Bills Digest No. 77, 2016–17
PDF version [776KB]
Cat Barker
Foreign Affairs, Defence and Security Section
Monica Biddington
Law and Bills Digest Section
23 March 2017
Contents
The Bills Digest at a glance
Purpose and structure of the Bill
Background
International crime cooperation
Other measures
Committee consideration
Legal and Constitutional Affairs
Legislation Committee
Senate Standing Committee for the
Scrutiny of Bills
Policy position of non-government
parties/independents
Position of major interest groups
International Crime Cooperation
(Schedules 1–4)
Protecting vulnerable persons
(Schedule 5)
Slavery-like offences and evidence
relevant to slavery-like and trafficking in persons offences (Schedule 6)
Amendments to the AFP Act
(Schedule 8)
Giving the Australian Charities and
Not-for-profits Commission access to AUSTRAC information (Schedule 9)
Financial implications
Statement of Compatibility with Human
Rights
Parliamentary Joint Committee on
Human Rights
Key issues and provisions
Assistance to international courts
and tribunals (Schedule 1)
Authorising the provision of lawfully
obtained material to the ICC or an IWCT
Producing documents or other articles
Telecommunications related amendments
(Schedule 1 cont.)
Covert access to stored
communications
Historical telecommunications data
Prospective telecommunications data
Obligations of carriage service
providers et cetera, to provide assistance, and recovery of costs for providing
assistance
Mutual assistance and proceeds of
crime for foreign serious offences (Schedule 2)
Search warrants
Production of documents or other
articles
Execution of surrender and temporary
surrender warrants under the Extradition Act 1988 (Cth) (Schedule 3)
Foreign Evidence amendments (Schedule
4)
Protecting vulnerable persons
(Schedule 5)
Slavery-like offences and relevant
evidence (Schedule 6)
Debt bondage and slavery-like
offences
Evidence relevant to slavery-like
offences
Evidence relevant to trafficking in
persons offences
Reporting on investigations and
proceedings for offences against the War Crimes Act 1945 (Cth) (Schedule 7)
Amendments to the Australian Federal
Police Act (Schedule 8)
Alcohol and drug testing (Part 1
of Schedule 8)
Commissioner’s power to delay date of
effect of resignation (Part 2 of Schedule 8)
Amendments to the AML/CTF Act
(Schedule 9)
Electronic reporting of physical
currency movements (Part 1 of Schedule 9)
Australian Charities and
Not-for-profits Commission access to AUSTRAC information (Part 2 of
Schedule 9)
Amendments to the Australian Crime
Commission Act (Schedule 10)
Background checking for major
national events (Schedule 11)
Concluding comments
Date introduced: 23
November 2016
House: House of
Representatives
Portfolio: Justice
Commencement: Sections 1
to 3 on Royal Assent. Schedules 3, 5, 6, 7, 9, 10, 11, Parts 1 and 3 of Schedule 2,
and Part 2 of Schedule 8 the day after Royal Assent. Schedules 1
and 4, Part 2 of Schedule 2, and Part 1 of Schedule 8 on
proclamation or six months after Royal Assent, whichever is earlier.
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 Federal Register of Legislation website.
All hyperlinks in this Bills Digest are correct as
at March 2017.
The Bills Digest at a glance
- The
Crimes Legislation Amendment (International Crime Cooperation and Other
Measures) Bill 2016 (the Bill) contains 11 schedules of discrete measures that
are intended to update several aspects of the criminal justice and law
enforcement legislative framework to respond to issues identified through
ongoing, internal review
- Schedules 1–4 of the Bill will address the provision
of materials lawfully obtained by Australian law enforcement agencies,
including telecommunications data, to the International Criminal Court and the
international war crimes tribunals. The changes are consistent with existing
arrangements for information sharing with foreign countries under the Mutual
Assistance in Criminal Matters Act 1987. The amendments will also address drafting
inconsistencies and practical issues that have arisen in international crime
cooperation, particularly between search warrant provisions under both the Proceeds
of Crime Act 2002 and the Mutual Assistance in Criminal Matters Act 1987
- Schedules 5–11 include amendments to a range of
domestically focused criminal justice and law enforcement legislation. The
proposed amendments include:
-
updating
the drug and alcohol testing regime that applies to the Australian Federal
Police (AFP) ( Schedule 8)
- increasing
the delay that the AFP Commissioner may impose in particular circumstances on
an AFP employee’s nominated date of resignation (Schedule 8)
- extending
the protections afforded to vulnerable witnesses (Schedule 5)
- expanding
the definition of debt bondage and the list of matters to which a trier of fact
may have regard when determining whether particular elements of slavery-like
and trafficking in persons offences are proven (Schedule 6)
- allowing
the Australian Charities and Not-for-profits Commission direct access to the Australian
Transaction Reports and Analysis Centre’s financial intelligence(Schedule 9)
and
- enabling
AusCheck to conduct criminal and national security-related background checks on
individuals in connection with their accreditation relating to a major national
event (Schedule 11).
- The Bill is being considered by the Senate Legal and
Constitutional Affairs Committee. The Committee received 6 submissions on the
Bill and is due to report on 23 March 2017. Submitters were broadly supportive
of the Bill, especially the proposed changes relating to vulnerable witnesses
and amendments relating to slavery-like and trafficking in persons offences.
However, the Australian Federal Police Association opposed the proposed
amendments to the delayed resignation provisions in Schedule 8 of
the Bill
- The Senate Standing Committee for the Scrutiny of Bills has
reported on the Bill. It sought the Minister’s advice on and further
justification for several measures and has requested the information contained
in the Minister’s response be incorporated into the Explanatory Memorandum.
Purpose and
structure of the Bill
The Crimes Legislation Amendment (International Crime
Cooperation and Other Measures Bill 2016 (the Bill) contains 11 Schedules.
The amendments in Schedules 1–4 all relate to international crime
cooperation, while Schedules 5–11 contain discrete amendments to several
Acts relating to Commonwealth criminal justice, law enforcement and national
security.
The purpose of Schedules 1–4 of the Bill is to:
The purposes
of the remaining schedules of the Bill are to:
-
amend the Crimes Act 1914
to extend an offence of identifying a child witness or vulnerable adult
complainant to also include identification of child complainants, and amend the
application of certain procedural protections inserted in the Crimes Act
and the Criminal
Code Act 1995 (Criminal Code) by the Crimes Legislation
Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other
Measures) Act 2013 (Vulnerable Witness Act) (Schedule 5)
- amend the Criminal Code to expand the definition of debt
bondage and change the location of that offence in the Act, and to expand the
matters to which a trier of fact may have regard when determining whether particular
elements of slavery-like and trafficking in persons offences are proven, and
make consequential amendments to other laws (Schedule 6)
- amend
the War Crimes
Act 1945 (War Crimes Act) to remove the annual reporting
requirement under the Act and instead require the Attorney-General to report to
Parliament only where an investigation or proceeding is started or carried on
in the preceding year (Schedule 7)
-
amend the Australian Federal
Police Act 1979 (AFP Act) to update the alcohol and drug testing
regime, and to increase the delay that the Commissioner may impose in
particular circumstances on an Australian Federal Police (AFP) employee’s
nominated date of resignation (Schedule 8)
-
amend the Anti-Money
Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF Act)
to provide for electronic reports to be made to the Australian Transaction
Reports and Analysis Centre (AUSTRAC) of physical currency being moved out of
Australia, and to allow the Australian Charities and Not-for-profits Commission
direct access to AUSTRAC’s financial intelligence (Schedule 9)
-
amend the Australian Crime
Commission Act 2002 (ACC Act) to provide a legal basis for the
official use of alternative names and alternative acronyms for the entity that
is now referred to as the Australian Criminal Intelligence Commission (Schedule 10)
and
- amend the AusCheck Act 2007
to enable AusCheck to conduct criminal and national security-related background
checks on individuals in connection with their accreditation relating to a
major national event (Schedule 11).
Background
The Minister for Justice indicated that as a whole, the
Bill is intended to update several aspects of the criminal justice and law
enforcement legislative framework to respond to issues identified through
ongoing, internal review:
The government is committed to ensuring
Australia's criminal justice framework is as strong as it can be—striking the
right balance between protecting fundamental rights while ensuring justice is
served. We are committed to ensuring our law enforcement and justice agencies
have the requisite powers to appropriately contribute to the fight against
crime at home and abroad.
To that end, we keep our criminal justice
framework under constant review—our agencies, policies, laws and processes—to
ensure that we have a regime in place that is well equipped for the job of
tackling crime.
...
Australia's criminal justice framework is both fair and
strong. But it never serves to be complacent. Where we find opportunities to
fine-tune aspects of our regime, we will take these up. This bill, which is
very comprehensive in nature, is an example of the government doing exactly
that.[2]
International
crime cooperation
The amendments proposed in Schedules 1–4 are
broadly grouped under an international crime cooperation umbrella. The
amendments include facilitating the access of stored communications,
prospective telecommunications data and historical telecommunications data with
international courts and tribunals. There is not specific background
information provided on each measure and these Schedules of the Bill have not
attracted much attention from key stakeholders. The nature of the Schedules
1–4 is such that they are addressing some practical, technical and
legislative consistency issues with no critical timeframe identified in the
extrinsic materials to the Bill.
The measures in Schedule 1 may complement the
implementation of the United Nation’s General Assembly adopting resolution
71/248 on 21 December 2016 to establish an ‘International, Impartial and
Independent Mechanism to assist in the Investigation and Prosecution of those
Responsible for the Most Serious Crimes Under International law committed in
the Syrian Arab Republic since March 2011’[3]
... This Mechanism has two main tasks:
- To
collect, consolidate preserve and analyse evidence of violation of
international humanitarian law and human rights violations and abuses; and
- To prepare
files in order to facilitate and expedite fair and independent criminal
proceedings, in accordance with international law standards, in national,
regional or international courts or tribunals that have or may in the future
have jurisdiction over these crimes, in accordance with international law.[4]
The Mechanism will further ‘assist in the investigation
and prosecution of those responsible for the most serious crimes under
international law, in particular the crime of genocide, crimes against humanity
and war crimes as defined in relevant sources of international law.[5]
The proposed amendments in Schedule 1 to the Bill do not
authorise Australian law enforcement agencies to provide material to the
Independent Mechanism. However, if matters considered by the Mechanism proceeded
to investigation by the International Criminal Court Prosecutor, or a
prosecution before the International Criminal Court, the proposed amendments
would enable Australian law enforcement agencies to provide lawfully obtained
material to the Court. This could potentially be relevant if a person under
investigation by the ICC Prosecutor or subject to prosecution had some
connection with Australia. (For example, an Australian citizen or resident who
participated in hostilities in Syria was being investigated or prosecuted; or
if a person of another nationality had some form of contact or dealing with an
Australian person.)
On 17 February 2017, The Guardian reported that in
establishing a new unit in the United Nations in Geneva to prepare prosecutions
of war crimes committed in Syria ‘it will not be able to prosecute, [although]
the unit will prepare files that could be used in future prosecutions by states
or by the international criminal court in The Hague.’ Funding for the unit is initially
voluntary and Australia announced on 28 February that it would contribute $150
000 in response to the United Nations call for states to fund start-up costs
for the Mechanism.[6]
Other
measures
Schedules 5–11 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 beginning on page 10 of this Digest.
Committee
consideration
Legal and
Constitutional Affairs Legislation Committee
The Bill has been referred to the Legal and Constitutional
Affairs Legislation Committee for inquiry. The Committee was granted an
extension of time for reporting until 23 March 2017. Details of the inquiry are
at the inquiry
homepage.[7]
Senate
Standing Committee for the Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of Bills
(Scrutiny of Bills Committee) sought further justification from the Minister on
proposed amendments in Schedules 1 and 4.[8]
Item 6 in Schedule 1 raised the concern of the
Scrutiny of Bills Committee to the extent that it inserts two new exceptions to
the offences in subsections 45(1) and 45(2) of Surveillance Devices Act 2004
(the SD Act), which apply to persons who contravene the prohibition on
the use, recording, communication and publication of ‘protected information’. (Subsection
45(3) also prohibits the admission of protected information into evidence in
any proceedings.) Subsections 45(4) and 45(5) contain exceptions to the
offences in subsections 45(1) and 45(2) and the rule in subsection 45(3). ‘Protected
information’ is a defined term in subsection 44(1) that includes, in broad
terms, information obtained from the use, or related to the use, of a
surveillance device under warrant or authorisation. The amendments will allow
the communication of information for the purpose of providing it to the ICC or
an IWCT if that communication is authorised under the ICC Act or the IWCT
Act (as applicable). The effect of the proposed exceptions is that
information lawfully obtained under a surveillance device warrant executed for
a domestic purpose can then be lawfully disclosed to the ICC or an IWCT in
response to a formal request (proposed paragraphs 45(4)(h) and (i)).
The proposed exceptions would also appear to extend to interim communications
of information (for example, from one officer to another) for the purpose of an
ultimate disclosure to the ICC or an IWCT. Aligned with this item, Item 95
inserts further exceptions to the offences in subsections 45(1) and 45(2) and
the rule in subsection 45(3) for the communication of information for the
purpose of providing it to a foreign country or the ICC or an IWCT, where the
information was obtained under, or relates to, a surveillance device warrant
issued in relation to an international assistance authorisation requested by that
entity the MA Act (proposed paragraph 45(4)(f)).
Subsection 13.3(3) of the Criminal Code provides
that a defendant who wishes to rely on any exception etc provided by the law
creating an offence bears an evidential burden in relation to that matter. The
Scrutiny of Bills Committee’s concern related to the reversal of the burden of
proof on to the defendant without justification and the Committee sought
further justification from the Attorney-General on the creation of these
exceptions under subsection 45(4). The response received was that:
Given communications to foreign countries, the International
Criminal Court and international war crimes tribunals in international crime
cooperation matters are confidential, these matters would be peculiarly within
the knowledge of the defendant and would be significantly more difficult and
costly for the prosecution to disprove than for the defendant to establish the
matter. For this reason it would be for the defendant to raise evidence as to
the application of these exceptions.[9]
The Scrutiny of Bills Committee expressed concern at the
broad delegation of administrative powers in item 3 of Schedule 4 relating
to the power to issue a certificate which provides prima facie evidence to a
court of the matters stated in the certificate, under the Foreign Evidence
Act 1994. The Committee sought further justification that what was provided
in the explanatory memorandum as to the level of delegation:
In this case, the explanatory memorandum (at p.164) states
the reason for removing the limit on the power of delegation as allowing for
'reliability, flexibility and promptness, with sufficient oversight'. However,
it is not clear to the committee why the bill proposes removing any detail
regarding the office-holder who may be delegated this important function. The
explanatory memorandum states that the delegation will not be to persons below
the executive level, yet there is nothing on the face of the bill (or in
section 17 of the Law Officers Act 1964) which restricts the delegation
in this way.[10]
The Minister stated that in practice, the instrument of
delegation specifies particular position numbers so will be limited to only
certain positions that the Attorney-General considers appropriate in the
circumstances.
The Scrutiny of Bills Committee also sought the Minister’s
advice on several other matters.
The Committee considered that the amendments in Schedule
3 to the Extradition Act were imposing an obligation on the court,
rather than a discretion, for a magistrate to commit a person to prison to
await surrender under an extradition warrant. In his response to request for
further advice, the Attorney-General explained that:
the amendments to sections 26 and 35 of the Extradition Act
address the logistics for the execution of a surrender warrant when a person is
on bail and a surrender warrant has been issued to surrender the person to an
extradition country. The surrender warrant is the instrument that empowers the
police to bring an eligible person into custody to await transportation out of
Australia.[11]
The Minister confirmed that the amendments do not affect
existing bail processes under the Extradition Act, explained further under Key
Issues and Provisions.[12]
The Committee questioned whether the application of the proposed
amendments in Schedule 5 to an offence of identifying a vulnerable
witness or complainant would impose retrospective criminal liability, and if
so, how that was justified.[13]
The Committee was satisfied with the Minister’s response, which stated that the
provisions do not impose retrospective criminality, but requested that the
further information it contained be included in the Explanatory Memorandum.[14]
Proposed amendments in Schedule 8 will allow
regulations made in relation to drug and alcohol testing of AFP appointees to
apply, adopt or incorporate a matter contained in a standard published by or on
behalf of Standards Australia. The Committee noted its ongoing concerns about
provisions that operate in this way, including lack of accessibility to the
content of standards.[15]
The Committee accepted the Minister’s advice that AFP could not make the
standards available to the public due to copyright restrictions and noted the
advice that all AFP appointees would be able to access the standards via the
agency’s intranet. However, it sought further advice from the Minister on
whether the Bill could be amended to include a statutory requirement for the
standards to be made freely and readily available to all AFP appointees.[16]
Further detail is provided in the analysis of Schedule 8 beginning on page
19 of this Digest.
Policy
position of non-government parties/independents
At the time of publication of this Digest, there is no public
indication of the policy position of any non-government parties and
independents on this Bill.
Position of
major interest groups
International
Crime Cooperation (Schedules 1–4)
The Law Council of Australia (LCA) is the only stakeholder
to have made any comment on the amendments in Assistance to international
courts and tribunals (Schedule 1). As outlined further under Key
Issues and Provisions, the LCA is supportive of the amendments in Schedule 1.The
LCA did not oppose in principle measures relating to mutual assistance in
criminal matters (Schedule 2) which seek to ensure consistency between
the MA Act and the Proceeds of Crime Act 2002.[17]
The Commonwealth Director of Public Prosecutions (CDPP)
expressed broad support for amendments that will impact on mutual assistance
and extradition processes proposed in Amendments relating to mutual
assistance in criminal matters (Schedule 2) and amendments relating
to surrender warrants in the Extradition Act 1988 Schedule 3 respectively.[18]
The CDPP noted its support of the proposed Amendments
relating to foreign evidence (Schedule 4). Similarly, the LCA did
not consider that the proposed amendments to the Foreign Evidence Act
are problematic.[19]
Protecting
vulnerable persons (Schedule 5)
The CDPP, Anti-Slavery Australia, the LCA and the Justice
and International Unit of the Uniting Church in Australia’s Synod of Victoria
and Tasmania (Uniting Church) support the proposed amendments to provisions
that relate to protecting vulnerable witnesses and complainants.[20]
The CDPP noted that the amendments will correct an anomaly
apparently inadvertently introduced by amendments made in 2013 and since brought
to the attention of the Attorney-General’s Department by the CDPP.[21]
The 2013 amendments extended an offence that applied for publishing a matter where
the matter identifies, or is likely to identify, certain children in relation
to proceedings, to also apply to vulnerable adult complainants. However, they
also narrowed the offence so that it applied to identification of child
witnesses only, instead of child witnesses and child complainants.[22]
The CDPP provided a practical example of why it is important to include child
complainants among those to whom the protection against identification applies:
It is not unusual for online child exploitation matters
prosecuted by the CDPP to involve victims who are not witnesses in the
proceedings. This is because the commission of the crime can often be proved by
digital means, without recourse to sworn evidence from a child. In other cases
the child (for example, an infant) is not of an age where evidence could be
given, or is overseas or is not otherwise available to give evidence.[23]
Anti-Slavery Australia noted that many victims of human
trafficking and slavery-related offences fear that their safety will be
compromised by assisting with investigation and prosecution of those offences,
and that this fear can be a significant impediment to successful prosecutions
(due to the importance of victim testimony). It considered the amendments ‘will
enable witnesses to give their best possible testimony, thereby strengthening
prosecutions and promoting the access to justice’ for victims of such offences.[24]
Slavery-like
offences and evidence relevant to slavery-like and trafficking in persons
offences (Schedule 6)
The CDPP, Anti-Slavery Australia, the LCA and the Uniting
Church support the proposed amendments relating to the offence of debt bondage.
They also support those that will expand the circumstances that can be taken
into account by a trier of fact in determining whether elements of slavery-like
and trafficking in persons offences are proven, and that will enable those
factors to be considered in determining additional elements of slavery-like
offences.[25]
Amendments
to the AFP Act (Schedule 8)
The Australian Federal Police Association (AFPA) stated
that it had no concerns with the proposed amendments relating to drug and
alcohol testing. However, it strongly opposes the proposed extension of the
delay that the Commissioner of the AFP may impose on an AFP employee’s
nominated date of resignation (from the current 90 days to a proposed
180 days).[26]
Section 30A of the AFP Act is intended to prevent AFP employees
from resigning in anticipation of being terminated for a conduct or corruption
issue by allowing the Commissioner to substitute a later date from which a
resignation will take effect in certain circumstances. However, the AFPA
considers there is no practical justification for the provision (which it also opposed
when it was first introduced in 2006).[27]
AFP’s submission to the Legal and Constitutional Affairs Legislation Committee
expands on the justification included in the Explanatory Memorandum and
responding to the AFPA’s comments.[28]
Further detail is provided in the analysis of Schedule 8 beginning on page
19 of this Digest.
Giving the
Australian Charities and Not-for-profits Commission access to AUSTRAC
information (Schedule 9)
The Uniting Church supports the proposed amendments to
provide the Australian Charities and Not-for-profits Commission (ACNC) with
access to AUSTRAC’s financial intelligence.[29]
It considered that this amendment would improve the ACNC’s ability to conduct
thorough due diligence before registering charities and not-for-profit
organisations, and to monitor registered organisations to ensure they are not
being misused to launder criminal proceeds or finance terrorism.[30]
Financial
implications
The Explanatory Memorandum states that the cost of
implementing the changes to the AusCheck Act in Schedule 11
will be cost recovered, so will have ‘negligible financial implications’, and
that the remaining Schedules will have little or no financial impact on
Government revenue.[31]
AusCheck operates on a cost recovery basis, so this does not represent any
change to existing arrangements.[32]
Statement of Compatibility with Human Rights
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.[33]
Parliamentary
Joint Committee on Human Rights
In its examination of the Bill, the Parliamentary Joint
Committee on Human Rights raised a concern about the new obligation in Schedule
3 for a magistrate, judge or court to commit a person to prison to await
surrender under an extradition surrender or temporary surrender warrant.[34]
The Committee noted that this requirement will engage and limit the right to
liberty, further questioning if it is proportionate to the objective of preventing
suspects from absconding.[35]
The Government noted in its Statement of Compatibility of Human Rights that:
the limitation on these rights is reasonable and necessary
given the serious flight risk posed in extradition matters and Australia’s
international obligations to secure the return of alleged offenders to face
justice... Reporting and other bail conditions are not always sufficient to
prevent individuals who wish to evade extradition by absconding. In extradition
cases there is often an increased risk of persons absconding before they can be
surrendered to the requesting foreign country. If a person who has been
remanded on bail absconds during extradition proceedings, it jeopardises
Australia’s ability to extradite the person which in turn would impede
Australia’s treaty obligations to return a person to the requesting country...
The validity of Australia’s process of remanding a person during extradition
proceedings has been confirmed by the High Court in Vasiljković v
Commonwealth [2006] HCA 40.[36]
The Committee has sought the Minister’s advice as to why
these amendments are framed as an obligation on the court rather than a discretion
and how the existing bail process under the Act fits with the amendments
proposed by the Bill.[37]
Key issues
and provisions
Assistance to international
courts and tribunals (Schedule 1)
The ICC Act implements Australia’s obligations under
the Rome Statute, the treaty by which the International Criminal Court (the
ICC) was established.[38]
The ICC Act outlines procedures to enable Australia to assist the ICC in
its administration of justice. Importantly to note, subsection 3(2) of the Act
explicitly states that the Act does not affect the primacy of Australia’s right
to exercise its jurisdiction with respect to crimes within the jurisdiction of
the ICC.
The Rome Statute requires, under Article 88, that States
Parties must ensure that there are procedures available under their national
law for many forms of cooperation, including assistance which is not prohibited
by the law of the requested State, with a view to facilitating the
investigation and prosecution of crimes within the jurisdiction of the ICC.[39]
This Bill will improve Australia’s procedures for providing assistance to the
ICC and International War Crimes Tribunals (IWCTs) for investigating and
prosecuting offences within their jurisdiction by aligning the procedures with
those relating to providing assistance to foreign countries under the MA Act.
The Bill facilitates the provision of documents and records to the ICC and
IWCTs which will also include stored communications and prospective telecommunications
data.
In its submission to the Senate Legal and Constitutional
Affairs Committee’s inquiry into the Bill, the LCA flagged a concern about the
need to implement recommendations made by the Joint Standing Committee of
Foreign Affairs, Defence and Trade in its ‘A World Without the Death Penalty’
Report before concluding that ‘generally providing information to the ICC or
IWCTs is not a problem, in itself, because those bodies are not empowered to
order the death penalty.’[40]
The LCA supports the amendments proposed by Schedule 1.
There are no apparent concerns with the amendments to
Schedule 1.
Schedule 1 contains 9 Parts to facilitate the
provision of Australian assistance to the ICC and the IWCTs for investigating
and prosecuting offences within their jurisdiction.
The Parts will:
- allow the process of providing lawfully obtained material to
the ICC or an IWCT to be authorised by the Attorney-General rather than
being brought before a magistrate (Part 1)
- clarify the roles of judicial officers under the ICC Act
and IWCT Act in proceedings to require the production of documents
or other articles (Part 2)
- enable the ICC and IWCTs to request and receive stored
communications subject to the Attorney-General’s authorisation (Part 3)
- allow the AFP to provide historical telecommunications data
to the ICC and the IWCT’s on an agency-to-agency basis (Part 4)
- enable the collection and provision of prospective
telecommunications data for international law enforcement purposes (Part 5)
- enable Australia to provide surveillance assistance to the
ICC and IWCTs, in accordance with the Attorney-General’s authorisation
and the usual domestic processes for obtaining warrants (Part 6)
-
enable a member or special member of the AFP, or a state or
territory police officer, to carry out a forensic procedure on a suspect, at
the request of the ICC or an IWCT. The Part will also clarify procedures
for obtaining forensic material from a volunteer on an informal basis on
behalf of a request by a person investigating an offence within the
jurisdiction of the ICC or an IWCT (Part 7)
-
improve the operation of the proceeds of crime provisions in the ICC
Act and the IWCT Act, including amendments to the authorisation process and
ensuring that investigative and restraint tools are available for
investigation or prosecution at the ICC or an IWCT (Part 8)
-
enable carriers and carriage service providers to recover
costs, under the cost recovery regime in the Telecommunications Act 1997,
that are incurred in processing requests relating to investigations and
prosecution of ICC or IWCT offences (Part 9).
Authorising the provision of lawfully obtained material to
the ICC or an IWCT
The key amendment in Part 1 is Item 2, which will
insert new Division 5A into the ICC Act. The changes will align
the process with that which currently applies for foreign countries under
section 13A of the MA Act. Proposed section 69A will allow the
Attorney-General to authorise, in writing, the provision of material to the ICC
following a request by the ICC (proposed paragraph 69A(1)(a)).[41]
The Attorney-General must be satisfied that:
(i)
the request relates to an investigation being conducted by the
Prosecutor or a proceeding before the ICC; and
(ii) if the material is or includes lawfully intercepted information or
interception warrant information – the investigation is into, or the proceeding
relates to, an offence punishable by a maximum penalty of imprisonment for 7
years or more, or imprisonment for life; and
(iii)
the material was lawfully obtained in Australia[42]
by, and is lawfully in the possession of, a law enforcement agency.
Item 4 will insert a similar amendment to the IWCT
Act, under new Division 1AA and proposed section 25A, again
bringing the current process in line with that under section 13A of the Mutual
Assistance Act.
Items 8 and 9 will facilitate the chief officer of
an agency to communicate lawfully intercepted information or interception
warrant information to the ICC or an IWCT as an exception under section 68 in
the Telecommunications (Interception and Access) Act 1979 Cth (TIA
Act) to the use of interception warrant information, which is broadly
prohibited by section 63 of the Act.[43]
Item 9 will repeal section 68A and substitute new section 68A to
describe the circumstances in which information communicated to the Secretary
of the Department in accordance with existing paragraph 68(1) and proposed
paragraphs 68(1a) and 68 (1b) will be able to be communicated to another
person, including the foreign country concerned, the ICC or an IWCT. The
Explanatory Memorandum clarifies that as:
the provision of this information is part of the formal
assistance process as opposed to police-to-police assistance, the information
will generally be provided to the foreign country, ICC or IWCT by the Central
Authority in the Department as opposed to being provided by the law enforcement
agency. For example the Central Authority may provide the material to the
Australian Embassy in The Hague whereby it will be presented to the ICC via formal
diplomatic channels.[44]
Item 10 amends the reporting requirements currently
under section 102 of the TIA Act to extend the information to be
included in the report to cover the provision of information pursuant to an ICC
or IWCT request. New section 102B requires the Minister’s report to be
tabled in Parliament to ensure:
there is transparency and accountability as to how often
information lawfully obtained for a domestic purpose, is provided to a foreign
country, the ICC or IWCT for the purpose of foreign or international law
enforcement.[45]
Items 1, 3, and 7 will make relevant definitional
changes to the following terms, and are consistent with those used in other
Acts including the MA Act and SD Act:
- interception warrant information;
- law enforcement agency;
- law enforcement officer;
- lawfully intercepted information;
- lawfully obtained in Australia.
Additionally, item 5 will insert definitions of the
International Criminal Court[46]
and War Crimes Tribunal[47]
into section 6 of the SD Act. These terms are defined by reference
to their meaning in the ICC Act and the IWCT Act.
Producing documents or other articles
The amendments in Part 2 are procedural. Under both
the ICC Act and the IWCT Act, where there is a requirement to
produce documents or other articles, the amendments will clarify that the
magistrate who requires the production of documents or other articles does not
need to be the same magistrate to whom the documents or other articles are
produced (items 12-15 and items 17-20).
Telecommunications related amendments (Schedule 1
cont.)
Covert access to stored communications
Part 3 will amend the ICC Act, the IWCT
Act and the TIA Act to allow the ICC and the IWCTs to request and
receive stored communications, subject to the Attorney-General’s authorisation.
The Explanatory Memorandum confirms that ‘this includes enabling the ICC and
IWCTs to request preservation of those communications.’[48]
Item 24 will insert a new definition of ‘stored communication’ into the ICC
Act by reference to the definition of that term in section 5 of the TIA
Act.
Historical
telecommunications data
Historical telecommunications data can currently be
provided on an agency to agency basis between the Australian Federal Police and
a foreign law enforcement agency under the TIA Act. The Explanatory
Memorandum states that because the ICC and the IWCTs do not come within the
definition of a ’foreign law enforcement agency’, there are delays and
inefficiencies when dealing with the ICC and the IWCTS.[49]
The data can currently be sought through mutual assistance procedures. The
amendment in Part 4 will facilitate the AFP to provide historical
telecommunications data to the ICC and the IWCTs on an agency-to-agency basis. Item
61 will expand the current definition of ‘foreign law enforcement agency’
at subsection 5(1) of the TIA Act to include, in addition to the
existing authorities, any authority or person responsible to the ICC for
investigating or prosecuting a ’crime within the jurisdiction of the ICC’ or a ‘War
Crimes Tribunal offence’. Items 62 to 64 make amendments to extend the
application of section 180A (allowing the AFP to authorise the disclosure of
historical telecommunications data) to the ICC or an IWCT.
Prospective telecommunications data
Similar to Part 3, but in relation to prospective
telecommunications data, the amendments in Part 5 will facilitate
the authorisation by the Attorney-General for the disclosure of prospective
telecommunications data if the ICC has requested the disclosure, and the
Attorney-General is satisfied that an investigation is being conducted by the
Prosecutor of a proceeding that is before the ICC (proposed paragraph 78B(1)(c)).
The IWCT Act is similarly amended by item 74, to insert a new section
34B. The sections are consistent with the processes applying to providing
assistance in this form to foreign countries under section 15D of the MA Act.
Obligations of carriage service providers et cetera, to
provide assistance, and recovery of costs for providing assistance
Amendments in Part 9 will allow carriers and
carriage service provides to recover costs, as prescribed in the Telecommunications Act 1997 (Cth)
incurred in processing requests relating to matters under the ICC or IWCT Acts.
Mutual assistance and
proceeds of crime for foreign serious offences (Schedule 2)
Search warrants
Schedule 2 inserts amendments to the MA Act
relating to the proceeds of crime investigative tools for use in foreign context.
These amendments will make the proceeds of crime search warrants in the MA Act
consistent with those in the POC Act to which they refer. Definitions of
benefit, evidential material, tainted property and responsible
enforcement agency head will be inserted by items 1, 2 and 5 to
bring them into line with the POC Act.
Item 7 will repeal existing subsection 34ZB(3) and
substitute proposed subsection 34ZB(3) using the new definitions
identified in the earlier items in this Schedule. The amendments ‘will ensure
that the tainted property and evidential material covered by this Subdivision
is appropriate to the foreign context of a mutual assistance request.’[50]
There are provisions in both the POC Act and the MA Act that
address dealing with things seized pursuant to a search warrant executed on
behalf of a foreign country in response to a mutual assistance request. These
amendments will bring consistency and clarification between the two Acts.
Item 8 will insert new section 34ZC in the MA
Act to outline what a POC Act search warrant must state, in
order for a property or thing to be seized. These changes are necessary to be
made to the MA Act rather than to the POC Act because the action
is generally taken in the foreign country, not under the POC Act. The new
section 34ZC replaces the phrase ‘instrument of a foreign serious offence’
with the term tainted property. New section 34ZCA outlines that the
authorised officer or person assisting believes on reasonable grounds that:
(a) the
property or thing
(i) is tainted property of the foreign serious offences that is not of a
kind specified in the warrant; or
(ii)
is evidential material relating to the foreign serious offence that is
not of a kind specified in the warrant; or
(iii)
is tainted property of, or evidential material relating to, another
foreign serious offence in relation to which a POCA search warrant is in force;
or
(iv)
is relevant to a criminal proceeding in respect of the foreign serious
offence in the foreign country that requested the assistance referred to in
section 34ZG in relation to that offence; or
(v) will afford evidence as to the commission of an Australian criminal
offence; and
(b) the
seizure of the property or thing is necessary to prevent its concealment, loss
of destruction or its use in committing an offence.
These amendments will assist investigations by removing
any doubt as to what can be seized by search warrant and bringing consistency
to the mirror provisions in the POC Act.
Item 22 will repeal and replace section 34ZF of the
MA Act to deal with evidential material and certain property or things seized
under a POC Act search warrant by a seizing officer. The substantive
effect of the provision remains the same, including that new subsection
34ZF(2) will provide that the seizing officer may retain the seized item
for a period not exceeding one month pending a written direction from the
Attorney-General as to how to deal with the seized item.
Production of documents or other articles
Part 2 of Schedule 2 makes some minor
amendments to clarify the procedural roles of judicial officers under the MA
Act in proceedings requiring the production of documents or other articles.
This is to give certainty to allow a judicial officer to require the production
of documents or other articles and that those items can be produced for a
different judicial officer.
The LCA was supportive of the amendments proposed by Schedule
2 but indicated a number of unrelated concerns with the POC Act.[51]
Execution of surrender and temporary surrender warrants
under the Extradition Act 1988 (Cth) (Schedule 3)
Since the Act’s commencement, there were not extensive amendments
to the Extradition Act until 2012 following a broad review of both the
MA Act and the Extradition Act.
The Act allows for surrender warrants and temporary
surrender warrants to be issued by the Attorney-General under existing sections
23 and 24. For a temporary surrender warrant to be issued, a number of criteria
need to be met, including that the Attorney-General is satisfied that it is in
the interests of the administration of justice that a warrant be issued
(subsection 24(1). The amendments proposed in this Bill address an issue of
clarity around committing a person to prison to await surrender, when subject
of a surrender or temporary surrender warrant. New subsection 26(2A) will
provide that, where the Attorney-General issues a surrender or temporary
surrender warrant in relation to a person who has been released on bail, and
that person is then brought before a magistrate, or similar eligible judicial
officer, the judicial officer must order the discharge of the recognisances on
which bail was granted and commit the person to prison to await surrender.
Similarly, because the Extradition Act separately
provides for a person being extradited from Australia to New Zealand, the new
subsection 35(7) will provide that where the Federal Court, Full Federal
Court or High Court makes or confirms an order that the person should be
surrendered to New Zealand, that court must order that the person is committed
to prison pending the execution of the surrender warrant.
Foreign
Evidence amendments (Schedule 4)
A technical amendment is proposed to the Foreign
Evidence Act 1994 (FE Act) to ensure that Part 3 of the FE Act
applies to proceedings conducted in state or territory courts in relation to
the external territories and the Jervis Bay Territory. The amendments in items
1 and 2 in Schedule 4 amend the FE Act to ensure foreign
evidence can be appropriately certified and to extend the application of
foreign evidence rules to proceedings in the external territories, including
Jervis Bay.
Section 26 of the FE Act is to be repealed
and replaced with a provision that accords with modern drafting practices and
for consistency amongst similar provisions, including proposed new section
27AA and proposed new section 35. The changes are necessary to
address the revisions to the delegation of the Attorney-General’s powers under
section 17 of the Law Officers Act 1964 (Cth). Delegations would still
be possible for these certificates; however their validity now arises from a
different legislative instrument.
The intention of the section is to provide:
that a certificate is prima facie evidence of the
matters stated in the certificate. This is appropriate given the certificate is
certifying a routine administrative matter, namely that the specified document
or thing was received by the Attorney-General (or his or her delegate) from a
foreign country, as a result of a mutual assistance request made to the foreign
country. This constitutes confirmation of a procedural matter that goes to an
administrative process and also protects the public interest by not requiring
confidential correspondence in criminal matters between foreign governments to
be tendered in court.[52]
Part 3A of the FE Act provides for the use of
foreign material and foreign government material in
terrorism-related proceedings. Similar to the amendments made by Item 3,
proposed section 27AA in item 4 will provide a consistent process
for certifying material received from a foreign country in response to a mutual
assistance request in terrorism-related proceedings.
Similarly item 5 replaces existing section 35,
addressing the certificates provided under the FE Act by the Chairperson
and Deputy Chairperson of the Australian Securities and Investments Commission.
The LCA indicated in its submission to the Senate
Committee that it does not consider these amendments to be problematic.[53]
Protecting
vulnerable persons (Schedule 5)
Part IAD of the Crimes Act includes several
protections for vulnerable people that apply to proceedings for certain
Commonwealth offences, such as human trafficking and child sex offences (and
related proceedings).
Section 15YR makes it an offence for a person to
publish any matter, without the leave of the court, where the matter identifies,
or is likely to identify, a vulnerable person in relation to a proceeding as a
child witness or vulnerable adult complainant (where the vulnerable person is
not a defendant).[54]
Items 2 and 3 of Schedule 5 will amend
subsections 15YR(1) and (1A) respectively to extend the offence to also
cover publication of information identifying, or likely to identify, a child
complainant. This will correct an anomaly apparently inadvertently introduced
by amendments to section 15YR in 2013 and since identified by the CDPP.[55]
Item 4 of Schedule 5 provides that this
amendment will apply in all proceedings instituted after commencement,
regardless of when the offence to which the proceedings relate was committed or
alleged to have been committed.[56]
As noted earlier in this Digest, the Scrutiny of Bills Committee sought the
Minister’s advice on whether this imposed retrospective criminal liability. The
offence in section 15YR applies specifically to the unauthorised publication
of the identity of a witness or complainant in the course of proceedings to
which Part 1AD applies, and the existence of such proceedings is an
element of the offence.[57]
Accordingly, the amendments do not appear to impose retrospective criminal
liability in respect of unauthorised publications because the relevant offence
provision (section 15YR) applies only to acts done after the initiation
of proceedings for the substantive offences specified in section 15Y (or
related proceedings) that attract the procedural protections established under
Part 1AD.
Importantly, the Bill does not propose to extend the scope
of the substantive offences in section 15Y. The phrase in item 4, ‘regardless
of when the offences committed, or alleged to have been committed, occurred’ is
directed to the time of the commission, or alleged commission, of the
substantive offences listed in section 15Y, and not to the time of the conduct
constituting an unauthorised publication offence, or an alleged offence,
against section 15YR.
The Minister’s response to the Scrutiny of Bills Committee
stated that item 4 of Schedule 5 does not impose
retrospective criminal liability. The Committee was satisfied with the
Minister’s response but requested that the further information it contained be
included in the Explanatory Memorandum.[58]
Item 6 of Schedule 5 will amend
the Crimes Legislation (Law Enforcement Integrity, Vulnerable Witness
Protection and Other Measures) Act 2013 (the Vulnerable Witness Act) so that amendments
to vulnerable witness protections in Part 1 of Schedule 2 to that Act
will apply in the same way for all proceedings instituted after the
commencement of Schedule 5 of the Bill, regardless of when an offence to
which the proceedings relate was committed or alleged to have been committed.
They would otherwise only have applied to proceedings for an offence that was
committed or alleged to have been committed on or after 29 June 2013.[59]
As identified in the Explanatory Memorandum, this is intended to avoid a
complex and potentially inequitable system under which different protections
apply on the basis of when an offence was committed instead of when proceedings
commence.[60]
However, the CDPP noted in its submission that this amendment will not
retrospectively apply those changes to cases involving offences alleged to have
been committed before 29 June 2013 for which proceedings have already
commenced.[61]
The CDPP did not indicate how many such proceedings have been initiated that
remain on foot. This is a matter on which members of the Parliament may wish to
seek further information from the Government in order to determine whether further
application and transitional provisions might be thought desirable to extend
the Bill’s protections to those cases.
Slavery-like
offences and relevant evidence (Schedule 6)
Division 270 of the Criminal Code contains
offences for slavery (Subdivision B); and offences relating to servitude,
forced labour, deceptive recruiting for labour or services, and forced marriage
(Subdivision C, referred to collectively as ‘slavery-like’ offences or
conditions). Slavery is defined in section 270.1 as ‘the condition of a
person over whom any or all of the powers attaching to the right of ownership
are exercised, including where such a condition results from a debt or contract
made by the person’.[62]
Division 271 of the Criminal Code contains
offences for trafficking persons within, into or out of Australia (Subdivision B);
organ trafficking (Subdivision BA); harbouring a victim, where doing so
assists the commission of a trafficking, slavery or slavery-like offence
(Subdivision BB) and debt bondage (Subdivision C).
Each Division also includes provisions setting out matters
relevant to all of the offences in those divisions, including evidence of matters
to which the trier of fact (namely, the jury, or the judge in a judge-alone
trial) may have regard in determining whether particular elements of the offences
are established.
The main amendments made by Part 1 of Schedule 6
will be expanding the definition of debt bondage and moving the offence of debt
bondage from Division 271 to Division 270, as it aligns more closely
with slavery-like offences than trafficking offences.
The main amendments made by Part 2 of Schedule 6
will be expanding the list of matters that may be considered in determining
whether an alleged victim of a slavery-like or trafficking offence was coerced,
threatened or deceived, and providing for the same matters to be considered in
determining certain other elements of those offences.
The explanatory information accompanying the Bill does not indicate
a particular trigger for the amendments in Schedule 6 beyond that for the
Bill as a whole.[63]
However, the changes may constitute a response to stakeholder suggestions or
issues identified in the course of investigating or prosecuting relevant
offences.[64]
While the amendments were not specifically foreshadowed in the Government’s National
Action Plan to Combat Human Trafficking and Slavery 2015–19, the Plan
does commit the Government to ongoing monitoring of the effectiveness of the
legal and policy framework.[65]
Debt
bondage and slavery-like offences
Currently, offences for slavery and slavery-like conditions
are set out under Division 270 of the Criminal Code and offences
for trafficking in persons and debt bondage are set out under
Division 271. Part 1 of Schedule 6 of the Bill would
amend the definition of debt bondage and transfer the offence from
Division 271 to Division 270 of the Criminal Code. The
Explanatory Memorandum indicates that because debt bondage does not require an
element of physical movement of the victim, the Government considers it is more
closely aligned with slavery-like offences than trafficking offences.[66]
It is also more consistent with the relevant international instruments, and the
definition of slavery in the Criminal Code, which reflects those
instruments.[67]
Item 6 of Schedule 6 will insert a
revised definition of ‘debt bondage’ into section 270.1A of the Criminal
Code, which contains definitions for the purposes of that Division. Debt
bondage will be defined as follows:
debt bondage is the condition of a person (the first
person) if:
(a) the condition arises from a pledge:
(i) by the first person of the personal
services of the first person; or
(ii) by
another person of the personal services of the first person, and the first
person is under the other person’s control; or
(iii) by
the first person of the personal services of another person who is under the
first person’s control; and
(b) the pledge is made as security for a debt
owed, or claimed to be owed, (including any debt incurred, or claimed to be
incurred, after the pledge is given) by the person making the pledge; and
(c) any of the following apply:
(i) the debt owed or claimed to be owed is
manifestly excessive;
(ii) the
reasonable value of those services is not applied toward the liquidation of the
debt or purported debt;
(iii) the
length and nature of those services are not respectively limited and defined.
The definition is largely equivalent to the current
definition included in the Dictionary to the Criminal Code (which will
be repealed by item 19 of Schedule 6 and replaced by a
cross-reference to the revised definition), except for proposed paragraph
(a)(ii), which is not captured by the existing definition. The amendment
will address an inconsistency and gap in the current definition, under which a
person who pledges the services of another person under his or her control is
considered to be in a condition of debt bondage, but where the person whose
services are pledged is not recognised as being in a condition of debt bondage.
Items 9 and 12 of Schedule 6 will
move the offence of debt bondage from Division 271 (section 271.8) to
Division 270 (proposed section 270.7C) of the Criminal Code.
The elements of the offence and penalties will remain the same, but the scope
of the offence will be affected by the revised definition of debt bondage. Item 12
also repeals the separate aggravated offence of debt bondage currently in
section 271.9. This will no longer be required, as section 270.8
specifies aggravating circumstances (identical to those that that apply currently
apply under section 271.9) that apply to all of the slavery-like offences.
Item 7 will add offences against proposed section 270.7C
(debt bondage) to the definition of ‘slavery-like offence’ in section 270.1A.
Items 10, 11, 13, 14, 15
and 17 will make consequential amendments to Division 271 to
reflect the moving of the debt bondage offence from that Division to
Division 270.
Items 5, 8 and 16 will replace
references to ‘slavery-like conditions’ with references to ‘slavery-like
offences’ so that consistent terminology is used throughout Chapter 8 of the
Criminal Code.
Items 1–4 of Schedule 6 will make
consequential amendments to the Crimes Act, and items 20–22
will make consequential amendments to the TIA Act, for consistency with
the above amendments to the Criminal Code.
Evidence
relevant to slavery-like offences
Section 270.10 sets out matters to which a trier of
fact may have regard in determining whether an alleged victim of a slavery-like
offence has been coerced, threatened or deceived. Currently, these matters are
the economic relationship between the alleged victim and alleged offender; the
terms of any contract or agreement between the alleged victim and alleged
offender; and the personal circumstances of the alleged victim, including but
not limited to certain listed factors. The amendments in items 23–26
of Schedule 6 will make two key changes to section 270.10.
Items 24 and 25 will amend
subsection 270.10(2) to expand the list of matters that may be considered
in determining whether an alleged victim of a slavery-like offence has been
coerced, threatened or deceived. A trier of fact will be able to consider
the economic relationship, and the terms of any contract or agreement, not just
between the alleged victim and alleged offender, but between ‘the alleged
victim, the alleged offender or a family member of the alleged victim or
alleged offender, and any other person’. The trier of fact may also consider,
in the context of an alleged victim’s personal circumstances, the extent of his
or her social and physical dependence not just on the offender, but also on any
other person. These changes will better recognise the fact that slavery-like
offences may involve individuals beyond just the alleged victim and alleged
offender. For example, an agreement between a family member of the alleged
victim and a family member of the alleged offender might be relevant to an
assessment of whether someone was coerced into a forced marriage.
Item 23 will amend subsection 270.10(1) so
that the matters listed in subsection 270.10(2) may also be considered in
determining whether other elements of particular slavery-like offences are
proven, specifically:
- for a servitude offence, whether the alleged victim was
significantly deprived of personal freedom
- for a forced marriage offence, whether the alleged victim was
incapable of understanding the nature and effect of a marriage ceremony and
-
for a debt bondage offence, whether another person has caused the
alleged victim to enter into debt bondage (this is not new, but rather has been
moved across from Division 271 as a result of separate changes outlined
above).
Item 26 will insert a definition of family
member for the purposes of section 270.10 (proposed
subsections 270.10(4) and (5)).
Evidence
relevant to trafficking in persons offences
Section 271.11A sets out matters to which a trier of
fact may have regard in determining whether an alleged victim of a trafficking
in persons offence, or an offence of harbouring a victim, has been coerced,
threatened or deceived; and whether an alleged victim of an organ trafficking
offence, or that person’s guardian, consented to the removal of an organ of the
alleged victim. It is broadly equivalent to section 270.10, described
above.
Items 28 and 29 will make amendments to
subsection 271.11A(2) equivalent to those made by items 24 and 25
to subsection 270.10(2) described above. These changes will better
recognise the fact that trafficking in persons and organ trafficking offences
may involve individuals beyond just the alleged victim and alleged offender.
For example, the economic relationship between an alleged victim and another
person might be relevant to determining whether the alleged offender used
threats in the course of a trafficking offence.
Item 30 will insert a definition of family
member for the purposes of section 270.11A (proposed subsections 27.11A(5)
and (6)).
Item 27 is a technical amendment to remove a
reference to Subdivision BB (which contains offences for harbouring a
victim) from subsection 271.11A(1). No element of those offences concerns
whether an alleged victim has been coerced, threatened or deceived, so section 271.11A
is not relevant to the offences.
Reporting on investigations and proceedings for offences
against the War Crimes Act 1945 (Cth) (Schedule 7)
Existing section 21 of the War Crimes Act 1945
(Cth) requires that an annual report be prepared, with prescribed content that
is to be brought before each House of Parliament within 15 sitting days of that
House after the report is prepared. Item 1 of Schedule 7 will repeal
existing section 21 and substitute a new provision. The new provision will remove
the requirement for the report to be prepared annually and will require the
Attorney-General to cause a report to be prepared as soon as practicable after
the end of the relevant financial year if an investigation of a suspected offence
against the Act, or a proceeding for an alleged offence against the Act, is
started or carried on at any time during that financial year. The
Attorney-General must cause a copy of the report to be tabled in each House of
Parliament within 15 sitting days after the report is prepared. Item 2 of
Schedule 7 provides that new section 21 will apply to the financial year
commencing 1 July 2016.
Amendments
to the Australian Federal Police Act (Schedule 8)
The AFP Act provides a statutory basis for the AFP.
Amongst other things, it sets out the functions of the AFP, provides for the
appointment of the Commissioner and Deputy Commissioners and engagement of
employees, provides for certain conditions of employment and sets out a
professional standards framework.
Schedule 8 contains amendments to the AFP’s
alcohol and drug testing regime to extend it to all AFP appointees and allow
related regulations to make provision for a matter by applying, adopting or
incorporating any matter contained in an Australian standard. It will also increase
the delay that the Commissioner of the AFP may impose in particular
circumstances on an AFP employee’s nominated date of resignation.
Alcohol and
drug testing (Part 1 of Schedule 8)
AFP appointees are prohibited from using illicit drugs and
abusing pharmaceutical products. Their blood alcohol concentration whilst on
duty must not exceed 0.02, and consumption of alcohol while on duty is only
permitted in the context of official hospitality or special occasions formally
sanctioned by a member of the AFP senior executive.[68]
Division 8 of Part IV of the AFP Act
provides the framework for the AFP’s alcohol and drug testing program. It is
supplemented by further details set out in regulations made under section 40P
of the AFP Act and legislative instruments made under section 40R.
Currently, under section 40LA, an ‘AFP appointee’ may
be required to undergo an alcohol screening test if he or she is on duty and an
authorised manager reasonably suspects he or she is under the influence of
alcohol.[69]
However, sections 40M (which allows for random alcohol and drug testing)
and 40N (which allows for testing after certain incidents, such as the death or
injury of a person caused by the use of force by an on-duty officer) apply to
an ‘AFP employee’ and to a ‘special member’, but not other types of AFP
appointee.[70]
Part 1 of Schedule 8 will amend sections 40LA, 40M, 40N
and 40Q (which relates to admissibility of test results in legal proceedings)
so that the alcohol and drug testing regime applies consistently across all
types of AFP appointee, by replacing references to AFP employees and special
members with references to AFP appointees.[71]
This will mean that the following additional types of AFP appointee can also be
required to undergo a drug or alcohol test under section 40M or 40N:
- a
Deputy Commissioner
- a
special protective service officer
- a
person engaged under section 69A of the AFP Act to perform duties
overseas as an employee of the AFP
- a
consultant or independent contractor engaged to perform services for the AFP or
determined by the Commissioner to be an AFP appointee and
- a
person who is assisting the AFP in the performance of its functions under secondment.[72]
The Explanatory Memorandum indicates that currently, AFP
appointees who are not AFP employees or special members are ‘generally subject
to alcohol and drug testing under contract’.[73]
Section 40P allows regulations made under the AFP
Act to make provision, not inconsistent with sections 40LA, 40M and
40N, in relation to various aspects of the alcohol and drug testing program.
These include, for example, the provision of blood and other samples; the
conduct of alcohol screening tests, breath tests, blood tests or prohibited
drug tests; devices used in such testing; and the procedure for handling and
analysing blood and other samples taken for such testing. Item 15
of Schedule 8 will insert proposed subsection 40P(2) to
provide that despite subsection 14(2) of the Legislation Act 2003,
the regulations made for the purposes of the alcohol and drug testing regime
may make provision for a matter by applying, adopting or incorporating any
matter contained in a standard published by or on behalf of Standards Australia
(or jointly with Standards New Zealand) as in force or existing at a particular
time or from time to time.
Subsection 14(2) of the Legislation Act
provides that unless the contrary intention appears (as is proposed by the
Bill), legislative instruments may not make provision for matters by applying,
adopting or incorporating a matter contained in an instrument or other writing
(other than a Commonwealth Act or a disallowable legislative instrument) ‘as in
force or existing from time to time’ (emphasis added).[74]
The provision facilitates parliamentary control over the content of the law as
applied, adopted or incorporated by reference to a non-disallowable legislative
instrument or a non-legislative instrument.[75]
In creating a general prohibition on the incorporation of such materials as they
are in force from time to time, the provision may also help to provide members
of the public and regulated entities with a degree of certainty about the
content of material incorporated by reference. That is, it may help to ensure
that the relevant material incorporated, and thus the content of the law, will
not be changed by an amendment to the material that may not be notified or
readily accessible (except if the Parliament has passed legislation authorising
such changes to be made).[76]
The Australian Federal Police Regulations 1979 currently
require that provision and analysis of urine samples for the purposes of a
prohibited drug test to be in accordance with an Australian/New Zealand
Standard, but they incorporate the procedures in that standard as they existed
at a certain point in time.[77]
The Explanatory Memorandum advances the following justification
for displacing the general rule in subsection 14(2) of the Legislation Act.
First, it suggests that applying standards, which will change from time to time,
is less problematic in this instance because the alcohol and drug testing
program applies only to AFP appointees, not the general public. Second, it
states that it is important for AFP’s testing procedures to keep pace with
scientific and technological advances and to accord with best practice, and
that the relevant standards will be provided to AFP appointees on request and
can be purchased by members of the public from SAI Global Limited.[78]
The Scrutiny of Bills Committee noted that explanation and
welcomed the commitment for standards to be made available to AFP appointees on
request. However, it considered that material incorporated into the regulations
should be freely available to anyone interested in the law, not only to AFP
appointees, and sought the Minister’s advice on how that could be achieved.[79]
The Minister’s response stated that all AFP appointees
would have full access to the standards via the agency’s intranet, but that
copyright restrictions prevented the AFP from making the standards available to
the public at large.[80]
It further stated that the Government considered ‘the benefit gained from
ensuring best-practice testing procedures are used outweighs the minimal
detriment caused’ by the standards not being freely and readily available’ to
the public.[81]
The Scrutiny of Bills Committee requested that the further information be
included in the Explanatory Memorandum and requested the Minister’s advice on
whether the Bill could be amended to include a statutory requirement for the
standards to be made freely and readily available to all AFP appointees.[82]
Commissioner’s
power to delay date of effect of resignation (Part 2 of Schedule 8)
Section 30 of the AFP Act requires an AFP
employee who wishes to resign to provide written notice to the Commissioner of
the AFP and specify a date of effect generally between 14 days and four months
from the time it is given. Section 30A of the AFP Act allows the
Commissioner to give an employee a written notice substituting a day up to 90
days later than that provided by the employee as the day on which the
employee’s resignation takes effect in certain circumstances, such as where the
employee’s conduct:
-
is being investigated as a serious conduct issue or in relation
to a corruption issue or
- has been so investigated, and the Commissioner is considering
terminating the employee on the basis of the resulting findings.[83]
The provision was enacted in 2006 to complement a revised
professional standards framework, and is intended to prevent employees from
resigning in anticipation of being terminated for serious misconduct by
providing additional time for a related investigation to be concluded and acted
upon.[84]
Item 20 of Schedule 8 will increase
the length of the extension the Commissioner may impose on an employee’s
effective resignation date from 90 to 180 days. The Explanatory Memorandum
states that a period of 90 days is not always sufficient to finalise an
investigation, and that in some cases ‘employees subject to investigation have
caused significant delays themselves’.[85]
It further indicates that in the absence of a record of an investigation
outcome or a termination, other agencies may end up employing someone who has
failed to meet AFP’s integrity standards.[86]
As noted earlier in this Digest, the AFPA opposes this
amendment. The AFPA’s submission to the inquiry into the Bill stated that
lengthy investigations into an employee’s conduct carry the potential for
significant adverse financial, professional and psychological impacts on
affected employees, and noted that the Government had not provided any data or
examples of specific cases to justify the need for the amendment. The
organisation also argued that there was no practical benefit to
section 30A or the proposed amendment, and that the AFP had other means to
convey any national security concerns relating to former employees. Instead, it
considers that the proposed amendment reflects resource constraints on the AFP
in terms of investigating and finalising conduct matters in a timely way.[87]
The AFP’s submission to the inquiry into the Bill expands
on the justification provided in the Explanatory Memorandum by outlining both
the factors that can contribute to the length of misconduct investigations, and
the reasons it considers it important to prevent an employee’s resignation
taking effect before an investigation is complete and the findings considered. On
the former, it contends that the natural justice component of an investigation
alone can take over 90 days, and notes that some of the components of an
investigation, such as analysis associated with drug testing and digital
forensic, can take ‘weeks to months’ to complete.[88]
On the latter, the AFP states that where an employee is able to resign on their
own terms ‘the AFP’s ability to investigate misconduct by that individual, and
also broader organisational problems, becomes limited’.[89]
The AFP also considers its ability to disclose to other agencies information
provided as a complaint or during a misconduct investigation is ‘severely’
limited by the secrecy provisions in Part V of the AFP Act, whereas it is
clearly able to disclose a person’s termination.[90]
Finally, it provides data in support of the need for the amendment:
In the past three years, six AFP employees have resigned
prior to the conclusion of a category three investigation conducted by AFP
Professional Standards (PRS). A further three employees resigned after a PRS
investigation had made an established finding of category three conduct, but
before their employment could be terminated. Generally, this occurs because the
employee is informed of the investigation, attempts to resign to avoid having
their employment terminated, and the PRS investigation is unable to be completed
within 90 days of the resignation date.[91]
Amendments
to the AML/CTF Act (Schedule 9)
Electronic
reporting of physical currency movements (Part 1 of Schedule 9)
Division 2 of Part 4 of the AML/CTF Act
sets out requirements for the reporting of movements of physical currency into
or out of Australia, including when it is carried by travellers. Generally,
movements of physical currency worth A$10,000 or more must be reported to
AUSTRAC, which is both Australia’s anti-money laundering and counter-terrorism
regulator and its national Financial Intelligence Unit.
Item 1 of Schedule 9 will insert proposed
subsection 53(9) into the AML/CTF Act to allow for reports
about physical currency above the threshold amount being taken out of Australia
to be provided to AUSTRAC electronically, and to require electronic reports to
be submitted using a system prescribed in the AML/CTF Rules.[92]
Section 54 of the AML/CTF Act sets out time
limits within which reports under section 53 must be given to AUSTRAC. Items 2,
3 and 4 of Schedule 9 will amend section 54
so that electronic reports under section 53 must be made in accordance
with the period prescribed by the AML/CTF Rules (which must be no longer than
that which applies to equivalent hard copy reports provided under
subsection 54(3)).
Australian
Charities and Not-for-profits Commission access to AUSTRAC information
(Part 2 of Schedule 9)
Agencies listed within the definition of ‘designated
agency’ in section 5 of the AML/CTF Act may receive, access and
disclose AUSTRAC information in accordance with the Act for the purpose of
performing their functions and exercising their powers.[93]
AUSTRAC information is certain information collected by AUSTRAC, and any
compilation or analysis of that information.[94]
Item 6 of Schedule 9 will add the Australian Charities
and Not-for-profits Commission (ACNC), the national regulator of that sector,
to the list of designated agencies in section 5. AUSTRAC’s report, Terrorism
Financing in Australia 2014, recognised that the risks associated with the
misuse of charities and not-for profit organisations (NPOs) were high.[95]
On the Australian context, it stated:
... While charities and NPOs are one of the more significant
Australian terrorism financing channels, they have not featured in a large
number of Australian terrorism financing cases. Rather than representing a
sector-wide risk, terrorism financing in Australia has been limited to a
handful of charities and NPOs.[96]
However, Australia’s efforts to prevent the misuse of NPOs
for terrorism financing were assessed by the Financial Action Task Force (FATF)
in 2015 as not being compliant with recommendation 8 of the International
Standards on Combating Money Laundering and the Financing of Terrorism and
Proliferation (FATF Recommendations).[97]
The report pointed to a number of ways in which Australian measures fell short,
and while not the most significant issue identified, the report noted:
Although ACNC has access to information of NPOs, this only
covers those charities that voluntarily register for tax purposes. Although
there are information-sharing mechanisms in place, these do not focus on TF
[terrorism financing]. In addition, the information sharing only relates to
information that is available on those charities that voluntarily register for
tax purposes.[98]
Listing the ACNC as a designated agency will go some way
to addressing such deficiencies.
Amendments
to the Australian Crime Commission Act (Schedule 10)
CrimTrac was merged into the Australian Crime Commission (ACC)
as of 1 July 2016, and the combined agency is now known as the
Australian Criminal Intelligence Commission (and uses the acronym ACIC).[99]
However, the merged agency continues to operate under the Australian Crime
Commission Act 2002 (ACC Act) and the Australian Crime
Commission Regulations 2002 (ACC Regulations). ‘Australian Criminal
Intelligence Commission’ is prescribed in the ACC Regulations as an alternative
name by which the agency may be known for the purpose of subsection 7(1A)
of the ACC Act, but neither the ACC Act nor the ACC Regulations
provide for use of an alternative acronym. Item 2 of Schedule 10
will amend subsection 7(1A) so that the ACC may be known by one or more
names or acronyms specified in the ACC Regulations. The remaining
items of Schedule 10 will amend other sections of the ACC Act
to ensure that use of a prescribed acronym is taken to have the same meaning as
use of ‘ACC’ and may be used in its place for any purpose.
Background
checking for major national events (Schedule 11)
AusCheck was established within the Attorney-General’s
Department (AGD) in 2007 to provide a centralised government background
checking service in response to a recommendation of the 2005 Independent
Review of Airport Security and Policing.[100]
Auscheck currently coordinates criminal and national security background
checking for the purposes of the Aviation and Maritime Security Identification
Card schemes and the National Health Security check scheme.[101]
The amendments in Schedule 11 will amend the AusCheck Act so
that AusCheck may also conduct background checks on individuals in connection
with their accreditation relating to a major national event. ‘Background check’
has a specific meaning within the AusCheck Act and for the new function
proposed in Schedule 11 may include an assessment of information
relating to one or more of:
- an
individual’s criminal history
- matters
relevant to a security assessment (as defined under the Australian Security Intelligence
Organisation Act 1979) of that individual
- the
identity of that individual and
- that
individual’s citizenship status, residency status or entitlement to work in
Australia.[102]
The Government indicated it expects the amendments would
be relevant to major international political or sporting events such as a G20
Summit or the Commonwealth Games.[103]
Item 2 will insert proposed section 5A
into the AusCheck Act to allow the Minister for Justice to declare a
particular event to be a major national event for the purposes of the Act, by
legislative instrument.[104]
Proposed subsection 5A(2) will provide that the Minister may only
make such a declaration if he or she is satisfied that it is in the national
interest that the Commonwealth be involved in conducting and coordinating
background checks in connection with the accreditation of individuals in
relation to the event. Proposed subsection 5A(3) will provide a
non-exhaustive list of matters to which the Minister may have regard when
considering whether to make a declaration.
Part 2 of the AusCheck Act sets the parameters
of the AusCheck scheme (the scheme) for the conduct and coordination of
background checks, the detail of which is provided in the AusCheck Regulations 2007.
Section 8 of the AusCheck Act provides for the establishment of the
scheme in regulations and sets out the circumstances in which, and the purposes
for which, background checking may be conducted under the scheme. Item 3
will insert proposed paragraph 8(1)(d) to allow the scheme to apply to
background checking of individuals in connection with their accreditation in
relation to a major national event. Item 4 will insert proposed
subsection 8(2A) to set out the purposes for which background checking
may be conducted if it is in connection with a major national event. The
subsection indicates the Constitutional heads of power on which the
Commonwealth seeks to rely in expanding the AusCheck scheme to cover background
checking relating to major national events.[105]
It includes, for example, purposes related to external affairs, the defence of
Australia, preventing terrorist acts, and Australia’s national security.
Item 6 will insert proposed section 10AA
of the AusCheck Act to set out the matters that the scheme may make
provision for in relation to background checking of individuals in connection
with their accreditation in relation to a major national event.
Concluding comments
Debate on this Bill may focus on the proposed change to
the delayed resignation provisions that apply to AFP employees, contained in Schedule
8.The Bill does not appear to raise other controversial issues and
addresses legislative inconsistencies in areas relating to mutual assistance,
proceeds of crime and extradition. The Parliament’s consideration of the Bill
may be further informed by the report of the Senate Legal and Constitutional
Affairs Legislation Committee on the provisions of the Bill.
[1]. For
clarification, the term ‘recognizance’ in the context of bail under the Extradition
Act is a general term referring to an undertaking or a bond provided by a
person who is charged with an offence to appear in court as and when required,
and to adhere to any other conditions that are required; s15(6) and s49B of the
Extradition Act. The Explanatory Memorandum clarifies that the Bill will
allow, once a person has been released on bail and a surrender or temporary
surrender warrant has been issued, for the judicial officer to commit the
person to prison following the discharge of bail recogni[z]ances.
[2]. M
Keenan, ‘Second
reading speech: Crimes Legislation Amendment (International
Crime Cooperation and Other Measures) Bill 2016’,
House of Representatives, Debates, 23 November 2016,
pp. 4072–4074.
[3] United
Nations General Assembly, Resolution
71/248, 21 December 2016.
[4] Ibid.,
para. 4.
[5]. United
Nations Secretary-General, ‘Note
to Correspondents: International, Impartial and Independent Mechanism to assist
in the Investigation and Prosecution of those Responsible for the Most Serious
Crimes under International Law committed in the Syrian Arab Republic since
March 2011’, United Nations website, 26 January 2017.
[6]. J
Bishop (Minister for Foreign Affairs) and C Fierravanti-Wells (Minister for
International Development and the Pacific), Australia
supports UN investigations into violations of international law and human
rights abuses in Syria, media release, 28 February 2017.
[7]. Inquiry
homepage, Legal and Constitutional Affairs Legislation Committee, ‘Crimes
Legislation Amendment (International Crime Cooperation and Other Measures) Bill
2016 [Provisions]’.
[8]. Senate
Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee), Alert
digest, 10, 2016, The Senate, 30 November 2016,
pp. 10–11.
[9]. Scrutiny
of Bills Committee, Scrutiny
digest, 1, 2017, The Senate, 8 February 2017, p. 67.
[10]. Scrutiny
of Bills Committee, Alert digest, 10, 2016, op. cit., p. 13.
[11]. Ibid.,
pp. 11–12.
[12]. Scrutiny
of Bills Committee, Scrutiny digest, 1, 2017, op. cit., pp. 68–69.
[13]. Scrutiny
of Bills Committee, Alert digest, 10, 2016, op. cit., p. 14.
[14]. Scrutiny
of Bills Committee, Scrutiny digest, 1, 2017, op. cit., pp. 74–75.
[15]. Alert
digest, 10, 2016, op. cit., pp. 15–16.
[16]. Scrutiny
of Bills Committee, Scrutiny
digest, 1, 2017, op. cit., pp. 75–79.
[17]. Law
Council of Australia (LCA), Submission
to Legal and Constitutional Affairs Legislation Committee, Inquiry into the
Crimes Legislation Amendment (International Crime Cooperation and Other
Measures) Bill 2016, 18 January 2016, pp. 7–8.
[18]. Commonwealth
Director of Public Prosecutions (CDPP), Submission
to Legal and Constitutional Affairs Legislation Committee, Inquiry into the
Crimes Legislation Amendment (International Crime Cooperation and Other
Measures) Bill 2016, submission no. 4, 13 January 2017, p. 2.
[19]. LCA,
Submission, op.cit., p. 8.
[20]. CDPP,
Submission, op. cit., pp. 2–4; Anti-Slavery Australia, Submission
to Legal and Constitutional Affairs Legislation Committee, Inquiry into the
Crimes Legislation Amendment (International Crime Cooperation and Other Measures)
Bill 2016, submission no. 2; LCA, Submission, op. cit., pp. 8–10; Justice
and International Unit, Synod of Victoria and Tasmania, Uniting Church in
Australia (Uniting Church), Submission
to Legal and Constitutional Affairs Legislation Committee, Inquiry into the
Crimes Legislation Amendment (International Crime Cooperation and Other
Measures) Bill 2016, submission no. 3, 11 January 2017, pp. 2–3.
[21]. CDPP,
Submission, op. cit., p. 2.
[22]. Ibid.
[23]. Ibid.
[24]. Anti-Slavery
Australia, Submission,op. cit.
[25]. Ibid.;
CDPP, Submission, op. cit., pp. 4–5; LCA, Submission, op. cit., pp. 10–11;
Uniting Church, Submission, op. cit., p. 3.
[26]. Australian
Federal Police Association (AFPA), Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Crimes Legislation Amendment (International Crime Cooperation and
Other Measures) Bill 2016, submission no. 1, 13 December 2016.
[27]. Ibid.
[28]. Australian
Federal Police (AFP), Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Crimes Legislation Amendment (International Crime Cooperation and
Other Measures) Bill 2016, 13 December 2017.
[29]. The
ACNC is the national regulator of charities and not-for-profit organisations: Australian
Charities and Not-for-profits Commission (ACNC), ‘ACNC’s
role’, ACNC website; Australian Charities
and Not-for-profits Commission Act 2012, Chapter 5. AUSTRAC has a
dual role as national anti-money laundering and counter-terrorism financing
regulator and Australia’s Financial Intelligence Unit: Australian Transaction
Reports and Analysis Centre (AUSTRAC), ‘About AUSTRAC’, AUSTRAC
website; Anti-Money
Laundering and Counter-Terrorism Financing Act 2006, Part 16.
[30]. Uniting
Church, Submission, op. cit., p. 3.
[31]. Explanatory
Memorandum, Crimes Legislation Amendment (International Crime Cooperation
and Other Measures Bill 2016, p. 10.
[32]. Attorney-General’s
Department (AGD), ‘Fees’
(AusCheck), AGD website.
[33]. The
Statement of Compatibility with Human Rights can be found at page 12 of the Explanatory
Memorandum to the Bill.
[34]. Parliamentary
Joint Committee on Human Rights (PJCHR), Report,
2, 2017, 21 March 2017.
[35]. Ibid.,
p. 24.
[36]. Explanatory
Memorandum, p. 24.
[37]. Ibid.,
p. 9.
[38]. For
an overview of Australia’s implementation of the Rome Statute, see G Triggs, ‘Implementation
of the Rome Statute for the International Criminal Court: a quiet revolution in
Australian law’, Sydney Law Review, 25(4), 2003, p. 507.
[39]. Rome
Statute of the International Criminal Court 1998, opened for signature
17 July 1998, [2002] ATS 15 (entered into force 1 July 2002).
[40]. LCA,
Submission,op. cit., p. 7. For information on the Joint Standing Committee on Foreign
Affairs, Defence and Trade’s Inquiry into Australia’s Advocacy for the
Abolition of the Death Penalty.
[41]. Explanatory
Memorandum, p. 43. The Explanatory Memorandum notes that the authorisation will
not be a legislative instrument. See: Legislation (Exemptions and Other
Matters) Regulation 2015; section 6, table item 4, paragraph (a).
[42]. Material
lawfully obtained in Australia is defined in proposed
subsection 69A(3) and includes: (a) material obtained from individuals or
entities by consent; and (b) material obtained by warrant, or the exercise of a
coercive power by a court, in Australia for the purposes of a domestic
investigation or prosecution.
[43]. Section
63 of the TIA Act.
[44]. Explanatory
Memorandum, p. 49.
[45] Ibid.
[46]. The
ICC meaning the International Criminal Court established under the Rome
Statute, and will include any of the organs of that Court within the meaning of
the Rome Statute.
[47]. The
War Crimes Tribunal, meaning (a) the Former Yugoslavia Tribunal; or (b) the
Rwanda Tribunal; or (c) the International Residual Mechanism for Criminal
Tribunals.
[48] Explanatory
Memorandum, op. cit., p. 10.
[49] Ibid., p.
67.
[50]. Ibid.,
p. 153.
[51] LCA,Submission,
op.cit., p. 8.
[52]. Explanatory
Memorandum, p. 165.
[53]. LCA,
Submission, op. cit., p. 8.
[54]. Sections
15Y (proceedings to which the Part IAD applies), 15YA (definitions) and 15YAA
(vulnerable adult complainants) are relevant to the scope of the offence.
[55]. CDPP,
Submission, op. cit., p. 2.
[56]. For
the purposes of Part IAD of the Crimes Act, a proceeding means a
proceeding to which one or more of subsections 15Y(1) (proceedings involving
certain offences against children), (2) (proceedings involving adult
complainants in relation to certain offences) and (3) (special witnesses
involved in proceedings for any Commonwealth offence) apply: Crimes Act,
section 15YA.
[57]. See
Crimes Act section 15Y (proceedings to which Part 1AD applies), and
paragraph 15YR(c) and subsection 15YR(1A) (elements of the unauthorised
publication offence).
[58]. Scrutiny
of Bills Committee, Scrutiny
digest, 1, 2017, op. cit., pp. 74–75.
[59]. Crimes Legislation
Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other
Measures) Act 2013, section 2 (commencement) and item 93 of
Schedule 2 (application of amendments in that Schedule).
[60]. Explanatory
Memorandum, pp. 28, 167.
[61]. CDPP,
Submission, op. cit., p. 4.
[62]. This
reflects the international definition of slavery found in the Slavery
Convention (1926), to which Australia is a party: International
Convention to Suppress the Slave Trade and Slavery, done at Geneva on
25 September 1926, [1927], ATS 11 (entered into force for Australia
18 June 1927), art. 1(1).
[63]. As
noted in the Background section of this Digest, the Minister for Justice stated
that the Bill responds to issues identified through ongoing, internal review of
the legislative framework for criminal justice and law enforcement. Keenan,
‘Second reading speech’, op. cit., pp. 4072–4075.
[64]. The
Government has an ongoing dialogue with a range of stakeholders, including
through its National Roundtable on Human Trafficking and Slavery and related
senior officials meetings. Information on the National Roundtable and member
organisations is set out in Interdepartmental Committee on Human Trafficking
and Slavery, Trafficking
in persons: the Australian Government response 1 July 2015–30 June 2016,
Australian Government, 2016, pp. 49–68.
[65]. AGD,
National
action plan to combat human trafficking and slavery 2015–19, AGD,
Canberra, 2014, p. 22.
[66]. Explanatory
Memorandum, op. cit., p. 169.
[67]. Debt
bondage is specifically prohibited under the Supplementary Convention on the
Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar
to Slavery, to which Australia is a party: Supplementary
Convention on the Abolition of Slavery, the Slave Trade, and Institutions and
Practices Similar to Slavery, done at Geneva on 7 September 1956,
[1958] ATS 3 (entered into force for Australia 6 January 1958),
art. 1(a). See also International
Convention to Suppress the Slave Trade and Slavery, op. cit., and Criminal
Code, section 270.1.
[68]. Australian
Federal Police (AFP), AFP
national guideline on prohibited drugs, pharmaceutical drugs and alcohol,
AFP, n.d.
[69]. Subsection 4(1)
of the AFP Act includes a definition of ‘AFP appointee’ for the purposes
of the Act.
[70]. Subsection 4(1)
of the AFP Act provides that ‘AFP employee’ means a person engaged under
section 24 of the Act and ‘special member’ a person appointed under
section 40E.
[71]. Items 1–13
and 16–19 of Schedule 8 of the Bill.
[72]. AFP
Act, definition of ‘AFP appointee’ in subsection 4(1).
[73]. Explanatory
Memorandum, p. 31.
[74]. Legislation Act
2003, subsection 14(2). See also paragraph 14(1)(a) which permits a
legislative instrument or a notifiable instrument to apply, adopt or incorporate
provisions of an Act or a disallowable legislative instrument as in force from
time to time. Paragraph 14(1)(b) also permits a legislative instrument or a notifiable
instrument to apply, adopt or incorporate any matter contained in an instrument
or other writing as in force or existing at the time when the first-mentioned
legislative or notifiable instrument commences. An equivalent restriction to
that in subsection 14(2) of the Legislation Act exists in relation to
Acts under subsection 46AA(2) of the Acts Interpretation
Act 1901.
[75]. Explanatory
Memorandum, Legislative Instruments Bill 2003, p. 10. See also,
Australian Government Solicitor, Legislative
instruments—issues in design, Legal Briefing, 102, 26 February 2014,
pp. 12–13.
[76]. Nonetheless,
some commentators have expressed concern about any form of provision enabling
the incorporation by reference of non-legislative material as in force from
time-to-time, unless accompanied by a further provision for the mandatory
notification, parliamentary review and circulation of the relevant material
incorporated, including subsequent amendments as made from time to time. See,
for example, DC Pearce, Delegated Legislation in Australia, 4th ed, LexisNexis
Butterworths, Chatswood, 2012, pp. 383-384. (The author commented that enabling
provisions such as subsection 14(2) of the Legislation Act may produce
the undesirable outcome that 'not only may members of the public be subjected
to the problem of going to another source before being able to identify the law
on a topic, but they will also be unsure to which particular instrument they
should go as there is, of course, no obligation on other organisations to
publish their instruments as amended from time to time'.)
[77]. Australian Federal
Police Regulations 1979, regulation 13V. The Australian Border
Force (Alcohol and Drug Tests) Rule 2015 contains equivalent provisions in
relation to urine samples (clause 20) and saliva samples (clause 22) for the
purposes of prohibited drug testing.
[78]. Explanatory
Memorandum, p. 179. It was previously also possible to access Australian
Standards through the National Library of Australia and state libraries.
However, in June 2016 National and State Libraries Australasia announced
that in negotiations with SAI Global, ‘it was not possible to arrive at a
mutually acceptable and sustainable agreement’ and such access either had
already or would soon cease at those libraries: National and State Libraries
Australasia, No
more access to Australian Standards at the national and state libraries of
Australia, media release, 2 June 2016.
[79]. Scrutiny
of Bills Committee, Alert digest, 10, 2016, op. cit., p. 15–16.
The Committee briefly outlined its broader concerns with all instances of
incorporation of external materials and also noted a recent report on the issue
by a Western Australian Parliamentary committee: Joint Standing Committee on
Delegated Legislation, Access
to Australian standards adopted in delegated legislation, Report 84,
Legislative Assembly of Western Australia, June 2016.
[80]. Scrutiny
of Bills Committee, Scrutiny digest, 1, 2017, op. cit., p. 77.
[81]. Ibid.,
p. 78.
[82]. Ibid.,
p. 79.
[83]. The
circumstances are set out in full in subsection 30A(1) of the AFP Act.
[84]. Section 30A
was inserted by the Law
Enforcement (AFP Professional Standards and Related Measures) Act 2006.
Explanatory Memorandum, pp. 180–181; AFP, Submission, op. cit.,
pp. 7–8.
[85]. Explanatory
Memorandum, p. 181.
[86]. Ibid.
[87]. AFPA,
Submission, op. cit.
[88]. AFP,
Submission, op. cit., pp. 8–9.
[89]. Ibid.,
p. 7–8, 10.
[90]. Ibid.,
p. 8.
[91]. Ibid.,
p. 6.
[92]. Anti-Money Laundering
and Counter-Terrorism Financing Rules Instrument 2007 (No. 1).
[93]. Designated
agencies may receive AUSTRAC information under paragraph 121(3)(de), access
information under section 126 and disclose it in accordance with
sections 125, 127 and 128 of the AML/CTF Act.
[94]. AML/CTF
Act, section 5 (definitions of ‘AUSTRAC information’ and ‘eligible
collected information’).
[95]. AUSTRAC,
Terrorism
Financing in Australia 2014, AUSTRAC, Sydney, 2014, p. 15. See
further Financial Action Task Force (FATF), Risk
of terrorist abuse in non-profit organisations, FATF, Paris, June 2014;
S Bricknell, Misuse
of the non-profit sector for money laundering and terrorism financing, Trends
& Issues in Crime and Criminal Justice, 424, September 2011.
[96]. AUSTRAC,
Terrorism Financing in Australia 2014, op. cit.
[97]. FATF
and APG (Asia/Pacific Group on Money Laundering), Anti-money
laundering and counter-terrorist financing measures—Australia, Fourth
Round Mutual Evaluation Report, FATF and APG, Paris and Sydney,
April 2015, pp. 145–146; FATF, International
standards on combating money laundering and the financing of terrorism &
proliferation: the FATF recommendations, FATF, Paris,
February 2012, pp. 13, 54–58. The FATF is an intergovernmental body
established to develop and promote national and international policies to
combat money laundering and terrorist financing. FATF, ‘About’, FATF website.
[98]. FATF
and APG, Anti-money laundering and counter-terrorist financing
measures—Australia, op. cit., p. 146.
[99]. Australian Crime
Commission Amendment (National Policing Information) Act 2016; Australian Criminal Intelligence Commission
website.
[100]. For
further background on the establishment and operation of AusCheck see: P
Ruddock, ‘Second
reading speech: AusCheck Bill 2006’, House of Representatives, Debates, 7
December 2006, pp. 11–12; AGD, ‘AusCheck’
and sub-pages, AGD website.
[101]. AGD,
‘Aviation
and maritime schemes’ and ‘National
Health Security scheme’, AGD website.
[102]. AusCheck
Act, section 5. Paragraph 5(aa) of the definition is not relevant as
it applies only to checks relating to Aviation and Maritime Security
Identification Cards. The Australian Security Intelligence Organisation’s
(ASIO) security assessment function is set out in Part IV of the Australian Security
Intelligence Organisation Act 1979, with a definition of the term in
subsection 35(1). Security assessments are undertaken for a variety of
purposes, and involve, broadly, an assessment of whether an individual’s
background or past activities indicate he or she may present a threat to
national security: ASIO, ASIO’s
security assessment function, Information brief, ASIO, n.d.
[103]. Explanatory
Memorandum, pp. 185–186.
[104]. Item 1
will insert a definition into subsection 4(1) of the AusCheck Act
to provide that ‘major national event’ has the meaning given by
section 5A.
[105]. Proposed
subsection 8(2A) is a severability provision designed to prompt the High
Court to read down a substantive provision to the extent it may exceed the
legislative power of the Commonwealth. It appears to align with current
Commonwealth drafting standards with respect to such clauses: Office of Parliamentary
Council (OPC), Drafting
Direction 3.1: constitutional law issues, reissued October 2012, pp. 9–10.
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