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Crimes Legislation Amendment (International Crime Cooperation and Other Measures) Bill 2016
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2016

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

crimes legislation amendment (INTERNATIONAL CRIME COOPERATION and » « other » measures) « Bill » 2016

 

 

EXPLANATORY MEMORANDUM

 

 

 

(Circulated by authority of the

Minister for Justice, the Hon Michael Keenan MP)   



 

crimes legislation amendment « Bill » 2016

general Outline

1.                   This « Bill » amends the Anti-Money Laundering « and » Counter-Terrorism Financing Act 2006 , AusCheck Act 2007 , Australian Crime Commission Act 2002 , Australian Federal Police Act 1979 , Crimes Act 1914 , Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection « and » « Other » Measures) Act 2013 , Criminal Code Act 1995 , Extradition Act 1988 , Foreign Evidence Act 1994 , International Criminal Court Act 2002 , International War Crimes Tribunals Act 1995 , Mutual Assistance in Criminal Matters Act 1987 , Surveillance Devices Act 2004 , Telecommunications Act 1997 , Telecommunications (Interception « and » Access) Act 1979 « and » War Crimes Act 1945 .

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

·          ensure Australia can effectively respond to requests from the International Criminal Court « and » international war crimes tribunals

·          enhance the provisions on proceeds of crime search warrants, clarify which foreign proceeds of crime orders can be registered in Australia « and » clarify the roles of judicial officers in domestic proceedings to produce documents or articles for a foreign country, « and » others of a minor or technical nature

·          ensure magistrates, judges « and » relevant courts have sufficient powers to make orders necessary for the conduct of extradition proceedings

·          ensure foreign evidence can be appropriately certified « and » extend the application of foreign evidence rules to proceedings in the external territories « and » the Jervis Bay Territory

·          ensure the offence of identifying a child witness or vulnerable adult complainant also extends to identifying a child complainant

·          clarify the application of the supports « and » protections for victims « and » witnesses in the Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection « and » « Other » Measures) Act 2013 to future criminal proceedings, regardless of when the alleged conduct occurred

·          address ambiguity « and » inconsistencies in the offences relating to slavery « and » slavery-like conditions, including definitions « and » cross references

·          expand the definition of debt bondage to cover the condition of a person whose « personal » services are pledged by another person as security for the « other » person’s debt

·          allow a trier of fact to take into account relevant evidence (including « personal » circumstances « and » the relationship between the alleged victim « and » alleged offender) in determining whether a person was incapable of understanding the nature « and » effect of a marriage ceremony « and » whether a person was significantly deprived of « personal » freedom

·          require the Attorney-General to report to the Parliament on the operation of the War Crimes Act 1945 only if an investigation or prosecution is commenced or carried on in the preceding financial year

·          ensure the Australian Federal Police’s alcohol « and » drug testing program « and » integrity framework is applied efficiently « and » effectively to the entire workforce « and » clarify « and » enhance processes for resignation in cases of serious misconduct or corruption

·          provide additional flexibility regarding the method « and » timing of reports about outgoing movements of physical currency, allowing travellers departing Australia to report cross-border movements of physical currency electronically

·          include the Australian Charities « and » Not-for-profits Commission (ACNC) in the existing list of designated agencies which have direct access to financial intelligence collected « and » analysed by the Australian Transaction Reports « and » Analysis Centre (AUSTRAC) (known as ‘AUSTRAC information’), enabling it to access AUSTRAC information.

·          clarify use of the Australian Crime Commission’s prescribed alternative name, « and »

·          permit the AusCheck scheme to provide for the conduct « and » coordination of background checks in relation to major national events.

3.                   The « Bill » contains 11 Schedules.

4.                   Schedule 1 will ensure that both the formal « and » informal assistance that Australia can currently provide to foreign countries can also be provided to the International Criminal Court (ICC) « and » international war crimes tribunals (IWCTs).

5.                   The International Criminal Court Act 2002 (ICC Act) implements Australia’s obligations under the Rome Statute of the ICC. In particular, it contains procedures enabling Australia to comply with requests for assistance from the ICC. The International War Crimes Tribunal Act 1995 (IWCT Act) enables Australia to provide assistance to certain IWCTs in performing their functions, including obtaining evidence, documents or « other » articles « and » arranging for a person to give evidence or assist an investigation.

6.                   Australia’s ability to provide assistance in criminal matters to the ICC « and » IWCTs is presently more limited than our ability to assist foreign countries under the Mutual Assistance in Criminal Matters Act 1987 (MA Act). The « amendments » in Schedule 1 of this « Bill » will be confined to providing assistance to the ICC « and » IWCTs for investigating « and » prosecuting offences within their jurisdiction. Further, the assistance would be subject to the same processes as currently apply to the assistance provided to foreign countries under the MA Act, « and » on an agency-to-agency basis, « and » to similar safeguards as apply to the use of these powers for foreign « and » domestic law enforcement purposes.  

7.                   Schedule 1 contains « amendments » relating to formal assistance « and » agency-to-agency assistance which Australia can provide to the ICC « and » IWCTs. It contains nine Parts.

8.                   Part 1 of Schedule 1 will streamline the process of providing lawfully obtained material (that is, material acquired by a law enforcement agency in the course of a domestic investigation, which is in their possession) to the ICC or an IWCT after authorisation by the Attorney-General.

9.                   Part 2 of Schedule 1 will clarify the roles of judicial officers under the ICC Act « and » IWCT Act in proceedings to require the production of documents or « other » articles. In particular, the « amendments » will indicate when the role is performed by a different judicial officer or the same judicial officer within a single matter.

10.               Part 3 of Schedule 1 will enable the ICC « and » IWCTs to request « and » receive stored communications subject to the Attorney-General’s authorisation « and » the normal processes for applying for a stored communication warrant for domestic purposes. This includes enabling the ICC « and » IWCTs to request preservation of those communications.

11.               Part 4 of Schedule 1 will make a range of « amendments » to allow the AFP to provide historical telecommunications data to the ICC « and » IWCTs on an agency-to-agency basis.

12.               Part 5 of Schedule 1 will make « amendments » to enable the collection « and » provision of prospective telecommunications data (telecommunications data that comes into existence during the period in which an authorisation is in force) for international law enforcement purposes, following the Attorney-General’s approval of a formal request from the ICC or an IWCT.

13.               Part 6 of Schedule 1 will make « amendments » to enable Australia to provide surveillance assistance to the ICC « and » IWCTs, in accordance with the Attorney-General’s authorisation « and » the usual domestic processes for obtaining warrants.

14.               Part 7 of Schedule 1 will make « amendments » to enable a member or special member of the AFP, or a state or territory police officer, to carry out a forensic procedure on a suspect, either with informed consent or compulsorily, at the request of the ICC or an IWCT. Part 6 will also clarify the procedures for obtaining forensic material from a volunteer on an informal basis on behalf of a request by a person investigating an offence within the jurisdiction of the ICC or an IWCT.

15.               Part 8 of Schedule 1 will make a range of « amendments » to improve the operation of the proceeds of crime provisions in the ICC Act « and » IWCT Act. This includes streamlining the authorisation process for proceeds of crime tools (monitoring orders, production orders « and » search warrants) « and » ensuring a range of investigative « and » restraint tools available for domestic purposes (or to assist in relation to an investigation or prosecution in a foreign country) are also available in respect of an investigation or prosecution at the ICC or an IWCT « and » apply appropriately in the particular foreign context. It also includes « amendments » to both Acts to enhance the processes for seeking restraining orders « and » giving effect to forfeiture orders.

16.               Part 9 of Schedule 1 will extend the cost recovery regime in the Telecommunications Act 1997 (Telecommunications Act) to enable carriers « and » carriage service providers to recover costs incurred in processing requests relating to investigations « and » prosecutions of ICC or IWCT offences. This will be consistent with the position when carriers « and » carriage service providers assist with domestic investigations « and » investigations on behalf of foreign countries.

17.               Schedule 2 will make « amendments » to the MA Act relating to the assistance that Australia can provide in response to a mutual assistance request from a foreign country in a criminal matter.

18.               These « amendments » will ensure that the provisions relating to proceeds of crime investigative tools in the MA Act align with « and » are consistent with the Proceeds of Crime Act 2002 (POC Act) provisions to which they refer, « and » that the POC Act provisions are modified appropriately for the foreign context. They also clarify the types of foreign proceeds of crime orders to which the MA Act applies « and » confirm that the MA Act applies to interim foreign proceeds of crime orders that are issued by non-judicial government bodies. They also make « other » minor or technical changes to the MA Act to facilitate its operation.

19.               Schedule 3 will make « amendments » to the Extradition Act 1988 (the Extradition Act) to ensure that magistrates « and » judges have sufficient powers to make orders necessary for the conduct of extradition proceedings.

20.               Schedule 4 will make « amendments » to the Foreign Evidence Act 1994 (FE Act) relating to the external territories « and » the Jervis Bay Territory, « and » the certification of material received from a foreign country. These « amendments » extend the application of Part 3 of the FE Act to certain criminal « and » related civil proceedings in the external territories « and » the Jervis Bay Territory.

21.               These « amendments » also ensure there is a process in the FE Act to certify material received from a foreign country in response to a mutual assistance request in terrorism-related proceedings so that the certification is prima facie evidence of the fact of such receipt, « and » will modify who can issue certificates under Part 3 of the FE Act « and » how these people are authorised to do so. They will also make consequential « amendments » to the certificate provisions in Part 4 of the FE Act regarding certificates for use in certain civil proceedings « and » proceedings to which ASIC are a party, to align all of the certificate provisions.

22.               Schedule 5 will amend section 15YR of the Crimes Act 1914 (Crimes Act) to clarify the scope of the offence of publishing any matter that identifies, or is likely to identify, vulnerable witnesses or complainants without leave of the court.

23.               The existing offence applies to the publication of matters identifying a child witness or vulnerable adult complainant. Identification of a child complainant, who is not also a witness in the proceedings, is not covered by the current offence. Prior to the commencement of the Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection « and » « Other » Measures) Act 2013 (Vulnerable Witness Act), the offence specifically referred to child complainants. That reference was inadvertently removed in adding the reference to a vulnerable adult complainant. The « amendments » will ensure that the offence covers the identification of a child complainant as well as a child witness, as was originally intended.

24.               Schedule 5 will also amend the Vulnerable Witness Act to extend the application of the supports « and » protections in Schedule 2 of that Act to proceedings commenced after the commencement of Schedule 5 of this « Bill » .

25.               Item 93 in Schedule 2 of the Vulnerable Witness Act applies the protections « and » supports in Schedule 2 to offences committed after the commencement of that Schedule. Given lengthy « and » complex investigations can mean that prosecutions may occur many years after the alleged conduct took place, this has the potential to create an overly complex system in which some witnesses are protected by certain provisions « and » some are not. Schedule 5 will remove this complexity by extending the application of those protections « and » supports to proceedings commenced the day after Schedule 5 commences, regardless of when the alleged conduct occurred.

26.               Schedule 6 will amend the Criminal Code to address ambiguity « and » inconsistencies in the offences in Division 270 relating to slavery « and » slavery-like conditions, as well as clarifying « and » expanding the operation of existing offences.

27.               The « amendments » will expand the existing definition of debt bondage in the Dictionary in the Criminal Code to specifically cover the condition of a person whose « personal » services are pledged by another person as security for the « other » person’s debt. Under the current definition, a person who pledges the services of another person under his or her control can currently be considered to be in a condition of debt bondage, but the person whose services are pledged cannot. The « amendments » will address this inconsistency.

28.               Schedule 6 will also move the offences relating to debt bondage from Subdivision C in Division 271 to Division 270. The offences in Division 271 criminalise the trafficking or harbouring of a person « and » relate to the physical movement of the victim. The offences in Division 270 covering slavery « and » slavery-like offences do not require an element of movement. For consistency, the debt bondage offences will be moved to Division 270 as they do not require an element of movement.

29.               Schedule 6 will amend existing section 270.1A in the Criminal Code to include a reference to debt bondage as a slavery-like offence. This will allow the aggravated offence « and » jurisdictional requirement provisions at existing sections 270.8 « and » 270.9 to apply to debt bondage, « and » allow existing section 271.9 « and » the references to 271.8 « and » 271.9 at existing section 271.10 to be omitted, simplifying the existing offence regime.

30.               Schedule 6 will also expand the slavery « and » slavery-like offences in relation to which relevant evidence (including « personal » circumstances « and » the relationship between the alleged victim « and » alleged offender) may be considered in determining « other » elements of « other » slavery-like offences in Subdivision C in Division 270. Alleged victims of human trafficking, slavery « and » slavery-like offences may be economically powerless, socially isolated, « and » from culturally « and » linguistically diverse backgrounds, making them particularly vulnerable to an alleged offender’s conduct. Given these particular vulnerabilities, the relevant evidence factors may be useful in determining « other » elements of Division 270 offences, including whether a person was incapable of understanding the nature « and » effect of a marriage ceremony, « and » whether a person was significantly deprived of « personal » freedom.

31.               Schedule 7 will amend section 21 the War Crimes Act 1945 to streamline the existing reporting requirements.

32.               The Attorney-General is currently required to report annually to the Parliament on the operation of the Act. Given the limited number of investigations « and » proceedings commenced under the Act, the « amendments » will change this provision to instead require the Attorney-General to report to Parliament where an investigation or proceeding is started or carried on in the preceding year.

33.               Schedule 8 amends the Australian Federal Police Act 1979 (AFP Act) to ensure the Australian Federal Police (AFP) internal alcohol « and » drug testing regime applies to the entire AFP workforce. The « amendments » allow the AFP to maintain the integrity of its workforce « and » enforce its zero-tolerance policy regarding illicit drug taking by:

·          clarifying that the alcohol « and » drug testing program applies to all AFP appointees, to cover a broader range of AFP personnel than ‘an AFP employee or a special member’

·          ensuring the AFP can keep pace with technological advances « and » industry best practice by using the most up to date standards for drug « and » alcohol testing at the time a sample is provided, « and »

·          extending the maximum length of time the AFP Commissioner is able to postpone resignation in certain cases, including where there is an ongoing investigation into the employee’s conduct.

34.               Schedule 9 will amend the AML/CTF Act to:

·          provide additional flexibility regarding the method « and » timing of reports about outgoing movements of physical currency, allowing travellers departing Australia to report cross-border movements of physical currency electronically, « and »

·          include the ACNC in the existing list of designated agencies which have direct access to financial intelligence collected « and » analysed by AUSTRAC (known as ‘AUSTRAC information’), enabling it to access AUSTRAC information.

Electronic reporting of cross-border movements of physical currency

35.               Travellers have an obligation to declare outgoing cross-border movements of currency of $10,000 or more under section 53 of the AML/CTF Act. Currently, these reports must be lodged in written form at the time « and » point of departure.

36.               AUSTRAC is now working to digitise the declaration process « and » allow travellers to declare outgoing movements of currency online before departure.

37.               Items 1 to 5 in Part 1 of Schedule 9 amend Division 2 of Part 4 of the AML/CTF Act to provide the necessary flexibility to ensure that the new digital forms can be utilised, while maintaining existing CBM-PC reporting requirements.

ACNC as a designated agency

38.               The ACNC is a permanent statutory office with responsibility for regulating the charity « and » not-for-profit sector in Australia. A key role of the ACNC is to promote transparency « and » public trust « and » confidence in the charity sector which is integral to ensuring that the sector is not misused, including for terrorism financing. To this end, the ACNC registers organisations as charities for Commonwealth purposes, which includes ensuring those organisations are not engaging in, or supporting, terrorist or « other » criminal activities, « and » provides guidance « and » advice to charities on managing risks including protecting against the risk of terrorism financing.

39.               Adding the ACNC as a designated agency in section 5 of the AML/CTF Act will enable it to access AUSTRAC information « and » ensure it is better able to protect « and » enhance public confidence in the Australian charity « and » not-for-profit sector. This will considerably enhance its capacity to make timely « and » comprehensive assessments in relation to money laundering « and » terrorism financing risks associated with charities when they register with the ACNC « and » provide accurate advice to prevent the charity sector being misused for terrorism financing. As a designated agency, the ACNC will also be able to better detect, monitor « and » halt money laundering, terrorism financing « and » « other » criminal activities involving ACNC registered entities « and » monitor ongoing compliance with regulatory requirements.

40.               Items 6 « and » 7 in Part 2 of Schedule 9 amend section 5 of the AML/CTF Act to include the ACNC in the existing list of designated agencies, enabling it to access AUSTRAC information.

41.               Schedule 10 amends the Australian Crime Commission Act 2002 to clarify use of the alternative name for the Australian Crime Commission, specified in the Australian Crime Commission Regulations 2002 .

42.               Schedule 11 will amend Parts 1 « and » 2 of the AusCheck Act 2007 (the AusCheck Act) to help enable AusCheck, a business unit within the Attorney-General’s Department (AGD), to conduct « and » coordinate background checks in relation to major national events, through a declaration by the Minister « and » enactment of associated regulations.

43.               A ‘background check’ in relation to an individual is defined in section 5 of the AusCheck Act. A background check can include an assessment of information relating to one or more of the following:

·          the individual’s criminal history

·          matters relevant to a security assessment (as defined in subsection 35(1) of the Australian Security Intelligence Organisation Act 1979 ) of the individual

·          the individual’s citizenship status, residency status or the individual’s entitlement to work in Australia, including but not limited to, whether the person is an Australian citizen, a permanent resident or an unlawful non-citizen

·          the identity of the individual.

44.               Section 8 of the AusCheck Act provides for the establishment of an AusCheck scheme, which permits regulations to be made relating to the conduct « and » coordination of background checks. The AusCheck scheme is established by the AusCheck Regulations 2007 (AusCheck Regulations).

45.               Subsection 8(1) of the AusCheck Act permits the AusCheck scheme to provide for the conduct « and » coordination of background checks of individuals, only in certain circumstances. Paragraph 8(1)(a) provides for background checks for specified purposes relating to the Aviation Transport Security Act 2004 « and » Maritime Transport « and » Offshore Facilities Security Act 2003 . Paragraph 8(1)(b) permits any « other » Act of the Commonwealth to provide expressly for a background check of an individual for purposes specified in that « other » Act. Paragraph 8(1)(c) permits regulations to be made concerning background checks in relation to Aviation « and » Maritime Security Identification Cards.

46.               Under current subsection 8(1), AusCheck is unable to conduct « and » coordinate background checks in relation to major national events unless another Act of the Commonwealth expressly permits it to do so. As a result of this, if AusCheck receives a request to conduct background checks for a large scale event of national character with security « and » « other » serious risks, it is unable to do so without an amendment to another Act. Due to the time « and » complexity involved in this process, AusCheck has been unable to assist with background checks for a number of major national events such as the G20.

47.               The proposed « amendments » in Schedule 11 will enable AusCheck to respond to requests to conduct « and » coordinate background checks in relation to designated major national events. This will allow AusCheck to further contribute to the national security « and » safety of Australia by addressing specific risks arising out of certain large scale events. For example, the « amendments » could support AusCheck’s ability to conduct « and » coordinate background checks in relation to the Gold Coast 2018 Commonwealth Games « and » thereby help to prevent a national security incident or « other » risks affecting a large number of attendees.

48.               The « amendments » provide the Minister with a power to declare a major national event by legislative instrument. They also permit regulations to be made in relation to the conduct « and » coordination of background checks for a major national event. Further detail relating to the definition of a major national event, « and » the coordination « and » conduct of background checks in relation to major national events is included in the notes on clauses.

49.               The « amendments » will form part of the legislative framework that governs AusCheck’s existing background checking activities. This is comprised of the AusCheck Act « and » the AusCheck Regulations. This framework is supported by Guidelines for Accessing Information on the AusCheck Database (AusCheck Guidelines).

50.               Using the established AusCheck scheme for these purposes will ensure that the background checks can be facilitated through established mechanisms which are well supported by technical channels « and » legal frameworks.

Safeguards

51.               The « amendments » will authorise the collection of « personal » information of individuals who undergo a background check in relation to a major national event. This is defined as ‘AusCheck scheme « personal » information’ under subsection 4(1) of the AusCheck Act. Strict legislative safeguards are in place to protect the use « and » disclosure of AusCheck scheme « personal » information under the AusCheck Act. AusCheck scheme « personal » information is also subject to the privacy protections in the Privacy Act 1988 (the Privacy Act), including the Australian Privacy Principles.

52.               The AusCheck Guidelines provide for compulsory decision-making to determine whether disclosure of AusCheck scheme « personal » information is appropriate « and » for prescribed purposes only. Under subregulation 15(2) of the AusCheck Regulations, all AusCheck staff members are required to comply with the AusCheck Guidelines. Failure to comply with the Guidelines may constitute a criminal offence under section 15 of the AusCheck Act.

53.               The AusCheck Guidelines require the public reporting of disclosures of « personal » information from the AusCheck database to recognised Commonwealth authorities « and » accredited agencies, in the AGD Annual Report. This includes the names of the authorities or agencies to which information was provided « and » the purposes, frequency « and » method of provision of access to « personal » information.

54.               Section 13 of the AusCheck Act provides that the collection, use or disclosure of « personal » information is taken to be authorised by the AusCheck Act for the purposes of the Privacy Act if it relates to background checks under the AusCheck scheme. Section 14 of the AusCheck Act provides for the retention « and » subsequent use « and » disclosure of information in an AusCheck database, « and » the purposes for which information in the database may be used or disclosed.

55.               Section 15 of the AusCheck Act makes it a criminal offence to unlawfully disclose AusCheck scheme « personal » information. An offence under this section is punishable by up to two years imprisonment.

56.               These safeguards provide a robust framework that appropriately protects the disclosure of AusCheck scheme « personal » information. The safeguards are not being modified or affected by these « amendments » , « and » will apply to information collected as part of a background check in relation to a major national event. Information provided by AusCheck to « other » agencies will also be protected by these agencies’ own privacy or secrecy obligations.

57.               Schedule 11 amends the AusCheck Act to:

·          permit the Minister to declare a ‘major national event’, having regard to various matters

·          limit the purposes for which a background check may be conducted in relation to major national events

·          enable « amendments » to the AusCheck scheme provided in the AusCheck Regulations to permit background checks of individuals in connection with their accreditation in relation to a major national event, « and »

·          make provision for regulations to be made for the purposes of conducting background checks for declared major national events.

FINANCIAL IMPACT

58.               The costs of implementing the « amendments » to the AusCheck Act (Schedule 11) will be fully cost recovered « and » so the « amendments » will have negligible financial implications.

59.               The remaining Schedules within this « Bill » have little or no financial impact on Government revenue.



ACRONYMS

ACC                                       Australian Crime Commission

ACC Act                                Australian Crime Commission Act 2002

ACNC                                    Australian Charities « and » Not-for-profits Commission

AFP                                        Australian Federal Police

AFP Act                                 Australian Federal Police Act 1979

AGD                                      Attorney - General’s Department

AML/CTF                              Anti-money laundering « and » counter-terrorism financing

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

AML/CTF Rules                    Anti-Money Laundering « and » Counter-Terrorism Financing Rules Instrument 2007 (No.1)

AUSTRAC                            Australian Transaction Reports « and » Analysis Centre

CBM-PC Report                    Cross-Border Movement - Physical Cash (AUD$10,000 or more) Report

Crimes Act                             Crimes Act 1914

Criminal Code                        Criminal Code Act 1995

Extradition Act                      Extradition Act 1988

FE Act                                    Foreign Evidence Act 1994

ICC Act                                 International Criminal Court Act 2002

ICCPR                                   International Covenant on Civil « and » Political Rights

IWCT Act                              International War Crimes Tribunal Act 1995

MA Act                                  Mutual Assistance in Criminal Matters Act 1987

POC Act                                Proceeds of Crime Act 2002

SD Act                                   Surveillance Devices Act 2004

TIA Act                                  Telecommunications (Interception « and » Access) Act 1979

War Crimes Act                     War Crimes Act 1945



STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

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

Crimes Legislation Amendment (International Crime Cooperation « and » « Other » Measures) « Bill » 2016

60.               This « Bill » 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 2011 . 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 »

61.               This « Bill » amends the following Acts:

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

·          AusCheck Act 2007

·          Australian Crime Commission Act 2002

·          Australian Federal Police Act 1979

·          Crimes Act 1914

·          Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection « and » « Other » Measures) Act 2013

·          Criminal Code Act 1995

·          Extradition Act 1988

·          Foreign Evidence Act 1994

·          International Criminal Court Act 2002

·          International War Crimes Tribunals Act 1995

·          Mutual Assistance in Criminal Matters Act 1987

·          Surveillance Devices Act 2004

·          Telecommunications Act 1997

·          Telecommunications (Interception « and » Access) Act 1979 , « and »

·          War Crimes Act 1945 .

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

·          ensure Australia can effectively respond to requests from the International Criminal Court « and » international war crimes tribunals

·          enhance the provisions on proceeds of crime search warrants, clarify which foreign proceeds of crime orders can be registered in Australia « and » clarify the roles of judicial officers in domestic proceedings to produce documents or articles for a foreign country, « and » others of a minor or technical nature

·          ensure magistrates, judges « and » relevant courts have sufficient powers to make orders necessary for the conduct of extradition proceedings

·          ensure foreign evidence can be appropriately certified « and » extend the application of foreign evidence rules to proceedings in the external territories « and » the Jervis Bay Territory

·          enhance the vulnerable witness protections in the Crimes Act

·          clarify « and » strengthen the operation of the human trafficking, slavery « and » slavery-like offences in the Criminal Code

·          streamline the reporting arrangements under the War Crimes Act 1945

·          ensure the Australian Federal Police’s alcohol « and » drug testing program « and » integrity framework is applied efficiently « and » effectively to the entire workforce « and » clarify « and » enhance processes for resignation in cases of serious misconduct or corruption

·          provide additional flexibility regarding the method « and » timing of reports about outgoing movements of physical currency, allowing travellers departing Australia to report cross-border movements of physical currency electronically

·          include the Australian Charities « and » Not-for-profits Commission (ACNC) in the existing list of designated agencies which have direct access to financial intelligence collected « and » analysed by AUSTRAC (known as ‘AUSTRAC information’), enabling it to access AUSTRAC information

·          clarify use of the Australian Crime Commission’s prescribed alternative name, « and »

·          permit the AusCheck scheme to provide for the conduct « and » coordination of background checks in relation to major national events.

63.               Further details regarding the measures in the « Bill » « and » their human rights implications are set out below.



 

Schedule 1—Assistance to international courts « and » tribunals

Outline of « amendments »

64.               The « Bill » will amend the International Criminal Court Act 2002 (ICC Act), the International War Crimes Tribunal Act 1995 (IWCT Act), the Crimes Act 1914 (Crimes Act), the Telecommunications (Interception « and » Access) Act 1979 (TIA Act), the Telecommunications Act 1997 (Telecommunications Act) « and » the S urveillance Devices Act 2004 (SD Act).

65.               The ICC Act implements Australia’s obligations under the Rome Statute of the International Criminal Court (ICC). In particular, it contains procedures enabling Australia to comply with requests for assistance from the ICC. The IWCT Act enables Australia to provide assistance to certain international war crimes tribunals (IWCTs) in performing their functions, including obtaining evidence, documents or « other » articles « and » arranging for a person to give evidence or assist an investigation.

66.               Australia’s ability to provide assistance in criminal matters to the ICC « and » IWCTs is presently more limited than our ability to assist foreign countries under the Mutual Assistance in Criminal Matters Act 1987 (MA Act). This « Bill » will ensure that both the formal « and » informal assistance which Australia can currently provide to foreign countries, can also be provided to the ICC « and » IWCTs. These « amendments » will be confined to providing assistance to the ICC « and » IWCTs for investigating « and » prosecuting offences within their jurisdiction. Further, the assistance would be subject to the same processes as currently apply to the assistance provided to foreign countries under the MA Act « and » on an agency-to-agency basis « and » to similar safeguards as apply to the use of these powers for foreign « and » domestic law enforcement purposes.  

Human rights implications

67.               This « Bill » engages the following rights:

·          Prohibition on torture « and » cruel, inhuman or degrading treatment or punishment (Article 7 of the International Covenant on Civil « and » Political Rights (ICCPR) « and » Article 16 of the Convention against Torture « and » « other » Cruel, Inhuman or Degrading Treatment or Punishment (CAT))

·          Privacy « and » reputation (Article 17 of the ICCPR), « and »

·          Prohibition on retrospective criminal laws (Article 15 of the ICCPR).

Prohibition on torture « and » cruel, inhuman or degrading treatment or punishment

68.               Article 7 of the ICCPR « and » Article 16 of the CAT prohibit conduct which may be considered cruel, inhuman or degrading treatment or punishment (‘ill treatment’) « and » can be either physical or mental. The United Nations bodies responsible for overseeing the implementation of these treaties have provided guidance on the sort of treatment that is prohibited. Examples of ill treatment include forced medical procedures. These rights are absolute « and » cannot be limited in any way. The proposed « amendments » are compatible with the ICCPR « and » the CAT « and » will not engage with these rights in any way that constitutes ill treatment.  

69.               Under the « amendments » proposed in the « Bill » , the ICC or an IWCT may request the compulsory carrying out of a forensic procedure on a person to assist in relation to an ICC or IWCT investigation or proceeding. To ensure these powers are utilised only where necessary, the forensic procedure measures in the « Bill » are supported by safeguards that align with those that apply when Australia assists foreign countries « and » when these powers are used for domestic law enforcement purposes. These safeguards include that the Attorney-General must be satisfied of certain criteria prior to authorising a constable to apply to a magistrate for an order for the carrying out of the forensic procedure. Further, before a magistrate can order the procedure be undertaken, the magistrate must determine whether the procedure is justified in all the circumstances by balancing the public interest in providing the relevant assistance against the public interest in upholding the physical integrity of the suspect, among « other » relevant considerations.

70.               There are further safeguards protecting the rights of the individual in Division 6 of Part ID of the Crimes Act. This Division regulates the carrying out of forensic procedures on suspects, serious offenders « and » volunteers « and » specifies who may carry out different forensic procedures, « and » provides procedural safeguards including the provision of reasonable privacy; videotaping the procedure; the presence of an interview friend for certain vulnerable persons; prohibiting ill treatment; « and » providing the subject of the procedure with part of the sample for his or her own analysis.

Right to protection against arbitrary « and » unlawful interferences with privacy

71.               The « Bill » engages Article 17 of the ICCPR, which states that no one shall be subjected to arbitrary or unlawful interference with their privacy, family, home or correspondence. The use of the term ‘arbitrary’ means that any interference with privacy must be in accordance with the provision’s particular circumstances. In order for an interference with the right to privacy to be permissible, the aims « and » objectives of the ICCPR « and » should be reasonable in that the interference must be authorised by law, be for a reason consistent with the ICCPR, « and » be reasonable in the particular circumstances. Any interference with privacy must be proportionate to a legitimate end « and » be necessary in the circumstances of any given case.

72.               The « amendments » in this « Bill » will align Australia’s powers to assist the ICC « and » the IWCTs covered in the IWCT Act with Australia’s powers to share information with foreign countries. The assistance would be subject to similar safeguards as those that apply to accessing such information for domestic use « and » for sharing with foreign countries. These « amendments » are all consistent with Article 17 of the ICCPR « and » do not arbitrarily interfere with a person’s right to privacy. The « amendments » are further outlined below.

·          Permit provision of lawfully obtained material to the ICC or an IWCT : « amendments » in this « Bill » will permit provision of lawfully obtained material to the ICC or an IWCT in line with the current process under the MA Act. This process is an expeditious procedure that enables lawfully obtained material to be provided to the ICC or an IWCT after authorisation by the Attorney-General, rather than requiring the material to be produced before a magistrate.

·          Enable the ICC « and » IWCTs to request « and » receive stored communications : the « amendments » in this « Bill » will enable the ICC « and » IWCTs to request « and » receive stored communications subject to Attorney-General authorisation « and » the normal process for applying for a stored communication warrant for domestic purposes under the TIA Act. Currently, Australian agencies may apply for a warrant to covertly access stored communications to assist in the investigation of domestic offences or an investigation in a foreign country. These « amendments » will provide a mechanism to enable a stored communications warrant to be obtained to assist with an ICC or IWCT investigation.

·          Allow the Australian Federal Police to provide historical telecommunications data to the ICC « and » IWCTs on an agency-to-agency basis : the « amendments » in this « Bill » will enable historical telecommunications assistance to be provided to the investigative organs within the ICC « and » IWCTs on an agency-to-agency basis, in the same way as it is currently provided to foreign countries.

·          Enable the collection « and » provision of prospective telecommunications data for international law enforcement purposes : the « amendments » in this « Bill » to the ICC, IWCT « and » the TIA Acts will enable the collection of prospective telecommunications data for foreign « and » international law enforcement purposes, following a formal request from the ICC or IWCT « and » the Attorney-General’s approval. Prospective telecommunications data is data that comes into existence during the period in which an authorisation is in force.

·          Enable the provision of surveillance assistance to the ICC « and » IWCTs : The « amendments » in this « Bill » will amend the SD Act, the ICC Act « and » the IWCT Act to enable Australia to receive « and » respond to requests relating to the use of surveillance devices in respect of an ICC or IWCT request. This will mirror the assistance that is currently available to foreign countries.

·          Enable the provision of forensic assistance to the ICC « and » IWCTs : the « amendments » in this « Bill » will amend the ICC Act, IWCT Act « and » the Crimes Act to enable the AFP, or a state or territory police officer, to carry out a forensic procedure on a suspect in relation to a foreign serious offence, either with informed consent or compulsorily, at the request of the ICC or an IWCT. The « amendments » would also clarify the procedures for obtaining forensic material from a volunteer on an informal basis on behalf of a request by a person investigating an offence within the jurisdiction of the ICC or a war crimes tribunal offence. The « amendments » extend the current regime for storage « and » disclosure of « personal » information to also apply to requests from the ICC « and » an IWCT.

·          Proceeds of crime : the « amendments » in this « Bill » will amend the proceeds of crime provisions in the ICC « and » IWCT Acts. This includes streamlining the authorisation process for proceeds of crime tools (monitoring orders, production orders « and » search warrants) « and » ensuring a range of investigative « and » restraint tools available for domestic purposes (or to assist in relation to an investigation or prosecution in a foreign country) are also available in respect of an investigation or prosecution at the ICC or an IWCT « and » apply appropriately in the particular foreign context. It also includes amending both Acts to enhance the processes for seeking restraining orders « and » giving effect to forfeiture orders.

73.               These « amendments » will ensure Australia can provide the fullest assistance to the ICC « and » IWCT in investigating « and » prosecuting the most serious of crimes « and » taking proceeds of crime action. Lawful access to these tools will be subject to existing safeguards governing the use of this material for domestic purposes « and » to foreign countries, to ensure the exercise of powers by the Attorney-General will not be arbitrary within the meaning of Article 17.

74.               The « amendments » will give the Attorney-General the discretion to authorise the provision of material lawfully obtained in Australia where the ICC or an IWCT have requested the material, provided the request relates to an investigation being conducted by the Prosecutor or a proceeding before the ICC « and » the material was lawfully obtained in Australia by, « and » is lawfully in the possession of, a law enforcement agency. The definition of ‘lawfully obtained in Australia’ will define material lawfully obtained in Australia as including both material obtained from individuals or entities by consent « and » material obtained pursuant to the exercise of a court’s coercive powers.

75.               Lawfully intercepted information or interception warrant information can only be authorised if the investigation or proceeding relates to an offence punishable by a maximum penalty of imprisonment for 7 years or more, or life imprisonment. The Attorney-General will also be able to specify in the authorisation the uses to which the material can be put by the court or tribunal, « and » give a direction to a law enforcement officer regarding how the relevant material is to be provided to the court or tribunal.

76.               Provision of stored communications information would be subject to the same processes that currently apply to providing such material to assist foreign countries, « and » would be subject to the same safeguards as apply to accessing such information for domestic use. That is, the provision of the information would be subject to the conditions set out in section 142A of the TIA Act (which will be amended to cover provision of stored communications information to the ICC « and » an IWCT).

77.               The process of disclosing historical telecommunications data would also be subject to the same safeguards as those that apply to provision of this assistance to foreign countries. The TIA Act would be amended to enable disclosure where reasonably necessary for an investigation or prosecution of a crime within the jurisdiction of the ICC or an investigation or prosecution of a War Crimes Tribunal offence, in addition to disclosure to a foreign country. An authorised officer would have to have regard to how much the privacy of any person or persons would be likely to be interfered with by the disclosure, amongst « other » factors.

78.               Approval to collect « and » provide prospective telecommunications data will reflect the current process applying to foreign countries under the MA Act, « and » will be subject to the same safeguards. New sections 78B(1) « and » 34B(1) of the ICC « and » IWCT Acts respectively will set out what the Attorney-General must consider before authorising the disclosure of prospective telecommunications data.

79.               Section 180B of the TIA Act allows an authorised officer in the Australian Federal Police to authorise the disclosure of prospective telecommunications data, if the Attorney-General has authorised an authorisation to be made. This section will be amended to allow the authorised officer to authorise disclosure to the ICC or an IWCT, subject to certain safeguards, including that the authorised officer is satisfied that the disclosure is reasonably necessary for an investigation or proceeding relating to a crime within the jurisdiction of the ICC or a War Crimes Tribunal offence, « and » the authorised officer is satisfied that the disclosure is appropriate in all the circumstances.

80.               The « amendments » will enable the Attorney-General to authorise an eligible law enforcement officer to apply for a surveillance device warrant under section 14 of the SD Act if, amongst « other » things, the Attorney-General is satisfied that appropriate undertakings have been given in relation to the use « and » destruction of information obtained as a result of the use of the surveillance device, as well as any « other » matter the Attorney-General considers relevant. This provision « and » accompanying safeguards will mirror the equivalent provision in the MA Act, section 15CA, which governs the provision of surveillance device assistance to foreign countries. The decision to issue a surveillance device warrant is a decision for an eligible judge or a nominated AAT member. The extent to which the privacy of any person is likely to be affected is one of the factors the judge or AAT member must have regard to in determining whether a surveillance device warrant should be issued.

81.               The provision of forensic assistance to the ICC or an IWCT, either through informed consent or compulsorily, will be subject to the same conditions as those that currently apply to forensic procedures domestically « and » the provision to forensic assistance to foreign countries. These ensure that suspects are fully informed about the use « and » retention of the forensic information being obtained before consenting to a forensic procedure, « and » that relevant considerations are taken into account before coercive powers are used to order the carrying out of a forensic procedure. For example, if consent is not provided « and » the ICC or an IWCT makes a request to the Attorney-General for the procedure to be carried out, the Attorney-General may authorise a constable to apply under Part ID of the Crimes Act for an order for the carrying out of a forensic procedure if the Attorney-General is satisfied, amongst « other » things, that the ICC or an IWCT have given appropriate undertakings about the retention, use « and » destruction of forensic material, or information obtained from analysing that material.  

82.               The « amendments » in this « Bill » will also enable information stored on the National Criminal Investigation DNA Database (NCIDD) to be disclosed for the purpose of assisting the ICC or IWCTs to decide whether to make a request. As with the current practice in place for foreign countries, the information to be disclosed under this paragraph is preliminary advice in the form of a ‘yes’ or ‘no’. If a match is made, this item will enable the AFP to notify the ICC or IWCT of such a match to assist the ICC or IWCT to decide whether to make a formal request for the provision of further information about the DNA profile, including information about the person to whom the profile relates.

83.               The « Bill » makes « amendments » to improve the operation of proceeds of crime provisions (including investigative « and » restraint tools) in the ICC « and » IWCT Acts. Some of these proceeds of crime tools (such as search warrants « and » monitoring orders) necessarily interfere with a person’s right to privacy « and » home. However, the investigation « and » detection of serious crime is a legitimate purpose for which an individual’s right to privacy « and » home might be impinged upon. The « amendments » are modelled on the tools contained in the MA Act regarding assistance that can be provided to foreign countries, but are appropriately modified for the context of the ICC « and » IWCTs.

84.               The right to privacy as it applies to some proceeds of crime tools has also been addressed in the discussion below under Schedule 2.

85.               To the extent that the right to privacy is affected, the interference corresponds to the need for law enforcement agencies to effectively investigate « and » prosecute crimes of the most serious nature « and » to take proceeds of crime action. The limitation is proportionate because the measures are directly linked to this aim.

Prohibition on retrospective criminal laws

86.               Article 15 of the ICCPR prohibits the retrospective operation of criminal laws, including the imposition of a heavier penalty than was applicable at the time when a criminal offence was committed. The prohibition does not generally extend to retrospective changes to « other » measures, such as procedure, provided that they do not affect the punishment to which an offender is liable.  

87.               Items 11, 60, 70, 79, 100, 139, 200 « and » 212 of the « Bill » contain application provisions for the « amendments » in Parts 1-8. These « amendments » would amend the procedural provisions of the ICC « and » IWCT Acts that relate to the provision of lawfully obtained material, the production of documents, access to stored communications, historical communications data, prospective telecommunications data, the use of surveillance devices, forensic procedures « and » proceeds of crime tools. The « amendments » will align the assistance Australia can provide to the ICC « and » IWCTs with the assistance that Australia can currently provide to foreign countries.

88.               The application provisions would apply to:

·          conduct, offences or crimes that took place

·          « property » , information or documents acquired

·          material requested

·          stored communications, or

·          documents required to be produced

prior to the commencement of the « Bill » . The effect of these application provisions is that they would apply to requests, authorisations or applications made prior to the commencement of the « Bill » .

89.               The provisions in Parts 1-8 of Schedule 1 would not criminalise or penalise conduct which was otherwise lawful prior to the « amendments » , as the provisions in these Parts are entirely procedural in nature. The commencement provisions in the « Bill » would not therefore engage the prohibition on retrospective criminal laws.

Conclusion

90.               While some of the « amendments » to Schedule 1 engage with human rights, they do so in a reasonable « and » proportionate way « and » do not operate to limit or restrict those rights. As such, this Schedule is compatible with human rights.



 

Schedule 2— « Amendments » relating to mutual assistance in criminal matters

Outline of « amendments »

91.               The MA Act provides the legislative basis for mutual assistance in Australia. Mutual assistance is the process by which countries provide formal government to government assistance in the investigation « and » prosecution of criminal offences, « and » related proceedings. Mutual assistance is a key tool in international crime cooperation « and » is used where evidence or information relating to a criminal investigation, prosecution or related proceeding is located in a foreign country.

92.               These « amendments » to the MA Act in Schedule 2 will ensure that the provisions for the proceeds of crime investigative tools in the MA Act align with, « and » are consistent with, the Proceeds of Crime Act 2002 (POC Act) provisions to which they refer, or are modified appropriately for the foreign context. The « amendments » will also clarify the types of foreign proceeds of crime orders to which the MA Act applies « and » confirm that the MA Act applies to interim foreign proceeds of crime orders that are issued by non-judicial government bodies. They will also make « other » minor or technical changes to the MA Act to facilitate its operation.

Human rights implications

93.               This « Bill » engages the following rights:

·          privacy « and » reputation (Article 17 of the ICCPR)

·          presumption of innocence (Article 14 of the ICCPR)

94.               This « Bill » does not engage the following rights for the reasons explained below:

·          prohibition on retrospective criminal laws (Article 15 of the ICCPR)

 

Privacy « and » reputation

95.               The « Bill » engages the right to protection against arbitrary « and » unlawful interferences with privacy in Article 17 of the ICCPR as some of the « amendments » to the MA Act relate to search warrants. Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with their privacy, family, home or correspondence. Part 1 of Schedule 2 of the « Bill » provides that the proceeds of crime search warrants in the MA Act align with « and » are consistent with the POC Act provisions to which they refer. The « amendments » also ensure that the MA Act appropriately adopts or modifies the POC Act provisions in a way that is suitable for the foreign context.

96.               The use of the term ‘arbitrary’ in Article 17 of the ICCPR means that any interference with privacy must be in accordance with the provisions, aims « and » objectives of the ICCPR « and » should be reasonable in the particular circumstances. In order for an interference with the right to privacy to be permissible, the interference must be authorised by law, be for a reason consistent with the ICCPR « and » be reasonable in the particular circumstances. Any interference with privacy must be proportionate to a legitimate end « and » be necessary in the circumstances of any given case.

97.               In this « Bill » , the legitimate end is ensuring Australia can provide the fullest assistance to foreign countries to investigate « and » take proceeds of crime action in relation to the most serious of crimes. Lawful access to these tools will be subject to existing safeguards governing the use of this material for domestic purposes as well as requiring the approval of the Attorney-General in the majority of cases.

98.               To the extent that the right to privacy is impinged, the interference must correspond to a ‘pressing social need’, that is, the need for law enforcement agencies to effectively investigate « and » take proceeds of crime action in relation to crimes of the most serious nature. The limitation is proportionate because the measures are directly linked to the legitimate aim being pursued.

99.               Search warrants that authorise the entry « and » search of peoples’ homes without their knowledge necessarily interfere with the right to privacy « and » home. However, the investigation « and » detection of serious crime is a legitimate purpose for which an individual’s right to privacy « and » home might be impinged upon. The « amendments » in the « Bill » that relate to search warrants are minor « and » technical in nature « and » are consistent with the right to privacy contained in Article 17 of the ICCPR. The « amendments » seek to align terms with the POC Act « and » to provide clarity to existing terms used, appropriately for the foreign context.

Presumption of innocence

100.           Article 14 of the ICCPR provides that a person has the right to be presumed innocent until found guilty according to law. The MA Act permits the Attorney-General to authorise a proceeds of crime authority to apply to register foreign restraining orders. A person’s « property » may be restrained, frozen, seized or taken into official custody or control before a finding of guilt has been made, however these « amendments » will not limit or restrict a person’s right to a presumption of innocence.

101.           The « amendments » in the « Bill » do not change the way proceeds of crime orders currently operate, they will just confirm that the MA Act applies to foreign restraining orders made by non-judicial bodies. Currently, the MA Act does not specify whether these foreign restraining orders should be issued by judicial or non-judicial bodies. In some countries, restraining orders may be issued by bodies « other » than courts, such as investigative or prosecutorial agencies.

102.           This will include action in relation to non-conviction based proceeds of crime orders; such orders are efficient « and » effective tools for restraining « and » forfeiting the proceeds of crime, especially where the identity of the person to whom the goods belong is unknown, the person has fled the jurisdiction, or where a prosecution is likely to be lengthy « and » that could prevent the timely forfeiture of criminal assets.

103.           The Attorney-General’s decision to assist a foreign country with registering a foreign restraining order will be subject to the safeguards in the MA Act, including all of the mandatory « and » discretionary grounds for refusal in section 8 of MA Act. The Attorney-General will maintain the general discretion to refuse a request to register an order where it is appropriate in all the circumstances to do so (paragraph 8(2)(g)). The Attorney-General will also have the ability to impose conditions on the provision of the assistance to the foreign country (section 9). In addition, the courts will retain the discretion to refuse to register the order if it is satisfied that it would be contrary to the interests of justice to do so (section 34A).

104.           The « amendments » will make it clear that final proceeds of crime orders (foreign forfeiture orders « and » foreign pecuniary penalty orders) must be made by a court or « other » judicial authority.

Prohibition on retrospective criminal laws

105.           Article 15 of the ICCPR prohibits the retrospective operation of criminal laws, including the imposition of a heavier penalty than was applicable at the time when a criminal offence was committed. The prohibition does not generally extend to retrospective changes to « other » measures, such as procedure, provided that they do not affect the punishment to which an offender is liable.  

106.           Items 23 « and » 28 of the « Bill » contain application provisions for the « amendments » in Part 1 « and » 2. These « amendments » would align procedural provisions of the MA Act relating to POC Act search warrants with those in the POC Act, amend procedural provisions of the MA Act relating to POC Act search warrants to provide clarity « and » amend procedural provisions of the MA Act relating to the production of documents or articles. The effect of these application provisions is that they would apply to « property » acquired, documents required to be produced or conduct that occurred prior to the commencement of the « Bill » . It would also apply to authorisations or applications for search warrant made prior to the commencement of the « Bill » .

107.           Item 40 of the « Bill » contains application provisions for items 30 to 34 of Part 3. Part 3 would amend provisions in the MA Act to align them with the POC Act. This includes increasing the penalty provision for failure to comply with a notice given to a financial institution. Part 3 would also make « amendments » to provisions of the MA Act to provide clarity.

108.           The effect of the application provisions in item 40 is that the « amendments » in Part 3 which relate to foreign forfeiture orders, foreign pecuniary penalty orders or foreign restraining orders would apply to orders made before the commencement of the « Bill » . Item 40 specifically notes that new subsection 34W(2), which inserts a defence to the offence of failing to comply with a notice given to a financial institution, applies in relation to a notice given on or after the commencement.

109.           The provisions in Part 1 « and » 2 would not criminalise or penalise conduct which was otherwise lawful prior to the « amendments » , as the provisions in both Parts are entirely procedural in nature. The commencement provisions in the « Bill » would not therefore engage the prohibition on retrospective criminal laws. The provisions in Part 3 are similarly procedural, with the exception that item 40 would insert a defence to the offence of failing to comply with a notice given to a financial institution; however that item would not operate retrospectively. These « amendments » therefore would not engage the prohibition on retrospective criminal laws.

Conclusion

110.           While the « amendments » to Schedule 2 engage with some human rights, they do so in a reasonable « and » proportionate way « and » do not operate to limit or restrict those rights. As such, Schedule 2 is compatible with human rights.

Schedule 3—Amendment of the Extradition Act 1988

Outline of « amendments »

111.           Extradition is a key international crime cooperation tool. It is the process by which one country sends a person to another country to face criminal charges or serve a sentence. The Extradition Act 1988 (Extradition Act) provides the legislative basis for extradition in Australia. Under the Extradition Act, Australia can only accept extradition requests from countries that have been declared by regulation to be ‘extradition countries’ for the purpose of the Extradition Act.

112.           The « amendments » contained in the « Bill » make « amendments » to sections 26 « and » 35 of the Extradition Act. Section 26 relates to the execution of a surrender warrant for extradition of a person from Australia to an extradition country « and » section 35 relates to the review of a magistrate’s or judge’s order in relation to extradition from Australia to New Zealand. The « amendments » to these sections clarify that where a surrender warrant has been issued for the extradition of a person on bail, the magistrate, judge or relevant court has the power to remand the person in custody to await their transfer.

Human rights implications

113.           This « Bill » engages the following rights:

·          the right to humane treatment in detention—Article 7 of the ICCPR

·          the right to freedom of movement—Article 12 of the ICCPR

·          the right to the security of the person « and » freedom from arbitrary detention—Article 9 of the ICCPR

114.           This « Bill » does not engage the following rights for the reasons explained below:

·          expulsion of aliens—Article 13 of the ICCPR

Right to humane treatment in detention

115.           The « amendments » to the Extradition Act contained in the « Bill » positively promote the right to humane treatment in detention in article 7 of the ICCPR. Currently, where a person has been released on bail « and » a surrender or temporary surrender warrant is subsequently issued, magistrates, judges or relevant courts have the power to discharge the bail recognisances « and » detain the person in the custody of a police officer to await surrender. This amendment provides clarification that where a person is on bail « and » a surrender warrant is issued the magistrate, judge or relevant court has the power to remand the person to prison to await surrender.

116.           Currently, where a surrender warrant is issued to a person on bail, paragraph 26(1)(ca) authorises a person to be taken into custody « and » before a magistrate, judge or relevant court for the discharge of bail recognisances. However, the Extradition Act does not expressly provide for a person to be committed to prison following discharge of those recognisances. It is appropriate that a person be committed to prison to await surrender, as the Extradition Act provides that the extradition country has two months from the issue of the surrender warrant to effect surrender. Correctional facilities are the only viable option for periods of custody of this duration.

117.           Without the power for a magistrate to remand a person to prison while they await their transfer, the police may need to place the person in a remand centre in the custody of a police officer. Placing a person in a remand centre for a period of up to two months is not appropriate « and » could interfere with a person’s right to humane treatment in detention, as remand centres do not have adequate facilities to hold a person for longer than a few days.

118.           The « amendments » will ensure that where a person is held in custody following the issue of a surrender warrant they are able to be held in an appropriate prison facility.

Right to freedom of movement « and » the right to the security of the person « and » freedom from arbitrary detention

119.           Given the « amendments » concern the power of a magistrate to remand a person following a surrender warrant, the right to freedom of movement (article 12 ICCPR) « and » the right to freedom from arbitrary detention (article 9 ICCPR) are engaged.

120.           The limitation on these rights is reasonable « and » necessary given the serious flight risk posed in extradition matters « and » Australia’s international obligations to secure the return of alleged offenders to face justice. Reporting « and » « other » bail conditions are not always sufficient to prevent individuals who wish to evade extradition by absconding. In extradition cases there is often an increased risk of persons absconding before they can be surrendered to the requesting foreign country. If a person who has been remanded on bail absconds during extradition proceedings, it jeopardises Australia’s ability to extradite the person which in turn would impede Australia’s treaty obligations to return a person to the requesting country. Ultimately, it can also lead to a state of impunity where a person can disappear « and » continue to evade law enforcement authorities. The validity of Australia’s process of remanding a person during extradition proceedings has been confirmed by the High Court in Vasiljković v Commonwealth [2006] HCA 40.

121.           The Extradition Act makes bail available, where there are special circumstances, to persons who have consented to extradition, have been determined eligible for surrender by a magistrate or are seeking review of the decision to surrender the person. This ensures that where circumstances justifying bail exist, the person will not be kept in prison during the extradition process. This is consistent with accepted international practice for a person to be held in administrative detention pending extradition proceedings. The Extradition Act provides that when a surrender warrant is issued, Australia has two months from the date of the warrant to transfer the person to the foreign country. This timeframe ensures that a person will not be held in custody indefinitely while awaiting transfer.

Expulsion of aliens

122.           Although the « amendments » concern the arrangements surrounding the surrender of a person to a foreign country, Article 13 of the ICCPR regarding the expulsion of aliens is not engaged as the « amendments » comply with that article. The article states:

An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law « and » shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion « and » to have his case reviewed by, « and » be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.

123.           Where a person is subject to the extradition process « and » a surrender warrant is issued in relation to the person, section 21 of the Extradition Act provides that the person may apply for a review of that order. The « amendments » in the « Bill » do not alter the ability of a person to seek a review of a decision to extradite them to a foreign country.

Conclusion

124.           While the « amendments » in schedule 3 engage with some human rights, they do so in a reasonable « and » proportionate way « and » do not operate to limit or restrict those rights. As such, Schedule 3 is compatible with human rights.

Schedule 4— « Amendments » relating to foreign evidence

Outline of « amendments »

125.           Part 3 of the Foreign Evidence Act 1994 (FE Act) provides for the use of foreign evidence in Australian criminal proceedings « and » related civil proceedings. For example, the FE Act allows for testimony obtained in a foreign country to be adduced in Australian proceedings without the witness needing to be called in certain circumstances. Part 3 of the FE Act also establishes a process for certifying that the material adduced in court was received from a foreign country in response to a mutual assistance request.

126.           The « amendments » in this « Bill » will extend the certification process to terrorism-related proceedings under Part 3A of the FE Act to provide consistency throughout the FE Act.

127.           The « amendments » will also modify who can issue certificates under Part 3 of the FE Act (Use of Foreign Material in Criminal « and » Related Civil Proceedings). Subsection 26(3) of the FE Act currently provides that the Attorney-General may delegate the issue of certificates to a Senior Executive Service employee of the Attorney-General’s Department. The « amendments » to section 26 will allow the delegation to go to a person with an appropriate level of seniority, not below the executive level, who has a close involvement in the matters to be certified. The issue of these certificates is routine « and » administrative in nature. This change to the delegation power will allow for reliability, flexibility « and » promptness while maintaining sufficient oversight.

128.           Part 4 of the FE Act covers the use of foreign material « and » records of foreign business authorities in certain civil proceedings. « Amendments » to section 35 will ensure the certification requirements in Part 4 are consistent with the requirements throughout the FE Act. These « amendments » will clarify that the Chairperson or Deputy Chairperson of the Australian « Securities » « and » Investments Commission does not need to be satisfied that the foreign material is testimony. Rather, the task of determining whether material is testimony will be a matter for the court to consider.

129.           Due to the particular drafting of section 20 of Part 3 of the FE Act, foreign evidence cannot currently be adduced in proceedings in all Australian non-self-governing territories. This is an unintended consequence arising from the drafting of section 20. The FE Act will be amended to extend the application of Part 3 of the FE Act to certain criminal « and » related civil proceedings in the external territories « and » the Jervis Bay Territory.



 

Human rights implications

130.           This « Bill » engages the following rights:

·          the right to a fair trial « and » a fair hearing—Article 14 of the ICCPR

Right to a fair trial « and » a fair hearing

131.           The « amendments » to the FE Act contained in the « Bill » positively promote the right to a fair trial. Article 14 of the ICCPR protects the right to a fair trial by providing that everyone shall be entitled to a fair trial by a competent, independent « and » impartial tribunal established by law.

132.           Extending the application of Part 3 to the external territories « and » the Jervis Bay Territory will allow foreign evidence that meets the criteria in Part 3 to be adduced in criminal « and » related civil proceedings in those territories. This amendment will ensure consistent application of these laws throughout Australia « and » its territories « and » to give parties to proceedings the opportunity to have a fair hearing. This amendment will guarantee that a party to a proceeding will not be prejudiced by not having an opportunity to adduce evidence from a foreign country.

133.           The foreign evidence will be adduced in accordance with the safeguards in the FE Act. For example, section 25 provides the court with the discretion to direct that foreign material not be adduced in criminal « and » related civil proceedings notwithstanding that the material may otherwise meet all rules of evidence relating to the adducing of evidence if justice would be better served if the foreign material were not adduced as evidence.

134.           Article 14 of the ICCPR also provides for the presumption of innocence « and » sets out minimum guarantees in criminal proceedings, including, at paragraph 3(e), that a person charged with a criminal offence shall have the right to examine, or have examined, the witnesses against him or her, « and » to obtain the attendance « and » examination of witnesses on his or her behalf under the same conditions as witnesses against him or her.  

135.           The proposed new sections 26, 27AA, « and » 35 of the FE Act engage an individual’s right to a fair trial by enabling the use of evidentiary certificates. Evidentiary certificates may be provided under these proposed new sections to establish  prima facie  evidence that material adduced in proceedings was received as the result of a request made by the Attorney-General (or his or her delegate) to a foreign government or by ASIC to a foreign business authority. Such evidentiary certificates would be signed either by the Attorney-General (or his or her delegate) or the Chairperson of ASIC or the Deputy Chairperson of ASIC.

136.           Evidentiary certificates under these proposed new sections will establish  prima facie  evidence, rather than conclusive evidence, of the matters contained within them. As such, the certificates will create a rebuttable presumption which the defendant may challenge during the court proceedings. In this way, the defendant’s right to be presumed innocent « and » to test evidence against them is preserved.  Furthermore, the certificates will be certifying routine procedural matters that go to administrative processes. The use of these certificates will also protect the public interest by not requiring confidential correspondence in criminal matters between foreign governments to be tendered in court.



 

Conclusion

137.           The « amendments » in Schedule 4 are compatible with human rights as they positively engage with human rights issues.

Schedule 5—Protecting vulnerable persons

Outline of « amendments »

138.           Schedule 5 will improve the protections in place to support vulnerable witnesses « and » victims in Commonwealth criminal proceedings, by clarifying existing provisions in the Crimes Act « and » amending the application of the Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection « and » « Other » Measures) Act 2013 (Vulnerable Witness Act).

139.           Schedule 5 will amend section 15YR of the Crimes Act to ensure that the offence of publishing any matter without leave of the court that identifies, or is likely to identify, a child witness or vulnerable adult complainant also extends to child complainants. A child complainant may or may not be involved as a witness in the proceedings, « and » as such may not be protected by the current reference to a child witness. Child complainants were previously protected under section 15YR prior to the 2013 commencement of the Vulnerable Witness Act, which extended the offence to protect vulnerable adult complainants. The omission of child complainants from section 15YR was a drafting error in the Vulnerable Witness Act, « and » Schedule 5 of this « Bill » will restore the protection of child complainants’ identities.

140.           Schedule 5 will also amend the Vulnerable Witness Act to extend the application of the supports « and » protections in Schedule 2 of that Act to proceedings commenced after the commencement of Schedule 5 of this « Bill » . Currently, the supports « and » protections available under the Vulnerable Witness Act apply only to proceedings for alleged offences committed after the commencement of that Act. To avoid an overly complex « and » potentially inequitable system in which some victims « and » witnesses have access to certain supports « and » protections while some do not, this amendment will ensure that the full suite of supports « and » protections apply to all future proceedings, regardless of when the alleged offences were committed. While these « amendments » will mean that relevant supports « and » protections may apply in proceedings for acts committed prior to the entry into force of these « amendments » , the provisions are procedural in nature « and » do not affect the elements or penalties of any offence.

Human rights implications

141.           Schedule 5 engages the following rights:

·          the right to a fair trial—Article 14 of the ICCPR, « and »

·          the right to privacy « and » reputation—Article 17 of the ICCPR.

The right to a fair trial—Article 14 of the ICCPR

142.           Article 14 of the ICCPR provides that, in the determination of any criminal charge against a person, that person shall be entitled to a fair « and » public hearing by a competent, independent « and » impartial tribunal established by law. Schedule 5 engages the right to a fair trial by limiting the public availability of certain information relating to Commonwealth criminal proceedings involving child complainants.

143.           Schedule 5 will extend the existing offence for the unauthorised publication of victim or witness names or identifying characteristics to child complainants, who may be victims of Commonwealth criminal offences relating to sexual exploitation, human trafficking, slavery or slavery-like practices such as forced marriage. As such, these « amendments » limit the right to public hearing in that they will restrict the ability of the press to publish, without judicial approval, identifying details of vulnerable victims or witnesses.

144.           However, Article 14(1) of the ICCPR provides that the press « and » the public may be excluded from all or part of a trial for reasons of morals, public order or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. Such limitations are permissible where they seek to achieve a legitimate objective, « and » are reasonable, necessary « and » proportionate to that objective.

145.           While the principle of open justice is fundamental, it is well established that the right of the public to open justice must be balanced against the right of participants in the criminal justice system to safety « and » protection from undue distress or public embarrassment. Given the particular vulnerabilities of child complainants, to ensure the protection of the interests of the private lives of the victims, it is appropriate that the court be empowered to suppress evidence that identifies, or is likely to identify, a child complainant.

146.           On this basis, Schedule 5 of the « Bill » serves the legitimate objective of protecting the privacy « and » reputation of child complainants « and » any limitation on a public hearing is reasonable, necessary « and » proportionate to achieving this objective.

The right to privacy « and » reputation—Article 17 of the ICCPR

147.           Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with their privacy, family, home « and » correspondence, « and » prohibits unlawful attacks on a person’s reputation. This right may be subject to permissible limitations, provided they are authorised by law « and » not arbitrary. In order for an interference with the right to privacy to be permissible, the interference must be authorised by law, be for a reason consistent with the provisions, aims « and » objectives of the ICCPR « and » be reasonable in the particular circumstances. 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.

148.           Schedule 5 promotes this right by ensuring the offence for the unauthorised publication of victim or witness names or identifying characteristics extends to child complainants, who may be victims of Commonwealth criminal offences relating to sexual exploitation, human trafficking, slavery or slavery-like practices such as forced marriage. This offence seeks to minimise the risk to child complainants of intimidation, additional trauma, fear for their « personal » safety or undue public embarrassment. On this basis, it is consistent with this right because it promotes the right to privacy « and » reputation of children who have allegedly been the victims of Commonwealth criminal offences.  



 

Conclusion

149.           Schedule 5 is compatible with human rights because it promotes the protection of human rights, « and » , to the extent that it may limit human rights, those limitations are reasonable, necessary « and » proportionate.

Schedule 6—Slavery-like offences « and » relevant evidence

Outline of « amendments »

150.           Schedule 6 will amend the Criminal Code Act 1995 (Criminal Code) to address ambiguity « and » inconsistencies in the offences relating to slavery « and » slavery-like practices, as well as clarify « and » expand the operation of existing provisions in Divisions 270 « and » 271.

151.           Schedule 6 will expand the definition of debt bondage to specifically cover the condition of a person whose « personal » services are pledged by another person, as security for the « other » person’s debt. Under the existing definition a person who pledges the services of another person under his or her control can be considered to be in a condition of debt bondage, but the person whose services are pledged cannot. The « amendments » will address this inconsistency.

152.           Schedule 6 will also move the debt bondage offence from Division 271 of the Criminal Code to Division 270. This will allow debt bondage to be recognised as one the slavery-like offences criminalised under Division 270, ensuring it is properly conceptualised as one of the most significant practices by which offenders attempt to exercise the powers of ownership over their victims.

153.           Schedule 6 will also expand the application of the existing relevant evidence provision in Division 270 to ensure a trier of fact can take into account relevant evidence (such as « personal » circumstances) in determining whether a person was incapable of understanding the nature « and » effect of a marriage ceremony, « and » whether a person was significantly deprived of « personal » freedom. This will allow an alleged victim’s particular vulnerabilities to be considered in determining the elements of a broader range of slavery-like offences.

Human rights implications

154.           Article 8 of the ICCPR provides that no one shall be held in slavery, servitude or forced labour. Schedule 6 includes a range of minor « amendments » to Divisions 270 « and » 271 of the Criminal Code which will ensure the effective operation of slavery « and » slavery-like offences, including servitude « and » forced labour. The « amendments » will clarify existing offences « and » procedural provisions « and » ensure Divisions 270 « and » 271 operate as intended, improving the Commonwealth’s capacity to prosecute slavery « and » slavery-like offences. As such, Schedule 6 promotes the right to freedom from slavery, servitude « and » forced labour.

Conclusion

155.           Schedule 6 is compatible with human rights because it promotes the protection of human rights « and » ensures clarity in the operation of serious criminal offences.



 

Schedule 7—Amendment of the War Crimes Act 1945

Outline of « amendments »

156.           Schedule 7 will streamline the existing reporting requirements set out in the War Crimes Act 1945 (War Crimes Act) so that the Attorney-General is only required to report to the Parliament on the operation of the Act if an investigation or prosecution is commenced or carried out in the preceding financial year.

Human rights implications

157.           The « amendments » in Schedule 7 do not specifically engage human rights. Schedule 7 does not affect the substantive provisions of the War Crimes Act, which specifically enables the prosecution of Australian citizens or residents who are known to have committed war crimes in Europe during the Second World War. The « amendments » will preserve the requirement to report on the operation of the War Crimes Act, which ensures Parliament will maintain oversight of investigations or proceedings commenced or carried on.

Conclusion

158.           Schedule 7 is compatible with human rights.

Schedule 8—Amendment of the Australian Federal Police Act 1979

Outline of « amendments »

159.           Schedule 8 amends the AFP Act to ensure the AFP internal alcohol « and » drug testing regime applies to the entire AFP workforce « and » to clarify « and » enhance processes for resignation in cases of serious misconduct or corruption.

Human rights implications

160.           The « amendments » in Schedule 8 engage the right to work « and » rights in work as they extend the AFP internal alcohol « and » drug testing regime to the entire workforce « and » change the length of time the AFP Commissioner is authorised to extend an employee’s date of resignation in certain cases, including where there is an ongoing investigation into the employee’s conduct.

161.           Schedule 8 extends the alcohol « and » drug testing provisions to the entire AFP workforce, including categories of personnel that are not currently required to comply with the legislative regime.

162.           Currently, AFP appointees who are not covered by the existing regime are generally subject to alcohol « and » drug testing under contract.

163.           It is appropriate to extend this regime to the entire workforce as testing for alcohol « and » drug use is a vital part of detecting « and » deterring illicit drug use, enforcing a zero tolerance policy « and » maintaining the integrity of the AFP.

164.           For these reasons it is reasonable that all AFP appointees are subject to statutory requirements for drug « and » alcohol testing that apply consistently across the workforce within this legislation.

165.           Schedule 8 also extends the length of time that the AFP Commissioner is authorised to extend an employee’s date of resignation in certain cases involving serious misconduct and/or allegations of corruption.

166.           The Commissioner’s power can only be used in the most serious cases of alleged « and » determined breaches—for example, cases involving serious misconduct, breach of criminal law, serious neglect of duty or allegations of corruption.

167.           The power to extend an employee’s date of resignation already exists in the AFP Act. The « amendments » extend the length of time from 90 to 180 days.

168.           It is appropriate to extend the length of time available to the Commissioner to ensure that the AFP Professional Standards is able to finalise internal investigations before an employee resigns.

169.           If an employee is able to resign before an internal investigation has been finalised by the AFP Professional Standards or the Commissioner has made a decision about termination, their record will not reflect the findings of the investigation.

170.           This is an appropriate « and » reasonable extension to better support the AFP’s integrity framework. Information about termination of employment for serious misconduct is critical to mitigate integrity « and » security risks, particularly given the breadth of government agencies that are involved in combating crime. The amendment also contributes to broader public sector resilience to the ‘insider threat’.

Conclusion

171.           Schedule 8 is compatible with human rights.

Schedule 9—Amendment of the Anti-Money Laundering « and » Counter-Terrorism Financing Act 2006

Outline of « amendments »

172.           Item 1 of Schedule 9 inserts a new subsection 53(9) of the AML/CTF Act to allow travellers departing from Australia to electronically report outgoing cross-border movements of physical currency. Travellers will continue to be able to complete a paper-form CBM-PC Report. The AML/CTF Rules will prescribe the relevant electronic system for giving outgoing currency reports. This amendment will also require persons carrying physical currency out of Australia on consignment, who wish to lodge an electronic report, do so via the system prescribed in the AML/CTF Rules.

173.           Item 2 of Schedule 9 inserts a new subsection 54(1)(aa) of the AML/CTF Act to establish a rule-making power for prescribing the timing for lodging CBM-PCs electronically. This power will allow the AUSTRAC CEO to make a rule specifying the period during which a CBM-PC can be lodged electronically. Subsection 54(1)(aa) also stipulates a statutory limit for lodging an electronic CBM-PC, which is the time worked out under section 54(3). However, persons carrying physical currency out of Australia on consignment will continue to be subject to the relevant timing rule contained in subsection 54(1)(c).

174.           Item 3 of Schedule 9 amends subsection 54(1)(b) to ensure that the applicable timing rule for lodging electronic outgoing currency reports is determined using the process described in the new subsection 54(1)(aa).

175.           Item 4 of Schedule 9 amends subsection 54(3) to ensure that the prescribed period for lodging an electronic outgoing CBM-PC report is no later than that required to lodge a paper-form CBM-PC Report.

176.           Item 5 of Schedule 9 clarifies that the « amendments » made by Schedule 9 in relation to cross-border movements of physical currency apply in relation to a movement of physical currency out of Australia after the commencement of the Schedule.

177.           Item 6 of Schedule 9 inserts a new subsection 5(gf) of the AML/CTF Act to include the ACNC in the existing list of designated agencies, enabling it to access AUSTRAC information.

178.           Item 7(1) of Schedule 9 clarifies that the amendment allows officers of the ACNC to disclose « and » access AUSTRAC information in accordance with the obligations of a designated agency after commencement of the Schedule, regardless of whether the information was obtained before, on or after commencement. Item 7(2) also notes that if AUSTRAC information is disclosed under the Act to an official of the ACNC before the amendment commences, the information is taken to have been disclosed to an official of a designated agency.

Human rights implications

179.           Schedule 9 of the « Bill » engages the right to privacy « and » reputation under Article 17 of the ICCPR. Article 17 of the ICCPR prohibits unlawful « and » arbitrary interference with a person’s privacy, family, correspondence or home. It also prohibits arbitrary attacks on a person’s reputation.

180.           Collecting, using, storing, disclosing or publishing « personal » information without a person’s consent amounts to an interference with privacy. However, the right to privacy may be subject to permissible limitations which are provided by law « and » are not arbitrary. In order for limitations not to be arbitrary, they must seek to achieve a legitimate objective « and » be reasonable, necessary « and » proportionate to achieving that objective.

181.           To the extent that the measures in Schedule 9 of the « Bill » limit the rights protected under Article 17 of the ICCPR, these limitations are not arbitrary, « and » are reasonable, necessary « and » proportionate to the achievement of legitimate objectives by strengthening Australia’s anti-money laundering « and » counter-terrorism financing framework.

182.           Schedule 9 of the « Bill » interacts with the right to privacy « and » reputation in a number of ways, each of which are considered in further detail below.

Electronic reporting of cross-border movements of physical currency

183.           Currently, all travellers departing from Australia must provide a CBM-PC report in-person when carrying $10,000 or more in cash or foreign currency equivalent out of Australia. The AML/CTF Rules stipulate that the traveller’s CBM-PC report should contain a range of « personal » information such as their residential address, date of birth « and » country or countries of citizenship.

184.           While the CBM-PC report collects « personal » information « and » therefore engages the right to Article 17 of the ICCPR, this requirements accords with Australia’s international obligations to combat money laundering « and » terrorism financing activity via the cross-border movement of physical currency. A number of countries, including the United States « and » the United Kingdom, collect this information from travellers.

185.           The electronic form will collect the same amount of « personal » information as the paper-form CBM-PC report, while providing a more convenient method for travellers to meet their existing statutory obligation. Presently, if the movement of the physical currency is to be effected on an aircraft or ship, a report must be lodged at the time at which a traveller, before embarking, goes to the place at which Australian Border Force officers examine passports. The new electronic form will provide travellers with the opportunity to declare movements of physical currency before arriving at this point. However, travellers will continue to have the option of lodging a CBM-PC report in-person at the time they cross the border.

186.           To the extent that this measure limits the rights protected under Article 17 of the ICCPR, these limitations are not arbitrary, « and » are reasonable, necessary « and » proportionate to the achievement of legitimate objectives in fulfilling Australia’s international obligations to combat money laundering « and » the financing of terrorism. All information collected via the new electronic form will be subject to existing safeguards « and » properly protected by AUSTRAC « and » « other » enforcement agencies.

ACNC as a designated agency

187.           Including the ACNC as a designated agency in the AML/CTF Act will enable it to access AUSTRAC information.

188.           While AUSTRAC information might pertain to sensitive « personal » financial information « and » therefore engages the right to privacy under Article 17 of the ICCPR, adding the ACNC as a designated agency in section 5 of the AML/CTF Act will enable it to better protect « and » enhance public confidence in the Australian charity « and » NFP sector.

189.           As a designated agency, the ACNC will be able to make timely « and » comprehensive assessments in relation to the money laundering « and » terrorism financing risks associated with charities when they register with the ACNC, be able to better detect, monitor « and » halt money laundering, terrorism financing « and » « other » criminal activities involving ACNC registered entities « and » monitor ongoing compliance with regulatory requirements.

190.            This objective accords with Australia’s international obligations to combat money laundering « and » terrorism financing activity through the appropriate « and » effective sharing of financial intelligence. To the extent that this measure limits the rights protected under Article 17 of the ICCPR, these limitations are not arbitrary, « and » are reasonable, necessary « and » proportionate to the achievement of legitimate objectives in fulfilling Australia’s international obligations to combat money laundering « and » terrorism financing.

191.           Although the « amendments » will result in the disclosure of AUSTRAC information to ACNC officials, Part 11 of the AML/CTF Act will continue to provide strict limitations on the use « and » disclosure of AUSTRAC information. In essence, the AML/CTF Act prohibits the disclosure of AUSTRAC information, regardless of the type or format, unless a specified exception applies.

192.           Further, all financial intelligence collected, used, stored, disclosed or shared with the ACNC will be subject to existing safeguards for the use of « personal » information « and » properly protected by the ACNC, AUSTRAC « and » « other » enforcement agencies. In addition, under the AML/CTF Act, the ACNC can only be given access to AUSTRAC information if it undertakes to comply with the Australian Privacy Principles (APP) under the Privacy Act 1988 .

Conclusion

193.           Schedule 9 of the « Bill » is compatible with the human rights « and » freedoms. To the extent that these measures may limit those rights « and » freedoms, such limitations are reasonable, necessary « and » proportionate.

Schedule 10—Amendment of the Australian Crime Commission Act 2002

Outline of « amendments »

194.           Schedule 10 will amend the Australian Crime Commission Act 2002 (ACC Act) to clarify use of the alternative names « and » acronyms for the Australian Crime Commission (ACC) (specified in the Australian Crime Commission Regulations 2002 (ACC Regulations)).

Human rights implications

195.           The « amendments » in Schedule 10 do not specifically engage human rights. Schedule 10 does not affect the substantive provisions of the ACC Act (which already enable the ACC to be known by a name specified in the ACC Regulations). The « amendments » will clarify that the ACC’s prescribed alternative names (or acronyms) can also be used in place of the term ‘ACC’ in « other » relevant expressions in the ACC Act, for example references to the ACC’s functions, its staff « and » its Board.

Conclusion

196.           Schedule 10 is compatible with human rights.

Schedule 11—Amendment of the AusCheck Act 2007

Outline of « amendments »

197.           Schedule 11 to the « Bill » will make « amendments » to Parts 1 « and » 2 of the AusCheck Act 2007 (AusCheck Act) to enable background checks to be conducted for major national events.

198.           AusCheck undertakes background checking activities within a legislative framework comprising the AusCheck Act « and » the AusCheck Regulations 2007 (AusCheck Regulations). Under the legislative framework, AusCheck currently only provides national security background checking services for the Aviation Security Identification Card (ASIC), Maritime Security Identification Card (MSIC), « and » National Health Security (NHS) check regimes.

199.           The « amendments » to the AusCheck Act will enable AusCheck to undertake background checks on individuals in connection with major national events. The « Bill » authorises the Minister to declare an event a major national event if satisfied that it is in the national interest that the Commonwealth be involved in the conduct « and » coordination of background checks in connection with the accreditation of individuals in relation to the event.

200.           The « amendments » would ensure that national security assessments can be facilitated through established mechanisms (the AusCheck scheme) which are well supported by technical channels. The proposed « amendments » will, where required, also enable Criminal History Information (CHI) to be obtained « and » assessed using well established protocols « and » procedures. This will help to mitigate certain risks arising out of large scale events of a national character by helping to identify individuals who pose serious risks, such as individuals of national security concern, « and » preventing their involvement in major national events.

201.           The AusCheck scheme contains strong protections within the AusCheck Act for the management of « personal » information « and » in relation to information sharing practices. AusCheck is required to adhere to obligations under the Privacy Act 1988 (the Privacy Act). Section 13 of the AusCheck Act provides that the collection, use or disclosure of « personal » information is taken to be authorised by the AusCheck Act for the purposes of the Privacy Act if it relates to background checks under the AusCheck scheme. Section 14 of the AusCheck Act provides for the retention « and » subsequent use « and » disclosure of information in an AusCheck database, « and » the purposes for which information in the database may be used or disclosed.

202.           The disclosure of information will continue to be protected by robust safeguards, including:

·          the privacy protections in the Privacy Act

·          criminal offences in section 15 of the AusCheck Act for the unlawful disclosure of AusCheck scheme « personal » information

·          the accreditation process for agencies seeking access to information « and » requirements relating to disclosure under the AusCheck Guidelines, « and »

·          memoranda of understanding with relevant authorities, « and » public reporting of disclosures of « personal » information from the AusCheck database to accredited agencies.

203.            Information provided by AusCheck to « other » agencies will also be protected by these agencies’ own privacy or secrecy obligations.



 

Human rights implications

The right to privacy—Article 17 of the ICCPR

204.           Schedule 11 engages the right to privacy under article 17 of the ICCPR.

205.           Article 17 of the ICCPR accords everyone the right to protection against arbitrary or unlawful interference with their privacy, family, home or correspondence. Accordingly, interferences with the right to privacy will be permitted provided they are not arbitrary « and » are authorised by law. In order for an interference with the right to privacy not to be ‘arbitrary’, the interference must be for a reason consistent with the ICCPR « and » be reasonable in the particular circumstances. Reasonableness in this context incorporates notions of proportionality, appropriateness « and » necessity. In essence, this will require that:

·          limitations serve a legitimate objective

·          limitations adopt a means that is rationally connected to that objective, « and »

·          the means adopted are not more restrictive than they need to be to achieve that objective.

206.           The « amendments » in Schedule 11 will interact with the right to privacy in that they will require AusCheck to collect individuals’ « personal » information in order to facilitate background checks of those individuals in connection with a major national event.

207.           This information will fall within the definition of AusCheck scheme « personal » information under subsection 4(1) of the AusCheck Act. AusCheck scheme « personal » information can be disclosed to Commonwealth, state « and » territory agencies for specific purposes under the AusCheck Act. This interaction with the right to privacy is justified by the objective of the « amendments » . Further, there are robust legislative safeguards in place that will protect information that will be collected as a result of these « amendments » . These safeguards are consistent with the right to privacy.

208.           The objective of the « amendments » is to address serious risks, such as national security « and » safety risks, related to large scale events of a national character. The objective of the « amendments » will be met by ensuring that persons who pose serious risks, such as persons of national security concern, are not able to work or volunteer at major national events. The collection of « personal » information in order to conduct a background check for an individual in these circumstances is reasonable « and » proportionate, given the potential risks. For example, if allowed to work or volunteer at a large event such as the Commonwealth Games, individuals of national security concern could increase the risk of a serious threat to security. Such an incident could pose serious risks to a very large number of attendees. Background checks on individuals seeking to be accredited to work or volunteer at the Commonwealth Games would help to mitigate this risk. The « amendments » would also help the Commonwealth to address risks relating to a significant event relating to trade, such as the G20.

209.           The « amendments » are proportionate to addressing the serious risks that can arise at a major national event. Appropriate legislative safeguards are in place to protect the use « and » disclosure of AusCheck scheme « personal » information under the AusCheck Act. AusCheck scheme « personal » information is also subject to the privacy protections in the Privacy Act, including the Australian Privacy Principles.

210.           AusCheck scheme « personal » information can only be shared for limited purposes in sections 14 « and » 14A of the AusCheck Act. Specifically, AusCheck can only share information with Commonwealth, state or territory authorities which perform law enforcement « and » national security functions. Section 15 of the AusCheck Act provides that it is an offence for a person to disclose information relating to the AusCheck scheme, including AusCheck scheme « personal » information. Section 15 of the AusCheck Act makes it a criminal offence to unlawfully disclose AusCheck scheme « personal » information. An offence under this section is punishable by up to two years imprisonment.

211.           AusCheck has also developed Guidelines for Accessing Information on the AusCheck Database (‘AusCheck Guidelines’) under regulation 15 of the AusCheck Regulations which establish a compulsory framework for providing access to AusCheck information. The AusCheck Guidelines are publicly available on the AusCheck website « and » require proactive steps for agencies to be approved for access to AusCheck information. AusCheck staff members are required to comply with the Guidelines, under subregulation 15(2) of the AusCheck Regulations. The AusCheck Guidelines also publish the agencies approved for access to the database, « and » require the AGD to publish information about these agencies « and » the purposes « and » frequency of access to AusCheck information, in the AGD Annual Report. The AusCheck Guidelines will continue to protect the disclosure of AusCheck scheme « personal » information.

212.           Information sharing arrangements are also governed by memoranda of understanding with relevant authorities. AusCheck currently has MOUs to govern its information sharing with the Australian Federal Police (AFP) « and » the Australian Customs « and » Border Protection Service (ACBPS)—prior to its integration with the Department of Immigration « and » Border Protection.

213.           Information provided by AusCheck to Commonwealth, state « and » territory agencies will also be protected by these agencies’ own privacy or secrecy obligations.

214.           The safeguards provide a robust framework that appropriately protects the disclosure of AusCheck scheme « personal » information.

The right to an effective remedy—Article 2(3) of the ICCPR

215.           Schedule 11 engages the right to an effective remedy under article 2(3) of the ICCPR. The right to an effective remedy is an essential component of all the rights in the ICCPR. Both the UN Human Rights Committee « and » the Committee on the Elimination of Racial Discrimination have stated that the right to an effective remedy encompasses an obligation to bring to justice perpetrators of human rights abuses, including discrimination, « and » also to provide appropriate reparation to victims.

216.           Individuals who receive an unfavourable outcome for a background check in relation to a major national event will have the right to appeal the decision in order for it to be reviewed. The review rights of an individual will depend on the how the background check is undertaken.

217.           If the background check for the major national event comprises only of a national security assessment (which is conducted by ASIO), then the individual may apply to the security division of the Administrative Appeals Tribunal, in accordance with section 54(1) of the Australian Security Intelligence Organisation Act 1979 « and » section 27AA of the Administrative Appeals Tribunal Act 1975 .

218.           If the background check for the major national event also includes a criminal history assessment, « and » the individual wishes to apply for a review in that respect, then he/she can apply to the Administrative Appeals Tribunal for a review of the decision under regulation 12 of the AusCheck Regulations.

219.           These review rights provide an effective remedy for individuals who are required to undergo a background check in connection with their accreditation in relation to a major national event.

Conclusion

220.           Schedule 11 is compatible with human rights. To the extent that it may limit human rights, those limitations are reasonable, necessary « and » proportionate in achieving the intended outcome to address risks relating to security « and » safety that may arise at major national events « and » to contribute to the national security « and » safety of Australia.

 

 

 



NOTES ON CLAUSES

Preliminary

Clause 1 - Short title

221.           This clause provides for the short title of the Act to be the Crimes Legislation Amendment (International Crime Cooperation « and » « Other » Measures) Act 2016 .

Clause 2 - Commencement

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

223.           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.

224.           Item 2 in the table provides that Schedule 1 will commence by Proclamation, or, if the provisions do not commence within six months from receiving Royal Assent, the provisions automatically commence. This is to allow for consequential « amendments » to be made to associated regulations before the « amendments » come into force.

225.           Item 3 in the table provides that Part 1 of Schedule 2 will commence the day after the Act receives the Royal Assent.

226.           Item 4 in the table provides that Part 2 of Schedule 2 will commence by Proclamation, or, if the provisions do not commence within six months from receiving Royal Assent, the provisions automatically commence. This is to allow consequential « amendments » to be made to the Mutual Assistance in Criminal Matters Regulations 1988 before the « amendments » come into force regarding the roles of magistrates « and » Federal Circuit Court judges in the process for the production of documents or « other » articles.

227.           Item 5 in the table provides that Part 3 of Schedule 2 will commence the day after the Act receives the Royal Assent.

228.           Item 6 in the table provides that Schedule 3 will commence the day after the Act receives the Royal Assent.

229.           Item 7 in the table provides that Schedule 4 will commence by Proclamation, or, if the provisions do not commence within six months from receiving Royal Assent, the provisions automatically commence. This is to allow for consequential « amendments » to be made to the Foreign Evidence (Foreign Material - Criminal « and » Related Civil Proceedings) Regulations 1994 before the « amendments » come into force regarding the application of Part 3 of the Foreign Evidence Act 1994 (FE Act) to the external territories « and » the Jervis Bay Territory.

230.           Item 8 in the table provides that Schedules 5, 6 « and » 7 will commence the day after the Act receives the Royal Assent.

231.           Item 9 in the table provides that Part 1 of Schedule 8 will commence by Proclamation or, if the provisions do not commence within six months from receiving Royal Assent, the provisions automatically commence. This is to allow the AFP to amend the AFP Regulations to prescribe the broader category of AFP personnel subject to alcohol « and » drug testing, in support of the « amendments » made by Part 1 of Schedule 8.

232.           Item 10 in the table provides that Part 2 of Schedule 8 will commence the day after the Act receives the Royal Assent.

233.           Item 11 in the table provides that Schedules 9, 10 « and » 11 will commence the day after the Act receives the Royal Assent.

Clause 3 - Schedules

Schedule 1—Assistance to international courts « and » tribunals

Part 1 - Lawfully obtained material

234.           The MA Act provides for an expeditious procedure to provide lawfully obtained material (that is, material acquired by a law enforcement agency in the course of a domestic investigation which is in the possession of that enforcement agency) to a foreign country after authorisation by the Attorney - General. That is, the material is not required to be produced before a magistrate before it can be provided to a foreign country but rather, may be provided subject to an authorisation by the Attorney - General. There is currently no similar process under the ICC Act or IWCT Act for providing lawfully obtained material to the ICC or an IWCT.

235.           This Part will amend the ICC Act, IWCT Act, SD Act « and » the TIA Act so that lawfully acquired material can be provided to the ICC « and » IWCTs through a streamlined process akin to the MA Act. This will apply where the ICC « and » IWCTs have commenced an investigation or proceeding into a crime within the jurisdiction of the ICC or an IWCT.

International Criminal Court Act 2002

Item 1 - Section 4

236.           Section 4 of the ICC Act sets out definitions that are relevant to the operation of the Act. Item 1 of Schedule 1 inserts new definitions relevant to the changes that will be made by this Schedule.

Definition of interception warrant information

237.           Item 1 of Schedule 1 inserts a new definition of “interception warrant information”. The definition will align with the definition at section 5 of the TIA Act, consistently with the definition used in section 3 of the MA Act. That is, “interception warrant information” will mean:

(a)     information about any of the following:

(i) an application for an interception warrant;

(ii) the issue of an interception warrant;

(iii) the existence or non-existence of an interception warrant;

(iv) the expiry of an interception warrant; or

(b)    any « other » information that is likely to enable the identification of:

(i) the telecommunications service to which an interception warrant relates; or

(ii) a person specified in an interception warrant as a person using or likely to use the telecommunications service to which the warrant relates.

238.           This definition is relevant to the new authorisation power proposed in item 2 of Schedule1 (new section 69A of the ICC Act).

Definition of law enforcement agency

239.           Item 1 of Schedule 1 inserts a new definition of “law enforcement agency”. The definition will align with the definition at section 6 of the SD Act, consistently with the definition used in section 13A of the MA Act. That is, “law enforcement agency” will include the following agencies:

·          the Australian Federal Police

·          the Australian Commission for Law Enforcement Integrity

·          the Australian Crime Commission

·          the police force of each state or territory

·          the New South Wales Crime Commission

·          the Independent Commission Against Corruption of NSW

·          the Police Integrity Commission of NSW

·          the Crime « and » Corruption Commission of Qld

·          the Corruption « and » Crime Commission of WA, « and »

·          the Independent Commissioner against Corruption of SA.

240.           The effect of this amendment will be that material obtained in the course of a domestic investigation by any of the above agencies will be considered for the purposes of the ICC Act to be material acquired by a law enforcement agency.

Definition of law enforcement officer

241.           Item 1 of Schedule 1 inserts a new definition of “law enforcement officer”. The definition will align with the definition at section 6 of the SD Act, consistently with the definition used in section 13A of the MA Act. That is, “law enforcement officer” will include:

·          any Australian Federal Police (AFP) employee, special member or any person who is seconded to the AFP, in addition to the Commissioner « and » Deputy Commissioner of the AFP

·          the Integrity Commissioner « and » Assistant Integrity Commissioner of the Australian Commission for Law Enforcement Integrity (ACLEI) in addition to a staff member authorised to be a law enforcement officer of ACLEI

·          the Chief Executive Officer of the Australian Crime Commission in addition to any « other » person within the definition of “member of the staff of the ACC”

·          any officer (or seconded officer) of a state or territory police force

·          any member of the NSW Crime Commission

·          any officer of the Independent Commission Against Corruption of NSW

·          any officer of the Police Integrity Commission of NSW

·          any authorised commission officer of the Crime « and » Corruption Commission of Qld

·          any officer of the Corruption « and » Crime Commission of WA, « and »

·          the Commissioner, Deputy Commissioner or member of staff of the Commissioner, or an examiner or investigator of the Independent Commission against Corruption of SA.

242.           The effect of this amendment is that any of these persons will be considered for the purposes of the ICC Act to be a law enforcement officer « and » therefore able to be directed as to how material is to be provided to the ICC.

Definition of lawfully intercepted information

243.           Item 1 of Schedule 1 inserts a new definition of “lawfully intercepted information”. The definition will align with the definition at section 5 of the TIA Act, consistently with the definition used in section 3 of the MA Act. That is, “lawfully intercepted information” will cover information obtained by intercepting a communication passing over a telecommunications system in certain circumstances.

244.           This definition is relevant to the new authorisation power proposed in item 2 of Schedule 1 (new section 69A of the ICC Act).

Definition of lawfully obtained in Australia

245.           Item 1 of Schedule 1 inserts a new definition of “lawfully obtained in Australia”. This term will be defined by reference to new subsection 69A(3) (as inserted by Item 2 of Schedule 1) which will define material lawfully obtained in Australia as including both material obtained from individuals or entities by consent « and » material obtained by warrant or the exercise of a coercive power by a court, in Australia for the purposes of a domestic investigation or prosecution. The effect of this definition will be to outline the scope of material to which the new provisions in this Part will apply.



 

Item 2 - After Division 5 of Part 4

246.           Item 2 of Schedule 1 inserts new Division 5A « and » section 69A into the ICC Act. New section 69A allows the Attorney-General to authorise the provision of certain specified material to the ICC, provided the requisite criteria are met. Under the « amendments » , the Attorney-General may authorise the provision of material “lawfully obtained in Australia” where the ICC has requested the material, provided the request relates to an investigation being conducted by the Prosecutor or a proceeding before the ICC « and » the material was lawfully obtained in Australia by, « and » is lawfully in the possession of, a law enforcement agency. In relation to lawfully intercepted information or interception warrant information, this can only be authorised if the investigation or proceeding relates to an offence punishable by a maximum penalty of imprisonment for 7 years or more or life imprisonment.

247.           New subsection 69A(2) will provide that the Attorney-General may specify in the authorisation the uses to which the material can be put by the ICC. It may also include a direction to a law enforcement officer regarding how the relevant material is to be provided to the ICC. Subsection 69A(3) will also provide that material “lawfully obtained in Australia” includes both material provided voluntarily by individuals or entities « and » material obtained compulsorily for the purposes of a domestic investigation or prosecution.

248.           The effect of this amendment will be to streamline the process of providing material lawfully obtained in Australia (that is, material acquired by a law enforcement agency in the course of a domestic investigation which is in the possession of that enforcement agency) to the ICC, while still subject to the appropriate safeguards. This will bring the current process in line with that which currently applies for foreign countries under the MA Act, in that material will no longer be required to be produced before a magistrate but can be provided subject to authorisation by the Attorney-General.

249.           This authorisation will not be a legislative instrument, given Schedule 1 to the Legislative Instruments Regulations 2004 exempts authorisations from being legislative instruments.

International War Crimes Tribunals Act 1995

Item 3 - Section 4

250.           Section 4 of the IWCT Act sets out definitions that are relevant to the operation of the Act. Item 3 of Schedule 1 inserts new definitions relevant to the changes that will be made by this Schedule.

Definition of law enforcement agency

251.           Item 3 of Schedule 1 inserts a new definition of “law enforcement agency”. The definition will align with the definition at section 6 of the SD Act, consistently with the definition used in section 13A of the MA Act. That is, “law enforcement agency” includes the following agencies:

·          the Australian Federal Police

·          the Australian Commission for Law Enforcement Integrity

·          the Australian Crime Commission

·          the police force of each state or territory

·          the New South Wales Crime Commission

·          the Independent Commission Against Corruption of NSW

·          the Police Integrity Commission of NSW

·          the Crime « and » Corruption Commission of Qld

·          the Corruption « and » Crime Commission of WA, « and »

·          the Independent Commissioner against Corruption of SA.

252.           The effect of this amendment will be that material obtained in the course of a domestic investigation by the above agencies will be considered for the purposes of the IWCT Act to be material acquired by a law enforcement agency.

Definition of law enforcement officer

253.           Item 3 of Schedule 1 inserts a new definition of “law enforcement officer”. The definition will align with the definition at section 6 of the SD Act. Section 6 of the SD Act uses an expansive definition of “law enforcement officer” to include:

·          any AFP employee, special member or any person who is seconded to the AFP, in addition to the Commissioner « and » Deputy Commissioner of the AFP

·          the Integrity Commissioner « and » Assistant Integrity Commissioner of the Australian Commission for Law Enforcement Integrity in addition to a staff member authorised to be a law enforcement officer of ACLEI

·          the Chief Executive Officer of the Australian Crime Commission in addition to any « other » person within the definition of “member of the staff of the ACC”

·          any officer (or seconded officer) of a state or territory police force

·          any member of the NSW Crime Commission

·          any officer of the Independent Commission Against Corruption of NSW

·          any officer of the Police Integrity Commission of NSW

·          any authorised commission officer of the Crime « and » Corruption Commission of Qld

·          any officer of the Corruption « and » Crime Commission of WA, « and »

·          the Commissioner, Deputy Commissioner or member of staff of the Commissioner, or an examiner or investigator of the Independent Commissioner against Corruption of SA.

254.           The effect of this amendment will be that any of these persons will be considered for the purposes of the IWCT Act to be a law enforcement officer « and » therefore able to be directed as to how material is to be provided to an IWCT.

Definition of lawfully obtained in Australia

255.           Item 3 of Schedule 1 inserts a new definition of “lawfully obtained in Australia”. This term will be defined by reference to new subsection 25A(3) (inserted by Item 4 of Schedule 1) which defines material lawfully obtained in Australia as including both material obtained from individuals or entities by consent « and » material obtained by warrant, or the exercise of a coercive power by a court, in Australia for the purposes of a domestic investigation or prosecution. The effect of this definition will be to outline the scope of material to which the new provisions in this Part will apply.

Item 4 - Before Division 1 of Part 4

Division 1AA - Providing law enforcement agency material

256.           Item 4 of Schedule 1 inserts new Division 1AA « and » section 25A into the IWCT Act. New section 25A allows the Attorney-General to authorise the provision of certain specified material to an IWCT, provided the requisite criteria are met. Under the « amendments » , the Attorney-General may authorise the provision of material “lawfully obtained in Australia” where an IWCT has requested the material, provided the request relates to an investigation conducted by the IWCT or a proceeding before the IWCT « and » is material lawfully obtained in Australia by, « and » lawfully in the possession of, a law enforcement agency.

257.           New subsection 25A(2) provides that the Attorney-General may specify in the authorisation the uses to which the material can be put by an IWCT. It may also include a direction to a law enforcement officer regarding how the relevant material is to be provided to the IWCT. New subsection 25A(3) will also provide that material “lawfully obtained in Australia” includes material provided voluntarily by individuals or entities « and » material obtained compulsorily for the purposes of a domestic investigation or prosecution.

258.           The effect of this amendment will be to streamline the process of providing material lawfully obtained in Australia (that is, material acquired by a law enforcement agency in the course of a domestic investigation which is in the possession of that enforcement agency) to the IWCT, while still subject to the appropriate safeguards. This will bring the current process in line with that which currently applies for foreign countries under the MA Act, in that material will no longer be required to be produced before a magistrate but can be provided subject to authorisation by the Attorney-General.

259.           This authorisation is not a legislative instrument, given Schedule 1 to the Legislative Instruments Regulations 2004 exempts authorisations from being legislative instruments.

Surveillance Devices Act 2004

Item 5 - Subsection 6(1)

260.           Subsection 6(1) of the SD Act sets out definitions that are relevant to the operation of the Act. Item 5 of Schedule 1 inserts new definitions relevant to the changes that will be made by this Schedule.

Definition of International Criminal Court

261.           Item 5 of Schedule 1 inserts a new definition of “International Criminal Court” into section 6 of the SD Act. The definition will align with the definition of “ICC” in the ICC Act. That is, it means the International Criminal Court established under the Rome Statute, « and » will include any of the organs of that Court within the meaning of the Rome Statute.

Definition of War Crimes Tribunal

262.           Item 5 of Schedule 1 inserts a new definition of “War Crimes Tribunal” into section 6 of the SD Act. The definition aligns with the definition of “Tribunal” in the IWCT Act. That is, it means the Former Yugoslavia Tribunal, the Rwanda Tribunal or the International Residual Mechanism for Criminal Tribunals.

Item 6 - At the end of subsection 45(4)

263.           Subsections 45(1) « and » (2) of the SD Act contain offences for the unauthorised use, recording, communication or publishing of any protected information. Protected information is defined in section 44 of the SD Act « and » generally includes any information obtained from the use of a surveillance device or related to the use of a surveillance device, including the application for that device. Subsection 45(3) states that protected information may not be admitted into evidence in any proceedings.

264.           Subsection 45(4) lists exceptions to the offences in subsections 45(1) « and » (2) « and » to the rule in subsection 45(3) that protected information may not be admitted into evidence in any proceedings.

265.           Item 6 of Schedule 1 inserts two new exceptions at paragraphs 45(4)(h) « and » 45(4)(i). These new exceptions will only apply in circumstances where the information was originally acquired pursuant to a surveillance device warrant issued for a domestic purpose « and » provided to the ICC under new section 69A of the ICC Act or to an IWCT under new section 25A of the IWCT Act. These paragraphs will be added after those substituted for paragraph 45(4)(f) of the SD Act (as amended by Part 6 of Schedule 1).

266.           These « amendments » ensure that any information obtained pursuant to a surveillance device warrant executed for a domestic purpose can then be lawfully disclosed to the ICC or an IWCT in response to a formal request.

Telecommunications (Interception « and » Access) Act 1979

Item 7 - Subsection 5(1)

267.           Subsection 5(1) of the TIA Act sets out definitions that are relevant to the operation of the Act. Item 7 of Schedule 1 inserts new definitions relevant to the operation of this Schedule.



 

Definition of International Criminal Court

268.           Item 7 of Schedule 1 inserts a new definition of “International Criminal Court” into subsection 5(1) of the TIA Act. The definition aligns with the definition of “ICC” in the ICC Act. That is, it will mean the International Criminal Court established under the Rome Statute, « and » will include any of the organs of that Court within the meaning of the Rome Statute.

Definition of War Crimes Tribunal

269.           Item 7 of Schedule 1 inserts a new definition of “War Crimes Tribunal” into subsection 5(1) of the TIA Act. The definition aligns with the definition of “Tribunal” in the IWCT Act. That is, it will mean the Former Yugoslavia Tribunal, the Rwanda Tribunal or the International Residual Mechanism for Criminal Tribunals.

Item 8 - After paragraph 68(l)

270.           Section 63 of the TIA Act places a general prohibition on the use or communication of any lawfully intercepted information, or information about warrants (“interception warrant information”).

271.           Section 68 of the TIA Act sets out exceptions to this prohibition which enables the chief officer of an agency to communicate lawfully intercepted information that was originally obtained by that agency, or interception warrant information, to certain named entities or persons for certain purposes.

272.           Item 8 of Schedule 1 inserts new paragraphs 68(la) « and » 68(lb) in the TIA Act which will outline two further circumstances in which lawfully intercepted information or interception warrant information may be communicated.

273.           New paragraph 68(la) will enable the chief officer of an agency to communicate lawfully intercepted information or interception warrant information to the ICC or to the Secretary of the Attorney-General’s Department for the purpose of providing the information to the ICC.

274.            New paragraph 68(lb) will enable the chief officer of an agency to communicate lawfully intercepted information or interception warrant information to an IWCT or to the Secretary of the Attorney-General’s Department for the purpose of providing the information to the relevant Tribunal.

275.           The information will only be able to be provided if the Attorney-General has authorised the provision of the information under new section 69A of the ICC Act or new section 25A of the IWCT Act respectively. These provisions (to be inserted by Items 2 « and » 4 of Schedule 1) will provide that the Attorney-General may only authorise the provision of the information following a request by the ICC or an IWCT where:

·          material was lawfully obtained in Australia by, « and » is in the possession of, a law enforcement agency, « and »

·          the request relates to an investigation being conducted by the Prosecutor or a proceeding before the ICC or the request relates to a proceeding before, or an investigation conducted by, the Tribunal.

276.           The effect of this amendment will be that the chief officer of an agency will be able to communicate lawfully intercepted information or interception warrant information to the ICC or an IWCT pursuant to a request from those bodies, without infringing the general prohibition in section 63 of the TIA Act.

Item 9 - Section 68A

277.           Subsection 68A(l) of the TIA Act currently enables the Secretary of the Attorney-General’s Department to communicate lawfully intercepted information or interception warrant information to a person (including to a foreign country) for the purpose of providing that information to a foreign country. Section 68A describes the circumstances in which information communicated to the Secretary of the Department in accordance with subsection 68A(l) can be communicated to another person, including a foreign country. This provision currently does not extend to the provision of material to the ICC or an IWCT.

278.           Item 9 of Schedule 1 repeals section 68A « and » substitutes new section 68A to extend the provision of information to the ICC or an IWCT. New section 68A will describe the circumstances in which information communicated to the Secretary of the Department in accordance with paragraph 68(l), « and » new paragraphs 68(la) « and » 68(lb) will be able to be communicated to another person, including the foreign country concerned, the ICC or an IWCT. In such circumstances, the Secretary of the Department, a person authorised by the Secretary, or a person or « other » entity to which the information has been communicated, may provide the information to another person or entity for purposes connected with providing the information to the relevant foreign country, the ICC or an IWCT.  

279.           This amendment will ensure that information requested by a foreign country, the ICC or an IWCT is able to be provided to that relevant country or entity (following Attorney-General authorisation) in the most appropriate manner by the most appropriate person.

280.           As the provision of this information is part of the formal assistance process as opposed to police-to-police assistance, the information will generally be provided to the foreign country, ICC or IWCT by the Central Authority in the Department as opposed to being provided by the law enforcement agency. For example, the Central Authority may provide the material to the Australian Embassy in The Hague whereby it will be presented to the ICC via formal diplomatic channels.

Item 10 - Section 102B

281.           Section 99 of the TIA Act currently requires the Minister, as soon as practicable after each 30 June, to cause to be prepared a written report relating to that year. Section 102B currently requires the Minister’s report to set out the number of occasions on which lawfully intercepted information or interception warrant information was provided to a foreign country under paragraph 68(l) or section 68A of the TIA Act in connection with an authorisation under subsection 13A(1) of the MA Act.

282.           Item 10 of Schedule 1 repeals current section 102B « and » substitutes new section 102B which will extend the information to be included in the report to cover the provision of information pursuant to an ICC or IWCT request. New section 102B requires the Minister’s report to set out the number of occasions on which information about telecommunications interceptions was provided to a foreign country under paragraph 68(l) or section 68A of the TIA Act, to the ICC under new paragraph 68(la) of the TIA Act or to an IWCT under new paragraph 68(lb) of the TIA Act. New paragraphs 68(la) « and » 68(lb) will be inserted by item 8 of Schedule 1.

283.           As section 104 of the TIA Act requires the Minister to table the report in Parliament, the « amendments » by these items will ensure there is transparency « and » accountability as to how often information lawfully obtained for a domestic purposes, is provided to a foreign country, the ICC or « and » IWCT for the purpose of foreign or international law enforcement.

Item 11 - Application « and » transitional provisions

284.           Item 11(1) of Schedule 1 provides for the application of the « amendments » in this Part. It provides that they will apply in relation to a request made to the Attorney-General by the ICC, a Tribunal or a foreign country on or after the commencement of this item. They will also apply to such requests made before the commencement of this item if, immediately before that commencement, the Attorney-General had yet to make a decision on the request.

285.           Item 11(2) of Schedule 1 provides that the « amendments » so apply whether the material requested was lawfully obtained in Australia before, on or after that commencement, « and » whether conduct, a crime or an offence to which the request relates occurred before, on or after that commencement.

286.           The « amendments » in this Part are procedural in scope « and » do not have the effect of criminalising or penalising conduct which was otherwise lawful prior to the « amendments » . It is necessary for these provisions to apply retrospectively as the conduct that is being investigated may continue over several years or may not be discovered immediately.

287.           Item 11(3) of Schedule 1 provides for a transitional provision in relation to authorisations already made that were in force immediately before commencement. Such an authorisation will continue in force « and » may be dealt with after commencement as if it had been made in accordance with the amended provision.

Part 2 - Producing documents or « other » articles

288.           The « amendments » in Part 2 of Schedule 1 will clarify the roles of judicial officers under the ICC Act « and » the IWCT Act in proceedings to require the production of documents or « other » articles. In particular they will indicate when the role is performed by a different judicial officer or the same judicial officer within a single matter.



 

International Criminal Court Act 2002

Item 12 - Subsection 66(2)

289.           Item 12 of Schedule 1 omits “the magistrate must”, « and » substitutes “a magistrate must”. By using the indefinite article “a”, rather than the definite article “the”, the provision will clarify that the magistrate who requires the production of documents or « other » articles does not need to be the same magistrate to whom the documents or « other » articles are produced.

Item 13 - Subsection 66(2)

290.           Item 13 of Schedule 1 omits “to the magistrate” « and » substitutes “to that magistrate” which will clarify that the magistrate to whom the documents or « other » articles are produced is the same magistrate that will send them to the Attorney-General.

Item 14 - Subsection 66(3)

291.           Item 14 of Schedule 1 omits “the magistrate may” « and » substitutes “a magistrate may”. By using the indefinite article “a”, rather than the definite article “the”, the provision will clarify that the magistrate who requires the production of documents or « other » articles does not need to be the same magistrate to whom the documents or « other » articles are produced.

Item 15 - Subsection 66(3)

292.           Item 15 of Schedule 1 omits “the magistrate to” « and » substitutes “that magistrate to” which will clarify that the magistrate to whom documents are produced is the same magistrate that can send certified copies of the documents to the Attorney-General.

Item 16 - Application of « amendments »

293.           Item 16 of Schedule 1 provides for the application of the « amendments » made by this Part. The « amendments » will apply to a requirement to produce documents or « other » articles made on or after the commencement of this item. They will also apply to a requirement to produce documents or « other » articles made before the commencement of this item if the documents or articles had not been produced immediately before commencement or had been produced but had not yet been sent to the Attorney-General.

294.           The « amendments » in this Part are procedural in scope « and » do not have the effect of criminalising or penalising conduct which was otherwise lawful prior to the « amendments » .

International War Crimes Tribunals Act 1995

Item 17 - Subsection 28(2)

295.           Item 17 of Schedule 1 omits “the magistrate must”, « and » substitutes “a magistrate must”. By using the indefinite article “a”, rather than the definite article “the”, the provision will clarify that the magistrate who requires the production of documents or « other » articles does not need to be the same magistrate to whom the documents or « other » articles are produced.



 

Item 18 - Subsection 28(2)

296.           Item 18 of Schedule 1 omits “to the magistrate” « and » substitutes “to that magistrate” which will clarify that the magistrate to whom the documents or « other » articles are produced is the same magistrate that will send them to the Attorney-General.

Item 19 - Subsection 28(3)

297.           Item 19 of Schedule 1 omits “the magistrate may” « and » substitutes “a magistrate may”. By using the indefinite article “a”, rather than the definite article “the”, the provision will clarify that the magistrate who requires the production of documents or « other » articles does not need to be the same magistrate to whom the documents or « other » articles are produced.

Item 20 - Subsection 28(3)

298.           Item 20 of Schedule 1 omits “the magistrate to” « and » substitutes “that magistrate to” which will clarify that the magistrate to whom documents are produced is the same magistrate that can send certified copies of the documents to the Attorney-General.

Item 21 - Application of « amendments »

299.           Item 21 of Schedule 1 provides for the application of the « amendments » made by this Part. The « amendments » will apply to a requirement to produce documents or « other » articles made on or after the commencement of this item. They will also apply to a requirement to produce documents or « other » articles made before the commencement of this item if the documents or articles had not been produced immediately before commencement or had been produced but had not yet been sent to the Attorney-General.

300.           The « amendments » in this Part are procedural in scope « and » do not have the effect of criminalising or penalising conduct which was otherwise lawful prior to the « amendments » .

Part 3 - Covert access to stored communications

301.           Currently an Australian enforcement agency cannot access stored communications (for example, email records) for the purpose of assisting the ICC or an IWCT. The « amendments » made by this Part will enable the ICC « and » IWCTs to request « and » receive stored communications subject to Attorney-General authorisation « and » the normal process for applying for a stored communication warrant for domestic purposes under the TIA Act. This would be subject to the same processes as currently apply to providing such material to assist foreign countries. Further, the assistance would be subject to the same safeguards as apply to accessing such information for domestic use. 

International Criminal Court Act 2002

Item 22 - Section 4 - definition of carrier

302.           Section 4 of the ICC Act sets out definitions that are relevant to the operation of the Act. Item 22 of Schedule 1 inserts a new definition of “carrier” to reflect the « amendments » relating to covert access to store communications. “Carrier” will be defined by reference to the definition at section 5 of the TIA Act, which is the definition that applies to all the provisions in the TIA Act, except those that relate to interception capability plans that carriers are required to submit under the TIA Act. This definition applies by reference to its definition in the Telecommunications Act, that is, to the holder of a carrier licence, as well as to a carriage service provider.

Item 23 - Section 4 (paragraph (b) of the definition of police officer )

303.           Section 4 of the ICC Act sets out definitions that are relevant to the operation of the ICC Act. Section 4 of the ICC Act currently defines a “police officer” as including a member of the police force of a state or territory. This is currently inconsistent with the equivalent provision governing requests for stored communications in the MA Act which makes reference to a person in a “police force” in addition to persons in a “police service”.

304.           Item 23 of Schedule 1 omits “police force of a State or Territory” « and » substitutes “police force or police service of a State”. Further, given the definition of “State” at section 4 of the ICC Act already includes the Australian territories, the words “or Territory” are unnecessary in the current definition of “police officer” « and » will be removed.

Item 24 - Section 4 - definition of stored communication

305.           Section 4 of the ICC Act sets out definitions that are relevant to the operation of the Act. Item 24 of Schedule 1 inserts a new definition of “stored communication” into the ICC Act by reference to the definition of that term in section 5 of the TIA Act. The TIA Act defines a stored communication as a communication that is:

·          not passing over a telecommunications system

·          is held on equipment that is operated by, « and » in the possession of a carrier; « and »

·          cannot be accessed on that equipment by a person who is not a party to the communication, without the assistance of an employee of the carrier.

306.           The effect of this amendment will be that stored communications for the purposes of the ICC Act will align with the above definition in the TIA Act.

Item 25 - After Division 11 of Part 4

Division 11A - Stored communications

307.           Item 25 of Schedule 1 inserts new Division 11A into the ICC Act which will govern the provision of stored communication material to the ICC.

308.           Currently, prescribed Australian agencies may apply for a warrant to covertly access stored communications (for example, email records) to assist in the investigation of domestic offences or an investigation in a foreign country. However, there is no mechanism to enable a stored communications warrant to be obtained to assist with an ICC investigation.

309.           New section 78A will establish the means by which Australia may respond to an ICC request for access to stored communications. It will enable the Attorney-General to authorise the AFP or State police to apply for a stored communications warrant under section 110 of the TIA Act if:

·          the ICC has made a request to the Attorney-General for access to the stored communications

·          the Attorney-General is satisfied that an investigation is being conducted by the Prosecutor of the ICC or a proceeding is before the ICC, « and »

·          the Attorney-General is satisfied that there are reasonable grounds to believe that a carrier holds stored communications relevant to the investigation or proceeding.

310.           In accordance with section 142A of the TIA Act, as amended by Item 52, information obtained pursuant to a stored communications warrant may only be communicated subject to certain conditions on the use « and » distribution of the information, « and » any « other » conditions imposed by the Attorney-General. This is equivalent to the restrictions on the release of such material to a foreign country under the MA Act.

311.           The Attorney-General will only be able to authorise Commonwealth « and » state or territory police forces or police services to apply for, « and » execute, a stored communications warrant on behalf of the ICC. This is appropriate as the « other » bodies that form part of the definition of “enforcement agency” are Commonwealth, state or territory integrity or anti-corruption bodies « and » it would not be appropriate for these bodies to be applying for, or executing warrants for the purpose of a foreign criminal investigation.

312.           The decision by an issuing authority to issue a warrant will be subject to all the safeguards contained in the application process set out in the TIA Act.

International War Crimes Tribunals Act 1995

Item 26 - Section 4 - definition of carrier

313.           Section 4 of the IWCT Act sets out definitions that are relevant to the operation of the Act. Item 26 of Schedule 1 inserts a new definition of “carrier” to reflect the « amendments » relating to covert access to stored communications. “Carrier” will be defined by reference to the definition at section 5 of the TIA Act, which is the definition that applies to all the provisions in the TIA Act, except those that relate to interception capability plans that carriers are required to submit under the TIA Act. This definition applies by reference to its definition in the Telecommunications Act, that is, to a holder of a carrier licence, as well as a carriage service provider.

Item 27 - Section 4 (paragraph (b) of the definition of police officer )

314.           Section 4 of the IWCT Act sets out definitions that are relevant to the operation of the Act. Section 4 of the IWCT Act currently defines a “police officer” as including a member of the police force of a state or territory. This is currently inconsistent with the equivalent provision governing requests for stored communications in the MA Act, which makes reference to a person in a “police force” in addition to persons in a “police service”.

315.           Item 27 of Schedule 1 omits “police force of a State or Territory” « and » substitutes with “police force or police service of a State”. Further, given the definition of “State” at section 5 of the IWCT Act already includes the Australian territories, the words “or Territory” are unnecessary in the current definition of “police officer” « and » will be removed.

Item 28 - Section 4 - Definition of stored communication

316.           Section 4 of the IWCT Act sets out definitions that are relevant to the operation of the Act. Item 28 of Schedule 1 inserts new a definition of “stored communication” into the IWCT Act by reference to the current definition of that term in section 5 of the TIA Act. The TIA Act defines a stored communication as a communication that is:

·          not passing over a telecommunications system

·          is held on equipment that is operated by, « and » in the possession of a carrier; « and »

·          cannot be accessed on that equipment by a person who is not a party to the communication, without the assistance of an employee of the carrier.

317.           The effect of this amendment will be that stored communications for the purposes of the IWCT Act will align with the definition in the TIA Act.

Item 29 - After Division 2 of Part 4

Division 2A - Stored communications

318.           Item 29 of Schedule 1 inserts new Division 2A into Part 4 of the IWCT Act which governs the provision of stored communication material to the IWCT. Currently, prescribed Australian agencies may apply for a warrant to covertly access stored communications (for example, email records) to assist in the investigation of domestic offences or an investigation in a foreign country. However, there is no mechanism to enable a stored communications warrant to be obtained to assist with an IWCT investigation.

319.           New section 34A will establish the means by which Australia may respond to a request by an IWCT for access to stored communications. It will enable the Attorney-General to authorise the AFP or state or territory police to apply for a stored communications warrant under section 110 of the TIA Act if:

·          the IWCT has made a request to the Attorney-General for access to the stored communications

·          the Attorney-General is satisfied that an investigation is being conducted by the Tribunal or a proceeding is before the Tribunal, « and »

·          the Attorney-General is satisfied that there are reasonable grounds to believe that a carrier holds stored communications relevant to the investigation or proceeding.

320.           In accordance with section 142A of the TIA Act, as amended by Item 52, information obtained pursuant to a stored communications warrant may only be communicated subject to certain conditions on the use « and » distribution of the information, « and » any « other » conditions imposed by the Attorney-General.

321.           The Attorney-General will only be able to authorise Commonwealth « and » state or territory police forces « and » police services to apply for, « and » execute, a stored communications warrant on behalf of the IWCT. This is appropriate as the « other » bodies that form part of the definition of “enforcement agency” are Commonwealth, state or territory integrity or anti-corruption bodies « and » it would not be appropriate for these bodies to be applying for, or executing warrants for the purpose of a foreign criminal investigation.

322.           The decision by an issuing authority to issue a warrant will be subject to all the safeguards contained in the application process set out in the TIA Act.

Telecommunications (Interception « and » Access) Act 1979

Items 30 to 32 - Subsection 5(1)

323.           Section 5 of the TIA Act sets out definitions that are relevant to the operation of the TIA Act.   Items 30 to 32 of Schedule 1 insert a number of new definitions into the TIA Act to reflect the « amendments » relating to covert access to stored communications.



Item 30 - Definition of access request

324.           Item 30 of Schedule 1 inserts a new definition of “access request” by reference to new subsection 107P(1) of the TIA Act. New subsection 107P(1) (as inserted by Item 36 of Schedule 1) will identify the conditions on which a foreign country, the ICC or an IWCT may request the AFP to preserve stored communications. One of the circumstances is if the entity intends to make an “access request”. New subsection 107P(1) of the TIA Act will define an “access request” as a request for stored communications by a foreign country under paragraph 15B(d) of the MA Act, a request by the ICC under new paragraph 78A(a) of the ICC Act or a request by the IWCT under new paragraph 34A(b) of the IWCT Act.

Item 30 - Definition of crime within the jurisdiction of the ICC

325.           Item 30 of Schedule 1 inserts a new definition of “crime within the jurisdiction of the ICC” by reference to the ICC Act. A “crime within the jurisdiction of the ICC” will have the same definition as at section 4 of the ICC Act to be either an “international crime” or “an offence against the administration of the ICC’s justice”. The ICC Act defines an “international crime” as a crime in respect of which the ICC has jurisdiction under Article 5 of the Rome Statute. Article 5 of the Rome Statute notes that the ICC has jurisdiction with respect to the crime of genocide, crimes against humanity, war crimes « and » the crime of aggression.

Item 30 - Definition of international assistance application

326.           Item 30 of Schedule 1 inserts a new definition of “international assistance application” that will mean an application for a stored communications warrant made under an authorisation under section 15B of the MA Act, an authorisation under new section 78A of the ICC Act or an authorisation under new section 34A of the IWCT Act.

Item 30 - Definition of international offence

327.           Item 30 of Schedule 1 inserts a new definition of “international offence” by reference to new subsection 162(3). New subsection 162(3), as inserted by Item 58 of Schedule 1, will define an “international offence” as an offence against a law of a foreign country, a crime within the jurisdiction of the ICC or a War Crimes Tribunal offence in respect of which a stored communications warrant was issued as a result of an international assistance application made by the agency during the year.

Item 31 - Definition of mutual assistance application

328.           Item 31 of Schedule 1 repeals the definition of “mutual assistance application” in the TIA Act that is currently limited to applications for stored communications from a foreign country. This amendment is consequential to the insertion of a definition of “international assistance application” by Item 30 of Schedule 1 which refers to applications for a stored communications warrant made by a foreign country pursuant to an authorisation under section 15B of the MA Act, by the ICC pursuant to an authorisation under new section 78A of the ICC Act or an application by an IWCT pursuant to an authorisation under new section 34A of the IWCT Act.

Item 32 - Definition of serious foreign contravention

329.           The current definition of “serious foreign contravention” at section 5EA of the TIA Act (which will be repealed by Item 33 of Schedule 1) is limited to contraventions of the law of a foreign country « and » does not extend to offences within the jurisdiction of the ICC or a Tribunal offence.

330.           Item 32 of Schedule 1 inserts a new definition of “serious foreign contravention” which will extend the definition to offences within the jurisdiction of the ICC or a Tribunal offence. A “serious foreign contravention” means a contravention of a law of a foreign country punishable by a maximum penalty of imprisonment for three years or more, imprisonment for life or the death penalty or a fine of an amount that it at least equivalent to 900 penalty units; or a crime within the jurisdiction of the ICC or a War Crimes Tribunal offence. Given the jurisdiction of the ICC « and » IWCTs is limited to the most serious category of crimes, it is appropriate that they are defined within this category of crimes constituting a “serious foreign contravention”. This amendment will ensure that a stored communication will be able to be preserved, « and » a stored communication warrant will only be able to be issued, in relation to a “serious foreign contravention”.

Item 32 - Definition of War Crimes Tribunal offence

331.           Item 32 of Schedule 1 inserts a new definition of “War Crimes Tribunal offence” which will align with the definition of “Tribunal offence” at section 4 of the IWCT Act.

332.           The IWCT Act defines a “tribunal offence” at section 4 to mean:

(a)                   an offence for which the Former Yugoslavia Tribunal has the power to prosecute persons under Article 2, 3, 4 or 5 of the Statute of the Tribunal; or

(b)                  an offence for which the Rwanda Tribunal has the power to prosecute persons under Article 2, 3 or 4 of the Statute of the Tribunal; or

(c)                   an offence for which the International Residual Mechanism for Criminal Tribunals has the power to prosecute persons under Article 1 of the Statute of the Tribunal.

333.           These crimes include war crimes, genocide « and » crimes against humanity.

Item 33 - Section 5EA

334.           Current section 5EA of the TIA Act defines “serious foreign contravention” for the purpose of the TIA Act which is limited to contraventions of the law of a foreign country « and » does not extend to offences within the jurisdiction of the ICC or a Tribunal offence.

335.           Item 33 of Schedule 1 repeals section 5EA as a consequence of the updated definition of “serious foreign contravention” to be inserted at subsection 5(1) by Item 32 of Schedule 1. This new definition will refer to offences within the jurisdiction of the ICC or Tribunal offences.

Items 34 « and » 35 - Section 107G

336.           Current section 107G of the TIA Act provides an outline for Part 3-1A of the TIA Act « and » is limited to foreign preservation notices covering stored communications that might relate to a contravention of foreign laws. Items 34 « and » 35 of Schedule 1 amend section 107G of the TIA Act to extend the provision to also reference preservation notices covering stored communications relating to contravention of certain international offences.

Item 34 - Section 107G

337.           Item 34 of Schedule 1 inserts “or to certain international offences” after the words “contravention of certain foreign law” which will make reference to preservation notices covering stored communications relating to contravention of certain international offences.

338.           This amendment reflects that the provisions relating to stored communications will be extended to apply to both contraventions of certain foreign laws, in addition to certain international offences.

Item 35 - Section 107G

339.           Item 35 of Schedule 1 inserts “the International Criminal Court or a War Crimes Tribunal” after the words “foreign country” to reference the ICC or an IWCT. The effect of this amendment is that the AFP will be able to give a foreign preservation notice to a carrier where the ICC or an IWCT has made a request for the preservation in accordance with section 107P.

Item 36 - Section 107P

340.           Section 107P sets out the conditions on which a foreign country may request the AFP to preserve stored communications on an agency-to-agency basis. For example, a foreign law enforcement agency may make a request to a domestic law enforcement agency requesting the preservation of stored communications. This provision currently does not extend to requests by the ICC or an IWCT.

341.           Item 36 of Schedule 1 repeals current section 107P « and » substitutes new section 107P which will extend the provision to ICC « and » IWCT requests for preservation. New section 107P will provide for situations in which a foreign country, the ICC or an IWCT intends on making a formal request for stored communications material. In such situations, that entity may request the AFP to arrange for the preservation of stored communications relating to a specified person or specified telecommunications service, where those communications are held by a carrier « and » are relevant to an investigation, investigative proceeding or proceeding relating to a “serious foreign contravention”. The definition of “serious foreign contravention” will be inserted at subsection 5(1) by Item 32 of Schedule 1.

342.           New subsection 107P(2) lists the particulars that a foreign country, the ICC or an IWCT must include in a preservation request to the AFP. These are the same as those that currently apply to a foreign country, including that it must be in writing « and » contain certain information, such as the name of the entity or the authority concerned with the serious foreign contravention, « and » specify the reasons why the stored communications need to be preserved « and » that a request for access to the stored communications is intended to be made. The specification should also explain the connection between the communications « and » the relevant serious foreign contravention « and » explain why the communications may be important to the investigation.

Item 37 - Subparagraph 107Q(b)(ii)

343.           Section 107Q relates to foreign preservation notices. Subparagraph 107Q(b)(ii) provides that the relevant notice issued after the Attorney-General has given an authorisation under section 15B of the MA Act ceases to be in force where a stored communications warrant ceases to be in force. This provision is currently limited to authorisations by the Attorney-General under the MA Act « and » does not extend to authorisations under the ICC Act or IWCT Act.

344.           Item 37 of Schedule 1 repeals subparagraph 107Q(b)(ii) « and » substitutes new subparagraph 107Q(b)(ii) which will, in addition to authorisations made under the MA Act, extend to authorisations under the ICC Act or IWCT Act. The effect of this amendment is that the notice preserving the stored communications will cease to be in force when a stored communications warrant (authorising the disclosure of the communications) ceases to be in force.

Items 38 « and » 39 - Paragraphs 107R(1)(a) « and » 107R(1)(c)

345.           Subsection 107R(1) sets out three criteria that, if met, require the AFP to revoke a foreign preservation notice. The first criteria relates to where a foreign country has made a request under section 107P to preserve stored communications that are held by a carrier. The third criteria is where 180 days have elapsed since the carrier was given the notice « and » the foreign country did not make a formal mutual assistance request for access to the communications. These criteria currently do not extend to ICC « and » IWCT requests for preservation.

346.           Items 38 « and » 39 of Schedule 1 amend section 107R to extend the provision to ICC « and » IWCT requests. This will provide an important safeguard by ensuring that foreign preservation notices are revoked when it is clear that the records will no longer be sought for the purpose for which they were preserved.

Item 38 - Paragraph 107R(1)(a)

347.           Item 38 of Schedule 1 repeals paragraph 107R(1)(a) « and » substitutes new paragraph 107R(1)(a) which will extend the provision to situations in which a foreign country, the ICC or an IWCT requests under section 107P that the AFP arrange for the preservation of stored communications held by the carrier.



Item 39 - Paragraph 107R(1)(c)

348.           Item 39 of Schedule 1 repeals paragraph 107R(1)(c) « and » substitutes new paragraph 107R(1)(c) which will extend to ICC « and » IWCT requests. New paragraph 107R(1)(c) will ensure a notice is revoked if 180 days have elapsed since the carrier was given the notice « and » the foreign country, ICC or an IWCT has not made a formal mutual assistance request for access to the communications.

Items 40 to 42 - Paragraphs 107R(2)(a) « and » 107R(2)(c)

349.           Subsection 107R(2) sets out criteria that, if met, requires the AFP to revoke a foreign preservation notice. Specifically, subsection 107R(2) requires a preservation notice to be revoked in circumstances in which a foreign country makes a request under section 107P to preserve stored communications, the communications are preserved, but the Attorney-General refuses the formal request for access to those communications.

350.           Items 40 to 42 of Schedule 1 make a number of « amendments » to section 107R that will extend these requirements to requests from the ICC or an IWCT.

351.           The effect of these « amendments » is that subsection 107R(2) will apply to situations in which a foreign country, the ICC or an IWCT makes a request under section 107P to preserve stored communications, the communications are preserved, but the Attorney-General refuses the formal request by the foreign country, ICC or IWCT for access to those communications. This will provide an important safeguard by ensuring that foreign preservation notices are revoked when it is clear that the records will no longer be sought for the purpose for which they were preserved.

Item 40 - Paragraph 107R(2)(a)

352.           Item 40 of Schedule 1 repeals paragraph 107R(2)(a) « and » substitutes new paragraph 107R(2)(a) which will extend the provision to apply to situations where an entity (that is, a foreign country, the ICC or an IWCT) requests under section 107P that the AFP arrange for the preservation of stored communications that are held by a carrier.

Item 41 - Paragraph 107R(2)(c)

353.           Item 41 of Schedule 1 repeals paragraph 107R(2)(c) « and » substitutes new paragraph 107R(2)(c) which will extend the provision to apply to situations where an entity (that is, a foreign country, the ICC or an IWCT) makes an access request to the Attorney-General to arrange for access to those communications.

Item 42 - Paragraph 107R(2)(d)

354.           Item 42 of Schedule 1 is a consequential amendment to replace the word “request” at paragraph 107R(2)(d) with “access request”. This amendment will reflect the « amendments » to paragraphs 107R(2)(a) « and » 107R(2)(c) (inserted by Items 40 « and » 41 of Schedule 1 respectively) to clarify that the provision will apply where the Attorney-General refuses the request to access the stored communication rather than the request by the entity under section 107P to preserve the stored communications.

Items 43 « and » 44 - Paragraphs 107R(3)(a) « and » 107R(3)(c)

355.           Subsection 107R(3) applies to situations in which a foreign country makes a request under section 107P to preserve stored communications « and » the foreign country withdraws the request. In these situations the AFP must revoke the preservation notice within three days. This provision is currently limited to requests from a foreign country « and » does not extend to requests from the ICC or an IWCT. Items 43 « and » 44 of Schedule 1 amend section 107R so that subsection 107R(3) will apply to situations in which a foreign country, the ICC or an IWCT make a request under section 107P to preserve stored communications, the communications are preserved but then the foreign country, ICC or an IWCT withdraws the request. This will provide an important safeguard by ensuring that foreign preservation notices are revoked when it is clear that the records will no longer be sought for the purpose for which they were preserved.

Item 43 - Paragraph 107R(3)(a)

356.           Item 43 of Schedule 1 repeals paragraph 107R(3)(a) « and » substitutes new paragraph 107R(3)(a) which will apply where an entity (that is, a foreign country, the ICC or an IWCT) requests under section 107P that the AFP arrange for the preservation of stored communications that are held by the carrier.

Item 44 - Paragraph 107R(3)(c)

357.           Item 44 of Schedule 1 omits “foreign country” in paragraph 107R(3)(c) « and » substitutes “entity” (that is, a foreign country, the ICC or an IWCT).

Item 45 - Paragraph 116(1)(d)

358.           Currently, prescribed Australian enforcement agencies may apply to an issuing authority for a warrant to covertly access stored communications to assist in the investigation of domestic offences. Subsection 116(1) of the TIA Act lists the matters about which an issuing authority must be satisfied when considering an enforcement agency’s application for a stored communications warrant. Paragraph 116(1)(d) states that a warrant can only be issued in certain situations, including where the issuing authority is satisfied that issuing such a warrant would be likely to assist in connection with the investigation or investigative proceeding, by a foreign country. This provision is currently limited to requests from a foreign country « and » does not extend to requests from the ICC or an IWCT.

359.           Item 45 of Schedule 1 repeals paragraph 116(1)(d) « and » substitutes new paragraph 116(1)(d) which will outline the criteria for which the warrant can be issued. These criteria will align with the criteria currently in place in respect of an equivalent request for assistance from a foreign country. If the relevant request relates to an international assistance application, subparagraph 116(1)(d)(ii) will apply. This criterion will provide that the warrant can be issued in the case of an investigation, investigative proceeding, or proceeding (by the foreign country, ICC or IWCT), of a serious foreign contravention to which the application relates « and » in which the person is involved (including as a victim of the serious foreign contravention). Item 30 of Schedule 1 inserts a new definition of “international assistance application” which will mean an application for a stored communications warrant made pursuant to an authorisation under section 15B of the MA Act, an authorisation under section 78A of the ICC Act or an authorisation under section 34A of the IWCT Act. New subparagraph 116(1)(d)(i) will apply to domestic investigations « and » mirrors the existing provision.

Item 46 - Subsection 116(2)

360.           Section 116 of the TIA Act lists the matters about which an issuing authority must be satisfied when considering an enforcement agency’s application for a stored communications warrant. Paragraph 116(1)(e) requires an issuing authority to have regard to certain matters listed in subsection 116(2). Mutual assistance authorisations are specifically excluded from subsection 116(2) given the criteria for these are listed under subsection 116(2A). This exception is currently limited to requests from a foreign country « and » does not also exclude requests from the ICC or an IWCT.

361.           Item 46 of Schedule 1 omits “In the case of an application « other » than a mutual assistance application” « and » substitutes “In the case of an application « other » than an international assistance application” which will extend the exclusion of the provision to requests from the ICC or an IWCT. Item 30 of Schedule 1 inserts a new definition of “international assistance application” which will mean an application for a stored communications warrant made pursuant to an authorisation under section 15B of the MA Act, an authorisation under section 78A of the ICC Act or an authorisation under section 34A of the IWCT Act.

Item 47 - Subsection 116(2A)

362.           Section 116 of the TIA Act lists the matters about which an issuing authority must be satisfied when considering an enforcement agency’s application for a stored communications warrant. Paragraph 116(1)(e) requires an issuing authority to have regard to certain matters listed in subsection 116(2A) where the authorisation relates to a mutual assistance authorisation. This provision is currently limited to requests from a foreign country « and » does not extend to requests from the ICC or an IWCT.

363.           Item 47 of Schedule 1 omits “In the case of a mutual assistance application” « and » substitutes “For an international assistance application” which will extend the provision to requests from the ICC or an IWCT. Item 30 of Schedule 1 inserts a new definition of “international assistance application” which will mean an application for a stored communications warrant made pursuant to an authorisation under section 15B of the MA Act, an authorisation under section 78A of the ICC Act or an authorisation under section 34A of the IWCT Act.

364.           The effect of this amendment is that international assistance applications will be considered with regard to the criteria at subsection 116(2A). This ensures the warrant is only issued in appropriate circumstances after having regard to the relevant factors.

Item 48 - Paragraph 116(2A)(c)

365.           Section 116 of the TIA Act lists the matters about which an issuing authority must be satisfied when considering an enforcement agency’s application for a stored communications warrant. Paragraph 116(1)(e) requires an issuing authority to have regard to certain matters listed in subsection 116(2A), where the authorisation relates to an international assistance authorisation. The criterion at paragraph 116(2A)(c), which relates to how much the information would be likely to assist in relation to the foreign investigation, is currently limited to requests from a foreign country « and » does not extend to requests from the ICC or an IWCT.  

366.           Item 48 of Schedule 1 repeals paragraph 116(2A)(c) « and » substitutes new paragraph 116(2A)(c) which will extend the provision to requests from the ICC or an IWCT. New paragraph 116(2A)(c) requires the issuing authority to consider how much the information would be likely to assist in connection with the relevant investigation, investigative proceeding, or proceeding to the extent that this is possible to determine from the information obtained from the relevant entity (that is, the foreign country, the ICC or an IWCT).

Item 49 - Subsection 139(2)

367.           Subsection 139(1) of the TIA Act states that lawfully accessed information or stored communications warrant information can only be used or communicated to another person for certain purposes, including those listed in subsection 139(2). Currently, this provision limits these purposes to cases where information is obtained by an agency « other » than through the execution of a warrant issued as a result of a mutual assistance application (given the purposes for mutual assistance applications are set out in subsection 139(4A)). This exemption currently does not extend to applications in respect of an ICC request or an IWCT request.

368.           Item 49 of Schedule 1 omits “mutual assistance application” « and » substitutes “international assistance application” which will extend the exemption to requests from the ICC or an IWCT. Item 30 of Schedule 1 inserts a new definition of “international assistance application” which will mean an application for a stored communications warrant made pursuant to an authorisation under section 15B of the MA Act, an authorisation under section 78A of the ICC Act or an authorisation under section 34A of the IWCT Act.

369.           The effect of this amendment is that the purposes for which information obtained in response to international assistance applications can be used or communicated to another person will be those purposes at subsection 139(4A).

Item 50 - Paragraph 139(2)(e)

370.           Section 133 of the TIA Act places a general prohibition on the use « and » communication of lawfully accessed stored communications « and » stored communications warrant information. Section 139 contains exceptions to these prohibitions. Current paragraph 139(2)(e) provides that an officer or staff member of an enforcement agency or an eligible Commonwealth authority may communicate, use or record information for purposes connected with an authorisation under subsection 13A(1) of the MA Act. This provision currently does not extend to the ICC « and » IWCTs.

371.           Item 50 of Schedule 1 repeals paragraph 139(2)(e) « and » substitutes new paragraph 139(2)(e). New paragraph 139(2)(e) will provide two additional purposes for which lawfully accessed information ( « other » than foreign intelligence information) « and » stored communications warrant information may be communicated, used or recorded by an officer or staff member of an enforcement agency or an eligible Commonwealth authority.

372.           New paragraph 139(2)(e) will provide that an officer or staff member of an enforcement agency or an eligible Commonwealth authority may communicate, use or record information for purposes connected with an authorisation under subsection 13A(1) of the MA Act (as is currently the case), an authorisation under section 69A of the ICC Act or an authorisation under section 25A of the IWCT Act.

373.           This ensures that disclosure requirements under the TIA Act are not offended when those officers or staff members disclose the information for the purposes of responding to a request from the foreign country, ICC or IWCT.

Item 51 - Subsection 139(4A)

374.           Subsection 139(1) of the TIA Act states that lawfully accessed information or stored communications warrant information can only be used or communicated to another person for the purposes listed in subsection 139(2) or 139(4A). Subsection 139(4A) sets out the purposes for which information obtained through the execution of a warrant issued as a result of a mutual assistance application can be used. These purposes include transmission of information to the foreign country « and » record keeping requirements. This provision is currently limited to requests from a foreign country « and » does not extend to requests from the ICC or an IWCT.

375.           Item 51 of Schedule 1 repeals subsection 139(4A) « and » substitutes new subsection 139(4A) which will extend the application of the subsection to requests from the ICC « and » IWCTs.

376.           The effect of this amendment is that information obtained through the execution of a warrant issued as a result of an international assistance application will only be able to be used when connected with:

·          providing the information to the entity to which the application relates

·          providing the information to an appropriate authority of that entity, or

·          keeping records by the agency under Part 3-5 of the TIA Act.

377.           The above criteria mirror the existing purposes currently in place in respect of an equivalent request for assistance by a foreign country.

Item 52 - Section 142A

378.           Current section 142A sets out conditions that must be complied with in communicating information obtained under a stored communications warrant to a foreign country. This provision is currently limited to requests from a foreign country « and » does not extend to requests from the ICC or an IWCT.

379.           Item 52 of Schedule 1 repeals section 142A « and » substitutes new section 142A which will extend to situations in which a warrant was issued as a result of an international assistance application. Item 30 of Schedule 1 inserts a definition of “international assistance application” which will mean an application for a stored communications warrant made pursuant to an authorisation under section 15B of the MA Act, an authorisation under section 78A of the ICC Act or an authorisation under section 34A of the IWCT Act.

380.           The conditions that must be complied with in communicating information are the same as those in existing 142A « and » are:

·          that the information will only be used for the purposes for which the entity (that is, the foreign country, the ICC or an IWCT) requested the information

·          that any document or « other » thing containing the information will be destroyed when it is no longer required for those purposes, « and »

·          any « other » condition determined, in writing, by the Attorney-General.

381.           These conditions will ensure that appropriate restrictions are in place when information, particularly « personal » information, is transferred to a foreign country, the ICC or an IWCT. New subsection 142A(2) will provide that these conditions will have effect despite subsection 139(4A) « and » section 142. Further, new subsection 142A(3) will provide that any condition determined in writing by the Attorney-General under paragraph 142(1)(c) is not a legislative instrument. This provision is included to assist readers, as the instrument is not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act 2003 .

Item 53 - Paragraph 151(1)(g)

382.           Section 151 of the TIA Act creates an obligation to keep records. Currently paragraph 151(1)(g) requires such records to cover certain mutual assistance request details.

383.           Item 53 of Schedule 1 omits “mutual assistance, being a request to which a mutual assistance application” « and » substitutes “international assistance, being a request to which an international assistance application”, which will ensure records must also be kept relating to requests from the ICC « and » IWCTs.

Item 54 - Paragraph 162(1)(c)

384.           Section 161 of the TIA Act requires the Minister to report once every year on the use of stored communications warrants. Paragraph 162(1)(c) of the TIA Act sets out that, in relation to each enforcement agency, the report must include the relevant statistics about mutual assistance applications that the agency made during that year. This paragraph is currently limited to requests from a foreign country « and » does not extend to requests from the ICC or an IWCT.

385.           Item 54 of Schedule 1 omits “mutual assistance applications” « and » substitutes “international assistance applications” at paragraph 162(1)(c) which will ensure that the provision extends to requests received from the ICC or an IWCT. Item 30 of Schedule 1 inserts a definition of “international assistance application” which will mean an application for a stored communications warrant made pursuant to an authorisation under section 15B of the MA Act, an authorisation under section 78A of the ICC Act or an authorisation under section 34A of the IWCT Act.

386.           The effect of this amendment is that each enforcement agency must include in its report the relevant statistics about international assistance applications that the agency made during that year. This will provide an important safeguard by ensuring there is transparency « and » accountability as to how often stored communication warrants are issued in respect of a foreign country, the ICC or an IWCT for the purpose of foreign or international law enforcement.

Item 55 - Paragraph 162(1)(d)

387.           Section 161 of the TIA Act requires the Minister to report once every year on the use of stored communications warrants. Paragraph 162(1)(d) of the TIA Act sets out that, in relation to each enforcement agency, the report must include the relevant Commonwealth, state or territory offence that corresponds to the foreign offence for which the foreign country is seeking the assistance « and » the stored communications warrant was issued. This paragraph is currently limited to requests from a foreign country « and » does not extend to requests from the ICC or an IWCT.

388.           Item 55 of Schedule 1 repeals paragraph 162(1)(d) « and » substitutes new paragraph 162(1)(d) which will extend the provision to requests received from the ICC or an IWCT. New paragraph 162(1)(d) will provide that the report must refer to the relevant Commonwealth, state or territory offence that corresponds to the international offence.

Item 56 - Paragraph 162(2)(ba)

389.           Section 161 of the TIA Act requires the Minister to report once every year on the use of stored communications warrants. Subsection 162(2) sets out the overall statistics that must be contained in the report. Paragraph 162(2)(ba) requires the report to contain statistics on the number of mutual assistance applications made during that year. This paragraph is currently limited to requests from a foreign country « and » does not extend to requests from the ICC or an IWCT.

390.           Item 56 of Schedule 1 omits “mutual assistance applications” « and » substitutes “international assistance applications” in paragraph 162(2)(ba) which will ensure the report will include the relevant statistics on the number of international assistance applications made during that year. Item 30 of Schedule 1 inserts a definition of “international assistance application” which will mean an application for a stored communications warrant made pursuant to an authorisation under section 15B of the MA Act, an authorisation under section 78A of the ICC Act or an authorisation under section 34A of the IWCT Act.

Item 57 - Paragraph 162(2)(e)

391.           Section 161 of the TIA Act requires the Minister to report once every year on the use of stored communications warrants. Subsection 162(2) sets out the overall statistics that must be contained in the report. Paragraph 162(2)(e) requires the report to include, for each foreign offence in respect of which a stored communications warrant was issued, the Commonwealth, state or territory offence that is of the same, or of substantially the same, nature. This paragraph is currently limited to requests from a foreign country « and » does not extend to requests from the ICC or an IWCT.

392.           Item 57 of Schedule 1 repeals paragraph 162(2)(e) « and » substitutes new paragraph 162(2)(e) which will require the report to reference the relevant Commonwealth, state or territory offence (if any) that is the same or substantially similar to the international offence.

Item 58 - At the end of section 162 - Definition of international offence

393.           Section 161 of the TIA Act requires the Minister to report once every year on the use of stored communications warrants. Subsection 162(2) sets out the overall statistics that must be contained in the report.

394.           Item 58 of Schedule 1 is a consequential amendment which inserts a new definition of “international offence” at the end of section 162 of the TIA Act, which will reflect that this provision no longer refers to a “foreign offence” but rather, will refer to an “international offence”, as the provision now applies to requests from the ICC « and » IWCTs.

395.           An “international offence” for an enforcement agency is defined as an offence against a law of a foreign country, a crime within the jurisdiction of the ICC or a War Crimes Tribunal offence in respect of which a stored communications warrant has been issued as a result of an international assistance application made by the agency during the year.

Item 59 - Section 163A

396.           Section 161 requires the Minister to cause to be prepared as soon as practicable after 30 June a written report relating to that year. Section 163A currently requires the report to set out the number of occasions on which lawfully accessed information or stored communications warrant information was provided to a foreign country under subsection 139(1) or section 142 of the TIA Act in connection with an authorisation under subsection 13A(1) of the MA Act.

397.           Item 59 of Schedule 1 repeals section 163A « and » substitutes new section 163A which will extend the information to be included in the report to cover the provision of information provided pursuant to an ICC or IWCT request. New section 163A will specify that the Minister’s annual report must set out the number of occasions on which lawfully accessed information or stored communications information was provided to a foreign country, the ICC or an IWCT under subsection 139(1) or section 142 of the TIA Act in connection with an authorisation under subsection 13A(1) of the MA Act, section 69A of the ICC Act or section 25A of the IWCT Act.

398.           As section 164 of the TIA Act requires the Minister to table the report in Parliament, the « amendments » made by this item will ensure there is transparency « and » accountability as to how often information lawfully obtained for a domestic purpose is provided to a foreign country, the ICC or an IWCT for the purpose of foreign law enforcement.

Item 60 - Application « and » transitional provisions

399.           Item 60 of Schedule 1 provides for the application of « amendments » made in this Part, « and » transitional provisions.

400.           Subitems 60(1) to (3) of Schedule 1 cover the application of these « amendments » . They will provide that the « amendments » apply in relation to a request made to the Attorney-General by the ICC, Tribunal or a foreign country on or after commencement. They will also apply to such requests made before commencement if, immediately before commencement the Attorney-General had not yet made a decision on the request. In addition, they will apply to a request made to the AFP under s107P of the TIA Act by the ICC, Tribunal or a foreign country on or after commencement.

401.           Subitem 3 provides that the « amendments » so apply as a result of subitem (1) or (2) whether the stored communications to which the request relates became stored communications before, on or after that commencement. They also so apply whether conduct, a crime or an offence to which the request relates occurred before, on or after that commencement.

402.           The « amendments » in this Part are procedural in scope « and » do not have the effect of criminalising or penalising conduct which was otherwise lawful prior to the « amendments » . It is necessary for these provisions to apply retrospectively as the conduct that is being investigated may continue over several years or may not be discovered immediately.

403.           Subitems 60(4) « and » (5) create transitional arrangements for these provisions. They will provide that if a foreign country had made a request on or after commencement, or before commencement but the Attorney-General had not yet made a decision on the request, « and » before commencement it had made a preservation request, the preservation request continues in existence « and » may be dealt with after commencement as if it had been made under the amended provision. In addition, any determination of the Attorney-General regarding communicating information that was made « and » in force before commencement will continue in force « and » may be dealt with as if it had been made under the amended provision.

Part 4 - Historical telecommunications data

Telecommunications (Interception « and » Access) Act 1979

404.           The TIA Act currently only allows the AFP to provide historical telecommunications data on an agency-to-agency basis (without a formal request) to a foreign law enforcement agency. The ICC « and » IWCTs do not come within the current definition of “foreign law enforcement agency”. This creates delays « and » inefficiencies when cooperating with the ICC « and » IWCTs given historical telecommunications data must therefore be sought by the ICC « and » IWCTs through formal mutual assistance procedures. This involves obtaining the Attorney-General’s authorisation « and » a search warrant to obtain the material. This process is more onerous than the more streamlined process under which the equivalent material is obtained in domestic investigations « and » proceedings « and » to assist with investigations « and » proceedings occurring in a foreign country.

405.           This Part makes a number of « amendments » to the TIA Act to allow the AFP to provide historical telecommunications data to the ICC « and » IWCTs on an agency-to-agency basis.

Item 61 - Subsection 5(1) (at the end of the definition of foreign law enforcement agency)

406.           The current definition of “foreign law enforcement agency” at subsection 5(1) of the TIA Act is limited to a police force of a foreign country or any « other » authority or person responsible for the enforcement of the laws of the foreign country. This definition does not extend to the ICC « and » IWCTs despite the fact that organs within those entities have investigative functions.

407.           Item 61 of Schedule 1 expands the current definition of “foreign law enforcement agency” to include, in addition to the existing authorities, any authority or person responsible to the ICC for investigating or prosecuting a “crime within the jurisdiction of the ICC” or a “War Crimes Tribunal offence”. Such authorities « and » persons will include those responsible for receiving « and » analysing information on situations or alleged crimes within the jurisdiction of the ICC or a War Crimes Tribunal offence in order to determine whether there is a reasonable basis to initiate an investigation « and » to bring the perpetrators of these crimes before the ICC or relevant IWCT. For example, for the purposes of the ICC this would include divisions within the Office of the Prosecutor including the Investigative Division, the Prosecution Division « and » the Jurisdiction, Complementarity « and » Cooperation Division.

408.           Item 30 of Schedule 1 inserts a definition of “crime within the jurisdiction of the ICC” by reference to section 4 of the ICC Act to be either an “international crime” or an offence against the administration of the ICC’s justice. Item 32 of Schedule 1 inserts a definition of “War Crimes Tribunal offence” which aligns with the definition of “Tribunal offence” at section 4 of the IWCT Act.

409.           The effect of this amendment is that the investigative organs within the ICC « and » IWCTs will come within the definition of “foreign law enforcement agency” for the purposes of Part 4-1 of the TIA Act « and » will be able to be provided the same historical telecommunications assistance Australia provides to foreign countries on an agency-to-agency basis, subject to the same safeguards.

Items 62 to 64

410.           Section 180A currently provides the basis for the AFP to authorise the disclosure of historical telecommunications data (such as subscriber details « and » call charge records) to a foreign country for the purposes of the enforcement of the criminal law of a foreign country. Under section 180A, historical telecommunications data can be provided to a foreign country on an agency-to-agency basis—that is, without a formal assistance request—in accordance with the requirements set out in section 180A. Section 180A is currently limited to assistance to foreign countries « and » does not extend to the provision of historical telecommunications data to the ICC or an IWCT. Items 62-64 will make a number of « amendments » to extend section 180A to apply to the ICC or an IWCT.

Item 62 - Section 180A (heading)

411.           Item 62 of Schedule 1 repeals the current heading at section 180A which currently refers to authorisations for access to existing information or documents « and » enforcement of the criminal law of a foreign country.

412.           Item 62 of Schedule 1 substitutes a new heading “Section 180A—Authorisations for access to existing information or documents—enforcing foreign or international laws”. This will make clear that the section, as amended, will no longer be limited to foreign countries.

Item 63 - Subsection 180A(3)

413.           Current subsection 180A(2) provides that an authorised officer of the AFP may authorise the disclosure of specified information or specified documents that came into existence before the time the person from whom the disclosure is sought received notification of the authorisation. Current subsection 180A(3) sets out when an authorised officer is able to make an authorisation under subsection 180A(2) « and » is currently limited to situations in which the disclosure is reasonably necessary for the enforcement of the criminal law of a foreign country.

414.           Item 63 of Schedule 1 repeals current subsection 180A(3) « and » substitutes new subsection 180A(3) which will extend to situations in which the disclosure is reasonably necessary for the investigation or prosecution of a crime within the jurisdiction of the ICC or an investigation or prosecution of a War Crimes Tribunal offence. Item 30 of Schedule 1 inserts a definition of “crime within the jurisdiction of the ICC” by reference to section 4 of the ICC Act to be either an “international crime” or an offence against the administration of the ICC’s justice. Item 32 of Schedule 1 inserts a definition of “War Crimes Tribunal offence” which aligns with the definition of “Tribunal offence” at section 4 of the IWCT Act.

415.           This amendment will enable an authorised officer to make an authorisation to assist the ICC or an IWCT as well as a foreign country.

Item 64 - Subsection 180A(5)

416.           Subsection 180A(4) provides that where specified information or documents have been disclosed to the AFP because of an authorisation under subsection 180A(2), an authorised officer of the AFP may authorise the disclosure of that information or those documents to a foreign law enforcement agency. Subsection 180A(5) currently sets out when an authorised officer is able to make an authorisation under subsection 180A(4) « and » provides that an authorised officer must not make an authorisation to disclose information or documents to a foreign law enforcement agency unless satisfied that the disclosure is reasonably necessary for the enforcement of the criminal law of a foreign country. This limits the section to assisting foreign countries « and » does not extend to assisting the ICC or an IWCT.

417.           Item 64 of Schedule 1 repeals current subsection 180A(5) « and » substitutes new subsection 180A(5) which will enable disclosure where reasonably necessary for an investigation or prosecution of a crime within the jurisdiction of the ICC or an investigation or prosecution of a War Crimes Tribunal offence in addition to disclosure to a foreign country, « and » the disclosure is appropriate in all the circumstances. Item 30 of Schedule 1 inserts a definition of “crime within the jurisdiction of the ICC” by reference to section 4 of the ICC Act to be either an “international crime” or an offence against the administration of the ICC’s justice. Item 32 of Schedule 1 inserts a definition of “War Crimes Tribunal offence” which aligns with the definition of “Tribunal offence” at section 4 of the IWCT Act.

418.           This amendment will enable an authorised officer to make an authorisation to assist the ICC or an IWCT as well as a foreign country. Section 180F will continue to require an authorised officer, prior to making an authorisation under new section 180A, to have regard to how much the privacy of any person or persons would be likely to be interfered with by the disclosure.

Items 65 « and » 66

419.           Section 180C allows information or documents originally disclosed because of an authorisation under Division 4 of the TIA Act (sections 178, 179 « and » 180), except for information disclosed under section 178A, to be disclosed to a “foreign law enforcement agency”. Sections 178, 179 « and » 180 enable an authorised officer to authorise the disclosure of existing information or documents for certain domestic purposes.

420.           Items 65 « and » 66 of Schedule 1 amend section 180C to extend the provision to offences within the jurisdiction of the ICC or to a War Crimes Tribunal offence.

Item 65 - Section 180C (heading)

421.           Item 65 of Schedule 1 repeals the current heading of section 180C « and » substitutes a new heading which references international laws rather than limiting the scope of the section to the enforcement of foreign laws. The new heading for 180C will be “Authorisations to disclose information or documents—enforcing foreign or international laws”, reflecting the expanded scope of the section.

Item 66 - Subsection 180C(2)

422.           Subsection 180C(2) provides that the authorisation to disclose to a foreign law enforcement agency can only be made if the authorised officer is satisfied that the disclosure is reasonably necessary for the enforcement of the criminal law of a foreign country « and » the disclosure is appropriate in all the circumstances. These criteria are currently limited to foreign countries « and » do not extend to the enforcement of a crime within the jurisdiction of the ICC or a War Crime Tribunal offence.

423.           Item 66 of Schedule 1 repeals subsection 180C(2) « and » substitutes a new subsection which will enable an authorisation to be made to disclose information or documents to the ICC or an IWCT. Mirroring the existing provision, the authorisation can only be made if the authorised officer is satisfied that the disclosure is reasonably necessary for the enforcement of the criminal law of a foreign country, an investigation or prosecution of a crime within the jurisdiction of the ICC or an investigation or prosecution of a War Crimes Tribunal offence « and » the disclosure is appropriate in all the circumstances. This will ensure that material originally obtained for domestic purposes can be disclosed to the ICC or an IWCT in appropriate circumstances under this streamlined process.

424.           Item 30 of Schedule 1 inserts a definition of “crime within the jurisdiction of the ICC” by reference to section 4 of the ICC Act to be either an “international crime” or an offence against the administration of the ICC’s justice. Item 32 of Schedule 1 inserts a definition of “War Crimes Tribunal offence” which aligns with the definition of “Tribunal offence” at section 4 of the IWCT Act.

425.            The factors at new subsection 180C(2) will continue to mirror the requirements in new subsection 180A(5) (as amended by Item 64 of Schedule 1) which must be satisfied when historical telecommunications data that has not been originally disclosed for a domestic purpose, is able to be obtained « and » then disclosed to a foreign country, the ICC or an IWCT.

426.           Section 180F requires an authorised officer, prior to making an authorisation under new section 180C, to have regard to how much the privacy of any person or persons would be likely to be interfered with by the disclosure.

Items 67 to 69 - Subdivision C of Division 4A of Part 4-1

427.           Sections 180A, 180B « and » 180C currently allow information or documents to be disclosed to a foreign law enforcement agency in certain circumstances if specified conditions are met. Section 180E imposes further restrictions on when information or documents can be disclosed to a foreign country under sections 180A, 180B or 180C. This subdivision is currently limited to conditions of disclosure to a foreign country « and » does not extend these conditions to disclosure to the ICC or an IWCT. Items 67 to 69 of Schedule 1 make « amendments » to Subdivision C’s title « and » section 180E to extend the application of the subdivision to the ICC « and » IWCTs, in line with the extension of sections 180A, 180B « and » 180C to the ICC « and » IWCTs.

Item 67 - Subdivision C of Division 4A of Part 4-1 (heading)

428.           Subdivision C, which consists of section 180E, imposes restrictions on when information or documents can be disclosed to a foreign country under sections 180A, 180B or 180C. The heading to this subdivision is currently limited to conditions of disclosure to a foreign country « and » does not extend to disclosure to the ICC or an IWCT.

429.           Item 67 of Schedule 1 repeals the current heading « and » substitutes new heading “Subdivision C—Conditions of disclosure to foreign law enforcement agencies” to reflect the expanded scope of the subdivision. This amendment reflects the substantive changes to be made to section 180E by Item 69 of Schedule 1.

Item 68 - Section 180E (heading)

430.           Section 180E imposes restrictions on when information or documents can be disclosed to a foreign country under sections 180A, 180B or 180C. This includes the requirement that the information will only be used for the purposes for which it is requested « and » that any document or « other » thing containing the information will be destroyed when it is no longer required for those purposes. The heading to this section is currently limited to conditions of disclosure of information to a foreign country « and » does not extend to disclosure to the ICC or an IWCT.

431.           Item 68 of Schedule 1 repeals the current heading « and » substitutes new heading—“180E Disclosing information etc. to foreign countries or foreign law enforcement agencies”. This amendment will reflect the expanded definition of “foreign law enforcement agency”, as amended by Item 61 of Schedule 1.

Item 69 - Subsection 180E(1)

432.           Item 69 of Schedule 1 amends subsection 180E(1) by inserting the words “or foreign law enforcement agency” after each reference to “foreign country” to extend the application of the provision to the ICC « and » IWCTs. The definition of “foreign law enforcement agency”, as amended by Item 61 of Schedule 1, will include any authority or person responsible to the ICC for investigating or prosecuting a crime within the jurisdiction of the ICC or to an IWCT for investigating or prosecuting a War Crimes Tribunal offence.

433.           The effect of this amendment will be that the restriction in section 180E will apply to the disclosure of data to the ICC « and » IWCTs as well as foreign countries. This is an important safeguard « and » the amendment ensures there is consistency in the process for the disclosure of this material.

Item 70 - Application of « amendments »

434.           Item 70 of Schedule 1 provides for the application of the « amendments » made by Part 4 of Schedule 1. It provides that they will apply in relation to a disclosure of information or documents on or after commencement whether the information or documents were acquired before, on or after that commencement; « and » whether conduct, a crime or an offence to which the disclosure relates occurred before, on or after that commencement.

435.           The « amendments » in this Part are procedural in scope « and » do not have the effect of criminalising or penalising conduct which was otherwise lawful prior to the « amendments » . It is necessary for these provisions to apply retrospectively as the conduct that is being investigated may continue over several years or may not be discovered immediately.



 

Part 5 - Prospective telecommunications data

436.           Australia cannot currently provide prospective telecommunications data (telecommunications data that comes into existence during the period in which an authorisation is in force) to the ICC or IWCTs. While the TIA Act enables prospective telecommunications data to be disclosed to a foreign country following a formal request « and » the Attorney-General’s approval, no equivalent power exists in relation to assisting the ICC or IWCTs.

437.           Part 5 will amend the ICC, IWCT « and » the TIA Acts to enable the collection of prospective telecommunications data for foreign « and » international law enforcement purposes, following a formal request from the foreign country, ICC or IWCT « and » the Attorney-General’s approval.

International Criminal Court Act 2002

Item 71 - Section 4

438.           Section 4 of the ICC Act sets out definitions that are relevant to the operation of the ICC Act. Item 71 of Schedule 1 inserts new definitions relevant to the « amendments » that will be made by Part 5 of Schedule 1.

Definition of communication

439.           Item 71 of Schedule 1 inserts a definition of “communication” into section 4 of the ICC Act by reference to the current definition of “communication” in section 5 of the TIA Act. This provides that “communication” includes a conversation « and » a message, « and » any part of a conversation or message, whether in the form of speech, music or « other » sounds; data; text; animated « and » non-animated visual images; signals; or a conversation or message in any « other » form or in any combination of forms.

Definition of telecommunications system

440.           Item 71 of Schedule 1 inserts a definition of “telecommunications system” into section 4 of the ICC Act by reference to the current definition of “telecommunications system” in section 5 of the TIA Act. This provides that “telecommunications system” means a telecommunications network that is within Australia; or a telecommunications network that is partly within Australia, but only to the extent that the network is within Australia. Such a network includes equipment, a line or another facility that is connected to such a network « and » is within Australia.

Item 72 - Before Division 12 of Part 4

Division 11B - Prospective telecommunications data

441.           Currently, the TIA Act only enables an authorised officer from an Australian criminal law enforcement agency to collect « and » disclose prospective telecommunications data—that is, telecommunications data that comes into existence during the period an authorisation is in force—for domestic or foreign law enforcement purposes. Australia cannot currently provide prospective telecommunications data for international law enforcement purposes such as to the ICC or IWCTs.

442.           Item 72 of Schedule 1 inserts new Division 11B—“Prospective telecommunications data”—before Division 12 of Part 4 of the ICC Act. This new Division will govern the provision of prospective telecommunications data to the ICC. New Part 4 of the ICC Act contains new section 78B, which outlines how the Attorney-General can respond to a request by the ICC for assistance in relation to prospective telecommunications data. New section 78B will be modelled on the current process applying to foreign countries under the MA Act, « and » will be subject to the same safeguards.

443.           New subsection 78B(1) allows the Attorney-General to authorise the making of an authorisation under section 180B of the TIA Act where:

·          the ICC has requested relevant information or documents which come into existence during a specified period (starting on or after the day the request was made); « and »

·          he or she is satisfied that an investigation is being conducted by the Prosecutor or a proceeding is before the ICC; « and »

·          the information or documents relate to the fact of a communication passing over a telecommunications system.

444.           This subsection is limited to prospective telecommunications data « and » will not apply to historical telecommunications data, that is, information or documents that already exist which relate to communications that have already taken place. The disclosure of historical telecommunications data to the ICC in relation to an investigation or prosecution before the ICC will be governed by sections 180A, 180C « and » 180E of the TIA Act, as amended by Part 4 of Schedule 1.

445.           New subsection 78B(2) will set out what information or documents do not come within the ambit of the provision. This subsection will state that information or documents do not relate to the fact of a communication passing over a telecommunications system if the information is the contents of the communication. That is, section 78B will not extend to the contents or substance of a communication. These are “stored communications” « and » will be governed by the stored communications regime in the TIA Act (which will be amended by Part 3) « and » section 78A of the ICC Act (which will be inserted by Item 25) which will establish the means by which Australia may respond to an ICC request for material obtained through accessing stored communications.

446.           Amended section 180B of the TIA Act will govern the process for obtaining « and » disclosing the specified information or documents, following Attorney-General approval under new section 78B of the ICC Act.

International War Crimes Tribunals Act 1995

Item 73 - Section 4

447.           Section 4 of the IWCT Act sets out definitions that are relevant to the operation of the Act. Item 73 of Schedule 1 inserts new definitions relevant to the changes that will be made by this Part.



 

Definition of communication

448.           Item 73 of Schedule 1 inserts a definition of “communication” into section 4 of the IWCT Act by reference to the definition of communication in section 5 of the TIA Act. This will provide that “communication” includes a conversation « and » a message, « and » any part of a conversation or message, whether in the form of speech, music or « other » sounds; data; text; animated « and » non-animated visual images; signals; or a conversation or message in any « other » form or in any combination of forms.

Definition of telecommunications system

449.           Item 73 of Schedule 1 inserts a definition of “telecommunications system” into section 4 of the IWCT Act by reference to the definition of “telecommunications system” in section 5 of the TIA Act. This will provide that “telecommunications system” means a telecommunications network that is within Australia; or a telecommunications network that is partly within Australia, but only to the extent that the network is within Australia. Such a network includes equipment, a line or another facility that is connected to such a network « and » is within Australia.

Item 74 - Before Division 3 of Part 4

Division 2B - Prospective telecommunications data

450.           Currently, the TIA Act only enables an authorised officer from an Australian criminal law enforcement agency to collect « and » disclose prospective telecommunications data—that is, telecommunications data that comes into existence during the period an authorisation is in force—for domestic or foreign law enforcement purposes. Australia cannot currently provide prospective telecommunications data for international law enforcement purposes such as to the ICC or IWCTs.

451.           Item 74 of Schedule 1 inserts new Division 2B—“Prospective telecommunications data”—before Division 3 of Part 4 which will govern the provision of prospective telecommunications data to IWCTs. This new Division will contain section 34B which will outline how the Attorney-General can respond to a request by an IWCT for assistance in relation to telecommunications data. New section 34B will be modelled on the current process applying to foreign countries under the MA Act, « and » will be subject to the same safeguards.

452.           New subsection 34B(1) will enable the Attorney-General to authorise the making of an authorisation under section 180B of the TIA Act where:

·          an IWCT has requested relevant information or documents which come into existence during a specified period (starting on or after the day the request was made)

·          where he or she is satisfied that an investigation is being conducted or a proceeding is before the IWCT, « and »

·          the information or documents relate to the fact of a communication passing over a telecommunications system.

453.           New subsection 34B(1) will be limited to prospective telecommunications data « and » will not apply to historical telecommunications data, that is, information or documents that already exist « and » relate to communications that have already taken place. The disclosure of historical telecommunications data to an IWCT in relation to an investigation or prosecution before an IWCT will be governed by sections 180A, 180C « and » 180E of the TIA Act which will be amended by Part 4.

454.           New subsection 34B(2) will set out what information or documents do not come within the ambit of the provision. This new subsection will state that information or documents do not relate to the fact of a communication passing over a telecommunications system if the information is the contents of the communication. That is, new section 34B will not extend to the contents or substance of a communication. These are “stored communications” « and » will be governed by the stored communications regime in the TIA Act (which will be amended by Part 3) « and » new section 34A of the IWCT Act (which will be inserted by Item 29 of Schedule 1) which will establish the means by which Australia may respond to an IWCT request for material obtained through accessing stored communications.

455.           Amended section 180B of the TIA Act will govern the process for obtaining « and » disclosing the specified information or documents, following Attorney-General approval under new section 34B of the IWCT Act.

Telecommunications (Interception « and » Access) Act 1979

Items 75 to 78 - Section 180B

456.           Section 180B of the TIA Act provides the basis for an authorised officer in the AFP to authorise the disclosure of prospective telecommunications data (telecommunications data that comes into existence during the period in which the authorisation is in force) to a foreign country. Subsections 180B(1) to (7) detail the process « and » requirements for the disclosure of information or a document to the AFP. Subsections 180B(8) « and » (9) detail the process for disclosure of the information or document to a foreign law enforcement agency.

457.           Section 180B is currently limited to authorisation of disclosure of prospective telecommunications data to a foreign country « and » does not extend to disclosure to the ICC or an IWCT. Items 75 to 78 make a number of « amendments » to section 180B to allow prospective telecommunications data to be accessed « and » provided to the ICC « and » IWCTs following a formal request for assistance, approval by the Attorney-General « and » approval from an authorised AFP officer.

Item 75 - Section 180B (heading)

458.           Section 180B of the TIA Act provides the basis for the AFP to authorise the disclosure of prospective telecommunications data to a foreign country for the purposes of the enforcement of the criminal law of a foreign country. The heading of section 180B is currently limited to authorisations for access to prospective information or documents for enforcement of the criminal law of a foreign country.

459.           Item 75 of Schedule 1 repeals the heading to section 180B « and » substitutes a new heading—“180B Authorisations for access to prospective information or documents—enforcing international laws”.

460.           This new heading will reflect the « amendments » made by Items 75 to 78 of Schedule 1 that will allow prospective telecommunications data to be accessed « and » provided in respect of requests by the ICC « and » IWCTs.

Item 76 - Subsection 180B(3)

461.           Section 180B of the TIA Act provides the basis for the AFP to authorise the disclosure of prospective telecommunications data to a foreign country for the purposes of the enforcement of the criminal law of a foreign country. Subsection 180B(3) currently sets out when an authorised officer is able to make an authorisation under subsection 180B(2) for the disclosure of specified information or specified documents. This subsection is currently limited to disclosure of information to a foreign country « and » does not extend to the disclosure of information to the ICC or an IWCT.

462.           Item 76 of Schedule 1 repeals current subsection 180B(3) « and » substitutes new subsection 180B(3) which will extend to the ICC « and » IWCTs. New subsection 180B(3) will set out when an authorised officer is able to make an authorisation under subsection 180B(2) to a foreign country, the ICC or an IWCT which will mirror the existing provision. Under new subsection 180B(3), an authorised officer will only be able to make an authorisation if:

·          the Attorney-General has authorised the making of the authorisation under section 15D of the MA Act, section 78B of the ICC Act (as inserted by Item 72) or section 34B of the IWCT Act (as inserted by Item 74)

·          the authorised officer is satisfied that the disclosure is reasonably necessary for:

o    an investigation or proceeding in the foreign country (where the relevant offence is punishable by imprisonment for three years or more, imprisonment for life or the death penalty or involves an act or omission that, if it had occurred in Australia, would be a serious offence)

o    an investigation or proceeding relating to a “crime within the jurisdiction of the ICC” (the definition of which will be inserted by Item 30 into section 5 of the TIA Act); or

o    an investigation or proceeding relating to a “War Crimes Tribunal offence” (the definition of which will be inserted by Item 32 into section 5 of the TIA Act); « and »

·          the authorised officer is satisfied that the disclosure is appropriate in all the circumstances.

463.           Item 30 of Schedule 1 inserts a definition of “crime within the jurisdiction of the ICC” by reference to section 4 of the ICC Act to be either an “international crime” or an offence against the administration of the ICC’s justice. Item 32 of Schedule 1 inserts a definition of “War Crimes Tribunal offence” which will align with the definition of “Tribunal offence” at section 4 of the IWCT Act.

464.           The effect of this amendment is to extend section 180B so that it enables the AFP to authorise the disclosure of prospective telecommunications data to the ICC or an IWCT subject to a strict authorisation process. This involves no substantive change to the current process in place for the disclosure of prospective telecommunications data to foreign countries.

Item 77 - Paragraph 180B(6)(a)

465.           Section 180B of the TIA Act provides the basis for the AFP to authorise the disclosure of prospective telecommunications data to a foreign country for the purposes of the enforcement of the criminal law of a foreign country. Subsection 180B(6) sets out the process for extending an authorisation made under subsection 180B(2) for the disclosure of specified information or specified documents. Paragraph 180B(6)(a) is currently limited to the disclosure of information to a foreign country « and » does not extend to the disclosure of information to the ICC or an IWCT.

466.           Item 77 of Schedule 1 repeals paragraph 180B(6)(a) « and » substitutes new paragraph 180B(6)(a) which will allow authorisations in relation to the ICC or an IWCT to be extended in the same way in which an authorisation in relation to a foreign country can currently be extended. New paragraph 180B(6)(a) will allow an authorisation to be extended where the authorised officer is satisfied that the disclosure of the prospective data is still:

·          reasonably necessary for the investigation of an offence:

o    against a law of a foreign country (that is punishable by imprisonment for three or more years, imprisonment for life or the death penalty « and » would be a serious offence if the conduct had occurred in Australia)

o    an investigation or proceeding relating to a “crime within the jurisdiction of the ICC” (the definition of which will be inserted by Item 30 into section 5 of the TIA Act); or

o    an investigation or proceeding relating to a “War Crimes Tribunal offence” (the definition of which will be inserted by Item 32 into section 5 of the TIA Act); « and »

·          appropriate in all the circumstances.

467.           Item 30 of Schedule 1 inserts a definition of “crime within the jurisdiction of the ICC” by reference to section 4 of the ICC Act to be either an “international crime” or an offence against the administration of the ICC’s justice. Item 32 of Schedule 1 inserts a definition of “War Crimes Tribunal offence” which will align with the definition of “Tribunal offence” at section 4 of the IWCT Act.

Item 78 - Paragraph 180B(8)(a)

468.           Section 180B of the TIA Act provides the basis for the AFP to authorise the disclosure of prospective telecommunications data to a foreign country for the purposes of the enforcement of the criminal law of a foreign country. Subsection 180B(8) outlines when information or documents disclosed to the AFP as a result of an authorisation under subsection 180B(2) can be disclosed to a foreign law enforcement agency. The wording at paragraph 180B(8)(a) currently limits the provision to disclosure of information to a foreign country « and » does not extend to the disclosure of information to the ICC or an IWCT.

469.           Item 78 of Schedule 1 repeals paragraph 180B(8)(a) « and » substitutes new paragraph 180B(8)(a) which will enable information to be disclosed to the ICC or an IWCT. New paragraph 180B(8)(a) will provide that the information or documents will only be able to be disclosed if the authorised officer is satisfied that the disclosure is:

·          reasonably necessary for the investigation of:

o    an offence against a law of a foreign country (that is punishable by imprisonment for three or more years, imprisonment for life or the death penalty « and » would be a serious offence if the conduct had occurred in Australia)

o    an investigation or proceeding relating to a “crime within the jurisdiction of the ICC” (the definition of which will be inserted by Item 30 into section 5 of the TIA Act); or

o    an investigation or proceeding relating to a “War Crimes Tribunal offence” (the definition of which will be inserted by Item 32 into section 5 of the TIA Act); « and »

·          appropriate in all the circumstances.

470.           Item 30 of Schedule 1 inserts a definition of “crime within the jurisdiction of the ICC” by reference to section 4 of the ICC Act to be either an “international crime” or an offence against the administration of the ICC’s justice. Item 32 of Schedule 1 inserts a definition of “War Crimes Tribunal offence” which will align with the definition of “Tribunal offence” at section 4 of the IWCT Act.

471.           The effect of this amendment will be to remove existing barriers relating to when information or documents can be disclosed to a foreign law enforcement agency. This assistance will be subject to appropriate safeguards which align with the safeguards which apply to providing the equivalent assistance to foreign countries.

Item 79 - Application of « amendments »

472.           Item 79 of Schedule 1 provides for the application of the « amendments » made in this Part. It provides that they apply in relation to a request made to the Attorney-General by the ICC, a Tribunal or a foreign country on or after the commencement of this item. They will also apply to requests made before commencement if immediately before commencement the Attorney-General had not yet made a decision on the request. This is the case whether conduct, a crime or an offence to which the request relates occurred before, on or after that commencement.

473.           The « amendments » in this Part are procedural in scope « and » do not have the effect of criminalising or penalising conduct which was otherwise lawful prior to the « amendments » . It is necessary for these provisions to apply retrospectively as the conduct that is being investigated may continue over several years or may not be discovered immediately.



 

Part 6 - Use of surveillance devices

474.           The Surveillance Devices Act 2004 establishes a regime for the use of surveillance devices, where such use would otherwise be prohibited under Commonwealth, state or territory law. Currently, prescribed Australian agencies may apply to an eligible judge or nominated Administrative Appeals Tribunal member for warrants to use surveillance devices to assist in the investigation of domestic offences or offences in relation to a foreign country. These law enforcement tools are not currently available for the investigation or prosecution of an offence within the jurisdiction of the ICC or a War Crimes Tribunal offence.

475.           This Part will amend the SD Act, the ICC Act « and » the IWCT Act to enable Australia to receive « and » respond to requests relating to the use of surveillance devices in respect of an ICC or IWCT request.

International Criminal Court Act 2002

Item 80 - Section 4 - definition of eligible law enforcement officer

476.           Section 4 of the ICC Act sets out definitions that are relevant to the operation of the Act. Item 80 of Schedule 1 inserts a definition of “eligible law enforcement officer” to reflect the « amendments » relating to the covert access « and » use of surveillance devices. “Eligible law enforcement officer” will be defined by reference to new subsection 79A(2) of the ICC Act, as inserted by Item 81 of Schedule 1. New subsection 79A(2) will define an “eligible law enforcement officer” as a person who is referred to in paragraphs (a) or (c) of the definition of “law enforcement officer” at subsection 6(1) of the SD Act. That is:

·          the Commissioner or Deputy Commissioner of the AFP

·          any AFP employee

·          any special member or person seconded to the AFP, or

·          an officer (however described) of the police force of a state or territory, or any person who is seconded to that police force.

477.           Under the « amendments » made by this Part, these officers will be able to be authorised by the Attorney-General to apply for a surveillance device warrant under section 14 of the SD Act (see Item 81).

Item 81 - After Division 12 of Part 4

478.           Item 81 of Schedule 1 inserts new Division 12A—“Requests for surveillance devices”—after Division 12 of Part 4 of the ICC Act. This new Division contains new section 79A « and » will establish the means by which Australia may respond to an ICC request for the use of a surveillance device. It will allow the Attorney-General to authorise an eligible law enforcement officer to apply for a surveillance device warrant under section 14 of the SD Act, if:

·          a request has been received from the ICC requesting surveillance device assistance

·          the Attorney-General is satisfied that an investigation is being conducted by the Prosecutor of the ICC or a proceeding is before the ICC, « and »

·          the Attorney-General is satisfied that the ICC has given appropriate undertakings in relation to the use « and » destruction of information obtained as a result of the use of the surveillance device « and » any « other » matter the Attorney-General considers relevant.

479.           This provision « and » accompanying safeguards will mirror the equivalent provision in the MA Act, section 15CA, which governs the provision of surveillance device assistance to foreign countries.

480.           “Eligible law enforcement officer” will be defined under new subsection 79A(2) by reference to column 3 of table item 5 in subsection 6A, or column 3 of table item 5 in subsection 6A(7) of the SD Act. As such, the following persons will be able to be authorised by the Attorney-General to apply for a surveillance device warrant in response to a formal assistance request:

·          the Commissioner or Deputy Commissioner of the AFP

·          any AFP employee

·          any special member or person seconded to the AFP, or

·          an officer (however described) of the police force of a state or territory, or any person who is seconded to that police force.

481.           Item 81 of Schedule 1 also inserts a note to explain that the eligible law enforcement officer can only apply for the warrant if he or she reasonably suspects that the use of the device is necessary for the investigation or proceeding (see subsection 14(3A) of the SD Act).

International War Crimes Tribunals Act 1995

Item 82 - Section 4 - definition of eligible law enforcement officer

482.           Section 4 of the IWCT Act sets out definitions that are relevant to the operation of the Act. Item 82 of Schedule 1 inserts a definition of “eligible law enforcement officer” to reflect the « amendments » relating to covert access « and » the use of surveillance devices. “Eligible law enforcement officer” will be defined by reference to new subsection 32A(2) of the IWCT Act, as inserted by Item 83 of Schedule 1. New subsection 32A(2) will define an “eligible law enforcement officer” as a person who is referred to in paragraphs (a) or (c) of the definition of “law enforcement officer” at subsection 6(1) of the SD Act. That is:

·          the Commissioner or Deputy Commissioner of the AFP

·          any AFP employee

·          any special member or person seconded to the AFP, or

·          an officer (however described) of the police force of a state or territory, or any person who is seconded to that police force.

483.           Under the « amendments » made by this Part, these officers will be able to be authorised by the Attorney-General to apply for a surveillance device warrant under section 14 of the SD Act.

Item 83 - After Division 1 of Part 4

484.           Item 83 of Schedule 1 inserts new section 32A, which will establish the means by which Australia may respond to an IWCT request for a surveillance device. It will allow the Attorney-General to authorise an eligible law enforcement officer to apply for a surveillance device warrant under section 14 of the SD Act, if:

485.           a request has been received from an IWCT requesting surveillance device assistance

486.           the Attorney-General is satisfied that an investigation is being conducted, or a proceeding is before, the Tribunal, « and »

487.           the Tribunal has given appropriate undertakings in relation to the use « and » destruction of information obtained as a result of the use of the surveillance device « and » any « other » matter the Attorney-General considers relevant.

488.           This provision « and » accompanying safeguards will mirror the equivalent provision in the MA Act, section 15CA, which governs the provision of surveillance device assistance to foreign countries.

489.           “Eligible law enforcement officer” will be defined under new subsection 32A(2) by reference to column 3 of table item 5 in subsection 6A, or column 3 of table item 5 in subsection 6A(7) of the SD Act. As such, the following persons will be able to be authorised by the Attorney-General to apply for a surveillance device warrant in response to a formal assistance request:

·          the Commissioner or Deputy Commissioner of the AFP

·          any AFP employee

·          any special member or person seconded to the AFP, or

·          an officer (however described) of the police force of a state or territory, or any person who is seconded to that police force.

490.           Item 83 of Schedule 1 also inserts a note to explain that the eligible law enforcement officer can only apply for the warrant if he or she reasonably suspects that the use of the device is necessary for the investigation or proceeding (see subsection 14(3A) of the SD Act).

Surveillance Devices Act 2004

Item 84 - Subsection 6(1)

491.           Section 6 of the SD Act sets out definitions that are relevant to the operation of the SD Act.  Item 84 of Schedule 1 inserts definitions into the SD Act relevant to the « amendments » relating to use of surveillance devices to assist the ICC « and » IWCTs.



 

Definition of international assistance application

492.           Item 84 of Schedule 1 inserts a definition of “international assistance application” which will mean an application for a surveillance device warrant made pursuant to an “international assistance authorisation”.

Definition of international assistance authorisation

493.           Item 84 of Schedule 1 inserts a definition of “international assistance authorisation” which will mean an authorisation under subsection 15CA(1) of the MA Act, an authorisation under subsection 79A(1) of the ICC Act (as inserted by Item 81 of Schedule 1) or an authorisation under subsection 32A(1) of the IWCT Act (as inserted by Item 83 of Schedule 1).

Item 85 - Subsection 6(1)

494.           Item 85 of Schedule 1 repeals the definitions of “mutual assistance application” « and » “mutual assistance authorisation” given these terms are confined to assistance in relation to a foreign country. These definitions will be covered by, respectively, definitions of “international assistance application” « and » “international assistance authorisation” (as inserted by Item 84 of Schedule 1) which are more expansive terms which cover foreign countries, in addition to the ICC « and » IWCTs.

Item 86 - Subsection 6(1)

495.           Item 86 of Schedule 1 inserts a definition of “offence”. It will provide that the meaning of “offence” is affected by subsection 6(5) of the SD Act (see Item 87 of Schedule 1).

Item 87 - At the end of section 6

496.           Item 87 of Schedule 1 inserts new words at the end of section 6 which will operate as a clarifying provision. It will provide that, to avoid doubt, references in the SD Act to an offence in relation to an international assistance authorisation is a reference to a crime within the jurisdiction of the ICC (within the meaning of that Act).

Item 88 - Subsection 14(3A)

497.           Subsection 14(3A) sets out the process for applying for a surveillance device warrant « and » the requirements that must be met in an application in relation to foreign offences. It enables a law enforcement officer, or another person on his or her behalf, to apply for a surveillance device warrant in relation to foreign offences but does not extend to offences within the jurisdiction of the ICC or a War Crimes Tribunal offence.

498.           Item 88 of Schedule 1 repeals subsection 14(3A) « and » substitutes new subsection 14(3A) which will set out the requirements that must be met before a law enforcement officer (or a person acting on his or her behalf) may apply for the issue of a surveillance device warrant for ICC, IWCT « and » foreign purposes. These are that he or she:

·          is authorised to do so under an “international assistance authorisation”, the definition of which is inserted by Item 84 to mean an authorisation under subsection 15CA(1) of the MA Act, an authorisation under new subsection 79A(1) of the ICC Act (as inserted by Item 81) or an authorisation under new subsection 32A(1) of the IWCT Act (as inserted by Item 83); « and »

·          suspects on reasonable grounds that the use of a surveillance device is necessary, in the course of the investigation, proceeding or investigative proceedings to which the authorisation relates for the purpose of enabling evidence to be obtained of—

o    the commission of an offence to which the authorisation relates; or

o    the identity or location of the persons suspected of committing the offence.

499.           This threshold test will be similar to that which currently applies for applications for warrants for domestic offences. Further, the amendment does not change the test in relation to a foreign country. This will ensure that applications for surveillance device warrants are subjected to the same level of rigour « and » scrutiny whether they apply to domestic, foreign or international offences.

Item 89 - Paragraphs 16(1)(ba) « and » (2)(a)

500.           Section 16 describes the criteria of which an eligible Judge or nominated AAT member must be satisfied in order to issue a surveillance device warrant. Paragraph 16(1)(ba) provides that, in the case of a warrant sought in relation to a mutual assistance authorisation, the eligible Judge or nominated AAT member must be satisfied that a mutual assistance authorisation is in force « and » there are reasonable grounds for the suspicion founding the application for the warrant. This provision is currently limited to requests from foreign countries « and » does not extend to requests from the ICC or an IWCT.

501.           Item 89 of Schedule 1 omits “a mutual assistance authorisation” « and » substitutes with “an international assistance authorisation”. The definition of “an international assistance authorisation” will be inserted by Item 84 of Schedule 1 to mean an authorisation under subsection 15CA(1) of the MA Act, an authorisation under new subsection 79A(1) of the ICC Act (as inserted by Item 81 of Schedule 1) or an authorisation under new subsection 32A(1) of the IWCT Act (as inserted by Item 83 of Schedule 1).

502.           The effect of this amendment is to extend the existing criteria to also apply to a warrant application in relation to the ICC or an IWCT, where there are reasonable grounds for the suspicion founding the application for the warrant.

Item 90 - Paragraph 16(2)(ea)

503.           Section 16 describes the criteria of which an eligible Judge or nominated AAT member must be satisfied in order to issue a surveillance device warrant. Subsection 16(2) requires the eligible Judge or nominated AAT member to have regard to certain matters when determining whether a surveillance device warrant should be issued. Paragraph 16(2)(ea) provides that, in the case of a warrant sought in relation to a mutual assistance authorisation, the eligible Judge or nominated AAT member must have regard to the likely evidentiary or intelligence value of any evidence or information sought to be obtained, to the extent that it is possible to determine this from the information obtained from the foreign country . This provision is currently limited to requests from foreign countries « and » does not extend to requests from the ICC or an IWCT.

504.           Item 90 of Schedule 1 repeals paragraph 16(2)(ea) « and » substitutes new paragraph 16(2)(ea). New paragraph 16(2)(ea) will provide that in the case of a warrant sought in relation to an international assistance authorisation the eligible Judge or nominated AAT member must have regard to the likely evidentiary or intelligence value of any evidence or information sought to be obtained, to the extent that it is possible to determine this from the information obtained from the international entity (that is, foreign country, the ICC or an IWCT) to which it relates. This ensures the existing process « and » safeguards applicable to the process of issuing a warrant extend to applications for an ICC or IWCT warrant.

Item 91 - Subparagraph 17(1)(b)(iiia)

505.           Subparagraph 17(1)(b)(iiia) requires a warrant issued in relation to a mutual assistance authorisation to specify the offence or offences against the law of a foreign country to which the warrant relates. This provision is currently limited to requests from foreign countries « and » does not extend to requests from the ICC or an IWCT.

506.           Item 91 of Schedule 1 repeals subparagraph 17(1)(b)(iiia) « and » substitutes new subparagraph 17(1)(b)(iiia) which will extend the provision to requests from the ICC « and » IWCTs. This will ensure that warrants issued in response to a request from the ICC or an IWCT include each offence to which the authorisation relates.

Items 92 « and » 93 - Paragraph 21(3A)(a) « and » subparagraph 21(3A)(b)(i)

507.           Subsection 21(3A) provides the procedure for revoking « and » discontinuing the use of a surveillance device issued in respect of a mutual assistance authorisation. For subsection 21(3A) to apply, the requirements at paragraph 21(3A)(a) « and » (b) have to be met. These require a surveillance device warrant to have been sought by or on behalf of a law enforcement officer as authorised under a mutual assistance authorisation « and » the chief officer of the law enforcement agency to which the warrant was issued to be satisfied that the use of the surveillance device is no longer required for the purpose for which it was issued.

508.           Items 92 « and » 93 of Schedule 1 will make « amendments » to extend subsection 21(3A) to apply to the revocation « and » discontinuation of a surveillance device issued in respect of an international assistance authorisation. These « amendments » will ensure that ICC « and » IWCT warrants are also cancelled « and » revoked when no longer necessary for the purpose for which it was obtained mirroring the safeguards that apply to warrants issued in respect of a foreign country.

Item 92 - Paragraph 21(3A)(a)

509.           Item 93 of Schedule 1 omits “a mutual assistance authorisation” at subparagraph 21(3A)(a) « and » substitutes “an international assistance authorisation”. The definition of “an international assistance authorisation” will be inserted by Item 84 of Schedule 1 « and » will mean an authorisation under subsection 15CA(1) of the MA Act, an authorisation under subsection 79A(1) of the ICC Act (as inserted by Item 81 of Schedule 1) or an authorisation under subsection 32A(1) of the IWCT Act (as inserted by Item 83 of Schedule 1).

510.           The effect of this amendment will be that the requirement to revoke « and » discontinue a warrant will extend to warrants issued for the ICC « and » an IWCT.



 

Item 93 - Subparagraph 21(3A)(b)(i)

511.           Item 93 of Schedule 1 repeals subparagraph 21(3A)(b)(i) « and » substitutes new subparagraph 21(3A)(b)(i) which will refer to the commission of any offence to which the authorisation relates.

512.           The effect of this amendment will be that the requirement to revoke « and » discontinue a warrant will extend to warrants issued for the ICC « and » an IWCT.

Item 94 - Paragraph 21(5)(c)

513.           Section 21 sets out the procedure for discontinuing a surveillance device warrant if it is no longer necessary. Subsection 21(5) places responsibilities on the law enforcement officer to whom the warrant was issued to inform the chief officer if they believe the use of the device is no longer necessary. Paragraph 21(5)(c) requires law enforcement officers to whom a warrant was issued in response to a mutual assistance authorisation, or who is primarily responsible for executing the warrant, to immediately inform the chief officer of his or her law enforcement agency where he or she believes that a surveillance device is no longer required to obtain evidence relating to the offence detailed in the mutual assistance authorisation, or of the identity or location of the suspects. This section is currently limited to requests made by foreign countries « and » does not extend to requests by the ICC or an IWCT.

514.           Item 94 of Schedule 1 repeals current paragraph 21(5)(c) « and » substitutes new paragraph 21(5)(c) which will extend the provision to international assistance authorisations (rather than only mutual assistance authorisations). The definition of “an international assistance authorisation” will be inserted by Item 84 of Schedule 1 « and » will mean an authorisation under subsection 15CA(1) of the MA Act, an authorisation under subsection 79A(1) of the ICC Act (as inserted by Item 81) or an authorisation under subsection 32A(1) of the IWCT Act (as inserted by Item 83 of Schedule 1).

515.           The effect of this amendment is that new paragraph 21(5)(c) will require the officer to immediately inform the chief officer of the law enforcement agency to which he or she belongs or is seconded if he or she believes that the surveillance device is no longer required to collect evidence relating to:

·          the commission of any offence to which the authorisation relates, or

·          the identity or location of the persons suspected of committing the offence.

516.           The effect of this amendment will be that the requirement to revoke « and » discontinue a warrant will extend to warrants issued for the ICC or an IWCT. This is an important safeguard as it ensures that surveillance device warrants are discontinued where no longer necessary.

Items 95 « and » 96 - Paragraph 45(4)(f) « and » subsection 45(6)

517.           Subsections 45(1) « and » (2) contain offences for the unauthorised use, recording, communication or publishing of any protected information. Subsection 45(3) states that protected information may not be admitted into evidence in any proceedings. Subsection 45(4) lists exceptions to the offences in subsections 45(1) « and » (2) « and » to the rule in subsection 45(3). The exception in paragraph 45(4)(f) applies to the communication of information to a foreign country, or the use of that information in accordance with the MA Act. This exception currently only applies to requests from foreign countries « and » does not extend to requests from the ICC or an IWCT.

518.           Item 95 of Schedule 1 repeals paragraph 45(4)(f) « and » substitutes new paragraphs 45(4)(f) « and » 45(4)(g). New paragraph 45(4)(f) will apply the exception to information obtained under, or relating to, a surveillance device warrant issued in relation to an international assistance authorisation. The definition of “an international assistance authorisation” will be inserted by Item 84 of Schedule 1 « and » will mean an authorisation under subsection 15CA(1) of the MA Act, an authorisation under subsection 79A(1) of the ICC Act (as inserted by Item 81 of Schedule 1) or an authorisation under subsection 32A(1) of the IWCT Act (as inserted by Item 83 of Schedule 1). This will ensure that information obtained under a surveillance device warrant executed in response to a formal request from the ICC or an IWCT will be able to be disclosed to those entities without it being an offence under the SD Act.

519.           New paragraph 45(4)(g) will apply the exception to the communication of information for the purposes of providing it to a foreign country, or an appropriate authority of a foreign country, if this has been authorised under subsection 13A(1) of the MA Act (as is already provided for) « and » will align with the « amendments » to subsection 45(4) inserted by Item 6 of Schedule 1.

520.           As a consequential amendment to the inclusion of new paragraph 45(4)(g), Item 96 of Schedule 1 inserts paragraph 45(4)(g) in subsection 45(6). This will ensure that paragraph 45(4)(g) does not authorise certain dealings with certain protected information.

Item 97 - Paragraphs 50(1)(aa) « and » (ea)

521.           Section 50 requires the chief officer of a law enforcement agency to provide an annual report to the Minister setting out certain matters. Paragraph 50(1)(aa) requires the annual report to set out the number of mutual assistance applications made by or on behalf of, « and » the number of warrants issued to, law enforcement officers in the agency during that year. Paragraph 50(1)(ea) requires the annual report to set out the number of mutual assistance applications made by, or on behalf of, law enforcement officers of the agency that were refused during that year, « and » the reasons for refusal.

522.           Item 97 of Schedule 1 omits “a mutual assistance authorisation” « and » substitutes “an international assistance authorisation”. The definition of “an international assistance authorisation” will be inserted by Item 84 of Schedule 1 to mean an authorisation under subsection 15CA(1) of the MA Act, an authorisation under subsection 79A(1) of the ICC Act (as inserted by Item 81 of Schedule 1) or an authorisation under subsection 32A(1) of the IWCT Act (as inserted by Item 83 of Schedule 1).

523.           The effect of the amendment is that under amended paragraph 50(1)(aa) the annual report will be required to set out the number of international assistance applications made by, or on behalf of, « and » the number of warrants issued to, law enforcement officers in the agency during that year. Paragraph 50(1)(ea) will require the annual report to set out the number of international assistance applications made by, or on behalf of, law enforcement officers of the agency that were refused during that year, « and » the reasons for refusal. That is, the reports will need to outline how many applications have been made « and » warrants issued for ICC « and » IWCT purposes. This will provide an important oversight on the application « and » use of the « amendments » .

Item 98 - Paragraph 50(1)(ia)

524.           Section 50 requires the chief officer of a law enforcement agency to provide an annual report to the Minister setting out certain matters. Paragraph 50(1)(ia) requires the annual report to set out the Commonwealth, state or territory offence (if any) which corresponds to the relevant foreign offence in respect of which a mutual assistance application was made by, or on behalf of, law enforcement officers of that agency during the year. This section is currently limited to requests made by foreign countries « and » does not extend to requests by the ICC or an IWCT.

525.           Item 98 of Schedule 1 repeals paragraph 50(1)(ia) « and » substitutes new paragraph 50(1)(ia) which will extend the provision to offences within the jurisdiction of the ICC (in respect of a request by the ICC) « and » Tribunal offences (in respect of a request by an IWCT).

526.           The effect of this amendment is that new paragraph 50(1)(ia) will require the annual report to set out the Commonwealth, state or territory offence (if any) which corresponds to the relevant offence against a law of a foreign country, crime within the jurisdiction of the ICC or Tribunal offence for which the warrant was issued to that agency during the year. This will provide an important oversight on the application « and » use of the « amendments » .

Item 99 - Subparagraph 53(2)(c)(iiia)

527.           Section 53 requires the chief officer of a law enforcement agency to ensure a register is kept of warrants, emergency authorisations « and » tracking device authorisations sought by law enforcement officers of that agency. Subsection 53(2) requires the register to specify certain matters including the relevant foreign offence to which the authorisation relates where the warrant was issued in relation to a mutual assistance authorisation (subparagraph 53(2)(c)(iiia)). This provision is currently limited to monitoring authorisations « and » warrants obtained in respect of requests from foreign countries « and » does not extend to requests from the ICC or an IWCT.

528.           Item 99 of Schedule 1 repeals subparagraph 53(2)(c)(iiia) « and » substitutes new subparagraph 53(2)(c)(iiia).   The definition of “an international assistance authorisation” is inserted by Item 84 of Schedule 1 to mean an authorisation under subsection 15CA(1) of the MA Act, an authorisation under subsection 79A(1) of the ICC Act (as inserted by Item 81 of Schedule 1) or an authorisation under subsection 32A(1) of the IWCT Act (as inserted by Item 83 of Schedule 1).

529.           The effect of this amendment is that the register will be required to specify each offence to which the authorisation relates (whether it be an offence of a foreign country, an offence within the jurisdiction of the ICC or a Tribunal offence). This will provide an important oversight on the application « and » use of the « amendments » .

Item 100 - Application of « amendments »

530.           Item 100 of Schedule 1 provides for the application of « amendments » made by this Part. It provides that they apply in relation to a request made to the Attorney-General by the ICC, Tribunal or a foreign country that was made on or after commencement. It also provides that they apply in relation to such requests made before commencement where immediately before commencement the Attorney-General had not yet made a decision on the request. This is the case whether conduct, a crime or an offence to which the request relates occurred before, on or after that commencement.

531.           The « amendments » in this Part are procedural in scope « and » do not have the effect of criminalising or penalising conduct which was otherwise lawful prior to the « amendments » . It is necessary for these provisions to apply retrospectively as the conduct that is being investigated may continue over several years or may not be discovered immediately.

Part 7 - Forensic procedures

532.           Forensic procedures (for example, obtaining fingerprints « and » DNA samples) can provide compelling evidence which may confirm or exclude a person as a suspect in the commission of an offence. These procedures are used in criminal investigations throughout Australia for domestic purposes « and » to assist in investigations « and » prosecutions in foreign countries. Currently under the Crimes Act 1914, there is no explicit power enabling Australia to conduct a compulsory forensic procedure on a suspect in response to a formal request from the ICC or an IWCT. Further, it is unclear in the current legislative framework as to whether Australia can provide forensic material from a suspect or volunteer on an informal basis.

533.           Further, the permitted purposes for using information on the National Criminal Investigation DNA Database (NCIDD) do not currently allow Australia to provide information to the ICC or an IWCT to confirm whether there is a match between a DNA profile provided by the ICC or an IWCT « and » a DNA profile held on the NCIDD.

534.           Part 7 of Schedule 1 will amend the ICC Act, IWCT Act « and » the Crimes Act to enable a member or special member of the AFP, or a state or territory police officer, to carry out a forensic procedure on a suspect in relation to a foreign serious offence, either with informed consent or compulsorily, at the request of the ICC or an IWCT. Part 7 would also clarify the procedures for obtaining forensic material from a volunteer on an informal basis on behalf of a request by a person investigating an offence within the jurisdiction of the ICC or a War Crimes Tribunal offence.

Crimes Act 1914

Item 101 - Part ID (simplified outline)

535.           The simplified outline of Part ID currently summarises the main provisions contained in Part ID of the Crimes Act. This includes a paragraph outlining the application of the Crimes Act in cases where the forensic procedure is to be carried out in response to a request made by a foreign country under the MA Act or a request by a foreign law enforcement agency.

536.           To clarify that this Part will also relate to requests by the ICC or an IWCT, Item 101 of Schedule 1 omits “(as contemplated by the Mutual Assistance in Criminal Matters Act 1987 )” « and » substitutes “or an international tribunal” which is defined at Item 105 of Schedule 1 to include the ICC or an IWCT. The amendment will highlight that certain rules contained within the Crimes Act relating to the carrying out of forensic procedures will not apply or will be modified in their application to forensic procedures carried out at the request of a foreign country, a foreign law enforcement agency or an international tribunal.

Items 102 to 110 - Definitions (subsections 23WA(1) « and » 23WA(9))

537.           Section 23WA sets outs the definitions that are relevant to the operation of Part ID of the Crimes Act. Items 102 to 110 of Schedule 1 insert, or amend, existing definitions relevant to the changes being made by this Part.

Item 102 - Subsection 23WA(1)

Definition of authorising provision

538.           Item 102 of Schedule 1 inserts a definition of “authorising provision” which will relate to a request from a foreign country, the ICC or an IWCT. The term will apply in situations in which the Attorney-General is requested to authorise (under an “authorising provision”) an authorised applicant to apply to a magistrate for an order for the carrying out of the forensic procedure.

539.           Where a request is received from a foreign country or an international tribunal, the relevant authorising provision will be section 28B of the MA Act (in relation to requests from a foreign country), section 76A of the ICC Act (in relation to requests from the ICC) « and » section 32B of the IWCT Act (in relation to requests from an IWCT). Item 105 will insert a definition of “international tribunal” into subsection 23WA(1) to mean either the ICC or an IWCT.

Definition of crime within the jurisdiction of the ICC

540.           The « amendments » made by this Part will allow a forensic procedure to be carried out at the request of the ICC in relation to a “crime within the jurisdiction of the ICC”.

541.           Item 102 of Schedule 1 inserts a definition of “crime within the jurisdiction of the ICC” into subsection 23WA(1) of the Crimes Act. “Crime within the jurisdiction of the ICC” will have the same definition as at section 4 of the ICC Act to be either an “international crime” or an offence against the administration of the ICC’s justice. The ICC Act defines an “international crime” as a crime in respect of which the ICC has jurisdiction under Article 5 of the Rome Statute. Article 5 of the Rome Statute notes that the ICC has jurisdiction with respect to the crime of genocide, crimes against humanity, war crimes « and » the crime of aggression.

542.           The effect of this amendment will be to define the types of ICC offences for which a forensic procedure may be carried out at the request of the ICC.

Item 103 - Subsection 23WA(1) - (at the end of the definition of foreign law enforcement agency )

543.           The current definition of “foreign law enforcement agency” at subsection 23WA(1) of the Crimes Act is limited to a police force of a foreign country or any « other » authority or person responsible for the enforcement of the laws of the foreign country. This definition does not extend to the ICC « and » IWCTs which means that certain forensic evidence (such as forensic material obtained from a volunteer) cannot be requested by or provided to the ICC or IWCTs on an agency-to-agency basis despite the fact that organs within those entities have investigative functions.

544.           Item 103 of Schedule 1 expands the current definition of “foreign law enforcement agency” to insert, in addition to the existing authorities, any authority or person responsible to the ICC for investigating or prosecuting a “crime within the jurisdiction of the ICC” or responsible to an IWCT for investigating or prosecuting a “War Crimes Tribunal offence”. Such authorities « and » persons will include those responsible for receiving « and » analysing information on situations or alleged crimes within the jurisdiction of the ICC or a War Crimes Tribunal offence in order to determine whether there is a reasonable basis to initiate an investigation « and » to bring the perpetrators of these crimes before the ICC or relevant IWCT. For example, for the purposes of the ICC this would include divisions within the Office of the Prosecutor including the Investigative Division, the Prosecution Division « and » the Jurisdiction, Complementarity « and » Cooperation Division.

Item 104 - Subsection 23WA(1)

Definition of foreign serious offence

545.           The Crimes Act currently enables a forensic procedure to be carried out in relation to investigating, or prosecuting a person for a “foreign serious offence”. The current definition of “foreign serious offence” is linked to the definition in the MA Act which defines such an offence as a “serious offence” against a law of a foreign country. A “serious offence” is defined as a crime for which the maximum penalty is death, imprisonment for a period exceeding 12 months or a fine exceeding 300 penalty units. The current definition of “foreign serious offence” in the Crimes Act does not include offences in respect of international entities such as the ICC « and » IWCTs.

546.           To enable forensic procedures to be carried out at the request of the ICC or IWCTs, Item 104 of Schedule 1 repeals the definition of “foreign serious offence” « and » substitutes a new definition which will include a crime within the jurisdiction of the ICC or a War Crimes Tribunal offence. Crimes within the jurisdiction of the ICC will be defined at subsection 23WA(1) (as inserted by Item 102 of Schedule 1) to have the same definition as at section 4 of the ICC Act as either an international crime or an offence against the administration of the ICC’s justice. The definition of a War Crimes Tribunal offence (as inserted by Item 109 of Schedule 1) will have the same meaning as a “tribunal offence” in the IWCT Act. The IWCT Act defines a “tribunal offence” at section 4 to be:

(a)    an offence for which the Former Yugoslavia Tribunal has the power to prosecute persons under Article 2, 3, 4 or 5 of the Statute of the Tribunal; or

(b)    an offence for which the Rwanda Tribunal has the power to prosecute persons under Article 2, 3 or 4 of the Statute of the Tribunal; or

(c)    an offence for which the International Residual Mechanism for Criminal Tribunals has the power to prosecute persons under Article 1 of the Statute of the Tribunal.

Item 105 - Subsection 23WA(1) - definitions of ICC « and » international tribunal

547.           To enable forensic procedures to be carried out at the request of the ICC, Item 105 of Schedule 1 inserts a new definition of “ICC” into the Crimes Act which aligns with the definition at section 4 of the ICC Act. The ICC Act defines the “ICC” as the International Criminal Court established under the Statute, including any of the organs of the Court within the meaning of the Statute.

548.           To enable forensic procedures to be carried out at the request of an IWCT or the ICC, Item 105 of Schedule 1 inserts a definition of “international tribunal” into the Crimes Act. It will be defined as the ICC or a War Crimes Tribunal.

Item 106 - Subsection 23WA(1) (paragraph (a) of the definition of investigating constable )

549.           “Investigating constable” is defined at subsection 23WA(1) of the Crimes Act in the case of a request by a foreign country (as contemplated by the MA Act), as the constable in charge of coordinating the response to the request.

550.           The « amendments » made by this Part will allow a forensic procedure to be carried out at the request of the ICC or an IWCT « and » will also provide for the provision of forensic material to those entities.

551.           Item 106 of Schedule 1 inserts into paragraph (a) of the current definition of “investigating constable” a reference to “an international tribunal”. This will ensure that the definition of “investigating constable” covers situations where the forensic procedure is being carried out at the request of the ICC or an IWCT. This will ensure that the “investigating constable” will be clearly identifiable in all cases « and » the definition will cover situations in which a constable is in charge of coordinating a response to a request from the ICC or an IWCT.

Item 107 - Subsection 23WA(1) - definition of request

552.           Currently under the Crimes Act, there is no explicit power enabling Australia to conduct a compulsory forensic procedure on a suspect in response to a formal request from the ICC or an IWCT. Further, it is unclear as to whether Australia can provide forensic material from a suspect or volunteer in response to a request on an agency-to-agency basis.

553.           To ensure a procedure can be carried out following a request from the ICC or an  IWCT, Item 107 of Schedule 1 inserts a definition of “request”. This term will mean a request by a country under section 28B of the MA Act, a request by the ICC under section 76A of the ICC Act « and » a request by an IWCT under section 32B of the IWCT Act. To reflect the fact that certain forensic material can be provided on an agency-to-agency basis, the definition of “request” will, if the entity is a foreign law enforcement agency, include requests by a foreign law enforcement agency to which Subdivision B of Division 9A applies.

Item 108 - Subsection 23WA(1) (paragraph (d) of the definition of suspect )

554.           “Suspect” is currently defined in subsection 23WA(1) of the Crimes Act, in relation to an indictable offence, as:

(a)     a person whom a constable suspects on reasonable grounds has committed the indictable offence

(b)    a person charged with the indictable offence; or

(c)     a person who has been summonsed to appear before a court in relation to the indictable offence.

(d)    a person in respect of whom a forensic procedure has been requested by a foreign country (as contemplated by the MA Act) or a foreign law enforcement agency because the foreign country has:

                  (i)   started investigating whether the person has committed an indictable

                        offence;

                 (ii)   started proceedings against the person for an indictable offence.

555.           The current definition does not extend to offences within the jurisdiction of the ICC or an IWCT offence.

556.           Item 108 of Schedule 1 amends the definition of “suspect” to ensure it extends to a person being investigated or prosecuted for a crime within the jurisdiction of the ICC or a war crimes tribunal offence.

Item 109 - Subsection 23WA(1) - definitions of War Crimes Tribunal and War Crimes Tribunal Offence

557.           Currently this Part does not include reference to War Crimes Tribunals « and » War Crimes Tribunal offences. To enable forensic procedures to be carried out at the request of an IWCT, Item 109 of Schedule 1 inserts a definition of “War Crimes Tribunal” into the Crimes Act which aligns with the definition of “tribunal” in the IWCT Act. The IWCT Act defines “tribunal” as the Former Yugoslavia Tribunal, the Rwanda Tribunal or the International Residual Mechanism for Criminal Tribunals.

558.           Item 109 of Schedule 1 inserts a definition of “war crimes tribunal offence” which will have the same meaning as a “tribunal offence” in the IWCT Act. The IWCT Act defines a “tribunal offence” at section 4 to mean:

(a)     an offence for which the Former Yugoslavia Tribunal has the power to prosecute persons under Article 2, 3, 4 or 5 of the Statute of the Tribunal; or

(b)    an offence for which the Rwanda Tribunal has the power to prosecute persons under Article 2, 3 or 4 of the Statute of the Tribunal; or

(c)     an offence for which the International Residual Mechanism for Criminal Tribunals has the power to prosecute persons under Article 1 of the Statute of the Tribunal.

559.           The effect of this item will be that an IWCT will be able to request Australia’s assistance in providing forensic material to assist in an IWCT investigation or prosecution into a War Crimes Tribunal offence.

Item 110 - Subsection 23WA(9)

560.           Subsection 23WA(9) of the Crimes Act clarifies how the provisions of Part ID are intended to operate following a request by a foreign country or foreign law enforcement agency. Where a request is made by a foreign country or foreign law enforcement agency, the subsection provides that the provisions of Part ID apply as if a reference to an indictable offence is a reference to a foreign serious offence. This provision currently does not extend to crimes within the jurisdiction of the ICC or War Crimes Tribunal offences.

561.           Item 110 of Schedule 1 repeals subsection 23WA(9) « and » substitutes new subsection 23WA(9) which will extend the provision to requests by an international tribunal (which includes the ICC or an IWCT). The effect of this amendment is that the provisions of Part ID will apply in relation to a forensic procedure carried out because of a request by a foreign country, international tribunal or foreign law enforcement agency as if a reference to an indictable offence were a reference to a foreign serious offence. These « amendments » substitute a new definition of “foreign serious offence” whereby such an offence will include a crime within the jurisdiction of the ICC or a War Crimes Tribunal offence.

Item 111 - Paragraph 23WJ(1)(ib)

562.           Section 23WF of the Crimes Act sets out the procedure that applies when a constable seeks a suspect’s consent to a forensic procedure. Paragraph 23WJ(1)(ib) sets out further information a suspect is required to be given if the suspect is being asked to undergo a forensic procedure because of a request by a foreign law enforcement agency.

563.           Item 111 of Schedule 1 inserts the words “( « other » than an agency responsible to an international tribunal)” after the reference to foreign law enforcement agency at paragraph 23WJ(1)(ib). This reflects the insertion of paragraph 23WJ(1)(ic) (inserted by Item 112 of Schedule 1) which will outline the information a suspect will be required to be given prior to consenting to undergo a forensic procedure at the request of the ICC or an IWCT.

Item 112 - After paragraph 23WJ(1)(ib)

564.            Section 23WF of the Crimes Act sets out the procedure that applies when a constable seeks a suspect’s consent to a forensic procedure. Currently there is no provision outlining information to be given to a suspect if a request for forensic assistance is from the ICC or an IWCT.

565.           Item 112 of Schedule 1 inserts new paragraph 23WJ(1)(ic) after paragraph 23WJ(1)(ib) which will outline the information a suspect will be required to be given prior to consenting to undergo a forensic procedure at the request of the ICC or an IWCT on an agency-to-agency basis. New paragraph 23WJ(1)(ic) will set out further information a suspect will be required to be given if the suspect is being asked to undergo a forensic procedure because of a request by a foreign law enforcement agency responsible to the ICC or an IWCT. The suspect will be required to be informed:

·          of the name of the relevant tribunal

·          that the evidence will be provided to that tribunal, « and » may be used including in proceedings against the suspect in the relevant tribunal

·          that the retention of the relevant material will be governed by the rules of the international tribunal

·           that the retention of the relevant material will be subject to undertakings given by that tribunal, « and »

·          of the content of any undertakings given by the international tribunal.

566.            This amendment is an important safeguard governing the process of the provision of forensic evidence for domestic or foreign purposes « and » now also to forensic procedures resulting from a request from the ICC or an IWCT. It ensures the person is aware of information relevant to his or her decision to consent to the procedure.

Item 113 - Subsection 23WJ(6)

567.           Division 3 of Part ID of the Crimes Act contains provisions which govern the carrying out of a forensic procedure on a suspect with their informed consent. Section 23WJ of the Crimes Act sets out the matters that a suspect must be informed of before he or she is able to consent to the carrying out of a forensic procedure. These include how the procedure is to be carried out, that the evidence produced might be used in court proceedings, « and » that the suspect may refuse to consent. Subsection 23WJ(6) outlines the matters a suspect must be informed of by a constable if he or she refuses to consent to a forensic procedure following a request by a foreign law enforcement agency. This provision currently does not extend to requests for forensic assistance from the ICC or an IWCT.

568.           Item 113 of Schedule 1 repeals subsection 23WJ(6) « and » substitutes new subsection 23WJ(6). New subsection 23WJ(6) will require the constable to inform the suspect that if the suspect does not consent, the foreign country, ICC or IWCT may request that the forensic procedure be carried out « and » , following the request, the Attorney-General may authorise a constable to apply to a magistrate for an order for the carrying out of the procedure.

569.           Section 28B of the MA Act, « and » new sections 76A of the ICC Act « and » 32B of the IWCT Act will govern how « and » when the Attorney-General may accept a request from a foreign country, the ICC or an IWCT « and » authorise an application to a magistrate for the carrying out of a forensic procedure.

570.           This provision is consistent with the consequences of not consenting to a forensic procedure for domestic purposes (as set out in subsection 23WJ(3), (4) « and » (5)) « and » ensures the suspect is aware of all relevant information prior to determining whether to consent. Further, given the intrusive nature of forensic procedures, it is appropriate that the Attorney-General be required to approve any application for a forensic procedure where a person does not consent.

Item 114 - Paragraph 23WM(2A)(a)

571.           Division 4 of Part ID of the Crimes Act sets out the process for how « and » when a senior constable can order that a person carry out a non-intimate forensic procedure on a suspect where he or she has not consented to a forensic procedure under Division 3 of Part ID. Subsection 23WM(2A) currently provides that the Division does not apply if the procedure has been requested by a foreign country or a foreign law enforcement agency. This provision does not currently cover requests received from the ICC or an IWCT.

572.           Item 114 of Schedule 1 repeals the paragraph 23WM(2A) « and » substitutes new paragraph 23WM(2A)(a) which will apply to requests from the ICC « and » IWCTs. The effect of this new provision will be that the Division will not apply if the procedure has been requested by a foreign country, the ICC or an IWCT or a foreign law enforcement agency.



 

Items 115 to 117

573.           Division 5 of Part ID of the Crimes Act contains provisions which govern the carrying out of a forensic procedure on a suspect by order of a magistrate. The Division operates where a person has not consented to the forensic procedure under Division 3 of Part ID.

574.           The Division sets out the process for obtaining an order from a magistrate including the matters that must be considered by the magistrate before he or she makes an order for the carrying out of the forensic procedure.

575.           Items 115 to 117 of Schedule 1 amend various provisions in Division 5 of Part ID so that the Division also enables a magistrate to order the carrying out of a forensic procedure on a person suspected of having committed a foreign serious offence, noting that this definition now includes a crime within the jurisdiction of the ICC or an IWCT offence.

Item 115 - Paragraph 23WR(1)(d)

576.           Section 23WR of the Crimes Act sets out the circumstances in which a magistrate may order that a forensic procedure be carried out on a suspect. Paragraph 23WR(1)(d) currently enables a forensic procedure to be carried out on a suspect if the forensic procedure has been requested by a foreign country ( « and » subsequently approved by the Attorney-General under the MA Act). Item 115 of Schedule 1 repeals paragraph 23WR(1)(d) « and » substitutes new paragraph 23WR(1)(d) which will set out a further circumstance in which a magistrate may order a forensic procedure be carried out on a suspect.

577.           New paragraph will 23WR(1)(d) will provide a basis for a magistrate to order the carrying out of a forensic procedure on a suspect if the procedure has been requested by either a foreign country or an international tribunal.

578.           Notably, « and » pursuant to current subsection 23WR(2), a magistrate is not authorised to order the carrying out of a forensic procedure on a suspect if the procedure has been requested by a foreign law enforcement agency. This ensures that any forensic procedure carried out on a suspect without their consent must be as a result of a formal request by a foreign country or international tribunal « and » subsequent approval by the Attorney-General.

Item 116 - Paragraph 23WT(1)(ca)

579.           Subsection 23WT(1) of the Crimes Act sets out the matters of which a magistrate must be satisfied before ordering that a forensic procedure be carried out on a suspect. These include that on the evidence before him or her, there are reasonable grounds to believe that the suspect committed a relevant offence, there are reasonable grounds to believe that the forensic procedure is likely to produce evidence tending to confirm or disprove that the suspect committed a relevant offence « and » the carrying out of the forensic procedure is justified in all the circumstances. These matters all need to be considered before a magistrate makes an order for the carrying out of a forensic procedure on a suspect. In situations in which the forensic procedure has been requested by a foreign country, paragraph 23WT(1)(ca) requires the magistrate to be satisfied that the constable has been authorised to make the application by the Attorney-General under the MA Act. Currently this provision only extends to forensic procedures requested by a foreign country « and » authorisations made under the MA Act.

580.           Item 116 of Schedule 1 repeals paragraph 23WT(1)(ca) « and » substitutes new paragraph 23WT(1)(ca) which will extend the provision to situations in which the forensic procedure has been requested by an international tribunal. The effect of the amendment is that where a forensic procedure has been requested by a foreign country or an international tribunal, the magistrate is to be satisfied that the constable has been authorised by the Attorney-General under the MA Act, ICC Act or IWCT Act to make the application for an order.

581.           The Attorney-General is able to authorise an application for the carrying out of a forensic procedure under section 28B of the MA Act or new sections 76A of the ICC Act (inserted by Item 136 of Schedule 1) or 32B of the IWCT Act (inserted by Item 138 of Schedule 1).

Item 117 - Paragraph 23WT(2)(a)

582.           Section 23WT of the Crimes Act sets out the matters of which a magistrate must be satisfied before ordering a suspect to undergo a forensic procedure, including that the magistrate must be satisfied on the balance of probabilities that the carrying out of the forensic procedure is justified in all the circumstances.

583.           Paragraph 23WT(2)(a) stipulates that in determining whether the carrying out of the forensic procedure pursuant to a foreign country’s request is justified in all the circumstances, a magistrate must balance the public interest in Australia providing « and » receiving international assistance in criminal matters, against the public interest in upholding the physical integrity of the suspect. This provision is currently limited to requests by foreign countries « and » does not extend to requests by international tribunals.

584.           Item 117 of Schedule 1 repeals paragraph 23WT(2)(a) « and » substitutes new paragraph 23WT(2)(a) which will extend the existing provision to international tribunals. This amendment is an important safeguard as it will ensure that in determining whether the carrying out of the forensic procedure pursuant to a request by an international tribunal is justified in all the circumstances, the magistrate must balance the public interest in Australia providing « and » receiving international assistance in criminal matters, against the public interest in upholding the physical integrity of the suspect.

Items 118 « and » 119 - Paragraph 23XWR(2)(da) « and » after paragraph 23XWR(2)(da)

585.           Section 23XWR governs the process for obtaining consent of a volunteer or a parent or guardian of a volunteer. Subsection 23XWR(2) contains matters of which the person must be informed prior to providing consent. Specifically, paragraph 23XWR(2)(da) states that where the volunteer will undergo a forensic procedure as a result of a request by a foreign law enforcement agency, the person is to be informed of:

·          the name of the foreign law enforcement agency that has made the request

·          that forensic evidence obtained from the procedure will be provided to that agency

·          that the evidence may be used in proceedings in the foreign country

·          that the retention of the evidence will be governed by the laws of the foreign country, « and »

·          any undertakings given by the foreign country relating to the retention of the evidence.

586.           This provision provides an important safeguard to ensure that a volunteer or a parent or guardian of a volunteer is fully informed of relevant considerations « and » is aware of all of the circumstances of the request including that he or she is consenting to the information obtained from the procedure being made available to foreign law enforcement authorities for a foreign offence « and » that the retention of the information will be governed by foreign not domestic law. This includes that if evidence or information is provided to the foreign country, withdrawing consent will mean the return of evidence or information is subject to foreign laws.

587.           The amendment that will be made by Items 118 « and » 119 of Schedule 1 will enable a forensic procedure to be carried out on a volunteer (with their consent) or a child or incapable person (with the consent of their parent or guardian), following a request from the ICC or an IWCT on an agency-to-agency basis.

Item 118 - Paragraph 23XWR(2)(da)

588.           Current paragraph 23XWR(2)(da) states that where the volunteer will undergo a forensic procedure as a result of a request by a foreign law enforcement agency, the person is to be informed of certain information before they can consent.

589.           Item 118 of Schedule 1 inserts “( « other » than an agency responsible to an international tribunal)” to reflect that new paragraph 23XWR(2)(db) (as inserted by Item 119 of Schedule 1) will provide the specific information of which a volunteer must be informed prior to consenting to a forensic procedure as a result of a request from an agency responsible to an international tribunal.

590.           The effect of this amendment is to explicitly exclude the provision from applying to requests from agencies responsible to international tribunals, given those agencies will be covered by new paragraph 23XWR(2)(db).

Item 119 - After paragraph 23XWR(2)(da)

591.           Current paragraph 23XWR(2)(da) states that where the volunteer will undergo a forensic procedure as a result of a request by a foreign law enforcement agency, the person is to be informed of certain information before they consent. This provision does not extend to agency-to-agency requests from the ICC or IWCTs.

592.           Item 119 of Schedule 1 inserts new paragraph 23XWR(2)(db) after paragraph 23XWR(2)(da) which will require a volunteer to be informed of certain information before the volunteer consents to a forensic procedure as a result of a request by a foreign law enforcement agency responsible to an international tribunal.

593.           New paragraph 23XWR(2)(db) will require a volunteer to be informed of:

·          the name of the international tribunal that has made the request

·          that forensic evidence obtained from the procedure will be provided to that agency

·          that the evidence may be used in proceedings in the international tribunal

·          that the retention of the evidence will be governed by the rules of the international tribunal

·          that the retention of the forensic evidence will be subject to undertakings given by the agency, « and »

·          the content of any undertakings.

594.           This requirement provides an important safeguard to ensure that a volunteer is aware of all the circumstances relating to a request prior to consenting. If a volunteer who is able to consent to a forensic procedure does not provide their consent to the carrying out of the procedure, or withdraws their consent, then the forensic procedure will not be able to be carried out on that volunteer under any circumstances (as it is not possible to obtain an order from a magistrate for the carrying out of a forensic procedure on a volunteer who is not a child or incapable person). 

595.           However, it will still be possible to carry out a forensic procedure on a child or incapable person following a formal mutual assistance request by the ICC or an IWCT for the carrying out of the forensic procedure on that child or incapable person, « and » Attorney-General approval.

Item 120 - Paragraph 23XWU(1)(d)

596.           Subsection 23XWU (1) of the Crimes Act sets out the circumstances in which a magistrate may order the carrying out of a forensic procedure on a child or incapable person . Currently paragraph 23XWU(1)(d) states that a magistrate can order a child or incapable person to undergo a forensic procedure if, where the forensic procedure has been requested by a foreign country, a constable has been authorised by the Attorney-General under the MA Act to make the application for an order. This provision currently does not extend to requests from the ICC or an IWCT requesting forensic assistance in respect of a child or incapable person.

597.           Item 120 of Schedule 1 repeals paragraph 23XWU(1)(d) « and » substitutes new paragraph 23XWU(1)(d) which will provide a basis for a magistrate to order the carrying out of a forensic procedure on a child or incapable person in respect of a request by a foreign country or an international tribunal (if satisfied of the matters set out in section 23XWU). As is currently the case, the magistrate will only be able to make such an order if the procedure has been requested by the foreign country, ICC or IWCT « and » has been approved by the Attorney-General under the respective MA Act, ICC Act or IWCT Act.

598.           Subsection 23XWU(1A) clarifies that a magistrate is not able to order the carrying out of a forensic procedure on a child or incapable person if the procedure has been requested by a foreign law enforcement agency. That is, a magistrate must not make an order for the carrying out of a forensic procedure on a child or incapable person if the procedure has been requested by a foreign law enforcement agency (agency-to-agency assistance) as opposed to via formal mutual assistance request processes. As is currently the case in respect of requests by foreign countries for forensic assistance in relation to a child or incapable person, or for domestic forensic purposes, the factors listed in subsection 23XWU(2) are required to be taken into account by the magistrate in determining whether or not to make the order. These include:

·          if the forensic procedure is being carried out for the purposes of the investigation of a particular offence - the seriousness of the circumstances surrounding the commission of the offence

·          the best interests of the child or incapable person

·          so far as they can be ascertained, any wishes of the child or incapable person with respect to whether the forensic procedure should be carried out, « and »

·          whether the carrying out of the forensic procedure is justified in all the circumstances.

599.           These factors will need to be appropriately balanced by the magistrate to determine whether or not to order that the forensic procedure be carried out. Further, despite any order by the magistrate for the carrying out of the forensic procedure, subparagraph 23XWQ(2)(b)(ii) « and » subsection 23XWQ(3) of the Crimes Act will continue to prevent the carrying out of a forensic procedure on a child or an incapable person who objects to or resists the carrying out of the procedure.

Item 121 - Section 23YBA

600.           Division 7 of Part ID of the Crimes Act provides for the admissibility of evidence associated with a forensic procedure. Section 23YBA clarifies that the Division does not apply in relation to a proceeding in a foreign country for the purposes of which forensic evidence has been provided because of a request by the foreign country or a foreign law enforcement agency. Currently this exception does not extend to international tribunals.

601.           Item 121 of Schedule 1 repeals section 23YBA « and » substitutes new section 23YBA which will extend the current exception to international tribunals. The effect of this amendment is that the Division will not apply in relation to a proceeding in a foreign country or international tribunal for the purposes of which forensic evidence has been provided because of a request by the foreign country, international tribunal or a foreign law enforcement agency. This is appropriate because the admissibility of the forensic evidence in proceedings in a foreign country or an international tribunal is a matter which would be governed by that foreign country or international tribunal’s relevant evidence laws.

Item 122 - Section 23YBB

602.           Division 8 of Part ID deals with the destruction of forensic material. Section 23YBB states that Division 8 does not apply to forensic evidence provided in response to a request by a foreign country or a foreign law enforcement agency. This provision does not currently extend to forensic evidence provided in response to a request by the ICC or an IWCT.

603.           Item 122 of Schedule 1 repeals section 23YBB « and » substitutes new section 23YBB which will extend the current exception to international tribunals. New section 23YBB will state that Division 8 does not apply to forensic evidence provided in response to a request by a foreign country, an international tribunal or a foreign law enforcement agency. This is because the continued retention of forensic material provided to a foreign country or international tribunal is a matter for that country or international tribunal in accordance with its own laws « and » requirements, subject to any undertakings the foreign country or international tribunal provided in relation to the forensic material.

Item 123 - Subsection 23YDAC(1) (after paragraph (aa) of the definition of crime scene index )

604.           Section 23YDAC contains definitions relevant to the operation of Part ID of the Crimes Act. Specifically, section 23YDAC currently defines “crime scene index” as an index of DNA profiles derived from forensic material found at specified domestic « and » international locations. When international agencies find forensic material at a crime scene from which they can extract a DNA profile, they may in certain circumstances make a request to the AFP that this profile be matched to profiles held on NCIDD. However, Part ID currently makes no express provision for DNA profiles obtained from the ICC or an IWCT to be uploaded onto the various NCIDD indices « and » therefore matched against « other » profiles.

605.           Item 123 of Schedule 1 inserts a new paragraph after 23YDAC(1)(aa) into the definition of “crime scene index”. This will clarify that a foreign profile obtained from any place outside Australia where a crime within the jurisdiction of the ICC or a War Crimes Tribunal offence was, or is reasonably suspected of having been committed can be loaded onto the Commonwealth DNA database system ( « and » thus onto NCIDD). The effect of the amendment to paragraph 23YDAC(1)(ab) is that DNA profiles that have been provided to the AFP by the ICC or an IWCT for the purposes of an actual or anticipated formal assistance request, can be placed onto the Commonwealth DNA database system ( « and » thus onto NCIDD). This enables them to then be matched against « other » profiles on the system.

Items 124 to 125

606.           Section 23YDAE deals with the use of information on the Commonwealth DNA Database system or NCIDD. Subsection 23YDAE(1) makes it an offence if a person accesses information stored on the Commonwealth DNA database system or NCIDD, unless that access is in accordance with one of the purposes set out in subsections 23YDAE(2), (2A) or (3). These exceptions currently do not extend to using the forensic material to assist an international tribunal.

607.           Items 124 to 125 of Schedule 1 will address this by providing express statutory authority for the AFP to respond to requests from foreign law enforcement agencies (including persons investigating offences on behalf of the ICC or an IWCT) to facilitate the use of the NCIDD to assist foreign law enforcement agencies for the purpose of, « and » in accordance with, the ICC Act « and » the IWCT Act.



Item 124 - Paragraph 23YDAE(2)(da)

608.           Current paragraph 23YDAE(2)(da) provides that one purpose for which a person may access the NCIDD is for the purpose of assisting a foreign country to decide whether to make a request under the MA Act or the Extradition Act. The provision does not currently extend to the purpose of providing assistance to the ICC or an IWCT to decide whether to make a request. 

609.           Item 124 of Schedule 1 repeals paragraph 23YDAE(2)(da) « and » substitutes new paragraph 23YDAE(2)(da) which will provide that one purpose for which a person may access the NCIDD is for the purpose of assisting both a foreign country or an international tribunal to decide whether to make a request. As with the current process for foreign countries, the information allowed to be disclosed under this paragraph is preliminary advice in the form of a ‘yes’, or ‘no’ response to assist the foreign law enforcement agencies’ consideration of whether to proceed with a formal mutual assistance request for information on the matched profile.

Item 125 - Paragraph 23YDAE(2)(e)

610.           Under current paragraph 23YDAE(2)(e), the NCIDD can be accessed for the purposes of « and » in accordance with the MA Act or the Extradition Act. The provision does not currently extend to the purpose of requests made under the ICC Act or IWCT Act. 

611.           Item 125 of Schedule 1 inserts reference to the ICC Act « and » the IWCT Act after the reference to the MA Act at paragraph 23YDAE(2)(e) to enable the AFP to access the database to respond to requests from the ICC or an IWCT.

Item 126 - Subsection 23YF(1) (note 1)

612.            Division 9 sets out general provisions relating to the operation of Part ID of the Crimes Act. Section 23YF of the Crimes Act governs the obligations of investigating constables relating to tape recordings that have been required to be made under Part ID. Current Note 1 state that where a forensic procedure has been carried out as a result of a request by a foreign country, a copy of anything made may also be provided to the foreign country under subsections 23YQB(2) « and » (3). This note currently does not extend to requests made by the ICC or an IWCT.

613.           Item 126 of Schedule 1 repeals Note 1 « and » inserts a new note at the end of subsection 23YF(1) which will provide that if a forensic procedure has been carried out as a result of a request by a foreign country or an international tribunal, a copy of anything made may also be provided to the foreign country or international tribunal in accordance with section 23YQB.

Item 127 - Section 23YKA

614.           Section 23YKA states that sections 23YI to 23YK do not apply in relation to a proceeding in a foreign country for the purposes of which forensic evidence has been provided in response to a request by the foreign country or a foreign law enforcement agency. This provision currently does not extend to the ICC or IWCTs.

615.           Item 127 of Schedule 1 repeals section 23YKA « and » substitutes new section 23YKA which will extend the provision to international tribunals by noting that sections 23YI to 23YK do not apply in relation to a proceeding in a foreign country or international tribunal for the purposes of which forensic evidence has been provided in response to a request by the foreign country, international tribunal or a foreign law enforcement agency.

Items 128 to 130 - Paragraphs 23YO(2)(da), 23YO(2)(e) « and » 23YO(2)(d)

616.           Section 23YO sets out the purposes for which information stored on the NCIDD or the Commonwealth DNA database system may be disclosed. Subsection 23YO(1) makes it an offence for a person to disclose information stored on the Commonwealth DNA database system or NCIDD for purposes « other » than those set out in subsections 23YDAE(2) « and » (3). Paragraph 23YO(2)(e) provides that one of those purposes includes the purposes of, « and » in accordance with, the MA Act or the Extradition Act. Paragraph 23YO(2)(da) ensures there are no restrictions in relation to the disclosure of information contained on the Commonwealth DNA database system or NCIDD in response to requests from foreign law enforcement agencies. The provision currently does not extend to international tribunals. Items 102 to 104 of Schedule 1 extend this provision to apply to requests from both foreign countries « and » international tribunals.

Item 128 - Paragraph 23YO(2)(da)

617.           Section 23YO sets out the purposes for which information stored on the NCIDD or the Commonwealth DNA database system may be disclosed. The provision currently does not extend to international tribunals. 

618.           Item 128 of Schedule 1 repeals paragraph 23YO(2)(da) « and » substitutes new paragraph 23YO(2)(da) which will enable the AFP to respond to requests from foreign law enforcement agencies to match profiles on NCIDD with profiles obtained as part of criminal investigations by foreign agencies or international tribunals. New paragraph 23YO(2)(da) will provide that one purpose for which a person may disclose information stored on NCIDD is for the purpose of assisting a foreign country or international tribunal to decide whether to make a request.

619.           As with the current practice in place for foreign countries, the information to be disclosed under this paragraph is preliminary advice in the form of a ‘yes’ or ‘no’. If a match is made, this item will enable the AFP to notify the ICC or IWCT of such a match to assist the ICC or IWCT to decide whether to make a formal mutual assistance request for the provision of further information about the DNA profile, including information about the person to whom the profile relates.

Item 129 - Paragraph 23YO(2)(e)

620.           Section 23YO sets out the purposes for which information stored on the NCIDD or the Commonwealth DNA database system may be disclosed. Under current paragraph 23YO(2)(e), a person may only disclose information stored on the Commonwealth DNA database system or NCIDD for the purposes of « and » in accordance with the MA Act or the Extradition Act. This provision currently does not extend to disclosure of information for the purposes of « and » in accordance with the ICC Act « and » IWCT Act.

621.           Item 129 of Schedule 1 inserts reference to the ICC Act « and » the IWCT Act after the reference to the MA Act at paragraph 23YO(2)(e). This will enable forensic information stored on the Commonwealth DNA database system or NCIDD to be disclosed to the ICC or an IWCT for the purposes of the ICC Act « and » IWCT Act.

Item 130 - Paragraph 23YO(3)(d)

622.           Section 23YO sets out the purposes for which information stored on the NCIDD or the Commonwealth DNA database system may be disclosed. Under current paragraph 23YO(3)(d), a person may only person may only disclose information revealed by the carrying out of a forensic procedure for the purposes of « and » in accordance with the MA Act or the Extradition Act. This provision currently does not extend to disclosure of information for the purposes of « and » in accordance with the ICC Act « and » IWCT Act.

623.           Item 130 of Schedule 1 inserts reference to the ICC Act « and » the IWCT Act after the reference to the MA Act at paragraph 23YO(3)(d) to extend the provision to enable the AFP to reveal information regarding a forensic procedure carried out pursuant to a request by the ICC or an IWCT.

Items 131 « and » 132

624.           Division 9A governs the provision of forensic evidence to a foreign country following the carrying out of a forensic procedure for a foreign purpose. The Division does not currently extend to the provision of forensic evidence to an international tribunal following the carrying out of a forensic procedure. The « amendments » in Items 105 « and » 106 of Schedule 1 do not make any substantive changes to the process, but simply ensure the process also applies to providing forensic evidence to the ICC « and » IWCTs.

Item 131 - Division 9A of Part ID (heading)

625.           Division 9A governs the provision of forensic evidence to a foreign country following the carrying out of a forensic procedure for a foreign purpose. Currently the Division is titled “Carrying out forensic procedures at the request of a foreign jurisdiction”.

626.           Item 131 of Schedule 1 repeals the heading « and » substitutes a new heading to refer to carrying out forensic procedures at the request of both a foreign country or an international tribunal. The effect of this amendment reflects that this division will govern the provision of foreign evidence to both a foreign country « and » to international tribunals.

Item 132 - Subdivision A of Division 9A of Part ID

627.           Subdivision A of Division 9A governs the process for providing forensic evidence to a foreign country following a formal request by the foreign country. The subdivision currently does not extend to international tribunals.

628.           Item 132 of Schedule 1 repeals the entire subdivision « and » substitutes new subdivision A which will apply to both foreign countries « and » international tribunals. This amendment does not involve any substantive changes to the process, but simply ensures the subdivision extends to providing forensic evidence to the ICC « and » IWCTs. This item will insert new sections 23YQA « and » 23YQB in addition to renaming the subdivision “Requests by foreign countries « and » international tribunals”.

629.           New section 23YQA will outline the application of the subdivision. The Subdivision will apply if:

630.           a request is made by a foreign country or an international tribunal (a requesting entity) that a forensic procedure be carried out on a person, « and »

631.           the Attorney-General has authorised a constable to apply to a magistrate for an order authorising the carrying out of the forensic procedure.

632.           That is, this subdivision will cover forensic evidence obtained following a formal mutual assistance request from either a foreign country or an international tribunal « and » authorisation by the Attorney-General.

633.           Section 23YQB currently sets out the process for providing forensic evidence to a foreign country for the purposes of subdivision A. Item 132 of Schedule 1 repeals section 23YQB « and » substitutes new section 23YQB to enable this provision to govern the provision of foreign evidence to both a foreign country « and » to international tribunal.

634.           New subsection 23YQB(1) will provide that where forensic evidence has been obtained from a forensic procedure, the evidence is to be provided to the requesting entity, being either a foreign country or an international tribunal, in accordance with a relevant direction given by the Attorney-General.

635.           New subsection 23YQB(2) will provide for the transmission of material, or copies of material (which could include audio recordings or transcripts of tape recordings) to foreign countries « and » international tribunals. Again, this can only be in accordance with a relevant direction given by the Attorney-General.

636.           New subsection 23YQB(3) will provide that the relevant Attorney-General authorisation governing the provision of material to a foreign country or international entity is given under section 28C of the MA Act, 76B of the ICC Act or 32C of the IWCT Act.

637.           New subsection 23YQB(4) will provide that section 23YQB does not limit the direction that can be given under section 28C of the MA Act, 76B of the ICC Act or 32C of the IWCT Act.

Item 133 - At the end of section 23YQC

638.           Subdivision B sets out how material can be provided to a foreign law enforcement agency in respect of a request for forensic evidence relating to a volunteer or suspect with consent. Section 23YQC states that the Subdivision applies if a request is made by a foreign law enforcement agency for a forensic procedure to be carried out on:

·          a suspect in relation to a foreign serious offence who has consented to the procedure, or

·          a volunteer.

639.           Item 133 of Schedule 1 inserts a note at the end of section 23YQC stating that such a request will include a request by an authority or person responsible to an international tribunal for investigating or prosecuting a crime or offence within the jurisdiction of the tribunal. This is due to the amended definition of foreign law enforcement agency made by Item 103 to include any authority or person responsible to the ICC for investigating or prosecuting a “crime within the jurisdiction of the ICC” or responsible to an IWCT for investigating or prosecuting a “War Crimes Tribunal offence”. The effect of this is that the rules in this Subdivision will apply to the provision of material to the ICC « and » IWCTs following an agency-to-agency request.

Item 134 - Subsection 23YUB(1A)

640.           Subsection 23YUB(1) of the Crimes Act states that the Minister may enter into arrangements with the responsible Ministers of the participating jurisdictions (States « and » Territories) for the establishment « and » maintenance of a register of orders for the carrying out of forensic procedures made under Part ID or corresponding laws of participating jurisdictions. Subsection 23YUB(1A) states that the orders referred to in subsection 23YUB(1) do not include orders for the carrying out of a forensic procedure on a person made in response to a request by a foreign country. Currently this exemption does not extend to requests from the ICC or IWCTs.

641.           Item 134 of Schedule 1 repeals subsection 23YUB(1) « and » substitutes new subsection 23YUB(1A) which will extend the provision to apply to international tribunals. New subsection 23YUB(1A) will state that the orders referred to in subsection 23YUB(1) will not include orders for the carrying out of a forensic procedure on a person made in response to a request by a foreign country or international tribunal.

International Criminal Court Act 2002

Item 135 - Section 4 - definitions

642.           Section 4 of the ICC Act sets out definitions that are relevant to the operation of the ICC Act. Item 135 of Schedule 1 inserts new definitions relevant to the changes that will be made by this Schedule.

Definition of child

643.           Item 136 of Schedule 1 inserts new section 76A into the ICC Act which will govern requests by the ICC to Australia for forensic procedures. New subsection 76A(1) of the ICC Act will set out the circumstances in which, following a request from the ICC, the Attorney-General may authorise a constable to apply to a magistrate for an order for the carrying out of a forensic procedure on a child or incapable person.

644.           Item 135 of Schedule 1 inserts a definition of “child” in section 4 of the ICC Act. “Child” will be defined by reference to the definition of child in Part ID of the Crimes Act which is a person who is at least 10 years of age but under 18 years of age.

Definition of constable

645.           Item 136 of Schedule 1 inserts new section 76A into the ICC Act which will govern requests by the ICC to Australia for forensic procedures. New subsection 76B of the ICC Act will enable the Attorney-General to direct a constable as to how the forensic evidence obtained from the carrying out of a forensic procedure is to be provided to the ICC.

646.           Item 135 of Schedule 1 inserts a definition of “constable” in section 4 of the ICC Act. “Constable” will be defined by reference to the definition of constable in Part ID of the Crimes Act which is a member or special member of the Australian Federal Police or a member of the police force or police service of a state or t .

Definition of forensic evidence

647.           Item 136 of Schedule 1 inserts new section 76B into the ICC Act which will govern requests by the ICC to Australia for forensic procedures. New subsection 76B(1) of the ICC Act will enable the Attorney-General to direct a constable as to how the forensic evidence obtained from the carrying out of a forensic procedure is to be provided to the ICC.

648.           Item 135 of Schedule 1 inserts a definition of “forensic evidence” in section 4 of the ICC Act . “Forensic evidence” will be defined by reference to the definition of “forensic evidence” in Part ID of the Crimes Act. It will be taken to either mean: evidence of forensic material, or evidence consisting of forensic material, taken from a suspect or volunteer by a forensic procedure, or evidence of any results of the analysis of the forensic material.

Definition of forensic material

649.           Item 136 of Schedule 1 inserts new section 76A into the ICC Act which will govern requests by the ICC to Australia for forensic procedures. New subsection 76A(1) of the ICC Act will enable the Attorney-General to authorise a constable to apply to a magistrate for an order for the carrying out of a forensic procedure on a person. The Attorney-General may only authorise an application if satisfied (among « other » matters) that the ICC has given appropriate undertakings in relation to the retention, use « and » destruction of forensic material.

650.           Item 135 of Schedule 1 inserts a definition of “forensic material” in section 4 of the ICC Act. “Forensic material” will be defined by reference to the definition of “forensic material” in Part ID of the Crimes Act, which encompasses samples, hand prints, finger prints, foot prints or toe prints, photographs or video recordings, or casts or impressions that have been taken from or of a person’s body by a forensic procedure.

Definition of forensic procedure

651.           Item 136 of Schedule 1 inserts new section 76A into the ICC Act which will govern requests by the ICC to Australia for forensic procedures. New subsection 76A(1) of the ICC Act will set out the circumstances in which, following a request from the ICC, the Attorney-General may authorise a constable to apply to a magistrate for an order for the carrying out of a forensic procedure on a person.

652.           Item 135 of Schedule 1 inserts a definition of “forensic procedure” in section 4 of the ICC Act. “Forensic procedure” will be defined by reference to the definition of “forensic procedure” in Part ID of the Crimes Act, namely, an intimate or non-intimate forensic procedure not including any intrusion into a person’s body cavities except the mouth or the taking of any sample for the sole purpose of establishing the identity of the person from whom the sample is taken.

Definition of incapable person

653.           Item 136 of Schedule 1 inserts new section 76A into the ICC Act which will govern requests by the ICC to Australia for forensic procedures. New subsection 76A(2) of the ICC Act will set out the circumstances in which, following a request from the ICC, the Attorney-General may authorise a constable to apply to a magistrate for an order for the carrying out of a forensic procedure on a child or incapable person.

654.           Item 135 of Schedule 1 inserts a definition of “incapable person” in section 4 of the ICC Act. “Incapable person” will be defined by reference to the definition of “incapable person” in Part ID of the Crimes Act meaning an adult who is incapable of:

·          understanding the general nature « and » effect of, « and » purposes of carrying out, a forensic procedure, or

·          indicating whether he or she consents or does not consent to a forensic procedure being carried out.

Definition of parent

655.           Item 136 of Schedule 1 inserts new section 76A into the ICC Act which will govern requests by the ICC to Australia for forensic procedures. New subsection 76A(2) of the ICC Act will set out the circumstances in which, following a request from the ICC, the Attorney-General may authorise a constable to apply to a magistrate for an order for the carrying out of a forensic procedure on a child or incapable person in circumstances where the parent or guardian of the person is a suspect.

656.           Item 135 of Schedule 1 inserts a definition of “parent” in section 4 of the ICC Act. “Parent” will be defined by reference to the definition of parent in Part ID of the Crimes Act which is an adult who is legally entitled to, « and » has, custody of a person or is legally responsible for the day-to-day care, welfare « and » development of a person « and » has the person in his or her care.

Item 136 - After Division 10 of Part 4 - section 76A

657.           Item 136 of Schedule 1 inserts new Division 10A—“Forensic procedures” into the ICC Act which will govern the process by which the Attorney-General will respond to a formal request from the ICC for the carrying out of a forensic procedure on a person for the purpose of investigating a crime within the jurisdiction of the ICC, or for a prosecution relating to such offences. It will allow the Attorney-General to authorise a constable to apply to a magistrate for an order for the carrying out of the forensic procedure where certain factors are met.

658.           Item 136 of Schedule 1 inserts new section 76A that will detail the application process for carrying out a forensic procedure. New paragraph 76A(1)(a) will require that the ICC must have requested the procedure be carried out on the person.

659.           New paragraph 76A(1)(b) will set out certain conditions of which the Attorney-General must be satisfied before making an authorisation. There are different conditions that must be satisfied depending on whether the forensic procedure is requested in relation to a suspect or a child or incapable person.

660.           The Attorney-General must be satisfied that:

·          the Prosecutor of the ICC has started investigating whether an offence within the jurisdiction of the ICC has been committed or where the ICC has started proceedings for an offence within the jurisdiction of the ICC

·          the person is or is believed to be in Australia

·          the ICC has given appropriate undertakings in relation to the retention, use « and » destruction of the forensic material and/or information obtained from analysing that forensic material that would be provided to the ICC after the carrying out of the forensic procedure

·          the ICC has given any « other » undertaking considered necessary by the Attorney-General, « and »

·          where the individual is not a child or incapable, he or she has been given an opportunity to consent to the forensic procedure « and » has not consented to it; « and »

661.           Further, where the relevant person is a suspect, new paragraph 76A(1)(c) will require the constable to be an authorised applicant.

662.           In addition to those factors listed at new subsection 76A(1), new subsection 76A(2) will specify certain additional matters that the Attorney-General must be satisfied of before he or she is able to authorise an application for the carrying out of a forensic procedure on a child or incapable person. In relation to a child or incapable person, the Attorney-General must be satisfied:

663.           the consent of the child or incapable person’s parent cannot reasonably be obtained, has been withdrawn, or, the parent or guardian is a suspect in relation to the investigation or proceedings, « and »

664.           it is appropriate to make the authorisation having regard to the best interests of the child or incapable person.

665.           These criteria align with the factors that must be considered by a magistrate under subsection 23XWU(2) of the Crimes Act in determining whether, following authorisation by the Attorney-General, he or she should make an order that the forensic procedure be carried out on the child or incapable person. 

666.           New subsection 76A(3) will provide the definitions of “authorised applicant” « and » “suspect”. An “authorised applicant” in relation to a forensic procedure that is to be carried out on a suspect is defined by reference to subsection 23WA(1) of the Crimes Act as the constable in charge of a police station or the investigating constable in relation to a relevant offence. “Suspect” will have the same definition as at subsection 23WA(1) of the Crimes Act. The Crimes Act definition of “suspect”, as amended by Item 108, will be extended to apply to suspects being investigated or prosecuted for a crime within the jurisdiction of the ICC or a War Crimes Tribunal offence.

Item 136 - Section 76B

667.           New section 76B will enable the Attorney-General to direct a constable as to how forensic evidence obtained through the carrying out of a forensic procedure authorised by the Attorney-General under new subsection 76A(1) is to be provided to the ICC.

668.           New subsection (2) provides that such a direction is not a legislative instrument. This provision is included to assist readers, as the instrument is not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act 2003 .

International War Crimes Tribunal Act 1995

Item 137 - Section 4 - definitions

669.           Section 4 of the IWCT Act sets out definitions that are relevant to the operation of the IWCT Act. Item 137 of Schedule 1 inserts new definitions relevant to the changes that will be made by this Schedule.

Definition of child

670.           Item 138 of Schedule 1 inserts new section 32B into the IWCT Act which will govern requests by an IWCT to Australia for forensic procedures. New subsections 32B(1) « and » 32B(2) of the IWCT Act will set out the circumstances in which, following a request from an IWCT, the Attorney-General may authorise a constable to apply to a magistrate for an order for the carrying out of a forensic procedure on a child or incapable person.

671.           Item 137 of Schedule 1 inserts a definition of “child” in section 4 of the IWCT Act. “Child” will be defined by reference to the definition of child in Part ID of the Crimes Act which is a person who is at least 10 years of age but under 18 years of age.

Definition of constable

672.           Item 138 of Schedule 1 inserts new section 32B into the IWCT Act which will govern requests by an IWCT to Australia for forensic procedures. New subsections 32B(1) « and » 32B(2) of the IWCT Act will set out the circumstances in which, following a request from an IWCT, the Attorney-General may authorise a constable to apply to a magistrate for an order for the carrying out of a forensic procedure on a child or incapable person.

673.           Item 137 of Schedule 1 inserts a definition of “constable” in section 4 of the IWCT Act. “Constable” will be defined by reference to the definition of constable in Part ID of the Crimes Act which is a member or special member of the Australian Federal Police or a member of the police force or police service of a state or territory .

Definition of forensic evidence

674.           Item 138 of Schedule 1 inserts new section 32C into the IWCT Act which will govern requests by an IWCT to Australia for forensic procedures. New section 32C of the ICC Act will enable the Attorney-General to direct a constable as to how the forensic evidence obtained from the carrying out of a forensic procedure is to be provided to an IWCT.

675.           Item 137 of Schedule 1 inserts a definition of “forensic evidence” in section 4 of the IWCT Act. “Forensic evidence” will be defined by reference to the definition of “forensic evidence” in Part ID of the Crimes Act. It will be taken to either mean: evidence of forensic material, or evidence consisting of forensic material, taken from a suspect or volunteer by a forensic procedure, or evidence of any results of the analysis of the forensic material.

Definition of forensic material

676.           Item 138 of Schedule 1 inserts new section 32B into the IWCT Act which will govern requests by an IWCT to Australia for forensic procedures. New section 32B of the IWCT Act will enable the Attorney-General to authorise a constable to apply to a magistrate for an order for the carrying out of a forensic procedure on a person. The Attorney-General may only authorise an application if satisfied (among « other » matters) that the IWCT has given appropriate undertakings in relation to the retention, use « and » destruction of forensic material.

677.           Item 137 of Schedule 1 inserts a definition of “forensic material” in section 4 of the IWCT Act. “Forensic material” will be defined by reference to the definition of “forensic material” in Part ID of the Crimes Act, which encompasses samples, hand prints, finger prints, foot prints or toe prints, photographs or video recordings, or casts or impressions that have been taken from or of a person’s body by a forensic procedure.

Definition of forensic procedure

678.           Item 138 of Schedule 1 inserts new section 32B into the IWCT Act which will govern requests by IWCTs to Australia for forensic procedures. New section 32B of the IWCT Act will set out the circumstances in which, following a request from an IWCT, the Attorney-General may authorise a constable to apply to a magistrate for an order for the carrying out of a forensic procedure on a person.

679.           Item 137 of Schedule 1 inserts a definition of “forensic procedure” in section 4 of the IWCT Act. “Forensic procedure” will be defined by reference to the definition of “forensic procedure” in Part ID of the Crimes Act, namely, an intimate or non-intimate forensic procedure not including any intrusion into a person’s body cavities except the mouth or the taking of any sample for the sole purpose of establishing the identity of the person from whom the sample is taken.

Definition of incapable person

680.           Item 138 of Schedule 1 inserts new section 32B into the IWCT Act which will govern requests by an IWCT to Australia for forensic procedures. New subsections 32B(1) « and » 32B(2) of the IWCT Act will set out the circumstances in which, following a request from an IWCT, the Attorney-General may authorise a constable to apply to a magistrate for an order for the carrying out of a forensic procedure on a child or incapable person.

681.           Item 137 of Schedule 1 inserts a definition of “incapable person” in section 4 of the IWCT Act. “Incapable person” will be defined by reference to the definition of “incapable person” in Part ID of the Crimes Act meaning an adult who is incapable of:

·          understanding the general nature « and » effect of, « and » purposes of carrying out, a forensic procedure, or

·          indicating whether he or she consents or does not consent to a forensic procedure being carried out.

Definition of parent

682.           Item 138 of Schedule 1 inserts new section 32B into the IWCT Act which will govern requests by an IWCT to Australia for forensic procedures. New subsections 32B(1) « and » 32B(2) of the IWCT Act will set out the circumstances in which, following a request from an IWCT, the Attorney-General may authorise a constable to apply to a magistrate for an order for the carrying out of a forensic procedure on a child or incapable person in circumstances where the parent or guardian of the person is a suspect.

683.           Item 137 of Schedule 1 inserts a definition of “parent” in section 4 of the IWCT Act. “Parent” will be defined by reference to the definition of parent in Part ID of the Crimes Act which is an adult who is legally entitled to, « and » has, custody of a person or is legally responsible for the day-to-day care, welfare « and » development of a person « and » has the person in his or her care.

Item 138 - Sections 32B « and » 32C - Before Division 2 of Part 4

684.           Item 138 of Schedule 1 inserts new sections 32B « and » 32C into the IWCT Act. These new sections will provide for the authorisation of an application for carrying out forensic procedures « and » providing forensic evidence to a Tribunal.

Section 32B

685.           New section 32B will govern the process for the Attorney-General to respond to a formal request from an IWCT for the carrying out of a forensic procedure on a person for the purpose of investigating a war crimes tribunal offence, or for a prosecution relating to such offences. It will allow the Attorney-General to authorise a constable to apply to a magistrate for an order for the carrying out of the forensic procedure where certain factors are met.

686.           The first factor, in new paragraph 32B(1)(a) will be that the IWCT must have requested the procedure be carried out on a person.

687.           New paragraph 32B(1)(b) will set out certain conditions of which the Attorney-General must be satisfied before the Attorney-General can make an authorisation. There are different conditions that must be satisfied depending on whether the forensic procedure is requested in relation to a suspect or a child or incapable person.

688.           The Attorney-General must be satisfied that:

·          an IWCT has started investigating whether a War Crimes Tribunal offence has been committed or has started proceedings for a War Crimes Tribunal offence

·          the person is or is believed to be in Australia

·          the IWCT has given appropriate undertakings in relation to the retention, use « and » destruction of the forensic material and/or information obtained from analysing that forensic material that would be provided to the IWCT after the carrying out of the forensic procedure

·          the IWCT has given any « other » undertaking considered necessary by the Attorney-General, « and »

·          where the individual is not a child or incapable, he or she has been given an opportunity to consent to the forensic procedure « and » has not consented to it.

689.           Further, where the relevant person is a suspect, new paragraph 32B(1)(c) will require the constable to be an authorised applicant.

690.           In addition to the requirements at new subsection 32B(1), new subsection 32B(2) will specify certain additional matters that the Attorney-General must be satisfied of before he or she is able to authorise an application for the carrying out of a forensic procedure on a child or incapable person. In relation to a child or incapable person, the Attorney-General must be satisfied:

·          the consent of the child or incapable person’s parent cannot reasonably be obtained, has been withdrawn, or, if given, the parent or guardian is a suspect in relation to the investigation or proceedings

·          it is appropriate to make the authorisation having regard to the best interests of the child or incapable person.

691.           These criteria align with the factors that must be considered by a magistrate under subsection 23XWU(2) of the Crimes Act in determining whether, following authorisation by the Attorney-General, he or she should make an order that the forensic procedure be carried out on the child or incapable person. 

692.           New subsection 32B(3) will provide the definitions of “authorised applicant” « and » “suspect”. An “authorised applicant” in relation to a forensic procedure that is to be carried out on a suspect will be defined by reference to subsection 23WA(1) of the Crimes Act as the constable in charge of a police station or the investigating constable in relation to a relevant offence. “Suspect” will have the same definition as at subsection 23WA(1) of the Crimes Act. The Crime Act definition of “suspect”, as amended by Item 108, will be extended to apply to suspects being investigated or prosecuted for a crime within the jurisdiction of the ICC or a war crimes tribunal offence. The expanded definition will extend to a person in respect of whom a forensic procedure has been requested by the ICC or an IWCT where they have started investigating whether the person has committed an indictable offence or started proceedings against the person for an indictable offence.

Section 32C

693.           New section 32C will enable the Attorney-General to direct a constable as to how forensic evidence obtained through the carrying out of a forensic procedure authorised by the Attorney-General under new subsections 32B(1) or 32B(2) is to be provided to the IWCT.

694.           Such a direction is not a legislative instrument. This provision is included to assist readers, as the instrument is not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act 2003 .

Item 139 - Application of « amendments »

695.           Item 139 of Schedule 1 provides for the application of the « amendments » made by this Part. The « amendments » will apply in relation to a request made to the Attorney General by the ICC, a Tribunal, a foreign country or a foreign law enforcement agency on or after the commencement of this item. They will also apply to such requests that were made before commencement, if, immediately before commencement, the Attorney General had yet to make a decision on the request. This is the case whether conduct, a crime or an offence to which the request relates occurred before, on or after that commencement.

696.           The « amendments » in this Part are procedural in scope « and » do not have the effect of criminalising or penalising conduct which was otherwise lawful prior to the « amendments » . It is necessary for these provisions to apply retrospectively as the conduct that is being investigated may continue over several years or may not be discovered immediately.



 

Part 8 - Proceeds of Crime

697.           A proceeds of crime action is a vital law enforcement tool in fighting crime. Under the ICC Act, Australia can use a range of investigative tools to locate the proceeds of crime, including obtaining information or documents from financial institutions, monitoring orders, search warrants « and » production orders. However, the authorisation process for these tools is inadequate to keep pace with the fast « and » fluid nature of proceeds of crime investigations. Currently, the orders must be the subject of a separate authorisation from the Attorney-General « and » must be jurisdiction-specific, which can mean an authorised officer needs multiple authorisations to satisfy a single request. In addition, some of the provisions regarding the investigative, restraint « and » forfeiture tools in the ICC Act do not currently correctly align with or appropriately modify the operation of the Proceeds of Crime Act 2002 (POC Act) for the context of the ICC.

698.           Further, the IWCT Act does not provide for the range of investigative tools that domestic enforcement agencies can use to determine whether proceeds are located in Australia « and » quantify those proceeds. It also does not include provisions to seek restraining orders over « property » at the request of an IWCT.

699.           This Part will make a range of « amendments » to the ICC Act « and » the IWCT Act to improve the operation of the proceeds of crime provisions in those Acts. This includes through increasing the range of investigative tools available to domestic enforcement agencies to assist IWCTs in determining whether proceeds are located in Australia, quantifying those proceeds « and » taking action over those proceeds. The provisions are modelled on the tools in the MA Act regarding assistance that can be provided to foreign countries, but are appropriately modified for the context of the ICC « and » IWCTs.

Division 1 - « Amendments » relating to the ICC

International Criminal Court Act 2002

700.           This Division makes a number of « amendments » to the ICC Act in relation to the range of investigative tools available to locate the proceeds of crime, including providing notices to financial institutions, monitoring orders, search warrants « and » production orders. These tools will be subject to a single authorisation by the Attorney-General which will not be jurisdiction-specific, which will ensure that Australia can assist the ICC in the same efficient, streamlined manner, « and » subject to the same safeguards, as currently applies to requests from foreign countries. The provisions are modelled on the tools in the MA Act regarding assistance that can be provided to foreign countries, but are appropriately modified for the context of the ICC.

701.           Further, these « amendments » make minor modifications to the current provisions on restraint « and » forfeiture to enhance procedural matters.

Items 140 to 146 - Section 4 - definitions

702.           Section 4 sets out definitions that are relevant to the operation of the ICC Act. Items 140 to 146 of Schedule 1 make a number of « amendments » to section 4 of the ICC Act to reflect the « amendments » made by this Schedule.



 

Item 140 - Section 4 (definition of benefit )

703.           Item 140 of Schedule 1 inserts a definition of “benefit” in section 4 of the ICC Act. “Benefit” will have the same meaning as in the POC Act, namely: benefit includes service or advantage. This has been inserted due to the use of the term “benefit” in the proposed definition of “evidential material” in section 4 of the ICC Act.

Item 141 - Section 4 (definition of evidential material )

704.           Item 141 of Schedule 1 repeals the definition of “evidential material”, which currently only applies in relation to search warrants under sections 27 « and » 77 of the ICC Act, « and » substitutes a new definition of “evidential material”. The new definition of “evidential material” will preserve the substance of the current definition of evidential material « and » also insert a new paragraph which will define evidential material for the purposes of Subdivision F of Division 14 of Part 4 of the ICC Act (Search warrants relating to proceeds of crime « and » evidential material).

705.