Chapter 1Introduction and key issues
1.1On 10 May 2023, the Senate referred the Crimes and Other Legislation Amendment (Omnibus) Bill 2023 [Provisions] (bill) to the Legal and Constitutional Affairs Legislation Committee (committee) for inquiry and report by 14 June 2023.
1.2The bill would amend 12 Commonwealth Acts to make ‘minor, technical and uncontroversial amendments to crime-related legislation’. The Explanatory Memorandum (EM) states that the proposed amendments aim to ‘update, improve and clarify the intended operation of key provisions administered by the Attorney-General’s portfolio’.
Conduct of the inquiry and acknowledgement
1.3The committee advertised the inquiry on its website and invited organisations and individuals to make submissions by 30 May 2023. The committee received and published four submissions, which are listed at Appendix 1. Thecommittee resolved not to hold a public hearing for this inquiry and to report to the Senate ‘on the papers’. The committee thanks those organisations who made submissions.
Structure of the report
1.4The report comprises one chapter that notes consideration of the bill by other parliamentary committees, outlines the key issues raised by submitters, and sets out the committee's views and recommendations.
Outline and purpose of the bill
1.5The bill comprises 10 schedules, each amending one or more Commonwealth Acts. This report examines only those proposals on which submitters commented and in relation to the following Acts:
the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (theAML/CTF Act);
the International Transfer of Prisoners Act 1997 (the ITP Act);
the Telecommunications (Interception and Access) Act 1979 (the TIA Act); and
the Witness Protection Act 1994 (the WP Act).
1.6The Attorney-General's Department (AGD) supported the bill on the basis that it would:
…result in improved outcomes for stakeholders interacting with Australian government agencies and processes, such as members of the public who come into contact with the judicial system, international partners, and state and territory agencies.
1.7The AGD highlighted that the bill would not expand powers for regulatory or law enforcement agencies, nor would it reduce existing scrutiny and oversight mechanisms. The AGD further noted that the bill was developed in consultation with relevant Commonwealth agencies and would have no financial impacts.
Consideration by other parliamentary committees
1.8When examining a bill, the committee takes into account any relevant comments published by the Senate Standing Committee for the Scrutiny of Bills (Scrutinyof Bills Committee) and the Parliamentary Joint Committee on Human Rights (Human Rights Committee).
1.9The Scrutiny of Bills Committee and the Human Rights Committee identified multiple concerns with amendments proposed in the bill. For the purposes of this report, the committee notes especially:
the concerns identified by the Scrutiny of Bills Committee about insufficiently defined administrative powers and non-reviewable decisions in the ITP Act (see ‘ITP Act’); and
the concerns identified by the Scrutiny of Bills Committee and the Human Rights Committee about insufficiently defined administrative powers, non-reviewable decisions, and the suspension of witness protection and assistance in the WP Act (see ‘WP Act’).
Key issues
1.10All submitters to the inquiry supported the bill, subject to or with suggestions for improvements to certain proposals, which are outlined below.
AML/CTF Act
1.11Schedule 1 of the bill would amend the AML/CTF Act to:
strengthen and clarify the civil penalty provision for a person failing to enrol with AUSTRAC within 28 days of commencing to provide a designated service under the AML/CTF Act,
clarify the existing secrecy and access framework to make it clear that sensitive AUSTRAC information obtained under specified provisions of the AML/CTF Act and the Financial Transaction Reports Act 1988 (FTR Act) cannot be inappropriately disclosed for the purposes of, or in connection with, court or tribunal proceedings, and
explicitly authorise the AUSTRAC CEO to use a computer program (including automated programs), under their control, to automatically take an action, make a decision or exercise powers under the AML/CTF Act or the Anti-Money Laundering and Counter-Terrorism Financing Rules Instrument 2007 (No. 1) (AML/CTF Rules), or assist with doing so.
1.12AUSTRAC supported the proposed amendments to the AML/CTF Act, agreeing with the AGD that the bill would provide 'operational benefit to AUSTRAC's work'. In relation to these amendments, the agency summarised that the bill would provide:
an enhanced ability to 'more effectively enforce contraventions of the obligation to enrol on the Reporting Entities Roll, and create a stronger deterrence for failure to enrol’; and
reinstatement of protections on the use and disclosure of certain sensitive types of AUSTRAC information, which were 'inadvertently' removed by the Anti-Money Laundering and Counter-Terrorism Financing and Other Legislation Amendment Act 2020.
1.13In relation to the first proposal, the Law Council of Australia (Law Council) argued that a reporting entity might incur a penalty that is disproportionate to the severity of failing to enrol on the Reporting Entities Roll if it is 'even one day late'. In its view:
The treatment of multiple contraventions, proposed in new subsections 51B(2B) to (2D), should be reconsidered on the basis that it may lead to the imposition of a disproportionate penalty, which compounds the existing disproportionality. There should be greater consistency in the calibration of civil and criminal penalties across the AML/CTF Act, the gravity of the penalty should reflect the corresponding consumer harm or detriment.
1.14On the second point, AUSTRAC advised that the loss of protection for its most sensitive information had adversely impacted the agency:
AUSTRAC has had to rely on making public interest immunity claims where [the] information is involved in law enforcement or national security agencies’ prosecution disclosure obligations, or in party-party disclosure. This is resource intensive, time consuming and costly for AUSTRAC and the courts and tribunals, and is not aligned with the fact that [the] information is not admissible in evidence under section 124 of the AML/CTF Act. Forthese reasons, AUSTRAC supports the amendments to reinstate these protections.
Computer-assisted decision-making
1.15Item 9 in Part 3 of Schedule 1 of the bill would empower the AUSTRAC CEO to arrange for the use of computer programs to assist with administrative decision‑making (proposed section 228A of the AML/CTF Act).
1.16The AGD explained:
The types of decisions that may be made using a computer program will be appropriately limited to administrative process decisions under specific parts of the AML/CTF Act that relate to registration and enrolment, and will only include ‘positive’ decisions that do not result in an adverse outcome for a person. As such, this measure will not introduce any new risks to the operation of the AML/CTF regime, but rather will create certainty and efficiencies for both reporting entities and AUSTRAC. Further, the amendments include a safeguard to allow the AUSTRAC CEO to override a computer-assisted decision if they are satisfied that it is not the correct or preferable decision.
1.17AUSTRAC supported this proposal, submitting that it would 'create efficiencies and reduce wait times for low-risk processes’. The Law Council agreed that the proposal has 'the potential to significantly improve consistency, accuracy and efficiency'.
1.18The Law Council noted, however, that such decision-making processes 'must be balanced against the need to ensure compliance with administrative law requirements, privacy safeguards, appropriate governance, quality assurance and accountability'.
1.19The Law Council recommended that AUSTRAC undertake detailed consultations with stakeholders before changing the AML/CTF Rules to implement computer-assisted decision‑making processes. Further:
Before introducing a computer assisted decision-making process, AUSTRAC should be required to document:
its assessment of the risks of using technology in the place of humans to make the decision;
what measures it has taken to mitigate those risks;
If a computer assisted decision-making process is used with respect to enrolment by remittance service providers, the decisions should be translated into major foreign languages commonly used by the remitter community; and
After the computer assisted decision-making process has been operating for a period of 12 months, an independent review of the decisions made through that process be undertaken to assess whether:
the measures AUSTRAC has taken to manage the above-mentioned risks were adequate; and
any changes ought to be made to that process to better manage those risks.
ITP Act
1.20Schedule 6 of the bill would amend the ITP Act to:
provide that the Attorney-General may refuse consent to a request or an application for transfer to or from Australia [on terms proposed by the transfer country] at an earlier stage in the process, namely:
for transfers from Australia, prior to seeking consent of the relevant state or territory Minister and the prisoner (or prisoner’s representative)
for transfers to Australia, prior to seeking consent of the relevant state or territory Minister, the prisoner (or prisoner’s representative) and the transfer country or tribunal as the case may be, and
make minor technical amendments to improve the operation of the Act and better reflect the processes followed in practice.
1.21In his second reading speech, the Attorney-General, the Hon Mark Dreyfus KC MP, stated that this amendment would make the transfer process more efficient and reduce administrative burden:
…by ensuring that state and territory governments, foreign countries and prisoners are not unnecessarily consulted where the Attorney-General would be minded to ultimately refuse consent but is unable to do so before seeking consent from all other parties.
1.22TheAGD contended that the proposal would not affect a prisoner’s ability to make representations to the Attorney-General. The AGD further emphasised that the bill would maintain a prisoner's access to procedural fairness and the right of a prisoner to seek judicial review of the Attorney‑General's decision to refuse consent.
Procedural fairness and merits review
1.23As indicated above, the Scrutiny of Bills Committee expressed concern about the broad powers that the bill would provide to the Attorney-General (proposedsection 19 of the ITP Act). That committee noted, among other things, that the bill does not set out any matters that the Attorney-General would be required, or able, to consider when making a decision to refuse consent to a prisoner transfer:
Where a bill contains a broad discretionary power, such as this, thecommittee expects the explanatory materials for the bill to address the purpose and scope of the discretion, including why it is considered necessary, and whether there are appropriate criteria or considerations that limit or constrain the exercise of any power. The committee also expects the explanatory materials to explain whether these criteria or considerations are contained in law or policy.
1.24The Scrutiny of Bills Committee considered that it would be appropriate to include the matters for consideration within the primary legislation, as relevant considerations for the Attorney-General. It added:
The committee's concerns are heightened in this instance as it appears that requirements to provide procedural fairness are limited within the bill. Inparticular, the committee is concerned that a lack of matters in the bill that the Attorney-General must consider may mean that, for example, prisoners and their representatives may not have the opportunity to make or have any submissions considered before a decision is made.
1.25The Scrutiny of Bills Committee commented also on proposed subsection 19(2) of the ITP Act, which would require the Attorney-General to notify a prisoner or their representative of the proposed terms of transfer, before deciding to refuse consent. However:
…neither the bill nor the principal Act provides for any timing requirements between when notification and a decision must occur, nor is there any requirement for the Attorney-General to consider any submissions from the prisoner before deciding whether to make a refusal.
1.26The Scrutiny of Bills Committee reflected on the common law right of procedural fairness, including the ‘fair hearing rule’, where a decision-maker is required to ensure that people who are adversely affected by a decision are given an adequate opportunity to put their case before the decision is made. Itwas not clear to that committee why the procedural fairness safeguards outlined in the EM could not be placed within the ITP Act.
1.27In relation to a merits review process, the Scrutiny of Bills Committee observed that the bill does not provide for a merits review process. It suggested that the EM should outline the process or, if such a process is not available, the reason for that omission.
1.28The Law Council agreed with the recommendations made by the Scrutiny of Bills Committee and added that the bill should also be amended to require a decision‑maker to consider the matters outlined in the AGD’s International Transfer of Prisoners – Statement of Policy when making a decision under Part 3 of the ITP Act (which deals with Transfers from Australia).
1.29With regard to procedural fairness, the Law Council made a number of suggestions to improve the bill, that is:
there be a stipulated time period between the prisoner being notified of the proposed terms of the transfer and the Attorney-General making a decision to refuse consent;
the decision‑maker 'have regard to any submission made by the prisoner under Section 16 of the ITP Act';
the decision-maker be obliged 'to provide written reasons for a decision to the prisoner and transfer country', with information on the merits review process;
all available information about the issues that will determine the prisoner's matter be provided to them or their representative 'to ensure they can effectively advocate their case'; and
allowances are made for the 'communication of a decision to refuse consent to a transfer and the reasons for a decision' to vulnerable prisoners, including those 'with limited literacy and culturally and/or linguistically diverse backgrounds'.
1.30The Law Council further recommended that 'consideration should be given to legislative amendments to clarify that transfer decisions…are subject to merits review'. It suggested that those decisions should be subject to merits review because it 'is an administrative decision affecting a person's rights'.
TIA Act
1.31Schedule 8 of the bill would amend the TIA Act to:
ensure that the jurisdictional Public Interest Monitors [PIMs] can provide effective oversight on applications for interception activities made by the relevant agency in their jurisdiction.
1.32According to the Attorney-General:
Minor amendments to theTelecommunications (Interception and Access) Act1979will address referencing inconsistencies. The amendments will ensure that state and territory based public interest monitors can provide effective oversight on applications for interception activities made by the relevant agency in their jurisdiction.
1.33The AGD submitted that the bill would strengthen oversight by PIMs, by expanding the matters on which they can make submissions:
The amendments will ensure PIMs can make submissions on the same matters that an issuing authority may consider when making a decision to issue a warrant or International Production Order (IPO) relating to Part 5.3 supervisory orders.
1.34The AGD added that the proposed amendments are remedial in nature:
The amendments correct inconsistencies in the legislation that were inadvertently introduced as a result of concurrent amendments to the TIA Act, through the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Act 2021 and Telecommunications Legislation Amendment (International Production Orders) Act 2021. It has always been the policy intention that PIMs should be able to make submissions on the same criteria that the issuing authority will consider in issuing a warrant or IPO.
1.35The Law Council considered that these ‘ad hoc’ amendments highlight the need to expand the role of the independent contradictor (the public interest advocate) established by the TIA Act:
The role should go beyond applications for journalist information warrants to other applications for intrusive powers under the TIA Act. Consideration of the latter alternative will improve the oversight of intrusive powers across the board under the TIA Act.
WP Act
1.36Schedule 9 of the bill would amend the WP Act to:
remove current ambiguity around whether past participants of previous Australian Federal Police (AFP)-run witness protection programs are covered by the [WP Act];
enable participants to be temporarily suspended from receiving protection and assistance under the National Witness Protection Program (NWPP) in situations where the AFP may be limited in providing protection and assistance [proposed sections 17A and 17B of the WP Act]; and
modernise and streamline language and delegation processes to reduce administrative burden on the AFP.
1.37The AFP acknowledged that the general purpose of the proposed WP Act amendments is to ‘ensure the NWPP continues to provide effective protection for participants and is able to respond flexibly to operational needs’.
1.38In particular, the EM stated that the amendments would:
…ensure the Witness Protection Act as a whole applies to past participants, by recognising them as former participants under the Witness Protection Act, therefore enabling the AFP to render protection and assistance to these persons…
…provide greater flexibility for current participants, who will not need to be terminated from the program and re-apply…[minimising] the risk a participant may otherwise be exposed to while awaiting re-entry into the program following a termination[.]
1.39The EM explained that proposed sections 17A and 17B aim to preserve ‘the integrity of the NWPP’ and allow ‘the suspension to be lifted once the AFP’s ability to provide adequate protection and assistance is restored’.
1.40In its submission, the AGD stated that these two provisions would create flexibility for the AFP in situations where a participant does, or intends to do, something that impede the AFP from providing protection and assistance:
For example, if the participant were to put themselves in a situation where they were outside the AFP’s jurisdiction. Currently, in situations where the AFP’s ability to provide protection or assistance may be limited, the AFP must consider terminating a person’s participation in the NWPP. Providing for temporary suspension of the provision of protection and assistance is significantly less restrictive for an individual than terminating their participation in the NWPP. Further, the amendments allow for protection and assistance to be provided, regardless of a suspension, if the decision-maker is satisfied that it is necessary and reasonable to do so in the circumstances (proposed subsections 17A(6) and 17B(6)). This might be appropriate, for example, where the participant has ongoing employment or education requirements through the suspension period and the AFP provides assistance to facilitate and ensure continuity of these.
1.41Proposed subsections 24(4) and 25(4) of the WP Act would allow the Commissioner to delegate their new power to an Assistant Commissioner, who would also be empowered to sub-delegate the power to a Commander or Superintendent, subject to exercise only in serious and urgent circumstances.
1.42The AGD indicated that the proposed sub-delegations are appropriate for operational reasons:
It is appropriate that officers in close proximity to the operational issues (such as Commanders and Superintendents) are empowered to make decisions to suspend protection and assistance in these circumstances. Serious and urgent circumstances require prompt decision-making, meaning that it may not be feasible to seek a decision from a higher-ranking officer, such as an Assistant Commissioner. This will ensure the AFP is able to respond quickly and flexibly to circumstances that require immediate operational decisions, where the AFP’s ability to provide assistance and protection may be limited.
1.43The AGD noted comments from the Scrutiny of Bills Committee to the effect that neither the bill nor the EM define or clarify the term ‘AssistantCommissioner’. In response, the AGD advised that it intends to propose amending the bill to provide for a definition of ‘AssistantCommissioner’, essentially meaning an Assistant Commissioner of the AFP, consistent with the definitions for ‘Commissioner’ and ‘Deputy Commissioner’. The AFP agreed with and supported this response.
1.44In relation to concerns about merits review, as identified by the Scrutiny of Bills Committee and the Human Rights Committee, the AGD submitted:
…decisions to suspend the provision of protection and assistance at the request of the participant are unlikely to have a significantly adverse impact on the rights and interests of the individual. However…in situations where protection and assistance may be suspended as a result of the actions (orintended actions) of the participant, it is appropriate to provide for internal review of these decisions. As such, the department will propose amending the Bill to ensure these decisions may be subject to internal review.
Suspension of protection and assistance
1.45As indicated above, the Human Rights Committee raised concerns about the proposed suspension of protection and assistance to participants in the NWPP. In its view, this proposal 'may expose the participant to possible harm. As a result, the measure engages and may limit the rights to life and security of person'.
1.46The Human Rights Committee sought advice from the Attorney-General in relation to several matters, for example:
the 'types of actions or circumstances [that] would limit the AFP's ability to provide adequate protection or assistance to a participant';
the appropriateness of suspending a participant's protection and assistance when 'they do something that "limits" the AFP's ability to provide protection and whether this threshold should be higher';
the reason for extending the Commissioner's power to suspend protection and assistance based on the 'possible future actions of a participant';
the 'time period for the suspension to have effect and whether the Commissioner would be required to regularly review the case to assess whether circumstances have changed such that protection and assistance should be reinstated';
'why decisions to suspend protection and assistance made by the Commissioner personally are not reviewable'; and
'whether any less rights restrictive alternatives could achieve the same stated objective'.
1.47As at the time of writing, the Attorney-General’s response to requests for information from the Human Rights Committee had not been published.
Committee view
1.48The Attorney-General stated that the bill intends to ‘update, improve and clarify the intended operation of certain provisions’ across 12 Commonwealth Acts to support ‘the proper administration of government, law enforcement, oversight and judicial processes'. Thecommittee recognises the value of current, enhanced and unambiguous legislation.
1.49In general, submitters supported the operational efficiencies that the bill would create and in particular, the Law Council suggested areas in which the bill could be further improved. The committee urges the Australian government—and where relevant AUSTRAC—to take these suggestions into consideration prior to the bill being debated in the Senate.
1.50The committee expresses concern with the bill’s provision for procedural fairness, as raised by the Selection of Bills Committee and the Law Council, inrelation to the ITP Act. The committee agrees that the primary legislation should set out a non-exclusive list of considerations to which the Attorney‑General must have regard when exercising the broad power to refuse consent to a prisoner transfer.
1.51The committee acknowledges the advice from the AGD that it will be proposing amendments to the bill to take into account many of the concerns identified by parliamentary comments. The committee welcomes this advice, which will improve the bill.
1.52In view of the above comments, the committee makes the following recommendation.
1.53The committee recommends that the bill be passed.
Senator Nita Green
Chair
Labor Senator for Queensland