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Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015
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2013-2014-2015

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

 

CRIMES LEGISLATION AMENDMENT » (POWERS, OFFENCES and OTHER MEASURES) « BILL » 2015

 

 

EXPLANATORY MEMORANDUM

 

 

 

(Circulated by authority of the

Minster for Justice, the Hon Michael Keenan MP)

 

                                                                                                        



 

CRIMES LEGISLATION « AMENDMENT » (POWERS, oFFENCES AND OTHER MEASURES) « BILL » 2015

general Outline

1.                 This « Bill » amends the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 , Australian Crime Commission Act 2002 , Australian Postal Corporation Act 1989 , Classification (Publications, Films and Computer Games) Act 1995 , Crimes Act 1914 , Criminal Code Act 1995 , Law Enforcement Integrity Commissioner Act 2006 , Mutual Assistance in Criminal Matters Act 1987 , Privacy Act 1988 , Proceeds of Crime Act 2002 , Radiocommunications Act 1992 , Surveillance Devices Act 2004 , Taxation Administration Act 1953 , Telecommunications (Interception and Access) Act 1979 and the Transfer of Prisoners Act 1983

2.                 The « Bill » contains a range of measures to improve Commonwealth criminal justice arrangements, including amendments to:

·          improve the operation and effectiveness of the serious drug and precursor offences in Part 9.1 of the Criminal Code Act 1995 (Criminal Code)

·          amend the Criminal Code to clarify the war crime offence of outrages upon personal dignity in a non-international armed conflict

·          expand the definition of forced marriage in the Criminal Code to include circumstances in which a victim does not freely and fully consent because he or she is incapable of understanding the nature and effect of a marriage ceremony

·          increase the penalties for the forced marriage offences in the Criminal Code to ensure they are commensurate with the most serious slavery-related facilitation offences

·          insert the concept of being ‘knowingly concerned’ in the commission of an offence as an additional form of secondary criminal liability in section 11.2 of the Criminal Code

·          introduce mandatory minimum sentences of five years imprisonment for firearm trafficking

·          rectify administrative inefficiencies, address certain legislative anomalies and clarify provisions in Part 1B of the Crimes Act 1914 (Crimes Act) relating to federal offenders

·          allow the interstate transfer of federal prisoners to occur at a location other than a prison

·          facilitate information sharing about federal offenders between the Attorney-General’s Department and relevant third party agencies

·          amend the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF Act) to clarify and address enforceability issues and operational constraints identified by the Australian Transaction Reports and Analysis Centre (AUSTRAC)

  • allow the Integrity Commissioner to perform his or her functions more efficiently and effectively, while improving the general operation of the Law Enforcement Integrity Commissioner Act 2006 (LEIC Act)
  • amend the Australian Crime Commission Act 2002 to improve the efficiency and effectiveness of Australian Crime Commission (ACC) special operations and investigations 
  • amend the Proceeds of Crime Act 2002 (POC Act) to increase penalties for failing to comply with a production order or with a notice to a financial institution in proceeds of crime investigations
  • amend the POC Act to address ambiguity in the provisions, streamline the appointment of proceeds of crime examiners and support the administration of confiscated assets by the Official Trustee
  • give the Independent Commissioner Against Corruption of South Australia (ICAC SA), whose Office became operational in September 2013, the ability to access information from Commonwealth agencies, consistently with other State anti-corruption bodies, defences for certain Commonwealth telecommunications offences and the ability to apply for certain types of search warrants

·          update references to reflect the new name and titles associated with the Queensland Crime and Corruption Commission, consequential to the Crime and Misconduct Commission « Amendment » Act 2014 (Qld) coming into force.

  • clarify when a variation to controlled operations would require Deputy Commissioner or Commissioner approval; and clarify that an authority for a controlled operation must not be varied if it would alter the criminal offences to which the controlled operation relates, and
  • amend two paragraphs in the Classification (Publications, Films and Computer Games) Act 1995 for consistency with current Commonwealth drafting practices and to correct an « amendment » to the Act made by the Classification (Publications, Films and Computer Games) « Amendment » (Classification Tools and Other Measures) Act 2014 .

3.                 The « Bill » comprises 17 schedules.

4.                 Schedule 1 will amend the Criminal Code Act 1995 (Criminal Code) to improve the operation and effectiveness of the serious drug and precursor offences in Part 9.1.

5.                 Schedule 1 will:

  • clarify that section 300.5 applies where a person is charged with an extension of criminal responsibility under Part 2.4 of the Criminal Code
  • make recklessness the fault element for attempted offences against Part 9.1, and
  • remove the ‘intent to manufacture’ element of the border controlled precursor offences in sections 307.11 to 307.13.

6.                 Schedule 2 will amend the Criminal Code to clarify the operation of the offence of bribing a foreign public official in Division 70.2. The « amendment » clarifies that proof of an intention to influence a particular foreign official is not required to establish the offence.

7.                 Clarifying the offence will ensure that a defendant in a foreign bribery matter is not able to argue that prosecution needs to establish an intention to bribe a particular foreign official.

8.                 Schedule 3 will amend section 268.74 of the Criminal Code to clarify the scope and application of the war crime offence of outrages upon personal dignity in a non-international armed conflict (NIAC).

9.                 The existing offence of outrages upon personal dignity in section 268.74 does not cover outrages upon personal dignity committed against a dead person or persons who were taking an active part in hostilities in a NIAC prior to death (such as beheadings). It is arguable that the structure of the existing offence of outrages upon personal dignity may also require that the prosecution prove whether a victim or victims were alive or dead at the time they were subject to an offence.

10.             The amendments in Schedule 3 will clarify that the war crime offence of outrages upon personal dignity committed against a dead person or persons in a NIAC applies regardless of whether the dead person or persons were active in hostilities prior to death. The amendments in Schedule 3 will also address possible impediments to a successful prosecution by simplifying the structure of the offence. This will clarify that the prosecution need not prove whether a victim or victims were alive or dead at the time they were subject to the offence.

11.             Schedule 4 will amend the definition of forced marriage in the Criminal Code. Under the existing definition, a marriage is forced if the victim does not freely and fully consent because of the « use » of coercion, threat or deception. Under section 270.1A, ‘coercion’ is defined to include force, duress, detention, psychological oppression, abuse of power, and taking advantage of a person’s vulnerability. Under subsection 270.7A(2), the forced marriage offences can apply to a marriage that is void, invalid or not recognised by law for any reason, including cultural and religious ceremonies.

12.             Since forced marriage was criminalised in 2013, referrals to the Australian Federal Police have included matters of children aged as young as 12 who purported to ‘consent’ to a marriage. Anecdotal evidence from other jurisdictions suggests that people with intellectual disabilities may be forced into marriages they do not have the capacity to consent to, including as a means of securing care arrangements. 

13.             Under the existing definition of forced marriage, the consent of a person who does not have the capacity to understand the nature and effect of a marriage ceremony could arguably have been obtained through the « use » of coercion (specifically, by a defendant taking advantage of a victim’s vulnerability). However, in a prosecution the element of coercion would likely be disputed by the defence and may not be accepted by the trier of fact. The amendments will put beyond doubt that where a person is incapable of understanding the nature and effect of a marriage ceremony, he or she has not given free and full consent to enter the marriage.

14.              The amendments will expand the definition of forced marriage to include circumstances in which a victim does not freely and fully consent because he or she is incapable of understanding the nature and effect of a marriage ceremony. The amendments will therefore make clear that the forced marriage offences apply where a person cannot give their free and full consent to marry, including for reasons such as age or mental capacity.

15.             Schedule 4 will also amend the Criminal Code to increase the penalties for the forced marriage offences at section 270.7B. Under the current provisions, a forced marriage offence carries a maximum penalty of four years imprisonment for a base offence and a maximum of seven years imprisonment for an aggravated offence. Under section 270.8 a forced marriage offence may be aggravated if the victim is under the age of 18; if the offender subjects the victim to cruel, inhuman or degrading treatment; or engages in conduct reckless to the danger of death or serious harm to the victim or another person.

16.             The penalties will be increased to seven years and nine years respectively, to ensure the forced marriage offences align with the most serious slavery-related facilitation offence of deceptive recruiting for labour or services. The increase also reflects the seriousness of forced marriage as a slavery-like practice, a form of gender-based violence and an abuse of fundamental human rights.

17.             Schedule 5 will amend the Criminal Code to insert ‘knowingly concerned’ as an additional form of secondary criminal liability into section 11.2. This will mean that, where persons are knowingly and intentionally involved in the commission of an offence, they will be liable for the offence.

18.             This measure will supplement existing forms of secondary liability, such as the aiding, abetting, counselling or procuring of an offence. This additional form of secondary criminal liability will enable the Commonwealth Director of Public Prosecutions (CDPP) to  more effectively prosecute federal criminal offences, including offences regarding illegal substances (such as importation and trade in drugs), fraud, corruption and insider trading, which traditionally rely on the involvement of secondary persons. The CDPP has advised that the absence of this prosecuting option is a significant impediment, and has rendered certain prosecutions more complex and less certain. This form of secondary criminal liability previously existed in the Crimes Act and will ensure that criminal liability can be effectively established for an accused’s knowing involvement in the commission of an offence. 

19.             Schedule 6 contains measures to implement the Government’s election commitment made in the Government’s Policy to Tackle Crime , released in August 2013, to introduce mandatory minimum sentences of five years imprisonment for firearm trafficking.

20.             Schedule 6 will give effect to this by introducing a mandatory minimum five year term of imprisonment for:

·          the existing offences of trafficking firearms and firearm parts within Australia (in Division 360 of the Criminal Code), and

·          the new offences of trafficking firearms into and out of Australia in Division 361 of the Criminal Code (included in the Crimes Legislation « Amendment » (Psychoactive Substances and Other Measures) Act 2015 ).

21.             Schedule 7 makes technical amendments to Part 1B of the Crimes Act, which provides for the sentencing, imprisonment and release of federal offenders. These amendments will rectify administrative inefficiencies for courts and decision makers under the Crimes Act, address certain legislative anomalies and clarify existing provisions. The amendments will promote operational efficiencies in the administration of the legislation and contribute to reduced overall costs for Government. 

22.             Schedule 8 allows the interstate transfer of federal prisoners to occur at a location other than a prison for federal prisoners approved for transfer. This administrative efficiency brings the federal system in line with model State and Territory legislation. The Schedule also makes other minor amendments to the Transfer of Prisoners Act.

23.             Schedule 9 facilitates information sharing about federal offenders between the Attorney-General’s Department and relevant third party agencies. The Attorney-General makes a number of decisions under the Crimes Act, the Crimes (Superannuation Benefits) Act 1989 and the Transfer of Prisoners Act in relation to federal offenders, including making or refusing to make a parole or licence order, revoking a person’s parole because of a breach and considering applications for the exercise of the Royal Prerogative of Mercy. In practice, making these decisions relies heavily on information provided by third party Commonwealth and State or Territory agencies. This « amendment » will facilitate the sharing of necessary and relevant information about federal offenders to ensure informed decisions are made in line with legislative obligations.

24.             Schedule 10 will amend the AML/CTF Act to provide additional flexibility in the internal operations and procedures of AUSTRAC. The amendments address enforceability issues and operational constraints identified by AUSTRAC in the course of undertaking its statutory function as Australia’s anti-money laundering and counter-terrorism financing regulator. These amendments will:

·          ensure that the AUSTRAC Chief Executive Officer has an adequate period of time in which to consider and make a decision on applications made under section 75B for registration on the Remittance Sector Register

·          address operational constraints identified by AUSTRAC with the operation of its information-gathering powers under section 167 of the AML/CTF Act by allowing for self-incriminating material to be adduced in a broader range of civil and criminal proceedings under section 169, and

·          enable AUSTRAC to take a more flexible operational approach to obtaining information or documents under subsection 203(e) of the AML/CTF Act, by allowing the timeframes for compliance to more appropriately fit the circumstances of the request.

25.            Schedule 11 will make a range of amendments to the LEIC Act to improve the general operation of that Act. These amendments will:

·          amend the definition of ‘significant corruption issue’ to allow the Integrity Commissioner and head of a law enforcement agency to reach agreement on what a significant corruption issue is

·          provide the Integrity Commissioner with greater discretion in deciding when and how to keep persons informed of action taken in relation to a corruption issue

·          ensure that the same pre-investigation powers are available to the Integrity Commissioner when he or she is deciding how to deal with significant and non-significant corruption issues

·          expand the Integrity Commissioner ability to share information to allow him or her  to inform appropriate third parties of information that indicates that a person’s safety may be in jeopardy

·          allow the Integrity Commissioner to delegate his or her power to apply for a passport surrender order to an SES (or acting SES) employee of ACLEI

·          simplify provisions relating to giving certain evidence in private, in particular to clarify that all evidence to which a secrecy provision relates cannot be given in public

·          amend the definition of ‘AFP staff member’ for consistency with the Australian Federal Police Act 1979, and

·          remove time limits on the secondment of officers to ACLEI.

26.            Schedule 12 will amend the Australian Crime Commission Act 2002 (ACC Act) to improve the efficiency and effectiveness of Australian Crime Commission (ACC) special operations and investigations. 

27.            Schedule 12 will:

·          amend the definition of ‘eligible person’ under section 4 to specifically include a member of the staff of the ACC who is also a constable

·          clarify an examiner’s power to return ‘returnable items’ during an examination, and

·          update several references to prescribed provisions in Schedule 1 of the ACC Act.

28.            Schedule 13 will amend the POC Act to increase penalties for failing to comply with a production order or with a notice to a financial institution in proceeds of crime investigations.

29.            Under section 202 of the POC Act, a magistrate may issue a production order requiring a person to produce specified documents. Under section 213 of the POC Act a prescribed officer may issue a notice to a financial institution requesting certain information or documents. Breach of either section 202 or section 213 constitutes an offence and attracts a penalty of six months imprisonment or 30 penalty units or both (under sections 211 and 218 of the POC Act respectively). In order to improve the effectiveness of the orders and notices issued under sections 202 and 213, Schedule 13 will increase the penalties imposed under sections 211 and 218 to 100 penalty units or two years imprisonment or both.

30.            Schedule 14 will make minor and technical amendments to the POC Act.

31.            The Australian Federal Police (AFP) and the CDPP have authority to litigate matters under the POC Act. The Official Trustee (the Official Trustee) in Bankruptcy (a corporation established under the Bankruptcy Act 1966 (Cth), whose powers and functions are exercised or performed by employees of the Australian Financial Security Authority (AFSA)) has responsibility for custody and control of Commonwealth restrained and confiscated assets.

32.            The AFP, AFSA and the Attorney-General’s Department have identified technical and procedural amendments that could be made to the POC Act to address ambiguity in the provisions, to streamline the appointment of proceeds of crime examiners and to support the administration of confiscated assets by the Official Trustee. 

33.            The amendments in Schedule 14 of the « Bill » will:

·          clarify when property that is subject to a State or Territory proceeds of crime order ceases to be the proceeds or instrument of an offense for the purposes of the POC Act

·          change the definition of ‘related offence’ to ensure that it also applies to offences that form part of the same series of acts or omissions

·          reform the process for appointing a person as an ‘approved examiner’ for the purposes of the POC Act, and

·          clarify that the Official Trustee may represent the Commonwealth in proceedings relating to the performance of the Official Trustee’s functions under the POC Act.

34.            Schedule 15 will amend a number of Commonwealth Acts to allow ICAC SA the ability to access information that relates to its investigations from Commonwealth agencies. Schedule 15 will also extend defences for certain Commonwealth telecommunications offences to ICAC SA and enable ICAC SA to apply for certain types of search warrants. The powers provided under this « Bill » to ICAC SA are pursuant to ICAC SA’s role in identifying and investigating corruption in public administration in South Australia and are the same as those available to the Independent Commissioner Against Corruption of New South Wales, the (newly named) Crime and Corruption Commission of Queensland, the Corruption and Crime Commission of Western Australia and the Integrity Commission of Tasmania.  

35.            Schedule 15 will also amend a number of Commonwealth Acts to update existing references to the Queensland Crime and Misconduct Commission to reflect its new name, which is the Crime and Corruption Commission. The amendments will also update other terms that have changed as a result of Queensland legislative amendments. The amendments made by the « Bill » are consequential to the entry into force of the Crime and Misconduct Commission  « Amendment » Act 2014 (Qld) on 1 July 2014.

36.            Schedule 16 amends the Crimes Act to provide minor clarifications to the operation of the controlled operations provisions in Part IAB.

37.            The measures make it clear that only the most senior officers in the Australian Federal Police may authorise certain variations to controlled operations that involve high risks to operatives. The amendments also make it clear that a significant alteration to the character of the controlled operation includes a significant alteration to the criminal offences to which the controlled operation relates.

38.            Schedule 17 will make minor amendments to the Classification (Publications, Films and Computer Games) 1995 to add the word ‘and’ to the « end » of two paragraphs for consistency with current Commonwealth drafting practices. The schedule also corrects an « amendment » to the Act made by the Classification (Publications, Films and Computer Games) « Amendment » (Classification Tools and Other Measures) Act 2014 by relocating a paragraph that was inserted in the wrong subsection.

FINANCIAL IMPACT

39.            Schedule 14 of the « Bill » will improve the Commonwealth Government’s ability to manage confiscated proceeds of crime. The other Schedules in the « Bill » will have no financial impact.

ACRONYMS

ACC Act                     Australian Crime Commission Act 2002

ACLEI                                    Australian Commission for Law Enforcement Integrity

ADJR Act                   Administrative Decisions (Judicial Review) Act 1977 (Cth)

AFP                             Australian Federal Police

AFSA                          Australian Financial Security Authority

ALRC                         Australian Law Reform Commission

AML/CTF Act            Anti-Money Laundering and Counter-Terrorism Financing Act 2006

APII                            Additional Protocol II to the Geneva Convention 1949

ASIC Act                    Australian Securities and Investments Commission Act 2001

AUSTRAC                 Australian Transaction Reports and Analysis Centre

CDPP                          Commonwealth Director of Public Prosecutions

CEDAW                     Convention on the Elimination of All Forms of Discrimination Against Women

CEO                            Chief Executive Officer

CRC                            Convention on the Rights of the Child

CRPD                         Convention on the Rights of Persons with Disabilities

CSB Act                      Crimes (Superannuation Benefits) Act 1989

LEIC Act                    Law Enforcement Integrity Commissioner Act 2006

MA Act                       Mutual Assistance in Criminal Matters Act 1987

MCCOC                     Model Criminal Code Officers Committee

NIAC                          Non-international armed conflict

ICAC  SA                   Independent Commissioner Against Corruption of South Australia



ICCPR                                    International Covenant on Civil and Political Rights

POC Act                     Proceeds of Crime Act 2002

SES                             Senior Executive Service

TIA Act                       Telecommunications (Interception and Access) Act 1979



STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act « 2011 »

Crimes Legislation « Amendment » (Powers, Offences and Other Measures) « Bill » 2015 (the  « Bill » )

40.            The « Bill » is compatible with the human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights in section 3 of the Human Rights (Parliamentary Scrutiny) Act. To the extent that the measures in the « Bill » may limit those rights and freedoms, such limitations are reasonable, necessary and proportionate in achieving the intended outcomes of the « Bill » .

Overview of the « Bill »

41.            The « Bill » amends the following Acts:

·          Anti-Money Laundering and Counter-Terrorism Financing Act 2006

·          Australian Crime Commission Act 2002

·          Australian Postal Corporation Act 1989

·          Classification (Publications, Films and Computer Games) Act 1995

·          Crimes Act 1914

·          Criminal Code Act 1995

·          Law Enforcement Integrity Commissioner Act 2006

·          Mutual Assistance in Criminal Matters Act 1987

·          Privacy Act 1988

·          Proceeds of Crime Act 2002

·          Radiocommunications Act 1992

·          Surveillance Devices Act 2004

·          Taxation Administration Act 1953

·          Telecommunications (Interception and Access) Act 1979, and

·          Transfer of Prisoners Act 1983. 

 

 

42.            The « Bill » contains a range of measures to improve Commonwealth criminal justice arrangements, including amendments to:

·          improve the operation and effectiveness of the serious drug and precursor offences in Part 9.1 of the Criminal Code Act 1995 (Criminal Code)

·          clarify that proof of an intention to bribe a particular foreign official is not required to establish the offence of foreign bribery in the Criminal Code

·          amend the Criminal Code to clarify the war crime offence of outrages upon personal dignity in a non-international armed conflict

·          expand the definition of forced marriage in the Criminal Code to include circumstances in which a victim does not freely and fully consent because he or she is incapable of understanding the nature and effect of a marriage ceremony

·          increase the penalties for the forced marriage offences in the Criminal Code to ensure they are commensurate with the most serious slavery-related facilitation offences

·          insert the concept of being ‘knowingly concerned’ in the commission of an offence as an additional form of secondary criminal liability in section 11.2 of the Criminal Code

·          introduce mandatory minimum sentences of five years imprisonment for firearm trafficking

·          rectify administrative inefficiencies, address certain legislative anomalies and clarify provisions in Part 1B of the Crimes Act 1914 relating to federal offenders

·          allow the interstate transfer of federal prisoners to occur at a location other than a prison

·          facilitate information sharing about federal offenders between the Attorney-General’s Department and relevant third party agencies

·          amend the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 ( AML/CTF Act) to clarify and address enforceability issues and operational constraints identified by the Australian Transaction Reports and Analysis Centre

·          allow the Integrity Commissioner to perform his or her functions more efficiently and effectively, while improving the general operation of the Law Enforcement Integrity Commissioner Act 2006 (LEIC Act)

  • amend the Australian Crime Commission Act 2002 (ACC Act) to improve the efficiency and effectiveness of Australian Crime Commission (ACC) special operations and investigations 

·          amend the Proceeds of Crime Act 2002 (POC Act) to increase penalties for failing to comply with a production order or with a notice to a financial institution in proceeds of crime investigations

·          amend the POC Act to address ambiguity in the provisions, streamline the appointment of proceeds of crime examiners and support the administration of confiscated assets by the Official Trustee

·          give the Independent Commissioner Against Corruption of South Australia (ICAC SA), whose Office became operational in September 2013, the ability to access information from Commonwealth agencies, consistently with other State anti-corruption bodies, defences for certain Commonwealth telecommunications offences and the ability to apply for certain types of search warrants

·          update references to reflect the new name and titles associated with the Queensland Crime and Corruption Commission, consequential to the Crime and Misconduct Commission « Amendment » Act 2014 (Qld) coming into force

  • clarify when a variation to controlled operations would require Deputy Commissioner or Commissioner approval; and clarify that an authority for a controlled operation must not be varied if it would alter the criminal offences to which the controlled operation relates, and

·          minor amendments to two paragraphs in the Classification (Publications, Films and Computer Games) Act 1995 for consistency with current drafting practices and to correct the location of a new paragraph in section 24 that was inserted in the wrong subsection by the Classification (Publications, Films and Computer Games) « Amendment » (Classification Tools and Other Measures) Act 2014

43.               Further detail about the measures in the « Bill » and their human rights implications are provided below.

 

 

Schedule 1—Serious drug offences

Outline of amendments

44.               Schedule 1 of the « Bill » will amend the Criminal Code to:

  • clarify that section 300.5 applies where a person is charged with an extension of criminal responsibility under Part 2.4 of the Criminal Code
  • make recklessness the fault element for attempted offences against Part 9.1 (recklessness measure), and
  • remove the ‘intent to manufacture’ element of the border controlled precursor offences in sections 307.11 to 307.13 (intent to manufacture measure).

Human rights implications

45.               The recklessness and intent to manufacture measures will engage the right to the presumption of innocence under article 14(2) of the International Covenant on Civil and Political Rights (ICCPR).

46.               Article 14(2) of the ICCPR provides that persons charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to law. It imposes on the prosecution the burden of proving a criminal charge and guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt. This right may be permissibly limited provided that the prosecution remains primarily responsible for proving the accused is guilty. [1]

Recklessness as the fault element for attempted drug and precursor offences

47.               Item 2 of Schedule 1 inserts new section 300.6 into the Criminal Code. It engages the presumption of innocence because it changes the fault element for the second physical element of attempted drug and precursor offences from intention and knowledge (under Part 2.4 of the Criminal Code) to the lower standard of recklessness. 

48.               This means that where a person attempts to commit an offence against Part 9.1 of the Criminal Code, it will be sufficient for the prosecution to prove that he or she was reckless as to whether the substance involved was a controlled or border controlled substance. Under section 5.4 of the Criminal Code, a person is reckless if he or she is aware of a substantial risk with respect to a particular circumstance, and having regard to the circumstances known to him or her, it is unjustifiable to take the risk. 

49.               The serious drug offences in Part 9.1 of the Criminal Code contain both physical elements and fault elements. For most serious drug offences, there are two physical elements. First, the prosecution must prove that a person engaged in particular conduct (for example, importation). Secondly, the prosecution must prove that the person’s conduct involved a controlled or border controlled substance. The fault element for this second physical element is recklessness.

50.               Under existing law, the relevant fault element is different if a person is being prosecuted for an attempt to commit an offence. While an individual charged with an attempt to commit an offence will be punished as if he or she had actually committed the offence, section 11.1 of the Criminal Code provides that intention and knowledge are the fault elements in relation to each physical elements of the offence attempted. This means that where a person is charged with an attempt to commit any of the offences under Part 9.1 of the Criminal Code, the prosecution will bear the burden of proving that the defendant actually knew that the substance was a controlled or border controlled drug.

51.               To the extent that the recklessness measure limits the presumption of innocence, this limitation is reasonable, necessary and proportionate to the legitimate objective of preventing and punishing the trafficking, importation and manufacture of illicit drugs and reducing the harm that results.

52.               Applying recklessness as the fault element for attempted offences against Part 9.1 of the Criminal Code is necessary to keep pace with criminal methodologies, and effectively capture and deter criminal conduct associated with the illicit importation, manufacturing and trafficking of serious drugs and precursors.

53.               The offences in Part 9.1 are rarely committed by a single actor, particularly where they involve the importation of illicit substances. The illicit drug and precursor trade often involves multiple individuals participating in the venture at different levels, in different ways and with different degrees of knowledge about their place in the criminal conduct. 

54.               To deal with this, law enforcement agencies and the CDPP will « use » both the primary offences in Part 9.1 as well as the extensions of criminal liability in Part 2.4 in order to prosecute all those involved in the criminal venture.  

55.               However, in practice in prosecutions for attempted offences against Part 9.1, it has been very difficult to show that a person had actual knowledge that his or her actions involved a controlled or border controlled substance, unless the person has made a direct admission. These difficulties are particularly pronounced where individuals are part of a larger operation and who deliberately operate with limited knowledge about how their actions fit into the broader criminal enterprise. This has meant that offenders who are involved in the trafficking and importation of illicit drugs and their precursors have been able to escape liability for attempted offences against Part 9.1, rather than facing penalties commensurate with the gravity of their conduct. 

56.               Prosecutions for serious drug and precursor offences may also be affected by the « use » of specific law enforcement methodologies. For example, the « use » of a controlled operation in an investigation may make it impossible to charge the person with a primary offence against Part 9.1 on the basis that the person cannot technically complete the offence. The person must therefore be charged with an attempt to commit an offence against Part 9.1, and the prosecution must prove the person’s knowledge or intention, rather than the fact that he or she was reckless.  

57.               New section 300.6 of the Criminal Code will ensure that persons who are reckless as to whether the substance they deal with is a controlled or border controlled substance are criminally liable, irrespective of whether they successfully completed the offence and are prosecuted for a primary offence against Part 9.1 or they failed to complete the offence and are prosecuted for an attempt.

58.               This « amendment » is also a reasonable method of minimising the negative health, economic and social effects of illicit drugs in Australian society. The « amendment » will make the criminal offences in Part 9.1 more effective and improve their deterrence value. The « use » of criminal laws is a well-recognised method of reducing the supply of illicit drugs and forms one pillar of the National Drug Strategy 2010-2015 .

59.               The recklessness measure is also a proportionate means of achieving the objective sought. As outlined above, the current distinction between the fault elements for attempted and primary offences against Part 9.1 is causing significant issues in the successful prosecution of persons involved in the trafficking and importation of illicit drugs and precursors. This « amendment » will make the fault elements for attempted offences against Part 9.1 consistent with the fault elements for primary offences against that Part.

60.               The prosecution will still be required to prove beyond reasonable doubt each element of an attempted offence against Part 9.1. 

 

Removing the intent to manufacture element from border controlled precursor offences.

61.               Items 3 to 7 of Schedule 1 also engage the presumption of innocence under Article 14(2) of the ICCPR. These items will remove the requirement for the prosecution to prove, in a prosecution for an offence against sections 307.11 to 307.13, that a person who imports or exports a border controlled precursor did so with the intention to « use » it to manufacture a controlled drug, or with the belief that another person intends to « use » the substance to manufacture a controlled drug. Removing this requirement to prove the intention or belief of an accused will engage the presumption of innocence because it will cause more people to rely on the defence of lawful authority under section 10.5 of the Criminal Code.

62.               Currently, there is a presumption in section 307.14 of the Criminal Code which operates so that, where the defendant imported or exported the substance without appropriate authorisation, he or she is presumed to have the relevant intention or belief that the border controlled precursor would be used to manufacture a controlled drug. A defendant can rebut the presumption by proving on the balance of probabilities that he or she did not have the relevant intention or belief. This presumption was included in the Criminal Code in an effort to assist the prosecution in proving a defendant’s state of mind in importing a precursor.

63.               However, the precursor offences n sections 307.11, 307.12 and 307.13, and the presumption in section 307.14 have not functioned as effectively as intended. Even with the presumption, the CDPP has faced formidable difficulties in prosecuting offenders for importing precursor chemicals. These difficulties are particularly pronounced where individuals are part of a larger operation and who deliberately operate with limited knowledge about how their actions fit into the broader criminal enterprise. In these circumstances, it is very difficult to prove the intention or belief of the persons involved in undertaking discrete parts of the importation, even where each person knew or believed they were involved in some form of illicit activity.

64.               These difficulties are compounded where the prosecution involves an extension of criminal liability under Part 2.4 of the Criminal Code because the prosecution cannot rely on the presumption in section 307.14. The case of R v Campbell & Baka (No 2) [2008] NSWDC 168 illustrates this issue. In that case, the NSW District Court held that the CDPP could not rely on the presumption in section 307.14 in prosecuting a person for aiding and abetting an offence against section 307.11, because it was not a ‘special liability provision’ within the meaning of subsection 11.2(6).

65.               To the extent that the intention to manufacture measure limits the presumption of innocence, this limitation is necessary, reasonable and proportionate to the legitimate objective of preventing and punishing the importation of precursors and reducing the harm that results from their « use » in manufacturing illicit drugs.

66.               These amendments are necessary to improve the effectiveness of the offences of importing border controlled precursors in sections 307.11 to 307.13 of the Criminal Code. They will assist in stemming the burgeoning flow of precursor chemicals across Australian borders, and their subsequent « use » in the production of illicit drugs, particularly amphetamine-type substances (such as methamphetamine and ice).  

67.               A large portion of Australia’s market for amphetamine-type substances (ATS) has historically been supplied by domestic manufacture using precursor chemicals diverted from legitimate sources within Australia. However, tightening domestic controls have gradually reduced the ability of criminal syndicates to divert precursor chemicals from legitimate uses, forcing them to increasingly attempt to import these chemicals directly. 

68.               This is evident in the increasing number of seizures of precursor chemicals at the border. In 2012-13, the number of ATS precursor detections increased by 11.3 per cent, from 937 in « 2011 » -12 to 1,043 in 2012-13. [2] . Further, the number of clandestine drug laboratories detected nationally has more than doubled over the last decade, increasing from 358 in 2003-04 to 757 in 2012-13. The proportion of industrial scale laboratories in Australia has also increased from 2.7 per cent in « 2011 » -12 to 8.0 per cent in 2012-13. [3]  

69.               The CDPP prosecutes an increasing number of precursor matters, particularly involving the importation of pseudoephedrine, a chemical frequently used in the manufacture of methamphetamine and ice. In 2013-14, the number of charges dealt with by the CDPP in relation to importing or exporting border controlled precursors increased by 50%, from 38 in 2012-13 to 57 in 2013-14. [4]    

70.               Items 3 to 7 of Schedule 1 are also a reasonable method of minimising the negative health, economic and social effects of illicit drugs in Australian society. The amendments will make the offences in sections 307.11 to 307.13 more effective and improve their deterrence value. They will support the capacity of the CDPP to carry out prosecutions with respect to the importation of border controlled precursors, and effectively disrupt and deter the activities of drug smuggling networks. The « use » of criminal laws is a well-recognised method of reducing the supply of illicit drugs and forms one pillar of the National Drug Strategy 2010-2015 .

71.               The intent to manufacture measure is also a proportionate means of achieving the objective sought. As set out above, the requirement to prove that a person imported a border controlled precursor either with the intent of using it to manufacture a controlled drug or in the belief that another person would do so, even with the presumption in section 307.14, has hampered the CDPP’s ability to secure the convictions of persons involved in the importation of precursor chemicals for the manufacture of illicit drugs.

72.               This method imposes the smallest limitation possible on the right to be presumed innocent whilst still improving the operation of the precursor offences in sections 307.11 to 307.13. The effect of removing the intent to manufacture element from those offences and the presumption that a person satisfied that element where he or she imported or exported a precursor without the appropriate authorisations will cause more defendants to rely on the defence of lawful authority under section 10.5 of the Criminal Code. While this narrows the opportunity for a person to demonstrate that their conduct was not intended to assist in the manufacture of illicit drugs, the heavy regulation of precursor chemicals means that only persons or businesses without appropriate authorisations or permissions to import or « use » these substances will be affected by the amendments in this Schedule.  

73.               Furthermore, as noted in the amendments above, the prosecution will still be required to prove, beyond reasonable doubt, each element of the offences contained within sections 307.11, 307.12 and 307.13 of the Criminal Code.  

 

Conclusion

74.               The serious drug and precursor measures in Schedule 1 of the « Bill » are compatible with the human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights in section 3 of the Human Rights (Parliamentary Scrutiny) Act. To the extent that these measures may limit those rights and freedoms, such limitations are reasonable, necessary and proportionate to improve the operability of serious drug offences and promote the intention of Part 9.1 of the Criminal Code. 

 

 

Schedule 2—Foreign bribery offence

Outline of amendments

75.               Schedule 2 will amend the Criminal Code to clarify the operation of the offence of bribing a foreign public official in Division 70.2. The « amendment » clarifies that proof of an intention to influence a particular foreign official is not required to establish the offence.

76.               The offence in Division 70.2 was inserted into the Criminal Code in 1999 to implement Australia’s obligation to criminalise the bribing of foreign public officials under the OECD  Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (the Convention). Australia’s implementation of the Convention was reviewed in 2012 by the OECD Working Group on Bribery. The examiners for this review noted that Division 70.2 could be construed in a way that would require the prosecution to prove the intention to bribe a particular foreign official. They recommended that Australia clarify that this is not a requirement of the foreign bribery offence.

77.               It is not intended that the foreign bribery offence require proof of an intention to bribe a specific foreign public official. Such a requirement would significantly reduce its effectiveness. As foreign bribery is often committed through intermediaries, a briber will often have not met or know the identity of the bribed official.

78.               Clarifying the offence will ensure that a defendant in a foreign bribery matter is not able to argue that the prosecution needs to establish an intention to bribe a particular foreign official.

Human Rights Implications

79.               Schedule 2 is compatible with human rights and freedoms. It will help ensure clarity in the operation of a serious criminal offence.

 

 

                                                                                                                                                                                             

 

Schedule 3—Outrages upon personal dignity

Outline of amendments

80.               Schedule 3 will clarify the scope and application of the war crime offence of outrages upon personal dignity in a non-international armed conflict (NIAC). The war crime offence of outrages upon personal dignity in a NIAC prohibits the severe humiliation, degradation or violation of the dignity of a person or persons where they are not taking an active part in hostilities. The offence also prohibits the severe humiliation, degradation or violation of a dead person or persons who were not taking an active part in hostilities prior to death.

81.               Under section 268.117 of the Criminal Code, the war crimes offence of outrages upon personal dignity has universal jurisdiction (extended geographical jurisdiction - category D) and therefore applies to conduct within or outside of Australia, and whether or not the offender was an Australian citizen, resident or body corporate.

82.               The amendments will ensure that the war crime offence of outrages upon personal dignity committed against a dead person or persons in a NIAC applies regardless of whether the dead person or persons were active in hostilities prior to death. The amendments in Schedule 3 will also address possible impediments to a successful prosecution by simplifying the structure of the offence. This will clarify that the prosecution need not prove whether a victim or victims were alive or dead at the time they were subject to the offence.

Human rights implications

83.               The obligations on States Parties under the seven core United Nations human rights treaties generally apply in respect of individuals within the State’s territory and subject to its jurisdiction (see Article 2(1) of the ICCPR for example). The war crime offence of outrages against personal dignity applies to persons of any nationality anywhere in the world.

84.               On this basis, the amendments do not generally engage human rights. To the extent that a person may be prosecuted within Australia in relation to this offence, the defendant will be afforded the right to a fair trial and the minimum guarantees in criminal proceedings consistent with Australia’s obligations under Article 14 of the ICCPR.

85.               The amendments will criminalise the severe humiliation, degradation or violation of the dignity of all deceased persons in a NIAC. While not forming part of Australia’s human rights obligations under the Human Rights (Parliamentary Scrutiny) Act, this is consistent with the protections under Article 4 and Article 8 of the Additional Protocol II to the Geneva Conventions 1949 (APII) afforded to persons affected by armed conflict when they are not, or are no longer, participating directly in hostilities. Australia ratified the APII without reservation on 21 June 1991.

86.               Article 4 of the APII provides that all persons who do not take a direct part, or who have ceased to take part in hostilities, whether or not their liberty has been restricted, are entitled to respect for their person, honour and convictions and religious practices. Article 4 of the APII also requires that certain conduct, including outrages upon personal dignity, in particular humiliating and degrading treatment, are prohibited at any time and in any place whatsoever. Article 8 of the APII prohibits the despoilment of deceased persons after a « military » engagement and provides that all possible measures should be taken to protect deceased persons against pillage and ill-treatment and prevent them being despoiled.

Conclusion

87.               Schedule 3 is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act.

 

 

Schedule 4—Forced marriage

Outline of amendments

88.               The objective of the amendments set out in Schedule 4 is to increase protections against forced marriage for children and persons with a disability who do not have the capacity to provide free and full consent to marriage. The objective of the amendments is also to ensure that the penalties for the forced marriage offences reflect the seriousness of forced marriage as a slavery-like practice, and are commensurate with the most serious

slavery-related facilitation offences.

89.               Schedule 4 will amend the definition of forced marriage in the Criminal Code. Under the existing definition, a marriage is forced if the victim does not freely and fully consent because of the « use » of coercion, threat or deception. The amendments will expand the definition of forced marriage to include circumstances in which a victim does not freely and fully consent because he or she is incapable of understanding the nature and effect of a marriage ceremony. A person may be incapable of understanding the nature and effect of a marriage ceremony for reasons including age or mental capacity. The amendments will create a presumption that a person under the age of 16 does not understand the nature and effect of a marriage ceremony. A defendant would bear the burden of proving the contrary on the balance of probabilities.

90.               Schedule 4 will also amend section 270.7B of the Criminal Code to increase the penalties for the forced marriage offences. Forced marriage is one of a suite of slavery-like offences in Divisions 270 and 271 of the Criminal Code which are criminalised on a continuum of seriousness. Along with debt bondage and harbouring a victim, forced marriage is conceptualised as a facilitation offence, as opposed to one which relates to the ongoing exploitation of a person. Other offences capture the ongoing serious exploitation within a marriage and can be used in conjunction with the forced marriage offences.

91.               Under section 270.7B, the forced marriage offences currently carry a maximum penalty of four years’ imprisonment for a base offence and a maximum of seven years’ imprisonment for an aggravated offence. The penalties will be increased to seven years’ and nine years’ respectively. The amendments will ensure the forced marriage offences align with the most serious slavery-related facilitation offence of deceptive recruiting for labour or services, while keeping them lower on the continuum of seriousness than forced labour, which involves the ongoing exploitation of the victim.

Human rights implications

92.               The amendments will promote the human rights of children and persons with disabilities affecting their capacity to consent to marriage. The amendments will limit the ability of children and persons with disabilities affecting their capacity to consent to marriage to enter into a marriage, and limit the human rights of persons who would be subject to the amended forced marriage offences.

93.               The « Bill » engages the following rights:

·          the requirement that no marriage shall be entered into without the free and full consent of the intending spouses

·          the requirement that the marriage of a child shall have no legal effect

·          the rights of children and persons with disabilities to be free from all forms of exploitation, violence and abuse

·          the right of persons with disabilities who are of marriageable age to marry

·          the right of minorities to enjoy their own culture

·          the right to privacy and reputation of the persons who are party to a marriage, and

·          the right to a fair trial.

94.               Where a person does not understand the nature and effect of a marriage ceremony, he or she cannot freely and fully consent to marriage. By ensuring the forced marriage offences apply where a victim is incapable of understanding the nature and effect of a marriage ceremony, the amendments promote the human right to respect for the family, specifically the requirement that no marriage shall be entered into without the free and full consent of the intending spouses. This right is enshrined in the International Covenant on Civil and Political Rights (ICCPR, Article 23(3)), the International Covenant on Economic, Social and Cultural Rights (Article 10(1)), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW, Article 16(1)(b)) and the Convention on the Rights of Persons with Disabilities (CRPD, Article 23(1)(a)).

95.               Reflecting that girls are particularly vulnerable to forced marriage, Article 16(2) of the CEDAW also provides that the marriage of a child shall have no legal effect. The amendments further promote this right by creating a presumption that a person under the age of 16 is incapable of understanding the nature and effect of a marriage ceremony. The age of 16 rather than 18 is specified in the amendments in line with the marriageable age provisions in the Part II of the Marriage Act 1961 (Cth), which permit a person aged between 16 and 18 to marry a person aged over 18 in exceptional circumstances.

96.               More broadly, the amendments promote the human rights of children and persons with disabilities to be free from all forms of exploitation, violence and abuse, as, in practice, forced marriage is often followed by sexual abuse (see Articles 19 and 34 of the Convention on the Rights of the Child (CRC) and Article 16 of the CRPD).

97.               The amendments limit the ability of children and persons with disabilities affecting their capacity to consent to marriage to enter into a marriage. The text of the relevant treaty articles relating to the right to marry make it clear that limitations based on age and capacity to consent are permissible and, indeed, required. It is appropriate to protect those who do not have the capacity to consent to marriage, including because of their age or a disability, from forced marriage, which puts people at risk of harmful consequences including emotional and physical abuse, loss of autonomy and loss of access to education. While a person’s disability may be a reason he or she is incapable of understanding the nature and effect of a marriage ceremony, the amendments do not otherwise limit the human right of persons with disabilities who are of marriageable age to marry. This right, enshrined in Article 23(1)(a) of the CRPD, is specifically based on the free and full consent of the intending spouses. The amendments will not prevent persons with disabilities affecting their capacity to marry, unless that disability has the effect that they are unable to understand the nature and effect of a marriage ceremony and therefore cannot provide free and full consent.

98.               To the extent that the marriage of children may be seen to reflect a cultural practice, the amendments may limit the right of minorities to enjoy their own culture under Article 27 of the ICCPR. However, the Human Rights Committee has made it clear that ‘none of the rights protected under article 27 of the Covenant may be legitimately exercised in a manner or to an extent inconsistent with the other provisions of the Covenant’ (Human Rights Committee, General Comment 23 paragraph 8). The marriage of children is directly inconsistent with the requirement under Article 23(3) of the ICCPR that no marriage shall be entered into without the free and full consent of the intending spouses.

99.               The amendments may also limit the right to privacy and reputation of the persons who are party to a marriage, by requiring a consideration of a person’s capacity to provide consent. This right protects against arbitrary or unlawful interference with a person’s privacy and family as well as unlawful attacks on a person’s honour and reputation (see Article 17 of the ICCPR, Article 16 of the CRC, and Article 22 of the CRPD). However, a person’s capacity to consent to marriage is a fundamental consideration in determining whether or not a marriage is void under Australian law. Part III of the Marriage Act provides that a marriage is void if the consent of either of the parties is not real consent, including because the party was mentally incapable of understanding the nature and effect of the marriage ceremony. Further consideration of a party’s capacity to consent for the purposes of the forced marriage offences will only occur where Australian law enforcement authorities believe that the party entered into a marriage without freely and fully consenting because he or she was incapable of understanding the nature and effect of a marriage ceremony. Any limitation to privacy and reputation is reasonable, necessary and proportionate, as there is no other less rights restrictive means to establish whether a child or a person with a disability had capacity to consent.

100.           The amendments also engage with the right to a fair trial, protected by Article 14 of the ICCPR. The amendments place a legal burden on the defendant to prove, on the balance of probabilities, that a person under the age of 16 was capable of understanding the nature and effect of a marriage ceremony. Laws which shift the burden of proof to the defendant can be considered a limitation on the presumption of innocence under Article 14(2) of the ICCPR, but will not violate that right so long as they are within reasonable limits which take into account the importance of the objective and maintain the rights of defence.

101.           The increase in the penalties for forced marriage may also be considered a limitation on the presumption of innocence under Article 14(2) of the ICCPR, as it imposes a more serious penalty for an offence where the burden of proof has been shifted to the defendant. The increase in the penalties for the forced marriage offences reflects the seriousness of forced marriage as a slavery-like practice, a form of gender-based violence and an abuse of human rights which puts people at risk of emotional and physical abuse, loss of autonomy and loss of access to education. It also ensures that the penalties for forced marriage align with the penalties for the most serious slavery-related facilitation offence of deceptive recruiting for labour or services, while keeping them lower on the continuum of seriousness than forced labour, which involves the ongoing exploitation of the victim. However, as noted above, in this context it is justified as it is necessary, reasonable and proportionate. 

102.           While there is an exception under the Marriage Act for a person between 16 and 18 years of age to marry a person over the age of 18, this relies on required consent (usually parental) and that an Australian court order is in force from a judge or magistrate authorising a marriage. Depending on the jurisdiction, the age at which a person is considered capable of consenting to sexual intercourse is generally 16 or 17 years old. While the imposition of a legal burden may be considered a limitation on the presumption of innocence, in this context it is justified as it is necessary, reasonable and proportionate. 

Conclusion

103.           Schedule 4 is compatible with human rights because it promotes the protection of a range of human rights, and, to the extent that it limits human rights, those limitations are necessary, reasonable and proportionate.

 

 

Schedule 5—Knowingly concerned

Outline of amendments

104.           Schedule 5 will amend the Criminal Code to insert ‘knowingly concerned’ as an additional form of secondary criminal liability into section 11.2. This will mean that, where persons are knowingly and intentionally involved in the commission of an offence, they will be liable for the offence.

105.           This measure will supplement existing forms of secondary liability, such as the aiding, abetting, counselling or procuring of an offence. This additional form of secondary criminal liability will enable the Commonwealth Director of Public Prosecutions (CDPP) to more effectively prosecute federal criminal offences, including offences regarding illegal substances (such as importation and trade in drugs), fraud, corruption and insider trading, which traditionally rely on the involvement of secondary persons. The CDPP has advised that the absence of this prosecuting option is a significant impediment, and has rendered certain prosecutions more complex and less certain. This form of secondary criminal liability previously existed in the Crimes Act and will ensure that criminal liability can be effectively established for an accused’s knowing involvement in the commission of an offence. 

 

Human rights implications

106.           The insertion of knowingly concerned adds an additional form of secondary criminal liability to section 11.2 of the Criminal Code, which already contains offences for aiding, abetting, counselling or procuring the commission of an offence.

107.           The measure engages the following human rights:

·          the presumption of innocence under Article 14(2) of the International Covenant on Civil and Political Rights (ICCPR), and

·          the right to freedom of association and assembly under Article 22(1) of the ICCPR.

Preservation of the presumption of innocence

108.           Article 14(2) of the ICCPR provides that persons charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to law. It imposes on the prosecution the burden of proving a criminal charge and guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt.

109.           The knowingly concerned measure in Schedule 5 maintains the presumption of innocence which exists for other forms of liability in section 11.2 of the Criminal Code. The burden is on the prosecution to prove every element of the offence beyond reasonable doubt (sections 13.1 and 13.2 of the Criminal Code).

Potential limitation on the right to freedom of assembly and association

110.           Article 22(1) of the ICCPR provides that everyone shall have the right to freedom of association with others.

111.           The knowingly concerned measure may engage the right to freedom of assembly and association, where people associate with a criminal group and are found to have been privy to and knowingly concerned in particular criminal activities. However, Article 22(2) of the ICCPR provides that this right can be limited in the interests of public safety and order.

112.           The offence of being knowingly concerned will only impact people who have association with criminal groups and criminals to the extent that those same people are knowingly concerned in the commission of a criminal offence. The prohibited conduct is the act of being knowingly concerned in the commission of an offence, and so does not affect a person’s ability to associate with people or groups where they are not knowingly concerned in the commission of an offence. Innocent association or social interactions that do not result in a person becoming knowingly concerned in the commission of a particular offence will therefore not amount to a criminal offence.

113.           In this way, the measure is aimed at the legitimate interests of protecting public safety and order by deterring criminal activity and in particular, deterring association with criminal groups to the extent that this association amounts to being knowingly concerned in the commission of a criminal offence. In addition, alleged offenders will continue to be presumed innocent until proven guilty (see discussion above), and the onus will remain on the prosecution to prove each element of the offence, including the requisite fault element of intention (that is, the accused must have been intentionally involved in the commission the criminal offence).

114.           As the limitation on this right goes no further than is necessary to combat the knowing and intentional involvement of individuals in criminal activity and criminal groups, the limitation is a reasonable, necessary and proportionate means of protecting public safety within the framework of existing criminal law legislation.

Conclusion

115.           Schedule 5 of the « Bill » is compatible with human rights because it maintains the presumption of innocence. To the extent that it may limit the right to freedom of association and assembly, those potential limitations are reasonable, necessary and proportionate.

 

 

Schedule 6—Penalties for firearms trafficking offences

Outline of amendments

116.           Schedule 6 will amend the Criminal Code to implement the Government’s election commitment made in the Government’s Policy to Tackle Crime , released in August 2013, to introduce mandatory minimum sentences of five years imprisonment for firearm trafficking.

117.           Schedule 6 will give effect to this by introducing a mandatory minimum five year term of imprisonment for:

·          the existing offences of trafficking firearms and firearm parts within Australia (in Division 360 of the Criminal Code), and

·          the new offences of trafficking firearms into and out of Australia in Division 361 of the Criminal Code (included in the Crimes Legislation « Amendment » (Psychoactive Substances and Other Measures) Act 2015 ).

Human rights implications

118.           Schedule 6 of the « Bill » engages the right to freedom from arbitrary detention under article 9(1) of the ICCPR.

Arbitrary detention

119.           Article 9(1) of the ICCPR states that:

Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

120.           The prohibition on arbitrary detention under article 9(1) requires that in all circumstances, the detention of the particular individual must be justified as reasonable, necessary and proportionate to the « end » that is sought. This right is engaged by the application of mandatory minimum penalties for trafficking offences under Division 360 and the proposed international firearms trafficking offences in the new Division 361 of the Criminal Code.

121.           The inclusion of a mandatory minimum penalty of five years’ imprisonment for trafficking offences under Division 360 and Division 361 of the Criminal Code is aimed at the legitimate objective of ensuring offenders receive sentences that reflect the seriousness of their offending. 

122.           There are clear and serious social and systemic harms associated with firearms trafficking, and the introduction of a mandatory minimum penalty of five years’ imprisonment for offences under Division 360 and the new Division 361 reflect the gravity of supplying firearms and firearm parts to the illicit market. The entry of even a small number of illegal firearms into the Australian community can have a significant impact on the size of the illicit market, and, due to the imperishable nature of firearms, a firearm can remain within that market for many years. This provides a growing pool of firearms which can be accessed by groups who would « use » them to commit serious and violent crimes, such as murder. For example, in 2012, firearms were identified as being the type of weapon used in 25% of homicides in Australia (Australian crime: Facts and figures 2013, Australian Institute of Criminology). Failure to enforce harsh penalties on trafficking offenders could lead to increasing numbers of illegal firearms coming into the possession of organised crime groups who would « use » them to assist in the commission of serious crimes.

123.           The amendments do not apply mandatory minimum penalties to children (those under the age of 18). This promotes freedom from arbitrary detention through encouraging proportionate sentencing by preserving judicial discretion in sentencing to take into account minors’ particular circumstances. In this way, any risk that the sentencing of lower culpability offenders could amount to arbitrary detention is removed.

124.           Moreover, the penalties do not impose a minimum non-parole period on offenders. This will preserve a court’s discretion in sentencing, and will help ensure that custodial sentences imposed by courts are proportionate and able to take into account the particular circumstances of the offence and the offender. Specifically, the mandatory minimum sentence is not intended as a guide to the non-parole period, which in some cases may differ significantly from the head sentence.

125.           Most importantly, the mandatory minimum term of imprisonment will only apply if a person is convicted of an offence as a result of a fair trial in accordance with such procedures as are established by law.

Conclusion

The mandatory minimum sentences for firearm trafficking in Schedule 6 of the « Bill » are compatible with the human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights in section 3 of the Human Rights (Parliamentary Scrutiny) Act. To the extent that these measures may limit those rights and freedoms, such limitations are reasonable, necessary and proportionate to achieving reductions in gun-related crime.

 

 

Schedule 7—Sentencing and parole

Outline of amendments

126.           Schedule 7 of the « Bill » makes technical amendments to Part 1B of the Crimes Act.

127.           Part 1B of the Crimes Act provides for the sentencing, imprisonment and release of federal offenders. A federal offender is a person convicted of an offence against a law of the Commonwealth. Federal offenders are prosecuted and sentenced in State and Territory courts, pursuant to the Judiciary Act 1903 (Cth). The Commonwealth does not have a federal prison. If sentenced to imprisonment, federal offenders are imprisoned in State and Territory prisons, pursuant to section 120 of the Australian Constitution.

128.           The Crimes Act sets out general sentencing principles for courts (including matters to which a court is to have regard when passing sentence for a federal offence) and the circumstances in which a court is to fix a non-parole period or make a recognizance release order. The Crimes Act provides that a court may sentence a federal offender to a sentence of imprisonment, or make a non-conviction order, a conditional release order or a recognizance release order. A court may also consider alternative sentencing orders that are available in the relevant State or Territory when sentencing federal offenders. Alternative sentencing options are intended to cover sentencing options other than imprisonment, such as community service orders, work orders, sentences of periodic detention, attendance centre orders, weekend detention and similar orders. 

129.           Courts are empowered to deal with a failure to comply with a condition of discharge or release, or a failure to comply with alternative sentencing orders. The Attorney-General is empowered to release a federal offender who has been sentenced to a period of imprisonment on parole or licence. This includes the power to set conditions and provisions for revoking parole orders or licences for breaches of conditions. 

130.           The « Bill » amends the Crimes Act to improve the clarity of certain provisions, address legislative anomalies and enhance the administrative efficiency of the legislation.

131.           Introducing provisions that set out the purposes of parole and factors that may be taken into account by the parole decision-maker will support procedural fairness and the production of reasons for decisions, inform the community at large of the roles and responsibilities of parole authorities, and promote consistent and transparent parole-related outcomes. A decision to release or not release a person on parole is subject to judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act).

132.           Enabling courts to correct minor or technical sentencing errors, adding ‘general deterrence’ to general sentencing principles and clarifying when a court must fix a non-parole period or recognizance release order are all measures aimed at simplifying court procedures, improving administrative efficiencies, clarifying procedures and addressing legislative anomalies or oversights.

133.           Listing some additional sentencing options for breaches of non-conviction orders, conditional release orders and recognizance release orders will merely make clear to the courts the range of State and Territory sentencing options that are already available when sentencing federal offenders.

134.           Enabling parole orders to be amended to correct errors or oversights and reinstating the previous legislative basis for the Attorney-General to consider 30 days’ early release on parole addresses extant legislative anomalies. A decision to release or not release a person on parole is still subject to judicial review under the ADJR Act.

135.           Inserting a provision in the Crimes Act to include a non-exhaustive list of the matters that the Attorney-General may have regard to in exercising the power to release a person on licence because of ‘exceptional circumstances’, provides legislative guidance to both federal offenders and decision-makers. A decision to release or not release a person on licence is still subject to judicial review under the ADJR Act.

Human rights implications

136.           Schedule 7 of the « Bill » engages the following human rights:

(a)     the right to liberty and freedom of movement under articles 9 and 12 of the ICCPR, and

(b)    individual rights to minimum guarantees in criminal proceedings, including the right not to be tried or punished more than once under article 14 of the ICCPR.

(a)     Right to liberty and freedom of movement

137.           A number of proposals in Schedule 7 may engage articles 9 and 12 of the ICCPR. Article 9(1) of the ICCPR states that:

Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

138.           Article 9(1) of the ICCPR guarantees the right to liberty and security of person and enshrines that no person shall be subjected to arbitrary arrest or detention. This right requires that persons not be subject to arrest and detention except as provided for by law, and provided that the law itself and the manner of its execution are not arbitrary. In all circumstances, the detention of the particular individual must be justified as reasonable, necessary and proportionate to the « end » that is sought.

139.           Article 12(1) of the ICCPR similarly provides that ‘everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.’ While article 12 is not an unfettered freedom, any restrictions must be provided by law and necessary to protect national security, public order, public health, public morals, or the rights and freedoms of others.

140.           However, the right to freedom of movement may be restricted to protect public order, provided the restriction is necessary and proportionate and the least intrusive method of achieving the desired outcome. The right to liberty requires that persons not be subject to arrest and detention except as provided for by law, and provided that the law itself and the manner of its execution are not arbitrary.

141.           It is important to note that federal offenders who are sentenced to a community based or other order have been convicted of a criminal offence by a State or Territory court and any restriction on their freedom of movement is a consequence of their criminal conviction and sentence. That is, the restriction of their freedom of movement protects public order, by ensuring that persons convicted of criminal offences are punished for their offences and the community is also protected from them.

142.           The restrictions on freedom of movement and on liberty associated with these sentencing orders are demonstrably necessary, proportionate and the least intrusive method of achieving the desired outcome, as assessed by the sentencing court. The sentencing court is required to consider all relevant factors before sentencing a federal offender. This involves weighing considerations such as the need to ensure that a person is adequately punished for their offence, against other considerations such as prospects for offender rehabilitation. The Court must impose a sentence that is appropriate in all the circumstances. 

143.           A sentence such as a community based order is less intrusive than alternatives such as imprisonment. In considering whether a community based order is appropriate, a court must have regard to the nature and severity of the conditions that may be imposed on, or may apply to, the offender, under that sentence or order. Federal offenders who are sentenced to a community based order are therefore not subject to arbitrary arrest or detention. Existing laws provide procedural safeguards for criminal prosecution in Australia, including the right of federal offenders to appeal their conviction and/or sentence, or to seek other remedies such as the writ of habeas corpus.

144.           The changes to sections 19AB and 19AC of the Crimes Act may engage the rights to individual liberty and freedom of movement. The amendments require that only non-parole orders (not recognizance release orders) can be fixed for sentences that exceed three years. If a court makes a recognizance release order in relation to a sentence that exceeds three years’ imprisonment, then the offender is automatically released after serving the period of imprisonment that is specified in the order. If a court fixes a non-parole period in relation to a sentence that exceeds three years’ imprisonment, then release is discretionary and depends on an assessment by the Attorney-General, or a delegate, of matters relevant to the making or refusal to make a parole order.

145.           Federal offenders who are sentenced to imprisonment have been convicted of a criminal offence and any restriction on their freedom of movement is a consequence of their criminal conviction and sentence, and serves to protect the public. A sentence that exceeds three years’ imprisonment is likely to be imposed for a serious matter. It is appropriate that an assessment is made, around the time of the offender’s release date, of their suitability for release (an assessment largely based on recommendations from corrective services and other authorities). Finally, such detention is not arbitrary and release on parole (or otherwise) is determined applying principles of administrative law. Further, a decision about granting or refusing to grant release on parole is subject to judicial review under the ADJR Act.

146.           New subsection 20(1A) will mandate that a court will, when it has specified that an offender will be subject to the supervision of a probation officer in deciding to grant conditional release, require the offender not to travel interstate or overseas without the written permission of the probation officer. Despite being convicted of a federal offence, the court may, if it thinks fit, conditionally release an offender. One of those conditions may be that the offender be subject to the supervision of a probation officer. It is appropriate for new subsection 20(1A) to mandate that in these circumstances an offender be restricted in their freedom to travel interstate to the extent that written permission from the probation officer must first be obtained. Such a restriction is justified - conditionally releasing a person has the effect of maximising the offender’s ability to move freely, but this needs to be balanced with ensuring the supervising officer can monitor the offender’s compliance with the conditions. Consent before travelling interstate ensures a supervising probation officer can properly undertake their supervisory duties.

(b)    Individual rights to minimum guarantees in criminal proceedings

147.           The minimum guarantees in criminal proceedings enshrined in article 14 of the ICCPR include the right not to be tried or punished again for an offence for which a person has already been finally convicted or acquitted in accordance with the laws of the State. 

148.           The « amendment » under new section 16AC will expand a prosecution authority’s ability to appeal against the inadequacy of a sentence or non-parole period in circumstances where an offender is no longer under sentence. This might first appear to engage the right not to be tried or punished again for an offence for which a person has already been convicted. However, at the time of original sentencing, the court will only reduce the applicable penalty on the basis of an individual’s undertaking that they will later cooperate with law enforcement authorities. The court will specify accordingly that the person’s sentence is only being reduced for that reason, and that the full penalty would otherwise have been imposed in the absence of the undertaking to cooperate. If the person then fails to cooperate, it is reasonable to empower the court to then substitute the reduced penalty with the penalty that would have been imposed but for the undertaking.

149.           In effect, the person’s sentence is merely being substituted for the sentence the Court would originally have imposed if the undertaking to co-operate had not been made.

Conclusion

150.           To the extent that the Schedule may limit protections against unlawful or arbitrary restriction of liberty and movement, or abrogation of the minimum guarantees of criminal proceedings, those limitations are reasonable, necessary and proportionate in the circumstances.

 

 

 

 

 

Schedule 8—Interstate transfer of federal prisoners

Outline of amendments

151.           The Transfer of Prisoners Act enables federal prisoners to be transferred from a prison in one State or Territory to a prison in another State or Territory on welfare grounds (on request by the prisoner), to face trial in another jurisdiction or, if it is necessary, in the interests of security. Each State and Territory has complementary legislation in relation to the interstate transfer of State and Territory prisoners.

152.           The Schedule 8 amendments merely allow interstate transfer of prisoners to occur at a location other than a prison (for example, at an airport). The measure is simply an administrative efficiency and does not affect judicial review available in relation to decisions to transfer prisoners under the Transfer of Prisoners Act. Further, by ensuring that provisions of general application in the Transfer of Prisoners Act apply to both sentenced and remand prisoners subject to transfer under the Act, the amendments correct previous drafting oversights. The changes do not affect substantive provisions relating to grounds for transfer.

Human rights implications

153.           This Schedule is compatible with human rights. It does not engage any of the applicable rights or freedoms.

 

 

Schedule 9—Federal offender information sharing

Outline of amendments

154.           Schedule 9 facilitates information sharing about federal offenders between the Attorney-General’s Department and relevant specified third party agencies. The Attorney-General makes a number of decisions under the Crimes Act, the  Crimes (Superannuation Benefits) Act 1989 and the Transfer of Prisoners Act in relation to federal offenders, including making or refusing to make a parole or licence order, revoking a person’s parole because of a breach and considering applications for pardon or referral back to court. In practice, making these decisions relies heavily on information from third party State/Territory as well as Commonwealth agencies. This « amendment » will facilitate the sharing of necessary and relevant information about federal offenders to ensure informed decisions are made by decision makers under the Crimes Act, as well as by the third party agencies in line with their functions under legislation.

155.           The amendments to facilitate federal offender information sharing for the purposes of making decisions under legislation do not affect existing review rights for federal offenders; they instead aid decision makers to make better informed decisions on the basis of all relevant information.

Human rights implications

156.           Schedule 9 of the « Bill » engages the right to privacy under article 17 of the ICCPR.

Right to privacy

157.           Article 17 of the ICCPR prohibits unlawful or arbitrary interference with a person’s privacy, family, home and correspondence, and prohibits unlawful attack on a person’s reputation. Lawful interference with the right to privacy will be permitted, provided it is reasonable in the particular circumstances. The UN Human Rights Committee has considered that ‘any interference with privacy must be proportional to the « end » sought and be necessary in the circumstances of any given case’. [5]

158.           Schedule 9 of the « Bill » engages the right to privacy by requiring third party agencies to provide an authorised Attorney-General’s Department employee with information about federal offenders. It also allows for the relevant employee to provide information to third party agencies.

159.           The Commonwealth relies on the States and Territories to administer the courts, prisons and community corrections that apply to federal offenders. Therefore, when making decisions about federal offenders, the Commonwealth is reliant on several State or Territory agencies providing information and making recommendations about matters that affect the decision-making process. This information may, depending on the circumstances, include the offender’s criminal history (including State or Territory offences), conduct in prison (including offences and/or participation in prison rehabilitation programs), health conditions including mental health, family circumstances, name of victim, appropriate accommodation options while on parole and behaviour while on parole including any breaches. Similarly, the authorised person may seek to disclose information to third party agencies for the purposes of carrying out their legislative functions.

160.           Only authorised officers are capable of requesting information, and this is limited to the Attorney-General, the Secretary of the Department, or his or her delegate. Delegations made in this respect will be restricted to specific employees of the Department who necessarily must seek information for the purposes of making decisions under the specified Acts. 

161.           While article 17 accords everyone the right to protection against arbitrary or unlawful interference with their privacy, the information-sharing powers created by Schedule 9 are reasonable in the circumstances and proportional to the aims of the « Bill » . They only allow the authorised person to seek or provide information for the purposes of making informed decisions and for the proper administration of criminal justice. The proposed amendments are sufficiently precise as to their scope, are not arbitrary and are reasonably required to meet a legitimate public purpose. In the circumstances, the « Bill » creates permissible limitations on the right to privacy.  

Conclusion

162.           To the extent that the Schedule may limit protections against unlawful and arbitrary interference with privacy, those limitations are reasonable, necessary and proportionate in the circumstances.

 

 

Schedule 10—Anti-Money-Laundering and Counter-Terrorism Financing amendments

Outline of amendments

163.           Schedule 10 will amend the definition of ‘relevant period’ in subparagraph 75B(6) of the AML/CTF Act. Subsection 75B(6) sets out the time period available to the Australian Transaction Reports and Analysis Centre (AUSTRAC) Chief Executive Officer (CEO) to make a decision on an application for registration on the Remittance Sector Register. The « amendment » clarifies that the relevant period before the AUSTRAC CEO is deemed to have made a decision not to register a person begins on the latest of:

·          the day an application is made;

·          where a request for further information has made by the AUSTRAC CEO under subparagraph 75N(1) the day on which such information is provided and, where multiple requests for information are made under that subsection, the last day on which such information is provided;

·          where a submission is made under subparagraph 75Q(1)(d) in relation to a proposed decision, the day such a submission is made.

164.           These items address potential issues with the drafting of, and interaction between, subparagraphs 75(C)(2), 75B(6), and 75Q(1) that may have resulted in applications for registration being deemed to be refused, notwithstanding the fact that an applicant still had time remaining in which to make a submission in relation to the proposed decision under paragraph 75Q. It also ensures that the AUSTRAC CEO has adequate time to consider any such submission made by an application under subparagraph 75Q before the deemed refusal provisions in subparagraph 75B(6) would apply.

165.           Schedule 10 will amend the admissibility requirements in subparagraphs 169(2)(c)-(d) of the AML/CTF Act in order to provide consistency with the broader exceptions for adducing self-incriminating evidence that exist under subparagraphs 205(2)(c)-(d). This will ensure that AUSTRAC is able to utilise information or documents produced by a person pursuant to paragraph 167 of the AML/CTF Act in all civil proceedings instituted under the AML/CTF Act or under the POC Act that relate to the AML/CTF Act, as well as all criminal proceedings for an offence against the AML/CTF Act or against the Criminal Code as it relates to the AML/CTF Act (as well as in any subsequent appeals). This « amendment » will remove significant operational constraints and strengthen the ability of AUSTRAC to perform its functions in securing effective compliance or prosecutions.

166.           Schedule 10 will also amend subparagraph 203(e) of the AML/CTF Act, which specifies the timeframe in which information or documents must be given or produced by a person, to bring it into line with the more flexible approach provided for in subparagraph 167(2)(b). This « amendment » will reduce operational constraints on AUSTRAC and the compliance burden on regulated entities by allowing the timeframes for the production of information or documents to more appropriately fit the circumstances of the request.

Human Rights Implications

Proposed subparagraphs 169(2)(c)-(d)

167.           The amendments to proposed subparagraphs 169(2)(c)-(d) of the AML/CTF Act engage Article 14(3)(g) of the ICCPR, which protects the right to be free from self-incrimination by providing that a person may not be compelled to testify against him or herself or to confess guilt. However, the privilege against self-incrimination is not absolute, and may be subject to permissible limitations provided that the limitations are for a legitimate objective and are reasonable, necessary and proportionate to that objective.

168.           International jurisprudence also indicates that the abrogation of the privilege against self-incrimination is more likely to be permissible where protections relating to the « use » of the information are included, such as a « 'use » immunity', which prohibits « use » of the information against the person in subsequent proceedings; or a 'derivative « use » immunity', which additionally prevents other information obtained as a result of the giving of self-incriminating information being used as evidence against the person.

169.           Subparagraph 169(1) of the AML/CTF Act provides that a person is not excused from giving information or producing a document under paragraph 167 on the grounds that compliance might be incriminating. However, subparagraph 169(2) provides that such disclosed information cannot be used as evidence against the person who disclosed that information, whether directly or indirectly (a ‘ « use » immunity’ and ‘derivative « use » ’ immunity), except by way of:

·          civil proceedings instituted under the POC Act that relate to the AML/CTF Act, or

·          prosecutions for an offence against subparagraphs 167(3), 136, or 137 of the AML/CTF Act, or

·          prosecutions for an offence against subparagraphs 137.1 or 137.2 of the Criminal Code as they relate to Part 14 of the AML/CTF Act.

170.           The proposed amendments to subparagraphs 169(2)(c)-(d) extend these exceptions to civil proceedings instituted for an offence against the AML/CTF Act, and criminal proceedings for an offence against the AML/CTF Act or against the Criminal Code as it relates to the AML/CTF Act (and any subsequent appeals).

171.           To the extent that this limited broadening of the exceptions represents a further abrogation of the privilege against self-incrimination, it is considered to be reasonable, necessary and proportionate for the following reasons:

·          The amendments are precise and narrow in scope and do not abrogate the privilege entirely but seek only to narrowly extend the range of proceedings from which the right is excluded. This mirrors the existing approach to self-incrimination that is taken in subparagraph 205(2) of the AML/CTF Act and provides greater consistency in the operation and interpretation of the Act.

·          The public benefit derived from the abrogation of the privilege outweighs any potential harm to individual rights. The amendments meet a legitimate public interest by enabling a regulatory agency to access and effectively utilise the information it needs to be able to perform its functions. Any harm to individual rights is minimised by the provision of « use » immunities.

Conclusion

172.           Schedule 10 of the « Bill » is compatible with the human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights in section 3 of the Human Rights (Parliamentary Scrutiny) Act. To the extent that these measures may limit those rights and freedoms, such limitations are reasonable, necessary and proportionate.

Schedule 11—Law Enforcement Integrity Commissioner

Outline of amendments

173.           Schedule 11 of the « Bill » will amend the LEIC Act to ensure that the powers available to the Integrity Commissioner under various provisions of the LEIC Act are internally consistent and allow the Integrity Commissioner to perform the prescribed functions of the office more efficiently and effectively. Schedule 11 will also make a number of minor amendments to improve the general operation of the LEIC Act.

174.           Schedule 11 will:

·          amend the definition of ‘significant corruption issue’ to allow the Integrity Commissioner and head of a law enforcement agency to reach agreement on what a significant corruption issue is

·          provide the Integrity Commissioner with greater discretion in deciding when and how to keep persons informed of action taken in relation to a corruption issue

·          ensure that the same pre-investigation powers are available to the Integrity Commissioner when he or she is deciding how to deal with significant and non-significant corruption issues

·          expand the Integrity Commissioner ability to share information to allow him or her  to inform appropriate third parties of information that indicates that a person’s safety may be in jeopardy

·          allow the Integrity Commissioner to delegate his or her power to apply for a passport surrender order to a Senior Executive Service (SES) (or acting SES) employee of the Australian Commission for Law Enforcement Integrity (ACLEI)

·          simplify provisions relating to giving certain evidence in private, in particular to clarify that all evidence to which a secrecy provision relates cannot be given in public

·          amend the definition of ‘AFP staff member’ for consistency with the Australian Federal Police Act 1979

·          remove time limits on the secondment of officers to ACLEI, and

·          fix a minor grammatical error.

Human rights implications

175.           Schedule 11 of the « Bill » engages:

·          the right to freedom from unlawful or arbitrary interferences with a person’s privacy under Article 17 of the ICCPR, and

·          the right to freedom of movement under Article 12 of the ICCPR.

Prohibition on interferences with privacy

176.           Article 17 of the ICCPR accords everyone the right to protection against arbitrary or unlawful interference with their privacy. Lawful interferences with the right to privacy will be permitted, provided they are reasonable in the particular circumstances. The UN Human Rights Committee has interpreted ‘reasonableness’ in this context to imply that ‘any interference with privacy must be proportional to the « end » sought and be necessary in the circumstances of any given case’. [6]

177.           Schedule 11 of the « Bill » engages the right to privacy by expanding the Integrity Commissioner’s power to disclose information to a person where the Integrity Commissioner is satisfied that it is necessary in order to protect a person’s life or physical safety.  

178.           Under section 207 of the LEIC Act, current and former staff members of ACLEI (including the Integrity Commissioner) are prohibited from recording or divulging information that was acquired during their employment at ACLEI. Given the nature of ACLEI’s work, this often includes personal information.

179.           There are exceptions to these confidentiality requirements. In particular, under subsection 208(6) of the LEIC Act the Integrity Commissioner may disclose information to a person if the Integrity Commissioner is satisfied that it is necessary to do so in order to protect that person’s life or physical safety. This provision only allows the Integrity Commissioner to disclose information to the person whose life or physical safety may be in danger. It does not allow disclosure to a third party who could take preventative action to protect a person in danger.

180.           Schedule 11 will expand this exception to enable the Integrity Commissioner to disclose information to appropriate third parties if the Integrity Commissioner is satisfied that it is necessary to do so in order to protect a person’s life or physical safety. The Integrity Commissioner may « use » this power to, for example, disclose information to authorities about a person’s mental health if that person is in danger of harming themselves or others.

181.           This expansion of the Integrity Commissioner’s power to disclose information is reasonable in the circumstances and proportionate to the aims of the « Bill » . The requirement that the Integrity Commissioner be satisfied that a disclosure is necessary to protect a person’s life or physical safety will ensure that a person’s right to privacy is only impacted when required to achieve the legitimate aim of protecting public health and safety. In these circumstances, the « Bill » creates permissible limitations on the right to privacy.

Right to freedom of movement

182.           Article 12 of the ICCPR accords everyone the right to freedom of movement. The right to freedom of movement contains three main components: the right to movement within a country, the right to leave any country, and the right to enter a country of which you are a citizen. The right may be restricted where this is necessary to protect national security, public order, public health or the morals or the rights and freedoms of others. 

183.           Schedule 11 of the « Bill » engages the right to freedom of movement by expanding the range of people to whom the Integrity Commissioner may delegate his or her power to apply for a passport surrender order.  

184.           The LEIC Act permits the Integrity Commissioner to apply to a Judge of the Federal Court for an order that a person deliver his or her passport to the Integrity Commissioner. The Integrity Commissioner may only apply for such as order if:

·          a summons has been issued requiring a person to attend a hearing, or a person has already attended a hearing, in relation to a corruption investigation or public inquiry

·          there are reasonable grounds for suspecting that the person may be able to give evidence (or further evidence) of relevance to that investigation or inquiry, and

·          there are reasonable grounds for suspecting that the person intends to leave Australia or has in his or her possession a passport issued to him or her.

185.           Under paragraph 219(4)(b) of the LEIC Act, the Integrity Commissioner may only delegate this power to an Assistant Integrity Commissioner. There is currently no Assistant Integrity Commissioner appointed under the LEIC Act, which may cause practical difficulties if an application must be made at short notice and the Integrity Commissioner is unavailable.

186.           Schedule 11 will amend section 219 to allow the Integrity Commissioner to delegate his or her power to apply for a passport surrender order to a staff member of ACLEI who is a Senior Executive Service (SES) or acting SES employee. 

187.           While this expands the range of people who may potentially apply for a passport surrender order, this is a permissible restriction on the right to freedom of movement. In particular, the « amendment » made by Schedule 11 only changes who may apply for a passport surrender order. The conditions upon which the relevant person may apply for a passport surrender order will not change. Further, the decision to issue the order would still be made by a judge after full consideration of the relevant issues. An SES employee of ACLEI (or acting SES employee) would also be responsible to the Integrity Commissioner for any decision to apply for a passport surrender order under this provision, ensuring appropriate oversight of the « use » of this power within ACLEI.

188.           The aim of the power is to preserve the evidence of witnesses by assuring their attendance at a hearing into a corruption issue where there is reasonable suspicion they may leave Australia before providing evidence. Given the critical role such hearings play in ensuring the integrity of Australia’s law enforcement agencies, preserving this evidence is necessary to protect national security and the public order. In these circumstances, the « Bill » creates permissible limitations on the right to freedom of movement.

Conclusion

189.           Schedule 11 of the « Bill » is compatible with the human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights in section 3 of the Human Rights (Parliamentary Scrutiny) Act. To the extent that these measures may limit those rights and freedoms, such limitations are reasonable, necessary and proportionate.

Schedule 12—Australian Crime Commission

Outline of amendments

190.           Schedule 12 will make a range of technical amendments the ACC Act to improve the efficiency and effectiveness of Australian Crime Commission (ACC) special operations and investigations. 

191.           This Schedule will:

·          amend the definition of ‘eligible person’ under section 4 to specifically include a member of the staff of the ACC who is also a constable

·          clarify an examiner’s power to order the return of items produced to him or her during an examination, and

·          update several references to prescribed provisions in Schedule 1 of the ACC Act, which ensure that agencies are not compelled to provide information in contravention of certain secrecy provisions.

Human rights implications

192.           This Schedule is compatible with human rights. It does not engage any of the applicable rights or freedoms.

 

 

Schedule 13—Proceeds of crime—increased penalties

Outline of amendments

193.           Schedule 13 will amend Chapter 3 of the POC Act to increase penalties for failing to comply with a production order or with a notice to a financial institution in proceeds of crime investigations. Under section 202 of the POC Act, a magistrate may issue a production order requiring a person to produce specified documents. Under section 213 of the POC Act, a prescribed officer may issue a notice to a financial institution requesting certain information or documents. Breach of either section 202 or section 213 constitutes an offence and attracts a penalty of six months imprisonment or 30 penalty units or both (under sections 211 and 218 of the POC Act respectively).

194.           The information-gathering powers in Chapter 3 of the POC Act are necessary to enable law enforcement authorities to effectively trace proceeds of crime. Strengthening the penalties imposed under sections 211 and 218 of the POC Act for non-compliance with a production order or a notice to a financial institution will help ensure that where a benefit has been granted to a person in relation to the commission of an offence, information concerning the movement of that benefit can be more efficiently obtained. Greater compliance with orders and notices issued under sections 202 and 213 will reduce the need for relevant law enforcement agencies to utilise more intrusive investigatory tools such as search warrants during investigations of proceeds of crime matters.

195.           The current maximum financial penalty under both section 211 and section 218 of the POC Act of 30 penalty units aligns with the financial penalty of 30 penalty units imposed under s 3ZQS of the Crimes Act for breach of a notice to produce documents relating to a serious offence issued under s 3ZQO of the Crimes Act.

196.           In order to increase the effectiveness of sections 202 and 213 of the POC Act, the penalties will be increased to align with the penalty imposed under s 63 of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) for non-compliance with a notice to produce books about the affairs of a body corporate or a registered scheme under section 30 of the ASIC Act, being a penalty of 100 penalty units or two years imprisonment or both.

197.           It is appropriate to align the penalties imposed under sections 211 and 218 of the POC Act with the penalty imposed under s 63 of the ASIC Act, as these POC Act and ASIC Act penalties are both imposed for breach of obligations concerning documents that are either within the possession or control of a body corporate, that are business documents or that relate to a body corporate. The financial penalty imposed under s 3ZQS of the Crimes Act, on the other hand, applies to documents within the possession or control of a natural person in addition to documents within the possession or control of a legal person, and does not necessarily relate to the affairs of a business or body corporate.

198.           The increased financial penalties indicate the severity of the offence and may act as a deterrent.

Human Rights Implications

199.           The measure to increase penalties for failing to comply with a production order or with a notice to a financial institution issued under sections 202 or 213 of the POC Act engages the right to a fair trial, and in particular the right to be presumed innocent until proved guilty according to law.

200.           Under Article 14(2) of the ICCPR, ‘[E]veryone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law’. Generally, consistency with the presumption of innocence requires the prosecution to prove each element of a criminal offence beyond reasonable doubt.

201.           Subsections 211(3) and 218(2) of the POC Act provide defences to the offences under sections 202 and 213 respectively, where an accused takes all reasonable steps to comply with the production order or notice, but is not able to do so by the specified time and the defendant provides the information or documents as soon as practicable. The defendant bears an evidential burden in relation to these defences. Section 13.3 of the Criminal Code defines ‘evidential burden’ as ‘the burden of adducing or pointing to evidence that suggests a reasonable possibility that a matter exists or does not exist’. 

202.           An offence provision which requires the defendant to carry an evidential burden of proof with regard to the existence of some fact engages and limits the presumption of innocence. This is because a defendant's failure to discharge the burden of proof may permit their conviction despite reasonable doubt as to their guilt.

203.           Evidential burdens are likely to be compatible with the presumption of innocence where they are shown by legislation proponents to be reasonable, necessary and proportionate in pursuit of a legitimate objective.

204.           The provisions at subsections 211(3) and 218(2) of the POC Act are compatible with Article 14(2). It is appropriate for an evidential burden of proof to be placed on the defendant as the facts concerning why the defendant has been unable to comply with the timeframe specified in the relevant production order or notice are peculiarly within the knowledge of the defendant. For this reason, the evidential burdens imposed under subsections 211(3) and 218(2) of the POC Act are reasonable, necessary and proportionate in pursuit of the legitimate objective of sections 211 and 218, being the effective tracing of proceeds of crime.

Conclusion

205.           Schedule 13 of the « Bill » is compatible with the human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights in section 3 of the Human Rights (Parliamentary Scrutiny) Act. To the extent that these measures may limit those rights and freedoms, such limitations are reasonable, necessary and proportionate.

 

 

Schedule 14 - Proceeds of Crime—other matters

Outline of amendments

206.           Schedule 14 amends the POC Act to make a series of technical amendments which:

·          clarify that property only ceases to be the instrument or proceeds of an offence under paragraph 330(4)(e) of the POC Act if the property is successfully forfeited under an interstate forfeiture order

·          clarify that an offence under the POC Act is related to another offence if the offences form part of the same series of acts or omissions, or the physical elements of the two offences are substantially the same acts or omissions

·          ensure that only appropriately qualified persons may be appointed as ‘approved examiners’

·          ensure that a person’s appointment as an ‘approved examiner’ is subject to Ministerial oversight, and

·          clarify that the Official Trustee may represent the Commonwealth in proceedings relating to the performance of the Official Trustee’s functions under the POC Act.

207.           The purpose of these measures is to ensure that the Commonwealth can effectively target and confiscate proceeds of crime. This serves the important purposes of depriving criminals of the proceeds and benefits gained from criminal conduct and preventing the re-investment of those proceeds and benefits in further criminal activities.

Human rights implications

208.           Proceedings under the POC Act are civil proceedings only and are not criminal in nature. Orders imposed via under the POC Act do not create any criminal liability, do not result in any finding of criminal guilt and do not expose people to any criminal sanctions. As a result, the POC Act engages the rights to a fair hearing in Article 14(1) of the ICCPR but does not engage rights in Article 14(2)-(7)  relating to minimum guarantees in criminal proceedings. A brief discussion of aspects of the amendments and the protections in Article 14 of the ICCPR is included below for information.

Forfeiture

209.           Section 330 of the POC Act sets out a series of circumstances in which property becomes, remains or ceases to be the ‘proceeds of an offence’ or the ‘instrument of an offence’ for the purposes of the Act.

210.           Paragraph 330(4)(e) currently provides that property will cease to be the proceeds of an offence or an instrument of an offence if an interstate restraining order or an interstate forfeiture order is satisfied in respect of the property.

211.           A restraining order is a preliminary order that preserves property by restricting a person’s ability to dispose of or otherwise deal with it, pending a final forfeiture order.

212.           Current paragraph 330(4)(e) could be interpreted as providing that  property which is the subject of an interstate restraining order ceases to be the proceeds of an offence or instrument of an offence for the purposes of the POC Act when the interstate restraining order is made, regardless of whether or not the property is ultimately forfeited to a State or Territory.

213.           The « Bill » amends paragraph 330(4)(e) of the POC  to make it clear that property only ceases to be the proceeds of an offence or the instrument of an offence if the property is forfeited, confiscated or otherwise disposed of under a corresponding law of a State or Territory. This « amendment » will ensure that only interstate orders that change the nature of the property, or deprive a person of his or her rights to that property, will affect the status of a Commonwealth proceeds of crime order with respect to that property. This is a technical « amendment » that does not engage, or otherwise affect the rights or freedoms relevant to the Human Rights (Parliamentary Scrutiny) Act.

214.           The « Bill » also includes a provision to ensure that the amended paragraph 330(4)(e) applies whether the forfeiture, confiscation or other disposal occurred before, on or after the commencement of this Part 1 of Schedule 14. The partially retrospective operation of this provision is necessary to ensure the effective administration of this measure, by ensuring that courts can effectively determine whether property has ceased to be the proceeds of an offence or the instrument of an offence for the purposes of the POC Act. In order to make this determination, courts will need to consider any forfeiture, confiscation or disposal orders, regardless of when these orders were made.

215.           While the amendments may apply retrospectively with respect to orders made under corresponding laws, they do not change the nature of those orders or create retrospective criminal liability. As such, the provisions do not breach the prohibition on retrospective criminal conduct contained in Article 15 of the ICCPR.

Definition of related offence

216.           Section 338 of the POC Act contains a definition of the term ‘related offence’ that is used throughout the Act. This definition ensures, for example, that relevant orders made under the Act continue to run where minor amendments are made to the charges which have been laid against a person, or where a person is convicted of an offence other than that with which he or she was charged, for example, pursuant to an alternative verdict provision.

217.           The current definition in section 338 of the POC Act provides that an offence relates to another offence if the physical elements of the two offences are substantially the same acts or omissions.

218.           The « Bill » amends this definition to clarify that an offence is a related offence in relation to another offence if the physical elements of the two offences are substantially the same acts or omission, or if the physical elements of the two offences are acts or omissions in a single series.

219.           The purpose of this « amendment » is to ensure that relevant orders do not cease where a person is charged with another offence arising out of the same series of acts or omissions as the original offence.

220.           The « Bill » makes corresponding amendments to the definition of ‘related offence’ in the  Australian Federal Police Act 1979 (Cth) and the  Crimes (Superannuation Benefits) Act 1989 (Cth) and the definition of ‘related foreign serious offence’ in the Mutual Assistance in Criminal Matters Act 1987 (Cth). The corresponding amendments ensure that the application of orders across Commonwealth criminal law remains consistent.

221.           The amendments will mean that a relevant order may be extended with respect to a related offence in a wider set of circumstances. However, the measure does not affect the court’s discretion under the POC Act to refuse to make such orders in certain circumstances. Nor does it affect the ability of a person to seek to have an order revoked or the general appeal rights in the POC Act and related Acts.

222.           The amendments to the definition of ‘related offence’ in the POC Act, the Australian Federal Police Act and the Crimes (Superannuation Benefits) Act and the definition of ‘related foreign serious offence’ in the Mutual Assistance in Criminal Matters Act (‘the corresponding Acts’) are partially retrospective in operation. The new definitions will apply to orders made on or after commencement of Part 2 of Schedule 14, regardless of whether the physical elements of either or both of the offences concerned occurred before, on or after that commencement.  

223.           These measures do not affect the status of orders made prior to the commencement of Part 2 of Schedule 14. The application of the provisions to conduct that occurred before commencement is necessary to ensure the effective operation of these Acts, by ensuring that the court can appropriately consider the totality of the conduct with respect to which an order is sought, regardless of when the acts or omissions that constitute this conduct took place. As such, a person is not able to escape an order by arguing about the precise point in time at which he or she is alleged to have engaged in the relevant course of conduct.

224.           While the amendments may apply retrospectively with respect to this conduct, they do not create retrospective criminal liability with respect to this conduct. As such, the provisions do not breach the prohibition on retrospective criminal conduct contained in Article 15 of the ICCPR.

Proceeds of crime examiners

225.           Subsection 183(4) of the POC Act provides that an ‘approved examiner’ is a person who holds an office, or is included in a class of people, specified in the regulations [the Proceeds of Crime Regulations 2002]; or is appointed by the Minister under this section’. Part 3 of Schedule 14 will ensure that all persons who are examiners have relevant legal qualifications, have consented to their appointment, and have had their appointment approved by the Minister. Part 3 of Schedule 14 will also introduce provisions into the POC Act that allow the Minister to terminate the appointment of a person as an approved examiner, or for an approved examiner to resign.

226.           The purpose of the proposed measures is to increase the probity and integrity in the process for appointing persons to conduct examinations under the POC Act. POC Act examinations are information-gathering hearings that are necessary to enable law enforcement authorities to effectively trace proceeds of crime. Nothing within these measures affects the circumstances in which the court may order an examination or the way these examinations are conducted. The measures do not alter safeguards in the POC Act protecting the rights of a person being examined (for example, the right to have a lawyer present, and the provision of « use » immunities with respect to the information disclosed). As such, the provisions do not engage the rights in Article 14 of the ICCPR that provide for minimal guarantees in criminal hearings.

The Official Trustee

227.           Chapter 4 of the POC Act sets out the powers and duties of the Official Trustee (a corporation established under the Bankruptcy Act 1966 (Cth), whose powers and functions are exercised by employees of the Australian Financial Security Authority) with respect to the custody, control and disposal of  restrained and forfeited property on the Commonwealth’s behalf. Section 38 of the POC Act provides the Official Trustee with the power to preserve an asset pending confiscation under the POC Act.

228.           The decision in Official Trustee v Gale Pty Ltd ACN  [2009] NSWSC has raised doubts as to whether the Official Trustee has sufficient standing to make applications to the court to ascertain and to deal with the Commonwealth’s interest in restrained or forfeited property in some circumstances. To address these doubts, Part 4 of Schedule 14 makes it clear on the face of the legislation that the Official Trustee may represent the Commonwealth in applications to the court to ascertain and to deal with the Commonwealth’s interest in restrained or forfeited property.

229.           This is a technical « amendment » that does not engage or otherwise affect the rights or freedoms relevant to the Human Rights (Parliamentary Scrutiny) Act.

Conclusion

230.           The amendments in Schedule 14 of the « Bill » are compatible with human rights. To the extent that the « Bill » may limit human rights, those limitations are reasonable, necessary and proportionate.

 

 

Schedule 15—State law enforcement agencies



Outline of amendments

231.           Schedule 15 of the « Bill » amends the Australian Postal Corporation Act 1989 , Crimes Act 1914 , Criminal Code Act 1995 , Mutual Assistance in Criminal Matters Act 1987 , Privacy Act 1988 , Radiocommunications Act 1992 , Surveillance Devices Act 2004 , Taxation Administration Act 1953 and the Telecommunications (Interception and Access) Act 1979 to grant the Independent Commissioner Against Corruption of South Australia (ICAC SA), whose Office became operational in September 2013, the same powers available to its state anti-corruption body counterparts.

232.           ICAC SA is a statutory law enforcement body established to identify corruption in South Australian public administration (for example, state and local government agencies, Members of Parliament, the judiciary and the police) and investigate or refer instances appropriately. In addition to this, ICAC SA is charged with assisting agencies to deal with misconduct, issue guidance, evaluate practices and conduct education programs designed to prevent or minimise misconduct and corruption.

233.           The amendments will:

·          include ICAC SA as an exempted agency under subsections 90J(6) and 90LC(5) of the Australian Postal Corporation 1989 to whom information and documents can be disclosed by current and former Australian Post employees

·          include ICAC SA as a State or Territory law enforcement agency under subsection 3ZQU(7) of the Crimes Act 1914 so that it may receive information or documents produced to or seized by the AFP

·          include ICAC as a law enforcement agency under section 85ZL of the Crimes Act so that it may access information relating to pardoned, quashed and spent convictions of individuals in accordance with section 85ZZLJ of the Crimes Act

·          include ICAC SA as a ‘law enforcement officer’ under section 473.1 of the Criminal Code Act 1995 so that it may avail itself of protections relating to the « use » of telecommunications facilities

·          include ICAC SA in the definition of ‘enforcement body’ under section 6 of the Privacy Act 1988 so that it may receive information in compliance with the Australian Privacy Principles

·          include ICAC SA as an exempted law enforcement body under subsection 27(1) of the Radiocommunications Act 1992 for the « use » of unlicensed radio telecommunications devices, certain standards for these devices and offences relating to radio emissions

·          include ICAC SA as a law enforcement officer under section 6 of the Surveillance Devices Act 2004 so that it may apply for Commonwealth surveillance device warrants, and

·          include ICAC SA as an authorised law enforcement officer under subsection 355-70(3) of the Taxation Administration Act 1953 so that it may receive information under that Act as a law enforcement agency.   

234.           The powers provided to ICAC SA are consistent with the powers available to other state anti-corruption bodies under Commonwealth legislation. Schedule 15 simply extends these same powers to ICAC SA, which became operational in 2013. The powers enable state anti-corruption bodies to perform their functions effectively, including investigations and inquiries into corruption and misconduct, by granting them access to the information and protections necessary for performance of their functions. They also facilitate law enforcement cooperation between State anti-corruption bodies and the Commonwealth.

235.           Schedule 15 also updates references to the Queensland Crime and Misconduct Commission, reflecting its new name (the Crime and Corruption Commission) following amendments to Queensland legislation.

Human rights implications

236.           The amendments in Schedule 15 that amend certain names and terms to achieve consistency with State legislation are technical amendments. As such, these parts of the « Bill » are not seen as engaging, or otherwise affecting, the rights or freedoms relevant to the Human Rights (Parliamentary Scrutiny) Act.

237.           The other amendments in Schedule 15 of the « Bill » will allow ICAC SA to access information from Commonwealth agencies and to apply for surveillance device warrants. These measures engage the right to privacy under Article 17 of the International Covenant on Civil and Political Rights (ICCPR), as they may allow ICAC SA to access personal information (for example, via a surveillance device warrant, which can authorise the « use » of a data surveillance or listening device) for the purposes of investigating a person in accordance with its statutory functions under South Australian legislation.

Article 17 - right to privacy

238.           Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour or reputation, and that everyone has the right to the protection of the law against such interference or attacks. Privacy may be subject to permissible limitations, where the limitations are authorised by law and are not arbitrary.

239.           The term ‘unlawful’ means no interference can take place except in cases authorised by law. What is ‘arbitrary’ will be determined by circumstances of each case. In order for an interference with the right to privacy not to be arbitrary, the interference must be for a reason consistent with the provisions, aims and objectives of the ICCPR and be reasonable in particular circumstances.

240.           The United Nations Human Rights Committee has interpreted ‘reasonableness’ in this context to imply that any interference with privacy must be proportional to the « end » sought and be necessary in the circumstances of any given case.

241.           The measures in Schedule 15 are designed to achieve the legitimate objective of ensuring effective frameworks to identify, investigate and punish corruption and protecting public order through enforcement of the law. A primary function of ICAC SA under South Australian legislation is to identify and investigate corruption in public administration and to prevent and to minimise corruption, misconduct and maladministration in public administration. The measures in Schedule 15 are necessary to grant ICAC SA powers and protections under Commonwealth law to perform its functions under South Australian legislation, in a manner consistent with other State anti-corruption bodies.  ICAC SA will be able to access information under Commonwealth law, which is relevant to its functions of investigating corruption, including:

·          information or documents from current and former employees of Australia Post

·          information or documents that have been produced to or seized by the AFP

·          information relating to pardoned, quashed and spent convictions of individuals

·          information relating to individuals from various Commonwealth agencies, such as Centrelink, Department of Immigration and Border Protection, Australian « Customs » and Border Protection Service and the Australian Taxation Office

·          information relating to individuals from financial institutions, and

·          information obtained through surveillance device warrants issued under section 6 of the Surveillance Devices Act 2004 .

242.           By giving ICAC SA access to information in the exercise of its statutory function, the measures will enable effective investigation of allegations of corruption or misconduct in public office and accordingly assist in enforcement of the law.

243.           ICAC SA will only be able to access a person’s information for the purpose of investigating serious corruption, misconduct or maladministration in public administration consistent with its role under South Australian legislation. ICAC SA’s legislation provides safeguards to ensure that information it obtains is only used in the course of administering its duties. Specifically, section 54 of the Independent Commissioner Against Corruption Act 2012 (SA) provides that any information disclosed to ICAC SA is confidential and can be only be used in the course of its duties. Unauthorised disclosure of information held by ICAC SA carries a maximum penalty of $10,000 or 2 years imprisonment.

244.           The amendments are consistent with the position taken in relation to other State anti-corruption agencies, such as the Independent Commission Against Corruption (New South Wales), Crime and Corruption Commission (Queensland), Integrity Commission (Tasmania) and the Corruption and Crime Commission (Western Australia). 

245.           Accordingly, the amendments are reasonable and proportionate measures to achieve the legitimate objective of countering corruption. 

Conclusion

246.           The ICAC SA and Queensland consequential amendments in Schedule 15 of the « Bill » are compatible with human rights. To the extent that the « Bill » limits the right to privacy in Article 17 of the ICCPR, those limitations are reasonable, necessary and proportionate.

 

 

Schedule 16—Controlled operations

Outline of amendments

247.           Schedule 16 will make minor amendments to Part IAB of the Crimes Act to clarify the operation of the controlled operations provisions contained in that part.

248.           This Schedule will clarify that:

·          only the most senior officers in the Australian Federal Police may authorise certain variations to controlled operations that involve high risks to operatives, and

·          a significant alteration to the character of the controlled operation includes a significant alteration to the criminal offences to which the controlled operation relates.

Human rights implications

249.           Schedule 16 does not engage any applicable human rights or freedoms. 

 

 

Schedule 17—Technical corrections

Outline of amendments

250.           The provisions make minor grammatical amendments to paragraphs 23(1)(b) and 23A(1)(b) of the Classification (Publications, Films and Computer Games) Act 1995 for consistency with drafting practices.

251.           The provisions also correct an error created by Part 3 of Schedule 3 to the Classification (Publications, Films and Computer Games) « Amendment » (Classification Tools and Other Measures) Act 2014 where a new paragraph has been inserted in section 24 of the Classification (Publications, Films and Computer Games) Act 1995 in the wrong subsection.  

Human rights implications

252.           Schedule 17 does not raise any human rights implications.

 



 

NOTES ON CLAUSES

Preliminary

Clause 1 - Short title

253.           This clause provides for the « Bill » to be cited as the Crimes Legislation « Amendment » (Powers, Offences and Other Measures) Act 2015 (the Act).

Clause 2 - Commencement

254.           This clause provides for the commencement of each provision in the Act, as set out in the table.

255.           Item 1 in the table provides that sections 1 to 3, which concern the formal aspects of the Act, as well as anything in the Act not elsewhere covered by the table, will commence on the day on which the Act receives the Royal Assent. 

256.           Item 2 in the table provides that Schedules 1 to 14 will commence on the day after the Act receives the Royal Assent.

257.           Item 3 in the table provides that Schedule 15, Part 1 will commence the day after the Act receives the Royal Assent.

258.           Item 4 in the table provides that Schedule 15, Item 52 will commence the day after the Act receives the Royal Assent, but not at all if Item 7 of Schedule 2 to the Telecommunications (Interception and Access) « Amendment » (Data Retention) Act 2015 (Data Retention Act) commences on or before the day after the Act receives the Royal Assent. Item 4 in the table will ensure there is no clash between amendments being made by the « Bill » and the Data Retention Act.

259.           Item 5 in the table provides that Schedule 15, Item 53 will commence on the later of:

a)       the start of the day after the Act receives the Royal Assent, and

b)       immediately after the commencement of Item 3 of Schedule 2 to the Data Retention Act (however, if Item 3 of Schedule 2 to the Data Retention Act does not commence, Item 53 to Schedule 15 of the Act will not commence at all). Item 5 in the table will ensure there is no clash between amendments being made by the « Bill » and the Data Retention Act.

260.           Item 6 in the table provides that Schedule 16 will commence on the twenty-eighth day after the Act receives the Royal Assent.

Clause 3 - Schedules

Schedule 1—Serious drug offences

261.           Schedule 1 makes amendments to the Criminal Code Act 1995 (Criminal Code) to improve the operation and effectiveness of the serious drug and precursor offences in Part 9.1 by making recklessness the fault element for attempted offences, and removing the intent to manufacture element from offences relating to the importation of border controlled precursors.

262.           Schedule 1 remedies a number of difficulties faced in prosecuting serious drug and precursor offences, and ensures that these provisions keep pace with criminal and law enforcement methodologies used in contemporary drug trafficking. 

263.           These amendments ensure that where a person attempts to commit an offence against Part 9.1 of the Criminal Code, it is sufficient for the prosecution to prove that he or she was reckless as to whether the substance involved was a controlled or border controlled substance. This change is necessary to ensure that serious drug and precursor offences address the impracticality of proving ‘actual knowledge’ in the absence of a direct admission from the defendant, particularly where a controlled operation is used as part of the investigation. 

264.           Schedule 1 supports law enforcement responses to the growing problem of crystal methamphetamine (or ‘ice’) by making the enforcement of precursor offences simpler and more effective. In the context of tightening domestic regulation, the importation of border controlled precursors plays an increasingly central role in the production of illicit drugs within Australia, and particularly amphetamine-type substances (ATS) (such as methamphetamine and ice).

265.           This is evident in the increasing number of seizures of precursor chemicals at the border. In 2012-13, the number of ATS precursor detections increased by 11.3 per cent, from 937 in « 2011 » -12 to 1,043 in 2012-13. [7] The CDPP also prosecutes an increasing number of precursor matters, particularly involving the importation of pseudoephedrine, a chemical frequently used in the manufacture of methamphetamine and ice. In 2013-14, the number of charges dealt with by the CDPP in relation to importing or exporting border controlled precursors increased by 50%, from 38 in 2012-13 to 57 in 2013-14. [8]

266.           Schedule 1 removes the element that requires a person who imported or exported a border controlled precursor to have done so either with the intent to « use » it to manufacture a controlled drug, or with the belief that another person intends to « use » the substance to manufacture a controlled drug. These amendments seek to address prosecutorial difficulties in proving the intention or belief of individuals who are part of a larger criminal operation, but deliberately operate with limited knowledge about how their actions fit into the broader criminal enterprise. 

267.           Schedule 1 will make the enforcement of these offences more workable and fit for purpose, and will improve their value as a deterrent to persons who seek to profit from the importation of chemicals that are used to make illicit drugs. 

 



 

Criminal Code Act 1995

Item 1 - At the « end » of section 300.5

268.           This item will insert a note to clarify that section 300.5, which provides that the prosecution does not need to prove that a person knew or was reckless as to the particular identity of a controlled drug, plant or precursor or border controlled drug, plant or precursor, applies to prosecutions for an offence against Part 9.1 of the Criminal Code where an individual is charged with an extension of criminal responsibility under Part 2.4. 

269.           The purpose of this note is to clarify the current operation of section 300.5 of the Criminal Code, as affirmed by the decision in R v Weng [2013] VSCA 221. In R v Weng , the Supreme Court of Victoria Court of Appeal held that section 300.5 did apply in relation to an attempt offence, and that it was not necessary for the prosecution to prove that the accused attempted to possess the particular border controlled drug in question.  

270.           This item does not change the operation of the section or affect the application of Part 2.4 in respect of other Commonwealth offences for which there is no equivalent clarifying note. 

 

Item 2 - At the « end » of Division 300

271.           This item will insert new section 300.6, which will provide that where a person attempts to commit an offence against Part 9.1 of the Criminal Code, it is sufficient for the prosecution to prove that he or she was reckless as to whether the substance involved was a controlled or border controlled substance.  

272.           Where a person commits a primary offence against Part 9.1 of the Criminal Code, the person must have been reckless as to whether the substance involved was a controlled or border controlled drug. Under section 5.4 of the Criminal Code, a person is reckless if he or she is aware of a substantial risk with respect to a particular circumstance, and having regard to the circumstances known to him or her, it is unjustifiable to take the risk. 

273.           Where a person is charged with an attempted offence against Part 9.1, by virtue of section 11.1 of the Criminal Code, intention and knowledge are the relevant fault elements. That is, under sections 5.2 and 5.3, the person must either have been aware that the substance involved is a controlled or border controlled substance, or believed it was such a substance.

274.           The offences in Part 9.1 are rarely committed by a single actor, particularly where they involve the importation of illicit substances. The illicit drug and precursor trade often involves multiple individuals participating in the venture at in different ways and with different degrees of knowledge about their place in the criminal conduct.

275.           To deal with this, both the primary offences in Part 9.1 and the extensions of criminal liability in Part 2.4 are used in order to prosecute all those involved in the criminal venture. However, it has very difficult to satisfy the requirement in prosecutions for attempted offences against Part 9.1 that a person had actual knowledge that his or her actions involved a controlled or border controlled substance, unless the person has made a direct admission.

276.           Applying recklessness as the fault element for attempted drug and precursor offences is necessary to ensure that the offences in Part 9.1 keep pace with criminal methodologies.

277.           It is not appropriate to continue with different fault elements for primary and attempted offences against Part 9.1. The distinction could allow individuals who are involved in the trafficking and importation of illicit drugs and their precursors to escape liability where they deliberately have limited information about how their actions fit into a broader criminal operation. It is therefore appropriate that a person who attempts to commit an offence against Part 9.1 should be criminally liable where he or she is aware that there is a substantial risk that his or her conduct will involve a controlled or border controlled substance and that taking this risk is unjustifiable in the circumstances.

278.           This provision is also necessary to ensure that the « use » of specific law enforcement methodologies does not unduly affect certain elements of serious drug offences from being satisfied. For example, the « use » of a controlled operation in an investigation may make it impossible to charge the person with a primary offence against Part 9.1 on the basis that the person cannot technically complete that offence. The person must therefore be charged with an attempt to commit an offence against Part 9.1. Making recklessness the fault element for attempts to commit offences against Part 9.1 will ensure that prosecutions for serious drug and precursor offences are unaffected by the « use » of a controlled operation or other legitimate law enforcement and investigative methodologies.

 

Item 3 - Paragraphs 307.11(1)(b) and 307.12(1)(b)

279.           This item will remove from the offences under sections 307.11 (importing and exporting marketable quantities of border controlled precursors) and 307.12 (importing and exporting commercial quantities of border controlled precursors) the element that requires a person who imported or exported a border controlled precursor to have done so either with the intent to « use » it to manufacture a controlled drug, or with the belief that another person intends to « use » the substance to manufacture a controlled drug (intent to manufacture element).  

280.           This change is necessary to ensure that the offences under sections 307.11 and 307.12 of the Criminal Code adequately address the nature of contemporary drug trafficking.

281.           Under current Subdivision D of Division 307, the prosecution may rely on the presumption in section 307.14 to assist in proving the intention to manufacture element of offences against section 307.12. Section 307.14 of the Criminal Code states that a person is taken to have the relevant intention or belief about the « use » of the drug to manufacture a controlled drug if he or she has not complied with a law of the Commonwealth that required the import or export of the substance to be authorised. The presumption does not apply if the person proves on the balance of probabilities that he or she does not have the relevant intention or belief. The presumption also does not apply to offences against section 307.11.

282.           This presumption was introduced as part of the Law and Justice Legislation « Amendment » (Serious Drugs and Other Measures) Act 2005 to assist the prosecution in proving border controlled precursor offences, and in recognition of the fact that many precursor chemicals have a legitimate « use » .

283.           However, the precursor offences in sections 307.11 and 307.12 and presumption in section 307.14 have not functioned as effectively as it was intended. Even with the presumption, the CDPP has faced formidable difficulties in prosecuting offenders for importing precursor chemicals. These difficulties are particularly pronounced where individuals are part of a larger operation and who deliberately operate with limited knowledge about how their actions fit into the broader criminal enterprise. In these circumstances, it is very difficult to prove the intention or belief of the persons involved in undertaking discrete parts of the importation, even where each person knew or believed they were involved in some form of illicit activity. 

284.           These difficulties are compounded where the prosecution involves an extension of criminal liability under Part 2.4 of the Criminal Code because the prosecution cannot rely on the presumption in section 307.14. The case of R v Campbell & Baka (No 2) [2008] NSWDC 168 illustrates this issue. In that case, the NSW District Court held that the CDPP could not rely on the presumption in section 307.14 in prosecuting a person for aiding and abetting an offence against section 307.11, because it was not a ‘special liability provision’ within the meaning of subsection 11.2(6).

285.           Removing the intent to manufacture element from the offences in sections 307.11 and 307.12 will make the offences more workable and fit for purpose. The changes will make the enforcement of the offences simpler and more effective and will improve their value as a deterrent to persons who seek to profit from the importation of chemicals that are used to make illicit drugs. They will remove the difficulties that the CDPP has in applying these offences to persons whose knowledge of the broader criminal operation has been deliberately limited in an attempt to escape liability.

286.           Further, removing the element will not affect the importation of precursor chemicals for legitimate purposes. A person importing a border controlled precursor will still be able to reply on the general defence of lawful authority in section 10.5 of the Criminal Code.

 

Item 4 - Subsection 307.12(4)

287.           This item will repeal subsection 307.12(4), which provides a complete defence to the offence under section 307.12(1) of the Criminal Code if defendant can prove, on the balance of probabilities, that he or she did not have a commercial purpose in importing a border controlled precursor. This item is consequent on Item 3, which will repeal the intent to manufacture element from the offence of importing and exporting marketable quantities of border controlled precursors.     

 

Item 5 - Paragraph 307.13(1)(b)

288.           This item is parallel to the amendments in Item 3, and will remove the element from the offence under sections 307.13 (importing and exporting border controlled precursors) that requires a person who imported or exported a border controlled precursor to have done so either with the intent to « use » it to manufacture a controlled drug, or with the belief that another person intends to « use » the substance to manufacture a controlled drug (intent to manufacture element). This change is necessary to ensure that the offences under sections 307.11 and 307.12 of the Criminal Code adequately address the nature of contemporary drug trafficking.

289.           Under current Subdivision D of Division 307, the prosecution may rely on the presumption in section 307.14 to assist in proving the intention to manufacture element of offences against section 307.13. Section 307.14 of the Criminal Code states that a person is taken to have the relevant intention or belief about the « use » of the drug to manufacture a controlled drug if he or she has not complied with a law of the Commonwealth that required the import or export of the substance to be authorised. The presumption does not apply if the person proves on the balance of probabilities that he or she does not have the relevant intention or belief. 

290.           This presumption was introduced as part of the Law and Justice Legislation « Amendment » (Serious Drugs and Other Measures) Act 2005 to assist the prosecution in proving border controlled precursor offences, and in recognition of the fact that many precursor chemicals have a legitimate « use » .

291.           However, the precursor offences in section 307.13 and presumption in section 307.14 have not functioned as effectively as it was intended. Even with the presumption, the CDPP has faced formidable difficulties in prosecuting offenders for importing precursor chemicals. These difficulties are particularly pronounced where individuals are part of a larger operation and who deliberately operate with limited knowledge about how their actions fit into the broader criminal enterprise. In these circumstances, it is very difficult to prove the intention or belief of the persons involved in undertaking discrete parts of the importation, even where each person knew or believed they were involved in some form of illicit activity.

292.           These difficulties are compounded where the prosecution involves an extension of criminal liability under Part 2.4 of the Criminal Code because the prosecution cannot rely on the presumption in section 307.14. The case of R v Campbell & Baka (No 2) [2008] NSWDC 168 illustrates this issue. In that case, the NSW District Court held that the CDPP could not rely on the presumption in section 307.14 in prosecuting a person for aiding and abetting an offence against section 307.11, because it was not a ‘special liability provision’ within the meaning of subsection 11.2(6).

293.           Removing the intent to manufacture element from the offence in sections 307.13 will make the offences more workable and fit for purpose. The changes will make the enforcement of the offences simpler and more effective and will improve their value as a deterrent to persons who seek to profit from the importation of chemicals that are used to make illicit drugs. They will remove the difficulties that the CDPP has in applying these offences to persons whose knowledge of the broader criminal operation has been deliberately limited in an attempt to escape liability.

294.           Further, removing the element will not affect the importation of precursor chemicals for legitimate purposes. A person importing a border controlled precursor will still be able to reply on the general defence of lawful authority in section 10.5 of the Criminal Code.

 

Item 6 - Subsection 307.13(3)

295.           This item will repeal subsection 307.13(3), which provides a complete defence to the offence under section 307.13(1) of the Criminal Code if the defendant can prove, on the balance of probabilities, that he or she did not have a commercial purpose in importing a border controlled precursor. This item is consequent on Item 5, which will repeal the intent to manufacture element from the offence of importing and exporting marketable quantities of border controlled precursors.     

 

Item 7 - Section 307.14

296.           This item will repeal section 307.14, which contains a presumption that a person who imports or exports a border controlled precursor without authorisation is presumed to have imported or exported the substance with the intention of using it to manufacture a controlled drug or with the belief that another person intends on doing so. This section is to be repealed consequent upon Items 3 to 6, which will repeal the elements of the offences to which this presumption relates.

 

Item 8 - Application of amendments

297.           Items 2 to 7 will apply to offences constituted by conduct engaged in on or after commencement of this Schedule.  

298.           Item 1 clarifies the operation of the existing law, and no application provision is required.   

 

 

Schedule 2—Clarifying the offence of bribing a foreign public official

299.           Schedule 2 will amend the Criminal Code Act 1995 (Cth) to clarify the operation of the offence of bribing a foreign public official in Division 70.2. The « amendment » clarifies that proof of an intention to influence a particular foreign official is not required to establish the offence.

300.           The offence in Division 70.2 was introduced into the Criminal Code in 1999 to implement Australia’s obligation to criminalise the bribing of foreign public officials under the OECD  Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (the Convention). Australia’s implementation of the Convention was reviewed in 2012 by the OECD Working Group on Bribery. The examiners for this review noted that Division 70.2 could be construed in a way that would require the prosecution to prove the intention to bribe a particular foreign official. They recommended that Australia clarify that this is not a requirement of the foreign bribery offence.

301.           It is not intended that the foreign bribery offence require proof of an intention to bribe a specific foreign public official. Such a requirement would significantly reduce its effectiveness. As foreign bribery is often committed through intermediaries, a briber will often have not met or know the identity of the bribed official.

302.           Clarifying the offence will ensure that a defendant in a foreign bribery matter is not able to argue that prosecution needs to establish an intention to bribe a particular foreign official.

303.           This « amendment » is compatible with human rights and freedoms. It will help ensure clarity in the operation of a serious criminal offence.

Criminal Code Act 1995

Item 1 - Subsection 70.2(1A)

304.           Item 1 repeals subsection 70.2(1A) and substitutes a new subsection which specifies that, for purposes of the offence of bribing a foreign public official in subsection 70.2(1), it is not necessary to prove that the person undertook the conduct with the intention of influencing a particular foreign public official. As noted above, this will clarify that the offence in subsection 70.2(1) operates as intended.

 

Schedule 3—Outrages upon personal dignity

305.           Schedule 3 will amend section 268.74 of the Criminal Code to clarify the scope and application of the war crime offence of outrages upon personal dignity in a non-international armed conflict (NIAC).

306.           Existing section 268.74 of the Criminal Code sets out two separate offences of outrages upon personal dignity in a NIAC. Existing subsection 268.74(1) makes it an offence to severely humiliate, degrade or otherwise violate the dignity of one or more persons where that conduct occurs in the context of, and is associated with, a NIAC and the person or persons are not taking an active part in hostilities. Existing subsection 268.74(2) makes it an offence to severely humiliate, degrade or otherwise violate the dignity of the body or bodies of one or more dead persons where that conduct occurs in the context of, and is associated with, a NIAC and the dead person or persons were not taking an active part in hostilities prior to death.

307.           The existing offence of outrages upon personal dignity in subsection 268.74(2) does not cover outrages upon personal dignity committed against a deceased person or persons (such as beheadings) who were taking an active part in hostilities in a NIAC prior to death. There is no legal or policy reason to limit the application of this offence only to dead persons who were not active in hostilities prior to death. Extending the existing offence to cover all dead persons is also consistent with Australia’s international obligations under the Additional Protocol II to the Geneva Conventions 1949

308.           The structure of the existing offence of outrages upon personal dignity in section 268.74 also creates a distinction between alive and dead persons. As a result, it is arguable that the prosecution may be required to prove whether a victim or victims were alive or dead at the time they were subject to an offence. In the context of non-international armed conflict zones, the prosecution may be unable to determine if the victim or victims were dead or alive at the time of the offence, including in circumstances where the victim or victims were badly wounded or died immediately before, during, or after the offence was committed.

309.           The distinction between alive and dead persons in existing section 268.74 is irrelevant. This is because the gravamen of the offence is not whether the victim or victims were alive or dead at the time of the offence but that the victim or victims were not taking an active part in hostilities at the time of the offence. The distinction between alive and dead persons is also inconsistent with the structure of the war crime of outrages upon personal dignity contained in the Elements of Crimes of Article 8(2)(c)(ii) of the Rome Statute to the International Criminal Court (Rome Statute).

310.           Schedule 3 will amend section 268.74 to create a single offence of outrages upon personal dignity in a NIAC. This offence will apply to outrages upon personal dignity committed against all dead persons in a NIAC, regardless of whether the victim or victims were active in hostilities prior to death. The offence will also apply to outrages upon personal dignity committed against a person or persons who are not taking an active part in hostilities in a NIAC. The amendments will also address possible impediments to a successful prosecution by simplifying the structure of the offence. This will clarify that the prosecution need not prove whether a victim or victims were alive or dead at the time they were subject to the offence. Under new subsection 268.74(1) the prosecution will only need to prove that the victim or victims were not taking an active part in hostilities at the time of the offence.

311.           Under section 268.117 of the Criminal Code, the war crimes offence of outrages upon personal dignity has universal jurisdiction (extended geographical jurisdiction - category D) and therefore applies to conduct within or outside of Australia, and whether or not the offender was an Australian citizen, resident or body corporate.

Criminal Code Act 1995

Item 1 - Paragraph 268.74(1)(a)

312.           This item inserts the text ‘(whether or not the person or persons are alive)’ following ‘persons’ in paragraph 268.74(1)(a).

313.           Existing paragraph 268.74(1)(a) provides that the first element of the offence of outrages upon personal dignity under existing subsection 268.74(1) is that the perpetrator severely humiliates, degrades or otherwise violates the dignity of one of more persons. New paragraph 268.74(1)(a) clarifies that the term ‘one or more persons’ includes both alive and dead persons.

314.           As a result of this item, the application of the war crime offence of outrages upon personal dignity in subsection 268.74(1) is expanded to include dead persons, irrespective of whether they were taking an active part in hostilities prior to death. This « amendment » also clarifies that the prosecution need not prove whether a victim or victims were alive or dead at the time they were subject to the offence.

Item 2 - Subsections 268.74(2) and (3)

315.           This item repeals existing subsections 268.74(2) and 268.74(3) and substitutes a new subsection 268.74(2).

316.           Existing subsection 268.74(2) makes it an offence to severely humiliate, degrade or otherwise violate the dignity of the body or bodies of one or more dead persons where that conduct occurs in the context of, and is associated with, a NIAC and the victim or victims were not taking an active part in hostilities prior to death. This item repeals existing subsection 268.74(2) because, as a result of Item 1, subsection 268.74(1) criminalises outrages upon personal dignity whether or not the victim or victims are alive.

317.           Existing subsection 268.74(3) defines references to a person or person not taking an active part in hostilities to include a reference to a person or persons who are hors de combat (out of combat) or civilians, medical or religious personnel not taking an active part in hostilities. Existing subsection 268.74(3) also defines references to a dead person or persons who prior to death were not taking an active part in hostilities to include dead persons or persons who were hors de combat or were civilians, medical or religious personnel not taking an active part in hostilities.

318.           This item repeals existing subsection 268.74(3) because new subsection 268.74(1) removes the requirement for dead persons to not be taking an active part in hostilities prior to death. As a result, the definition in existing subsection 268.74(3) of a dead person or persons who were not taking an active part in hostilities prior to death is no longer required. 

319.           New subsection 268.74(2) substitutes a definitional clause for existing subsections 268.74(2) and 268.74(3). To avoid doubt, this definitional clause clarifies that a person or persons will be considered not to be taking an active part in hostilities if they are hors de combat, civilians, medical or religious personnel who are not taking an active part in hostilities, or if they are dead.

320.           The Dictionary in the Criminal Code defines the term hors de combat as including persons in the power of an adverse party who clearly express an intention to surrender or who are incapable of defending themselves because they have been rendered unconscious or are otherwise incapacitated by wounds or sickness. The Dictionary in the Criminal Code also provides that a person can only be considered to be hors de combat if they abstain from any hostile act and do not attempt to escape.

 

 

Schedule 4 Forced marriage

321.           Schedule 4 will amend the definition of forced marriage at existing section 270.7A of the Criminal Code.

322.           Under the existing definition, a marriage is a forced marriage if, because of the « use » of coercion, threat or deception, one party to the marriage (the victim) entered into the marriage without freely and fully consenting. Under section 270.1A, ‘coercion’ is defined to include force, duress, detention, psychological oppression, abuse of power, and taking advantage of a person’s vulnerability. Under subsection 270.7A(2), the forced marriage offences can apply to a marriage that is void, invalid or not recognised by law for any reason. Section 270.7B sets out the forced marriage offences of causing a person to enter into a forced marriage, or being party to (but not a victim of) a forced marriage. Under the general application attempt provisions set out at section 11.1 of the Criminal Code, the conduct of a person who attempts to commit an offence of forced marriage can be captured and is punishable as if the offence attempted had been committed. Section 270.1A provides that forced marriage is a slavery-like offence, bringing it within the suite of offences intended to implement Australia’s obligations under the United Nations Protocol to Prevent Suppress and Punish Trafficking in Persons, Especially Women and Children (Trafficking Protocol).

323.             Schedule 4 will amend existing section 270.7A to expand the definition of forced marriage to include circumstances in which a victim does not freely and fully consent because he or she is incapable of understanding the nature and effect of a marriage ceremony. The amendments will ensure that where a person cannot consent because he or she does not understand the nature and effect of a marriage ceremony, including for reasons such as age or mental capacity, there will not be a requirement for the prosecution to show that his or her lack of consent resulted from the « use » of coercion, threat or deception.

324.           The amendments will create a presumption that a person under the age of 16 is not capable of understanding the nature and effect of a marriage ceremony. The defendant would bear the burden of proving the contrary on the balance of probabilities. 

325.           The recognition of age-related incapacity to provide free and full consent will bring Australia’s response to forced marriage further into line with the Trafficking Protocol. Article 3(c) of the Trafficking Protocol provides that an element of ‘means’, such as threat or « use » of force or other forms of coercion, is not required to establish the crime of trafficking in persons where the victim is a child. Consistent with Article 3(c), the purported consent of a child is irrelevant to the international definition of trafficking in persons. 

326.           Schedule 4 will also increase the penalties for the forced marriage offences set out in section 270.7B of the Criminal Code.

327.           The forced marriage offences currently carry a maximum penalty of four years imprisonment for a base offence and a maximum of seven years imprisonment for an aggravated offence. Under section 270.8 a forced marriage offence may be aggravated if the victim is under the age of 18; if the offender subjects the victim to cruel, inhuman or degrading treatment; or if the offender engages in conduct reckless to the danger of death or serious harm to the victim or another person.

328.           Forced marriage is one of a suite of slavery-like offences in Divisions 270 and 271 of the Criminal Code which are criminalised on a continuum of seriousness. Along with debt bondage and harbouring a victim, forced marriage is conceptualised as a facilitation offence, as opposed to one which relates to the ongoing exploitation of a person. Other offences capture the ongoing serious exploitation within a marriage and can be used in conjunction with the forced marriage offences.

329.           The penalties for the forced marriage offences will be increased to seven years and nine years imprisonment, respectively to reflect the seriousness of forced marriage as a slavery-like practice, form of gender-based violence and an abuse of human rights. The « amendment » will align the forced marriage offences with the most serious slavery-related facilitation offence of deceptive recruiting for labour or services.

Criminal Code Act 1995

Item 1 - Subsection 270.7A(1)

330.           This item repeals existing subsection 270.7A(1) and substitutes a new subsection 270.7A(1).

331.           Existing subsection 270.7A(1) provides that a marriage is a forced marriage if, because of the « use » of coercion, threat or deception, one party to the marriage (the victim) entered into the marriage without freely and fully consenting. New subsection 270.7A(1) retains the element of ‘because of the « use » of coercion, threat or deception’ as new paragraph (a), and inserts a new paragraph (b) ‘because the party was incapable of understanding the nature and effect of a marriage ceremony’.  

332.           As a result of this item, a marriage can be a forced marriage if the victim entered into the marriage without freely and fully consenting either because of coercion, threat or deception, or because the victim was incapable of understanding the nature and effect of a marriage ceremony. This « amendment » is intended to ensure that where a victim does not have the capacity to consent because he or she does not understand the nature and effect of a marriage ceremony, including for reasons such as age or mental capacity, there will not be a requirement for the prosecution to show that his or her lack of consent resulted from the « use » of coercion, threat or deception.

 

Item 2 - Subsection 270.7A(3)

333.           This item omits ‘Subsection (1)’ from existing subsection 270.7A(3) and substitutes ‘Paragraph (1)(a)’.

334.           This item is a consequential « amendment » made necessary by Item 1. Item 1 repeals subsection 270.7A(1) and substitutes a new subsection 270.7A(1) with paragraphs (a) and (b). It is therefore necessary to replace the cross-reference to existing subsection (1) with new paragraph (1)(a). This item has no substantive effect.

Item 3 - At the « end » of section 270.7A

335.           This item inserts a new subsection 270.7A(4) at the « end » of section 270.7A of the Criminal Code.

336.           New subsection 270.7A(4) provides that, for the purpose of proving an offence under Division 270 or 271 of the Criminal Code, a person under the age of 16 is presumed, unless the contrary is proved, to be incapable of understanding the nature and effect of a marriage ceremony. The note to new subsection 270.7A(4) provides a defendant bears a legal burden in relation to proving the contrary in accordance with section 13.4 of the Criminal Code.

337.           The imposition of a legal burden rather than an evidential burden is appropriate in this context. If an evidential burden applied, consistent with subsection 13.3(6) of the Criminal Code the defence would need only adduce or point to evidence that suggested the child was capable of understanding the nature and effect of a marriage ceremony. This low threshold might easily be discharged if the defendant adduced evidence that, for example, the child had been sexually active in the past or was otherwise mature for his or her age.

338.           Under Part II of the Marriage Act 1961 (Cth), the marriageable age, or age at which a person can consent to marriage, is 18 years old. While there is an exception for a person between 16 and 18 years of age to marry a person over the age of 18, this relies on required consent (usually parental) and that an Australian court order is in force from a judge or magistrate authorising a marriage. Depending on the jurisdiction, the age at which a person is considered capable of consenting to sexual intercourse is generally 16 or 17 years old.

339.           In this context, it is reasonable and proportionate to place a legal burden on the defendant to prove, on the balance of probabilities, that a person under the age of 16 was capable of understanding the nature and effect of the marriage ceremony.

340.           The application of a legal burden is consistent with similar offences in the Criminal Code, including slavery and child sex offences outside Australia.

Item 4 - Subsection 270.7B(1) (paragraph (a) of the penalty)

341.           This item omits “7 years” from subsection 270.7B(1)(paragraph (a) of the penalty) and substitutes “9 years”.

342.           As a result of this item, the existing penalty of seven years imprisonment for an aggravated forced marriage offence will be replaced with an increased penalty of nine years imprisonment.

343.           This « amendment » is intended to ensure the forced marriage offences align with the most serious slavery-related facilitation offence. The increase reflects the seriousness of forced marriage as a slavery-like practice, a form of gender-based violence and an abuse of fundamental human rights.

Item 5 - Subsection 270.7B(1) (paragraph (b) of the penalty)

344.           This item omits “4 years” from subsection 270.7B(1)(paragraph (b) of the penalty) and substitutes “7 years”.

345.           As a result of this item, the existing penalty of four years imprisonment for an aggravated forced marriage offence will be replaced with an increased penalty of seven years imprisonment.

346.           This « amendment » is intended to ensure the forced marriage offences align with the most serious slavery-related facilitation offence. The increase reflects the seriousness of forced marriage as a slavery-like practice, a form of gender-based violence and an abuse of fundamental human rights.

Item 6 - Subsection 270.7B(2) (paragraph (a) of the penalty)

347.           This item omits “7 years” from subsection 270.7B(2)(paragraph (a) of the penalty) and substitutes “9 years”.

348.           As a result of this item, the existing penalty of seven years imprisonment for an aggravated forced marriage offence will be replaced with an increased penalty of nine years imprisonment.

349.           This « amendment » is intended to ensure the forced marriage offences align with the most serious slavery-related facilitation offence. The increase reflects the seriousness of forced marriage as a slavery-like practice, a form of gender-based violence and an abuse of fundamental human rights.

Item 7 - Subsection 270.7B(2) (paragraph (b) of the penalty)

350.           This item omits “4 years” from subsection 270.7B(2)(paragraph (b) of the penalty) and substitutes “7 years”.

351.           As a result of this item, the existing penalty of four years imprisonment for an aggravated forced marriage offence will be replaced with an increased penalty of seven years imprisonment.

352.           This « amendment » is intended to ensure the forced marriage offences align with the most serious slavery-related facilitation offence. The increase reflects the seriousness of forced marriage as a slavery-like practice, a form of gender-based violence and an abuse of fundamental human rights.

Item 8 - Dictionary in the Criminal Code (definition of forced marriage )

353.           This item omits ‘same meaning as in Division 270 (see section 270.7A)’ from the existing definition of forced marriage in the Dictionary in the Criminal Code, and substitutes ‘has the same meaning given by section 270.7A’. 

354.           This item is a stylistic drafting « amendment » and has no substantive effect.

Schedule 5—Knowingly concerned

355.           Schedule 5 will amend the Criminal Code to insert ‘knowingly concerned’ as an additional form of secondary criminal liability into section 11.2. This will mean that, where persons are knowingly and intentionally involved in the commission of an offence, they will be liable for the offence.

356.           This measure will supplement existing forms of secondary liability, such as the aiding, abetting, counselling or procuring of an offence. This additional form of secondary criminal liability will enable the Commonwealth Director of Public Prosecutions (CDPP) to more effectively prosecute federal criminal offences, including offences regarding illegal substances (such as importation and trade in drugs), fraud, corruption and insider trading, which traditionally rely on the involvement of secondary persons. This form of secondary criminal liability previously existed in the Crimes Act 1914 (Crimes Act). The CDPP has advised that the absence of this prosecuting option is a significant impediment, and has rendered certain prosecutions more complex and less certain. This form of secondary criminal liability previously existed in the Crimes Act 1914 and will ensure that criminal liability can be effectively established for an accused’s knowing involvement in the commission of an offence.

357.           The concept of ‘knowingly concerned’ was previously included in then-section 5(1) of the Crimes Act. The Gibbs Committee, in the 1990 report Principles of Criminal Responsibility and Other Matters , found that the knowingly concerned concept in the Crimes Act had the merit of ensuring that circumstances amounting to knowing involvement in an offence, but not amounting to participation as a principal or as an aider, abetter, counsellor or procurer, would nevertheless fall within the reach of that provision. [9]

358.           This concept was not included in the drafting of the Criminal Code. Members of the Model Criminal Code Officers Committee (MCCOC) did not consider the concept necessary, finding that it added little in substance to the other forms of derivative liability, and was too open ended and uncertain than was appropriate for a general provision in a model code. [10]  

359.           However, the absence of a ‘knowingly concerned’ form of criminal liability in Commonwealth legislation has since attracted judicial comment. In particular, Justice Weinberg of the New South Wales Court of Criminal Appeal stated in Campbell v R [2008] NSWCCA 214 ( Campbell v R ) that:

‘the decision to omit the phrase ‘knowingly concerned’ from the various forms of complicity available under federal criminal law…appears to me to have left a lacuna in the law that was certainly never intended.’ [11]

360.           The Australian Capital Territory amended the Criminal Code 2002 (ACT) in 2010 to insert the criminal liability concept of being ‘knowingly concerned’ into section 45 of that legislation. That section concerns complicity and common purpose, and is similar to section 11.2 of the Commonwealth Criminal Code. The Explanatory Memorandum for the Crimes (Serious Organised Crime) « Amendment » « Bill » 2010 (ACT), which inserted section 45 into the ACT legislation, cited Justice Weinberg’s comments in Campbell v R and recognised that:

A convenience in being able to charge an offender as being ‘knowingly concerned’ is that it avoids any possible questions about whether an offender was a principal in the second degree or an accessory after the fact. [12]

361.           Campbell v R is cited by the CDPP as an example of a drug importation case that would have benefited from a knowingly concerned provision, given the temporal limits on existing forms of secondary criminal liability (these are discussed further below).

362.           The CDPP has advised that prosecutions of persons involved in the commission of a criminal offence, whose involvement often extends beyond the offence itself, are frequently complex and uncertain. To provide the CDPP with recourse to a clear prosecuting option in these situations, Schedule 5 of this « Bill » inserts the knowingly concerned concept into section 11.2 of the Criminal Code to enable those who are knowingly involved in an offence to be more readily prosecuted for it, where they might not otherwise be easily captured (or captured at all) by the existing forms of secondary criminal liability.  

363.           The following example sheds light on the types of circumstances in which someone might be considered to have been knowingly concerned in an offence:

The accused is involved in discussions at several meetings of a particular criminal group during which arrangements are made to take delivery of a prohibited drug. There is insufficient evidence to establish that the accused is the person responsible for taking delivery of the drug. However, there is background evidence of the accused’s association with the criminal group in relation to the commission of the offence.

364.           In this scenario, the option of being knowingly concerned in the commission of an offence would capture the conduct of the accused, whereas the same conduct may not be caught by the existing secondary liability options of aid, abet, counsel or procure. It may not be possible, or it may be very difficult, to identify or prove any specific act that could be particularised as aiding, abetting, counselling or procuring the commission of an offence by another person, given the only available evidence is that the accused was simply present at discussions, rather than taking a clearly defined role in the receipt of the prohibited drug. However, it would be possible to prove that the accused was knowingly concerned in the commission of the offence if their presence at the meeting meant they were an intentional participant, based on their knowledge of the essential elements or facts of the offence.

365.           Allowing the CDPP to bring charges for being knowingly concerned in the commission of an offence allows for the accused’s involvement to be accurately reflected in the charge against them, rather than relying on other prosecution options (such as conspiracy charges).

366.           The concept of knowingly concerned also addresses potential temporal limits on the other forms of liability already available in section 11.2 of the Criminal Code, which are often perceived as being limited in coverage to finite activities of assistance to the principal offender prior to and during the commission of the offence. Knowingly concerned liability can, by comparison, extend to after the conclusion of an offence.

367.           To be found liable for being knowingly concerned in the commission of an offence, an accused must be knowingly and intentionally involved in the offence, which requires an objective demonstration of connection or involvement. This is something more than mere interest in the offence, as the insertion of ‘knowingly concerned’ into the Criminal Code is not intended to capture the state of mind of someone who is merely interested in or worried about a criminal offence. For example, a father learning that his son has made arrangements to import an illegal substance is not guilty of being knowingly concerned in the commission of that illegal importation merely because of his knowledge of its occurrence (although the father may commit other criminal offences as a result of failing to notify police). There must be knowledge of the essential elements or facts of the offence on the part of the person alleged to be knowingly concerned in its commission, which they intentionally and knowingly acquired or involved themselves in.

368.           The necessary fault element for the offence of being knowingly concerned will remain consistent with the fault element stipulated in the Criminal Code for the other forms of secondary criminal liability in section 11.2. See Item 3 below for further discussion on this point.

Criminal Code Act 1995 (Cth)

Item 1 - Subsection 11.2(1)

369.           This Item amends subsection 11.2(1) of the Criminal Code to provide for an additional form of secondary criminal liability for which persons can be charged: being ‘knowingly concerned in’ the commission of an offence. This will become a fifth form of liability, in addition to the forms already contained in subsection 11.2: aiding, abetting, counselling and procuring.

370.           This is intended to be a secondary form of liability which operates in addition to existing forms in subsection 11.2(1).

Item 2 - Paragraph 11.2(2)(a)

371.           Item 2 amends paragraph 11.2(2)(a) of the Criminal Code to insert the ‘knowingly concerned’ form of secondary criminal liability alongside the other forms. New paragraph 11.2(2)(a)(ii) provides that a person can only be found guilty of the offence of being knowingly concerned if their conduct resulted in them being in fact knowingly concerned in the commission of the offence by another person, consistent with the other forms of liability in section 11.2(2)(a).

372.           Item 2 inserts subparagraphs (i) and (ii) beneath paragraph 11.2(2)(a) to separate out the four existing forms of secondary criminal liability from the new form. This separation is directed toward clarity only.

 

 

Item 3 - Paragraphs 11.2(3)(a) and (b)

373.           Item 3 amends paragraphs 11.2(3)(a) and (b) of the Criminal Code to insert the ‘knowingly concerned’ form of secondary criminal liability to the list of existing forms of liability.

374.           Subsection 11.2(3) outlines the fault element necessary to establish to prove someone is guilty of the listed forms of secondary criminal liability. The fault element for someone to be guilty of being knowingly concerned in the commission of an offence is intention, consistent with the other forms of liability in the Criminal Code. This is also consistent with section 45 of the ACT Criminal Code.

375.           A person must have intended that their conduct would result in them being knowingly concerned in the commission of any offence of the type committed by the other person, including its fault elements; or, alternatively, must have intended that their conduct would result in them being knowingly concerned in an offence and have been reckless about the offence the other person in fact committed. This latter formulation is intended to cover the situation where the person knowingly concerned is unaware of the type of alternative or additional offence that is in fact committed, but was reckless as to its commission. Recklessness is defined in section 5.4 of the Criminal Code.

Item 4 - Subsection 11.2(4)

376.           Subsection 11.2(4) provides an exemption from liability for a person who may be complicit in the commission of an offence, but terminated their involvement and took all reasonable steps to prevent it prior to its commission. Item 4 amends subsection 11.2(4) of the Criminal Code to insert the ‘knowingly concerned’ form of secondary criminal liability to the existing list of forms of criminal liability that may be excluded as a result of this provision. This approach is consistent with the approach taken in relation to other forms of liability in section 11.2. 

Item 5 - Subsection 11.2(5)

377.           Subsection 11.2(5) provides that a person can be found guilty of being complicit in the commission of an offence regardless of whether the principal offender is actually prosecuted or found guilty of the offence. Item 5 amends subsection 11.2(5) of the Criminal Code to insert the ‘knowingly concerned’ form of secondary criminal liability to the existing list of forms of criminal liability that are covered by this provision. This approach is consistent with the approach taken in relation to other forms of liability in section 11.2.

Item 6 - Application of amendments

378.           Item 6 stipulates that the amendments to the Criminal Code to include a ‘knowingly concerned’ form of secondary criminal liability, which are contained in the « Bill » , will only apply to conduct that occurs on or after the commencement of the « Bill » . The amendments are therefore prospective in nature.

 

Schedule 6—Penalties for firearms trafficking offences

379.           Schedule 6 will amend the Criminal Code to implement the Government’s election commitment made in the Government’s Policy to Tackle Crime, released in August 2013, to introduce mandatory minimum sentences of five years imprisonment for firearm trafficking.

380.           Schedule 6 will give effect to this by introducing a mandatory minimum five year term of imprisonment for:

·          the existing offences of trafficking firearms and firearm parts within Australia (in Division 360 of the Criminal Code), and

·          the new offences of trafficking firearms into and out of Australia in Division 361 of the Criminal Code (included in the Crimes Legislation « Amendment » (Psychoactive Substances and Other Measures) Act 2015 ).

Criminal Code Act 1995

Item 1 - After section 360.3

381.           Item 1 inserts a new subsection (360.3A(1)) after section 360.3 to introduce mandatory minimum penalties for offences under Division 360. This will for the first time introduce a minimum sentence for firearms trafficking offences under the Criminal Code.

382.           The inclusion of a mandatory minimum penalty of five years imprisonment for trafficking offences is aimed at the legitimate objective of ensuring offenders receive sentences proportionate to the seriousness of their offending. They are also intended to target firearms trafficking to address the clear and serious social and systemic harms associated with this trade.

383.           A mandatory minimum penalty will not apply if it is established on the balance of probabilities that the person was aged under 18 years when the offence was committed (subsection 360.3A(2)). This preserves judicial discretion when sentencing to take into account the particular circumstances of minors. This is consistent with Division 309 of the Criminal Code, which reduces the culpability of children who commit drug trafficking offences.

384.           The « amendment » does not prescribe a minimum non-parole period. This will preserve a court’s discretion in sentencing, and will help ensure that custodial sentences imposed by courts are able to take into account the particular circumstances of the offence and the offender. The mandatory minimum sentence is not intended as a guide to the non-parole period, which in some cases may differ significantly from the head sentence.

Item 2 - After subsection 361.4

385.           Item 2 inserts new subsection 361.5 applies a mandatory minimum sentence of five years imprisonment if a person is convicted of an offence against Division 361. This will for the first time introduce a minimum sentence for firearms trafficking offences under the Criminal Code.

386.           The inclusion of a mandatory minimum penalty of five years imprisonment for trafficking offences is aimed at the legitimate objective of ensuring offenders receive sentences proportionate to the seriousness of their offending. They are also intended to target firearms trafficking to address the clear and serious social and systemic harms associated with this trade.

387.           The penalty will not apply if it is established on the balance of probabilities that the person was aged under 18 years when the offence was committed. This preserves judicial discretion when sentencing to take into account the particular circumstances of minors. This is consistent with Division 309 of the Criminal Code, which reduces the culpability of children who commit drug trafficking offences.

388.           The « amendment » does not prescribe a minimum non-parole period. This will preserve a court’s discretion in sentencing, and will help ensure that custodial sentences imposed by courts are able to take into account the particular circumstances of the offence and the offender.

Item 3 - Application of amendments

389.           Item 3 sets out the application of the amendments listed in Schedule 6. It states that ‘the amendments made by this Schedule apply in relation to conduct engaged in at or after the commencement of this Schedule.’

390.           This means the mandatory minimum sentences will not apply to people charged with an offence under the Criminal Code if the conduct constituting that offence occurred prior to the « Bill » receiving Royal Assent.

 

 

Schedule 7—Sentencing and Parole

391.           Schedule 7 of the « Bill » will amend sentencing and parole provisions in the Crimes Act 1914 . It contains measures to improve the clarity of provisions within Part IB of the Crimes Act and enhance the administration of the legislation. Part 1B of the Crimes Act governs the sentencing, imprisonment and release of federal offenders. 

392.           A number of provisions contained within Part 1B of the Crimes Act have been identified as containing anomalies or requiring further clarification. The provisions in their current form have created a number of administrative and operational difficulties for courts, the Department and State and Territory agencies. 

393.           New paragraph 16A(2)(ja) includes ‘general deterrence’ as a matter to be considered by the courts when passing sentence on federal offenders.

394.           Section 16AC clarifies the operation of the provision relating to an offender’s cooperation with law enforcement agencies.

395.           Subsection 19AP(4A) provides examples of grounds on which the Attorney-General may consider granting early release on licence.

396.           Subsection 19AA(1) ensures that strike remissions are the only types of remissions available on federal non-parole and pre-release periods of imprisonment.

397.           Section 19AB ensures that only non-parole periods (rather than recognizance release orders) can be fixed for sentences exceeding 3 years.

398.           Section 19AHA enables a court to amend a sentencing order which contains an error of a minor technical nature.

399.           Sections 19AKA and 19ALA specify the purposes of parole and set out the factors that the Attorney-General may consider when deciding whether a federal offender should be released on parole.

400.           Section 19AL fixes an administrative inefficiency in the making of parole orders for joint Commonwealth and State offenders and allows a 30 day early release on parole in appropriate circumstances.

401.           Section 19APA enables the Attorney-General to amend either conditions or technical errors in a parole order or licence after it has been made.

402.           Subsection 20(1)(a) provides an example of the type of conditions a court may impose in recognizance release orders and section 20(1A) mandates that if an offender is under supervision, a probation officer must consent to any interstate or overseas travel.

403.           Section 20AB clarifies the range of State and Territory alternative sentencing options that courts can apply to federal offenders.

 

Crimes Act 1914

Part 1—General Deterrence

Item 1 - After paragraph 16A(2)(j)

404.           Subsection 16A(2) of the Crimes Act sets out any matters a court must take into account when passing sentence, where the matters are relevant and known to the court.

405.           Item 1 inserts subsection 16A(2)(ja) after subsection 16A(2)(j) of the Act to add the general deterrent effect that a sentence or order may have on other potential offenders to the general sentencing principles for federal offenders.

406.           While subsection 16A(2)(j) refers to the deterrent effect that any sentence or order may have on the person (being sentenced), there is no reference in the Act to general deterrence to others as a sentencing principle. This omission has caused judicial concern as it is regarded as an important sentencing factor and is specifically included in most State or Territory legislation. While the list in subsection 16A(2) is non-exhaustive, introducing general deterrence into the Crimes Act will remove the need for courts to ‘read in’ general deterrence as a sentencing factor, thereby aligning the Act with comparable State and Territory sentencing legislation and further ensuring the application of relevant and consistent sentencing factors.

Item 2 - Application of amendments

407.           This item makes it clear that the provision applies regardless of whether the person was convicted before, at or after the commencement of the « Bill » .

 

Part 2—Cooperation with law enforcement agencies 

Item 3 - Clause 1 of the Schedule

408.           This « amendment » is consequential to the amendments in Item 5, by omitting the reference to old section 21E from the Commonwealth Places (Application of Laws) Act 1970 .

Item 4 - Subsection 3(1)

409.           This « amendment » is consequential to the amendments in Item 5 and inserts a definition of ‘confiscation proceedings’ into the general interpretation section of the Crimes Act.

Item 5 - After section 16AB

410.           This item will insert new section 16AC into the Act.

411.           Section 16AC relocates previous section 21E from Division 10 that deals with miscellaneous items to Division 2 so it is co-located with other general sentencing provisions. This is a more logical place for the section.

412.           The section applies to all penalties imposed on federal offenders including orders under section 19B and paragraphs 20(1)(a) and 20(1)(b), orders made under subsection 20AB(1AA) and fines and not just to sentences of imprisonment.

413.           As in the previous section 21E courts are required to specify the sentence, order or non-parole period that would have been imposed if the offender had not given an undertaking to co-operate with law enforcement agencies.

Item 6 - After subsection 19AP(4)

414.           Section 19AP(4) provides examples of what may amount to exceptional circumstances the Attorney-General could consider when exercising the power under section 19AP to release a person from prison before the expiry of their federal sentence of imprisonment. These factors were previously included in the explanatory memorandum to the Act.

415.           The non-exhaustive list includes pre-sentence cooperation that was not taken into account by the sentencing court, cooperation with law enforcement agencies after sentencing, or any serious medical condition a person has that cannot adequately be treated or managed within the prison system. It follows that such matters as, for example, excellent conduct in prison, remorse or contrition, liability to deportation, prospects of employment, or family hardship (unless of an extreme kind that is documented by medical and other reports) would not normally constitute exceptional circumstances. Prisoners’ families inevitably suffer varying degrees of hardship and distress because of the imprisonment of a family member. 

416.           Section 19AP(4) will provide guidance for both applicants and decision makers when considering an application for early release on licence. 

Item 7 - Section 21E

417.           This item will repeal section 21E as the substance of section 21E is now relocated to new section 16AC by Item 5 above.

 

Part 3—Remissions and reductions of sentences

Item 8 - Subsection 19AA(1)

418.           Subsection 19AA(1) is to be repealed and substituted with a new subsection (1). Subsection (1) replicates the existing provision that applies State and Territory laws that allow the remission or reduction of State or Territory sentences to the sentences of federal prisoners in their jurisdiction. 

419.           New subsection 19AA(1A) clarifies that these State and Territory laws do not apply to federal non-parole periods of imprisonment or pre-release periods of imprisonment in respect of recognizance release orders. The only exception to this provision is contained in existing subsection 19AA(4) that enables federal prisoners to receive ‘strike remissions’ on their non-parole or pre-release periods, where such remissions are available under a law of a State or Territory. These laws allow reductions on time to be served to compensate for hardship during periods of industrial action taken by prison warders.

420.           The « amendment » is designed to ensure that Commonwealth non-parole periods and pre-release periods are served as set by the court, except for strike remissions. This clarification is important as the case of Frost v R [2003] TASSC 39 provides authority for the proposition that a federal prisoner in Tasmania may be granted a remission that reduces the pre-release period on a recognizance release order, which does not give effect to the Commonwealth’s policy views about the remission of pre-release periods.

421.           This « amendment » therefore clarifies the wording of section 19AA to make it clear that no remissions are available on non-parole or pre-release periods of imprisonment for federal offenders except under subsection 19AA(4).

Item 9 - Application of amendments

422.           This item sets out that Item 8 applies to federal sentences imposed on or after the commencement of the « Bill » .

 

Part 4—Non-parole periods and recognizance release orders

Item 10 - Section 19AB

423.           This item will repeal the previous section 19AB and replace it with the amendments. 

424.           Sections 19AB and 19AC remove references to making recognizance release orders in relation to sentences that exceed three years imprisonment. 

425.           A sentence that exceeds three years’ imprisonment would generally be imposed where a court considers an offence to be serious. In these cases it is more appropriate that an offender is released with parole conditions to be supervised by the parole service. Parole supervision provides support to offenders as they reintegrate into the community and a safeguard for the community.

426.           Section 19AC also clarifies that the court must make a single recognizance release order, even in the case of multiple sentences. This is consistent with the current provisions in section 19AE in relation to recognizance release orders and the requirement in section 19AB to fix a single non-parole period.

427.           Subsection 19AB(3) adds a new circumstance in which a court is not required to fix a non-parole period. Where a federal offender is also serving a State or Territory sentence that extends beyond the expiry date of the federal sentence, that offender is not eligible for release from custody until they are released on their State or Territory sentence. In these circumstances a federal offender could not be released on federal parole and therefore there is no point in setting a non-parole period.

Item 11 - Subsections 19AC(1) and (2)

428.           This « amendment » is consequential to the amendments in Item 10 and add the word ‘single’ to the phrase ‘must make a’.

Item 12 - Subsections 19AC(4) and (5)

429.           Section 19AC (4) and (5) have been repealed and substituted with the new section 19AC (4) and (5). 

430.           Subsection 19AC (4) adds a new circumstance in which a court is not required to make a recognizance release order. Where a federal offender is also serving a State or Territory sentence that extends beyond the expiry date of the federal sentence, that offender is not eligible for release from custody until they are released on their State or Territory sentence. In these circumstances a federal offender could not be released on a recognizance release order and therefore there is no point in making such an order.

431.           Subsection 19AC(5) replicates the existing requirement for a court to state and record its reasons for not setting a recognizance release order.

Item 13 - Subsection 19AG(5) (paragraph (a) of the note)

432.           This « amendment » is consequential to the amendments in Item 10 and repeals paragraph 19AG(5)(a).

Item 14 - Subsection 19AG(5) (paragraph (c) of the note)

433.           This « amendment » is consequential to the amendments in Items 10 and 13. The item inserts a note at new paragraph 19AG(5)(ca) to maintain the effect of repealed paragraph 19AG(5)(a) and to omit references to repealed paragraphs 19AB(1)(e) and (2)(e). The note provides that recognizance release orders made under paragraph 19AE(2)(e) or 19AR(2)(e) have effect subject to section 19AG.

Item 15 - Subsection 20(6)

434.           This « amendment » is consequential to the amendments in Item 10 and omits the reference to section 19AB.

Item 16 - Application of amendments

435.           This item sets out that the amendments in Part 4 apply to federal sentences imposed on or after the commencement of the « Bill » .

 

 

Part 5—Rectification of errors in sentences, non-parole periods and recognizance release orders

Item 17 - After section 19AH

436.           Item 17 inserts new section 19AHA.

437.           Currently the courts rely on State and Territory provisions to enable them to correct technical or clerical errors in sentencing orders for Commonwealth sentences. 

438.           Subsection 19AHA(1) clarifies the powers of courts to correct Commonwealth sentencing orders in situations where, for example, an arithmetical mistake has been made in calculating a sentence commencement date or expiry date or a sentencing order has been made using the incorrect form. 

439.           Subsection (2) states that a technical error, defect of form or an ambiguity does not affect the validity of the sentence imposed on the person. Subsection (6) states that an « amendment » to a sentencing order, made under this section, does not affect the offender’s appeal rights.

440.           Under subsection (3) a court may correct an error on its own initiative and under subsection (4) a court must correct an error on application from the Attorney-General, the Commonwealth Director of Public Prosecutions or the person to whom the sentence applies.

441.           Subsection (5) enables such errors to be corrected by a court even though it is not constituted as it was at the time of sentencing.

442.           Subsection (7) states that any « amendment » to a sentencing order will take effect from the date of the original order unless the court specifically orders another date.

443.           Subsection (8) sets out the types of orders to which this section applies - orders setting sentences, fixing non-parole periods or recognizance release orders.

 

Item 18 - Application of amendments

444.           New section 19AHA will have effect from the date of effect of the original sentencing order, whether that is before, on or after the commencement of the « Bill » .

 

Part 6—Parole - general

Item 19 - Before section 19AL

445.           This item will insert new section 19AKA.

446.           Section 19AKA establishes that the purposes of parole are the protection of the community, the rehabilitation of the offender and the reintegration of the offender into the community. The purpose of this item is to provide guidance in ensuring that parole conditions are consistent with the purposes of parole, for « use » in making decisions on release on parole, and when considering breaches of parole conditions.

Item 20 - After section 19AL

447.           This item inserts new section 19ALA.

448.           Subsection 19ALA(1) provides a non-exhaustive list of matters that the Attorney-General may consider when making decisions about parole orders: for example, comments made by the sentencing court, information about the offender’s criminal history and past behaviour on parole, parole reports on the offender’s conduct while serving his or her sentence and post-release plans and the risk to the community of releasing an offender on parole.

449.           The purpose of these new sections is to clarify the matters which will be considered when making decisions about parole. This increases procedural fairness for federal offenders by increasing the transparency of the decision-making process. 

450.           Subsection (2) states that the list in subsection (1) does not limit what the Attorney-General can take into account when making a decision on whether to grant or refuse parole.

Item 21 - Before section 19AQ

451.           This item is consequential to the amendments in Item 22. The item inserts new section 19APB which replaces repealed section 19AZC. New section 19APB maintains the effect of repealed section 19AZC.

452.           The effect of the provision is that whilst a parole order is in place the parolee is still considered to be under sentence. It is only when the parole period ends without the parole order having been revoked that the parolee is discharged from imprisonment.

453.           The insertion of section 19APB merely clarifies the language used in repealed section 19AZC to enhance readability of the legislation.

 

Item 22 - Section 19AZC

454.           This item repeals section 19AZC which is consequential to the amendments in Item 21.

Item 23 - Before section 19AZD

455.           This item inserts the heading ‘Subdivision C - State and Territory laws providing for leave of absence, pre-release etc.’ for the purposes of enhanced readability of the legislation.

Item 24 - Before section 19B

456.           This item inserts the heading ‘Subdivision D - Discharge without conviction, conditional release and sentencing alternatives’ for the purposes of enhanced readability of the legislation.

Item 25 - Application of amendments

457.           This item provides that amendments made under Part 6 apply to decisions under section 19AL which are made on or after the commencement of the « Bill » .

Part 7—Effect of State and Territory sentences on making of parole orders

Item 26 - Subsection 19AL(1) (notes 1, 2 and 3)

458.           This item repeals the previous notes and substitutes a new note that references the new subsection 19AL(5) inserted by Item 29.

Item 27 - At the « end » of paragraph 19AL(2)(b)

459.           This item adds a new note referencing the new subsection 19AL(5) inserted by Item 29.

Item 28 - At the « end » of subsection 19AL(3)

460.           This item adds Note 1 and Note 2 to clarify the application of sections 19AM, 19AMA, 19AN and 19AU.

Item 29 - Subsection 19AL(4)

461.           This item clarifies the application of section 19AL when making parole orders for joint Commonwealth and State offenders.

462.           Section 19AL(4) introduces subsections (5) and (6) which only apply to joint Commonwealth and State offenders.

463.           Subsection (5) lists circumstances under which the Attorney-General is not required to make or to refuse to make a parole order under subsections 19AL(1) or 2(b). These circumstances are:

(a)  if the person is serving a State or Territory sentence for which no non-parole period has been fixed. In that case the offender has no eligibility for release

(b) where the total Commonwealth sentence expires before the person is eligible for release on their State/Territory sentence. In that case the decision on whether to release the person will be a matter for the State/Territory authorities only

(c) where the person’s State/Territory non-parole period ends after the « end » of the Commonwealth non-parole period. In this case the person cannot be released on parole until they have served their State non-parole period. A decision whether to release a person in such circumstances may be a matter for both the Commonwealth and State/Territory authorities, or

(d) where the person’s State/Territory sentence ends after the « end » of the federal non-parole period. In this case, the person could not be released on federal parole until they are eligible for release on their State/Territory sentence.

464.           Subsection (6) sets out the timing for any decision by the Attorney-General in the circumstances set out in 5(c) and 5(d). In those cases the Attorney-General would make a decision either before the « end » of the person’s State/Territory non-parole period or before the person’s release on their State/Territory sentence.

465.           The note to subsections 19AL(4)-(6) states that a federal parole order may sometimes be made for a joint offender who is still serving a State/Territory sentence but the order will not take effect until the person is released on their State/Territory sentence.

466.           The provisions are intended to enable parole decisions to be made shortly before a person will be released from custody in the light of the latest information about the person’s behaviour in custody and their post-release plans. For example, if a parole order is granted at the time when the Commonwealth non-parole period ends and the person is still imprisoned for a State or Territory sentence for another three years, the parole order could not take effect until the person is released on their State sentence. However, making an order three years before the possible release date means that a person’s circumstances and post-release plans are likely to change during the intervening time. Currently, if the Attorney-General refused to make the parole order at this time (as would likely be the more appropriate decision) subsection 19AL(2) then applies, which requires written notice and the reconsideration of the decision within 12 months, despite the fact that the person would still not be eligible for release from prison on the State sentence at that time. In these situations, the Attorney-General (or delegate’s decision) to refuse a parole order must be reconsidered within every 12 months of each refusal with written reasons provided pursuant to subsection 19AL(2), despite the fact that the person cannot be released from prison because of the State sentence. The amendments mean that multiple refusals in this situation will no longer be necessary.

Item 30 - Application of amendments

467.           This item provides that the amendments in Part 7 apply to federal sentences if the non-parole period for the sentence ends on or after the commencement of the « Bill » . This is despite the sentence being passed before, on or after the commencement of the « Bill » .

Item 31 - Savings provision

468.           This item clarifies that a parole order that was in force before the commencement of the « Bill » has effect as if it had been made under section 19AL as amended by Part 7. Similarly, the item clarifies that a decision made under section 19AL before the commencement of the « Bill » which was not revoked before commencement of the « Bill » , has effect as if it had been made under section 19AL as amended by Part 7.

 

Part 8—Early release on parole

Item 32 - After subsection 19AL(3)

469.           New subsection 19AL(3A) replicates former provision 19AL(1)(b) as inserted into the Crimes Act in 1990. The 2012 amendments to subparagraph 19AM(1)(a)(ii) did not provide any criteria for considering applications for early release on parole. New subsection 19AL(3A) explains that release on parole up to 30 days early is only available when the Attorney-General considers that in all the circumstances it is appropriate to do so. Appropriate circumstances may include situations where a specific event directly related to the prisoner’s rehabilitation is scheduled to occur in the 30 days before the expiry of the prisoner’s non-parole period. For example, it may be appropriate to release a prisoner early where the prisoner is required to attend classes for a course of study integral to the prisoner’s post-release plans. A prisoner who is eligible for release on parole between Christmas and New Year may be granted early parole to enable them to report to the parole service before the Christmas holiday period.

Item 33 - Subparagraph 19AM(1)(a)(ii)

470.           This item omits the phrase ‘not being earlier than 30 days before the « end » of the non-parole period’ and inserts a reference to new subsection 19AL(3A) into current subsection 19AM Release on parole - when person is released at subparagraph 19AM(1)(ii).

Item 34 - Application of amendments

471.           This item provides that the amendments made by Part 8 apply to a parole order made on or after the commencement of the « Bill » .

 

Part 9— « Amendment » of parole orders and licences

Item 35 - Subsection 19AN(1)

472.           This item amends the words ‘a parole order under section 19AL’ in current subsection 19AN(1) to simply ‘a parole order’. The specification of section 19AL is unnecessary because parole order is defined in section 16 of the Act.

Item 36 - Subsections 19AN(2) and (3)

473.           This item is consequential to the amendments in Item 38 and repeals current subsections 19AN(2) and (3).

 

 

Item 37 - Subsections 19AP(8) and (9)

474.           This item is consequential to the amendments in Item 38 and repeals current subsections 19AP(8) and (9).

Item 38 - After section 19AP

475.           This item inserts new section 19APA to restructure the current provisions in the Crimes Act relating to the Attorney-General’s power to amend parole orders and licences. Under new subsection 19APA(2) the power to amend parole orders and licences extends beyond the existing ability in subsection (1) to amend conditions in a parole order or licence to include the ability to make amendments to a parole order or licence to rectify errors of a technical nature, defects of form, or ambiguities, for example, an error in the details of the sentence or the dates specified in the order or licence. 

476.           Subsections (3) and (4) state when such amendments take effect. Where the « amendment » of a parole order or licence involves the « amendment » of a condition, those amendments only take effect when the parolee or licensee is given notice of the « amendment » in writing. If the « amendment » rectifies an error in the parole order or licence, the « amendment » takes effect from the date of effect of the parole order or licence.

Item 39 - Application of amendments

477.           This item provides that the amendments in Part 9 apply to a parole order or licence made or granted before, on or after the commencement of the « Bill » .

 

Part 10—Conditional Release

Item 40 - Subparagraph 20(1)(a)(iii)

478.           This « Bill » amends section 20(1)(a)(iii) by omitting the word ‘and’ enhancing the readability of the legislation.

Item 41 - Subparagraph 20(1)(a)(iv)

479.           The « Bill » omits from subparagraph 20(1)(a)(iv) the phrase ‘which conditions may include the conditions that the person will, during the period so specified, be subject to the supervision of a probation officer appointed in accordance with the order and obey all reasonable directions of a probation officer so appointed’ simplifying the subparagraph to enhance the readability of the legislation.  

Item 42 - At the « end » of paragraph 20(1)(a)

480.           The « Bill » also inserts an example to subsection 20(1)(a) of a condition by which the person will undertake a specified counselling, education or treatment program during the specified period.  This addition clarifies the types of conditions the court can impose, including those specifically related to the reason for offending.

 

Item 43 - After subsection 20(1)

481.           The « Bill » inserts subsection 20(1A) to provide that should the court specify the condition that the person be subject to the supervision of a probation officer and obey all reasonable directions of the probation officer, the court must also specify that the person will not travel interstate or overseas without the written permission of the probation officer.   This « amendment » strengthens the supervisory role of the probation officer, given that a person cannot reasonably be deemed to be subject to the supervision of a probation officer if they have the ability to travel interstate or overseas without permission.

482.           These amendments clarify the ambit of subsection 20(1) and highlight the types of conditions an offender may be subject to, aiding transparency and providing members of the community with specific examples of the conditions that may attach to the conditional release of offenders.

 

Part 11—Alternative sentencing options

Item 44 - Subsection 3(1)

483.           The « Bill » will amend subsection 3(1) to insert definitions of participating State and participating Territory. Both definition are given the meaning prescribed by section 3B(2) of the Act.

Item 45 - Subsection 3B(2)

484.           The « Bill » will amend subsection 20AB by omitting the previous reference to 20AB of the Act and substituting it with the phrase ‘this Act’.  

Item 46 - Subsection 20AB(1)

485.           The « Bill » will repeal the previous subsection 20AB(1) and substitute it with the « amendment » .

486.           Section 20AB(1) will provide a general updated list of the types of orders, as alternatives to imprisonment, that should be available to sentencing courts in relation to federal offenders. 

487.           The purpose of section 20AB is to clarify the court’s power to pass a sentence or make an order that is similar to any of the named types of orders. As it is possible that in the future States and Territories will create new options not listed in this section, the ability to prescribe such orders in the Regulations has been retained. The Regulations will continue to be updated to reflect specific orders available in the States. 

488.           This measure will clarify the existing legislation and assist courts to apply relevant legislation.

Item 47 - Subsection 20AB(1A)

489.           This item omits a reference to subsection (1) and replaces it with a reference to subsection (1)(b) in accordance with the amendments in Item 46. 

Item 48 - Application of amendments

490.           This item sets out that the amendments set out in Items 44 to 47 apply to all federal sentences, regardless of whether the person is convicted before, at or after the commencement of the amendments.

Item 49 - Savings provision - regulation

491.           This item provides that a regulation made for the purposes of section 20AB, and in force just before the commencement of this item, has effect from the commencement of the new section  20AB(1AA) in accordance with amendments in Item 46.

 

 

 

Schedule 8—Transfer of prisoners

492.           The Transfer of Prisoners Act 1983 (Cth) enables federal prisoners to be transferred from a prison in one State or Territory to a prison in another State or Territory on welfare grounds (on request by the prisoner), to face trial in another jurisdiction, or if it is necessary in the interests of security.

493.           Federal prisoners are accommodated in State and Territory prisons pursuant to section 120 of the Constitution. Each State and Territory has complementary legislation in relation to the interstate transfer of State and Territory prisoners.

494.           Schedule 8 of the « Bill » will allow the interstate transfer of federal prisoners to occur at a location other than a prison for federal prisoners approved for transfer. This administrative efficiency brings the federal Act into line with model State and Territory legislation. The Schedule also makes other minor amendments to the Transfer of Prisoners Act.

495.           Subsection 17(3A) will allow the interstate transfer of federal prisoners to occur at a location other than a prison for federal prisoners approved for transfer.

496.           Sections 17 and 26 will also be amended to ensure remand prisoners are included in provisions of general application.

Transfer of Prisoners Act 1983

Item 1 - Subsection 3(1)

497.           This item inserts two additional definitions into subsection 3(1), namely that of ‘local prisons authority’ and ‘State transfer law’. The definitions are consequential to the amendments in Item 3.

Item 2 - Subsections 17(1), (2) and (3)

498.           Section 17 of the Transfer of Prisoners Act specifies custody arrangements during the transfer of prisoners.

499.           The « Bill » inserts reference to remand prisoners following reference to prisoners in subsections 17(1), 17(2) and 17(3) to ensure remand prisoners are included in the provisions of general application. Currently, Parts V and VI of the Act set out the effect of a transfer order made under the Act and other miscellaneous provisions, respectively. Within Part V of the Act, section 17 deals with interstate handover practices in relation to persons transferred under the Act. 

500.           Despite this, remand prisoners may be subject to transfer orders under the Act (owing to Part IV of the Act) and may also be in lawful custody pursuant to a transfer order. These amendments ensure the provisions of general application apply to both sentenced and remand prisoners, where it is relevant to do so. This « amendment » will clarify the application of the Act and aid legislative interpretation, correcting previous drafting oversights.

 

 

Item 3 - After subsection 17(3)

501.           Item 3 inserts subsection 17(3A) to allow federal prisoners to be transferred to the custody of an authorised interstate escort at a location other than the prison in the receiving jurisdiction. The Act currently requires a prisoner to be delivered to the specified prison in the receiving jurisdiction and to be delivered into the custody of a Superintendent or other officer of that prison. This requirement creates an unnecessary logistical and administrative burden.

502.           Model legislation has also recently been developed in relation to handover practices of interstate prisoners and, among other things, it provides that prisoners who are being transferred to an interstate jurisdiction can be delivered to an interstate escort at a location authorised for that purpose by the prison authorities for that jurisdiction. The « amendment » therefore promotes consistency with the model legislation and seeks to provide flexibility for custody arrangements in order to alleviate administrative burdens with regard to prisoner transfer.

Item 4 - Subsection 17(4)

503.           Item 4 inserts reference to remand prisoners following reference to prisoners in subsection 17(4) to ensure remand prisoners are included in the provisions of general application. 

Item 5 - Subsection 26(2)

504.           Item 5 inserts reference to remand prisoners following reference to prisoners in subsection 26(2) to ensure remand prisoners are included in the provisions of general application. 

505.           Section 26, as set out in Part VI of the Act, deals with the escape of prisoners from lawful custody. At present, these provisions of general application only apply to sentenced prisoners, not remand prisoners.

 

Schedule 9 - Sharing information relevant to federal offenders

506.           Schedule 9 of the « Bill » facilitates information sharing about federal offenders between the Attorney-General’s Department and relevant third party agencies.

507.           The Attorney-General makes a number of decisions under the Crimes Act, the Crimes (Superannuation Benefits) Act and the Transfer of Prisoners Act in relation to federal offenders, including making or refusing to make a parole or licence order, revoking a person’s parole because of a breach and considering applications for the exercise of the Royal Prerogative of Mercy. In practice, making these decisions relies heavily on information provided by third party Commonwealth and State or Territory agencies. The amendments will facilitate the sharing of necessary and relevant information about federal offenders to ensure informed decisions are made in line with legislative obligations.

Crimes Act 1914

Item 1 - After Division 9 of Part 1B

508.           This item inserts new Division 9A.

Division 9A - Sharing information relevant to federal offenders (heading)

509.           New Division 9A provides for the sharing of information relevant to federal offenders.

Section 20BZ - Definitions

510.           As a result of the new section 20BZA and 20BZB, definitions for authorised officer and relevant person have been inserted into section 20BZ.    

511.           The definition of an authorised person identifies the Attorney and the Secretary or his/her delegate as the authorised persons. Any delegation by the Secretary will be limited to staff who have the need to access relevant information, such as case officers who process release on parole for federal offenders.  

512.           The definition of relevant person provides a non-exhaustive list of agencies that are likely to hold information about federal offenders that is relevant to the administration or execution of the duties or functions under the Crimes Act, Transfer of Prisoners Act, the Crimes (Superannuation Benefits) Act, the ability of the Attorney General to refer federal matters back to State/Territory courts as appeals, and to exercise of the Royal Prerogative of Mercy.

513.           Examples of the type of information that may be requested from the relevant persons are set out below:

·          The AFP and State police may provide the Statement of Facts of the offence and criminal history which would be used in making decisions on release to parole, breaches of parole, or orders under the Crimes (Superannuation Benefits) Act. They may also provide information in support of applications for early release on the basis of cooperation. Either the AFP or State police may provide details of further offences committed by federal parolees. They also arrest parolees who have breached their parole conditions. Federal parolees who are sex offenders have reporting obligations to State police under State/Territory sex offender registration schemes. The AFP also provides information to the Department on applications for international travel by federal parolees. ((a) and (b))

·          Details about a person’s level of cooperation is necessary when assessing applications for early release on licence under section 19AP and is likely to held by relevant persons falling within subsection (c).

·          Details of the prosecution from the CDPP (subsection (d)) or State DPP (subsection (e)) are used to establish information about a person who has been imprisoned for a federal offence and whose release from custody will be the responsibility of the Attorney-General or his delegate. Submissions to the court and views or recommendations about specific cases are used when considering early release applications or an application made under the Royal Prerogative of Mercy powers.

·          Information from prison medical services or a person who provides services for a State and Territory in relation to corrective services is used when considering early release application under section 19AP of the Crimes Act where a person claims to be suffering from a condition that is unable to be adequately treated in prison (subsections (f) (g)and (p)). Subsections (f) and (g) also cover officers who work in State/Territory prisons, parole officers who supervise federal parolees and other employees of the State/Territory Corrective Services departments such as interstate transfer officers who process applications for welfare or trial transfer.

·          « Customs » officers at international airports may contact the Department in circumstances where a federal parolee has triggered an incoming or outgoing alert at the airport (subsection (h)).   

·          The Australian Passports Act 2005 enables senior officers of the Attorney-General’s Department to request the cancellation of an existing passport or a refusal to issue a passport to a person who is on parole and is not permitted to travel internationally without the permission of the Attorney-General. The Passports Office requires information from the Department to fulfil its functions under the Passports Act and the Department seeks information about whether offenders who will be released on parole currently hold valid passports. ((i)(i))

·          Members of the defence forces can apply for an application for the exercise of the Royal Prerogative of Mercy in relation to their convictions. In order to process these application information would be sought from people who administer this act (subsection (i)(ii) and (j)). « Military » prisoners become civilian prisoners when their conviction results in their dismissal from the Defence Force. When such prisoners transfer to Corrective Services custody, they become the responsibility of the Attorney-General’s Department. The Department requires information about these prisoners to be able to advise State/Territory authorities about when they are eligible for release from custody.

·          Almost half of the federal offenders in custody were not born in Australia. The Department needs to establish whether prisoners who are not Australian citizens are foreign nationals or permanent residents. Upon their release from custody, Immigration officials will either remove foreign nationals under the Migration Act or take them into immigration detention. Permanent residents lose that status as a result of their offending or may be permitted to remain in Australia and therefore would be under parole supervision upon their release from custody. In order for the Attorney-General’s Department and the Department of Immigration and Border Protection to fulfil their functions it is essential to establish accurate information about an offender’s immigration status. (subsection (i)(iii)).

·          Offenders who receive fines for corporation and taxation offences frequently apply to have their cases referred back to State courts. Some offenders have also applied for pardons. To establish the facts of the case and then decide what course of action is appropriate the Department seeks information from officers from ASIC and ATO and the State Debt Recovery office. (k), (l) and (m).

·          The sentencing remarks for federal offenders are required from court officials falling within subsection (n) to provide a basis for all statutory functions in Part 1B of the Crimes Act. Liaison with the courts is necessary in trial transfer processes and in cases involving the referral of cases back to State/Territory courts of appeal.

·          In determining whether the Minister should authorise the CDPP to apply for a superannuation order against an offender pursuant to section 16 of the Crimes (Superannuation Benefits) Act, the Department seeks information from persons falling within subsection (o) about the names any schemes of which the offender was a member and the amount of benefits held in the fund of their behalf.

Section 20BZA Authorised officers may request or require information relevant to federal offenders

514.           Section 20BZA will allow an authorised officer of the Attorney-General’s Department to require the production of information from a relevant person for the purposes the administration or execution of the functions under the Crimes Act, the Transfer of Prisoners Act, the Crimes (Superannuation Benefits) Act, State and Territory legislation empowering the Attorney General to refer federal matters back to State and Territory courts to be considered as appeals, and the exercise of the Royal Prerogative of Mercy. 

515.           Paragraph 68(1)(d) picks up the following State and Territory legislation on referrals:

 

New South Wales

Section 77— Crimes (Appeal and Review) Act 2001

Section 78— Crimes (Appeal and Review) Act 2001 - applicant can apply direct to the NSW Supreme Court for a referral of case

Queensland

Section 672A— Criminal Code 1899

Western Australia

Section 140— Sentencing Act 1995

Northern Territory

Section 431— Criminal Code Act

Tasmania

Section 419— Criminal Code Act 1924

South Australia

Section 369— Criminal Law Consolidation Act 1935

Victoria

Section 327— Criminal Procedure Act 2009

Australian Capital Territory

Section 423— Crimes Act 1900

516.           This « amendment » is necessary to support the statutory decision-making functions of the Attorney General.

517.           Currently there are no provisions in the Crimes Act authorising the disclosure of such information to the Commonwealth. This provision provides a clear legislative basis for authorised officers to request information necessary for supporting the Attorney-General’s statutory functions in relation to federal offenders.

518.           A person cannot be liable for any penalty (or any other form of liability, for example at common law for a breach of a duty of confidence) for complying with the requirement to disclose information under this section.

Section 20BZB Authorised officers may disclose federal offender information

519.           Section 20BZB will allow an authorised officer to disclose federal offender information to a relevant person if the officer believes it is necessary for the purpose of performing their functions. 

520.           Subsection 20BZ (4) also defines federal offender information as information acquired by an authorised person in the performance of a function or duty in connection with the Crimes Act, the Crimes (Superannuation Benefits) Act, the Transfer of Prisoners Act or the Royal Prerogative of Mercy.

521.           This section is intended to allow the disclosure of federal offender information when performing statutory functions under the Act and is intended to cover other functions and duties under a contract of employment or contract for services that are connected with those matters.   

522.           This « amendment » is necessary to support the statutory decision making functions of the Attorney-General. It is also necessary to enable other Commonwealth, State and Territory Departments and agencies to fulfil their lawful functions in relation to federal offenders and the administration of the criminal justice system.

20BZC Delegation

523.           Section 20BZC provides for the Secretary of the Department to delegate his or her powers under Division 9A to employees of the Department who perform specific duties.

524.           The section restricts delegation of the Secretary’s powers to employees that perform duties in connection with the specific legislation listed. This ensures only specified staff will be able to request necessary and relevant information, such as case officers who consider release on parole for federal offenders, or employees that consider applications for the exercise of the Royal prerogative of mercy. It also ensures that only specified staff will be able to disclose federal offender information to a relevant person. As information sharing is necessary to effectively discharge the Department’s functions in relation to the management of federal offenders, it is necessary for all relevant Australian Public Service employees below SES level to be able to access and disclose federal offender information.

525.           Only a limited number of people in the Department perform these functions and federal offender information is held separately within the Department’s record keeping system. This ensures that other employees of the Department who do not have a need to know, cannot access federal offender information.

 

 

Schedule 10—Anti-Money Laundering and Counter-Terrorism Financing amendments

526.           Schedule 10 will amend the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) (AML/CTF Act) to provide additional flexibility in the internal operations and procedures of the Australian Transaction Reports and Analysis Centre (AUSTRAC). The amendments address enforceability issues and operational constraints identified by AUSTRAC in the course of undertaking its statutory function as Australia’s anti-money laundering and counter-terrorism financing regulator.

527.           Currently, there is a risk that the interaction between paragraphs 75B(6), 75C(2), and 75Q(1) of the AML/CTF Act may result in applicants for registration on the Remittance Sector Register being denied procedural fairness in situations where an application for registration has been deemed refused under 75B(6), notwithstanding the fact that the applicant still had time remaining in which to make a submission in relation to the proposed decision under paragraph 75Q(1)(d). The operation of the deemed refusal provisions may also result in a situation where the AUSTRAC CEO has inadequate time to consider a submission made by an applicant. Schedule 10 will amend the paragraph 75B(6) of the AML/CTF Act to ensure that the AUSTRAC CEO has sufficient time to consider additional information provided by an applicant in respect of their application for registration on the Remittance Sector Register before the deemed refusal provisions take effect.

528.           Paragraph 167(2) of the AML/CTF Act enables authorised officers to issue a written notice requiring a person to provide any information or documents relevant to the operation of the AML/CTF Act, Regulations or Rules. This provision is subject to paragraph 169, which sets out the range of proceedings that such information or documents are admissible in as evidence. Schedule 10 will amend paragraph 169(2) to align with the self-incrimination provisions set out in paragraph 205(2), which allows for evidence to be adduced in a broader range of civil and criminal proceedings. This « amendment » will provide greater consistency in the operation and interpretation of the AML/CTF Act and enhance the ability of AUSTRAC to secure effective regulatory compliance.

529.           The AML/CTF Act currently provides for two separate information-gathering powers in paragraphs 167 and 202. These provisions provide different time periods within which information or documents must be provided. For notices issued under paragraph 167(2), the AML/CTF Act provides that information or documents must be given or produced ‘within the period and in the manner specified in the notice’, while notices issued pursuant to paragraph 202 require that such information or documents be given or produced ‘within 14 days after the notice is given’. Schedule 10 will amend paragraph 202 to provide consistency with the more flexible operational approach provided for by paragraph 167(2). This will enable the timeframes for the production of information or documents to more appropriately fit the circumstances and nature of the request.

Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth)

Items 1 and 2 - Paragraph 75B(6)

530.           These items amend paragraph 75B(6) of the AML/CTF Act to clarify that the ‘relevant period’ available to the AUSTRAC CEO to make a decision on an application for registration on the Remittance Sector Register before the application will be deemed refused does not commence until the latest of the days set out in subparagraphs 75B(6)(a)-(c).

531.           Where multiple requests for information are made by the AUSTRAC CEO under subparagraph 75N(1), the effect of new subparagraph 75B(6)(b) is that the ‘relevant period’ will be taken to begin on the day that information is provided in respect of the last such request.

Item 3 - Paragraph 169(2)(c) and (d)

532.           This item repeals subparagraphs 169(2)(c) and (d) of the AML/CTF Act and replaces them with new subparagraphs. This « amendment » provides consistency with the self-incrimination provisions set out in paragraph 205, and ensures that AUSTRAC is able to utilise the information it needs to be able to perform its functions in securing effective compliance or prosecutions.

Item 4 - Application of amendments

533.           This item clarifies that the amendments made by Item 3 apply in relation to information given, or documents produced, on or after the commencement of that item, irrespective of whether the information or documents themselves pre-date the commencement of that item.

Item 5 - Subparagraph 203(e)

534.           This item repeals subparagraph 203(e) of the AML/CTF Act and replaces it with a new paragraph. This « amendment » brings subparagraph 203(e) into line with subparagraph 167(2) by providing that a notice issued to a reporting entity under subparagraph 202(2) is required to specify the time period within which the information or documents requested must be given or produced.

535.           This is intended to ensure that persons authorised to issue notices under subparagraph 202(1) are able to take a more flexible approach by allowing the timeframes for compliance to more appropriately fit the circumstances of the request.

 

 

Schedule 11—Law Enforcement Integrity Commissioner

536.           Schedule 11 will amend the Law Enforcement Integrity Commissioner Act 2006 (LEIC Act) to ensure that the powers available to the Integrity Commissioner under various provisions of the LEIC Act are internally consistent and allow the Integrity Commissioner to perform the prescribed functions of the office more efficiently and effectively. The proposed amendments will also improve the general operation of the Act.

537.           Under the LEIC Act, the Integrity Commissioner, supported by the Australian Commission for Law Enforcement Integrity (ACLEI), is responsible for preventing, detecting and investigating serious and systemic corruption issues in Commonwealth law enforcement agencies. Given the importance of combating corruption in Australia’s law enforcement agencies, it is important that the LEIC Act empowers the Integrity Commissioner to perform his or her functions efficiently and effectively, while also providing sufficient safeguards around the exercise of those functions. 

538.           Based on the Integrity Commissioner’s and ACLEI’s operational experience, Schedule 11 will make a range of amendments to the LEIC Act to:

·          amend the definition of ‘significant corruption issue’ to allow the Integrity Commissioner and head of a law enforcement agency to reach agreement on what a significant corruption issue is

·          provide the Integrity Commissioner with greater discretion when deciding when and how to keep persons informed of action taken in relation to a corruption issue

·          ensure that the same pre-investigation powers are available to the Integrity Commissioner when he or she is deciding how to deal with significant and non-significant corruption issues

·          expand the Integrity Commissioner’s ability to share information to allow him or her to inform appropriate third parties of information that indicates that a person’s safety may be in jeopardy

·          allow the Integrity Commissioner to delegate his or her power to apply for a passport surrender order to a Senior Executive Service (SES) (or acting SES) employee of ACLEI

·          simplify provisions relating to giving certain evidence in private, in particular to clarify that all evidence to which a secrecy provision relates cannot be given in public

·          amend the definition of ‘AFP staff member’ for consistency with the Australian Federal Police Act 1979

·          remove time limits on the secondment of officers to ACLEI, and

·          fix a minor grammatical error.

Law Enforcement Integrity Commissioner Act 2006

Item 1 - Subsection 5(1) (paragraph (a) of the definition of significant corruption issue )

539.           Item 1 will amend the definition of ‘significant corruption issue’ to be:

·          a corruption issue relating to serious corruption (which is defined as corrupt conduct that could result in a staff member being charged with an offence punishable by 12 months’ imprisonment or more) or systemic corruption (which is defined as corrupt conduct that reveals a pattern of corrupt conduct), unless

·          the corruption issue is one for which an agreement under subsection 17(1) is in force.

540.           Subsection 17(1) allows the Integrity Commissioner and the head of a law enforcement agency to enter into an agreement about what constitutes significant corruption for that agency. This amended definition will allow the Integrity Commissioner and the head of a law enforcement agency to comprehensively agree what is considered a ‘significant corruption issue’ for that agency through a section 17 agreement.

541.           Currently, the LEIC Act defines ‘significant corruption issue’ as a corruption issue that:

·          relates to corrupt conduct that constitutes serious or system corruption, or

·          is of a kind that the Integrity Commissioner and the head of an agency have agreed under section 17 is a significant corruption issue for that agency.

542.           The effect of the present arrangement is that matters that the Integrity Commissioner and the relevant agency head have not agreed are significant corruption issues for that agency under section 17 would still be classified as significant if they constitute an offence punishable by imprisonment of 12 months or more.

543.           Item 1 will amend the definition of ‘significant corruption issue’ in section 5 of the LEIC Act to clarify that a significant corruption issue is one that relates to serious or systemic corruption unless the corruption issue is one in relation to which an agreement under subsection 17(1) is in force.

544.           This will ensure that where an agency head and the Integrity Commissioner have entered into an agreement under subsection 17(1), only conduct included in that agreement will be considered to be a significant corruption issue (whether or not it could constitute an offence punishable by 12 months’ imprisonment or more). The « amendment » does not modify the obligation for an agency head to notify the Integrity Commissioner of a corruption issue or affect the Integrity Commissioner’s power to decide to investigate a corruption issue or deal with it in another way.

545.           Where there is no agreement in place between a particular agency head and the Integrity Commissioner under subsection 17(1), a significant corruption issue will remain a corruption issue punishable by imprisonment of 12 months or more, or that has systemic aspects.

Item 2 - Subsection 5(1) (subparagraph (b)(ii) of the definition of significant corruption issue )

546.           Item 2 amends subparagraph (b)(ii) of the definition of ‘significant corruption issue’ by replacing reference to a corruption issue being of a kind ‘that the Integrity Commissioner and the head of an agency have agreed under paragraph 17(1)(a)’ with reference to a corruption issue ‘agreed under subsection 17(1)’. This « amendment » simplifies the existing provisions, without altering the intent.

Item 3 - Subsection 10(1)

547.           Item 3 will amend the definition of ‘AFP staff member’ in the LEIC Act to be the Commissioner of the Australian Federal Police (AFP) and an AFP appointee as defined by section 4 of the Australian Federal Police Act 1979 (Cth) (AFP Act).

548.           The concept of ‘staff member’ in the LEIC Act is central to the Integrity Commissioner’s jurisdiction and to determining the limits of his or her functions as they relate to a particular agency. Subsection 10(1) of the LEIC Act currently defines ‘AFP staff member’ for these purposes. 

549.           The definition of AFP staff member in the LEIC Act is intended to be consistent with the concept as set out in the AFP Act. However, shortly after the LEIC Act came into force, the AFP Act was amended to introduce the term ‘AFP appointee’, as part of a range of amendments to the AFP’s professional standards provisions.

550.           As the definition of ‘AFP appointee’ is used as the basis of the professional standards provisions of the AFP Act, which include provisions for reporting and dealing with corruption issues by the AFP, it is desirable that the definition of ‘AFP staff member’ adopted by the LEIC Act is consistent with this definition.

551.           Linking the definition directly to the AFP Act will ensure consistency between the two Acts, and will maintain this consistency should the AFP Act be amended in the future.

552.           As the definition of ‘AFP appointee’ in the AFP Act does not include the AFP Commissioner, paragraph 10(1)(a) of the LEIC Act will continue to refer specifically to the AFP Commissioner. This will ensure that the Integrity Commissioner retains the ability to investigate alleged corruption issues involving the AFP Commissioner.

Item 4 - Paragraphs 10(5)(a) and (aa)

553.           Item 4 will amend paragraphs 10(5)(a) and (aa) of the LEIC Act, which defines who is a secondee to the AFP, to ensure that these provisions refer to the appropriate paragraphs in section 4 of the AFP Act.

554.           This « amendment » is consequential to the « amendment » made by Item 3.

Item 5 - Subsection 17(1)

555.           Item 5 will amend subsection 17(1) of the LEIC Act to clarify that an agreement entered into under that subsection must be in writing.

556.           The requirement for subsection 17(1) agreements to be in writing is currently contained in subsection 17(3) of the LEIC Act. Item 5 ensures that this requirement will be retained following the repeal and replacement of subsection 17(3) by Item 6.

Item 6 - Subsections 17(2) and (3)

557.           Item 6 will repeal subsections 17(2) and 17(3) and will replace them new subsections.

Subsection 17(2)

558.           Currently, subsection 17(2) allows the Integrity Commissioner and agency head to agree to vary or revoke a subsection 17(1) agreement. 

559.           In order to balance the greater flexibility that subsection 17(1) agreements afford agency heads in dealing with significant corruption issues within their agency, new subsection 17(2) will provide that the Integrity Commissioner can unilaterally revoke an agreement entered into under subsection 17(1) by written notice given to the agency head. 

560.           As subsection 17(1) agreements largely determine an agency head’s obligations under the LEIC Act, new subsection 17(2) provides that the revocation takes effect on a day specified in the notice, which must be at least 14 days after the day it is given. This will ensure that an agency head has sufficient time to put in place processes to ensure he or she continues to comply with his or her changed obligations under the LEIC Act.

Subsection 17(3)

561.           New subsection 17(3) will clarify that a subsection 17(1) agreement may set out how that agreement can be varied and other ways it may be revoked. 

562.           This will ensure that the Integrity Commissioner and agency head can continue to vary or revoke a subsection 17(1) agreement by consent. This is in addition to the Integrity Commissioner’s new power to revoke an agreement unilaterally.

Item 7 - Section 25

563.           Item 7 will repeal section 25 of the LEIC Act.

564.           Section 25 of the LEIC Act allows a person who refers a corruption issue to the Integrity Commissioner to elect to be kept informed of action taken in relation to the issue. If a person elects to be kept informed, the LEIC Act imposes a range of obligations on the Integrity Commissioner to keep that person informed. For example, the Integrity Commissioner is obliged under section 34 to advise the person of his or her decision as to how to deal with the corruption issue, except when providing that advice would prejudice a corruption investigation (subsection 34(3)).

565.           The action taken by the Integrity Commissioner in response to a referral of a corruption issue may include sensitive investigations into law enforcement agencies. The requirement to keep the referrer informed of the action taken may undermine the operational security and integrity of the investigation.

566.           Further, while the Integrity Commissioner has the option not to disclose the action taken in some circumstances (see, for example, subsection 34(3)), a decision by the Integrity Commissioner to not disclose information to the referrer as required may itself affect an investigation, by implying to the referrer than an investigation is in fact under way. 

567.           Item 7 will repeal section 25 to remove the option for a person to elect to be kept informed of the action taken in relation to a corruption issue that they have referred to the Integrity Commissioner. The Integrity Commissioner will retain the discretion to keep a person informed if appropriate in the circumstances, but will no longer have a legislated obligation to do so.

Item 8 - Before subsection 31(2)

568.           Item 8 will insert a new heading before subsection 31(2). This is intended to make the provision easier to read. It does not change the meaning of the provision.

Item 9 - After subsection 31(3)

569.           Item 9 will insert new subsections 31(3A), 31(3B) and 31(3C) into section 31 in order to ensure consistency of the Integrity Commissioner’s pre-investigatory powers when dealing with significant or non-significant corruption issues. 

570.           These new subsections will clarify that the Integrity Commissioner may request a head of a law enforcement agency to provide further information to the Integrity Commissioner to assist the Integrity Commissioner to decide how to deal with significant corruption issues under section 31.

571.           Under the LEIC Act, the head of a law enforcement agency must notify the Integrity Commissioner of all allegations that raise a corruption issue relating to that agency. As part of that notification, the agency head must indicate whether the corruption issue is a ‘significant corruption issue’, as defined in section 5 of the LEIC Act. 

572.           The LEIC Act distinguishes how the Integrity Commissioner may choose to deal with such a notification, depending on whether the corruption issue has been classed as ‘significant’ or not. Section 31 of the LEIC Act outlines how the Integrity Commissioner must deal with significant corruption issues referred by a law enforcement agency head. Section 32 outlines how the Integrity Commissioner may deal with non-significant corruption issues. 

Subsection 31(3A)

573.           Under subsection 32(3), when deciding how to deal with a non-significant corruption issue, the Integrity Commissioner may request further information from a law enforcement agency. There is no equivalent provision in section 31 allowing the Integrity Commissioner to inform him or herself of matters relevant to a decision as to how to deal with a significant corruption issue.

574.           Item 9 will insert new subsection 31(3A) to make it clear that the Integrity Commissioner may request further information from the head of a law enforcement agency to help inform the Integrity Commissioner’s decision about how to deal with a significant corruption issue notified to him or her by an agency head.

Subsection 31(3B) and (3C)

575.           Item 9 will also insert new subsection 31(3B) to clarify that the head of a law enforcement agency must comply with a request for further information under new subsection 31(3A).

576.           Item 9 will also insert new subsection 31(3C) to clarify that new subsection 31(3A) does not limit the information that the Integrity Commissioner may have regard to in making a decision about how to deal with a significant corruption issue under subsection 31(2).

Item 10 - Subsection 32(2)

577.           Item 10 will repeal subsection 32(2) and replace it with a new subsection 32(2) that requires the Integrity Commissioner, in relation to a non-significant corruption issue, to decide to:

·          deal with it in one of the ways referred to in subsection 26(1) or 29(6), or

·          take no further action.

578.           Under the LEIC Act, the head of a law enforcement agency must notify the Integrity Commissioner of all allegations that raise a corruption issue relating to that agency. As part of that notification, the agency head must indicate whether the corruption issue is a ‘significant corruption issue’, as defined in section 5 of the LEIC Act.

579.           The LEIC Act distinguishes how the Integrity Commissioner may choose to deal with such a notification, depending on whether or not the corruption issue has been classed as a significant corruption issue.

580.           Section 32 sets out how the Integrity Commissioner may choose to deal with a corruption issue referred by a law enforcement agency head that is not classified as a significant corruption issue.

581.           Currently, the Integrity Commissioner may only choose to deal with a non-significant corruption issue in a way specified by subsection 26(1) or subsection 29(6) of the LEIC Act. The Integrity Commissioner does not have the option of choosing to take no further action in relation to a non-significant corruption issue.

582.           Item 10 will expand the range of options available to the Integrity Commissioner to deal with non-significant corruption issues, so that he or she must either decide to deal with the issue in a way referred to in subsection 26(1) or subsection 29(6) of the LEIC Act, or to take no further action. 

583.           This is consistent with the options available to the Integrity Commissioner when deciding how to deal with a significant corruption issue under section 31 of the LEIC Act. 

 

Item 11 - Subsections 32(3) and 33(5)

584.           Item 11 will replace the words ‘about how to deal with a corruption issue’ in subsections 32(3) and 32(5) with a reference to ‘under subsection (2)’.

585.           This « amendment » is consequential to the amendments made by Item 10.

Item 12 - At the « end » of section 32

586.           Item 12 will insert new subsections 32(8), 32(9) and 32(10) into section 32 of the LEIC Act. These set out what steps the Integrity Commissioner must take when he or she decides to take no further action under new section 32(2), and the effect the Integrity Commissioner’s decision will have on an agency head’s obligations.

Subsection 32(8)

587.           New subsection 32(8) will set out the circumstances in which the Integrity Commissioner may decide to take no further action under subsection 32(2). 

588.           These circumstances are based on subsection 31(4), which sets out the conditions upon which the Integrity Commissioner may decide to take no further action in relation to a significant corruption issues.

589.           Under this subsection, the Integrity Commissioner will only be able to decide to take no further action under subsection 32(2) if he or she is satisfied that the corruption issue is already being or will be, investigated by another relevant agency, the conduct has been, is or will be, the subject of court proceedings, or an investigation of the corruption issue is not warranted having regard to all the circumstances.

590.           However, subsection 32(8) will not include an equivalent provision to paragraph 31(4)(b), which allows the Integrity Commissioner to decide to take no further action the referral of the allegation is frivolous or vexatious. This is because section 32 applies only to non-significant corruption issues notified to the Integrity Commissioner by a law enforcement agency head, whereas section 31 includes corruption issues referred to the Integrity Commissioner by any other person. It is highly unlikely that a law enforcement agency head would make a frivolous or vexatious allegation of corruption about his or her own agency to the Integrity Commissioner.

Subsection 32(9)

591.           New subsection 32(9) will set out what the Integrity Commissioner must do if he or she decides to take no further action under subsection 32(2). Under new subsection 32(9), if the Integrity Commission decides to take no further action, the Integrity Commissioner will have to advise the head of the law enforcement agency of that decision in writing as soon as reasonably practicable after the decision is made.

592.           This measure will ensure that a law enforcement agency head is clearly advised of the Integrity Commissioner’s decision promptly and in an auditable manner.

Subsection 32(10)

593.           New subsection 32(10) will clarify that the LEIC Act continues to apply to a law enforcement agency in relation to a corruption issue unless the Integrity Commissioner advises otherwise in the advice given to the head of that agency under new subsection 32(9) or in later written advice.

594.           The LEIC Act imposes a number of obligations on law enforcement agencies and agency heads in relation to the notification and investigation of corruption issues, and reporting about those issues, to the Integrity Commissioner.

595.           For example, where a law enforcement agency head refers a non-significant corruption issue to the Integrity Commissioner under section 19 of the LEIC Act, section 22 provides that the agency head must ensure that the agency investigates that corruption issue. Once the investigation is completed, the agency head must provide a report to the Integrity Commissioner in accordance with section 66 of the LEIC Act.

596.           Item 12 will make it clear that these obligations will continue to apply to a law enforcement agency head where the Integrity Commissioner decides to take no further action in relation to a non-significant corruption issue under new subsection 32(2), unless the Integrity Commissioner advises the agency head otherwise.

Item 13 - Section 34

597.           Item 13 will repeal section 34 of the LEIC Act and replace it with a new section that allows the Integrity Commissioner to determine whether to advise a person who referred a corruption issue under section 23 of his or her decision regarding how that corruption issue will be dealt with.

598.           This « amendment » is consequential to Item 7, which repeals section 25 (which allows a referrer to elect to be kept informed) on the basis that the Integrity Commissioner should have discretion as to whether to keep a referrer informed, given the often sensitive nature of law enforcement corruption investigations.

599.           Consistent with the repeal of section 25, Item 13 will repeal current section 34 to remove the Integrity Commissioner’s related obligations under that provision and replace it with a new section 34 to give the Integrity Commissioner discretion to advise a person:

·          of the Integrity Commissioner’s decision under section 31 in relation to the corruption issue raised by the person, and

·          any decision the Integrity Commissioner makes under section 42 relating to a reconsideration of how the corruption issue should be dealt with.

600.           This « amendment » will ensure that the Integrity Commissioner can keep a referrer informed of the Integrity Commissioner’s decision regarding how that corruption issue will be dealt with where the Integrity Commissioner considers appropriate, but will not oblige the Integrity Commissioner to do so.

 

Item 14 - Before subsection 38(1)

601.           This item will insert a new heading before subsection 38(1). 

602.           This « amendment » is intended to make section 38 easier to read. It does not affect its meaning or operation.

Item 15 - After subsection 38(2)

603.           This item will insert new subsections 38(2A), 38(2B) and 38(2C) into section 38. 

604.           Section 38 of the LEIC Act outlines how the Integrity Commissioner may deal with a corruption issue on his or her own initiative. These new subsections will clarify that the Integrity Commissioner may request further information from a head of a law enforcement agency to assist the Integrity Commissioner to decide how to deal with corruption issues under this section.

605.           The LEIC Act distinguishes how the Integrity Commissioner may choose to deal with a corruption issue, depending on how the Integrity Commissioner becomes aware of the issue. This measure will ensure the powers available to the Integrity Commissioner under section 38 are consistent with those available to him or her under section 32 (which outlines how the Integrity Commissioner may deal with non-significant corruption issues notified to him or her by the head of a law enforcement agency). It will also ensure consistency with the proposed amendments to section 31 (which outlines how the Integrity Commissioner may deal with significant corruption issues).

Subsection 38(2A)

606.           New subsection 38(2A) to make it clear that the Integrity Commissioner may request further information from the head of a law enforcement agency to help inform the Integrity Commissioner’s decision on how to deal with the corruption issue.

Subsection 38(2B) and 38(2C)

607.           New subsection 38(2B) into section 38 to clarify that the head of a law enforcement agency must comply with a request under subsection 38(2A).

608.           New subsection 38(2C) will clarify that subsection 38(2A) does not limit the information that the Integrity Commissioner may have regard to in making a decision about how to deal with a corruption issue under subsection 38(1).

Item 16 - Before subsection 38(5)

609.           This item will insert a new heading before subsection 38(1). 

610.           This « amendment » is intended to make section 38 easier to read. It does not affect its meaning or operation.

 

Item 17 - Subsection 52(3)

611.           Item 17 repeals subsection 52(3) and replaces it with a new subsection. 

612.           Section 52 of the LEIC Act outlines how the Integrity Commissioner must keep the person who referred a corruption issue informed of the progress of the investigation. 

613.           The current subsection 52(3) provides that the Integrity Commissioner must keep the person who referred a corruption issue under section 23 informed about the progress of the investigation, if the person elected to be kept informed.

614.           New subsection 52(3) gives the Integrity Commissioner discretion to keep that person (or a representative nominated by that person) informed of the progress of the investigation. This allows the Integrity Commissioner to keep a referrer (or a representative nominated by the referrer) informed where appropriate, but does not oblige him or her to do so.

615.           This « amendment » is consequential to the « amendment » made by Item 7, which removes the option for a person to elect to be kept informed of action taken in relation to a corruption issue that he or she has referred to the Integrity Commissioner.

Item 18 - Subsections 58(1), (2) and (3)

616.           Item 18 repeals subsections 58(1), 58(2) and 58(3) and replaces them with new subsections 58(1) and (2).

617.           Section 58 outlines how the Integrity Commissioner must advise a person who referred a corruption issue under section 23 of the outcome of the investigation.

618.           Current subsections 58(1) and 58(2) provide that the Integrity Commissioner must advise a person who referred a corruption issue under section 23 of the outcome of the investigation, if the person elected to be kept informed about action taken in relation to the corruption issue and unless doing so might prejudice an investigation or action taken as a result of an investigation. Current subsection 58(3) outlines how the Integrity Commissioner may advise the person of the outcome of the investigation.

Subsection 58(1)

619.           New subsection 58(1) will allow the Integrity Commissioner to advise a person (or a representative nominated by the person) of the outcome of an investigation of a corruption issue, where the person referred the corruption issue to the Integrity Commissioner under section 23.

620.           This allows the Integrity Commissioner to choose to inform a referrer (or a representative nominated by him or her) of the outcome of an investigation where appropriate, but does not oblige him or her to do so.

621.           This « amendment » is consequential to the « amendment » made by Item 7, which removes the option for a person to elect to be kept informed of action taken in relation to a corruption issue that he or she has referred to the Integrity Commissioner.

Subsection 58(2)

622.           New subsection 58(2) clarifies that one way of advising the person (or their representative) of the outcome of an investigation is to give him or her a copy of all or part of any report prepared under subsection 54(1) in relation to the investigation.

623.           Current subsection 58(3) allows the Integrity Commissioner to advise a person of the outcome of an investigation in this manner. New subsection 58(2) ensures that this option will still be available to the Integrity Commissioner following the repeal of subsection 58(3) by this item.

Item 19 - Subsection 58(6)

624.           Item 19 will repeal subsection 58(6). 

625.           Subsection 58(6) currently requires the Integrity Commissioner to advise a nominated person or nominated office holder of the outcome of an investigation into a corruption issue where:

·          a person refers a corruption issue to the Integrity Commissioner on behalf of another person, government agency or a body or association of persons, and

·          the other person, agency, body or association nominates a person or office holder to receive communications from the Integrity Commissioner.

626.           Item 19 will repeal this subsection as a consequence of the « amendment » made by Item 7, which removes the option for a person to elect to be kept informed of action taken in relation to a corruption issue that he or she has referred to the Integrity Commissioner under section 23.

627.           The Integrity Commissioner will retain discretion to advise a representative of a person who referred a corruption issue to the Integrity Commissioner of the outcome of an investigation into that corruption issue under new subsection 58(1), but will not be obliged to do so.

Item 20 - Subsection 65(2)

628.           Item 20 will repeal subsection 65(2) and replace it with a new subsection.

629.           Section 65 provides that the head of a law enforcement agency must keep a person who referred a corruption issue informed about the process of the investigation.

630.           Current subsection 65(2) provides that in circumstances where a person has referred a corruption issue to the Integrity Commissioner under section 23, and the Integrity Commissioner has referred the issue to the agency, the agency head must keep the person informed about the progress of the investigation, where the person has elected to be kept informed.

631.           New subsection 65(2) will allow the head of a law enforcement agency head to keep a person (or their representative) informed of the progress of the agency’s investigation into a corruption issue, but will not oblige him or her to do so.

632.           This « amendment » is consequential to the « amendment » made by Item 7, which removes the option for a person to elect to be kept informed of action taken in relation to a corruption issue that he or she has referred to the Integrity Commissioner under section 23.

Item 21 - Subsection 68

633.           Item 21 will repeal section 68 and replace it with a new 68.

634.           Section 68 provides that where a person referred a corruption issue to the Integrity Commissioner under section 23, and the Integrity Commissioner has referred the issue to the agency for investigation, the head of the agency must advise the person about the outcome of the investigation, if the person elected to be kept informed and unless doing so might prejudice an investigation or action taken as a result of an investigation. Section 68 also outlines how the Integrity Commissioner may advise the person of the outcome of the investigation.

Subsection 68(1)

635.           New subsection 68(1) will allow an agency head discretion to keep a person (or their representative) informed of the outcome of an investigation, but will not oblige him or her to do so.

636.           This « amendment » is consequential to the « amendment » made by Item 7, which removes the option for a person to elect to be kept informed of action taken in relation to a corruption issue that he or she has referred to the Integrity Commissioner.

Subsection 68(2)

637.           Item 21 also clarifies that one way of advising the person (or their representative) under new subsection 68(1) is to give him or her a copy of any report prepared under section 66 in relation to the investigation.

638.           Current subsection 68(2) allows the head of an agency to advise a person of the outcome of an investigation in this manner. New subsection 68(2) ensures that the option will still be available following the repeal of section 68 by this item.

Item 22 - Paragraph 89(1)(b)

639.           Item 22 will remove references to ‘taxation secrecy provision’ and ‘law enforcement secrecy provision’ from paragraph 89(1)(b).

640.           Subsection 89(1) outlines the circumstances in which a person giving evidence at a public hearing must give particular evidence in private. Current paragraph 89(1)(b) provides that a person giving evidence at a public hearing must give evidence that would breach a secrecy provision, other than (i) a taxation secrecy provision or (ii) a law enforcement secrecy provision, in private.

641.           The purpose of this provision is to ensure that evidence that would breach a secrecy provision is heard only on a ‘need to know’ basis, reflecting its sensitive nature. 

642.           Evidence that would breach a taxation secrecy provision or law enforcement secrecy provision are excluded as it cannot be compelled under any circumstances in the LEIC Act. However, the current wording of paragraph 89(1)(b) may give the impression that such evidence is to be given in public.

643.           Item 22 will repeal paragraph 89(1)(b) and replace it with a new paragraph which refers only to a ‘secrecy provision’. This will simplify the current provision and avoid any suggestion that evidence that would breach a taxation secrecy or law enforcement secrecy provision can be compelled under the LEIC Act.

Item 23 - Paragraph 117(1)(b)

644.           Item 23 fixes a minor grammatical error by removing the word ‘the’ before the word ‘force’.

Item 24 - Subsection 199(3)

645.           Item 24 will repeal subsection 199(3) to remove time limits on the secondment of officers to ACLEI.

646.           Section 199 of the LEIC Act allows the Integrity Commissioner to make an arrangement with an agency head under which the agency concerned may make its officers or employees available to assist the Integrity Commissioner to perform the Integrity Commissioner’s functions or powers.

647.           Under subsection 199(3), a person made available under this arrangement may only be engaged for a period of up to two years. This may be extended beyond two years for the sole purpose of completing a particular task or investigation begun in the initial two-year period.

648.           ACLEI has a fluctuating requirement for operational staff, which is dependent on the number of ongoing investigations and the status of those investigations. To date, ACLEI has addressed this requirement by seconding officers on a fixed-term basis under section 199 of the LEIC Act. However, ACLEI’s experience with investigations relating to entrenched corruption is that they can take multiple years to finalise. For example, ACLEI is currently involved in an investigation that is in its fourth year. 

649.           The current two-year limit in subsection 199(3) operates to exclude persons who have been seconded to ACLEI under section 199 from assisting the Integrity Commissioner in future investigations where those investigations did not commence in the initial two-year period of their secondment. 

650.           Item 24 will remove the current two-year time limit for seconding officers to ACLEI. This will enable ACLEI to second staff for as long as required to flexibly access specialist expertise and skills for a particular investigation, project or task. This « amendment » will also allow ACLEI to greater utilise secondees with specialist skills across a number of investigations.

Item 25 - Subsection 208(6)

651.           Item 25 will amend subsection 208(6) of the LEIC Act to allow the Integrity Commissioner to disclose information to a third party if satisfied that it is necessary to do so in order to protect a person’s life or physical safety.

652.           Current and former staff members of ACLEI (including the Integrity Commissioner) are prohibited from recording or divulging information that was acquired because of his or her being a staff member of ACLEI or in the course of carrying our his or her duties as a staff member of ACLEI (section 207).

653.           There are exceptions to these confidentiality requirements. In particular, under subsection 208(6) ,the Integrity Commissioner may disclose information to a person if the Integrity Commissioner is satisfied that it is necessary to do so in order to protect that person’s life or physical safety. This provision only allows the Integrity Commissioner to disclose information to the person whose life or physical safety may be in danger. It does not allow disclosure to a third party who could take preventative action to protect a person in danger.

654.           Item 25 will expand the exception in subsection 208(6) to enable the Integrity Commissioner to disclose information to appropriate third parties if the Integrity Commissioner is satisfied that it is necessary to do so in order to protect a person’s safety. The Integrity Commissioner may « use » this power, for example, to disclose information to authorities about another person’s mental health if that person is in danger of harming themselves or others.

Item 26 - Paragraph 219(4)(b)

655.           Item 26 will amend paragraph 219(4)(b) of the LEIC Act to allow the Integrity Commissioner to delegate his powers under section 97 to an SES (or acting SES) employee of ACLEI.

656.           Section 219 outlines to who the Integrity Commissioner can delegate his or her functions or powers. Subsection 219(1) provides that the Integrity Commissioner can delegate all of his or her powers to an Assistant Integrity Commissioner. Subsection 219(2) provides that the Integrity Commissioner can delegate all of his or her powers to an SES or acting SES employee of ACLEI. Subsection 219(3) subsequently outlines a range of powers which cannot be delegated to an SES or acting SES employee. The Integrity Commissioner’s power under section 97 is one of those powers.

657.           Under section 97, the Integrity Commissioner can apply to a Judge of the Federal Court for an order that a person deliver his or her passport to the Integrity Commissioner if:

·          a summons has been issued requiring a person to attend a hearing, or a person has already attended a hearing, in relation to a corruption investigation or public inquiry

·          there are reasonable grounds for suspecting that the person may be able to give evidence (or further evidence) of relevance to that investigation or inquiry, and

·          there are reasonable grounds for suspecting that the person intends to leave Australia or has in his or her possession a passport issued to him or her.

658.           This provision aims to preserve evidence of witnesses by assuring their attendance at a hearing where there is reasonable suspicion that they may leave Australia before providing evidence.

659.           By virtue of subsection 219(1) the Integrity Commissioner may delegate this power to an Assistant Integrity Commissioner. There is currently no Assistant Integrity Commissioner appointed under the LEIC Act, which may cause practical difficulties if an application must be made at short notice and the Integrity Commissioner is unavailable.

660.           Item 26 will amend paragraph 219(4)(b) to exclude the power under section 97, which will allow the Integrity Commissioner to delegate his or her power to apply for a passport surrender order to a staff member of ACLEI who is an SES or acting SES employee. 

Item 27 - Application of amendments

661.           Item 27 specifies when the amendments made by Schedule 11 apply.

662.           Item 27, sub-items 1, 3, 4, 5 and 7 will make it clear that the amendments referred to in those sub-items will only apply on or after the day the relevant amendments come into effect. 

663.           Item 27 sub-item 2 will make it clear that new subsection 17(3) will apply to agreements made under subsection 17(1) before, on or after the day that subsection commences. It is important that the new subsection 17(3) applies to agreements entered into before the subsection commences to ensure that such agreements may still be varied or revoked by agreement between the Integrity Commissioner and agency head following the repeal and replacement of current subsection 17(2).

664.           Item 27 sub-item 6 will ensure that the amendments made by Item 24 apply in relation to persons engaged by ACLEI as secondees under section 199 before, on or after the day that item commences. This will allow the Integrity Commissioner to extend existing secondments beyond the current two year threshold (with the agreement of relevant agency heads) once the amendments come into force, allowing ACLEI to retain already experienced officers for as long as required.

 

 

Schedule 12—Australian Crime Commission

665.           Schedule 12 will make a range of technical amendments to the Australian Crime Commission Act 2002 (ACC Act) to improve the efficiency and effectiveness of Australian Crime Commission (ACC) special operations and investigations.

666.           This Schedule will:

·          amend the definition of ‘eligible person’ under section 4 to specifically include a member of the staff of the ACC who is also a constable

·          clarify an examiner’s power to order the return of items produced to him or her during an examination, and

·          update several references to prescribed provisions in Schedule 1 of the ACC Act, which ensure that agencies are not compelled to provide information in contravention of certain secrecy provisions.

Australian Crime Commission Act 2002

Item 1 - Subsection 4(1) (paragraph (b) of the definition of eligible person )

667.           Item 1 will amend paragraph (b) of the definition of ‘eligible person’ to provide that it means a member of the staff of the ACC who is also a ‘constable’. ‘Constable’ is defined in the ACC Act to be a member or special member of the Australian Federal Police (AFP) or a member of the police force or police service of a State. 

668.           Under the ACC Act, only an ‘eligible person’ may apply for a search warrant. The current definition of ‘eligible person’ limits this to an examiner, or a member of the staff of the ACC who is also a member of the AFP or a State or Territory police force.  

669.           This « amendment » will broaden the definition of ‘eligible person’ to include members of staff of the ACC who are also special members of the AFP, enabling these staff members to apply for a search warrant on the basis that they are ‘constables’.  

670.           Pursuant to section 40E of the AFP Act, the AFP Commissioner may appoint suitably qualified ACC staff members as special members of the AFP, giving them access to certain police powers. An ACC staff member will usually only be appointed as a special member of the AFP if he or she is a serving State or Territory police officer, or has prior police experience and performs investigative, surveillance or related technical functions in an investigation or operation.

 

Item 2 - Subsection 20(4) (note)

671.           The « amendment » in Item 2 is consequential to the amendments in Items 3 and 4, which shift the penalty in subsection 20(6) to the foot of subsection 20(4). The note is to be repealed in accordance with contemporary legislative drafting practice, which recommends the placement of penalties immediately below the relevant offence provision. This is incompatible with retaining the note, which serves a purely explanatory purpose and has no substantive effect. 

 

Item 3 - At the « end » of subsection 20(4)

Item 4 - Subsection 20(6) (penalty)

672.           Items 3 and 4 shift the penalty in subsection 20(6) to the foot of subsection 20(4), which sets out the prohibited conduct to which the penalty applies. These amendments will make the provisions consistent with contemporary legislative drafting practice, which recommends the placement of penalties immediately below the relevant offence provision.     

Item 5 - Section 24AB (heading)

673.           Item 5 is consequential to the « amendment » in Item 6, which inserts a new provision relating to the power of an examiner to return a ‘returnable item’.   

Item 6 - After section 24AB

674.           Item 6 will insert new subsection 24ABA, which will allow an ACC examiner to return ‘returnable items’ in the course of an examination that he or she is conducting, or immediately after its conclusion. These amendments will assist in the more efficient and effective conduct of examinations, and in reducing unnecessary administrative burdens on the ACC and witnesses relating to the uncontroversial return of ‘returnable items’.

675.           A ‘returnable item’ includes documents or things produced during an examination conducted under the ACC Act. Under section 24AB, only the CEO or his or her delegate can return these items once they are no longer required. This limitation has posed administrative difficulties where it is necessary or expedient for the ACC to return the item either during an examination or before the witness leaves ACC premises, and the CEO or his or her delegate is not available. 

676.           New subsection 24ABA(1) will allow an examiner to direct that a returnable item be returned to the person who produced the item, or the owner, when it is not required (or is no longer required) for the purposes of the relevant ACC operation or investigation. The examiner may also direct the return of the item where he or she has determined that it will no longer be required once certain return conditions are satisfied (see new subsection 24ABA(2)). 

677.           Under new subsection 24ABA(1), the examiner’s power to direct the return of an item is limited to during the examination and at its conclusion. After the examination has concluded, the return of returnable items should be the responsibility of the CEO or his or her delegate and governed by section 24AB. That section requires the CEO or his or her delegate to consider whether the item is relevant to a broader range of purposes than the special operation or investigation to which the examination relates.

678.           New subsection 24ABA(2) allows the examiner to specify that his or her direction to return an item depends on certain conditions being met. The provision is intended to allow for circumstances where the examiner is satisfied that the item should be returned, but it will not be possible to do so by the time the examination concludes. For example, this could occur where the time taken to copy an item means that it cannot be returned prior to the conclusion of the examination.

679.           New subsection 24ABA(3) requires ACC staff members in possession of the item to return the item in accordance with the examiner’s direction. Subsection 24ABA(3) also requires other persons who were present at the examination and are in possession of the item to comply with the direction to return it. This is to ensure that the obligation to return the item applies to any person who legitimately has possession of it.

680.           New subsection 24ABA(4) allows the examiner or the CEO to vary or revoke a direction under subsection 24ABA(1). This provision will give both the CEO and the examiner the flexibility to adapt the examiner’s direction to any change in circumstances, such as where further analysis of the item reveals that it should not be returned immediately.

681.           These proposed amendments are not intended to affect the duty of the CEO (or his or her delegate) under section 24AB to return a returnable item.   

 

Items 7 to 11 - Schedule 1

682.           Items 7 to 11 will remove or update a number of redundant references to ‘prescribed provisions’ under Schedule 1 of the ACC Act. 

683.           The amendments will ensure that the ACC Act refers to appropriate legislation and that agencies are not compelled to provide information in contravention of the appropriate secrecy provisions. 

684.           Schedule 1 lists ‘prescribed provisions’ for the purposes of section 20 of the ACC Act. Section 20 of the ACC Act allows an examiner to require a Commonwealth agency (and, subject to section 20A, a State or Territory agency) to produce information. A Commonwealth agency may only refuse to comply with such a notice in reliance on one of the prescribed secrecy provisions listed in Schedule 1 of the Act. 

685.           Items 7 and 9 will replace the reference to section 34 of the Human Rights Commission Act 1981 with a reference to section 49 of the Australian Human Rights Commission Act 1986 , which contains the equivalent secrecy provision. 

686.           Item 8 will include references to sections 19A and 19B of the Census and Statistics Act 1905, in addition to the existing reference to section 19 of that Act. Sections 19A and 19B contain specific secrecy obligations about census information.

687.           Item 10 will replace the reference to sections 1312 to 1321 of the Social Security Act 1991 with a reference to Division 3 of Part 5 of the Social Security (Administration) Act 1999 , which contains the equivalent secrecy provision. 

688.           Items 10 and 11 will omit and reinsert a reference to section 79B of the Reserve Bank Act 1979 . These amendments are to ensure that the list of prescribed Commonwealth provisions is in alphabetical order, followed by references to other jurisdictions’ legislation.

689.           Item 11 will replace the reference to sub-regulation 283(1) of the Air Navigation Regulations with a reference to sections 53 and 60 of the Transport Safety Investigation Act 2003 , which contain the equivalent secrecy obligations. 

690.           Item 11 will also remove the reference to the Adoption of Children Ordinance 1965 of the Australian Capital Territory. This reference is unnecessary as section 20A of the ACC Act now governs the disclosure of information between State and Territory agencies and the ACC under section 20.

 

 

Item 12 - Application of amendments

691.           Item 6 will allow an examiner to issue a direction to return any returnable item in any future examination, as well as in any examination that has not been finalised when the provisions commence. This retrospective application of Item 6 is justified because new section 24ABA is a beneficial provision. It will allow the ACC to return uncontroversial documents and things more efficiently and quickly.    

 

 

Schedule 13—Proceeds of Crime—increased penalties

692.           Schedule 13 will amend Chapter 3 of the POC Act to increase penalties for failing to comply with a production order or with a notice to a financial institution in a proceeds of crime investigation. Under section 202 of the POC Act, a magistrate may issue a production order requiring a person to produce specified documents. Under section 213 of the POC Act, a prescribed officer may issue a notice to a financial institution requesting certain information or documents. Breach of either section 202 or s 213 constitutes an offence and attracts a penalty of six months imprisonment or 30 penalty units or both (under sections 211 and 218 of the POC Act respectively).

693.           The information-gathering powers in Chapter 3 of the POC Act are necessary to enable law enforcement authorities to effectively trace proceeds of crime. Strengthening the penalties imposed under sections 211 and 218 of the POC Act for non-compliance with a production order or a notice to a financial institution will help ensure that where a benefit has been granted to a person in relation to the commission of an offence, information concerning the movement of that benefit can be more efficiently obtained. Greater compliance with orders and notices issued under sections 202 and 213 will reduce the need for relevant law enforcement agencies to utilise more intrusive investigatory tools, such as search warrants, during investigations of proceeds of crime matters.

694.           The current maximum financial penalty under both section 211 and section 218 of the POC Act of 30 penalty units aligns with the financial penalty of 30 penalty units imposed under s 3ZQS of the Crimes Act for breach of a notice to produce documents relating to a serious offence issued under section 3ZQO of the Crimes Act.

695.           In order to increase the effectiveness of sections 202 and 213 of the POC Act, the penalties will be increased to align with the penalty imposed under section 63 of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) for non-compliance with a notice to produce books about the affairs of a body corporate or a registered scheme under section 30 of the ASIC Act, being a penalty of 100 penalty units or two years imprisonment or both.

696.           It is appropriate to align the penalties imposed under sections 211 and 218 of the POC Act with the penalty imposed under section 63 of the ASIC Act, as these POC Act and ASIC Act penalties are imposed for breach of obligations concerning documents that are either within the possession or control of a body corporate, that are business documents or that relate to a body corporate. The financial penalty imposed under section 3ZQS of the Crimes Act, on the other hand, applies to documents within the possession or control of a natural person in addition to documents within the possession or control of a legal person, and do not necessarily relate to the affairs of a business or body corporate.

697.           The increased financial penalties indicate the severity of the offence and may act as a deterrent.

Proceeds of Crime Act 2002

Item 1 - Subsection 211(1) (penalty)

698.           This item repeals the existing penalty under subsection 211(1) of the POC Act and inserts a new increased penalty of imprisonment for two years or 100 penalty units, or both. The reasons for this « amendment » are presented in the general outline in relation to this measure above.

Item 2 - Subsection 218(1) (penalty)

699.           This item repeals the existing penalty under subsection 218(1) of the POC Act and inserts a new penalty of imprisonment for two years or 100 penalty units, or both. The reasons for this « amendment » are presented in the general outline in relation to this measure above.

 

 

Schedule 14—Proceeds of crime—other matters

700.           Schedule 14 amends the POC Act to make a series of technical amendments which:

·          clarify that property only ceases to be the instrument or proceeds of an offence under paragraph 330(4)(e) of the POC Act if the property is successfully forfeited under an interstate forfeiture order

·          clarify that an offence under the POC Act is related to another offence if the offences form part of the same series of acts or omissions, or the physical elements of the two offences are substantially the same acts or omissions

·          ensure that only appropriately qualified persons may be appointed as ‘approved examiners’

·          ensure that a person’s appointment as an ‘approved examiner’ is subject to Ministerial oversight, and

·          clarify that the Official Trustee may represent the Commonwealth in proceedings relating to the performance of the Official Trustee’s functions under the POC Act.

701.           The purpose of these measures is to ensure that the Commonwealth can effectively target and confiscate proceeds of crime. This serves the important purposes of depriving criminals of the proceeds and benefits gained from criminal conduct and preventing the re-investment of those proceeds and benefits in further criminal activities.

Proceeds of Crime Act 2002

Part 1 Proceeds and instruments of offences

Item 1 - Paragraph 330(4)(e)

702.           Item 1 repeals paragraph 330(4)(e) and substitutes new paragraph 330(4)(e).

703.           The purpose of this « amendment » is to clarify the circumstances in which property that is the subject of a restraining order made in another State or Territory ceases to be the proceeds of an offence or an instrument of an offence for the purposes of the Act.

704.           Paragraph 330(4)(e) currently provides that property will cease to be the proceeds of an offence or an instrument of an offence for the purposes of the POC Act if an interstate restraining order or an interstate forfeiture order is satisfied in respect of the property.

705.           It is possible that the existing paragraph 330(4)(e) could be interpreted to mean that property which is the subject of an interstate restraining order no longer constitutes the proceeds of an offence or instrument of an offence when the interstate restraining order is made, regardless of whether the property is ultimately forfeited to a State or Territory. Restraining orders are preliminary orders that preserve property by restricting a person’s ability to dispose of or otherwise deal with it, pending a final confiscation or forfeiture order step in the confiscation process. As such, a finding that an interstate restraining order was sufficient to change the nature of property for the purposes of the POC Act would undermine the intended operation of paragraph 330(4)(e).  

706.           New paragraph 330(4)(e) provides that property will cease to be the proceeds of an offence or an instrument of an offence if the property is forfeited, confiscated or otherwise disposed of under a ‘corresponding law’ of a State or Territory.

707.           The provision will rely on the existing definition of corresponding law in section 338 of the POC Act, which states that a corresponding law is a law that is designated by the Proceeds of Crime Regulations 2002 (the POC Regulations) as one which corresponds to the POC Act. Regulation 4 of the POC Regulations declares the proceeds of crime laws of all States and Territories as corresponding laws. 

708.           The effect of new paragraph 330(4)(e) is to ensure that property only ceases to be the proceeds or instrument of an offence for the purposes of the POC Act if an order is made under a corresponding law that deprives a person of his or her rights to that property.

Item 2 - Application

709.           Item 2 provides that the « amendment » to paragraph 330(4)(e) made by Item 1 applies regardless of whether the forfeiture, confiscation or disposal of property under a corresponding law of a State or Territory occurs before, on or after the commencement of this Part.

710.           The purpose of this provision is to ensure that courts can effectively determine whether property has ceased to be the proceeds of an offence or the instrument of an offence for the purposes of the POC Act. In order to make this determination, courts will need to consider any forfeiture, confiscation or disposal orders, regardless of when these orders were made.

711.           The operation of this provision is partially retrospective, as the determination of whether a Commonwealth order has ceased due to forfeiture, confiscation or disposal under a corresponding law may apply to forfeiture, confiscation and disposal orders that were made prior to the commencement of the amended paragraph 330(4)(e). Ensuring this provision can operate retrospectively is necessary to ensure its effective operation. This item does not create retrospective criminal liability.

 

 

Part 2—Related offences

Division 1 - Main amendments

Proceeds of Crime Act 2002

Item 3 - Section 338 (definition of related offence )

712.           Item 3 repeals the definition of ‘related offence’ in section 338 of the POC Act and substitutes a new definition.

713.           Section 338 currently defines ‘related offence’ by providing that an offence is related to another offence if the physical elements of the two offences are substantially the same acts or omissions. This definition ensures, for example, that restraining orders continue to run where minor changes are made to the charges which have been laid against a person, or where a person is convicted of an offence other than that with which he was charged, for example, pursuant to an alternative verdict provision.

714.           Whether an offence is related to another offence affects the operation of various orders under the POC Act.

715.           For example, section 45 of the POC Act provides that a restraining order which was made on the basis of a conviction, charge or imminent charge, will cease to be in force after 28 days if the suspect is charged with an offence and the charge is withdrawn, if a suspect is acquitted of the offence or all of the offences with which he or she was charged, or if a suspect's conviction is quashed. However, paragraph 45(1)(g) provides that if the suspect is charged with a related offence, the restraining order does not cease to be in force.

716.           The definition of related offence also has implications for provisions in the POC Act that allow charges to be created over restrained property to secure payment of orders made under the POC Act. Under section 142 of the POC Act, a charge can be created over restrained property to secure the payment to the Commonwealth of a pecuniary penalty order. The restraining order must have been made in relation to the offence on which the pecuniary penalty order was based, or a related offence.

717.           Item 3 substitutes a new definition of ‘related offence,’ which provides that an offence is a related offence in relation to another offence if the physical elements of the two offences are substantially the same acts or omission, or if the physical elements of the two offences are acts or omissions in a single series.

718.           The amended definition of ‘related offence’ aims to ensure the efficient and effective operation of the POC Act where a person has engaged in ongoing criminal conduct or committed multiple crimes. A person may engage in a series of acts or omissions constituting multiple offences, each of which may be capable of sustaining a restraining order under the POC Act. Expanding the definition of ‘related offence’ will ensure that where charges are withdrawn or a person is acquitted, any orders would remain in place if the person is charged with another offence arising out of the same series of acts or omissions as the original offence. This will, in turn, ensure that a person is not able to dissipate previously restrained assets in the period between the withdrawal of charges or acquittal and the granting of a restraining order or confiscation order in relation to the related offence.

Item 4 - Application of new definition of related offence

719.           Item 4 provides that the definition of ‘related offence’, as amended by Item 3, applies in relation to restraining orders and interstate pecuniary penalty orders made on or after commencement of the « Bill » , regardless of whether the whether the physical elements of either or both of the offences concerned occurred before, on or after that commencement.

720.           This item does not affect the status of restraining orders or the registration of interstate pecuniary penalty orders that occurs prior to the commencement of Part 2 of Schedule 14.

721.           The effect of Item 4 relates only to proceedings with respect to restraining orders, or the registration of charges arising from an interstate pecuniary penalty order following the commencement of Part 2 of Schedule 14. Item 4 ensures that in these proceedings the court can appropriately consider the totality of the conduct with respect to which these orders were made, regardless of when the acts or omissions that constitute this conduct took place. While the amendments may apply retrospectively with respect to this conduct, they do not create retrospective criminal liability with respect to this conduct.

Division 2—Corresponding amendments

722.           Division 2 of Part 2 of the « Bill » makes amendments to the definition of ‘related offence’ in the Australian Federal Police Act 1979 (Cth) (the AFP Act), and the  Crimes (Superannuation Benefits) Act 1989 (Cth) (the CSB Act) and the definition of ‘related foreign serious offence’ the  Mutual Assistance in Criminal Matters Act 1987 (Cth) (the MA Act), which correspond to the changes made by Item 3 to the definition of ‘related offence’ in the POC Act as outlined above.  

Australian Federal Police Act 1979

Item 5 - Section 42

723.           Item 5 repeals the definition of ‘related offence’ in section 42 of the AFP Act and substitutes a new definition.

724.           Section 42 of the AFP Act currently defines ‘related offence’ and provides that an offence is related to another offence if the physical elements of the two offences are substantially the same acts or omissions. Item 5 substitutes a new definition of ‘related offence’ that provides an offence is a related offence in relation to another offence if the physical elements of the two offences are substantially the same acts or omission, or if the physical elements of the two offences are acts or omissions in a single series.

725.           Sections 49A and 49B of the AFP Act provide for a court to make an order to restrain property where the court is satisfied that the person against whom restraining order is sought is a member of a superannuation scheme, that this person has been or is about to be charged with an corruption offence, that the relevant offence is a corruption offence, and that, if the defendant is convicted of the corruption offence, an order may be made with respect to rights and benefits paid or payable to that person through a superannuation scheme. The purpose of sections 49A and 48B is to preserve benefits that may be subject to forfeiture upon conviction, by preventing those benefits being disposed of or consumed prior to the hearing of relevant corruption charges. Subsection 49(5) of the AFP Act provides that the court must not make a restraining order unless satisfied that the defendant will be charged with the offence, or a related corruption offence within 48 hours.

726.           The current definition of ‘related offence’ in section 42 of the AFP Act allows for a restraining order to cease despite a person being charged with another offence arising out of the same series of acts or omissions as the original offence. Item 5 expands the definition of ‘related offence’ to provide that an offence is related to another offence if the physical elements of the two offences are acts or omissions in a single series. The amended definition of ‘related offence’ aims to ensure the efficient and effective operation of the AFP Act where a person has engaged in ongoing criminal conduct or committed multiple crimes. The effect of this « amendment » will be to ensure that a restraining order will continue to prevent a person from dissipating superannuation assets, if that person is to be charged with another corruption offence arising from the same course of conduct.

727.           Sections 49A and 49B of the AFP Act are modelled on the  Proceeds of Crime Act 1987 (Cth), and the process for making restraining orders pursuant to sections 49A and B of the AFP Act corresponds to the process for making restraining orders under the POC Act. The amendments made by Item 5 ensure that the definition of ‘related offence’ in the AFP Act correspond with the definition in the POC Act, as amended by Item 3. This item ensures consistency and equity in the way that restraining orders are made and applied in Commonwealth criminal law legislation.

Item 6 - Application of new section 42

728.           Item 6 provides that the definition of ‘related offence’, as amended by Item 5, applies in relation to a restraining orders made on or after commencement of Part 2 of Schedule 14, regardless of whether the whether the physical elements of either or both of the offences concerned occurred before, on or after that commencement.

729.           This item does not affect the status of restraining orders made under sections 49A and 49B of the AFP Act prior to the commencement of Part 2 of Schedule 14. 

730.           The effect of Item 6 relates only to proceedings with respect to restraining orders made under sections 49A and B following the commencement of Part 2 of Schedule 14. Item 6 ensures that in these proceeding, a court can appropriately consider the totality of the conduct, with respect to which the restraining order was made, regardless of when the acts or omissions that constitute this conduct took place. While the amendments may apply retrospectively with respect to this conduct, they do not create retrospective criminal liability with respect to this conduct.

Crimes (Superannuation Benefits) Act 1989

Item 7 - Section 3

731.           Item 7 repeals the definition of ‘related offence’ in section 3 of the CSB Act and substitutes a new definition.

732.           Section 3 of the CSB Act currently defines ‘related offence’ and provides that an offence is related to another offence if the elements of the two offences are substantially the same acts or omissions. Item 7 substitutes a new definition of ‘related offence’ that provides an offence is a related offence in relation to another offence if the physical elements of the two offences are substantially the same acts or omission, or if the physical element of the two offences are acts or omissions in a single series.

733.           Sections 24 and 25 of the CSB Act provide for a court to make an order to restrain property where the court is satisfied that the person against whom the restraining order is sought is a member of a superannuation scheme, that this defendant has been or is about to be charged with an corruption offence, that the relevant offence is a corruption offence, and that, if the defendant is convicted of the corruption offence, an order may be made with respect to rights and benefits paid or payable to that defendant through a superannuation scheme. Subsection 25(5) of the CSB Act provides that the court must not make a restraining order unless satisfied that the defendant will be charged with the offence, or a related offence within 48 hours.

734.           The current definition of ‘related offence’ in the CSB Act allows for a restraining order to cease despite a person being charged with another offence arising out of the same series of acts or omissions as the original offence. Item 7 expands the definition of ‘related offence’ to provide that an offence is related to another offence if the physical elements of the two offences are acts or omissions in a single series. The amended definition aims to ensure the efficient and effective operation of the CSB Act where a person has engaged in ongoing criminal conduct or committed multiple crimes. Expanding the definition of ‘related offence’ to cover acts or omissions in a single series will ensure that a restraining order will continue to prevent a person from dissipating superannuation assets, if that person is to be charged with another corruption offence arising from the same course of conduct.

735.           Sections 24 and 25 of the CSB Act are modelled on the  Proceeds of Crime Act 1987  (Cth), and the process for making restraining orders pursuant to section 25 of the CSB Act corresponds to the process for making restraining orders under the POC Act. The amendments made by Item 7 ensure that the definition of ‘related offence’ in the CSB Act corresponds to the definition in the POC Act, as amended by Item 3. This item ensures consistency and equity in the way that restraining orders are made and applied in Commonwealth criminal law legislation.

Item 8 - Application of new section 3

736.           Item 8 provides that the definition of ‘related offence’ in section 3 of the CSB Act, as amended by Item 7, applies in relation to a restraining orders made on or after commencement of Part 2 of Schedule 14, regardless of whether the physical elements of either or both of the offences occurred before, on or after that commencement.

737.           This item does not affect the status of restraining orders made under sections 24 and 25 of the CSB Act prior to the commencement of Part 2 of Schedule 14. 

738.           The effect of Item 8 relates only to proceedings with respect to restraining orders made under section 24 and 25 of the CBS Act following the commencement of Part 2 of Schedule 14. Item 8 ensures that in these proceedings a court can appropriately consider the totality of the conduct, with respect to which the restraining order was made, regardless of when the acts or omissions that constitute this conduct took place. While the amendments may apply retrospectively with respect to this conduct, they do not create retrospective criminal liability with respect to this conduct.

 

Mutual Assistance in Criminal Matters Act 1987

Item 9 - Subsection 3(1) (definition of related foreign serious offence )

739.           Item 9 repeals the definition of ‘related foreign serious offence’ in subsection 3(1) of the MA Act and substitutes a new definition.

740.           Subsection 3(1) of the MA Act currently defines ‘related foreign serious offence’ and provides that a foreign serious offence ‘relates’ to another foreign serious offence if the physical elements of the two foreign serious offences are substantially the same acts or omissions. Item 9 expands this definition to provide that a foreign serious offence ‘relates’ to another foreign serious offence if the physical elements of the two offences are substantially the same acts or omissions, or the physical elements of the two offences are acts or omissions in a single series.

741.           The MA Act provides that Australian authorities can register restraining orders over property subject to a foreign pecuniary penalty order under the MA Act in response to a mutual assistance request from a foreign country. Subsection 35J(1) of the MA Act provides that if a foreign pecuniary penalty order has been made against a person in reliance on the person’s conviction, or alleged commission, of a foreign serious offence in relation to which the foreign restraining order was made, or a related foreign serious offence, and that if the foreign pecuniary penalty order has been registered under the MA Act, then the registration of the foreign restraining order or the foreign pecuniary penalty order creates a charge on the property to secure the payment of an amount to the Commonwealth.

742.           The restraint of assets located in Australian pursuant to a foreign pecuniary penalty order is analogous to the process by which proceeds of an offence or instruments of an offence are restrained under the POC Act, except that the restraining order is applied based on the reasonable suspicion or belief that a person has committed a foreign serious offence (or related foreign serious offence), rather than to an offence.

743.           The amendments made by Item 9 ensure that the definition of ‘related foreign serious offence’ in the MA Act corresponds with the definition in the POC Act, as amended by Item 3. This item ensures consistency and equity in the way that restraining orders are made and applied in Commonwealth criminal law legislation.

Item 10 - Application of new subsection 3(1)

744.           Item 10 provides that the definition of related foreign serious offence, as amended by Item 9, applies in relation to orders made pursuant to the MA Act, on or after commencement of Part 2 of Schedule 14 regardless of whether the whether the physical elements of either or both of the foreign serious offences concerned occurred before, on or after that commencement.

745.           This item does not affect the status of orders made pursuant to the MA Act prior to the commencement of Part 2 of Schedule 14.

746.           The effect of Item 10 relates only to proceedings with respect to orders made under the MA Act to secure property with respect to foreign pecuniary penalty orders following the commencement of Part 2 of Schedule 14. Item 10 ensures that in these proceedings a court can appropriately consider the totality of the conduct, with respect to which the order is made, regardless of when the acts or omissions that constitute this conduct took place. While the amendments may apply retrospectively with respect to this conduct, they do not create retrospective criminal liability with respect to this conduct.

 

Part 3—Approved examiners

Proceeds of Crime Act 2002

Item 11 -  Subsection 183(4)

747.           Item 11 repeals subsection 183(4) of the POC Act and substitutes new subsections 183(4), (5), (6) and (7).

748.           Division 1 of Part 3-1 of the POC Act provides that a responsible authority (the proceeds of crime authority that makes the application, either the AFP Commissioner or the Commonwealth Director of Public Prosecutions) may apply to an approved examiner to issue an examination notice for the examination of a person for information gathering purposes.

749.           Paragraphs 183(4)(a) and (b) of the POC Act currently define who may be appointed an ‘approved examiner’ for the purposes of giving an examination notice and conducting an examination. There are currently two categories of persons who may be appointed as approved examiners:

·          a person who holds an office, or who is included in a class of people specified in the POC Regulations (paragraph 183(4)(a), or

·          a person who is appointed by the Minister under paragraph 183(4)(b).

750.           Existing paragraph 183(4)(a) does not make it clear whether the Minister needs to take steps to appoint a person who meets the requirements of that paragraph or whether the Minister can refuse to appoint a person who meets the requirements specified in the POC Regulations if it is otherwise inappropriate to appoint that person. Further, the existing paragraphs do not provide for a process for a person to resign from the position of approved examiner, or for the Minister to revoke the appointment of an approved examiner.

751.           Item 11 repeals paragraphs 183(4)(a) and (b) and introduces new subsections 183(4) to (7) clarify the process for appointing a person an ‘approved examiner’ for the purposes of the POC Act.     

752.           New subsection 183(4) provides that an approved examiner is a person who holds an appointment under section 183. New paragraph 183(5)(a) will provide that the Minister may appoint as an approved examiner a person who:

·          holds an office, or is included in a class of people, specified in the POC Regulations (new subparagraph 183(5)(a)

·          is enrolled as a legal practitioner of the High Court, of another federal court or of the Supreme Court of a State or Territory (new subparagraph 183(5)(b)(i))

·          has been so enrolled for at least 5 years, and (new subparagraph 183(5)(b)(ii)), and

·          has indicated to the Minster that the person is willing to be appointed. (new subparagraph 183(5)(b)(iii)).

753.           New subsection 183(6) provides that an approved examiner may resign his or her appointment by giving the Minister a written resignation. This subsection also specifies that the resignation will take effect on the day it is received by the Minister, or at a later specified date.

754.            Subsection 183(7) provides that the Minister may revoke the appointment of an approved examiner. Subsection 183(7) makes it clear on the face of the legislation that the Minister may revoke the appointment of an approved examiner. Examples of the grounds on which the Minister might withdraw an appointment including misbehaviour, physical or mental incapacity, bankruptcy (including if the person applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for the benefit of his or her creditors), and engagement in employment that, in the Minister’s opinion, conflicts or may conflict with the proper performance of duties as an approved examiners.

755.           The new provisions allowing approved examiners to resign, or for the Minister to revoke an appointment are designed better align the provisions in the POC Act with provisions for the appointment of persons performing similar roles under other Commonwealth legislation, such as section 15GG of the  Crimes Act 1914 , which allows for the nomination of Administrative Appeals Tribunal members to deal with applications made by law enforcement agencies to extend a controlled operation, and subdivision B of Part 3 of the Australian Crime Commission Act 2002 , which deals with the appointment of persons to perform information gathering examinations under that Act. Both of these Acts provide processes for the Minister to terminate the appointment, or for the person to resign from their position.

 

 

Item 12 - Transitional provision for approved examiners

756.           Item 12 is a transitional provision that provides that a person who is an approved examiner under existing subsection 183(4) of the POC Act is taken to be appointed under new subsection 183(5). The purpose of this item is to preserve the effect of existing subsection 183(4) with respect to persons who were appointed as approved examiners before the commencement of Part 3 of Schedule 14 to the « Bill » and ensure that such persons do not have their status as approved examiners invalidated because their appointment does not conform to this new criteria.

757.            This item also provides that a person who was an approved examiner for the purposes of the POC Act immediately before commencement of the « Bill » may resign or have their appointment revoked by the Minister under new subsections 183(6) and 183(7). It is appropriate that these processes can be utilised by all approved examiners, and the Minister from the date of commencement.

Part 4—Official Trustee’s role

Proceeds of Crime Act 2002

Item 13 - After section 315B

758.           Item 13 inserts new section 315C into the POC Act.

759.           New section 315C provides that the Official Trustee may bring proceedings on behalf of the Commonwealth if, in the Official Trustee’s opinion, doing so will facilitate the performance of a function or duty, or the exercise of a power, of the Official Trustee under the POC Act.

760.           The Official Trustee is defined by section 338 of the POC Act as being the Official Trustee in Bankruptcy. The Official Trustee in Bankruptcy is a corporation established under the Bankruptcy Act 1966 (Cth), whose powers and functions are exercised or performed by employees of the Australian Financial Security Authority. Part 4-1 of the POC Act confers powers and duties on the Official Trustee, including to take custody and control, and otherwise deal with property that has been restrained or forfeited to the Commonwealth as a consequence of court orders given under the POC Act. 

761.           The recent decision of Official Trustee v Gale Pty Ltd ACN  [2009] NSWSC raised doubts as to whether the Official Trustee has sufficient standing to make applications to the court to ascertain and/or deal with the Commonwealth’s interest in property subject to orders made under the POC Act in some circumstances. In this case, the New South Wales Supreme Court determined that the Official Trustee was an agent for sale on behalf of the Commonwealth and, as such, did not have standing to bring court proceedings on behalf of the Commonwealth.

762.           Item 13 inserts a new section 315C, to make it clear that, in the exercise of the Official Trustee’s obligations under the POC Act, the Official Trustee may represent the Commonwealth in proceedings or bring proceedings on behalf of the Commonwealth. This item will ensure that the Official Trustee is able to bring proceedings in order to fulfil the obligations of the Official Trustee under the POC Act.

Schedule 15—State law enforcement agencies

ICAC SA measures

763.           Schedule 15 amends a number of Commonwealth Acts so as to allow the Independent Commissioner Against Corruption of South Australia (ICAC SA) the ability to access information from certain Commonwealth agencies, rely on defences for certain Commonwealth telecommunications offences and the ability to apply for certain types of search warrants. The powers provided in this « Bill » to ICAC SA are the same as those available to the Independent Commissioner Against Corruption of New South Wales, the Crime and Corruption Commission of Queensland, the Corruption and Crime Commission of Western Australia and the Integrity Commission of Tasmania. The amendments will:

·          include ICAC SA as an exempted agency under subsections 90J(6) and 90LC(5) of the Australian Postal Corporation 1989 to whom information and documents can be disclosed by current and former Australian Post employees

·          include ICAC SA as a State or Territory law enforcement agency under subsection 3ZQU(7) of the Crimes Act 1914 so that it may receive information or documents produced to or seized by the AFP

·          include ICAC as a law enforcement agency under section 85ZL of the Crimes Act so that it may access information relating to pardoned, quashed and spent convictions of individuals in accordance with section 85ZZLJ of the Crimes Act

·          include ICAC SA as a ‘law enforcement officer’ under section 473.1 of the Criminal Code Act 1995 so that it may avail itself of protections relating to the « use » of telecommunications facilities

·          include ICAC SA in the definition of ‘enforcement body’ under section 6 of the Privacy Act 1988 so that it may receive information in compliance with the Australian Privacy Principles

·          include ICAC SA as an exempted law enforcement body under subsection 27(1) of the Radiocommunications Act 1992 for the « use » of unlicensed radio telecommunications devices, certain standards for these devices and offences relating to radio emissions

·          include ICAC SA as a law enforcement officer under section 6 of the Surveillance Devices Act 2004 so that it may apply for Commonwealth surveillance device warrants, and

·          include ICAC SA as an authorised law enforcement officer under subsection 355-70(3) of the Taxation Administration Act 1953 so that it may receive information under that Act as a law enforcement agency.

 

 

Crime and Misconduct (now Corruption) Commission consequential measures

764.           Schedule 15 will also amend the Crimes Act, the Criminal Code, the Privacy Act, the Surveillance Devices Act and the Telecommunications (Interception and Access) Act to update references to the Crime and Misconduct Commission of Queensland and change them to the ‘Crime and Corruption Commission’. The amendments will also update other terms that have changed as a result of the entry into force of the Crime and Misconduct Commission « Amendment » Act 2014 (Qld) on 1 July 2014 (these terms are listed below).

765.           Similar amendments have been made to the:

·          Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) by the Crimes Legislation « Amendment » (Psychoactive Substances and Other Measures) Act 2015 , and

·          Australian Postal Corporation Act and Radiocommunications Act by the Statute Law Revision Act (No. 1) 2015 , which received the Royal Assent on 25 February 2015 (the consequential amendments reflecting the Commission’s name change will enter into force on the twenty-eighth day after the Act receives the Royal Assent).

766.           In addition, duplicate amendments to the Telecommunications (Interception and Access) Act 1979 (Cth) made by this « Bill » are replicated in the Telecommunications (Interception and Access) « Amendment » (Data Retention) « Bill » 2014 (the Data Retention « Bill » ), which is currently before the House of Representatives. Appropriate commencement provisions have been included in this « Bill » to prevent a clash if both Bills are passed, regardless of the order in which they are passed.

767.           The Crime and Misconduct Commission « Amendment » Act 2014 (Qld) entered into force on 1 July 2014 and introduced a range of significant changes to the functions, operation and governance arrangements of the Crime and Misconduct Commission (the Commission). This included renaming the ‘Misconduct’ function of the Commission and changing it to ‘Corruption’. The amendments made by this « Bill » are consequential in nature to update Commonwealth legislation consistent with the new terminology.

768.           The following terms will be replaced with the new terms indicated to ensure consistency between Queensland legislation and relevant Commonwealth legislation:

·          references to Crime and Misconduct Act 2001 (Qld) will be changed to Crime and Corruption Act 2001 (Qld)

·          references to Crime and Misconduct Commission will be changed to Crime and Corruption Commission

·          references to chairperson will be changed to chairman, and

·          references to assistant commissioner will be changed to senior executive officer.

Part 1—Main amendments

Australian Postal Corporation Act 1989

Items 1 and 2 - New paragraphs 90J(6)(ca) and 90LC(5)(ca)

769.           Items 1 and 2 will insert new paragraphs 90J(6)(ca) and 90LC(5)(ca) into the Australian Postal Corporation Act 1989 to include the Independent Commissioner Against Corruption Act 2012 (SA) as a law under which information or documents may be used or disclosed.

770.           New paragraph 90J(6)(ca) will allow current Australia Post employees to « use » or disclose information and documents to ICAC SA because it is a commission that conducts investigations or inquiries.

771.           New paragraph 90LC(5)(ca) will allow former Australia Post employees to « use » or disclose information and documents to ICAC SA because it is a commission that conducts investigations or inquiries.

Crimes Act 1914

Item 3 - Subsection 3ZQU(7)

772.           Item 3 will repeal paragraphs 3ZQU(7)(b) to (g) inclusive and replace these with new paragraphs 3ZQU(7)(b) to (h), which refer to specific bodies and organisations that are a defined as a ‘State and Territory law enforcement agency’ for the purposes of section 3ZQU. The bodies and organisations listed in this provision include the state and territory police and the State anti-corruption bodies. This differs to the current provision which includes the constituting legislation for each of these bodies and organisations. The only substantive effect of this « amendment » is to add the SA ICAC to the bodies already listed in subsection 3ZQU(7).

773.           The organisations that are a ‘State and Territory law enforcement agency’ are the New South Wales Crime Commission, the Independent Commission Against Corruption of New South Wales, the Police Integrity Commission of New South Wales, the Independent Broad-based Anti-corruption Commission of Victoria, the Crime and Corruption Commission of Queensland (updated to reflect its name change), the Corruption and Crime Commission of Western Australia and the  Independent Commissioner Against Corruption of South Australia.  In accordance with subsection 3ZQU(5) of the Crimes Act, a constable or Commonwealth officer may « use » or share things seized under Part IAA, Division 4B of the Crimes Act with these State and Territory law enforcement agencies.

Items 4, 5 and 6 - Section 85ZL

774.           Item 4 will amend the definition of law enforcement agency at paragraphs 85ZL (a) to (e) inclusive to include ‘or’ at the « end » of each paragraph. Item 6 will also amend the 85ZL (h) and (j) of the definition of law enforcement agency to include ‘or’ at the « end » of each paragraph.

775.           Item 5 will repeal the definition of law enforcement agency at paragraphs 85ZL (f) and (g) and replace with three new paragraphs, namely 85Zl (f), (fa) and (g). These paragraphs will recognise the Independent Commission Against Corruption of New South Wales (ICAC NSW), the Independent Commissioner Against Corruption of South Australia and the New South Wales Crime Commission as a ‘law enforcement agency’. Similarly these provisions also recognise similar bodies to ICAC NSW and the New South Wales Crime Commission and similar officers of ICAC SA of other States to be recognised as a ‘law enforcement agency’. Such recognition will allow these bodies and officers to access Commonwealth pardoned, quashed and spent convictions information.

776.           The effect of these amendments is to update drafting to include ICAC SA as a ‘law enforcement agency’ for the purposes of these functions under the Crimes Act, in a manner consistently with other State anti-corruption bodies. The « amendment » is also administrative in nature to remove references to the substantive legislation which establishes ICAC NSW and the New South Wales Crime Commission.

 

 

Criminal Code Act 1995

Item 7 - Section 473.1

777.           Item 7 will repeal paragraph (k) of section 473.1 of the Criminal Code and will replace it with a new paragraph (k) and insert a new paragraph (l). 

778.           New paragraph (k) will reflect the name change of Queensland’s body, the Corruption and Crime Commission of Queensland, as well as the change of name to its substantiating act, the Crime and Corruption Act 2001 (Qld).

779.           Paragraph (l) will include ICAC SA, the Deputy Commissioners, members of the staff of the Commissioner or an examiner or investigator who are identified as such under the Independent Commissioner Against Corruption Act 2012 (SA) as a ‘law enforcement officer’. This will allow defined ICAC SA ‘law enforcement officers’ to have access to protections relating to the « use » of telecommunications facilities consistently with other State anti-corruption bodies.  

Mutual Assistance in Criminal Matters Act 1987

Items 8 and 9 - Subsection 13A(6)

780.           Items 8 and 9 will remove a reference to ‘section 6 of’ from the definition of  ‘authorised officer’ and ‘enforcement agency’ as defined in subsection 13A(6). These are consequential amendments following the repeal of the following definitions contained at subsection 6(1) of the Surveillance Devices Act: ‘AFP employee’, ‘Assistant Integrity Commissioner’, ‘Australian Crime Commission’, ‘Corruption and Crime Commission’, ‘Crime and Misconduct Commission’, ‘Integrity Commissioner’, ‘New South Wales Crime Commission’, ‘Police Integrity Commission’. These are consequential amendments as a result of the inclusion of a new section 6A in the Surveillance Devices Act which provides the definition of a ‘law enforcement officer’.

Item 10 - Subsection 15CA(2)

781.           Item 10 omits ‘referred to in paragraph (a) or (c) of the definition of law enforcement officer set out in subsection 6(1)’ and substitutes it with ‘mentioned in column 3 of Item 5 or 15 of the table in subsection 6A(6) or mentioned in column 3 of Item 5 or 15 of the table in subsection 6A(7)’. These are consequential amendments as a result of the inclusion of a new section 6A in the Surveillance Devices Act which provides the definition of a law enforcement officer.

Privacy Act 1988

Items 11 and 12 - Subsection 6(1)

782.           Item 11 will amend the definition of ‘enforcement body’ to update a reference to the ‘Crime and Misconduct Commission’ to the ‘Crime and Corruption Commission’. This change reflects the name change the Commission underwent as a result of the Crime and Misconduct Commission « Amendment » Act 2014 (Qld), which entered into force on 1 July 2014. This consequential « amendment » updates the Privacy Act to reflect the new name of the Commission.

783.           Item 12 will insert ICAC SA at paragraph 6(1)(lb) so that it may receive information in compliance with the Australian Privacy Principles, consistently with the approach for other State anti-corruption bodies. 

Radiocommunications Act 1992

Item 13 - Paragraphs 27(1)(ba) to (bd)

784.           Item 13 will repeal current paragraphs 27(1)(ba) to (bd), which include the establishing legislation of each of the bodies. Item 13 will replace these paragraphs to include the bodies included in the current list, include the office of ICAC SA, and update a reference to the ‘Crime and Misconduct Commission of Queensland’ with ‘Crime and Corruption Commission of Queensland’, reflecting its name change. This item allows certain bodies and offices to be exempted for the « use » of unlicensed radio telecommunications, certain standards for these devices and offences relating to radio emissions.

Surveillance Devices Act 2004

Items 14, 16, 17, 19, 20, 23, 26 and 27 - Repeal of certain definitions under subsection 6(1)

785.           Items 14, 16, 17, 19, 20, 23, 26 and 27 will repeal the current definitions of ‘AFP employee’, ‘Assistant Integrity Commissioner’, ‘Australian Crime Commission’, ‘Corruption and Crime Commission’, ‘Crime and Misconduct Commission’, ‘Integrity Commissioner’, ‘New South Wales Crime Commission’ and ‘Police Integrity Commission’. These repeals are consequential to reflect the « amendment » of section 6A of the Surveillance Devices Act by Item 29.

 

 

Item 21 - Subsection 6(1)

786.           Item 21 inserts a definition of ‘executive level’ into subsection 6(1), being that the term has the meaning given by new subsection 6A(8). This is a consequential « amendment » to Item 29.

Item 22 - Subsection 6(1), definition of a federal law enforcement officer

787.           Item 22 omits ‘referred to in paragraph (a), (aa) or (b) in the definition of law enforcement officer’ and substitutes it with ‘mentioned in column 3 of the table in subsection 6A(6)’. These are consequential amendments as a result of the inclusion of a new section 6A in the Surveillance Devices Act which provides the definition of a law enforcement officer for the purposes of federal agencies.

Items 15, 18, 24, 25 and 29 - Repeal of certain definitions in subsection 6(1) and insertion of replacement definitions in section 6A

788.           Items 15, 18, 24 and 25 will repeal the definition of ‘appropriate authorising officer’, ‘chief officer’, ‘law enforcement agency’ and ‘law enforcement officer’ under subsection 6(1). 

789.           These definitions will be included in new section 6A inserted by Item 29.  New section 6A will organise the definitions under columns in two separate tables, one containing federal law enforcement agencies (at 6A(6)) and the other State and Territory law enforcement agencies (at 6A(7)).

790.           ICAC SA will be included at Item 35 of the table at subsection 6A(7) so that it has the ability to apply for Commonwealth surveillance device warrants, consistently with the approach taken for other State anti-corruption bodies.  

791.           The new name of the Crime and Misconduct (now Corruption) Commission of Queensland is reflected at Item 25 of the table at subsection 6A(7).

Item 28 - « Amendment » of definition of State or Territory law enforcement officer in subsection 6(1)

792.           Item 28 omits ‘referred to in paragraph (c), (d), (e), (f), (g), or (h) of the definition of law enforcement officer’ and substitutes it with ‘mentioned in column 3 of the table in subsection 6A(7)’. These are consequential amendments as a result of the inclusion of a new section 6A in the Surveillance Devices Act which provides the definition of a State or Territory law enforcement officer.

Item 30 - Savings provisions - authorisations

793.           Item 30 is a non-amending savings provision, which will ensure authorisations of ‘appropriate authorising officers’ made under existing section 6A of the Surveillance Devices Act before commencement of this « Bill » will be taken to have been made under new subsection 6A(5), as introduced by this « Bill » . Section 11B of the Acts Interpretation Act 1901 provides a definition of a non-amending provision.

 

Item 31 - Paragraph 45(5)(h)

794.           Item 31 updates a reference to the ‘ Crime and Misconduct Act 2001 of Queensland’ to reflect the name change the Act underwent as a result of the Crime and Misconduct Commission « Amendment » Act 2014 (Qld), which entered into force on 1 July 2014.

Taxation Administration Act 1953

Item 32 - after paragraph 355-70(4)(k) in Schedule 1

795.           Item 32 inserts the ICAC SA into the definition of an ‘authorised law enforcement officer’ so that it may receive taxation information relating to its investigations. This is consistent with the approach taken for other State anti-corruption bodies.

Item 33 - Application of amendments

796.           Item 33 is a non-amending application provision that will ensure the ICAC SA power inserted by Item 32 only applies to records and disclosures of information made on or after the commencement of the item, regardless of whether the information was acquired before that date.

 

Telecommunications (Interception and Access) Act 1979

Items 34-51 - Amendments to reflect the Commission’s name change

797.           Items 34-51 amend references in the Telecommunications (Interception and Access) Act 1979 to the ‘Crime and Misconduct Commission’, ‘chairperson’, the ‘ Crime and Misconduct Act 2001 ’ and ‘assistant commissioner’. These amendments reflect the name changes these terms underwent as a result of the Crime and Misconduct Commission « Amendment » Act 2014 (Qld), which entered into force on 1 July 2014.

798.           The names of the Queensland Act and the Commission are amended to reflect the replacement of the misconduct function with ‘corruption’. The chairperson title is replaced with ‘chairman’ and assistant commissioner with ‘senior executive officer’, consistent with changes made by the Crime and Misconduct Commission « Amendment » Act 2014 (Qld).

 

Part 2—Amendments contingent on the Telecommunications (Interception and Access) « Amendment » (Data Retention) Act 2015

Telecommunications (Interception and Access) Act 1979

Item 52 - Subsection 5(1), paragraph (i) of the definition of enforcement agency

799.           Item 52 amends a reference to the Queensland Crime and Misconduct Commission, reflecting its name change to the Crime and Corruption Commission as a result of the Crime and Misconduct Commission « Amendment » Act 2014 (Qld), which entered into force on 1 July 2014. This will not take effect if the Telecommunications (Interception and Access) « Amendment » (Data Retention) « Bill » 2014 does not enter into force (see the commencement provisions of this « Bill » ), because it is a duplicate « amendment » .

Item 53 - Paragraph 110A(1)(j)

800.           Item 53 amends paragraph 110A(1)(j) of the Telecommunications (Interception and Access) Act (TIA Act), which will be inserted by the Telecommunications (Interception and Access) « Amendment » (Data Retention) « Bill » 2014, removing the reference in paragraph (j) to ‘of Queensland’.

801.           This is to make that paragraph consistent with the other paragraphs in subsection 110A(1), which do not refer to the jurisdiction of the listed agencies, as well as references to the Commission throughout the rest of the TIA Act, which similarly do not include the Commission’s jurisdiction. This « amendment » will not take effect if the Data Retention « Bill » does not enter into force (see the commencement provisions of this « Bill » ), because it is a duplicate « amendment » .

 

 

Schedule 16—Controlled operations

802.           Schedule 17 amends the Crimes Act 1914 to provide minor clarifications to the operation of the controlled operations provisions in Part IAB.

803.           The measures make it clear that only the most senior officers in the Australian Federal Police may authorise certain variations to controlled operations that involve high risks to operatives. The amendments also make it clear that a significant alteration to the character of the controlled operation includes a significant alteration to the criminal offences to which the controlled operation relates.

Crimes Act 1914

Item 1 - section 15GC (before paragraph (a) of the definition of appropriate authorising officer )

804.           Item 1 inserts a new subsection into the definition of appropriate authorising officer in section 15GC.

805.           New subsection 15GC(aa) amends the definition of appropriate authorising officer to provide that in instances involving a major controlled operation conducted by the Australian Federal Police (AFP), the appropriate authorising officer is the Commissioner or a Deputy Commissioner of the AFP.

806.           Section 15GO provides that any variation of an authority to conduct a controlled operation is to be made by an appropriate authorising officer. An appropriate authorising officer may vary an authority on their own initiative under section 15GQ or through granting an application to vary in accordance subsection 15GP. A major controlled operation is defined at subsection 15GD(2), to be a controlled operation that is likely to:

a)       involve the infiltration of an organised criminal group by one or more undercover law enforcement officers for a period of more than 7 days, or

b)       continue for more than 3 months, or

c)       be directed against suspected criminal activity that includes a threat to human life.

807.           Under subsection 15GF(1) and subsection 15GI(1), a major controlled operation must be authorised by the Commissioner or Deputy Commissioner. Item 1 makes it clear on the face of the legislation that the same level of authority is required to vary an authority for a major controlled operation under subsection 15GO(1).

Item 2 - Section 15GC (paragraph (a) of the definition of appropriate authorising officer )

808.           Item 2 amends paragraph (a) of the definition of appropriate authorising officer in section 15GC to provide that if a controlled operation is not a major controlled operation conducted by the Australian Federal Police, an appropriate authorising officer would be the Commissioner, a Deputy Commissioner, or, a senior executive AFP employee who is authorised in writing by the Commissioner as an authorising officer (section 15GF (2) definition of AFP authorising officer ).

809.           This item is consequential to Item 1 (inserting subsection 15GC(aa)), which provides that if a controlled operation is a major controlled operation the Commissioner or a Deputy Commissioner of the AFP would be an appropriate authorising officer.

Item 3 - Subsection 15GO(5)

810.           Section 15GO provides that any variation of a controlled operations authority is to be by an appropriate authorising officer. An appropriate authorising officer may vary an authority on their own initiative under section 15GQ or through granting an application to vary in accordance subsection 15GP.

811.           Subsections 15GO(3)-(5) specify instances where an appropriate authorising officer must not vary an authority. In accordance with section 15GO(5), unless an authorising officer is satisfied on reasonable grounds that the variation will not authorise a significant alteration to the nature of the controlled operation, the authority cannot be varied. In these cases an application for a new controlled operation authority under section 15GH should be made. 

812.           There is currently no guidance in the legislation as to what would constitute a significant alteration.

813.           Item 3 will amend subsection 15GO(5) to make it clear that a significant alteration of the nature of the controlled operation includes a significant alteration to the criminal offences to which the controlled operation relates. It clarifies that a significant alteration would involve a modification to the nature of criminal offences, for example, if the type of offence being investigated as part of the controlled operation shifts from drug importation to money laundering, a new application would be required under section 15GH.

814.           Although law enforcement agencies currently operate on the basis that a significant alteration of the nature of