Issues raised
2.1
This chapter outlines the proposed amendments contained within the Crimes
Legislation Amendment (Powers, Offences and Other Measures) Bill 2017 (the
bill), discusses the issues raised by submitters, and outlines the committee
view.
2.2
This chapter addresses the proposed amendments in the following order:
-
Australian Federal Police Act 1979 (AFP Act);
-
Criminal Code Act 1995 (Criminal Code Act); and
-
Crimes Act 1914 (Crimes Act).
Proposed amendment to the Australian Federal Police Act 1979
2.3
Schedule 1 of the bill would amend sections 4(1) and 8(1) of the AFP Act
to update the functions of the Australian Federal Police (AFP).
2.4
These amendments relate to the provision of 'police services' and
'police support services' by the AFP. 'Police services' include services for
the prevention of crime and protection of persons from death or injury, and
property from damage, whether arising from criminal acts of otherwise.[1]
'Police support services' mean services related to the provision of police services
by an Australian or foreign law enforcement agency, or provision of services by
an Australian or foreign intelligence, security or regulatory agency.[2]
2.5
Under the proposed amendments, the functions of the AFP would be updated
to include assisting and cooperating with 'an international organisation' or 'a
non-governmental organisation, in relation to acts, omissions, matters or
things outside Australia' in the provision of police services or police support
services. The term 'International organisation' would be defined in section
4(1).
2.6
The Explanatory Memorandum states that, as currently framed, section 8
does not clearly encompass the AFP's cooperation with international
organisations and bodies including the International Criminal Court, Interpol,
and International Committee of the Red Cross.[3]
It advises that the proposed amendments will ensure that the Act reflects this
international cooperation:
International partnerships allow the AFP to meet operational
challenges and threats, and progress Australia's national interests. The AFP's
core work across all crime types is becoming increasing global and, as a
result, international cooperation is becoming more and more important to the
AFP's operations.[4]
2.7
The South Australian Commissioner for Victims' Rights, Mr Michael
O'Connell AM APM, commended the proposed amendment, submitting that it would
help to ensure the AFP could continue to play a central role in 'exchanging and
sharing information' and 'honouring victims' rights obligations'.[5]
Mr O'Connell noted that the implementation of international victims' rights
instruments require cooperation between authorities like the AFP and
international police agencies and victim support organisations.[6]
He also highlighted practical examples of instances where he had collaborated
with police to assist Australian victims of crime overseas, as well as
non-Australians who have been the victims of crime in Australia:
For these and like victim assistance, I rely very much on the
exchange of information from the Australian Federal Police and other agencies
(for example, Department of Foreign Affairs and Trade, and Department of
Immigration and Border Control). In order to respond in a timely and respectful
(often compassionate) manner, it is essential that the information flow is
unimpeded yet also respectful of victims' right to privacy...[7]
2.8
The Australian Human Rights Commission (AHRC), however, raised some
human rights concerns about Australia's involvement in information-sharing
which might lead an individual to be charged with an offence carrying a death
sentence. The Commission noted that the abolition of the death penalty is a
core human rights objective in Australia, and therefore any action by the AFP that
makes it more likely that the death penalty will be imposed on a person is
'incongruous'.[8]
It further argued that information-sharing leading to such an outcome would
contravene Australia's international human rights commitments,[9]
a view espoused by the United Nations Human Rights Committee in its 2009 report
on Australia.[10]
The AHRC highlighted that in the contexts of extradition and mutual assistance
a request may be refused where the death penalty may be imposed on an
individual, and argued that the lack of a similar restriction on AFP
information-sharing represents an inconsistency which should be rectified.[11]
2.9
The AHRC argued that the bill should be amended to prevent any support
in the investigation and prosecution of offences which may result in the
imposition of a death penalty, or (in the alternative) at a minimum make such
information-sharing conditional on an assurance from the requesting
organisation that the death penalty will not be imposed, and a rigorous
assessment concluding that the assurance is sufficient.[12]
In making this alternative recommendation, the Commission noted that it did not
regard reliance on diplomatic assurances to be sufficient where there are
grounds to believe that a person would face a real risk of the death penalty,
considering that the separation of powers would mean an assurance from the executive
branch of government would not generally bind the judiciary.[13]
The Commission also argued that these reservations also apply to circumstances
where there are substantial grounds for believing that the sharing of
information may lead to a person being subjected to torture or cruel, inhuman
or degrading treatment.[14]
2.10
The Parliamentary Joint Committee on Human Rights raised similar
concerns in relation to this proposed amendment in May 2017, and sought a
response from the Minister for Justice.[15]
The Minister argued that information and intelligence sharing with
international organisations and NGOs for the purposes of this proposed new
function will often not involve particular individuals, and so not raise death
penalty or torture implications.[16]
The Minister made reference to two sets of AFP guidelines dealing with death
penalty and torture situations, but did not provide them. The PJCHR concluded
that 'without knowing what the guidelines state it is not possible to conclude
that they would provide adequate and effective protection for these rights',
and requested copies of them.[17]
At the date of this report the PJCHR is awaiting a response to this request.[18]
2.11
Mr Timothy Pilgrim PSM, Australian Information Commissioner and
Australian Privacy Commissioner, outlined some technical concerns in relation
to the drafting of the proposed amendments. Mr Pilgrim noted that for the
proposed information-sharing to be permissible under the Australian Privacy
Principles (APP), an exception to the general requirement that an agency should
not use or disclose 'personal information' for a secondary purpose would need
to be set out in 'clear and direct language'.[19]
Mr Pilgrim submitted that, as currently drafted, it is unclear what kinds of
personal information would be collected, used or disclosed under these
amendments, which NGOs would be captured by the new function, or what steps an
AFP entity would have to take to protect personal information before it is
disclosed overseas.[20]
2.12
Mr Pilgrim submitted that it is difficult to assess whether those
impacts would be reasonable, necessary and proportionate to achieve the
relevant policy objective, and recommended that more clear, specific and direct
language be employed in the drafting of this schedule.[21]
He recommended that a Privacy Impact Assessment (PIA) be completed in relation
to these provisions, and that the establishment of administrative arrangements
(such as memoranda of understanding) be considered in relation to the sharing
of information overseas to help establish 'mutually agreeable standards'.[22]
The AHRC echoed these concerns.[23]
2.13
In response, the Attorney-General's Department (AGD) highlighted the
numerous safeguards which would regulate the sharing of information in this
context, including internal AFP governance and procedures, and obligations
under the Privacy Act 1988 and the Australian Privacy Principles:
To the extent that the new function will enable the
disclosure of personal information to international organisations and non‑government
organisations, the Privacy Act, the AFP Act, the Australian Privacy Principles
(APPs) and AFP internal policy provide effective and adequate safeguards to
protect the right to privacy. Furthermore, only a small proportion of the
cooperation undertaken pursuant to the new function is likely to relate to
specific individuals or cases where personal information would be relevant.[24]
2.14
The department also explained that the AFP is considering whether
additional memoranda of understanding or protocols should be introduced to
ensure that shared information will be protected.[25]
2.15
The department also addressed the Commissioner's specific concerns
relating to the definition of an NGO in this context, advising that the term
will have its 'natural and ordinary meaning', and explaining that a definition
would be unnecessary and could limit the AFP's ability to utilise this function
on an ad hoc basis.[26]
Committee view
2.16
The proposed amendments to the AFP Act are timely and necessary. The AFP
must be able to work effectively with international organisations, including
being able to share information. These amendments clarify that this is already
part of the AFPs core functions.
2.17
By their nature provisions setting out the functions of an organisation
as large as the AFP may need to be drafted in a broad manner in order to allow
the organisation to work in a flexible and responsive way. As the Explanatory
Memorandum states, 'the AFP's core work across all crime types is becoming
increasingly global'.[27]
The AFP must have the flexibility to work with international partners of all
kinds, and to respond swiftly to individual and unique cases.
2.18
The committee has carefully considered the comments made by Mr Pilgrim. In
light of these comments, the committee agrees that the Explanatory Memorandum should
be updated to include further detail about the kinds of personal information that
would be collected, used or disclosed under these amendments, what kinds of
NGOs would be captured by the new function (or perhaps, which types of NGOs
would not be captured), and what steps an AFP entity would take to protect
personal information before it is disclosed overseas. The committee also agrees
that the establishment of administrative arrangements between the AFP and other
nations or individual entities would be useful in managing the sharing of
information, and is pleased that the AFP is currently considering this.
Recommendation 1
2.19
The committee recommends that the Explanatory Memorandum be updated to
include a more extensive analysis of the privacy implications of the proposed
amendment to the Australian Federal Police Act 1979.
2.20
The committee also notes the detailed comments from the AHRC regarding the
sharing of information that may relate, or contribute, to a person being
charged with an offence punishable by death. The Australian Government has a
long-standing commitment to ending the death penalty. While this amendment will
largely enshrine the international cooperation already taking place, this bill
does represent an opportunity for Australia to further strengthen its
opposition to the death penalty. The sharing of information by the AFP with
international organisations and
non-government organisations in the context of police services and police
support services may involve offences which carry a death penalty, or involve
countries with questionable human rights records.
2.21
The Committee acknowledges the issues raised by submitters regarding the
potential implications of the amendments on the right to life, and the right to
be free from torture and cruel, inhuman and degrading treatment. The Committee
is, however, satisfied that sufficient oversight exists and that the proper
consideration has been given to the human rights implications.
Proposed amendment to the Criminal Code Act 1995
2.22
Schedule 4 of the bill would double the maximum penalty for a breach of
the general dishonesty offences contained in sections 135.1(1), (3), (5) and
(7) of the Criminal Code Act from five years imprisonment to 10 years.
2.23
The Explanatory Memorandum explains that this amendment is designed to
address inconsistencies between penalties for similar conduct contained
elsewhere in the Code, and provide judges with the scope to address 'the full
range of criminality that is most appropriately prosecuted under the general
dishonesty offence'.[28]
2.24
The Commonwealth Director of Public Prosecutions (CDPP) expressed its
strong support for this amendment,[29]
noting that it would bring these maximum penalties into line with those for
obtaining property by deception (section 134.1), obtaining financial advantage
by deception (section 134.2), and the general dishonesty provision contained in
the Corporations Act 2001 (section 1041G).[30]
The CDPP argued that the Code is structured such that substantive offences, and
offences of conspiring to commit substantive offences, carry the same
penalties, and it is anomalous that conspiring to commit an offence should
carry a greater penalty than committing the offence.[31]
2.25
The CDPP explained that, in practice, where alleged criminal conduct
constitutes both an offence of obtaining property or financial advantage by
deception and an offence of general dishonesty, the appropriate course of
action will ordinarily be to charge the individual with the offence of
'obtaining'.[32]
However, they highlighted that sometimes a charge of obtaining property or
financial advantage by deception will not be available, such as where a
fraudulent scheme consists of a number of individual deceptions, or where the
benefit in question was obtained via an omission.[33]
2.26
The CDPP proposed that, should this amendment proceed, prosecutors would
be directed to lay charges of obtaining property or financial advantage by
deception where appropriate, as the guidelines currently direct.[34]
2.27
However, the Law Council of Australia argued that the general dishonesty
offences were intended to capture conduct which is less culpable than that
covered by the other dishonesty offences, and the maximum penalties should
reflect this.[35]
The Council also pointed to the Explanatory Memorandum to an earlier bill to
amend the Criminal Code, which explained that:
Consistent with decisions such as that of the House of Lords
in Scott [1975] AC 819 and Australian cases such as O'Donovan v Vereker (1987)
76 ALR 97 at 110 and Eade (1984) 14 A Crim R 186, the proposed [general
dishonesty] offence does not require the prosecution to prove that an accused deceived
a victim and as such falls below the appropriate level of culpability required
for an offence with a maximum penalty of 10 years imprisonment. In recognition
that the offence is much broader than fraud, it is proposed that section 135.1
should have a maximum penalty of 5 years imprisonment. Where there is evidence
of deception, the most serious fraud offences should be charged.[36]
2.28
The Law Council also cautioned that if multiple instances of alleged
fraud are 'rolled up' into single general dishonesty offences, the charge could
be difficult to defend because an accused may admit to some of the conduct and
deny the remainder.[37]
2.29
In response, the CDPP explained that general dishonesty offences have a
role to play in some instances of serious offending, although they are used
more sparingly than deception charges.[38]
The CDPP further argued that it is not envisaged that general dishonesty
offences would be used as 'a vehicle to pursue a duplicitous, rolled-up charge',
although repetitive conduct constituting an 'ongoing course of conduct' would
fit within the scope of the charge.[39]
2.30
Legal Aid NSW expressed concern about these proposed amendments.[40]
Drawing on statistics for prosecutions under sections 135.1(1) and (5), they
argued that increasing the penalties for these offences would
disproportionately and unfairly impact on vulnerable people being prosecuted
for social security fraud.[41]
Legal Aid explained that between April 2012 and March 2017, 93 individuals were
prosecuted for offences under sections 135(1) and (5) either summarily or by
indictment.[42]
Forty‑four of those prosecutions were for social security fraud, and 20
resulted in a sentence of imprisonment (none of which exceeded two years, and
half of which were for less than one year).[43]
2.31
Legal Aid used these statistics to draw the conclusion that courts
already have scope 'to address the full range of criminality that comes before
them', and the amendments are unnecessary.[44]
They also submitted that, in their experience, social security fraud
prosecutions typically involve a 'vulnerable group of first offenders who have
engaged in less complex offences involving overpayment', the majority of whom
are women.[45]
Legal Aid also noted that these considerations have been taken into account in
sentencing decisions, including acknowledgement that offenders had not been
spending the money they fraudulently obtained on luxury items but rather on
basic family needs.[46]
They submitted that, considering this prevalence of social security offences in
prosecutions for general dishonesty offences:
...a more appropriate response...would be one which emphasises
early intervention and diversion so as to minimise a person's contact with the
criminal justice system and the exacerbation of existing disadvantage and
marginalisation.[47]
2.32
Legal Aid also highlighted precedent from the High Court of Australia in Muldrock v The Queen (2011)
244 CLR 120, in which the court found that an increase in the maximum
penalty for an offence 'is an indication that sentences for that offence should
be increased'.[48]
2.33
The CDPP responded to these arguments from Legal Aid, submitting that
the amendments would not disproportionately impact people being prosecuted for
social security fraud.[49]
They highlighted the CDPP's General charging policy in social security fraud
matters, which states that only more serious offending should proceed on
indictment, and ordinarily the CDPP will charge more serious offenders with
obtaining financial advantage by deception.[50]
They explained that judges would retain the discretion to take circumstances of
hardship into account, and would merely have greater latitude to address very
serious frauds under these sections as amended.[51]
They also cautioned that the statistics which Legal Aid had used to draw these
conclusions should be used with care, because they reflect the prosecution
handed down in relation to each prosecution.[52]
That is, if an individual were prosecuted for multiple offences, the database
would only show the sentence imposed on one of the charges (usually the highest
individual sentence).
Committee view
2.34
The committee believes that amending the Criminal Code to double the
maximum penalty for the general dishonesty offences will provide both
prosecutors and sentencing judges the scope to address a much greater range of
criminality, which would be most appropriately prosecuted under these offences.
2.35
The committee was convinced by the evidence from the CDPP explaining
that these amendments would merely serve to expand the potential application of
general dishonesty offences. As the CDPP explained, they do not intend to use
these amendments in order to pursue 'duplicitous, rolled-up' charges, or to
deviate from their General charging policy in social security fraud matters,
which will remain in place.[53]
2.36
The committee does not believe that an increase in the available penalties
will automatically lead to unfair outcomes for social security fraud offenders
or any other section 135.1 offenders. As required, sentencing judges will refer
to judicial precedent in sentencing all offenders in this area, including
social security offenders, as well as considering all of the unique
characteristics of the individual cases.
Proposed amendments to the Crimes Act 1914
2.37
The bill seeks to make six amendments to the Crimes Act 1914 (the
Crimes Act).
Obligations of investigating
officials
2.38
Schedule 2 of the bill seeks to amend aspects of the Crimes Act in
relation to the questioning of Aboriginal and Torres Strait Islander
individuals.
2.39
In its current form, section 23H states that where an investigating
official intends to question an arrestee or protected suspect who they believe
to be Aboriginal or Torres Strait Islander they must (in some instances)
'immediately inform' that person that an Aboriginal legal aid organisation will
be notified, and then 'notify such a representative accordingly'.[54]
2.40
In 2013, the Supreme Court of the Australian Capital Territory held that
section 23H(1) did not require an investigating official to notify an
Aboriginal legal assistance organisation that they intended to question an
Aboriginal or Torres Strait Islander person before commencing that questioning.[55]
The Explanatory Memorandum states that the amendment proposed in this bill is
intended to address this judicial precedent. It advises that this finding was
contrary to the intention of section 23H(1), which is to give effect to
recommendation 224 of the Royal Commission into Aboriginal Deaths in Custody:
'to make it mandatory for an Aboriginal legal assistance organisation to be
notified upon the arrest or detention of any Aboriginal or Torres Strait
Islander'.[56]
2.41
The bill seeks to amend section 23H(1) to require that, before an
investigating official starts to question the person, they must notify the
person that 'reasonable steps' will be taken to notify an Aboriginal legal
assistance organisation of their arrest or status as a protected suspect, and
then take those steps (before commencing the questioning). Item five of the
bill would also add a new subsection, section 23H(1AB) to state that if such a
representative is notified under subsection (1), the investigating official
must not question the person until either the representative has communicated
with the person, or two hours have elapsed since notification, whichever is
earlier.[57]
2.42
The Explanatory Memorandum provides some guidance as to the meaning of
'reasonable steps' in this context:
The term 'reasonable steps' is intended to clarify what is
required by an investigating official in order to discharge their obligation to
notify an Aboriginal legal assistance organisation under section 23H(1):
reasonable steps, or reasonable attempts, to make contact with such an
organisation. For example, this could include an investigating official leaving
a voice message on a custody notification telephone service. This clarification
will take into account that in some instances an Aboriginal legal assistance
organisation may be unable to answer a telephone call or immediately respond to
a notification by an investigating official. The officer should therefore be
permitted to make reasonable attempts to notify such an organisation and
request a response when a representative from the organisation is available,
rather than, for example, having to continually call the organisation until
actual contact is made.[58]
2.43
The Explanatory Memorandum states that the requirement that an official must
wait two hours for a response from a legal assistance organisation, will give
the organisation 'a reasonable period of time within which to respond to the
investigating official's notification'.[59]
2.44
Item 15 of the bill seeks to amend section 23WG, which deals with the
provision of informed consent by Aboriginal and Torres Strait Islanders to
forensic procedures. The proposed amendment, which is largely identical to the
amendment proposed in relation to the commencement of questioning as outlined
above, would require that before an officer asks a suspect to consent to a
forensic procedure, they must inform a suspect that reasonable steps will be
taken to notify a representative of a legal assistance organisation that the
suspect is being asked to consent to a forensic procedure, and take reasonable
steps to notify said representative.[60]
2.45
The bill also proposes to add a statement to clarify that the
obligations imposed under subsection 1 do not limit, and are not limited by,
any other obligations imposed, or rights conferred, by section 23H.
2.46
The bill also seeks to repeal section 23J, which requires that the
Minister establish and update a list of interview friends and interpreters to
help Aboriginal and Torres Strait Islanders who are being investigated for
Commonwealth offences. The Explanatory Memorandum states that the lists quickly
become outdated and are generally not relied on.[61]
Item 10 of the bill would amend section 23H(9) to reflect that decision, and
re-define 'interview friend' to mean a relative or other person chosen by the
person to be questioned, a legal practitioner acting for that person, or a
representative of an Aboriginal legal assistance organisation in the State or
Territory in which the person is located.
2.47
The bill seeks to replace the definition of an 'Aboriginal legal aid
organisation' with the new description 'Aboriginal legal assistance
organisation', and define this to mean 'an organisation that is funded by the
Commonwealth, a State or a Territory to provide legal assistance to Aboriginal
persons and Torres Strait Islanders'. The Explanatory Memorandum advises that
this definition:
...is to ensure that, in the absence of a list maintained by
the Minister under section 23J, investigating officials consult an organisation
that can provide culturally sensitive and appropriate services to Aboriginal
persons and Torres Strait Islanders.[62]
Views from submitters
2.48
The committee heard a range of concerns from submitters, particularly
specialist Aboriginal and Torres Strait Islander legal services, as to the
potential impacts of these proposed amendments. In large part, submitters who
did address this proposed amendment expressed concern that:
-
the term 'reasonable steps' is vague;
-
the proposed amendment goes beyond addressing the legal outcome
resulting from the decision in R v CK [2013] ACTSC 251; and
-
subsection 23H(8) permits an investigating official to bypass the
notification obligations outlined in section 23H, and should be repealed.
2.49
The Aboriginal Legal Service of Western Australia Limited (ALSWA) expressed
support for the proposed amendment to clarify that an investigating official
must notify an Aboriginal legal assistance organisation before beginning to
question the person in question.[63]
It did, however, submit that the term 'reasonable steps' would not give
investigating officials sufficient guidance in terms of their obligations:
Some officials might consider that sending an email or a
facsimile out of office hours is sufficient notification; however, this is
highly unlikely to result in effective notification.[64]
2.50
ALS NSW/ACT echoed this concern, arguing that the ambiguity of the term 'reasonable
steps' would likely create 'unnecessary complexity' for investigating officials
attempting to notify the relevant organisation.[65]
2.51
ALSWA suggested that the proposed section 23H(1AB) should be amended to specify
that an investigating official must not commence questioning a person until the
representative of an Aboriginal legal assistance organisation has communicated
with that person, or two hours have passed since the representative was
notified, whichever is earlier.[66]
It did note, however, that if the legislation required officials to effect
'actual notification' to a representative 'without exception', this would
require additional funding to enable those organisations to operate a 24 hour 7
day custody notification service.[67]
2.52
The NSW Council for Civil Liberties (CCL) argued that the proposed
amendments constitute 'an unacceptable interference with the procedural and
fair trial rights of some of the most vulnerable people within the criminal
justice system'.[68]
Like the ALSWA, the Council argued that it could be very easy for a legal
assistance organisation to be uncontactable, whether it is due to the timing of
the arrest, the absence of a custody notification service, poor phone reception
in rural and regional areas, or a late night phone line which happens to be unmanned
at that time.[69]
2.53
CCL argued that the model used by the NSW Custody Notification Service
is preferable, largely because the relevant state legislation is silent on the
amount of time which may elapse after reaching out to a legal service.[70]
CCL highlighted that in NSW, common law has determined that 'police must defer
an interview until such time as a lawyer from an Aboriginal legal assistance
organisation can be contacted'.[71]
The Council submitted that the NSW legislative scheme can be linked to the low
levels of Aboriginal deaths in custody in the state, despite it having one of
the highest per capita rates of Aboriginal people in police custody.[72]
The Council further argued that these rules should be extended to apply to
individuals who have been taken into protective police custody, including for
mental health related reasons.[73]
2.54
The AGD reiterated that these amendments are designed to clarify the
custody notification obligations incumbent on investigating officials. They
explained that, while the intention of the legislation is that an organisation
is notified in every instance, this 'is not always possible or realistic'.[74]
The department argued that the inclusion of the phrase 'reasonable steps'
clarifies that investigating official are not expected to call an organisation
repeatedly until contact is made, even where there has been no response or
return phone call.[75]
The department disagreed that the phrase is vague, and argued that
investigating officials are neither required nor permitted to hold an
Aboriginal or Torres Strait Islander person in custody indefinitely if an
Aboriginal legal assistance organisation does not get back to them.[76]
The department also highlighted recent developments in the funding of custody
notification services in each state and territory.[77]
2.55
Several submitters raised concerns about the existence of section
23H(8), which states:
An investigating
official is not required to comply with subsection (1), (2) or (2B) in
respect of a person if the official believes on reasonable grounds that, having
regard to the person’s level of education and understanding, the person is not
at a disadvantage in respect of the questioning referred to in that subsection
in comparison with members of the Australian community generally.[78]
2.56
CCL argued that this provision creates practical difficulties because it
relies on the subjective judgement of individual investigating officials, and
may render their assessment open to legal challenge at a later time. It
recommended that this subsection be repealed.[79]
ALSWA submitted that it should be repealed because of its reliance on the
subjective views of the investigating official which are 'likely to be open to
misjudgement and bias'.[80]
They highlighted that cultural and language barriers could affect an official's
assessment of a person, if that official lacked cultural awareness:
[A] person may state that they
completed Year 10 and provide 'yes' or 'no' answers to various questions posed
by the official (eg, 'Do you understand the caution?'). This will not
necessarily be any indication of the person's education competence nor their
understanding of the process. It is preferable that officials are not required
to make individual assessments about a person's capacity to understand the
process.[81]
2.57
ALS NSW/ACT agreed with this view,
arguing that section 23H(8) is inconsistent with the purpose of section 23H:
'to afford Aboriginal and Torres Strait Islander people, as a whole, additional
protection through a custody notification service'.[82] They likewise submitted that an
Aboriginal legal assistance organisation should be notified every time an
Aboriginal or Torres Strait Islander person is taken into custody.[83]
2.58
In response, the department explained
that section 23H(8) is used sparingly, but where utilised it enables police to
respect the wishes of individuals who 'for reasons of reputation and privacy'
do not want to draw attention to their arrest.[84]
Committee view
2.59
The proposed amendments to the Crimes Act relating to the questioning of
Aboriginal and Torres Strait Islanders by investigating officials may have a
significant practical impact.
2.60
The proposed amendments would clarify that section 23H(1) involves a
requirement to inform an Aboriginal or Torres Strait Islander person that
reasonable steps will be taken to notify an Aboriginal legal assistance
organisation of their arrest or status as a protected suspect, and then take
those reasonable steps will be taken before questioning commences. The
committee regards that the phrase 'must before starting to question the person'
is very clear, and will sufficiently address the legal precedent established in
R v CK [2013] ACTSC 251, in which the court found that section 23H(1)
did not require an official to take such steps before commencing questioning.
The committee believes that, in this respect, this amendment will ensure that
section 23H ensure that the disadvantages Aboriginal and Torres Strait Islander
persons can face when coming in contact with the criminal justice system
continue to be recognised and addressed.
2.61
However, the committee notes that the proposed amendments go further
than merely addressing this legislative uncertainty, and seek to amend the
substance of the notification process itself. The bill proposes that an
investigating official should take 'reasonable steps' to notify an Aboriginal
legal assistance organisation representative, but does not define that term. It
states only that if an official does notify such a representative, they must
not commence questioning until either the representative has communicated with
the person or two hours have passed since the time of 'notification', whichever
is earlier. The Explanatory Memorandum states that 'reasonable steps' could
include leaving a voice message on a custody notification telephone service.
The department's circular explanation of the term ('"reasonable
steps" means investigating officials must take all reasonable steps to
make contact with an [organisation]')[85]
does little to provide further clarity.
2.62
The committee notes the concerns raised by submitters commenting on the
importance of achieving 'effective notification' of a legal assistance
organisation,[86]
and highlighting the factors which could hinder this (including the timing of
the arrest, the absence of a dedicated custody notification phone line, or poor
phone reception in remote areas).[87]
The committee agrees that the phrase 'reasonable steps' in this context, and as
described in the Explanatory Memorandum, is quite broad, and would benefit from
a more detailed analysis of the practicalities of taking steps to notify an
Aboriginal legal assistance organisation, including in challenging remote and
regional locations. This would also provide the opportunity to expand on the
policy rationale behind this amendment, and outline the particular challenges
which have become apparent under current notification schemes.
Recommendation 2
2.63
The committee recommends that the Explanatory Memorandum be updated to
include a more extensive explanation of 'reasonable steps' in section 23H(1) of
the Crimes Act 1914, including further examples of what taking
'reasonable steps' may entail in practice.
Controlled operation disclosure
2.64
Schedule 3 of the bill seeks to amend aspects of the Crimes Act relating
to 'controlled operations'. A 'controlled operation' is a law enforcement
operation which is carried out for the purpose of obtaining evidence that may
lead to the prosecution of a person for a serious Commonwealth offence, or
State offence with a federal aspect.[88] The Explanatory
Memorandum states that these operations are a valuable tool for the
investigation of organised crime and corruption because they enable law
enforcement officers to infiltrate criminal organisations and target 'serious
and systemic corruption'.[89]
2.65
As the law currently stands, a person who discloses information about a
controlled operation may be guilty of an offence punishable by 2 years
imprisonment.[90]
A person who discloses such information, and the disclosure will endanger the
health or safety or any person or prejudice the effective conduct of a
controlled operation, or the person intended the disclosure to have such an
effect, may be guilty of a more serious offence punishable by imprisonment for
10 years.[91]
2.66
Schedule 3 seeks to repeal these two offences and replace them with two
disclosure offence regimes: one for 'insiders' (or individuals who obtained
knowledge about the controlled operation in their capacity as an 'entrusted
person'),[92]
and another for everyone else (or 'outsiders').[93]
2.67
The Explanatory Memorandum also notes that the amendments will mirror
amendments made to section 35P of the Australian Security Intelligence
Organisation Act 1979 (Cth) (ASIO Act), which implemented recommendations
made by the Independent National Security Legislation Monitor on the impact of
that section on journalists.[94] It also states that the
higher threshold for prosecuting outsiders for an offence reflect 'the higher
standard of conduct that insiders should be held to', and greater risk to which
entrusted persons may potentially be exposed should information about a
controlled operation be disclosed.[95]
2.68
An addendum to the Explanatory Memorandum clarifies that the proposed
new offences would only apply to the disclosure of details relating to a
Commonwealth controlled operation, and would not encompass operations
authorised under state and territory legislation (including cross-border
controlled operations or local controlled operations).[96] The addendum
further explains that any state or territory disclosure offence law which would
purport to capture the conduct of an individual who would otherwise be
protected under this new Commonwealth offence regime would be inconsistent, and
therefore be excluded by virtue of sections 109 or 122 of the Constitution.[97]
2.69
Under section15HK(1), an entrusted person who discloses information
about a controlled operation, which came to their knowledge or into their
possession in their capacity as an entrusted person, would commit an offence
punishable by imprisonment for two years. An entrusted person would commit a
more serious 'aggravated' disclosure offence if they were to disclose
information about a controlled operation, which came to the knowledge or into
the possession of that person in their capacity as an entrusted person, with
the intention of endangering the health or safety of any person or prejudicing
the effective conduct of a controlled operation, or where the disclosure would
endanger the health or safety of any person or prejudice the effective conduct
of a controlled operation. This more serious offence would carry a penalty of
ten years imprisonment.
2.70
Under section 15HK(1D), an outsider would commit an offence if they
disclosed information about a controlled operation, and the disclosure would
endanger the health or safety or any person, or prejudice the effective conduct
of a controlled operation. They may commit the more serious aggravated offence
if the outsider intended to endanger the health or safety of any person, or
prejudice the effective conduct of the controlled operation, or knew that the
disclosure could have this result. These two new offences would carry the same
penalties as above, being imprisonment for two and ten years respectively.
2.71
The bill would also insert an exception to the 'outsider' offence
regime. The two 'outsider' offence provisions would not apply to a person who
could prove that the information in question had already been published and
they were not themselves involved in that publication.
2.72
The committee received limited feedback in relation to these proposed
amendments. The Law Council of Australia expressed its support owing to their
consistency with the ASIO Act, and because they reflect the Australian Law
Reform Commission's recommendation that secrecy offences including the
controlled operations offences be reviewed.[98] The Council described the
proposed new offences as 'a more proportionate response' to the danger of
controlled operations, and the safety of participants being comprised because
of a disclosure.[99]
Committee view
2.73
In the committee's view, the creation of two controlled operation
offence regimes for insiders and outsiders strikes an appropriate balance
between preserving the integrity of controlled offences, permitting the disclosure
of some information relating to controlled operations by outsiders, and holding
insiders to a high standard of accountability.
2.74
The additional element to the outsiders offence (that the disclosure
will endanger the health or safety of any person, or prejudice the effective
conduct of an operation) will protect individuals who disclosure information
about controlled operations for legitimate purposes, for example a journalist
writing about a police operation. By contrast, the absence of this extra element
in the insiders offence reflects the level of accountability to which entrusted
persons should be held.
2.75
The committee also notes that these amendments reflect those changes to
section 35P of the ASIO Act, which in turn implemented recommendations by the
Independent National Security Legislation Monitor in relation to journalists.
Protecting vulnerable persons
2.76
Schedule 6 of the bill seeks to amend section 15YR of the Crimes Act,
which relates to the publication of information that identifies a child witness
or vulnerable adult complainant.
2.77
Under section 15YR it is an offence to publish any matter (without the
leave of the court) which identifies or is likely to identify a vulnerable
person (other than a defendant) in relation to a proceeding. This does not
include an official publication in the course of the proceedings, or a document
prepared for use in particular legal proceedings.[100]
A person can apply for leave from the court to publish such information. In
making a decision, the court must have regard to any trauma to, or damage to
the reputation of, a vulnerable person that the publication could cause, and
consider whether the purpose of the publication would be to supply transcripts
of the proceedings to persons with a genuine interest in the proceedings, or
for genuine research purposes.[101]
2.78
The Explanatory Memorandum notes that there is currently no requirement,
under section 15YR, for parties to the relevant proceedings to be notified that
an application to publish information about the case has been made, or for
those parties to be notified of the judge's subsequent decision.[102]
It explains that as a result, there is a risk that parties do not have the
opportunity to provide submissions and evidence to the court on the impact of
such a decision to permit disclosure, especially where an application for
disclosure is made years after the original proceedings concluded.[103]
2.79
The bill provides further guidance in relation to applications for leave
to publish information of this nature under section 15YR. The proposed
additions to section 15YR would require that:
-
a person who applies for leave must take reasonable steps to give
written notice of the application to the prosecutor, each defendant and each
party to the proceeding (or their parent, guardian or legal representative if a
relevant party is a child);
-
such written notice must be given no later than three business
days before the day the application is to be heard, and include a copy of the
application; and
-
the application for leave must not be determined unless the court
is satisfied that the applicant has taken all reasonable steps in relation to
the above, and has considered such submissions and other evidence as it thinks
necessary for determining the application.
2.80
The Explanatory Memorandum states that this amendment will 'promote
procedural fairness and better protect vulnerable persons in criminal
proceedings', and help to ensure that they have the change to make submissions
in relation to applications which 'may significantly affect their privacy and
other interests'.[104]
It also explains that the amendments will 'give the court confidence that they
are making decisions with full regard to the trauma and reputational damage
that may result from publication, and other relevant evidence'.[105]
2.81
The South Australian Commissioner for Victims' Rights, Mr Michael
O'Connell, described this proposed amendment as 'vital reform', and highlighted
the need for the parliament to ensure that the physical and psychological
integrity of victims is protected in all stages of the criminal justice system.[106]
Mr O'Connell also provided a number of case studies to illustrate the need for
further reforms to other elements of the trial process (such as the ability for
a defendant to subpoena documents relating to the plaintiff without the
plaintiff's knowledge).[107]
2.82
Judge Graeme Henson AM, Chief Magistrate of the Local Court of New South
Wales (NSW), noted the practical difficulties which third party applicants may
face in attempting to locate and notify a vulnerable person of an application.[108]
He submitted that to achieve the stated protecting purpose of the proposed
amendment, it would be preferable if the legislation (or subordinate
legislation) permitted a more effective method of notice:
One option would be for the written notice to be given to the
prosecutor, who is required to ensure that a copy is provided to the vulnerable
person (for instance, see s 299C Criminal Procedure Act 1986 (NSW),
which concerns the notification of an application for leave to seek the
production of counselling documents relating to a complainant in sexual assault
proceedings).[109]
2.83
In response, the department explained that that, where an application is
being made years after a matter was heard, the prosecutor would not necessarily
be in a better position to locate a vulnerable person than a third party.[110]
It also highlighted that, setting aside these practical considerations,
attempting to locate the vulnerable person is beyond the powers and functions
of the CDPP.[111]
Committee view
2.84
The committee believes that this amendment would help to better protect
children and vulnerable adult complainants, even after some time has passed
since a court matter has concluded. It would ensure that the privacy and safety
of vulnerable victims of crime and child witnesses is given priority.
2.85
The committee believes that the amendment is drafted clearly, and would
provide applicants with a clear understanding of their obligation to give
written notice of the application to relevant parties. The involvement of the
prosecutor, defendant/s and other parties would maximise the chances that the vulnerable
person can be located and advised in a timely manner. The committee notes Judge
Henson's suggestion that a prosecutor be required to ensure that a copy of the
order is provided to a vulnerable person, however the committee believes that
this would place too great a burden on the prosecutor. The committee also notes
that, as the department submitted, if an application were to be made years
after a matter concluded the prosecutor may not be in a greater position to
notify a vulnerable complainant.
2.86
The role of the court in determining an application for leave in these
matters would also serve as a safeguard in protecting the interests of the
vulnerable person. The court would be required to determine that reasonable
steps had in fact been taken to give the vulnerable person notice of the
application, in order to determine the application itself.
Personal information and integrity
purposes
2.87
Schedule 7 of the bill seeks to add a new Part to the Crimes Act (Part
VIID), which would permit the collection, use and disclosure of personal
information for the purposes of preventing, detecting, investigating or dealing
with fraud or corruption against the Commonwealth.
2.88
Currently, the Commonwealth Fraud Control Framework requires individual
Commonwealth entities to manage fraud matters, however the Privacy Act 1988
(Cth) generally restricts the sharing of personal information about criminal
matters to law enforcement agencies.[112]
The Explanatory Memorandum states that the proposed amendments seek to address
this limitation, and 'reflect the reality that most fraud and corruption
matters are dealt with by the agency where they occur'.[113]
It provides the following case study to illustrate the difficulties this can
create in proving and prosecuting fraud:
[W]hen Commonwealth Agency A is investigating a fraud by
Person X against it and seeks personal information of Person X from Entity B,
Entity B cannot pass the information to Commonwealth Agency A as the fraud does
not relate to the activities or function of Entity B. Consequently, many
instances of fraud or corruption against the Commonwealth are not fully
investigated or resolved, leaving to a significant cost to the Commonwealth.[114]
2.89
The amendment seeks to insert three new sections which would permit the
collection of data for 'integrity purposes', meaning the purpose of preventing,
detecting, investigating or dealing with any of the following:
-
serious misconduct by a public official, or Commonwealth company
officer or employee, or Privacy Act 1988 agency employee or agent;
-
conduct that may have the purpose or effect of inducing such
serious misconduct;
-
fraud that has or may have a substantial adverse impact on the
Commonwealth or a 'target entity' (being a Privacy Act 1988 agency or
wholly-owned Commonwealth company); or
-
an offence against Chapter 7 of the Criminal Code (which
relates to the proper administration of Government).
2.90
Proposed section 86C would permit a target entity to collect 'sensitive
information' for an integrity purpose where it is reasonably necessary for one
or more of the entity's functions or activities.[115]
2.91
The Explanatory Memorandum provides a further case study to explain how
these amendments would enhance the ability of Commonwealth agencies to combat
fraud:
[I]f Person X defrauds a program administered by Commonwealth
Agency A, [section 86C] authorises Commonwealth Agency A to collect sensitive
information on Person X for the purposes of investigating that fraud. However,
if Person X defrauds a program administered by Commonwealth Agency B that does
not relate to the functions of Commonwealth Agency A, this section could not
authorise Agency A to collect sensitive information about Person X. If
Commonwealth Agency A sought to collect sensitive information on Person X for
one of its activities but it was not for an integrity purpose, Commonwealth
Agency A would not be able to use this Part to collect sensitive information.[116]
2.92
Section 86D would permit a target entity to use 'personal information'
for an integrity purpose relating to the entity.[117]
2.93
Section 86E 'enables personal information to be disclosed to a target
entity for an integrity purpose related to that entity'.[118]
Subsection 1 explains that section 86E would apply if a law limits disclosure
of some or all personal information by a person, body or authority unless
otherwise authorised by a law of the Commonwealth. Subsection 2 provides the
authority to disclose personal information by permitting a person, body or authority
to disclose 'personal information' to a target entity for an integrity purpose,
if that person, body or authority reasonably believes that personal information
is related to one or more of the target entity's functions or activities.
Subsection 3 limits the authority to make such a disclosure to a person who is
authorised to make such disclosures for integrity purposes. It also expressly
excludes the AFP from these proposed arrangements, as it has its own
information sharing arrangements.[119]
2.94
The Explanatory Memorandum explains that the impact on privacy of the
proposed amendments on privacy is minimised by facilitating information
sharing, not compelling the disclosure of personal information.[120]
It also highlights the safeguards included in the amendments, including
limitations on the bodies which can collect, use and receive personal
information for integrity purposes, a requirement that the transfer of such
information can only occur through authorised officials, the fact that the
amendments do not override or impact on other related laws, and the potential
publication of guidelines to assist entities to understand how information
sharing is intended to occur.[121]
2.95
The Explanatory Memorandum also notes that a Privacy Impact Assessment
has been conducted in relation to Schedule 7.[122]
2.96
Legal Aid NSW submitted that there is insufficient explanation for why
it is necessary to collect, use and disclose 'sensitive information' for the
purposes of combatting fraud and corruption.[123]
Legal Aid also highlighted the existence of exemptions to the APP where
entities suspect that an unlawful activity, or serious misconduct has been, is
being, or may be engaged in, and the possibility of otherwise obtaining a
warrant to access and use information for investigation and law enforcement
purposes.[124]
2.97
Mr Timothy Pilgrim noted that the APPs do not permit the disclosure of
personal information to non-law enforcement agencies investigating fraud.[125]
He explained that the proposed amendments will, therefore, impact on privacy by
authorising disclosure in these situations, and stated that any law which
invokes exceptions to the APP 'should be drafted as narrowly as possible and be
a reasonable, necessary and proportionate response to meeting the specific
policy objectives of the Bill'.[126]
He encouraged the department to publish the PIA which is referred to in the
Explanatory Memorandum, and to update it as necessary.[127]
2.98
The Commissioner also commended the proposed inclusion of section 86G,
which permits the publication of Guidelines approved by the Information
Commissioner on the operation of the new Part.[128]
He explained that clear, rigorous and practical guidelines will help agencies
to understand their obligations:
I would expect the guidelines to outline steps that should be
taken to ensure a robust privacy management framework, and to seek to build in
safeguards and embed a culture of privacy that enables compliance. The
guidelines should also outline how agencies will ensure transparency in
relation to the way that they collect, use and disclose their employees'
personal information.[129]
2.99
The CDPP expressed its support for this proposed amendment, arguing that
it will enhance the means available to the Commonwealth as a whole to combat
fraud and corruption.[130]
The Law Council of Australia likewise expressed its support for measures
designed to combat corruption and fraud, provided those measures are necessary
and proportionate.[131]
Committee view
2.2
In the committee's view, these proposed amendments are a logical
response to the practical reality that most cases of fraud and corruption are
dealt with within the agency where they occur, including non-law enforcement
agencies. Clearly, the personal information framework within the Crimes Act
hampers the ability of some Commonwealth agencies to investigate allegations of
fraud or corruption against the Commonwealth, and this is rightfully being
remedied.
2.3
The committee noted Mr Pilgrim's submission that any amendment which
will impact on the right to privacy should be drafted as narrowly as possible,
and be a reasonable, necessary and proportionate response to meeting the policy
objective.[132]
The committee believes that these amendments meet this description, as they
will enable agencies to share information to feasibly investigate serious
criminal allegations, while not compelling the disclosure of personal
information.
2.4
The committee also notes the many safeguards which are included in the
amendments, including limitations on the types of agencies which can collect
information, and the officials who can request that information, and the
proposed publication of guidelines dealing with this information sharing. The
committee also notes that the department has completed a PIA in relation to these
amendments, and would welcome its publication, if appropriate.
Exemptions to the spent conviction
scheme
2.100
Schedule 8 of the bill proposes to amend section 85ZL of the Crimes Act
to include the Law Enforcement Conduct Commission of New South Wales (LECCNSW)
under the definition of a 'law enforcement agency', enabling the LECCNSW to use
and disclose spent convictions pursuant to sections 85ZZH and 85ZZJ of the Act.
2.101
The LECCNSW was established under the Law Enforcement Conduct
Commission Act 2016 (NSW) to replace the NSW Police Integrity Commission,
the Police Division of the Office of the Ombudsman, and the Inspector of the
Crime Commission. The Explanatory Memorandum states that by enabling the
LECCNSW to access information about spent convictions, the agency will be able
to take this information into account in assessing prospective employees,
disclosing the information to other law enforcement agencies, and using this
information to investigate or prevent crimes.[133]
It highlights the primary function of the LECCNSW—to identify and investigate
serious misconduct and corruption by law enforcement officers and
maladministration by law enforcement agencies—as a reason for permitting the
use and disclosure of spent convictions. It explains that, because LECC
officers 'will have access to highly sensitive police and crime commission
information and intelligence' comprehensive vetting is essential.[134]
Committee view
2.102
The committee did not receive any comment in relation to this proposed
amendment. The committee believes that the LECCNSW should be permitted to
access information about spent convictions, considering the functions of the organisation
and the high level of trust to be placed in its employees.
An obsolete reference to the death
penalty
2.103
Schedule 5 of the bill would remove a reference in section 20C(2) of the
Crimes Act to offences which are punishable by death. The Explanatory
Memorandum explains that, as the death penalty has been abolished in Australia
at both a Federal and State and Territory level, the reference has no utility.[135]
2.104
The committee notes that this is an uncontroversial amendment, which
will have no practical impact.
Recommendation 3
2.105
Subject to the previous recommendations the committee recommends that
the Senate pass the bill.
Senator the
Hon Ian Macdonald
Chair
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