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Crimes Legislation Amendment (International Crime Cooperation and Other Measures) Bill 2018

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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.           The meaning of “evidential material” for the purposes of Subdivision F of Division 14 of Part 4 of the ICC Act will be evidence relating to the types of property and benefits that the ICC may be investigating for proceeds of crime purposes. These are:

·          property in relation to which a forfeiture order has been or could be made; or

·          property in relation to which a restraining order has been or could be made for the purposes of section 82; or

·          property of a person in relation to whom a pecuniary penalty order may be enforced as described in section 159; or

·          proceeds of a crime within the jurisdiction of the ICC; or

·          benefits derived from the commission of a crime within the jurisdiction of the ICC.

706.           This definition will ensure that the provisions relating to proceeds of crime search warrants apply appropriately in the context of requests from the ICC.

Item 142 - Section 4 (definition of monitoring order )

707.           Item 142 of Schedule 1 repeals the definition of “monitoring order” from section 4 of the ICC Act. New section 81A, as inserted by Item 148 of Schedule 1 refers to monitoring orders under the POC Act. As such, the need for a definition of monitoring order at section 4 is no longer required.

Item 143 - Section 4 (definitions of person assisting, POCA search warrant and proceeds request )

708.           Item 143 of Schedule 1 inserts new definitions of “person assisting”, “POCA search warrant” and “proceeds request”.  This item is included due to the use of these terms in Subdivision F of Division 14 of Part 4 of the ICC Act (Search warrants relating to proceeds of crime and evidential material).

Definition of person assisting

709.           “Person assisting” will have the same meaning as in the POC Act, namely: person assisting, in relation to a search warrant, means:

(a)     a person who is an authorised officer and who is assisting in executing the warrant; or

(b)    a person who is not an authorised officer and who has been authorised by the relevant executing officer to assist in executing the warrant.

Definition of POCA search warrant

710.           “POCA search warrant” will mean a search warrant issued under Part 3-5 of the POC Act in relation to a crime within the jurisdiction of the ICC.

Definition of proceeds request

711.           Section 81 of the ICC Act currently applies the Division to situations in which the ICC makes a request to the Attorney-General for the identification, tracing, and freezing or seizure, of the proceeds of a crime within the jurisdiction of the ICC. Item 147 of Schedule 1 will amend section 81 with the effect that such requests for the identification, tracing, and freezing or seizure, of the proceeds of a crime within the jurisdiction of the ICC will be defined as a “proceeds request”.

712.            Item 143 of Schedule 1 inserts a definition of “proceeds request” by reference to section 81 (as amended).

Item 144 - Section 4 (definitions of production order and property-tracking document )

713.           Section 4 of the ICC Act currently defines “production order” and “property-tracking document” by reference to their definitions in the POC Act.

714.           New section 81A, as inserted by Item 148 of Schedule 1 refers to production orders under the POC Act. Item 144 of Schedule 1 repeals the definition of “production order” from section 4 of the ICC Act.

715.           Items 171 to 191 of Schedule 1 remove all current references to “property-tracking documents” in the ICC Act. Item 144 of Schedule 1 repeals the definition of “property-tracking document” from section 4 of the ICC Act because it will no longer be used.

Item 145 - Section 4 (definition of responsible enforcement agency head )

716.           Item 145 of Schedule 1 inserts a new definition of “responsible enforcement agency head”. The definition of “responsible enforcement agency head” will be: the head of the enforcement agency whose authorised officer is responsible for executing a POCA search warrant. This item is included due to the use of this term in Subdivision F of Division 14 of Part 4 of the ICC Act (Search warrants relating to proceeds of crime and evidential material).

Item 146 - Section 4 (definition of senior police officer )

717.           Item 146 of Schedule 1 inserts a definition of “senior police officer” into section 4 which will reference subsection 88(3).  This item is a consequential amendment that arises because items 159 to 161 of Schedule 1 will amend section 88 of the ICC Act to enable a “senior police officer” to issue a notice to a financial institution.

718.           Proposed subsection 88(3) defines a “senior police officer” as a person covered by paragraphs 213(3)(a), (b) and (c) of the POC Act. These officers are:

·          the Commissioner of the AFP

·          a Deputy Commissioner of the AFP, and

·          a senior executive AFP employee (within the meaning of the Australian Federal Police Act 1979 ) who is a member of the AFP and who is authorised in writing by the Commissioner for the purposes of section 213 of the POC Act).

Item 147 - Paragraph 81(a)

719.           Section 81 currently provides that Division 14 of the ICC Act applies where the ICC makes a request for the identification, tracing, and freezing or seizure, of tainted property in relation to a crime within the jurisdiction of the ICC, provided that the Attorney-General is satisfied that a person is about to be charged, has been charged, or has been convicted, of a crime by the ICC.

720.           Item 147 of Schedule 1 inserts “(a proceeds request)” after the words “a request” in paragraph 81(a). This will clarify the types of assistance able to be requested by the ICC under this Division that will be deemed to be a “proceeds request”.

Item 148 - At the end of Subdivision A of Division 14 of Part 4

721.           The ICC Act contains a number of investigative tools that Australia can use to assist the ICC in proceeds of crime matters, including 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, and the orders must be the subject of a separate authorisation from the Attorney-General. Further, the Attorney-General’s authorisations must be jurisdiction-specific, which can mean an authorised officer needs multiple authorisations to satisfy a single request.

722.           Item 148 of Schedule 1 adds a new section at the end of Subdivision A of Division 14 of Part 4. New section 81A will apply if the ICC makes a “proceeds request”. If such a request is made then the Attorney-General can make a general authorisation if satisfied that:

·          the request relates to an investigation that is being conducted by the Prosecutor of the ICC or to a proceeding before the ICC, and

·          the assistance requested can be obtained from one or more production orders, monitoring orders or search warrants under the POC Act.

723.           The general authorisation will enable an authorised officer of an enforcement agency to apply for one or more production orders under section 86 of the ICC Act, monitoring orders under section 95 of the ICC Act, or search warrants under section 98 of the ICC Act. This will give an authorised officer the flexibility to choose which investigative tools will allow them to most effectively and efficiently obtain the information that has been requested.

724.           New section 81A will significantly streamline the authorisation process in comparison to the current process where the Attorney-General needs to make a separate authorisation for each investigative tool and also needs to make a separate authorisation depending on the jurisdiction in which the authorisation is to be used.

725.           The other benefit of this amendment is that it will enable the ICC to make one general request for proceeds assistance without having to make separate requests specifying the type of investigative tool that will need to be used to obtain the information, or provide the assistance, that the ICC has requested.

Item 149 - Subsection 82(1)

726.           Item 149 of Schedule 1 omits “request from the ICC in section 81” and substitutes the newly defined term “proceeds request” (see Item 143 of Schedule 1).

Items 150 to 151 - Subsection 82(1) and 82(2)

727.           Items 150 and 151 of Schedule 1 amend the provision on restraining orders (section 82) in relation to the court to which a restraining order application is made.

728.           Item 150 of Schedule 1 omits “to a specified court” from subsection 82(1) of the ICC Act.  Item 151 of Schedule 1 repeals subsection 82(2) which covers the specified court to which a restraining order application must be made.

729.           Section 335 of the POC Act (which is referred to in the definition of “proceeds jurisdiction” under section 4 of the ICC Act) specifies which courts have proceeds jurisdiction. Consequently, it is not necessary for the Attorney-General to specify the court in which the application should be made.  This amendment will enable a proceeds of crime authority to make the application in the most appropriate jurisdiction and court, in accordance with the jurisdictional provisions in the POC Act.

Item 152 - Paragraph 82(5)(a)

730.           Section 82 currently governs the process of applying for restraining orders. Paragraph 82(5)(a) provides that Part 2-1 of the POC Act applies to the application, and to any restraining order made as a result, as if references in that Part to an indictable offence were references to the crime within the jurisdiction of the ICC.

731.           Item 152 of Schedule 1 is a consequential amendment to omit “within the jurisdiction of the ICC” and substitute “that is the subject of the proceeds request” which will reflect the amendments made by Item 147 of Schedule 1 and the insertion of the definition of a “proceeds request”.

Item 153 - Paragraph 82(5)(b)

732.           Section 82 currently governs the process of applying for restraining orders. Current paragraph 82(5)(b) states that Part 2-1 of the POC Act applies to the application (and any restraining order made as a result of the application) as if references in Part 2-1 to a “court with proceeds jurisdiction” were references to the court specified in the subsection 82(1) application.

733.           Given that the words “specified court” will be omitted from subsection 82(1) (see item 150 of Schedule 1) and the Attorney-General’s authorisation will no longer specify the court in which the restraining order application must be made, Item 153 of Schedule 1 will make a consequential amendment to repeal paragraph 82(5)(b).

Item 154 - Paragraph 82(5)(e)

734.           Section 82 currently governs the process of applying for restraining orders. Current paragraph 82(5)(e) states that Part 2.1 of the POC Act applies as if paragraphs 17(1)(e) and (f), subsections 17(3) and (4) and sections 18 to 20, 29, 44 and 45 of that Act were omitted. Item 154 of Schedule 1 adds sections 20A, 29A and 45A to the list of omitted sections. These sections of the POC Act relate to unexplained wealth orders. The ICC does not have the power to make unexplained wealth orders so these sections of the POC Act are not required to apply.

Item 155 - Section 85

735.           Section 85 currently provides that, if the request from the ICC in section 81 involves making an order for the production of a property-tracking document, the Attorney-General will authorise a proceeds of crime authority to apply for a production order in the appropriate court.

736.           Item 148 of Schedule 1 introduces a streamlined authorisation process enabling the Attorney-General to make a general authorisation under section 81A in relation to certain proceeds of crime investigative tools covered by Division 14 rather than the authorisation being order-specific. As such, Item 155 of Schedule 1 repeals section 85 as the process for obtaining the Attorney-General’s authorisation for a property-tracking document will now come within new section 81A.

Item 156 - Subsection 86(1)  

737.           Subsection 86(1) currently enables an authorised officer to seek a production order under the POC Act if so authorised. Item 148 of Schedule 1 introduces a streamlined authorisation process enabling the Attorney-General to make a general authorisation under section 81A in relation to certain proceeds of crime investigative tools covered by Division 14 rather than the authorisation being order-specific.

738.           To reflect the amendments made by Item 148 of Schedule 1, Item 156 of schedule 1 repeals subsection 86(1) and substitutes new subsection 86(1) which will provide that, where so authorised under new section 81A, an authorised officer may apply for a production order under the POC Act.

Item 157 - Paragraph 86(3)(a)

739.           Section 86 governs the process of applying for production orders. Paragraph 86(3)(a) provides that Part 3-2 of the POC Act applies to the application, and to any production order made as a result as if references in that Part to an indictable offence or to a serious offence were references to the crime within the jurisdiction of the ICC.

740.           Item 157 of Schedule 1 is a consequential amendment to omit “within the jurisdiction of the ICC” and substitute “that is the subject of the proceeds request” to reflect the amendments made by Item 147 of Schedule 1 and the insertion of the definition of a “proceeds request”.

Item 158 - Paragraphs 86(3)(b) and (c)

741.           Section 86 governs the process of applying for production orders. Item 158 of Schedule 1 repeals paragraph 86(3)(b). Paragraph 86(3)(b) currently provides that where an authorised officer applies for a production order, Part 3-2 of the POC Act applies as if references in that Part to a magistrate were references to a magistrate of the state or territory specified in the authorisation under subsection 85(1).

742.           Given Item 155 of Schedule 1 repeals section 85 (in light of the new streamlined section 81A authorisation process) no authorisation will be given under subsection 85(1) and reference to this provision is no longer required at paragraph 86(3)(b).

743.           Item 158 of Schedule 1 also repeals paragraph 86(3)(c) and substitutes it with new paragraph 86(3)(b) given the current paragraph refers to paragraphs 202(5)(a)(iii) and 202(5)(c)(iii) of the POC Act which do not exist. New paragraph 86(3)(b) will refer to paragraphs 202(5)(a)(ii) and (c)(ii) and paragraph 202(5)(e), and subsection 205(1) of the POC Act. The effect of this amendment will be that Part 3-2 of the POC Act will apply to the application for a production order as if subparagraphs 202(5)(a)(ii) and (c)(ii) and paragraph 202(5)(e), and subsection 205(1) of the POC Act were omitted.

Items 159-161 - Notices to financial institutions

744.           Section 88 sets out the procedure that must be followed when giving a notice to a financial institution requiring the production of information or documents relevant to certain matters.

745.           Currently, a notice to a financial institution requiring that institution to produce certain documents must be authorised by the Attorney-General or a senior officer of the Attorney-General’s Department. The equivalent provision in the MA Act aligns the authorising power to those officers who can issue a notice for domestic purposes under the POC Act. Items 159-161 of Schedule 1 amend section 88 of the ICC Act to align with the MA Act and the POC Act.

Item 159 - Subsection 88(1)

746.           Subsection 88(1) currently sets out the situations in which the Attorney-General or a senior Departmental officer can give a notice to a financial institution requiring the production of information or documents relevant to certain matters. Item 159 of schedule 1 omits “The Attorney-General or a senior Departmental officer” and substitutes “A senior police officer” so that officers who are empowered to issue a notice to a financial institution correspond more directly with those who can issue a notice in response to a request from a foreign country under the MA Act or domestically under the POC Act.

747.           Item 159 of Schedule 1 will limit who can issue a notice under the ICC Act to the officers mentioned in paragraphs 213(3)(a), (b) and (c) of the POC Act, (a “senior police officer” as defined under section 4 as inserted by Item 146), that is:

·          the Commissioner of the AFP

·          a Deputy Commissioner of the AFP, and

·          a senior executive AFP employee (within the meaning of the Australian Federal Police Act 1979 ) who is a member of the AFP and who is authorised in writing by the Commissioner for the purposes of this section 213 of the POC Act.

Item 160 - Subsection 88(2)

748.           Subsection 88(2) currently sets out the criteria of which the Attorney-General or a senior Departmental officer must be satisfied before they can give a notice to a financial institution requiring the production of information or documents relevant to certain matters.

749.           Item 160 of Schedule 1 omits “Attorney-General or the senior Departmental officer” and substitutes “senior police officer” so that officers who are empowered to issue a notice to a financial institution will correspond more directly with those who can issue a notice in response to a request from a foreign country under the MA Act or domestically under the POC Act.

Item 161 - Subsection 88(3)

750.           Subsection 88(3) currently defines the term “senior Departmental officer”. Given the power to give a notice to a financial institution requiring the production of information or documents relevant to certain matters will no longer rest with a “senior Departmental officer” (see Items 159-160 of Schedule 1), this item repeals subsection 88(3) and substitutes it with a subsection which defines “senior police officer”.

751.           A “senior police officer” for the purposes of the ICC Act will be limited to those persons referred to in paragraphs 213(3)(a), (b) and (c) of the POC Act. That is:

·          the Commissioner of the AFP

·          a Deputy Commissioner of the AFP, and

·          a senior executive AFP employee (within the meaning of the Australian Federal Police Act 1979 ) who is a member of the AFP and who is authorised in writing by the Commissioner for the purposes of this section 213 of the POC Act.

Item 162 - Subsection 90(2)

752.           Section 90 provides for protection from lawsuits for those complying with notices to financial institutions. Paragraph 90(1)(b) provides that no action, suit or proceeding lies against an officer, employee or agent of the institution acting in the course of that person’s employment or agency.

753.           Current subsection 90(2) fails to refer to an officer even though that position is referred to at subsection 90(1). Item 162 of Schedule 1 inserts “officer” before the word “employee” at subsection 90(2) which will align with the persons referred to at current subsection 90(1), and also with the equivalent provisions of the MA Act.



 

Item 163 - Section 93

754.           Item 163 of Schedule 1 makes a consequential amendment to insert the number “1” before the words “A person” at section 93, given the amendment at Item 166 of Schedule 1 will add an additional subsection to the provision.

Item 164 - Section 93 (penalty)

755.           Item 164 of Schedule 1 aligns the penalty for the offence of failing to comply with a notice with the penalty contained in the POC Act as amended in 2015 by the Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 . This will have the effect of increasing the penalty from “imprisonment for 6 months or 30 penalty units, or both”, to “imprisonment for 2 years or 100 penalty units, or both”.

Item 165 - Section 93 (note)

756.           Item 165 of Schedule 1 makes a consequential amendment to repeal the current note at section 93. This note will be listed under new subsection 93(2), as inserted by Item 166 of Schedule 1.

Item 166 - At the end of section 93

757.           Section 93 currently provides for penalties when a person fails to comply with a notice. As a result of amendments introduced with the Crimes Legislation Amendment (Serious and Organised Crime) Act (No. 2) 2009 , the equivalent provision in the POC Act now provides a defence to the offence of failing to comply with a notice issued under section 213 of that Act. To align this provision with the POC Act, Item 166 of Schedule 1 adds new subsection 93(2) at the end of section 93 with the effect that where a person from a financial institution does not produce the required information or document within the specified period, but that person took all reasonable steps to provide the information, then, provided the information is provided as soon as practicable, the defence is met.

758.           Item 166 of Schedule 1 is a safeguard to ensure that persons who are genuinely unable to provide the required information within the specified time are not exposed to a penalty.

759.           Item 166 of Schedule 1 also adds two notes at the end of section 93. The first note will provide that the defendant bears an evidential burden in relation to the matters in establishing the defence (see subsection 13.3(3) of the Criminal Code). The reason for this is that the matters are within the peculiar knowledge of the defendant. The second note is the same as that which currently appears in section 93 and will provide that sections 137.1 and 137.2 of the Criminal Code also create offences for providing false or misleading information or documents.  

Item 167 - Section 94

760.           Section 94 provides that, if a request from the ICC under section 81 involves making an order that a financial institution give information about transactions through an account with that financial institution in Australia, the Attorney-General will authorise a proceeds of crime authority to apply for a monitoring order in the appropriate court.

761.           Item 148 of Schedule 1 introduces a streamlined authorisation process enabling the Attorney-General to make a general authorisation under section 81A in relation to certain proceeds of crime investigative tools covered by Division 14 rather than the authorisation being order-specific. As such, Item 167 of Schedule 1 repeals section 94 given the process for obtaining the Attorney-General’s authorisation for a monitoring order document will now come within new section 81A.

Item 168 - Subsection 95(1)

762.           Subsection 95(1) currently enables an authorised officer to apply for a monitoring order against an account under the POC Act if so authorised. Item 148 of Schedule 1 introduces a streamlined authorisation process enabling the Attorney-General to make a general authorisation under section 81A in relation to certain proceeds of crime investigative tools covered by Division 14 rather than the authorisation being order-specific.

763.           To reflect the amendments made by Item 148 of Schedule 1, Item 168 of Schedule 1 repeals subsection 95(1) and substitutes new subsection 95(1) which will clarify that where so authorised under new section 81A, an authorised officer may apply for a monitoring order within the POC Act.

Item 169 - Paragraph 95(3)(a)

764.           Section 95 currently governs the process for applying for monitoring orders. Paragraph 95(3)(a) provides that Part 3-4 of the POC Act applies to the application, and to any monitoring order made as a result as if references in that Part to a serious offence were references to a crime within the jurisdiction of the ICC. 

765.           Item 169 of Schedule 1 is a consequential amendment to omit “a crime within the jurisdiction of the ICC” and substitutes “the crime that is the subject of the proceeds request” to reflect the amendments made by Item 147 of Schedule 1 and the insertion of the definition of a “proceeds request”.

Item 170 - Subdivision F of Division 14 of Part 4 (heading)

766.           Subdivision F of Division 14 of Part 4 of the ICC Act deals with proceeds of crime search warrants. It adopts Part 3-5 of the POC Act with modifications. The current Subdivision F makes reference to “property-tracking documents”, however, this term is not used in Part 3-5 of the POC Act, which instead uses the term “evidential material”. A number of amendments will be made to this Subdivision to correct these references. Item 170 of Schedule 1 repeals the heading to the Subdivision and substitutes “Search warrants relating to proceeds of crime and evidential material”.

Item 171 - Section 97

767.           Section 97 currently empowers the Attorney-General to authorise an authorised officer of an enforcement agency to apply to a magistrate of a specified state or territory for a search warrant under the POC Act if so authorised. Item 148 of Schedule 1 will introduce a streamlined authorisation process enabling the Attorney-General to make a general authorisation under section 81A in relation to certain proceeds of crime investigative tools covered by Division 14 rather than the authorisation being order-specific.

768.           As such, Item 171 of Schedule 1 repeals section 97 given the process for obtaining the Attorney-General’s authorisation for a search warrant will now come under new section 81A.

Item 172 - Subsection 98(1)

769.           Subsection 98(1) currently enables an authorised officer to apply for a search warrant under the POC Act where so authorised. 

770.           Item 148 of Schedule 1 introduces a streamlined authorisation process enabling the Attorney-General to make a general authorisation under section 81A in relation to certain proceeds of crime investigative tools rather than the authorisation being order-specific. To reflect the amendments made by Item 148 of Schedule 1, Item 172 of Schedule 1 repeals subsection 98(1) and substitutes new subsection 98(1) which will clarify that where so authorised under new section 81A, an authorised officer may apply for a search warrant under the POC Act.

Item 173 - Subsection 98(2)

771.           Item 173 of Schedule 1 inserts the word “POCA” before “search warrant”, given the term “POCA search warrant” is now defined (see item 143 of Schedule 1).

Item 174 - Subsection 98(3)

772.           Item 174 of Schedule 1 repeals subsection 98(3) and substitutes new subsection 98(3). New subsection 98(3) deals with how Part 3-5 of the POC Act applies to applications for search warrants and to any search warrant issued as a result. Subsection 98(3) modifies the POC Act in a number of ways to ensure that it operates effectively in relation to requests from the ICC.

773.           New paragraph 98(3)(a) will provide that Part 3-5 of the POC Act applies as if a reference in that Part to tainted property was a reference to proceeds of the crime that is the subject of the proceeds request. This will ensure that the property covered by this Subdivision is that which is appropriate to the foreign context of the ICC request.

774.           New paragraph 98(3)(b) will provide that Part 3-5 of the POC Act applies as if references in that Part to evidential material were references to evidential material as defined in section 4 of the ICC Act. This will ensure that the evidential material covered by this Subdivision is appropriate to the foreign context of an ICC request.

775.           New paragraph 98(3)(c) will modify the application of paragraph 254(1)(a) of the POC Act for ICC matters. Paragraph 254(1)(a) of the POC Act deals with the responsibility for things seized under the POC Act. It provides that the responsible custodian of the thing must arrange for the thing to be kept until it is dealt with in accordance with another provision of the POC Act. New paragraph 98(3)(c) will modify this so that after the words “this Act” the words “or section 100, 101 or 102 of the International Criminal Court Act 2002” were inserted. This is because in addition to relevant provisions in the POC Act, sections 100-102 of the ICC Act cover dealing with things seized pursuant to a search warrant executed on behalf of the ICC in response to a request from the ICC.

776.           New paragraph 98(3)(d) will modify the application of certain provisions of the POC Act so that the search warrant provisions apply appropriately in the foreign context for ICC matters. It provides that Part 3-5 of the POC Act applies as if paragraphs 227(1)(a), (b), (h) and (ha) and 228(1)(d) and (da) and sections 256 to 262 of the POC Act were omitted.

777.           Paragraphs 227(1)(a) and (b) of the POC Act provide that a search warrant issued under the POC Act must state the nature of the property in respect of which action has been or could be taken under this Act and the nature of that action. These paragraphs are omitted because they are not relevant in the context of ICC matters; this is because in such cases, action is generally taken by the ICC (and not under the POC Act).

778.           Paragraphs 227(1)(h) and (ha) and 228(1)(d) and (da) of the POC Act deal with the contents of search warrants and what additional things can be seized under search warrants. They are omitted for the purposes of search warrants issued pursuant to ICC requests because these matters will be covered in the new sections 99 and 99A of the ICC Act.

779.           Sections 256 to 262 of the POC Act cover dealing with things seized under the POC Act. These provisions are omitted for the purposes of search warrants issued pursuant to ICC requests because these matters will be covered in the new sections 100-102 of the ICC Act.

Item 175 - Section 99

780.           Item 175 of Schedule 1 repeals section 99 and substitutes new sections 99 and 99A which will address the seizure of other things not specified in the search warrant.

781.           New section 99 will cover the content of search warrants, in particular, what a search warrant must state in relation to additional property or things that are authorised to be seized (in addition to those matters required by section 227 of the POC Act as modified by paragraph 98(3)(d) of the ICC Act). This will mirror the provision in section 99A regarding what is authorised to be seized. This provision will apply in place of paragraphs 227(1)(h) and (ha) of the POC Act in accordance with the new paragraph 98(3)(d) of the ICC Act.

782.           New section 99A will cover what additional property or things are authorised to be seized (in addition to that provided for by section 228 of the POC Act as modified by paragraph 98(3)(d) of the ICC Act). This provision applies in place of s228(1)(d) and (da) of the POC Act in accordance with the new paragraph 98(3)(d) of the ICC Act.

783.           In order to seize the additional property or things authorised by the warrant, the authorised officer or person assisting must believe on reasonable grounds that they satisfy two criteria.  Firstly, that the property or thing falls within one of five categories set out below, and secondly that the seizure of the property or thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence.

784.           The five categories are that the property or thing:

 

·          is proceeds of the crime that are not of a kind specified in the warrant; or

·          is evidential material relating to the crime that is not of a kind specified in the warrant; or

·          is proceeds of, or evidential material relating to, another crime within the jurisdiction of the ICC in relation to which a POCA search warrant is in force; or

·          is relevant to a proceeding in the ICC in respect of the crime within the jurisdiction of the ICC; or

·          will afford evidence as to the commission of an offence against an Australian law.

785.           These sections recognise that whilst executing a search warrant, an authorised officer or person assisting may find other relevant property or things that were not listed in the search warrant. For example, they may find additional evidential material that relates to the foreign serious offence that was identified in the warrant, but was not known about at the time the warrant was applied for. These sections will ensure that it is possible to seize the types of property or things listed above in order to prevent their concealment, loss or destruction or their use in committing an offence.

 

Item 176 - Subsection 100(1)

786.           Item 176 of Schedule 1 omits “(other than a property-tracking document) that has been seized under a search warrant issued under Part 3-5 of the Proceeds of Crime Act” and substitutes “that has been seized under a POCA search warrant”. The reason for this is that the phrase “property-tracking document” is not applicable to search warrants under Part 3-5 of the POC Act.

787.           New subsection 100(5) (see at Item 179 of Schedule 1) will provide that this section does not apply to certain types of evidence.

788.           The phrase “POCA search warrant” will be defined to mean a search warrant issued under Part 3-5 of the POC Act, thereby making the current reference to Part 3-5 redundant.

 

Item 177 - Subsection 100(2)

789.           Item 177 of Schedule 1 inserts “POCA search” before “warrant”, so that subsection 100(2) will read “POCA search warrant”. This will be a defined term in section 4 of the ICC Act. This item has been included for clarity.

Item 178 - Subsections 100(3) and (4)

790.           Item 178 of Schedule 1 omits “head of the authorised officer’s enforcement agency” in subsections 100(3) and (4) of the ICC Act and substitutes “responsible enforcement agency head”. The words “responsible enforcement agency head” will be defined in section 4 of the ICC Act.

Item 179 - Subsection 100(5)

791.           Item 179 of Schedule 1 repeals subsection 100(5) and substitutes new subsection 100(5). Section 100 deals with the return of property to third parties in certain circumstances.

792.           New subsection (5) will provide that section 100 does not apply to property that has been seized because it is evidential material (including evidential material seized pursuant to paragraph 228(1)(c) of the POC Act and evidential material seized in accordance with paragraphs 99A(a)(ii) or (iii)) or property that is seized in accordance with paragraphs 99(a)(iv) or (v).

793.           Depending on the nature of the material, this material will be dealt with in accordance with section 102 of the ICC Act, subsection 228(2) of the POC Act or the common law. This will ensure that evidence is not required to be returned to third parties while it is still needed for permitted purposes.

 

Item 180 - Section 101 (heading)

794.           Item 180 of Schedule 1 repeals the heading and substitutes a new heading “Dealing with certain seized property”. The new heading omits the irrelevant reference to “property-tracking documents” that is in the current heading.

Item 181 - Subsection 101(1)

795.           Item 181 of Schedule 1 repeals subsection 101(1) and substitutes new subsection 101(1).  Section 101 covers dealing with certain seized property. New subsection 101(1) will provide that property must be dealt with under this section if it has been seized under a POCA search warrant in relation to a crime within the jurisdiction of the ICC and it is not evidential material (including evidential material seized pursuant to paragraph 228(1)(c) of the POC Act and evidential material seized in accordance with paragraphs 99A(a)(ii) or (iii)) or property that is seized in accordance with paragraphs 99A(a)(iv) or (v).

796.           The reason that this provision does not apply to certain evidential material or property is because, depending on the nature of the material, this material will be dealt with in accordance with section 102 of the ICC Act, subsection 228(2) of the POC Act or the common law. This will ensure that evidence is not required to be returned while it is still needed for permitted purposes.



Item 182 - Paragraph 101(2)(a)

797.           Section 101 currently governs the process of dealing with certain seized property. Item 182 of Schedule 1 amends an error in the ICC Act to insert the word “not” after the words “property has”. This change is consistent with the equivalent provision in the MA Act (subsection 34ZE(2)).

798.           The effect of this amendment is that, if at the end of 30 days after the day on which the property was seized, no forfeiture order has been made or restraining order has been registered, the head of the enforcement agency whose authorised officer seized the property must, unless subsection (3), (5) or (7) applies, arrange for the property to be returned to the person from whose possession it was seized as soon as practicable after the end of that period.

Item 183 - Paragraph 101(2)(b)

799.           Subsection 101(2) establishes the general rule that seized property must be returned if a restraining order has not been made (Subdivision B of the ICC Act) or a forfeiture order has not been registered (Part 11 of the ICC Act) in a court within 30 days of the seizure.

800.           Item 183 of Schedule 1 will make a minor amendment to the provision and will replace the words “under Subdivision B” with “as described in Subdivision B”, given the order is technically made under the POC Act.

Item 184 - Subsection 101(2)

801.           Item 184 of Schedule 1 omits “head of the enforcement agency whose authorised officer seized the property” and substitutes “responsible enforcement agency head”. The words “responsible enforcement agency head” will be defined in section 4 of the ICC Act.

Item 185 - Subsection 101(3)

802.           Item 185 of Schedule 1 omits “under Subdivision B in respect of the property in relation to the crime within the jurisdiction of the ICC, the head of the enforcement agency whose authorised officer seized the property”, and substitutes “as described in Subdivision B in respect of the property in relation to the crime within the jurisdiction of the ICC, the responsible enforcement agency head”.

803.           The words “responsible enforcement agency head” will be defined in section 4 of the ICC Act.

Item 186 - Subsection 101(5)

804.           Item 186 of Schedule 1 omits “head of the enforcement agency whose authorised officer seized the property, a restraining order has been made under Subdivision B”, and substitutes “responsible enforcement agency head, a restraining order has been made as described in Subdivision B”.

805.           The words “responsible enforcement agency head” will be defined in section 4 of the ICC Act.

Item 187 - Subsection 101(5)

806.           Item 187 of Schedule 1 omits “head of the enforcement agency” (second and third occurring), and substitutes “responsible enforcement agency head”. The words “responsible enforcement agency head” will be defined in section 4 of the ICC Act.

Item 188 - Subsection 101(6)

807.           Item 188 of Schedule 1 repeals subsection 101(6) and substitutes new subsection 101(6) which will include consequential amendments made as a result of the changes in terminology regarding “responsible enforcement agency head” made by Item 145 of Schedule 1 and “proceeds request” made by Item 147 of Schedule 1.

Item 189 - Subsection 101(7)

808.           Item 189 of Schedule 1 omits “head of the enforcement agency whose authorised officer seized it”, and substitutes “responsible enforcement agency head”. The words “responsible enforcement agency head” will be defined in section 4 of the ICC Act.

Item 190 - Subsection 101(7)

809.           Item 190 of Schedule 1 omits “head of the enforcement agency” (second occurring), and substitutes “responsible enforcement agency head”. The words “responsible enforcement agency head” will be defined in section 4 of the ICC Act.

Item 191 - Section 102

810.           Item 191 of Schedule 1 repeals section 102 and substitutes new section 102. New section 102 will cover dealing with evidential material and certain property or things seized under a POCA search warrant by a seizing officer. It will cover seized items that are evidential material (including evidential material seized pursuant to paragraph 228(1)(c) of the POC Act and evidential material seized in accordance with paragraphs 99A(a)(ii) or (iii)) or property or a thing that is seized in accordance with paragraph 99A(a)(iv). It does not cover property or a thing that is seized in accordance with paragraph 99A(a)(v) as this material will be dealt with in accordance with subsection 228(2) of the POC Act or the common law.

811.           New subsection (2) will provide that the seizing officer may retain the seized item for a period not exceeding one month pending a written direction from the Attorney-General as to how to deal with the seized item.

812.           New subsection (3) will provide that, without limiting the directions that may be given under subsection (2), the Attorney-General may direct the seizing officer to send the seized item to the ICC.

Item 192 - Subsection 153(3)

813.           Item 192 of Schedule 1 repeals and substitutes subsection 153(3) with a new subsection which will ensure the provision is up to date with modern technology. Section 153 relates to the registration of an order in accordance with an authorisation under sections 151 and 152. Subsection 153(2) states that the court must register a copy of the order in the same way as the court registers an order made by another Australian court. Subsection 153(3) currently states that a facsimile copy of an authenticated order is acceptable. New subsection 153(3) will provide that if the copy of the order is sent by email or other electronic means, as well as being sent by fax, it will be taken to be the same as the authenticated copy.

814.           This amendment is designed to ensure that any copy of the order, however it is sent to Australia, is to be regarded as the same as the sealed or authenticated copy.

Item 193 - Subsection 154(3)

815.           Current subsection 154(3) relates to the registration of a reparation order. Currently, a registered order ceases to have effect after 21 days if the sealed or authenticated copy of the order is not filed with the court. Item 193 of Schedule 1 repeals and substitutes new subsection 154(3) of the ICC Act to extend the period of time the ICC has to provide the sealed or authenticated copy of the authenticated copy of the order.

816.           Item 193 of Schedule 1 will extend the period to 45 days to align with the equivalent provision in the MA Act. This recognises that it may take some time to obtain the sealed or authenticated copy of the order and the registration should not cease to have effect simply because this has not taken within place three weeks.

Items 194 to 197 - Sections 155 and 156

817.           Sections 155 and 156 currently provide for the Attorney-General, when specifying the court in which the application to register a forfeiture order is to be made, to specify a court that has proceeds jurisdiction in the state or territory in which the property, or some of the property that is subject to the order, is reasonably suspected of being located. Items 194 to 197 of Schedule 1 will amend sections 155 and 156 to remove this requirement.

818.           Section 335 of the POC Act (which is referred to in the definition of “proceeds jurisdiction” under section 4 of the ICC Act) specifies which courts have proceeds jurisdiction. Consequently, it is not necessary for the Attorney-General to specify the court in which the application should be made.  This amendment will enable a proceeds of crime authority to make the application in the most appropriate jurisdiction and court, in accordance with the jurisdictional provisions in the POC Act.

Item 194 - Subsection 155(2)

819.           Item 194 of Schedule 1 will omit “in a court specified in the notice” from subsection 155(2) which will remove the requirement for the Attorney-General to specify the court in which the application for the order to be registered is to be made.

820.           Section 335 of the POC Act (which is referred to in the definition of “proceeds jurisdiction” under section 4 of the ICC Act) specifies which courts have proceeds jurisdiction. Consequently, it is not necessary for the Attorney-General to specify the court in which the application should be made.  This amendment will enable a proceeds of crime authority to make the application in the most appropriate jurisdiction and court, in accordance with the jurisdictional provisions in the POC Act.

Item 195 - Subsection 155(3)

821.           Section 155 of the ICC Act enables the Attorney-General to authorise a proceeds of crime authority to apply for the registration of certain orders in a specified court. Subsection 155(3) of the ICC Act currently provides that where the Attorney-General specifies a court, it must be a court that has proceeds jurisdiction in the state or territory in which the property, or some of the property that is subject to the order, is reasonably suspected of being located.

822.           Item 195 of Schedule 1 repeals subsection 155(3). As Item 194 of Schedule 1 will remove the requirement for the Attorney-General to specify the court in which the application is to be made, subsection 155(3) is no longer necessary.

Item 196 - Before subsection 156(1)

823.           Section 156 of the ICC Act sets out the process for registering a foreign order. Item 196 of Schedule 1 inserts a new subsection at the beginning of section 156. New subsection 156(1A) will require a proceeds of crime authority to apply for the registration of an order in a court with proceeds jurisdiction.

824.            “Proceeds jurisdiction” is defined in section 4 of the ICC Act by reference to the definition in the POC Act.

Item 197 - Subsection 156(1)

825.           Section 155 of the ICC Act enables the Attorney-General to authorise a proceeds of crime authority to apply for the registration of certain orders in a specified court. Section 156 sets out the process for registering a foreign order.

826.           Item 197 of Schedule 1 omits “applies to a court for registration of an order in accordance with an authorisation under section 155” from subsection 156(1) and substitutes “so applies to a court with proceeds jurisdiction” as a result of the amendment which will be made by item 196 of Schedule 1. This recognises that the application by the proceeds of crime authority must be to a court with proceeds jurisdiction.

Item 198 - Subsections 156(5) and (6)

827.           Currently, subsection 156(5) of the ICC Act states that a faxed copy of a sealed or authenticated copy of a forfeiture order is to be regarded for the purposes of the ICC Act as the same as the sealed or authenticated version.

828.           If the registration of an order is effected by means of a faxed copy , subsection 156(6) (as it is currently drafted) then requires the sealed or authenticated copy of the foreign order to be filed with the court within 21 days of the registration of the foreign order. If this does not occur, the registration ceases to have effect after 21 days.

829.           Item 198 of Schedule 1 recognises that it may be impracticable for the ICC to immediately produce the actual order made by the court for the purposes of proceedings in Australia. Such a requirement would undermine the purpose of the provisions, which is to provide efficient and effective assistance in enforcing an order made in another country where property subject to that order may be in Australia. However, it is also important that the sealed or authenticated copy ultimately be produced to the court in which the order is registered.

830.           Item 198 of Schedule 1 repeals and substitutes subsections 156(5) and 156(6) with new subsections which will ensure the provision is up to date with modern technology. New subsection 156(5) will have the same purpose and effect but will apply if the copy of the order is sent by email or other electronic means, as well as being sent by fax. This amendment is designed to ensure that any copy of the ICC order, however it is sent to Australia, is to be regarded as the same as the sealed or authenticated copy.

831.           New subsection 156(6) will extend the current period of time the ICC has to provide the sealed or authenticated copy of the court order to 45 days, which aligns with the equivalent provision in the MA Act. Currently, a registered order ceases to have effect after 21 days if the sealed or authenticated copy of the foreign order is not filed with the court. This amendment recognises that it may take some time to obtain the sealed or authenticated copy of the ICC order and the registration should not cease to have effect simply because this has not taken place within three weeks.

Item 199 - Application and transitional provisions - general

832.           Item 199 of Schedule 1 provides for the application of the amendments made by this Division that do not relate to search warrants. It provides that they apply in relation to a proceeds request made by the ICC to the Attorney-General on or after the commencement of this item. They also apply to proceeds requests made before the commencement of this item if immediately before commencement the Attorney-General had not yet made a decision on the request. The amendments so apply whether property or a thing to which the proceeds request relates was acquired before, on or after that commencement; and whether conduct or a crime to which the proceeds request relates occurred before, on or after that commencement.

833.           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. In addition, it may be unclear when relevant property or things have been acquired or, in some cases, it may have been acquired over a number of years.

834.           However, in relation to the inclusion of the defence to the offence of failing to comply with a notice to a financial institution, the defence only applies to a notice given on or after the commencement of this item.

Item 200 - Application and transitional provisions - search warrants

835.           This item provides for the application of the amendments made by this Division to the extent that they relate to search warrants.

836.           Subitem (1) provides that the amendments apply in relation to an authorisation for a search warrant application given by the Attorney-General on or after the commencement of this item. This is the case whether property or a thing to which the authorisation relates was acquired before, on or after that commencement and whether conduct or a crime to which the authorisation relates occurred before, on or after that commencement.

837.           Subitem (2) provides that the amendments apply in relation to applications made on or after commencement of this item in certain circumstances. These circumstances are:

·          whether property or a thing to which the application relates was acquired before, on or after that commencement; and

·          whether conduct or a crime to which the application relates occurred before, on or after that commencement; and

·          whether the authorisation by the Attorney General relating to the application was given under the ICC Act before, on or after that commencement.

838.           Subitem (3) provides that the amendments apply in relation to a search warrant issued on or after the commencement of this item in certain circumstances. These circumstances are:

·          whether property or a thing to which the POCA search warrant relates was acquired before, on or after that commencement; and

·          whether conduct or a crime to which the POCA search warrant relates occurred before, on or after that commencement; and

·          whether the application for the POCA search warrant was made before, on or after that commencement; and

·          whether the authorisation by the Attorney-General relating to the application for the POCA search warrant was given under the ICC Act before, on or after that commencement.

839.           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. In addition, it may be unclear when relevant property has been acquired or, in some cases, property may have been acquired over a number of years. This item will give certainty to a person whose premises is the subject of a search warrant, authorised officers and those issuing warrants as to what provisions apply when applying for, issuing and executing a search warrant.

840.           Subitems (4) and (5) also provide for transitional provisions. Subitem (4) provides that certain authorisations already given by the Attorney-General before commencement will continue in force and may be dealt with as if they were given under the amended provisions. Subitem (5) provides that a direction in relation to dealing with seized materials already made by the Attorney-General before commencement continues in force and may be dealt with as if it were made under the amended provision.

Division 2 - Amendments relating to Tribunals

International War Crimes Tribunals Act 1995

841.           The IWCT Act currently does not provide for the range of investigative tools that domestic enforcement agencies can use to determine whether proceeds are located in Australia and to quantify those proceeds. It is important that Australia can respond to requests from an IWCT for proceeds of crime assistance to the same extent that we can in respect of requests from foreign countries or the ICC. Similarly, it is important that the authorisation process for using proceeds of crime tools is adequate to keep pace with the fast and fluid nature of the criminal economy. This Part will make a number of amendments to the IWCT Act to ensure Australia can provide the same proceeds of crime assistance to IWCTs as we can to foreign countries, subject to the same safeguards.

842.           In addition, the IWCT Act does not include provisions to seek restraining orders over property at the request of an IWCT. This is despite the fact that the IWCT Act provides for forfeiture action to be taken over property at the request of an IWCT. Given proceeds of crime can move quickly across borders or be concealed, it is important to ensure that Australia can take measures to restrain certain property to prevent its loss or concealment, prior to forfeiture action occurring.

843.           This Division will make a range of amendments to the IWCT Act to improve the operation of the proceeds of crime provisions in the Act. 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 will be modelled on the tools in the MA Act regarding assistance that can be provided to foreign countries, but will be appropriately modified for the context of the IWCTs.

Item 201 - Section 4

844.           Section 4 of the IWCT Act sets out the definitions that are relevant to the operation of the IWCT Act. Item 201 of Schedule 1 inserts a number of definitions into section 4 of the IWCT Act.

Definition of account

845.           Item 201 of Schedule 1 inserts a definition of “account” to align with the definition in the POC Act. It will mean any facility or arrangement through which a financial institution accepts deposits or allows withdrawals. This will include a facility or arrangement for a fixed term deposit or a safety deposit box; a credit card account; a loan account (other than a credit card account); an account held in the form of units in a cash management trust or a trust of a kind prescribed by the regulations; and a closed account.

Definition of agent

846.           Item 201 of Schedule 1 inserts a definition of “agent” to align with the definition in the POC Act. That is, it will include, if the agent is a corporation, the officers and agents of the corporation.

Definition of authorised officer

847.           Item 201 of Schedule 1 inserts a definition of “authorised officer” to align with the definition in the POC Act. That is, “authorised officer” will mean:

·          an AFP member who is authorised by the Commissioner of the AFP

·          an AFP employee within the meaning of the Australian Federal Police Act 1979 who is authorised by the Commissioner of the AFP

·          an employee of an authority of a state or territory, or an authority of the Commonwealth, within the meaning of the Australian Federal Police Act 1979 , while he or she is assisting the AFP in the performance of its functions under an agreement under section 69D of that Act, and who is authorised by the Commissioner of the AFP

·          the Integrity Commissioner (within the meaning of the Law Enforcement Integrity Commissioner Act 2006 )

·          an Assistant Integrity Commissioner (within the meaning of Law Enforcement Integrity Commissioner Act 2006 )

·          a staff member of ACLEI (within the meaning of Law Enforcement Integrity Commissioner Act 2006 ) who is authorised in writing by the Integrity Commissioner for the purposes of this paragraph

·          the Chief Executive Officer of the Australian Crime Commission

·          an examiner (within the meaning of the Australian Crime Commission Act 2002 ) who is authorised by the Chief Executive Officer of the Australian Crime Commission

·          a member of the staff of the ACC (within the meaning of the Australian Crime Commission Act 2002 ) who is authorised by the Chief Executive Officer of the Australian Crime Commission

·          a person who is an APS employee in the Immigration and Border Protection Department and who is authorised by the Comptroller-General of Customs

·          a member, or staff member, (within the meaning of the Australian Securities and Investments Commission Act 2001 ) of the Australian Securities and Investments Commission who is authorised by the Chairperson of the Australian Securities and Investments Commission, or

·          a member, officer or employee of any other agency specified in the regulations who is authorised by the head of that agency.

Definition of defendant

848.           Item 201 of Schedule 1 inserts a definition of “defendant” which will be given the meaning in accordance with new section 40AA of the IWCT Act.

Definition of enforcement agency

849.           Item 201 of Schedule 1 inserts a definition of “enforcement agency” to align with the definition in the POC Act. That is, the definition will include the agencies listed under paragraphs (a) to (d) of the definition of “authorised officer” in the POC Act in addition to an agency specified in the regulations to be a law enforcement, revenue or regulatory agency for the purposes of the POC Act.

Item 202 - Section 4 (definition of evidential material )

Definition of evidential material

850.           Item 202 of Schedule 1 repeals the existing definition of “evidential material”, which currently only applies in relation to search warrants under sections 15 and 33 of the IWCT Act and substitutes a new definition. The new definition preserves the substance of the current definition of evidential material as well as inserts a new paragraph which defines evidential material for the purposes of Subdivision F of Division 6 of Part 4 of the IWCT Act (Search warrants relating to proceeds of crime and evidential material).

851.           The meaning of “evidential material” for the purposes of Subdivision F of Division 6 of Part 4 of the IWCT Act will be evidence relating to the types of property that the IWCTs may be investigating for proceeds of crime purposes. These are:

·          Property in relation to which a forfeiture order has been or could be made; or

·          Property in relation to which a restraining order has been or could be made for the purposes of section 40AC of the IWCT Act; or

·          Proceeds of a Tribunal offence.

852.           This definition will ensure that the provisions relating to proceeds of crime search warrants apply appropriately in the context of requests from the IWCTs.

Item 203 - Section 4 (definitions)

853.           Section 4 of the IWCT Act sets out the definitions that are relevant to the operation of the IWCT Act. Item 203 of Schedule 1 inserts a number of definitions into section 4.



 

Definition of financial institution

854.           Item 203 of Schedule 1 inserts a definition of “financial institution” to align with the definition in the POC Act.

Definition of interest

855.           Item 203 of Schedule 1 inserts a definition of “interest” to align with the definition in the POC Act. That is, where the act references “interest” in relation to a property or thing, this will be taken to mean a legal or equitable estate or interest in the property or thing or a right, power or privilege in connection with the property or thing whether present or future and whether vested or contingent.

Definition of officer

856.           Item 203 of Schedule 1 inserts a definition of “officer” to align with the definition in the POC Act. That is, where the definition is in relation to a financial institution or a corporation, it will be taken to mean a director, secretary, executive officer or employee of a financial institution or a corporation.

Definition of person assisting

857.           Item 203 of Schedule 1 inserts a definition of “person assisting”. “Person assisting” will have the same meaning as in the POC Act, namely: person assisting, in relation to a search warrant, means:

·          a person who is an authorised officer and who is assisting in executing the warrant; or

·          a person who is not an authorised officer and who has been authorised by the relevant executing officer to assist in executing the warrant.

Definition of POCA search warrant

858.           Item 203 of Schedule 1 inserts a definition of “POCA search warrant” which will mean a search warrant issued under Part 3-5 of the POC Act in relation to a Tribunal offence.

Definition of proceeds

859.           Item 203 of Schedule 1 inserts a definition of “proceeds” to align with the definition in the POC Act. The POC Act definition of “proceeds” has the meaning given by sections 329 and 330 of that Act.

Definition of proceeds jurisdiction

860.           Item 203 of Schedule 1 inserts a definition of “proceeds jurisdiction” to align with the definition in the POC Act. The POC Act definition of “proceeds jurisdiction” has the meaning given by section 335 of that Act.



 

Definition of proceeds request

861.           Item 203 of Schedule 1 inserts a definition of “proceeds request” by reference to section 40AA of the IWCT Act. Section 40AA provides that a proceeds request is a request from an IWCT to the Attorney-General for the identification, tracing and freezing or seizure of the proceeds of a Tribunal offence.

Definition of related Tribunal offence

862.           Item 203 of Schedule 1 inserts a definition of “related Tribunal offence”. The definition outlines that two Tribunal offences are related if the physical elements of the two separate offences are substantially the same acts or omissions.

Definition of responsible enforcement agency head

863.           Item 203 of Schedule 1 inserts a definition of “responsible enforcement agency head”. The definition of “responsible enforcement agency head” will be: the head of the enforcement agency whose authorised officer is responsible for executing a POCA search warrant. This item will be included due to the use of this term in Subdivision F of Division 6 of Part 4 of the IWCT Act (Search warrants relating to proceeds of crime and evidential material).

Definition of restraining order

864.           Item 203 of Schedule 1 inserts a definition of restraining order by reference to section 17 of the POC Act. Section 17 of the POC Act provides for restraining orders in relation to people convicted of or charged with certain offences. This item will be included due to the use of this term in Subdivision B of Division 6 of Part 4 of the IWCT Act (Restraining orders).

Definition of senior police officer

865.           Item 203 of Schedule 1 inserts a definition of “senior police officer” by reference to subsection 40AH(3). Subsection 40AH(3) provides that “senior police officer” for the purposes of the IWCT Act will be limited to those persons referred to in paragraphs 213(3)(a), (b) and (c) of the POC Act. That is:

·          the Commissioner of the AFP

·          a Deputy Commissioner of the AFP, and

·          a senior executive AFP employee (within the meaning of the Australian Federal Police Act 1979 ) who is a member of the AFP and who is authorised in writing by the Commissioner for the purposes of section 213 of the POC Act.

Item 204 - At the end of Part 4

866.           Item 204 of Schedule 1 inserts new Division 6—“Identification, tracing, and freezing or seizure, of proceeds of Tribunal offences”—at the end of Part 4. New Division 6 will consist of Subdivision A to Subdivision F. This Division will introduce a range of restraint and investigative tools that Australia will be able to use to assist IWCTs in proceeds of crime matters. The investigative 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 IWCTs in the same efficient, streamlined manner, and subject to the same safeguards, as currently applies to requests from foreign countries.

Section 40AA

867.           New section 40AA outlines the circumstances in which Division 6 will apply. Specifically, where:

·          a Tribunal makes a proceeds request to the Attorney-General for the identification, tracing and freezing or seizure of the proceeds of a Tribunal offence; and

·          the Attorney-General is satisfied that the defendant has been, or is about to be, charged with the Tribunal offence before the Tribunal or has been convicted by the Tribunal of the Tribunal offence.

Section 40AB

868.           The IWCT Act currently does not provide for the range of investigative tools that domestic enforcement agencies can use to determine whether proceeds are located in Australia and to quantify those proceeds. For example, there is no power in the IWCT Act to seek monitoring orders, search warrants or production orders in proceeds of crime matters. These powers will be inserted into new Division 6 to facilitate the location and quantification of proceeds of crime, which will be particularly relevant to giving effect to forfeiture orders made by the IWCTs. These powers will be modelled on those in the MA Act, including in relation to the way the Attorney-General authorises the use of these powers, although they will be modified for the context of the IWCTs.

869.           New section 40AB will provide that if the Attorney-General is satisfied that the requisite circumstances exist, the Attorney-General may make a general authorisation for an authorised officer of an enforcement agency to make any applications under the POC Act necessary to respond to a proceeds request by an IWCT. The Attorney-General must be satisfied that the proceeds request relates to a proceeding before, or an investigation conducted by, the Tribunal and that the assistance requested can be obtained from one or more production orders, monitoring orders or search warrants under the POC Act.

870.           The authorisation will enable the authorised officer of an enforcement agency to apply for one or more production orders under new section 40AF, monitoring orders under new section 40AN, or search warrants under new section 40AP.  Each of these sections, when inserted, will govern the process for applying for each of the investigative tools. This will give an authorised officer the flexibility to choose which investigative tools will allow them most effectively and efficiently to obtain the information that has been requested.

871.           These new provisions broaden the types of proceeds of crime assistance which Australia can provide to IWCTs, and will mean an IWCT will be able to make one general request without having to make separate requests depending on the type of investigative tool that will need to be used to obtain the information that the IWCT has requested.



 

Subdivision B - Restraining orders

872.           This Subdivision establishes a regime for making restraining orders under the POC Act in response to requests for assistance from an IWCT. Restraining orders will be able to be made where a person has been, or is about to be, charged with a Tribunal offence or has been convicted of such a crime. This regime is materially the same as the regime for making these orders under the MA Act and the ICC Act.

Section 40AC Applying for and making restraining orders

873.           New subsection 40AC(1) will provide that if an IWCT makes a proceeds request that involves the making of a restraining order (e.g. a request for the freezing or seizing of the proceeds of a Tribunal offence), the Attorney-General may authorise a proceeds of crime authority to apply for a restraining order under the POC Act. The definition of a “proceeds request” will be inserted by new section 40AA (see item 204 of Schedule 1). A restraining order is defined in section 4 of the IWCT Act to mean a restraining order under section 17 of the POC Act.

874.           New subsection 40AC(2) will provide that if so authorised, the proceeds of crime authority may apply for such a restraining order over property in respect of the Tribunal offence.

875.           New subsection 40AC(3) will provide that Part 2-1 of the POC Act will apply to any application for a restraining order, and any restraining order made as a result.

876.           New subsection 40AC(4) will provide that Part 2-1 of the POC Act will apply as if references in that Part to an indictable offence were references to the Tribunal offence that is the subject of the proceeds request. Similarly, references in Part 2-1 of the POC Act to a person charged with an indictable offence are to be read as references to a person against whom a criminal proceeding has commenced in the Tribunal in respect of a Tribunal offence. References in Part 2-1 of the POC Act to it being proposed that a person be charged with an indictable offence are to be read as references to it being reasonably suspected that criminal proceedings are about to commence against the person in the Tribunal in respect of a Tribunal offence.

877.           New paragraph 40AC(4)(d) will provide that Part 2-1 of the POC Act applies as if paragraphs 17(1)(e) and (f), subsections 17(3) and (4) and sections 18 to 20A, 29, 29A, 44 to 45A of the POC Act were omitted. This provision will align with section 82 of the ICC Act, and ensure that only the relevant provisions of the POC Act are applied for the context of IWCT requests.

Section 40AD Excluding property from restraining orders

878.           New section 40AD will enable property that is restrained in accordance with this subdivision to be returned to third parties in certain circumstances. It will enable a third party who was not involved in any way in the commission of the offence to which the restraining order relates, to apply to have his or her interest in the property excluded from the restraining order. The court must grant the application and exclude property if satisfied that if the applicant is not the defendant:

·          the applicant was not, in any way, involved in the commission of the Tribunal offence, and

·          if the applicant acquired the interest at the time of or after the commission of the Tribunal offence, the property was not proceeds of the Tribunal offence.

879.           The court must also grant the application and exclude property if, in any case (whether or not the person is the defendant), it is in the public interest to grant the order having regard to any financial hardship or other consequence of the interest remaining subject to the order.

880.           The above safeguards reflect the equivalent provisions in the ICC Act.

Section 40AE When restraining order ceases to be in force

881.           New subsection 40AE(1) will provide that if a restraining order is made because a person is going to be charged with a Tribunal offence, and that person is not charged with such a crime within 1 month of making the order, then the restraining order will expire at the end of that period.

882.           New subsection 40AE (2) will set out the other circumstances where a restraining order may cease to be in force. Those circumstances arise where:

883.           a restraining order is made in reliance on a person’s conviction of a Tribunal offence, or the charging of a person with such an offence, or

884.           a restraining order is made in reliance on the proposed charging of a person with a Tribunal offence and the person is, within one month after the making of the order, charged with the Tribunal offence or a related Tribunal offence.

885.           In these situations, proposed paragraphs 40AE(2)(c)-(f) provide that the restraining order will cease to be in force if:

·          the relevant charge is withdrawn and the person is not charged with a related Tribunal offence within 28 days after the day on which the charge is withdrawn 

·          the person is acquitted of the relevant charge and is not charged with a related Tribunal offence within 28 days after the day on which the acquittal occurs

·          some or all of the property referred to in the order is forfeited under Part 6 of the IWCT Act (though the restraining order will only cease to have effect to the extent that the order relates to the property that is forfeited, and those parts of the order that relate to property that is not forfeited will continue in force), or

·          the restraining order is revoked. 

886.           The above safeguards reflect the equivalent provisions in the ICC Act.



 

Subdivision C - Production orders relating to Tribunal offences

Section 40AF Applying for and making production orders

887.           New section 40AB will provide that if the Attorney-General is satisfied that the requisite circumstances exist, the Attorney-General may make a general authorisation for an authorised officer of an enforcement agency to make any applications under the POC Act necessary to respond to a proceeds request by an IWCT, including a production order. Part 3-2 of the POC Act will apply to any application for a production order, and any production order made as a result. The definition of a “proceeds request” will be inserted by new section 40AA.

888.           New subsections 40AF(1) and (2) will enable an authorised officer to seek a production order under the POC Act in respect of a Tribunal offence that is the subject of an IWCT proceeds request, and will provide that Part 3-2 of that Act will apply to both the application and any subsequent order. The authorised officer may only apply for a production order where so authorised to do so by the Attorney-General under new section 40AB.

889.           New subsection 40AF(3) will provide that Part 3-2 of the POC Act will apply as if reference in that Part to an indictable offence or to a serious offence were references to the Tribunal offence that is the subject of the proceeds request and subparagraphs 202(5)(a)(ii) and (c)(ii), paragraph 202(5)(e) and subsection 205(1) of the POC Act were omitted.

Section 40AG Retaining produced documents

890.           New section 40AG will provide that an authorised officer may retain a document obtained as a result of a production order until the Attorney-General provides written directions on how to deal with the document. New subsection 20AG(2) will provide that any such direction may include sending that document to an IWCT.

Subdivision D - Notices to financial institutions

Section 40AH Giving notices to financial institutions

891.           New section 40AH will set out the procedure that must be followed where a senior police officer gives a notice to a financial institution requiring the production of any information or documents relevant to certain matters.

892.           Under this section, a senior police officer may give a written notice to a financial institution requiring the production of any information or documents relevant to determining:

·          whether an account is held by a specified person with the financial institution;

·          whether a particular person is a signatory to an account;

·          the current balance of the account;

·          details of transactions over a specified period of up to 6 months;

·          any related accounts (including the names of those account holders); and

·          transactions conducted by the financial institution on behalf of a specified person.

893.           New subsection 40AH(2) provides that the notice must not be issued unless the senior police officer reasonably believes that giving the notice is required to determine whether to take action, or in relation to proceedings, under Division 6 of Part 4 of the IWCT Act or under the POC Act in connection with proceedings under Division 6 of Part 4.

894.           A “senior police officer” for the purposes of the IWCT Act will be limited to those persons referred to in paragraphs 213(3)(a), (b) and (c) of the POC Act. That is:

·          the Commissioner of the AFP

·          a Deputy Commissioner of the AFP, and

·          a senior executive AFP employee (within the meaning of the Australian Federal Police Act 1979 ) who is a member of the AFP and who is authorised in writing by the Commissioner for the purposes of section 213 of the POC Act.

Section 40AI Contents of notices to financial institutions

895.           New section 40AI will set out what a notice issued under section 40AH must contain. First, it must state that the officer giving the notice believes that giving the notice is required to determine whether to take action, or in relation to proceedings, under Division 6 of Part 4 of the IWCT Act or the POC Act in connection with proceedings under Division 6 of Part 4 of the IWCT Act. It must also specify the name of the financial institution, the kind of information or documents required to be provided, and the form and manner in which that information or those documents are to be provided. Further, it must also state that the information or documents must be provided within 14 days of the notice.

896.           If the notice specifies that information about the notice must not be disclosed, it must also set out the effect of the offences in new section 40AL (offence of disclosing existence or nature of a notice). The notice must also set out the effect of new section 40AM (failing to comply with a notice).

Section 40AJ Protection from suits etc. for those complying with notices

897.           New section 40AJ will provide that a financial institution or one of its officers, employees or agents are protected from any action, suit or proceeding in relation to any action taken by the institution or person in relation to its or their response to a notice under new section 40AH, or in the mistaken belief that action was required under such a notice.

898.           The same parties will also be protected from prosecution for money laundering offences (Part 10.2 of the Criminal Code) in respect of the information provided in response to a notice under new section 40AH.

Section 40AK Making false statements in applications

899.           New section 40AK will create the offence of providing a false or misleading statement in connection with a section 40AH notice to a financial institution; or omitting any matter or thing without which the statement is misleading.

900.           The offence will apply whether the statement is given orally or in a document or other form. The maximum penalty which can be imposed in relation to this offence is 12 months imprisonment, a fine of 60 penalty units, or both.

Section 40AL Disclosing existence or nature of notice

901.           New section 40AL will create an offence where a person who has been given a notice under section 40AH discloses the existence or nature of the notice, where the notice specifies that information about the notice must not be disclosed.

902.           The maximum penalty which can be imposed in relation to this offence is 2 years imprisonment, a fine of 120 penalty units, or both.

Section 40AM Failing to comply with a notice

903.           New Section 40AM will create an offence where a person fails to comply with a notice given under section 40AH.

904.           The maximum penalty which can be imposed in relation to this offence will be 2 years imprisonment, a fine of 100 penalty units, or both.

905.           New subsection 40AM(2) will provide that the offence does not apply in certain circumstances, including where a person from a financial institution does not produce the required information or document within the specified period, but that person took all reasonable steps to provide the information, and then provided the information is provided as soon as practicable.

906.           Item 204 of Schedule 1 also inserts two notes at the end of new section 40AM. The first note will provide that the defendant bears an evidential burden in relation to the matters in establishing the defence (see subsection 13.3(3) of the Criminal Code). The reason for this is that the matters are within the peculiar knowledge of the defendant. The second note will provide that sections 137.1 and 137.2 of the Criminal Code also create offences for providing false or misleading information or documents.  

907.           This item is a safeguard to ensure that persons who are genuinely unable to provide the required information within the specified time are not exposed to a penalty.

Subdivision E - Monitoring orders relating to Tribunal offences

Section 40AN Applying for and making monitoring orders

908.           New section 40AB will provide that if the Attorney-General is satisfied that the requisite circumstances exist, the Attorney-General may make a general authorisation for an authorised officer of an enforcement agency to make any applications under the POC Act necessary to respond to a proceeds request by an IWCT, including a monitoring order. The definition of a “proceeds request” will be inserted by new section 40AA.

909.           New subsections 40AN(1) and (2) will enable an authorised officer to seek a monitoring order under the POC Act in respect of a Tribunal offence that is the subject of an IWCT proceeds request, and that Part 3-4 of that Act will apply to both the application and any subsequent order. The authorised officer may only apply for a monitoring order where so authorised to do so by the Attorney-General under new section 40AB.

910.           New subsection 40AN(3) will provide that Part 3-4 of the POC Act will apply as if reference in that Part to a serious offence were reference to the Tribunal offence that is the subject of the proceeds request and disclosing the existence of the operation of the order for the purpose of complying with a person’s obligations under section 40AO of the IWCT Act were a purpose specified in subsection 223(4) of the POC Act.

Section 40AO Passing on information given under monitoring orders

911.           New section 40AO will provide that information gained under a monitoring order made in relation to the relevant Tribunal offence must be passed to the Attorney-General or a specified APS employee of the Attorney-General’s Department as soon as practicable after the enforcement agency receives the information.

Subdivision F - Search warrants relating to proceeds of crime and evidential material

Section 40AP Applying for and issuing search warrants

912.           New section 40AB will provide that if the Attorney-General is satisfied that the requisite circumstances exist, the Attorney-General may make a general authorisation for an authorised officer of an enforcement agency to make any applications under the POC Act necessary to respond to a proceeds request by an IWCT, including for a search warrant. The definition of a “proceeds request” will be inserted by new section 40AA.

913.           New subsections 40AP(1) and (2) will enable an authorised officer to seek a search warrant under the POC Act in respect of a Tribunal offence that is the subject of an IWCT proceeds request, and provide that Part 3-5 of that Act will apply to both the application and any subsequent order. The authorised officer may only apply for a search warrant where so authorised by the Attorney-General under new section 40AB

914.           New subsection 40AP(3) deals with how Part 3-5 of the POC Act will apply to applications for search warrants and to any search warrant issued as a result. New subsection (3) modifies the POC Act in a number of ways to ensure that it operates effectively in relation to requests from IWCTs.

915.           New paragraph 40AP(3)(a) will provide that Part 3-5 of the POC Act applies as if a reference in that Part to tainted property was a reference to proceeds of the Tribunal offence that is the subject of the proceeds request. This will ensure that the property covered by this Subdivision is appropriate to the foreign context of an IWCT request.

916.           New paragraph 40AP(3)(b) will provide that Part 3-5 of the POC Act applies as if references in that Part to evidential material were references to evidential material as defined in section 4 of the IWCT Act. This will ensure that the evidential material covered by this Subdivision is that which is appropriate to the foreign context of the IWCT request.

917.           New paragraph 40AP(3)(c) will modify the application of paragraph 254(1)(a) of the POC Act for IWCT matters. Paragraph 254(1)(a) of the POC Act deals with the responsibility for things seized under the POC Act. It provides that the responsible custodian of the thing must arrange for the thing to be kept until it is dealt with in accordance with another provision of the POC Act. Paragraph 40AP(3)(c) modifies this so that after the words “this Act” the words “or section 40AS, 40AT or 40AU of the International War Crimes Tribunals Act 1995” were inserted. This is because in addition to relevant provisions in the POC Act, sections 40AS-40AU of the IWCT Act cover dealing with things seized pursuant to a search warrant executed on behalf of the IWCT in response to a request from the IWCT.

918.           New paragraph 40AP(3)(d) will modify the application of certain provisions of the POC Act so that the search warrant provisions apply appropriately in the foreign context for IWCT matters. It provides that Part 3-5 of the POC Act applies as if paragraphs 227(1)(a), (b), (h) and (ha) and 228(1)(d) and (da) and sections 256 to 262 of the POC Act were omitted.

919.           Paragraphs 227(1)(a) and (b) of the POC Act provide that a search warrant issued under the POC Act must state the nature of the property in respect of which action has been or could be taken under this Act and the nature of that action. These paragraphs are omitted because they are not relevant in the context of IWCT matters; this is because in such cases, action is generally taken by the IWCT (and not under the POC Act).

920.           Paragraphs 227(1)(h) and (ha) and 228(1)(d) and (da) of the POC Act deal with the contents of search warrants and what can be seized under search warrants. They are omitted for the purposes of search warrants issued in response to IWCT requests because these matters will be covered in the new sections 40AQ and 40AR of the IWCT Act.

921.           Sections 256 to 262 of the POC Act cover dealing with things seized under the POC Act. These provisions are omitted for the purposes of search warrants issued pursuant to IWCT requests because these matters will be covered in the new sections 40AS-40AU of the IWCT Act.

Section 40AQ and 40AR - Contents of POCA search warrants and Seizure of certain property or things found in the course of search

922.           New sections 40AQ and 40AR address the seizure of other things not specified in the search warrant.

923.           New section 40AQ will cover the content of search warrants, in particular, that a search warrant must state what additional property or things are authorised to be seized (in addition to those matters that are required to be stated in the warrant by section 227 of the POC Act as modified by new paragraph 40AP(3)(d) of the IWCT Act). This will mirror the provision in new section 40AR regarding what additional property or things are authorised to be seized. This provision will apply in place of paragraphs 227(1)(h) and (ha) of the POC Act in accordance with new paragraph 40AP(3)(d) of the IWCT Act.

924.           New section 40AR will cover what is authorised to be seized (in addition to that provided for by section 228 of the POC Act as modified by paragraph 40AP(3)(d) of the IWCT Act). This provision applies in place of paragraph 228(1)(d) and (da) of the POC Act in accordance with new paragraph 40AP(3)(d) of the IWCT Act.

925.           In order to seize the additional property or things authorised by the warrant, an authorised officer or person assisting in the course of the search must believe on reasonable grounds that they satisfy two criteria.  Firstly, that the property or thing falls within one of five categories set out below, and secondly that the seizure of the property or thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence.

926.           The five categories are that the property or thing:

·          is proceeds of the Tribunal offence that are not of a kind specified in the warrant; or

·          is evidential material relating to the Tribunal offence that is not of a kind specified in the warrant; or

·          is proceeds of, or evidential material relating to, another Tribunal offence in relation to which a POCA search warrant is in force; or

·          is relevant to a proceeding in the Tribunal in respect of the Tribunal offence; or

·          will afford evidence as to the commission of an offence against an Australian law.

927.           These sections recognise that whilst executing a search warrant, an authorised officer or person assisting may find other relevant property or things that were not listed in the search warrant. For example, they may find additional evidential material that relates to the foreign serious offence that was identified in the warrant, but was not known about at the time the warrant was applied for. These sections will ensure that it is possible to seize the types of property or things listed above in order to prevent their concealment, loss or destruction or their use in committing an offence.

Section 40AS Return of seized property to third parties

928.           This section will provide for property that is seized under a Part 3-5 POCA search warrant in relation to a Tribunal offence to be returned to a third party who claims an interest in that property.

929.           New subsection 40AS(2) will provide that a person will be required to apply to a court that has proceeds jurisdiction in the state or territory in which the search warrant was issued.

930.           New subsection 40AS(3) will provide that to order the return of the property the court must be satisfied that the applicant is entitled to possession of the property, that the property is not the proceeds of the Tribunal offence, and that the person suspected of committing the relevant offence has no interest in the property.

931.           Where the court makes such an order, new subsection 40AS(4) will provide that the responsible enforcement agency head must arrange for the property to be returned to the applicant.

932.           New subsection 40AS(5) will provide that section 40AS does not apply to property that has been seized because it is evidential material (including evidential material seized pursuant to paragraph 228(1)(c) of the POC Act and evidential material seized in accordance with paragraphs 40AR(a)(ii) or (iii)) or property that is seized in accordance with paragraphs 40AR(a)(iv) or (v). Depending on the nature of the material, this material will be dealt with in accordance with section 40AU of the IWCT Act, subsection 228(2) of the POC Act or the common law. This will ensure that evidence is not required to be returned to third parties while it is still needed for permitted purposes.



 

Section 40AT Dealing with certain seized property

933.           This section will provide how to deal with certain property seized under a POCA search warrant issued in relation to a Tribunal offence. It does not apply to evidential material (including evidential material seized pursuant to paragraph 228(1)(c) of the POC Act and evidential material seized in accordance with paragraphs 40AR(a)(ii) or (iii)) or property that is seized in accordance with paragraphs 40AR(a)(iv) or (v). The reason that this provision does not apply to certain evidential material or property is because, depending on the nature of the material, this material will be dealt with in accordance with section 40AU of the IWCT Act, subsection 228(2) of the POC Act or the common law. This will ensure that evidence is not required to be returned while it is still needed for permitted purposes.

934.           New subsection 40AT(2) will establish the general rule that the responsible enforcement agency head must arrange for the seized property to be returned if a restraining order has not been made (as described in subdivision B) or a forfeiture order has not been registered (under Part 6 of the IWCT Act) in an Australian court at the end of the period of 30 days after the day on which the property was seized. This general rule applies unless subsections 40AT(3), 40AT(5) or 40AT(7) apply. 

935.           New subsection 40AT(3) provides that if a restraining order is made within the 30 day period, the responsible enforcement agency head will be required to ensure that the property is given to the Official Trustee in accordance with a direction of the court that the Official Trustee take custody and control of the property. If the court has made no such direction, but has ordered under subsection (6) that the responsible enforcement agency head may retain the property, that person will be required to retain the property in accordance with the restraining order until it is dealt with in accordance with the IWCT Act or the POC Act.

936.           New subsection 40AT(4) provides that where property is given to the Official Trustee under new paragraph 40AT(3)(a), the POC Act will apply to that property as if it were “controlled property”. “Controlled property” is defined in the POC Act as property in relation to which the Official Trustee must exercise the powers, and perform the duties, conferred or imposed on it, in relation to property of which a court has ordered the Official Trustee to take custody and control.

937.           New subsections 40AT(5) and (6) will provide that where a restraining order has been made as described in Subdivision B in relation to a Tribunal offence, the responsible enforcement agency head may apply to the court in which the restraining order was registered, or by which the restraining order was made, to retain the property. The court will be able to grant such an order if satisfied that retention of the property is necessary to give effect to the proceeds request. The court may order that the responsible agency head may retain the property for so long as the property is required.

938.           New subsection 40AT(7) will require the responsible enforcement agency head to deal with seized property still in his or her possession when a forfeiture order is registered in Australia under Part 6 of the IWCT Act in accordance with the terms of that order.

Section 40AU - Dealing with evidential material and certain property or things seized under POCA search warrants

939.           New section 40AU will cover dealing with evidential material and certain property or things seized under a POCA search warrant by a seizing officer. It will cover seized items that are evidential material (including evidential material seized pursuant to s228(1)(c) of the POC Act and evidential material seized in accordance with paragraphs 40AR(a)(ii) or (iii)) or property or a thing that is seized in accordance with paragraph 40AR(a)(iv). It does not cover property or a thing that is seized in accordance with proposed paragraph 40AR(a)(v) as this material will be dealt with in accordance with subsection 228(2) of the POC Act or the common law.

940.           New subsection 40AU(2) will provide that the seizing officer may retain the seized item for a period not exceeding one month pending a written direction from the Attorney-General as to how to deal with the seized item.

941.           New subsection 40AU(3) will provide that, without limiting the directions that may be given under new subsection 40AU(2), the Attorney-General may direct the seizing officer to send the seized item to the Tribunal.

Items 205 to 208 - Sections 44-45 - Courts to which applications are made

942.           Items 205 to 208 of Schedule 1 make amendments to facilitate the removal of the requirement for the Attorney-General to specify the court in which applications to register forfeiture orders are made.

943.           Item 205 of Schedule 1 omits “in a specified court” from subsection 44(1) of the IWCT Act. Item 206 of Schedule 1 repeals subsection 44(2) which covers the specified court to which an application must be made. Item 207 of Schedule 1 inserts new subsection 45(1AA) which will provide that an application for registration of a forfeiture order must be to a court with proceeds jurisdiction. Item 208 of Schedule 1 omits “applies to a court for registration of an order in accordance with an authorisation under this Part” and substitutes “so applies to a court with proceeds jurisdiction”.

944.           Section 335 of the POC Act (which is referred to in the definition of “proceeds jurisdiction” inserted in section 4 of the IWCT Act by item 203 of Schedule 1) specifies which courts have proceeds jurisdiction. Consequently, it is not necessary for the Attorney-General to specify the court in which the application should be made.  This amendment will enable a proceeds of crime authority to make the application in the most appropriate jurisdiction and court, in accordance with the jurisdictional provisions in the POC Act.

Item 209 - Subsection 45(3)

945.           Item 209 of Schedule 1 repeals and substitutes subsection 45(3) with a new subsection which will ensure the provision is kept up to date with modern technology. Section 45 relates to the registration of a forfeiture order in accordance with an authorisation under section 44. Subsection 45(2) states that the court must register a copy of the order in the same way as the court registers an order made by another Australian court. Subsection 45(3) currently states that a facsimile copy of an authenticated order is acceptable. New subsection 45(3) will provide that, subject to subsection 45(2), if the copy of the order is sent by email or other electronic means, as well as being sent by fax, it will be taken to be the same as the authenticated copy.

946.           This amendment is designed to ensure that any copy of the order, however it is sent to Australia, is to be regarded as the same as the sealed or authenticated copy.

Item 210 - Subsection 46(2)

947.           Section 46 currently relates to the effect of an IWCT forfeiture order. Current subsection 46(2) provides that registration effected by registering a copy ceases to have effect after 21 days unless the sealed copy has been filed by then in court.

948.           Item 210 of Schedule 1 extends the period to 45 days to align with the equivalent provision in the MA Act. This recognises that it may take some time to obtain the sealed or authenticated copy of the order and the registration should not cease to have effect simply because this has not taken within place three weeks.

Item 211 - paragraph 46A(1)(a)

949.           Item 211 of Schedule 1 omits “(within the meaning of the Proceeds of Crime Act 2002 )” given there is a new definition of “interest” in section 4 of the IWCT Act (see Item 203), making these words unnecessary.

Item 212 - Application of amendments

950.           Item 212 of Schedule 1 provides for the application of the amendments made by this Division.

951.           Subitem (1) provides that they will apply in relation to a request made by a Tribunal to the Attorney-General on or after commencement of this item. They will also apply to such a request made before commencement if immediately before commencement the Attorney-General had yet to make a decision on the request.

952.           Subitem (2) provides that the amendments so apply whether property or a thing to which the proceeds request relates was acquired before, on or after that commencement; and whether conduct or an offence to which the proceeds request relates occurred before, on or after that commencement.

953.           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. In addition, it may be unclear when relevant property or things have been acquired or, in some cases, it may have been acquired over a number of years. This item will give certainty to a person whose premises is the subject of investigative powers, authorised officers and those issuing warrants as to what provisions apply when applying for, issuing and executing investigative powers.

Part 9 - Obligations of carriage service providers etc, to provide assistance, and recovery of costs for providing assistance

Telecommunications Act 1997

Items 213 to 214 - After paragraph 313(3)(ca) and after paragraph 313(4)(ca)

954.           Section 313 of the Telecommunications Act sets out various obligations of carriers and carriage service providers in connection with the operation of telecommunications networks or facilities or the supply of carriage services. In particular, subsections 313(3) and (4) require carriers and carriage service providers to provide officers and authorities of the Commonwealth and States and Territories such help as is reasonably necessary for:

·          enforcing the criminal law and laws imposing pecuniary penalties

·          assisting the enforcement of the criminal laws in force in a foreign country

·          protecting the public revenue; and

·          safeguarding national security.

955.           Section 314 sets out the terms and conditions on which help is to be provided. In particular, subsection 314(2) states that providing help is on a no profit, no loss basis. Sections 313 and 314 currently do not extend to assistance provided in respect of requests from the ICC or IWCTs.

956.           Items 213 and 214 of Schedule 1 insert new paragraphs into subsections 313(3) and (4). The new paragraphs will require carriers and carriage service providers to also provide assistance to officers and authorities of the Commonwealth and the States and Territories for the purpose of assisting with the enforcement of crimes within the jurisdiction of the ICC and Tribunal offences.

957.           A “crime within the jurisdiction of the ICC” is defined 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. The IWCT Act defines a “tribunal offence” at section 4 to mean:

·          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

·          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

·          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.

958.           New paragraphs 313(3)(cb) and 313(4)(cb) will ensure that carriers are required to provide assistance where requested to do so by law enforcement agencies in relation to providing telecommunications data to the ICC or an IWCT for the purposes of enforcing crimes within the jurisdiction of the ICC or a Tribunal offence. Further, due to the operation of subsection 314(2), this assistance will be able to be provided on a no profit, no loss basis.

Item 215 - Application of amendments

959.           Item 215 of Schedule 1 provides for the application of the amendments made by this Part. It provides that they apply in relation to giving help on or after commencement, whether conduct, a crime or an offence to which the help relates occurred before, on or after that commencement.

960.           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.

Schedule 2—Amendments relating to mutual assistance in criminal matters

Part 1 - Search warrants

961.           The amendments in Part 1 of Schedule 2 ensure that the provisions on the proceeds of crime search warrants in Subdivision F of Part VI of the MA Act align with and are consistent with the POC Act provisions to which they refer. In particular, the amendments will remove all references to “property-tracking documents” in this Subdivision and in section 3 of the MA Act (definitions) given this phrase is not applicable to search warrants under Part 3-5 of the POC Act. Rather, where appropriate, the phrases “tainted property” and “evidential material” will be used. The amendments also ensure the MA Act appropriately adopts or modifies the POC Act provisions in a way that is suitable for the foreign context.

Mutual Assistance in Criminal Matters Act 1987

Item 1 - Subsection 3(1) (definition of benefit)

962.           Item1 of Schedule 2 inserts a new definition of “benefit”. “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 3 of the MA Act. It will also apply in sections 34 and 34Y of the MA Act.

Item 2 - Subsection 3(1) (definition of evidential material)

963.           Item 2 of Schedule 2 repeals the existing definition of “evidential material”, and substitutes a new definition. The existing definition currently only applies in relation to requests for search warrants under section 15 of the MA Act. The new definition will preserve the substance of the current definition of evidential material as well as inserting a new paragraph which defines evidential material for the purposes of Subdivision F of Division 2 of Part VI of the MA Act (Search warrants relating to foreign serious offences in relation to proceeds of crime).

964.           The meaning of “evidential material” for the purposes of Subdivision F of Division 2 of Part VI of the MA Act will be evidence relating to the types of property and benefits that a foreign country may be investigating for proceeds of crime purposes. These are:

(i)        property in relation to which a foreign forfeiture order (as defined in section 3 of the MA Act) or foreign restraining order (as defined in section 3 of the MA Act) has been or could be made; or

(ii)      property of a person in relation to whom a foreign pecuniary penalty order (as defined in section 3 of the MA Act) has been or could be made; or

(iii)    tainted property (as defined in section 3 of the MA Act); or

(iv)    benefits derived from the commission of a foreign serious offence.

965.           This definition ensures that the provisions relating to proceeds of crime search warrants will apply appropriately in the foreign context of mutual assistance requests.

Item 3 - Subsection 3(1) (definitions of person assisting and POCA search warrant)

966.           Item 3 of Schedule 2 inserts new definitions of “person assisting” and “POCA search warrant”.

967.           Person assisting will have the same meaning as in the POC Act, namely: person assisting, in relation to a search warrant, means:

 

(a)     a person who is an authorised officer and who is assisting in executing the warrant; or

(b)    a person who is not an authorised officer and who has been authorised by the relevant executing officer to assist in executing the warrant.

968.           POCA search warrant means a search warrant issued under Part 3-5 of the POC Act in relation to a foreign serious offence.

969.           This item is included due to the use of these terms in Subdivision F of Division 2 of Part VI of the MA Act ( Search warrants relating to foreign serious offences in relation to proceeds of crime ).

Item 4 - Subsection 3(1) (definition of property-tracking document)

970.           Item 4 of Schedule 2 repeals the definition of “property-tracking document” as it will be no longer used in the MA Act.

Item 5 - Subsection 3(1) (definitions of responsible enforcement agency head and tainted property )

971.           Item 5 inserts new definitions of “responsible enforcement agency head” and “tainted property”.

972.           The definition of “responsible enforcement agency head” will be: “the head of the enforcement agency whose authorised officer is responsible for executing a search warrant issued under Part 3-5 of the POC Act in relation to a foreign serious offence”. This item will be included due to the use of this term in Subdivision F of Division 2 of Part VI of the MA Act (Search warrants relating to foreign serious offences in relation to proceeds of crime).

973.           The definition of “tainted property” will be: “proceeds of a foreign serious offence or an instrument of a foreign serious offence”. This definition will ensure that the provisions regarding proceeds of crime search warrants apply appropriately in the foreign context of mutual assistance requests, rather than relying on the definition of tainted property in the POC Act. This item will be included due to the use of this term in Subdivision F of Division 2 of Part VI of the MA Act ( Search warrants relating to foreign serious offences in relation to proceeds of crime ).

Item 6 - Subsection 34ZB(2)

974.           Item 6 of Schedule 2 inserts the word “POCA” before “search”, so that subsection 34ZB(2) reads “POCA search warrant”. The phrase “POCA search warrant”, inserted at Item 3 of Schedule 2, will be defined to mean a search warrant issued under Part 3-5 of the POC Act. This item has been included for clarity.

Item 7 - Subsection 34ZB(3)

975.           Item 7 of Schedule 2 repeals existing subsection 34ZB(3) and substitutes a new subsection 34ZB(3). New subsection 34ZB(3) will deal with how Part 3-5 of the POC Act applies to applications for search warrants and to any search warrant issued as a result. New subsection 34ZB(3) will modify the POC Act in a number of ways to ensure that it operates effectively in relation to mutual assistance requests.

976.           New paragraphs 34ZB(3)(a) and (b) will provide that Part 3-5 of the POC Act applies as if references in that Part to tainted property and evidential material were references to those terms as defined within section 3 of the MA Act. This will ensure that the tainted property and evidential material covered by this Subdivision is appropriate to the foreign context of a mutual assistance request.

977.           New paragraph 34ZB(3)(c) will modify the application of paragraph 254(1)(a) of the POC Act for mutual assistance matters. Paragraph 254(1)(a) of the POC Act deals with the responsibility for things seized under the POC Act. It provides that the responsible custodian of the thing must arrange for the thing to be kept until it is dealt with in accordance with another provision of the POC Act. New paragraph 34ZB(3)(c) will modify this so that after the words “another provision of this Act” the words “or section 34ZD, 34ZE or 34ZF of the Mutual Assistance Act” were inserted. This is because in addition to relevant provisions in the POC Act, sections 34ZD, 34ZE or 34ZF of the MA Act cover dealing with things seized pursuant to a search warrant executed on behalf of a foreign country in response to a mutual assistance request.

978.           New paragraph 34ZB(3)(d) will modify the application of certain provisions of the POC Act so that the search warrant provisions apply appropriately in the foreign context for mutual assistance matters. It will provide that Part 3-5 of the POC Act applies as if paragraphs 227(1)(a), (b), (h) and (ha) and 228(1)(d) and (da) and sections 256 to 262 of the POC Act were omitted.

979.           Paragraphs 227(1)(a) and (b) of the POC Act will provide that a search warrant issued under the POC Act must state the nature of the property in respect of which action has been or could be taken under this Act and the nature of that action. These paragraphs are omitted because they are not relevant in the context of mutual assistance matters; this is because in mutual assistance cases, action is generally taken in the foreign country (and not under the POC Act).

980.           Paragraphs 227(1)(h) and (ha) and 228(1)(d) and (da) of the POC Act deal with the contents of search warrants and what can be seized under search warrants. They are omitted for the purposes of search warrants issued pursuant to mutual assistance requests because these matters will be covered in the new sections 34ZC and 34ZCA of the MA Act.

981.           Sections 256 to 262 of the POC Act cover dealing with things seized under the POC Act. These provisions are omitted for the purposes of search warrants issued pursuant to mutual assistance requests because these matters will be covered in the new sections 34ZD-34ZF of the MA Act.



 

Item 8 - Sections 34ZC and 34ZCA

982.           Item 8 of Schedule 2 repeals existing section 34ZC and substitutes new sections 34ZC and 34ZCA. New sections 34ZC and 34CA will address the seizure of other things not specified in the search warrant.

983.           New section 34ZC covers the content of search warrants, in particular, what a search warrant must state is authorised to be seized (in addition to those matters required by section 227 of the POC Act as modified by paragraph 34ZB(3)(d) of the MA Act). This will mirror the provision in section 34ZCA regarding what is authorised to be seized. This provision will apply in place of paragraphs 227(1)(h) and (ha) of the POC Act in accordance with the new paragraph 34ZB(3)(d) of the MA Act.

984.           New section 34ZCA covers what is authorised to be seized (in addition to that provided for by section 228 of the POC Act as modified by paragraph 34ZB(3)(d) of the MA Act). This provision will apply in place of paragraphs 228(1)(d) and (da) of the POC Act in accordance with the new paragraph 34ZB(3)(d) of the MA Act.

985.           That which is authorised to be seized, and that must be stated on the warrant, is: property or a thing found by an authorised officer or person assisting in the course of the search if the authorised officer or person assisting believes on reasonable grounds that it satisfies two criteria. The two criteria are firstly that the property or thing falls within one of five categories set out below, and secondly that the seizure of the property or thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence.

986.           The five categories are that the property or thing:

·          is tainted property of the foreign serious offence that is not of a kind specified in the warrant; or

·          is evidential material relating to the foreign serious offence that is not of a kind specified in the warrant; or

·          is tainted property of, or evidential material relating to, another foreign serious offence in relation to which a search warrant issued under that Part is in force; or

·          is relevant to a criminal proceeding in respect of the foreign serious offence in the foreign country that requested the assistance; or

·          will afford evidence as to the commission of an Australian criminal offence.

987.           These sections recognise that whilst executing a search warrant a seizing officer may find other relevant property or things that were not listed in the search warrant. For example, they may find additional evidential material that relates to the foreign serious offence that was identified in the warrant, but was not known about at the time the warrant was applied for. These sections will ensure that it is possible to seize the types of property or things listed above in order to prevent their concealment, loss or destruction or their use in committing an offence.



 

Item 9 - Subsection 34ZD(1)

988.           Item 9 of Schedule 2 omit the words “(other than a property-tracking document) that has been seized under a search warrant issued under Part 3-5 of the Proceeds of Crime Act” and substitutes “that has been seized under a POCA search warrant”. The reason for this is that the phrase “property-tracking document” is not applicable to search warrants under Part 3.5 of the POC Act.

989.           New subsection 34ZD(5) will provide that this section does not apply to certain types of evidence.

990.           The phrase “POCA search warrant”, inserted at Item 3 of Schedule 2, which will mean a search warrant issued under Part 3-5 of the POC Act, therefore making those words redundant.

Item 10 - Subsection 34ZD(2)

991.           Item 10 of Schedule 2 inserts the words “POCA search” before “warrant”, so that subsection 34ZD(2) will read “POCA search warrant”. The phrase “POCA search warrant”, inserted at Item 3 of Schedule 2, will be defined to mean a search warrant issued under Part 3-5 of the POC Act. This item has been included for clarity.

Item 11 - Subsection 34ZD(3)

 

992.           Item 11 of Schedule 2 omits “head of the authorised officer’s enforcement agency” and substitutes “responsible enforcement agency head” which will be a new definition inserted into subsection 3(1) of the MA Act by Item 5 of Schedule 2.

Item 12 - Paragraph 34ZD(3)(b)

993.           Item 12 of Schedule 2 omits “proceeds or an instrument” and substitutes “tainted property” which is a new definition inserted into subsection 3(1) of the MA Act by Item 5 of Schedule 2. The new definition of “tainted property” will include the proceeds of a foreign serious offence and instruments of a foreign serious offence.

Item 13 - Subsection 34ZD(4)

994.           Item 13 of Schedule 2 omits “head of the authorised officer’s enforcement agency” and substitutes “responsible enforcement agency head” which will be a new definition inserted into subsection 3(1) of the MA Act by Item 5 of Schedule 2.

Item 14 - Subsection 34ZD(5)

995.           Item 14 of Schedule 2 repeals subsection 34ZD(5) and substitutes a new subsection 34ZD(5). Section 34ZD deals with the return of property to third parties in certain circumstances.

996.           New subsection 34ZD(5) will provide that section 34ZD does not apply to property that has been seized because it is evidential material (including evidential material pursuant to paragraph 228(1)(d) of the POC Act and evidential material seized in accordance with subparagraphs 34ZCA(a)(ii) or (iii)) or property that is seized in accordance with subparagraphs 34ZCA(a)(iv) or (v).

997.           Depending on the nature of the material, this material will be dealt with in accordance with section 34ZF of the MA Act, subsection 228(2) of the POC Act or the common law. This will ensure that evidence is not required to be returned to third parties while it is still needed for permitted purposes.

Item 15 - Section 34ZE (heading)

998.           Item 15 of Schedule 2 repeals the heading and replaces it with a new heading “Dealing with certain seized property”. The new heading will omit the irrelevant reference to “property-tracking documents” that is in the current heading.

Item 16 - Subsection 34ZE(1)

999.           Item 16 of Schedule 2 repeals subsection 34ZE(1) and substitutes a new subsection 34ZE(1). Section 34ZE covers dealing with certain seized property. New subsection 34ZE(1) will provide that property must be dealt with under this section if it has been seized under a POCA search warrant in relation to a foreign serious offence and it is not evidential material (including evidential material pursuant to paragraph 228(1)(c) of the POC Act and evidential material seized in accordance with subparagraphs 34ZCA(a)(ii) or (iii)) or property that is seized in accordance with subparagraphs 34ZCA(a)(iv) or (v).

1000.       Depending on the nature of the material, this material will be dealt with in accordance with section 34ZF of the MA Act, subsection 228(2) of the POC Act or the common law. This will ensure that evidence is not required to be returned while it is still needed for permitted purposes.

Item 17 - Subsections 34ZE(2), (3) and (5)

1001.       Item 17 of Schedule 2 omits “head of the enforcement agency whose authorised officer seized the property”, and substitutes “responsible enforcement agency head”. The new definition of “responsible enforcement agency head” will be inserted into subsection 3(1) of the MA Act by Item 5 of Schedule 2 due to the use of this term in Subdivision F of Division 2 of Part VI of the MA Act ( Search warrants relating to foreign serious offences in relation to proceeds of crime ).

Item 18 - Subsection 34ZE(5)

1002.       Item 18 of Schedule 2 omits “head of the enforcement agency” (second and third occurring) and substitutes them with “responsible enforcement agency head”. The new definition of “responsible enforcement agency head” will be inserted into subsection 3(1) of the MA Act by Item 5 of Schedule 2 due to the use of this term in Subdivision F of Division 2 of Part VI of the MA Act ( Search warrants relating to foreign serious offences in relation to proceeds of crime ).

Item 19 - Subsection 34ZE(6)

1003.       Item 19 of Schedule 2 omits “head of the enforcement agency” (wherever occurring) and substitutes “responsible enforcement agency head”. The new definition of “responsible enforcement agency head” will be inserted into subsection 3(1) of the MA Act by Item 5 of Schedule 2 due to the use of this term in Subdivision F of Division 2 of Part VI of the MA Act ( Search warrants relating to foreign serious offences in relation to proceeds of crime ).

Item 20 - Subsection 34ZE(7)

1004.       Item 20 of Schedule 2 omits “head of the enforcement agency whose authorised officer seized it” and substitutes “responsible enforcement agency head”. The new definition of “responsible enforcement agency head” will be inserted into subsection 3(1) of the MA Act by Item 5 of Schedule 2 due to the use of this term in Subdivision F of Division 2 of Part VI of the MA Act ( Search warrants relating to foreign serious offences in relation to proceeds of crime ).

Item 21 - Subsection 34ZE(7)

1005.       Item 21 of Schedule 2 omits “head of the enforcement agency must” and substitutes “responsible enforcement agency head must”. The new definition of “responsible enforcement agency head” will be inserted into subsection 3(1) of the MA Act by Item 5 of Schedule 2 due to the use of this term in Subdivision F of Division 2 of Part VI of the MA Act (Search warrants relating to foreign serious offences in relation to proceeds of crime).

Item 22 - Section 34ZF

1006.       Item 22 of Schedule 2 repeals section 34ZF and substitutes new section 34ZF. New section 34ZF covers dealing with evidential material and certain property or things seized under a POCA search warrant by a seizing officer.

1007.       New section 34ZF covers seized items that are evidential material (including evidential material seized pursuant to paragraph 228(1)(c) of the POC Act and evidential material seized in accordance with paragraphs 34ZCA(a)(ii) or (iii)) or property or a thing that is seized in accordance with paragraph 34ZCA(a)(iv). It does not cover property or a thing that is seized in accordance with paragraph 34ZCA(a)(v) as this material will be dealt with in accordance with subsection 228(2) of the POC Act or the common law.

1008.       New subsection34ZF (2) will provide that the seizing officer may retain the seized item for a period not exceeding one month pending a writt en direction from the Attorney-General as to how to deal with the seized item.

1009.       New subsection 34ZF(3) will provide that, without limiting the directions that may be given under subsection (2), the Attorney-General may direct the seizing officer to send the seized item to an authority of the foreign country that requested the assistance.

Item 23 - Application provision