduct in public
administration in South Australia.[162]
Schedule 15 will provide recognition and powers for the ICAC SA
under Commonwealth law, equivalent to that already in place for equivalent
agencies in other states. The powers that will be made available to the ICAC SA
will include access to information from relevant Commonwealth agencies,
defences for certain telecommunications offences to enable operations and
investigations, and the ability to apply for certain warrants.
In addition, this schedule will introduce amendments to
acknowledge the renaming of the Queensland Crime and Misconduct Commission as
the Crime and Corruption Commission by the Crime and Misconduct Commission
Amendment Act 2014 (Qld), which entered into force on 1 July 2014.[163]
Part IAB of the Crimes Act provides the
legislative framework for the Commonwealth controlled operations regime.
Controlled operations are covert law enforcement operations in which one or
more persons are authorised to engage in otherwise unlawful conduct in order to
obtain evidence of a serious criminal offence. A ‘major controlled operation’ includes
one that is likely to involve ‘the infiltration of an organised criminal group
by one or more undercover law enforcement officers for a period of more than seven
days’.[164]
The amendments in Schedule 16 of the Bill will make
the approval processes more stringent by providing that:
- an
alteration to a controlled operation that would result in it becoming a major
controlled operation because it would involve infiltration of an organised
criminal group by one or more undercover law enforcement officers for a period
of more than seven days may only be made by the Commissioner or a Deputy
Commissioner of the AFP (items 1, 2, 4 and 5)
and
- an
authority for a controlled operation may not be varied so as to significantly
alter the nature of the criminal offences to which it relates (item 3).
This will help clarify the scope of an existing limitation that excludes
variations that would significantly alter the nature of a controlled operation.
In such instances, approval must instead be sought for a new operation.
Schedule 17 will make technical corrections to the Classification
(Publications, Films and Computer Games) Act 1995.[165]
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500.
[1]. Schedule 2
of the Data Retention Act will commence on 13 October 2015: Telecommunications
(Interception and Access) Amendment (Data Retention) Act 2015, accessed
12 June 2015.
[2]. Part
3 of Schedule 3 of the Classification
(Publications, Films and Computer Games) Amendment (Classification Tools and
Other Measures) Act 2014 will commence on 11 September 2015 unless an
earlier commencement date is proclaimed.
[3]. M
Keenan, ‘Second
reading speech: Crimes Legislation Amendment (Powers, Offences and Other
Measures) Bill 2015’, House of Representatives, Debates,
19 March 2015, pp. 2909–13, accessed 12 June 2015.
[4]. Senate
Legal and Constitutional Affairs Legislation Committee, Crimes
Legislation Amendment (Powers, Offences and Other Measures) Bill 2015
[Provisions], The Senate, Canberra, June 2015, accessed
17 June 2015.
[5]. The
majority report recommended Australian governments consider reviewing underage
sex offences to ensure consistency with Commonwealth forced marriage offences,
but not that any changes be made to the Bill: Ibid., pp. 30–32.
[6]. Australian
Labor Party (ALP), Dissenting
report, Senate Legal and Constitutional Affairs Legislation Committee, Crimes
Legislation Amendment (Powers, Offences and Other Measures) Bill 2015
[Provisions], The Senate, Canberra, June 2015, accessed
17 June 2015. For information on the 2012 Bill, refer to the analysis
of Schedule 6 of this Bill in this Digest.
[7]. Australian
Greens, Dissenting
report, Senate Legal and Constitutional Affairs Legislation Committee, Crimes
Legislation Amendment (Powers, Offences and Other Measures) Bill 2015
[Provisions], The Senate, Canberra, June 2015, accessed
17 June 2015.
[8]. Senate
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Digest No. 4 of 2015, The Senate, Canberra,
25 March 2015, pp. 4–15, accessed 21 April 2015.
[9]. Scrutiny
of Bills Committee, Fifth
report of 2015, The Senate, Canberra, pp. 323–333, accessed 8 July
2015.
[10]. Ibid.,
pp. 333–336.
[11]. Scrutiny
of Bills Committee, Alert Digest No. 4 of 2015, op. cit.,
pp. 6–15.
[12]. Ibid.
[13]. PJCHR,
Tenth
report of the 44th Parliament, The Senate, Canberra,
26 August 2014, pp. 15–17; PJCHR, Fifteenth
report of the 44th Parliament, The Senate, Canberra,
14 November 2014, pp. 30–32; both accessed
21 April 2015.
[14]. PJCHR,
Fifteenth report of the 44th Parliament, op. cit., p. 32.
[15]. Ibid.
[16]. Explanatory
Memorandum, Crimes
Legislation Amendment (Powers, Offences and Other Measures) Bill 2015,
pp. 26, 65, accessed 22 June 2015.
[17]. PJCHR,
Twenty-second
report of the 44th Parliament, The Senate, Canberra,
13 May 2015, pp. 38–39, accessed 22 June 2015.
[18]. PJCHR,
Twenty-fourth
report of the 44th Parliament, The Senate, Canberra,
23 June 2015, p. 76, accessed 3 August 2015
[19]. PJCHR,
Twenty-second report of the 44th Parliament, op. cit., pp. 39–41.
[20]. PJCHR,
Twenty-fourth report of the 44th Parliament, op. cit.,
pp. 76–82.
[21]. Australia,
Senate, Journals,
75, 2014–15, p. 2060, accessed 10 April 2015.
[22]. ALP,
Dissenting report, op. cit.; Australian Greens, Dissenting report,
op. cit. See also P Wright, Gun
reform should wait on Senate inquiry, media release,
15 March 2015 and L Taylor, ‘Labor
to reject new push for firearms trafficking mandatory sentencing’, The
Guardian (online edition), 15 March 2015; both accessed
17 June 2015.
[23]. Australia,
Senate, Journals, 75, 2014–15, op. cit.
[24]. Law
Council of Australia (LCA), Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Crimes Legislation Amendment (Powers, Offences and Other Measures)
Bill 2015 (2015 Submission), 7 May 2015,
accessed 18 May 2015.
[25]. Law
Society of New South Wales, Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Crimes Legislation Amendment (Powers, Offences and Other Measures)
Bill 2015 (2015 Submission),
14 April 2015, accessed 18 May 2015.
[26]. Australian
Human Rights Commission (AHRC), Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
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[27]. Australian
Lawyers for Human Rights (ALHR), Submission
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into the Crimes Legislation Amendment (Powers, Offences and Other Measures)
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[28]. Liberty
Victoria, Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Crimes Legislation Amendment (Powers, Offences and Other Measures)
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[29]. LCA,
2015 Submission, op. cit.; Law Society of NSW, 2015 Submission,
op. cit.; AHRC, op. cit.; ALHR, op. cit.; Liberty Victoria,
op. cit.
[30]. LCA,
Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Crimes Legislation Amendment (Psychoactive Substances and Other
Measures) Bill 2014 (2014 Submission),
4 August 2014; Law Society of NSW, Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Crimes Legislation Amendment (Psychoactive Substances and Other
Measures) Bill 2014 (2014 Submission), 1 August 2014;
both accessed 18 May 2015. The Bar Association of Queensland also
opposed the measure, and the Tasmanian Office of the Director of Public
Prosecutions expressed concerns with it, in their submissions to the inquiry
into the earlier Bill—see C Barker, Crimes Legislation Amendment (Psychoactive Substances and Other
Measures) Bill 2014, Bills digest, 29,
2014–15, Parliamentary Library, Canberra, 2014, pp. 11, 20–21,
accessed 18 May 2015.
[31]. LCA,
2015 Submission, op. cit., pp. 16–19.
[32]. Sporting
Shooters Association of Australia, Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Crimes Legislation Amendment (Powers, Offences and Other Measures)
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[33]. LCA,
2015 Submission, op. cit., pp. 5–9; ALHR, op. cit.,
pp. 1–2; Liberty Victoria, op. cit., pp. 1–5; Australian Drug
Law Reform Initiative (ADLaRI; listed as Ms Courtney Young), Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Crimes Legislation Amendment (Powers, Offences and Other Measures)
Bill 2015, April 2015, accessed 22 June 2015.
[34]. ADLaRI,
op. cit.
[35]. That
committee developed model laws on general principles of criminal responsibility
that were approved by all Australian Attorneys-General in 1992: Model Criminal
Code Officers Committee (MCCOC), Chapters 1
and 2: general principles of criminal responsibility: report,
December 1992, pp. 79–83; Former Standing Council on Law and Justice,
‘Chapters
1 & 2—General principles of criminal responsibility’, Former Standing
Council on Law and Justice archive website; both accessed
30 July 2015.
[36]. ADLaRI,
op. cit., pp. 3–5.
[37]. LCA,
2015 Submission, op. cit., pp. 9–13; Liberty Victoria, op. cit.,
pp. 5–7; ALHR, op. cit.
[38]. Australian
Securities and Investments Commission (ASIC), Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Crimes Legislation Amendment (Powers, Offences and Other Measures)
Bill 2015, 28 April 2015, p. 2, accessed 11 May 2015.
[39]. LCA,
op. cit., pp. 19–21.
[40]. Ibid.,
p. 20.
[41]. Ibid.,
p. 21.
[42]. Liberty
Victoria, op. cit., pp. 9–10.
[43]. Director
of Public Prosecutions Victoria (Victorian DPP), Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill
2015, 7 May 2015; New South Wales Director of Public Prosecutions (NSW
DPP), Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Crimes Legislation Amendment (Powers, Offences and Other Measures)
Bill 2015 (2015 Submission), 6 May 2015; both accessed 11 May
2015.
[44]. AHRC,
op. cit., pp. 4–5, 18–20.
[45]. LCA,
2015 Submission, op. cit., ALHR, op. cit., AHRC, op. cit.,
Library Victoria, op. cit., and Anti-Slavery Australia, Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Crimes Legislation Amendment (Powers, Offences and Other Measures)
Bill 2015, n.d., accessed 21 May 2015.
[46]. Liberty
Victoria, op. cit., p. 11.
[47]. LCA,
2015 Submission, op. cit., p. 16.
[48]. Explanatory
Memorandum, op. cit., p. 9.
[49]. New
South Wales Director of Public Prosecutions (NSW DPP), Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Crimes Legislation Amendment (Psychoactive Substances and Other
Measures) Bill 2014, 1 August 2014, accessed
18 May 2015.
[50]. NSW
DPP, 2015 Submission, op. cit.
[51]. The
Statement of Compatibility with Human Rights can be found at page 11 of
the Explanatory
Memorandum to the Bill.
[52]. Subdivision A
of Division 301 of the Criminal Code sets out the relevant definitions: Criminal Code Act 1995
(Criminal Code), accessed 12 June 2015.
[53]. For
information on controlled operations and the types of activities for which they
are used, see Australian Federal Police, Australian Crime Commission (ACC) and
Australian Commission for Law Enforcement Integrity, Controlled
operations annual report 2013–14, Commonwealth of Australia, Canberra,
2014, accessed 13 April 2015.
[54]. Explanatory
Memorandum, op. cit., pp. 50–51.
[55]. LCA,
2015 Submission, op. cit., pp. 5–7; Liberty Victoria,
op. cit., pp. 2–3; ADLaRI, op. cit., pp. 1–2. ALHR raises
the broader concern that the amendment goes beyond traditional criminal law
principles: ALHR, op. cit., pp. 1–2.
[56]. LCA,
2015 Submission, op. cit., pp. 5–7; Liberty Victoria,
op. cit., pp. 2–3. See footnote 35 for information about the Model
Criminal Code Officers Committee and a link to the relevant report.
[57]. LCA,
2015 Submission, op. cit., pp. 5–7; Liberty Victoria,
op. cit., pp. 2–3.
[58]. ‘Border
controlled precursor’ is defined in section 301.6 of the Criminal Code.
Prescribed border controlled precursors are listed in Division 3.2 of the Criminal Code
Regulations 2002 (accessed 13 April 2015).
[59]. Explanatory
Memorandum, op. cit., pp. 16–17.
[60]. ACC,
Illicit
drug data report 2012–13, ACC, Canberra, April 2014, pp. 187–188,
accessed 14 April 2015.
[61]. Explanatory
Memorandum, op. cit., p. 17.
[62]. Australian
Customs and Border Protection Service (Customs), Annual
report 2013–14, Customs, Canberra, 2014, p. 31, accessed
14 April 2015. These figures, as well as those referred to in the
Explanatory Memorandum, which references the Illicit drug data report 2012–13,
are for ATS other than MDMA (‘ecstasy’).
[63]. Explanatory
Memorandum, op. cit., pp. 51–53.
[64]. Section 5.6
of the Criminal Code provides that unless otherwise specified, the fault
element of intention applies to physical elements consisting of conduct and the
fault element of recklessness to physical elements consisting of a circumstance
or result. For the effect of applying absolute liability, refer to
section 6.2 of the Criminal Code.
[65]. Criminal
Code, op. cit.
[66]. Liberty
Victoria, pp. 3–5.
[67]. See
page 53 of the Explanatory Memorandum.
[68]. LCA,
2015 Submission, op. cit., pp. 7–9.
[69]. ADLaRI,
op. cit., p. 2.
[70]. Criminal
Code, op. cit. See also Divisions 302 (trafficking), 303
(commercial cultivation) and 306 (pre-trafficking controlled precursors).
[71]. Convention
on Combating Bribery of Foreign Officials in International Business
Transactions, opened for signature 17 December 1997, ATS
[1999] No. 21 (entered into force for Australia
17 December 1999.
[72]. C Barker,
Australia’s
implementation of the OECD Anti-Bribery Convention, Background note,
Parliamentary Library, Canberra, 7 February 2012, accessed
14 April 2015.
[73]. Organisation
for Economic Cooperation and Development (OECD) Working Group on Bribery, Phase 3
report on implementing the OECD Anti-Bribery Convention in Australia,
OECD, October 2012, p. 5, accessed 14 April 2015.
[74]. Ibid.,
pp. 48–53.
[75]. Australian
Government, Australia:
follow-up to the phase 3 report and recommendations, Australian
Government, April 2015, accessed 16 April 2015.
[76]. Criminal Code,
op. cit., paragraph 70.2(1)(c).
[77]. Explanatory
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[78]. Protocol
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[83]. Ibid.
[84]. Forced marriage is one of a suite of slavery-like
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[92]. Senate Standing Committee for the Scrutiny of Bills, Fifth
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