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CYBERCRIME LEGISLATION AMENDMENT BILL 2011

Order of the day read for the adjourned debate on the motion of the Minister for Human Services (Senator Kim Carr)—That this bill be now read a second time—and on the amendment moved by Senator Ludlam:

 At the end of the motion, add "but that the Senate calls on the Government to initiate an independent review to consider whether the Telecommunications Act 1997 and the Telecommunications (Interception and Access) Act 1979 continue to be effective in light of technological developments (including technological convergence), changes in the structure of communication industries and changing community perceptions and expectations about communication technologies, in particular, the review should consider:


  (a) whether the Acts continue to regulate effectively communication technologies and the individuals and organisations that supply communication technologies and communication services;

  (b) how these two Acts interact with each other and with other legislation;

  (c) the extent to which the activities regulated under the Acts should be regulated under general communications legislation or other legislation;

  (d) the roles and functions of the various bodies currently involved in the regulation of the telecommunications industry, including the Australian Communications and Media Authority, the Attorney-General's Department, the Office of the Privacy Commissioner, the Telecommunications Industry Ombudsman, and Communications Alliance; and

  (e) whether the Telecommunications (Interception and Access) Act 1979 should be amended to provide for the role of a public interest monitor".

Debate resumed.

Question—That the amendment be agreed to—put.

The Senate divided—

AYES, 10

Senators—

Di Natale

Hanson-Young

Ludlam

Milne

Rhiannon

Siewert (Teller)

Waters

Whish-Wilson

Wright

Xenophon

NOES, 25

Senators—

Back

Boswell

Brandis

Cameron

Crossin

Farrell

Feeney

Furner

Gallacher

Humphries

Ludwig

Madigan

Marshall

McEwen

McKenzie

McLucas

Moore

Pratt

Singh

Smith

Stephens

Thistlethwaite

Thorp

Urquhart

Williams (Teller)

Question negatived.

Senator Xenophon moved the following amendment:

 At the end of the motion, add "but the Senate calls on the Government to initiate a review of the Criminal Code Act 1995 to examine the strengthening of the offences in that Act to ensure that they adequately deal with the issue of misrepresentation of age to minors without reasonable excuse and to investigate the establishment of a type of register to record the names and details of those persons who do misrepresent their age to minors without reasonable excuse".

Question—That the amendment be agreed to—put.

The Senate divided—

AYES,11


Senators—
Di NataleMadiganSiewert (Teller)Wright
Hanson-YoungMilneWatersXenophon
LudlamRhiannonWhish-Wilson

NOES, 23



Senators—
BackFarrellMcEwenStephens
BrandisFeeneyMcKenzieThistlethwaite
CameronFurnerMcLucasThorp
ColbeckGallacherPrattUrquhart
CormannLudwigSinghWilliams (Teller)
CrossinMarshallSmith

Question negatived.

Main question put and passed.

Bill read a second time.

The Senate resolved itself into committee for the consideration of the bill.

In the committee

Bill taken as a whole by leave.

Explanatory memorandum: The Minister for Agriculture, Fisheries and Forestry (Senator Ludwig) tabled a supplementary explanatory memorandum relating to the government amendments to be moved to the bill.

On the motion of Senator Ludwig the following amendments, taken together by leave, were debated and agreed to:

 Schedule 1, item 2, page 4 (lines 14 and 15), omit "or interception agency", substitute "(including an interception agency)".

 Schedule 1, item 18, page 10 (line 2), before "interception agency", insert "enforcement agency that is an".

 Schedule 1, item 18, page 11 (lines 29 and 30), omit "or interception agency", substitute "(including an interception agency)".

 Schedule 1, item 18, page 12 (line 27), before "interception agency", insert "enforcement agency that is an".

 Schedule 1, item 18, page 12 (line 33), before "interception agency", insert "enforcement agency that is an".

Question—That the bill, as amended, be agreed to—divided, at the request of Senator Ludwig, in respect of Schedule 1, items 6 and 7.

Question—That Schedule 1, items 6 and 7 stand as printed—put and negatived.

Bill, as amended, debated.


Senator Ludlam moved the following amendment:

 Schedule 1, page 20 (after line 6), after item 30, insert:

 30A After paragraph 152(a)

  Insert:

 (ab) to inspect an enforcement agency's records in order to ascertain, so far as is practicable, the extent of compliance with this Chapter; and

Debate ensued.

Question—That the amendment be agreed to—put and negatived.

On the motion of Senator Ludwig the following amendment was debated and agreed to:

 Schedule 1, page 21 (after line 14), at the end of the Schedule, add:

 34 Transitional provision for item 18—ongoing domestic preservation notices

  Despite the insertion of section 107H into the Telecommunications (Interception and Access) Act 1979 made by item 18 of this Schedule, an issuing agency may not a give a carrier an ongoing domestic preservation notice under that section before the end of the period that:

 (a) starts on the day this Act receives the Royal Assent; and

 (b) ends 90 days after that day.

Senator Ludlam moved the following amendments together by leave:

 Clause 2, page 2 (after table item 1), insert:

1A. Schedule 1, items 1 to 33 The day after the end of the period of 3 months beginning on the day this Act receives the Royal Assent.

1B. Schedule 1, item 34The day this Act receives the Royal Assent.

Clause 2, page 2 (table item 2, 1st column), omit "Schedules 1 and 2", substitute "Schedule 2".

Schedule 1, page 21 (after line 14), at the end of the Schedule, add:

 34 Transitional provision—temporary exemption from compliance with preservation notices

  (1) The Communications Access Co-ordinator may exempt a carrier from the obligation to comply with sections 107H and 107N of the Telecommunications (Interception and Access) Act 1979 (as inserted by this Schedule) if the carrier makes an application to the Communications Access Co-ordinator for an exemption under subitem (2).

 (2) An application must:

 (a) be in writing; and

 (b) be received by the Communications Access Co-ordinator before the day item 1 of this Schedule commences; and

 (c) specify the period (not exceeding 15 months from the day item 1 of this Schedule commences) for which the exemption is requested; and


 (d) include an implementation plan setting out:

 (i) the changes or developments the carrier considers that it needs to implement in its telecommunications systems and networks in order to comply with domestic preservation notices and foreign preservation notices; and

 (ii) the processes and procedures that the carrier proposes to implement to make the changes or to undertake the developments necessary to comply (including, but not limited to, information on build, installation, configuration, integration, delivery and testing); and

 (iii) the timeline for implementation of the changes and developments; and

 (iv) any other matters that the carrier considers relevant.

  (3) In deciding whether to grant a carrier an exemption under subitem (1), the Communications Access Co-ordinator must have regard to the following matters:

 (a) any information contained in the exemption application, including the implementation plan;

 (b) the technical feasibility of the carrier being able to comply with domestic preservation notices and foreign preservation notices without making the changes or undertaking the developments set out in the carrier's implementation plan.

  (4) Subitem (3) does not limit the matters to which the Communications Access Co-ordinator may have regard in determining whether to grant an exemption under subitem (1).

 (5) Before making a decision whether to grant an exemption under subitem (1), the Communications Access Co-ordinator must consult with the carrier and the ACMA.

 (6) If a carrier makes an application under subitem (2) and the Communications Access Co-ordinator has not made a decision on the application, and communicated that decision to the carrier, within 90 days after receiving the application, the Communications Access Co-ordinator is taken to have granted an exemption to the carrier under subitem (1) for the period specified in the application.

 (7) If a carrier makes an application under subitem (2), the carrier is exempt from complying with sections 107H and 107N of the Telecommunications (Interception and Access) Act 1979 (as inserted by this Schedule) for each day falling on or between:

 (a) the day item 1 of this Schedule commences; and

 (b) the day the Communications Access Co-ordinator makes (or is taken to have made) a decision on the application.

  (8) A carrier may make an application to the ACMA for a review of a decision by the Communications Access Co-ordinator to refuse to grant an exemption under subitem (1).

 (9) An application for review must be made within 21 days after the Communications Access Co-ordinator notifies the carrier of the refusal to grant an exemption.

 (10) The ACMA may affirm, vary or set aside the decision to refuse to grant an exemption.


Debate ensued.

Question—That the amendments be agreed to—put and negatived.

On the motion of Senator Ludwig the following amendments, taken together by leave, were debated and agreed to:

 Schedule 2, item 27, page 29 (lines 9 and 10), omit paragraph 15D(3)(b), substitute:

 (b) the offence:

 (i) is punishable by imprisonment for 3 years or more, imprisonment for life or the death penalty; or

 (ii) involves an act or omission that, if it had occurred in Australia, would have constituted a serious offence within the meaning of section 5D of the Telecommunications (Interception and Access) Act 1979.

 Schedule 2, item 41, page 32 (line 32) to page 33 (line 5), omit paragraph 180B(3)(b), substitute:

 (b) the authorised officer is satisfied that the disclosure is reasonably necessary for the investigation of an offence against the law of a foreign country that:

 (i) is punishable by imprisonment for 3 years or more, imprisonment for life or the death penalty; or

 (ii) involves an act or omission that, if it had occurred in Australia, would have constituted a serious offence within the meaning of section 5D of the Telecommunications (Interception and Access) Act 1979; and

 (c)  the authorised officer is satisfied that the disclosure is appropriate in all the circumstances.

 Schedule 2, item 41, page 33 (lines 24 to 27), omit paragraph 180B(6)(a), substitute:

 (a) reasonably necessary for the investigation of an offence against the law of a foreign country that:

 (i) is punishable by imprisonment for 3 years or more, imprisonment for life or the death penalty; or

 (ii) involves an act or omission that, if it had occurred in Australia, would have constituted a serious offence within the meaning of section 5D of the Telecommunications (Interception and Access) Act 1979; and

 Schedule 2, item 41, page 34 (lines 3 to 6), omit paragraph 180B(8)(a), substitute:

 (a) reasonably necessary for the investigation of an offence against the law of a foreign country that:

 (i) is punishable by imprisonment for 3 years or more, imprisonment for life or the death penalty; or

 (ii) involves an act or omission that, if it had occurred in Australia, would have constituted a serious offence within the meaning of section 5D of the Telecommunications (Interception and Access) Act 1979; and

Senator Ludlam moved the following amendments together by leave:

 Schedule 2, item 41, page 32 (line 3), at the end of subsection 180A(3), add "in relation to an offence that is punishable by imprisonment for at least 3 years".


 Schedule 2, item 41, page 32 (line 13), after "country", insert "in relation to an offence that is punishable by imprisonment for at least 3 years".

 Schedule 2, item 41, page 34 (line 22), after "country", insert "in relation to an offence that is punishable by imprisonment for at least 3 years".

 Schedule 2, item 41, page 35 (lines 1 to 19), omit subsection 180D(2), substitute:

 (2) The authorised officer must not authorise the disclosure of the information or documents to the Organisation unless he or she is satisfied that the disclosure is appropriate in all the circumstances and is reasonably necessary for the performance by the Organisation of its functions.

 (3) The authorised officer must not authorise the disclosure of the information or documents to an enforcement agency unless he or she is satisfied that the disclosure is appropriate in all the circumstances and is reasonably necessary:

 (a) for the enforcement of the criminal law in relation to an offence that is punishable by imprisonment for at least 3 years; or

 (b) for the enforcement of a law imposing a pecuniary penalty for a contravention that would, if proved, render the person committing the contravention liable to:

 (i) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

 (ii) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units; or

 (c) for the protection of the public revenue in relation to an offence that is punishable by imprisonment for at least 3 years or in relation to a contravention that would, if proved, render the person committing the contravention liable to:

 (i) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

 (ii) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units.

 (4) The authorised officer must not authorise the use of the information or documents by the Australian Federal Police unless he or she is satisfied that the disclosure is appropriate in all the circumstances and is reasonably necessary:

 (a) for the enforcement of the criminal law in relation to an offence that is punishable by imprisonment for at least 3 years; or

 (b) for the enforcement of a law imposing a pecuniary penalty for a contravention that would, if proved, render the person committing the contravention liable to:

 (i) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or


 (ii) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units; or

 (c) for the protection of the public revenue in relation to an offence that is punishable by imprisonment for at least 3 years or in relation to a contravention that would, if proved, render the person committing the contravention liable to:

 (i) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

 (ii) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units.

 Schedule 2, items 54 to 56, page 39 (lines 5 to 19), omit the items, substitute:

 54 Paragraph 313(3)(c)

  Repeal the paragraph, substitute:

 (c) enforcing the criminal law in relation to an offence that is punishable by imprisonment for at least 3 years;

 (ca) enforcing a law imposing a pecuniary penalty for a contravention that would, if proved, render the person committing the contravention liable to:

 (i) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

 (ii) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units;

 (cb) assisting the enforcement of the criminal laws in force in a foreign country in relation to an offence that is punishable by imprisonment for at least 3 years;

 54A At the end of paragraph 313(3)(d)

  Add "in relation to an offence that is punishable by imprisonment for at least 3 years or in relation to a contravention that would, if proved, render the person committing the contravention liable to:

 (i) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

 (ii) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units;".

 54B At the end of paragraph 313(3)(e)

  Add "in relation to an offence that is punishable by imprisonment for at least 3 years or in relation to a contravention that would, if proved, render the person committing the contravention liable to:

 (i) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or


 (ii) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units.".

 55 Paragraph 313(4)(c)

  Repeal the paragraph, substitute:

 (c) enforcing the criminal law in relation to an offence that is punishable by imprisonment for at least 3 years;

 (ca) enforcing a law imposing a pecuniary penalty for a contravention that would, if proved, render the person committing the contravention liable to:

 (i) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

 (ii) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units;

 (cb) assisting the enforcement of the criminal laws in force in a foreign country in relation to an offence that is punishable by imprisonment for at least 3 years;

 55A At the end of paragraph 313(4)(d)

  Add "in relation to an offence that is punishable by imprisonment for at least 3 years or in relation to a contravention that would, if proved, render the person committing the contravention liable to:

 (i) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

 (ii) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units;".

 55B At the end of paragraph 313(4)(e)

  Add "in relation to an offence that is punishable by imprisonment for at least 3 years or in relation to a contravention that would, if proved, render the person committing the contravention liable to:

 (i) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

 (ii) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units.".

 56 Application of amendments made by this Part

  (1) The amendments made by items 54, 54A and 54B of this Schedule apply to help given by a carrier or carriage service provider on or after the commencement of this item.

 (2) The amendments made by items 55, 55A and 55B of this Schedule apply to help given by a carriage service intermediary on or after the commencement of this item.


 Schedule 4, page 42 (after line 8), after item 1, insert:

 1A At the end of subsection 177(1)

  Add "in relation to an offence that is punishable by imprisonment for at least 3 years".

 1B Subsection 177(2)

  Repeal the subsection, substitute:

   Enforcement of a law imposing a pecuniary penalty

  (2) Sections 276 and 277 of the Telecommunications Act 1997 do not prevent a disclosure by a person (the holder) of information or a document to an enforcement agency if the disclosure is reasonably necessary for the enforcement of a law imposing a pecuniary penalty for a contravention that would, if proved, render the person committing the contravention liable to:

 (a) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

 (b) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units.

   Enforcement of a law for the protection of the public revenue

  (2A) Sections 276 and 277 of the Telecommunications Act 1997 do not prevent a disclosure by a person (the holder) of information or a document to an enforcement agency if the disclosure is reasonably necessary for the enforcement of a law for the protection of the public revenue in relation to an offence that is punishable by imprisonment for at least 3 years or in relation to a contravention that would, if proved, render the person committing the contravention liable to:

 (a) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

 (b) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units.

 1C At the end of subsection 178(3)

  Add "in relation to an offence that is punishable by imprisonment for at least 3 years".

 1D Subsection 179(3)

  Repeal the subsection, substitute:

  (3) The authorised officer must not make the authorisation unless he or she is satisfied that the disclosure is reasonably necessary for:

 (a) the enforcement of a law imposing a pecuniary penalty for a contravention that would, if proved, render the person committing the contravention liable to:

 (i) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or


 (ii) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units; or

 (b) for the protection of the public revenue in relation to an offence that is punishable by imprisonment for at least 3 years or in relation to a contravention that would, if proved, render the person committing the contravention liable to:

 (i) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

 (ii) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units.

 Schedule 4, item 3, page 43 (lines 7 to 17), omit subsection 181A(3), substitute:

  (3) Paragraphs (1)(a) and (2)(a) do not apply to a disclosure of information or a document if the disclosure is for the purposes of the authorisation, revocation or notification concerned.

   Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).

  (3A) Paragraphs (1)(a) and (2)(a) do not apply to a disclosure of information or a document if the disclosure is reasonably necessary:

 (a) to enable the Organisation to perform its functions; or

 (b) to enforce the criminal law in relation to an offence that is punishable by imprisonment for at least 3 years; or

 (c) to enforce a law imposing a pecuniary penalty for a contravention that would, if proved, render the person committing the contravention liable to:

 (i) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

 (ii) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units; or

 (d) to protect the public revenue in relation to an offence that is punishable by imprisonment for at least 3 years or in relation to a contravention that would, if proved, render the person committing the contravention liable to:

 (i) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

 (ii) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units.

   Note: A defendant bears an evidential burden in relation to the matter in subsection (3A) (see subsection 13.3(3) of the Criminal Code).

 Schedule 4, item 3, page 44 (lines 3 to 13), omit subsection 181A(6), substitute:

  (6) Paragraphs (4)(a) and (5)(a) do not apply to a use of information or a document if the use is for the purposes of the authorisation, revocation or notification concerned.

   
Note: A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code).

  (7) Paragraphs (4)(a) and (5)(a) do not apply to a use of information or a document if the use is reasonably necessary:

 (a) to enable the Organisation to perform its functions; or

 (b) to enforce the criminal law in relation to an offence that is punishable by imprisonment for at least 3 years; or

 (c) to enforce a law imposing a pecuniary penalty for a contravention that would, if proved, render the person committing the contravention liable to:

 (i) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

 (ii) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units; or

 (d) to protect the public revenue in relation to an offence that is punishable by imprisonment for at least 3 years or in relation to a contravention that would, if proved, render the person committing the contravention liable to:

 (i) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

 (ii) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units.

   Note: A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).

 Schedule 4, item 3, page 45 (lines 3 to 13), omit subsection 181B(3), substitute:

  (3) Paragraphs (1)(a) and (2)(a) do not apply to a disclosure of information or a document if the disclosure is for the purposes of the authorisation, revocation or notification concerned.

   Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).

  (3A) Paragraphs (1)(a) and (2)(a) do not apply to a disclosure of information or a document if the disclosure is reasonably necessary:

 (a) to enable the Organisation to perform its functions; or

 (b) to enforce the criminal law in relation to an offence that is punishable by imprisonment for at least 3 years; or

 (c) to enforce a law imposing a pecuniary penalty for a contravention that would, if proved, render the person committing the contravention liable to:

 (i) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

 (ii) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units; or


 (d) to protect the public revenue in relation to an offence that is punishable by imprisonment for at least 3 years or in relation to a contravention that would, if proved, render the person committing the contravention liable to:

 (i) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

 (ii) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units.

   Note: A defendant bears an evidential burden in relation to the matter in subsection (3A) (see subsection 13.3(3) of the Criminal Code).

 Schedule 4, item 3, page 46 (lines 1 to 10), omit subsection 181B(6), substitute:

  (6) Paragraphs (4)(a) and (5)(a) do not apply to a use of information or a document if the use is for the purposes of the authorisation, revocation or notification concerned.

   Note: A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code).

  (7) Paragraphs (4)(a) and (5)(a) do not apply to a use of information or a document if the use is reasonably necessary:

 (a) to enforce the criminal law in relation to an offence that is punishable by imprisonment for at least 3 years; or

 (b) to enforce a law imposing a pecuniary penalty for a contravention that would, if proved, render the person committing the contravention liable to:

 (i) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

 (ii) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units; or

 (c) to protect the public revenue in relation to an offence that is punishable by imprisonment for at least 3 years or in relation to a contravention that would, if proved, render the person committing the contravention liable to:

 (i) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

 (ii) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units.

   Note: A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).

Debate ensued.

Question—That the amendments be agreed to—put.


The committee divided—

AYES, 9

Senators—

Di Natale

Hanson-Young

Ludlam

Milne

Rhiannon

Siewert (Teller)

Waters

Whish-Wilson

Wright

NOES, 28

Senators—

Back (Teller)

Bishop

Boyce

Brown

Bushby

Cameron

Colbeck

Cormann

Edwards

Farrell

Feeney

Fierravanti-Wells

Furner

Gallacher

Ludwig

Lundy

Marshall

McKenzie

McLucas

Moore

Pratt

Singh

Smith

Stephens

Sterle

Thistlethwaite

Thorp

Urquhart

Question negatived.

Senator Ludlam moved the following amendments together by leave:

 Schedule 2, item 41, page 32 (after line 13), after paragraph 180A(5)(a), insert:

 (ab) if the disclosure is in relation to a prosecution or punishment of a person charged with, or convicted of, an offence in respect of which the death penalty may be imposed in a foreign country—the foreign country has given an assurance that the death penalty will not be imposed in relation to that person for that offence; and

 Schedule 2, item 41, page 32 (after line 14), at the end of section 180A, add:

  (6) In considering whether the disclosure is appropriate in all the circumstances for the purposes of paragraph (5)(b), the authorised officer must have regard to the grounds for refusing a request for assistance covered by section 8 of the Mutual Assistance in Criminal Matters Act 1987.

 Schedule 2, item 41, page 34 (after line 22), after paragraph 180C(2)(a), insert:

 (ab) if the disclosure is in relation to a prosecution or punishment of a person charged with, or convicted of, an offence in respect of which the death penalty may be imposed in a foreign country—the foreign country has given an assurance that the death penalty will not be imposed in relation to that person for that offence; and

 Schedule 2, item 41, page 34 (after line 23), at the end of section 180C, add:

  (3) In considering whether the disclosure is appropriate in all the circumstances for the purposes of paragraph (2)(b), the authorised officer must have regard to the grounds for refusing a request for assistance covered by section 8 of the Mutual Assistance in Criminal Matters Act 1987.

Debate ensued.

Question—That the amendments be agreed to—put and negatived.


On the motion of Senator Ludwig the following amendments, taken together by leave, were debated and agreed to:

 Schedule 2, item 41, page 36 (lines 7 and 8), omit all the words after "regard", substitute "to whether any interference with the privacy of any person or persons that may result from the disclosure or use is justifiable, having regard to the following matters:

 (a) the likely relevance and usefulness of the information or documents;

 (b) the reason why the disclosure or use concerned is proposed to be authorised.

 Schedule 2, item 50, page 37 (after line 21), after paragraph 186(1)(ca), insert:

 (cb) if the enforcement agency is the Australian Federal Police, and information or documents were disclosed, under an authorisation referred to in paragraph (ca), by an authorised officer of the Australian Federal Police during that year to one or more foreign countries:

 (i) the name of each such country; and

 (ii) the number of disclosures under such authorisations; and

 Schedule 2, page 37 (before line 22), before item 51, insert:

 50A Subsection 186(2)

  After "subsection (1)", insert ", other than the information referred to in paragraph (1)(cb)".

Senator Ludlam moved the following amendment:

 Schedule 2, page 39 (after line 19), at the end of the Schedule, add:

  

Part 4—Refusal of assistance

 

Mutual Assistance in Criminal Matters Act 1987

 57 After paragraph 8(2)(f)

  Insert:

 (fa) the foreign country's arrangements for handling personal information (within the meaning of the Privacy Act 1988) do not offer a level of privacy protection similar to that afforded in Australia; or

Debate ensued.

Question—That the amendment be agreed to—put and negatived.

Question—That the bill, as amended, be agreed to—divided, at the request of Senator Ludwig, in respect of Schedule 5, item 2.

Schedule 5, item 2 debated.

Question—That Schedule 5, item 2 stand as printed—put and negatived.

On the motion of Senator Ludwig the following amendment was agreed to:

 Schedule 5, page 47 (after line 18), at the end of the Schedule, add:

 4 Application of amendments made by items 1 and 3

  (1) The amendment made by item 1 of this Schedule applies to acts or things done on or after the day this Schedule commences.

 
(2) The amendment made by item 3 of this Schedule applies in relation to an authorisation made on or after the day this Schedule commences.

Bill, as amended, agreed to.

Bill to be reported with amendments.

The Acting Deputy President (Senator Sinodinos) resumed the chair and the Temporary Chair of Committees reported accordingly.

On the motion of Senator Ludwig the report from the committee was adopted.

Senator Ludwig moved—That this bill be now read a third time.

Question put.

The Senate divided—

AYES, 33

Senators—

Back

Bishop

Brandis

Brown (Teller)

Bushby

Cash

Colbeck

Collins

Crossin

Edwards

Farrell

Feeney

Furner

Gallacher

Ludwig

Lundy

Madigan

Marshall

McEwen

McKenzie

McLucas

Moore

Parry

Polley

Pratt

Singh

Sinodinos

Smith

Stephens

Sterle

Thistlethwaite

Thorp

Urquhart

NOES, 9

Senators—

Di Natale

Hanson-Young

Ludlam

Milne

Rhiannon

Siewert (Teller)

Waters

Whish-Wilson

Wright

Question agreed to.

Bill read a third time.