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



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BILLS DIGEST NO. 1, 2015-16 5 AUGUST 2015

Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015 Cat Barker Foreign Affairs, Defence and Security Section

Jonathan Mills and Mary Anne Neilsen Law and Bills Digest Section

Contents

The Bills Digest at a glance ................................................... 3

Purpose and structure of the Bill .......................................... 4

Commencement .................................................................. 4

Background ......................................................................... 5

Committee consideration .................................................... 5

Senate Legal and Constitutional Affairs Legislation Committee ............................................................................... 5

Senate Standing Committee for the Scrutiny of Bills .............. 6

Parliamentary Joint Committee on Human Rights .................. 6

Mandatory minimum sentences for firearms trafficking (Schedule 6) ........................................................................... 7

Amendments to the Anti-Money Laundering and Counter-Terrorism Funding Act 2006 (Schedule 10) ............. 7

Policy position of non-government parties and independents ...................................................................... 7

Position of major interest groups ......................................... 7

Mandatory minimum sentences for firearms trafficking ........ 7

Amendments to serious drug offences ................................... 8

Knowingly Concerned .............................................................. 8

Sentencing, Parole and Recognizance Release Orders ............ 9

Sharing information relevant to federal offenders ................. 9

Amendments to the Anti-Money Laundering and Counter-Terrorism Funding Act ............................................... 9

Amendments to the forced marriage offences ..................... 10

Date introduced: 19 March 2015

House: House of Representatives

Portfolio: Attorney-General

Commencement: See page four of this Digest for details.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website.

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Financial implications ........................................................ 10

Statement of Compatibility with Human Rights .................. 10

Schedule 1—Serious drug offences ..................................... 10

Attempted offences ............................................................... 10

Stakeholder concerns .......................................................... 11

Import and export of border controlled precursors .............. 11

Stakeholder concerns .......................................................... 12

Related issue—consistency of serious drug offences ......... 12

Schedule 2—Bribing foreign public officials ........................ 13

Schedule 3—Outrages upon personal dignity...................... 13

Schedule 4—Forced marriage............................................. 14

Schedule 5—Knowingly Concerned .................................... 16

Schedule 6—Penalties for firearms trafficking offences ....... 17

Background ............................................................................ 17

Provisions .............................................................................. 19

Issue - mandatory minimum penalties ................................. 19

Schedule 7—Sentencing and parole ................................... 20

Schedule 8—Transfer of prisoners ...................................... 23

Schedule 9—Sharing information relevant to federal offenders .......................................................................... 23

Schedule 10—AUSTRAC ..................................................... 23

Lack of justification ................................................................ 24

Schedule 11—Australian Commission for Law Enforcement Integrity ........................................................ 24

Amendments to the definition of ‘significant corruption issue’ ...................................................................................... 24

Issue: excluding systemic corruption from the definition of significant corruption issue ............................ 25

Changes to obligations to keep someone who has referred a corruption issue informed of progress ................. 26

Schedule 12—Australian Crime Commission ....................... 26

Schedule 13—Proceeds of crime—penalties ....................... 26

Schedule 14—Proceeds of crime—other matters ................ 26

Schedule 15— State law enforcement agencies .................. 27

Schedule 16—Controlled operations .................................. 27

Schedule 17—Technical corrections ................................... 28

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The Bills Digest at a glance • The Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015 will amend a range of crime related provisions across several Acts. The amendments in the different schedules are quite separate, and are dealt with as such in this Digest. Some schedules contain largely technical or minor and

non-controversial amendments. However, some amendments that are represented as such in the accompanying explanatory material are more significant than they may appear.

• The more significant amendments proposed include the following.

- Schedule 1 contains two amendments to serious drug offences, both of which will lessen the degree of fault that the prosecution must establish to prove an offence (in the first case, for an attempted drug offence and in the second, for an offence of import or export of a border controlled substance). Stakeholders have questioned both the need for, and appropriateness of, these measures.

- Schedule 5 will provide an additional form of secondary criminal liability for being ‘knowingly concerned’ in the commission of an offence. This form of secondary criminal liability was previously available under the Crimes Act 1914, but was not included in the Criminal Code Act 1995, having been rejected for inclusion in the model criminal code in 1992 for being too open ended and uncertain for a provision of general application. Legal and human rights groups have expressed similar concerns in the context of the Bill. However, the absence of this form of secondary criminal liability has attracted judicial criticism and prosecuting authorities have stated that ‘knowingly concerned’ would be more adaptable to the circumstances of criminal offending, and more likely to be understood and properly applied.

- Schedule 6 will introduce mandatory minimum sentences of five years for firearms trafficking offences. This measure has been reintroduced by the Government after it failed to pass the Senate in an earlier Bill. The Australian Labor Party (ALP) and the Australian Greens are opposed to this measure.

- Schedule 7 will introduce amendments relating to the sentencing, imprisonment and release of federal offenders, including requiring a court to set a non-parole period rather than issue a recognizance release order permitting release on certain conditions such as good behaviour, for federal sentences exceeding three years. Stakeholders have raised concerns that this may be a restraint on the exercise of judicial discretion, and would impact on a court’s ability to determine a sentence that it considers to be appropriate in the individual circumstances of each case.

- Schedule 9 will provide for increased information sharing relevant to federal offenders between federal and state or territory authorities. Concerns have been raised by the Directors of Public Prosecutions in New South Wales and Victoria that the proposed power for the Commonwealth to require information to be provided may override state privacy laws, legal professional privilege and non-publication orders.

- Schedule 10 will reduce the scope of the privilege against self-incrimination in the context of certain information and documents provided under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006. Limited justification has been provided for this measure and it has attracted criticism from some stakeholders as well as the Parliamentary Joint Committee on Human Rights (PJCHR).

- Schedule 11 will change the definition of ‘significant corruption issue’, give the head of the Australian Commission on Law Enforcement Integrity discretion as to when and how much information is provided to persons who have referred corruption matters, and address other issues identified through operational experience with the Act. The first of these changes may have broader implications than intended, particularly with respect to systemic corruption. This issue was not raised in submissions to, or considered by, the Senate Legal and Constitutional Affairs Legislation Committee. • The majority report on the Senate Legal and Constitutional Affairs Legislation Committee’s inquiry into the

Bill did not recommend any changes, but dissenting reports by the ALP and the Greens recommended some measures (including those in Schedules 5 and 6) be removed from the Bill. The PJCHR raised concerns with Schedule 6 as well as Schedule 10. The Scrutiny of Bills Committee commented on several measures, but largely left a determination of the appropriateness of those provisions to the Senate as a whole.

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Purpose and structure of the Bill The purpose of the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015 (the Bill) is to:

• amend the Criminal Code Act 1995 (the Criminal Code) to:

- introduce mandatory minimum sentences for firearms trafficking offences (Schedule 6) - make aspects of serious drug offences simpler to prosecute (Schedule 1) - clarify the operation of the foreign bribery offence (Schedule 2) - clarify the war crime offence of outrages upon personal dignity in a non-international armed conflict

(Schedule 3) - expand the definition of forced marriage and increase penalties for forced marriage offences (Schedule 4) and - insert the concept of being ‘knowingly concerned’ in the commission of an offence as an additional form

of secondary criminal liability (Schedule 5) • amend the Crimes Act 1914 and the Commonwealth Places (Application of Laws) Act 1970 to rectify administrative inefficiencies, address certain legislative anomalies and clarify provisions relating to federal offenders (Schedule 7)

• amend the Transfer of Prisoners Act 1983 to allow the interstate transfer of federal prisoners to occur at a location other than a prison (Schedule 8)

• amend the Crimes Act to:

- facilitate information sharing about federal offenders between the Attorney-General’s Department and relevant third party agencies (Schedule 9) and - make aspects of the approval process for controlled operations more stringent (Schedule 16) • amend the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF Act) to address

issues identified through operational experience with the Act (Schedule 10)

• amend the Law Enforcement Integrity Commissioner Act 2006 to change the definition of ‘significant corruption issue’, give the Integrity Commissioner discretion as to when and how much information is provided to persons who have referred corruption matters, and address other issues identified through operational experience with the Act (Schedule 11)

• make minor and technical amendments to the Australian Crime Commission Act 2002 (Schedule 12)

• amend the Proceeds of Crime Act 2002 (POC Act) to increase penalties for failing to comply with a production order or with a notice to a financial institution in proceeds of crime investigations, to address ambiguity in the provisions, streamline the appointment of proceeds of crime examiners and support the administration of confiscated assets by the Official Trustee, and to make related amendments to other Acts (Schedules 13 and 14)

• amend several Commonwealth Acts to give the Independent Commissioner Against Corruption of South Australia (ICAC SA), whose Office became operational in September 2013, consistently with other state anti-corruption bodies, the ability to access information from Commonwealth agencies; defences for certain Commonwealth telecommunications offences; and the ability to apply for certain types of search warrants; as well as to update references to reflect the new name and titles associated with the Queensland Crime and Corruption Commission (Schedule 15) and

• make minor corrections to the Classification (Publications, Films and Computer Games) Act 1995 (Schedule 17).

Commencement Sections 1 to 3 will commence on Royal Assent. Schedules 1 to 14 and Part 1 of Schedule 15 will commence the day after Royal Assent. Schedule 16 will commence 28 days after Royal Assent.

Part 2 of Schedule 15 contains amendments contingent on the Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 (Data Retention Act). Item 52 will commence the day after Royal Assent,

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or not at all if item 7 of Schedule 2 to the Data Retention Act commences on or before that day. Item 53 will commence the later of the day after Royal Assent and immediately after the commencement of item 3 of Schedule 2 of the Data Retention Act, but will not commence at all if the latter provision does not commence.1

Schedule 17 will commence the later of the day after Royal Assent and immediately after the commencement of Part 3 of Schedule 3 to the Classification (Publications, Films and Computer Games) Amendment (Classification Tools and Other Measures) Act 2014.2

Background The Bill will amend a range of crime related provisions across several Acts. The amendments in the different schedules are quite separate. For this reason, background relevant to specific measures is provided separately in the analysis of Schedules to the Bill. In his second reading speech for the Bill, the Minister for Justice outlined the overarching purpose of the Bill as follows:

The Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015 delivers on the government's commitment to tackle crime and to make our communities safer. By providing our law enforcement agencies with the tools and powers they need to do their job, and by ensuring Commonwealth laws are robust and effective, this Bill reflects this government's efforts to target criminals and reduce the heavy cost of crime for all Australians.

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Committee consideration This section briefly highlights which parts of the Bill have featured in comments or recommendations of parliamentary committees. The measures, and concepts relevant to understanding them, are explained in the analysis of schedules beginning on page ten of this Digest.

Senate Legal and Constitutional Affairs Legislation Committee The Senate Legal and Constitutional Affairs Legislation Committee tabled its report on the Bill on 16 June 2015.4 The majority of the Committee, chaired by Senator Ian Macdonald, did not recommend any changes to the Bill.5

The dissenting report of the Australian Labor Party (ALP) recommended:

• Schedule 5 (introduction of ‘knowingly concerned’ as an additional form of secondary criminal liability) be removed from the Bill and

• Schedule 6 (mandatory minimum sentences for firearms offences) be replaced with provisions introducing aggravated forms of the firearms offences modelled on those included in its Crimes Legislation Amendment (Organised Crime and Other Measures) Bill 2012.6

The dissenting report of the Australian Greens recommended:

• Schedule 6 be removed from the Bill

• Schedules 1 (serious drug offences), 5, 7 (sentencing and parole), 9 (sharing information relevant to federal offenders) and 10 (amendments to the AML/CTF Act) be removed from the Bill and subject to further consultation with state and territory governments and other stakeholders and

• Schedule 4 (forced marriage offences) be passed.7

1. Schedule 2 of the Data Retention Act will commence on 13 October 2015: Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015, accessed 12 June 2015. 2. Part 3 of Schedule 3 of the Classification (Publications, Films and Computer Games) Amendment (Classification Tools and Other Measures) Act 2014 will commence on 11 September 2015 unless an earlier commencement date is proclaimed. 3. M Keenan, ‘Second reading speech: Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015’, House of

Representatives, Debates, 19 March 2015, pp. 2909-13, accessed 12 June 2015. 4. Senate Legal and Constitutional Affairs Legislation Committee, Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015 [Provisions], The Senate, Canberra, June 2015, accessed 17 June 2015. 5. The majority report recommended Australian governments consider reviewing underage sex offences to ensure consistency with

Commonwealth forced marriage offences, but not that any changes be made to the Bill: Ibid., pp. 30-32. 6. Australian Labor Party (ALP), Dissenting report, Senate Legal and Constitutional Affairs Legislation Committee, Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015 [Provisions], The Senate, Canberra, June 2015, accessed 17 June 2015. For information on

the 2012 Bill, refer to the analysis of Schedule 6 of this Bill in this Digest. 7. Australian Greens, Dissenting report, Senate Legal and Constitutional Affairs Legislation Committee, Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015 [Provisions], The Senate, Canberra, June 2015, accessed 17 June 2015.

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The same committee has previously considered proposed amendments to introduce mandatory minimum sentences for firearms trafficking. For details, see the analysis of Schedule 6 of the Bill in this Digest.

Senate Standing Committee for the Scrutiny of Bills The Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee) sought further information from the Minister for Justice about:

• the imposition of a legal burden instead of an evidential burden on a defendant to displace a presumption that a person under the age of 16 years is not capable of understanding the nature and effect of a marriage ceremony, in amendments relating to forced marriage in Schedule 4

• the scope, application and justification for the re-introduction, in Schedule 5, of being ‘knowingly concerned’ with the commission of an offence as a form of secondary criminal liability which had been previously included in the Crimes Act 1914 and

• whether application provisions relating to amendments to the POC Act and related legislation in Schedule 14 might operate unfairly.8

The Committee considered the Minister’s response in its Fifth Report of 2015.

On the first two matters above, it was satisfied with the explanations provided and asked that the additional information be incorporated into the Explanatory Memorandum.9

On the third, the Committee was satisfied with the information provided in relation to amendments concerning the interaction between state or territory restraining orders and property considered to be proceeds of an offence under the POC Act. However, the Committee remained of the view that the amendments to the POC Act may create an adverse effect and that other proposed amendments could retrospectively constrain the ability of a person to dispose of or otherwise deal with restrained property. This is due to the expansion of the definition of ‘related offence’ to include acts or omissions which occur as part of a single chain of events, which may include offences that occurred prior to commencement.10

The Scrutiny of Bills Committee also noted that several other measures may be considered to trespass unduly on personal rights and liberties. In particular:

• amendments in Schedule 1 will amend fault elements associated with certain serious drug and precursor offences to make them simpler to prosecute

• amendments in Schedule 6 will introduce mandatory minimum sentences for firearms trafficking

• amendments in Schedule 10 will reduce the scope of the privilege against self-incrimination in the context of certain information and documents provided under the AML/CTF Act and

• amendments in Schedule 13 will increase the maximum penalty for offences of failing to comply with certain notices issued under the POC Act from six months imprisonment (and/or 30 penalty units) to two years imprisonment (and/or 100 penalty units), and that this is of particular concern as a defendant bears an evidential burden in relation to a defence to those offences.11

However, it did not seek any additional information from the Minister in relation to those amendments. Instead it noted the explanation provided in the Explanatory Memorandum and has left the question of the appropriateness of those provisions to the Senate as a whole.12

Parliamentary Joint Committee on Human Rights The Parliamentary Joint Committee on Human Rights (PJCHR) has commented on two measures in the Bill.

8. Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee), Alert Digest No. 4 of 2015, The Senate, Canberra, 25 March 2015, pp. 4-15, accessed 21 April 2015. 9. Scrutiny of Bills Committee, Fifth report of 2015, The Senate, Canberra, pp. 323-333, accessed 8 July 2015. 10. Ibid., pp. 333-336. 11. Scrutiny of Bills Committee, Alert Digest No. 4 of 2015, op. cit., pp. 6-15. 12. Ibid.

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Mandatory minimum sentences for firearms trafficking (Schedule 6) The PJCHR considered the introduction of mandatory minimum sentences for firearms trafficking when it was proposed in a 2014 Bill.13 It considered the measure was ‘likely to be incompatible’ with the right not to be arbitrarily detained and the right to a fair trial.14 It recommended that if the provisions were retained, they be amended to clarify that the minimum sentence was not intended as a ‘sentencing guidepost’, and that there could be significant differences between the total sentence and the non-parole period imposed.15 Information to that effect is included in the Explanatory Memorandum for this Bill, but not in the actual provisions.16 In its report on this Bill, the PJCHR reiterated its recommendation that the provisions themselves be amended so the scope of discretion available to judges is clear on the face of the legislation.17 The Minister for Justice noted this recommendation but indicated it would not be taken up by the Government.18

Amendments to the Anti-Money Laundering and Counter-Terrorism Funding Act 2006 (Schedule 10) The Bill reduces the scope of the privilege against self-incrimination where certain information and documents are required to be provided under the AML/CTF Act. The PJCHR considered the statement of compatibility failed to identify a legitimate objective for this change. It sought the advice of the Minister for Justice on the objective, the connection between the proposed limitations on the rights to a fair trial and fair hearing and that objective, and whether those limitations are a reasonable and proportionate means of achieving the objective.19 On receiving the Minister’s advice, the PJCHR was satisfied that the measure was compatible with the right to a fair trial.20

Policy position of non-government parties and independents Schedule 6 would introduce mandatory minimum penalties for firearms trafficking offences.

The ALP, with the support of Greens Senators, Liberal Democrats Senator David Leyonhjelm and Independent Senator Nick Xenophon, was successful in passing amendments in the Senate to remove identical provisions from an earlier Government Bill.21 The ALP and the Greens remain opposed to the measure and both recommended the provisions be removed from the Bill in reports dissenting from the majority Senate Legal and Constitutional Affairs Legislation Committee report on the Bill.22

Palmer United Party Senators, Senator Muir of the Australian Motoring Enthusiasts Party and Senator Day of the Family First Party supported the mandatory sentencing provisions in the earlier Bill.23

As noted in the ‘Committee consideration’ section of this Digest, the Greens also recommended Schedules 1, 5, 7, 9 and 10 be removed from the Bill and subject to further consultation.

Position of major interest groups This section briefly highlights the positions of stakeholders on aspects of the Bill. The measures, and concepts relevant to understanding them, are explained in the analysis of schedules beginning on page ten of this Digest.

Mandatory minimum sentences for firearms trafficking This measure, in Schedule 6 of the Bill, is opposed by:

• the Law Council of Australia (LCA)24

13. PJCHR, Tenth report of the 44th Parliament, The Senate, Canberra, 26 August 2014, pp. 15-17; PJCHR, Fifteenth report of the 44th Parliament, The Senate, Canberra, 14 November 2014, pp. 30-32; both accessed 21 April 2015. 14. PJCHR, Fifteenth report of the 44th Parliament, op. cit., p. 32. 15. Ibid.

16. Explanatory Memorandum, Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015, pp. 26, 65, accessed 22 June 2015. 17. PJCHR, Twenty-second report of the 44th Parliament, The Senate, Canberra, 13 May 2015, pp. 38-39, accessed 22 June 2015. 18. PJCHR, Twenty-fourth report of the 44th Parliament, The Senate, Canberra, 23 June 2015, p. 76, accessed 3 August 2015 19. PJCHR, Twenty-second report of the 44th Parliament, op. cit., pp. 39-41. 20. PJCHR, Twenty-fourth report of the 44th Parliament, op. cit., pp. 76-82. 21. Australia, Senate, Journals, 75, 2014-15, p. 2060, accessed 10 April 2015. 22. ALP, Dissenting report, op. cit.; Australian Greens, Dissenting report, op. cit. See also P Wright, Gun reform should wait on Senate inquiry,

media release, 15 March 2015 and L Taylor, ‘Labor to reject new push for firearms trafficking mandatory sentencing’, The Guardian (online edition), 15 March 2015; both accessed 17 June 2015. 23. Australia, Senate, Journals, 75, 2014-15, op. cit.

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• the Law Society of New South Wales25

• the Australian Human Rights Commission (AHRC)26

• Australian Lawyers for Human Rights (ALHR)27 and

• Liberty Victoria.28

These organisations oppose this measure, and mandatory sentencing in general, on several grounds. First, it does not achieve the stated aim of deterrence. Second, that it can produce inconsistent and disproportionate outcomes. Third, it may breach Australia’s obligations under international human rights instruments to which it is a party.29

The LCA and the Law Society of NSW also made submissions opposing this measure when it was included in a 2014 Bill.30 The LCA notes that that some of the ‘alternative recommendations’ in its submission on the 2014 Bill (if its recommendation to drop the measure was not taken up), which were endorsed by the Senate Legal and Constitutional Affairs Legislation Committee, are reflected in the Explanatory Memorandum, mitigating some of its concerns. However, it remains opposed to the measure and considers it continues to risk undermining community confidence in the judiciary and the criminal justice system more broadly.31

The Sporting Shooters Association of Australia ‘cautiously welcomes’ this measure and states ‘[i]f the amendments … deter or aid in stemming the illicit firearms market’ it supports them.32

Amendments to serious drug offences The LCA, ALHR, Liberty Victoria and the Australian Drug Law Reform Initiative (ADLaRI; based at the University of New South Wales School of Law) raised concerns about aspects of amendments to serious drug offences in Schedule 1 of the Bill.33 All objected to the proposed modification of the general rules of attempt in relation to an element of those offences. All but ALHR also took issue with the proposed removal of the ‘intent to manufacture’ element of the border controlled precursor offences. Further detail is provided separately in the analysis of Schedule 1.

Knowingly Concerned ADLaRI considers that the term ‘knowingly concerned’, proposed as an additional form of secondary criminal liability, may be too broad to be appropriate for defining criminal responsibility.34 ADLaRI referred to the comments of the Model Criminal Code Officers Committee (MCCOC), that the term was ‘too open ended and

24. Law Council of Australia (LCA), Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015 (2015 Submission), 7 May 2015, accessed 18 May 2015. 25. Law Society of New South Wales, Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015 (2015 Submission), 14 April 2015, accessed 18 May 2015. 26. Australian Human Rights Commission (AHRC), Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the

Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015, 16 April 2015, accessed 18 May 2015. 27. Australian Lawyers for Human Rights (ALHR), Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015, 24 April 2015, accessed 18 May 2015. 28. Liberty Victoria, Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Crimes Legislation Amendment

(Powers, Offences and Other Measures) Bill 2015, 7 May 2015; accessed 18 May 2015. 29. LCA, 2015 Submission, op. cit.; Law Society of NSW, 2015 Submission, op. cit.; AHRC, op. cit.; ALHR, op. cit.; Liberty Victoria, op. cit. 30. LCA, Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Crimes Legislation Amendment

(Psychoactive Substances and Other Measures) Bill 2014 (2014 Submission), 4 August 2014; Law Society of NSW, Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014 (2014 Submission), 1 August 2014; both accessed 18 May 2015. The Bar Association of Queensland also opposed the measure, and the Tasmanian Office of the Director of Public Prosecutions expressed concerns with it, in their submissions to the inquiry into the earlier Bill—see C Barker, Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014, Bills digest, 29, 2014-15, Parliamentary Library, Canberra, 2014, pp. 11, 20-21, accessed 18 May 2015. 31. LCA, 2015 Submission, op. cit., pp. 16-19. 32. Sporting Shooters Association of Australia, Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the

Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015, April 2015, p. 3, accessed 22 June 2015. 33. LCA, 2015 Submission, op. cit., pp. 5-9; ALHR, op. cit., pp. 1-2; Liberty Victoria, op. cit., pp. 1-5; Australian Drug Law Reform Initiative (ADLaRI; listed as Ms Courtney Young), Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Crimes

Legislation Amendment (Powers, Offences and Other Measures) Bill 2015, April 2015, accessed 22 June 2015. 34. ADLaRI, op. cit.

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uncertain for a general provision in a model code’.35 ADLaRI proposed alternative prosecutorial approaches to the situations noted in the Explanatory Memorandum for this Bill, using the existing forms of extended liability provided in the Criminal Code.36 The LCA and other rights and law groups have also expressed similar criticisms of the changes proposed by Schedule 5.37

The Australian Securities and Investments Commission (ASIC) supports the introduction of the term ‘knowingly concerned’. ASIC considers that the term will provide clarity in this area of criminal law, will be more adaptable to circumstances than the words currently in the Criminal Code, and has been interpreted in a straightforward manner by Australian courts.38

Sentencing, Parole and Recognizance Release Orders The LCA has raised concerns with the proposed amendments in Schedule 7 to sections 19AB and 19AC of the Crimes Act relating to non-parole periods and recognizance release orders permitting release on certain conditions such as good behaviour. The amendments would remove the ability to make a recognizance release order, and require the court to fix a non-parole period, in relation to sentences exceeding three years imprisonment.39 This is stated by the LCA to be a restraint on the exercise of judicial discretion, removing the ability to consider the individual circumstances of the case. It further notes that:

The nature of a non-parole period order and a recognizance release order are fundamentally different in an important respect. The former is one pre-condition to release, that the release decision subsequently being made by a different decision maker based on different factors and subject to limited methods of review. In contrast, the recognizance release order, while still imposing conditions on release, is an immediate sentencing solution decided by the sentencing judge as appropriate having regard to all the circumstances and evidence at the time of sentencing.

40

The LCA has recommended that these proposed amendments be removed from the Bill.41

Liberty Victoria raised similar concerns regarding these proposed amendments, also noting that the proposed increase in decision making at parole will require additional resources.42

Sharing information relevant to federal offenders The Directors of Public Prosecutions (DPPs) in NSW and Victoria have both expressed concerns that the proposed measures in Schedule 9 may result in requests for information that could conflict with state laws relating to privacy and information sharing.43 Both DPPs also noted that proposed subsections 20BZA(4) and (5) will provide that the request must be complied with ‘despite any other law of the Commonwealth, a State or a Territory’. Further detail is provided separately in the analysis of Schedule 9.

Amendments to the Anti-Money Laundering and Counter-Terrorism Funding Act The AHRC has questioned the need for an amendment to the AML/CTF Act to expand the range of proceedings in which self-incriminating material provided in certain information and documents may be used in evidence, and whether the measure is reasonable and proportionate to address that aim.44

35. That committee developed model laws on general principles of criminal responsibility that were approved by all Australian Attorneys-General in 1992: Model Criminal Code Officers Committee (MCCOC), Chapters 1 and 2: general principles of criminal responsibility: report, December 1992, pp. 79-83; Former Standing Council on Law and Justice, ‘Chapters 1 & 2—General principles of criminal responsibility’, Former Standing Council on Law and Justice archive website; both accessed 30 July 2015.

36. ADLaRI, op. cit., pp. 3-5. 37. LCA, 2015 Submission, op. cit., pp. 9-13; Liberty Victoria, op. cit., pp. 5-7; ALHR, op. cit. 38. Australian Securities and Investments Commission (ASIC), Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015, 28 April 2015, p. 2, accessed 11 May 2015.

39. LCA, op. cit., pp. 19-21. 40. Ibid., p. 20. 41. Ibid., p. 21. 42. Liberty Victoria, op. cit., pp. 9-10. 43. Director of Public Prosecutions Victoria (Victorian DPP), Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry

into the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015, 7 May 2015; New South Wales Director of Public Prosecutions (NSW DPP), Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015 (2015 Submission), 6 May 2015; both accessed 11 May 2015. 44. AHRC, op. cit., pp. 4-5, 18-20.

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Amendments to the forced marriage offences The LCA, AHRC, ALHR, Library Victoria and Anti-Slavery Australia support the amendments to the Criminal Code that would expand the definition of forced marriage and increase the penalties for forced marriage offences.45

However, Liberty Victoria qualifies this support, raising concerns about placing a reverse burden of proof on an accused person with regard to the forced marriage offences.46

While not directly relevant to the Bill, the LCA also recommends that these amendments should be accompanied by awareness raising education in the community, and that consideration be given to the framing of sexual and other offences that may accompany an offence of forced marriage and criminalising the procuring of an underage marriage.47

Financial implications The Bill does not have any direct financial implications. The Explanatory Memorandum states that Schedule 14 of the Bill (amendments to the POC Act) will ‘improve the Commonwealth’s ability to manage confiscated proceeds of crime’.48

In its submission to the inquiry into the 2014 Bill, the NSW DPP raised concerns about the potential impact of mandatory sentencing for firearms offences on NSW court and prosecutorial resources.49 Its submission on this Bill states that it remains opposed to the measure on those grounds.50

Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.51 However, as noted in the ‘Committee consideration’ section above, the PJCHR recommended an amendment to Schedule 6 of the Bill and requested further information from the Minister for Justice on an amendment in Schedule 10.

Schedule 1—Serious drug offences Part 9.1 of the Criminal Code contains a range of drug related offences, including trafficking, selling, import and export. The offences cover controlled and border controlled drugs, precursors and plants. 52 Part 2.4 of the Criminal Code provides for several extensions of criminal responsibility that apply to Commonwealth offences, including that of attempt. Under section 11.1, a person who attempts to commit an offence is guilty of the offence of attempt.

Schedule 1 of the Bill will make two main amendments to Part 9.1 of the Criminal Code to make those offences simpler to prosecute, in response to difficulties identified by the Commonwealth Director of Public Prosecutions (CDPP).

Attempted offences To establish an offence against Part 9.1, the prosecution must prove (among other matters) that the defendant was reckless as to whether the relevant substance was a controlled or border controlled drug or precursor, or that the relevant plant was a controlled or border controlled plant. However, under general rules that apply to prosecution of attempted offences under subsection 11.1(3) of the Criminal Code, in order to establish an attempted offence against section 11.1 and Part 9.1 of the Criminal Code, the prosecution must instead prove

45. LCA, 2015 Submission, op. cit., ALHR, op. cit., AHRC, op. cit., Library Victoria, op. cit., and Anti-Slavery Australia, Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015, n.d., accessed 21 May 2015.

46. Liberty Victoria, op. cit., p. 11. 47. LCA, 2015 Submission, op. cit., p. 16. 48. Explanatory Memorandum, op. cit., p. 9. 49. New South Wales Director of Public Prosecutions (NSW DPP), Submission to Senate Legal and Constitutional Affairs Legislation Committee,

Inquiry into the Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014, 1 August 2014, accessed 18 May 2015. 50. NSW DPP, 2015 Submission, op. cit. 51. The Statement of Compatibility with Human Rights can be found at page 11 of the Explanatory Memorandum to the Bill. 52. Subdivision A of Division 301 of the Criminal Code sets out the relevant definitions: Criminal Code Act 1995 (Criminal Code), accessed 12 June 2015.

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intent (awareness) or knowledge (belief) in relation to that circumstance. The Explanatory Memorandum states that both criminal methodologies and particular law enforcement methodologies (in particular, controlled operations, which are used regularly in drug investigations53) have made that threshold difficult or impossible for the CDPP to meet.54

Item 2 of Schedule 1 will insert proposed section 300.6 into the Criminal Code. The amendment will modify the application of the general rule for establishing an attempted offence (set out in subsection 11.1(3) of the Criminal Code) to the drug offences in Part 9.1. It will mean that the prosecution will only need to prove a defendant was reckless as to whether the relevant substance was a controlled or border controlled drug or precursor, or that the relevant plant was a controlled or border controlled plant (as opposed to being aware or holding a belief that it was).

Stakeholder concerns As noted above, the LCA, ALHR, Liberty Victoria and ADLaRI are opposed to this amendment. Most point out that the requirement to prove intent or knowledge for all physical elements of an attempted offence is intended to balance the fact that a person is being held liable for an offence despite not having completed all of the relevant physical elements.55

The LCA and Liberty Victoria also point out that the possibility of applying the fault element of recklessness to attempted offences was considered and rejected through a comprehensive national consultation process undertaken by the Model Criminal Code Officers Committee.56 Further, those submitters point to case law that may indicate courts are prepared to determine intent through inferential reasoning, indicating the proposed amendment may not be necessary.57

Import and export of border controlled precursors Precursors are substances that can be used in the manufacture of drugs (a well-known example is the use of pseudoephedrine to manufacture methamphetamine).58

The Explanatory Memorandum states that increased domestic controls aimed at preventing diversion of amphetamine-type stimulants (ATS) precursor chemicals from legitimate sources within Australia have reduced local availability, meaning criminal groups have turned increasingly to direct importation.59 It points to the increasing number of ATS precursor detections at the Australian border, the increasing number of clandestine laboratories detected (most of which manufacture ATS60), and the increasing proportion of laboratories that can be categorised as industrial scale, as evidence of this trend.61 It should be acknowledged that these measures are indirect and may to some extent reflect improved detection as much as increased criminal activity. Further, while the figures remain higher than most previous years, the weight of ATS precursor detections decreased from 2011-12 (1,747.85 kilograms) to 2012-13 (1,701 kilograms), and again, to 1,505.24 kilograms, in 2013-14.62

53. For information on controlled operations and the types of activities for which they are used, see Australian Federal Police, Australian Crime Commission (ACC) and Australian Commission for Law Enforcement Integrity, Controlled operations annual report 2013-14, Commonwealth of Australia, Canberra, 2014, accessed 13 April 2015.

54. Explanatory Memorandum, op. cit., pp. 50-51. 55. LCA, 2015 Submission, op. cit., pp. 5-7; Liberty Victoria, op. cit., pp. 2-3; ADLaRI, op. cit., pp. 1-2. ALHR raises the broader concern that the amendment goes beyond traditional criminal law principles: ALHR, op. cit., pp. 1-2. 56. LCA, 2015 Submission, op. cit., pp. 5-7; Liberty Victoria, op. cit., pp. 2-3. See footnote 35 for information about the Model Criminal Code

Officers Committee and a link to the relevant report. 57. LCA, 2015 Submission, op. cit., pp. 5-7; Liberty Victoria, op. cit., pp. 2-3. 58. ‘Border controlled precursor’ is defined in section 301.6 of the Criminal Code. Prescribed border controlled precursors are listed in

Division 3.2 of the Criminal Code Regulations 2002 (accessed 13 April 2015). 59. Explanatory Memorandum, op. cit., pp. 16-17. 60. ACC, Illicit drug data report 2012-13, ACC, Canberra, April 2014, pp. 187-188, accessed 14 April 2015. 61. Explanatory Memorandum, op. cit., p. 17. 62. Australian Customs and Border Protection Service (Customs), Annual report 2013-14, Customs, Canberra, 2014, p. 31, accessed 14 April 2015.

These figures, as well as those referred to in the Explanatory Memorandum, which references the Illicit drug data report 2012-13, are for ATS other than MDMA (‘ecstasy’).

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Subdivision D of Division 307 of the Criminal Code contains offences for importing and exporting border controlled precursors, with maximum penalties of seven to 25 years imprisonment, depending on the quantity involved.

To establish an offence against Subdivision D, the prosecution must currently prove that the person who imported or exported the substance either intended to use it to manufacture a controlled drug, or believed that someone else had such an intention (‘intent to manufacture’ element). Presumptions intended to assist the prosecution are included in section 307.14. Specific defences exist for offences relating to less than commercial quantities (sections 307.12 and 307.13). The Explanatory Memorandum states that despite these inclusions, the offences and accompanying presumption have not functioned as intended, with difficulties arising particularly where defendants are part of a larger operation where the information held by each individual is deliberately limited, and in cases involving extensions of criminal liability.63

Items 3 and 5 of Schedule 1 will repeal paragraphs 307.11(1)(b), 307.12(1)(b) and 307.13(1)(b) to remove the intent to manufacture element of the offences for import and export of border controlled precursors. Items 4, 6 and 7 will repeal the associated defences and presumptions. The prosecution will still need to prove:

• the person imported or exported a substance (to which the fault element of intention applies)

• the substance was a border controlled precursor (to which the fault element of recklessness applies) and

• for an offence against section 307.11 or 307.12, that the quantity of the substance was a commercial or marketable quantity respectively (to which absolute liability applies).64

While the specific defences relating to intent to manufacture will be repealed, defendants will still have access to the general defences in Part 2.3 of the Criminal Code, of which the defence of lawful authority (section 10.5) would be relevant if a person has authorisation to import or export the substance for a legitimate purpose.65

Stakeholder concerns The LCA, Liberty Victoria and ADLaRI do not support these amendments.

Liberty Victoria points to the substantial maximum penalties for these offences and considers that where a person cannot be shown to have knowledge or intent, the more appropriate course of action would be to pursue possession charges under state laws.66

The LCA and ADLaRI acknowledge the difficulties associated with the current provisions, but propose alternative amendments. The LCA notes that one of the difficulties identified in the Explanatory Memorandum is that the presumptions in section 307.14 of the Criminal Code cannot be relied on when prosecuting an offence involving an extension of criminal liability (such as attempt).67 It suggests that instead of the proposed amendments, a different amendment be considered that would make those presumptions available in such circumstances.68 ADLaRI suggests the alternative of expanding the ‘intent to manufacture’ element to include intent to sell or supply the precursor.69

Related issue—consistency of serious drug offences The intent to manufacture element and accompanying presumption and defences currently used for the offences for importing and exporting border controlled precursors are similar to the approach in several other offences in Part 9.1 of the Criminal Code. For example:

• offences in Division 305 for commercial manufacture of controlled drugs only apply where the defendant manufactures a substance with the intention of selling any of it, or believing another person intends to sell any of it and

63. Explanatory Memorandum, op. cit., pp. 51-53. 64. Section 5.6 of the Criminal Code provides that unless otherwise specified, the fault element of intention applies to physical elements consisting of conduct and the fault element of recklessness to physical elements consisting of a circumstance or result. For the effect of applying absolute liability, refer to section 6.2 of the Criminal Code.

65. Criminal Code, op. cit. 66. Liberty Victoria, pp. 3-5. 67. See page 53 of the Explanatory Memorandum. 68. LCA, 2015 Submission, op. cit., pp. 7-9. 69. ADLaRI, op. cit., p. 2.

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• some offences in Subdivision A of Division 307 for import and export of border controlled drugs and plants include exceptions that apply if the defendant can prove that he or she neither intended, nor believed that another person intended, to sell any of the drug or plant in question.70

The Explanatory Memorandum does not explain why the intent or belief element is problematic in the context of the offences for import and export of border controlled precursors, but not in the context of other offences in Part 9.1. It is unclear if, and if so why, the difficulty is unique to the offences the Bill will amend.

Schedule 2—Bribing foreign public officials Australia ratified the Organisation for Economic Cooperation and Development (OECD) Convention on Combating Bribery of Foreign Officials in International Business Transactions (Anti-Bribery Convention) in 1999.71 It introduced Division 70 of the Criminal Code, which implements the key obligation of criminalising bribery of foreign public officials, the same year.72 The OECD Working Group on Bribery completed its third assessment of Australia’s implementation of the Anti-Bribery Convention in 2012. While welcoming some positive efforts, the Working Group expressed ‘serious concerns that overall enforcement of the foreign bribery offence to date has been extremely low’.73 It went on to make 33 recommendations and identify an additional 11 issues for follow-up.74 While some related to the legislative framework, the main focus of the recommendations was on improvements relating to Australia’s enforcement of that framework.

One of the recommendations for legislative change will be addressed by Schedule 2 of the Bill. The Government’s written follow-up to the Working Group’s report, published in April 2015, outlines its proposed response to the other legislative recommendations and steps taken to progress recommendations about enforcement.75

One of the matters that must be proven to establish an offence of bribing a public official under section 70.2 of the Criminal Code is that the defendant intended to influence a foreign public official in order to obtain or retain business, or an illegitimate business advantage.76 Item 1 of Schedule 2 will repeal and replace subsection 70.2(1A) to clarify that it is not necessary for the defendant to have intended to influence a particular foreign public official for the offence to apply, implementing recommendation 2(b) of the Working Group’s report.

Schedule 3—Outrages upon personal dignity Subdivision F of Division 268 of the Criminal Code relates to war crimes that are serious violations of Article 3, which is common to the four Geneva Conventions, and that are committed in the course of a non-international armed conflict (NIAC). Section 268.74 creates offences for ‘outrages upon personal dignity’ such as severely humiliating, degrading or otherwise violating the dignity of persons who are not taking an active part in the hostilities. It also creates an offence for similar conduct towards the body of a person, although this offence is currently limited to the body of a person who was not actively involved in the conflict before their death.

The Explanatory Memorandum states that the distinction between persons alive or dead may create difficulties for the prosecution in proving the sequence of the offence and the victim’s death. Furthermore, any distinction between alive or dead victims is irrelevant in the context of offences against persons who were not taking part in hostilities at the time of the offence.77

70. Criminal Code, op. cit. See also Divisions 302 (trafficking), 303 (commercial cultivation) and 306 (pre-trafficking controlled precursors). 71. Convention on Combating Bribery of Foreign Officials in International Business Transactions, opened for signature 17 December 1997, ATS [1999] No. 21 (entered into force for Australia 17 December 1999. 72. C Barker, Australia’s implementation of the OECD Anti-Bribery Convention, Background note, Parliamentary Library, Canberra,

7 February 2012, accessed 14 April 2015. 73. Organisation for Economic Cooperation and Development (OECD) Working Group on Bribery, Phase 3 report on implementing the OECD Anti-Bribery Convention in Australia, OECD, October 2012, p. 5, accessed 14 April 2015. 74. Ibid., pp. 48-53. 75. Australian Government, Australia: follow-up to the phase 3 report and recommendations, Australian Government, April 2015, accessed

16 April 2015. 76. Criminal Code, op. cit., paragraph 70.2(1)(c). 77. Explanatory Memorandum, op. cit., p. 55.

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Item 1 of Schedule 3 proposes amendments to paragraph 268.74(1)(a) that will clarify that the offence in that subsection applies to victims who are alive or dead. Item 2 will repeal subsections 268.74(2) and (3) and insert proposed subsection 268.74(2) to clarify that references to persons not taking an active part in hostilities includes persons who are dead. These amendments would make it irrelevant, for the purposes of the offence, whether or not the victim was participating in the hostilities prior to their death.

Extending the protections of dignified treatment for non-combatants to the dead is consistent with Australia’s obligations under the Additional Protocol II to the Geneva Conventions 1949 and Rule 113 of customary international humanitarian law, relating to Treatment of the Dead.78

Schedule 4—Forced marriage In 2013, the then Labor Government introduced offences into the Criminal Code criminalising forced marriage.79 The specific criminalisation of forced marriage followed the release of a government discussion paper in 2010 that considered how the law could respond to forced and servile marriage within Australia, or to cases where Australian citizens and residents face forced marriage abroad.80

Under section 270.7A in the Criminal Code, a marriage is a forced marriage if, because of the use of coercion, threat or deception, one party to the marriage (the victim) entered into the marriage without freely and fully consenting. This definition incorporates a broad definition of ‘coercion’ which states that coercion can include force, duress, detention, psychological oppression, abuse of power, and taking advantage of a person’s vulnerability (section 270.1A). ‘Marriage’ is also defined broadly to include registered relationships; marriages and registered relationships of foreign countries; and marriages or marriage-like relationships that are void, invalid or not recognised by law (subsection 270.7A(2)).

Section 270.7B creates two offences of forced marriage: The first offence is causing a person to enter into a forced marriage. The second offence is that of being a party to a forced marriage which targets the conduct of a person who remains in a marriage to a victim of a forced marriage.

Schedule 4 of the Bill contains amendments to these two provisions.

Item 1 will amend section 270.7A to expand the definition of forced marriage. A marriage is a forced marriage if one party to the marriage (the victim) entered into the marriage without freely and fully consenting;

• because of the use of coercion, threat or deception or

• because the victim is incapable of understanding the nature and effect of a marriage ceremony.

The Explanatory Memorandum states that this amendment (proposed paragraph 270.7A(1)(b)) will make clear that the forced marriage offences apply where a person cannot give their free and full consent to marry, including for reasons such as age or mental capacity.81

The Government’s rationale for broadening the definition of forced marriage is that, since forced marriage was criminalised in 2013, referrals to the Australian Federal Police (AFP) have included matters of children aged as young as 12 who purported to ‘consent’ to a marriage.82 The Explanatory Memorandum also states that anecdotal evidence from other jurisdictions suggests that people with intellectual disabilities may be forced into marriages they do not have the capacity to consent to, including as a means of securing care arrangements.83

Item 3, which will insert proposed subsection 270.7A(4), is a related amendment. It will provide that for the purposes of proving a forced marriage offence (or any of the slavery-like offences under Divisions 270 and

78. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, accessed 11 May 2015; International Committee of the Red Cross , Rules of Customary International Humanitarian Law - Rule 113. Treatment of the Dead, 2015, accessed 11 May 2015.

79. The Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Act 2013 contained amongst other things new provisions in relation to servitude offences, forced labour offences as well as forced marriage offences. For background see: M Biddington and C Barker, Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Bill 2012 Bills digest, 14, 2012-13, Parliamentary Library, Canberra, 2013, accessed 4 August 2015.

80. R McClelland (Attorney-General) and B O’Connor (Minister for Home Affairs and Justice), Public comment sought on forced and servile marriage reforms, media release, 22 November 2010, accessed 18 April 2015. 81. Explanatory Memorandum, op. cit., p. 57. 82. Ibid., p. 4. 83. Ibid.

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27184), a person under 16 is presumed, unless the contrary is proven, to be not capable of understanding the nature and effect of a marriage ceremony. The defendant would bear the legal burden of proving the contrary on the balance of probabilities. Generally, where a burden of proof is placed on a defendant it is an evidential burden only.85 An evidential burden requires the defendant to adduce or point to evidence that suggests a reasonable possibility that the matter either does exist or does not exist. If the defendant discharges an evidential burden, the prosecution must then disprove the relevant matters beyond reasonable doubt. A legal burden (the burden of proving the existence of the matter) requires a higher standard of proof and the Code provides that a defendant will have a legal burden of proof only if the law creating the offence so provides.86 The Explanatory Memorandum provides reasons why a legal burden rather than the more usual evidential burden is imposed.87

As noted earlier in this Digest, the Senate Scrutiny of Bills Committee raised questions regarding item 3, and in particular queried why in this case—where the onus of proof is reversed—there is a need for the imposition of a legal burden on a defendant rather than the lower threshold evidential burden.

In the Committee’s view applying a legal burden to displace a presumption should only be imposed in rare instances, and must be thoroughly justified and address the relevant principles contained in the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers.88

The Committee acknowledged the gravity of the conduct that this provision is seeking to address. However, it sought the Minister’s more detailed explanation as to why an evidential burden is considered insufficient in this case. As the Committee noted, the only justification provided in the Explanatory Memorandum is that this lower threshold ‘might easily be discharged if the defendant adduced evidence that, for example, the child had been sexually active in the past or was otherwise mature for his or her age’. The Committee expressed interest in whether this has actually occurred and in any other considerations relevant to the imposition of a legal burden.89

The Minister in response has given reasons why in his view the proposed imposition of a legal burden on the defendant in forced marriage matters involving children under the age of 16 is appropriate and in accordance with the principles set out in the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Power. He states:

Operational evidence has shown that forced marriage matters are likely to involve not only the spouse but also the family and community of the alleged victim, who would have peculiar knowledge of the child's relative maturity, personality, education and understanding. If only an evidential burden were imposed, the defendant or defendants would need only to point to evidence which suggested a reasonable possibility that the child was capable of understanding the nature and effect of a marriage ceremony, in order to discharge the burden. Evidence of the child's apparent maturity would be readily and easily available to the defendant or defendants. Once an evidential burden was discharged, the burden would then shift back to the prosecution to rebut the evidence beyond reasonable doubt. Where the child's family and community were involved, and the child purported to have consented, the prosecution would not have a witness with personal knowledge of the child, making it extremely difficult to prove, beyond reasonable doubt, that the child was incapable of understanding the nature and effect of a marriage ceremony.

90

The Minister cites a particular example of a 12 year old girl married to a 26 year old man where the Commonwealth Director of Public Prosecutions decided not to prosecute the matter as there were no reasonable prospects of success for the very reasons set out above.91

The Committee, while remaining concerned generally about a legal burden, accepted the Minister’s response, requesting also that the additional information provided be included in the Explanatory Memorandum.92

84. Forced marriage is one of a suite of slavery-like offences in Divisions 270 and 271 of the Criminal Code. 85. Subsection 13.3 of the Criminal Code. 86. Subsection 13.4 of the Criminal Code. 87. Explanatory Memorandum, op. cit., p. 59. 88. Senate Standing Committee for the Scrutiny of Bills, Alert Digest No. 4 of 2015, op. cit., p. 7. 89. Ibid., p. 9. 90. Senate Standing Committee for the Scrutiny of Bills, Fifth report of 2015, op. cit., pp. 326-327. 91. Ibid.

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Items 4-6 will amend section 270.7B to increase the penalties for the forced marriage offences. Under the current provisions, a forced marriage offence carries a maximum penalty of four years imprisonment for a base offence and a maximum of seven years imprisonment for an aggravated offence. The penalties will be increased to seven years and nine years respectively, the rationale being to align the penalties for forced marriage offences with those for the serious slavery-related offence of deceptive recruiting for labour and services in section 270.7.93

Schedule 5—Knowingly Concerned The amendments proposed under Schedule 5 would add being ‘knowingly concerned in’ the commission of an offence to the forms of secondary liability listed in section 11.2 of the Criminal Code. Secondary liability applies to persons who were not directly involved in the commission of an offence, but who were nevertheless responsible in some way. The forms of secondary liability currently listed in the Criminal Code are aiding, abetting, counselling or procuring the commission of an offence by another person.94

These amendments will increase options for prosecutors where cases do not fit easily within the existing classes of extended criminal responsibility.

As noted in the Explanatory Memorandum, the concept of ‘knowingly concerned’ was previously included in then-section 5(1) of the Crimes Act.95 The Gibbs Committee, in the 1990 report Principles of Criminal Responsibility and Other Matters, found that the ‘knowingly concerned’ concept in the Crimes Act had the merit of ensuring that circumstances amounting to knowing involvement in an offence, but not amounting to participation as a principal or as an aider, abetter, counsellor or procurer, would nevertheless fall within the reach of that provision.96

The term ‘knowingly concerned’ was not transferred across to the Criminal Code, following the Model Criminal Code Officers Committee’s (MCCOC) determination that it would ‘add little’ to the already sufficient scope of the terms ‘aid, abet, counsel or procure’. In contrast to the Gibbs Committee, the MCCOC considered that the broader scope of the term may be less clear than would be appropriate for application to criminal offences.97

The CDPP has stated that the absence of the term ‘knowingly concerned’ as a prosecuting option is a significant impediment to the prosecution of certain offenders, such as key organisers of criminal activities, and has rendered certain prosecutions more complex and less certain.98

The absence of a ‘knowingly concerned’ extension of criminal liability in Commonwealth legislation was criticised by Justice Weinberg of the New South Wales Court of Criminal Appeal in Campbell v R [2008] NSWCCA 214, noting:

‘the decision to omit the phrase ‘knowingly concerned’ from the various forms of complicity available under federal criminal law…appears to me to have left a lacuna in the law that was certainly never intended.’ 99

Justice Weinberg also stated:

The Gibbs Committee had the acuity and foresight to observe that these words had the merit of ensuring that circumstances amounting to knowing involvement in an offence, which did not amount to participation as a

92. Senate Standing Committee for the Scrutiny of Bills, Fifth report of 2015, op. cit., p. 327. At the time of writing this Bills Digest, there is no indication that this has been done. 93. Explanatory Memorandum, op. cit., p. 5. 94. Criminal Code, op. cit. 95. See subsection 5(1) in the Crimes Act 1914, as at 9 January 1995, accessed 28 July 2015. 96. Review of Commonwealth Criminal Law, Principles of criminal responsibility and other matters (third interim report, 1990) 214 [16.57]; agreed

with by Weinberg J in Campbell v R [2008] NSWCCA 214 at [157]-[163], accessed 24 June 2015. 97. MCCOC, op. cit., p. 89. 98. Commonwealth Director of Public Prosecutions, Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the

Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015, 7 May 2015, accessed 11 May 2015. 99. Campbell v R [2008] NSWCCA 214, op. cit., per Weinberg J at [173].

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principal and to which the expressions ‘aid, abet, counsel or procure’ (or whatever equivalents were used) were not obviously apt, would nevertheless fall within the reach of the provision. 100

Following the decision in Campbell v R, the definition of ‘import’ for the purposes of the serious drug offences in Part 9.1 of the Criminal Code (in section 300.2) was amended in 2010 to include both:

(a) bring the substance into Australia, and

(b) deal with the substance in connection with its importation. 101

The Explanatory Memorandum for the 2010 amendment described the need for an expansion of the scope of the drug offences as follows:

This amendment extends the definition of import to bring the current drug importation offences into line with earlier drug importation offences. The amendment reverses any inadvertent narrowing of the provisions that occurred when the previous drug offences in the Customs Act 1901 were replaced by new drug offences inserted into Division 300 of the Criminal Code Act 1995 through the Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005 (Cth).

102

In contrast to the 2010 amendments, the proposed amendments in Schedule 5, make amendments to the extensions of criminal liability in ‘Chapter 2 - General principles of criminal responsibility’, and so will apply to all offences in the Criminal Code, not just those of importation.

The Australian Capital Territory amended its Criminal Code 2002 in 2010 to include the concept of ‘knowingly concerned’ in an equivalent provision dealing with complicity and common purpose, section 45.103 This provision has been successfully relied upon to charge offenders since its introduction.104 The term ‘knowingly concerned’ also occurs in many existing provisions in Commonwealth, state and territory legislation.105

As noted earlier in this Digest, several human rights and law bodies are opposed to this measure, and agree with the comment made by the MCCOC that the term may be too broad for general use in criminal offences. In a dissenting report to the majority Senate Legal and Constitutional Affairs Legislation Committee report on the Bill, ALP Committee members shared these concerns and recommended that Schedule 5 be removed.106 This is also one of several Schedules the Greens recommended be removed from the Bill and subject to further consultation.107

Schedule 6—Penalties for firearms trafficking offences Schedule 6 of the Bill will introduce mandatory minimum penalties of five years imprisonment for firearms trafficking offences.

Background The former ALP Government introduced amendments to Commonwealth firearms trafficking offences in 2012, following an agreement on combating firearms crime reached by Commonwealth, state and territory ministers

100. Campbell v R [2008] NSWCCA 214, op. cit., per Weinberg J at [161]. 101. For a discussion of the scope of the expanded definition of ‘import’, see El-Haddad v R [2015] NSWCCA 10, [99]-[120], accessed 28 May 2015. 102. Explanatory Memorandum, Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009, p. 188, accessed 21 May 2015. 103. Criminal Code 2002 (ACT), accessed 11 May 2015. 104. See for example: R v Brenden Joseph Gibbs [2013] ACTSC 293, R v HD [2014] ACTSC 214, R v David Jeffrey Attridge [2014] ACTSC 346, all

accessed 12 May 2015. 105. Mr Robert Bromwich, Director, Commonwealth Director of Public Prosecutions, provided the following list of examples in evidence before the Senate Legal and Constitutional Affairs Legislation Committee ‘section 79 of the Competition and Consumer Act, which was the Trade

Practices Act; section 48 of the Building and Construction Industry Improvement Act 2005, which I think has now been renamed as the Fair Work (Building Industry) Act 2012; section 45 of the Criminal Code 2002 in the ACT; section 79 of the Corporations Act 2001, which deals with civil matters not criminal matters; section 484 of the Environment Protection and Biodiversity Conservation Act 1999; section 94X of the Income Tax Assessment Act 1936; section 126-264 of the Income Tax Assessment Act 1997; and three different sections of the Migration Act 1958—140ZC, 140ZF and 255AO’: R Bromwich (Commonwealth Director of Public Prosecutions), Evidence to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015, 20 May 2015, Sydney, p. 34, accessed 12 June 2014. 106. ALP, Dissenting report, op. cit. 107. Australian Greens, Dissenting report, Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015 [Provisions], op. cit.

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in June 2012.108 The Bill lapsed ahead of the 2013 Federal election. The relevant Bills Digest contains background on the agreement, offences as they existed then, and the number and sources of illicit firearms in Australia.109

In July 2014, the Government introduced the Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014 to amend the Commonwealth firearms trafficking offences.110 As outlined in the relevant Bills Digest, most of the amendments were the same or similar to those included in the 2012 ALP Bill.111 Both included amendments to expand the offences to cover firearms parts as well as whole firearms and introduce new offences for international firearms trafficking. The key difference was that:

• the 2012 Bill had sought to establish two sets of offences (basic offences, with maximum penalties of ten years imprisonment, and aggravated offences (based around the number of firearms/firearm parts involved) with maximum penalties of life imprisonment) and

• the 2014 Bill sought to establish a single set of offences, with maximum penalties of ten years imprisonment, but introduce mandatory minimum penalties of five years imprisonment (as committed to in The Coalition’s policy to tackle crime112).

The Senate Legal and Constitutional Affairs Legislation Committee considered the 2014 Bill and reported in September 2014.113 The majority of the Committee, chaired by Senator Ian Macdonald, did not recommend any changes to the firearms amendments, but did recommend some amendments to the Explanatory Memorandum:

… to make clear that it is intended that: sentencing discretion should be left unaffected in respect of the non-parole period; in appropriate cases there may be significant differences between the non-parole period and the head sentence; and that the mandatory minimum is not intended to be used as a sentencing guidepost (where the minimum penalty is appropriate for 'the least serious category of offending').

114

Information to that effect is included in the Explanatory Memorandum for this Bill.115

ALP Senators (in additional comments) and the Greens (in a dissenting report) recommended the provisions introducing mandatory minimum sentences be removed from the 2014 Bill, with the ALP recommending they be replaced with aggravated forms of the firearms offences modelled on those included in its Crimes Legislation Amendment (Organised Crime and Other Measures) Bill 2012.116 Both parties have made the same recommendations in dissenting reports to the majority Senate Legal and Constitutional Affairs Legislation Committee report on this Bill.117

When the 2014 Bill reached the Senate, Opposition amendments to remove the provisions that would have introduced mandatory minimum sentences were passed with the support of Greens Senators, Senator Xenophon and Senator Leyonhjelm.118 The Bill as amended was passed by the Parliament on 23 February 2015.119 The Act received Royal Assent on 5 March 2015 and the firearms amendments commenced the following day.120

108. Parliament of Australia, ‘Crimes Legislation Amendment (Organised Crime and Other Measures) Bill 2012 homepage’, Australian Parliament website; J Clare (Minister for Home Affairs and Minister for Justice), Major agreement to tackle the illegal firearms market, media release, 29 June 2012; both accessed 16 April 2015.

109. M Biddington and C Barker, Crimes Legislation Amendment (Organised Crime and Other Measures) Bill 2012, Bills digest, 64, 2012-13, op. cit. 110. Parliament of Australia, ‘Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014 homepage’, Australian Parliament website, accessed 16 April 2015. 111. C Barker, Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014, Bills digest, 29, 2014-15, op. cit. 112. Liberal Party of Australia and the Nationals, The Coalition’s policy to tackle crime, Coalition policy document, Election 2013, accessed

16 April 2015. 113. Senate Legal and Constitutional Affairs Legislation Committee, Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014, The Senate, Canberra, September 2014, accessed 16 April 2015. 114. Ibid., p. 26. 115. Explanatory Memorandum, op. cit., pp. 26, 65. 116. Ibid., p. 28; Australian Greens, Dissenting report, Senate Legal and Constitutional Affairs Legislation Committee, Crimes Legislation

Amendment (Psychoactive Substances and Other Measures) Bill 2014, The Senate, Canberra, September 2014, accessed 16 April 2015. 117. ALP, Dissenting report, op. cit.; Australian Greens, Dissenting report, Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015 [Provisions], op. cit. 118. Australia, Senate, Journals, 75, 2014-15, op. cit. 119. Parliament of Australia, ‘Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014 homepage’, op. cit. 120. Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Act 2015, accessed 16 April 2015.

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Provisions Divisions 360 and 361 of the Criminal Code contain offences for firearms trafficking across state borders and across the Australian border respectively. The offences carry maximum penalties of ten years imprisonment, 2,500 penalty units, or both.121

Item 1 of Schedule 6 will insert proposed section 360.3A into the Criminal Code to require a court to impose a sentence of imprisonment of at least five years on a person convicted of an offence relating to domestic firearms trafficking, unless it can be established on the balance of probabilities that the person was under 18 years of age when the offence was committed. Item 2 will insert proposed section 361.5, an equivalent provision for international firearms trafficking.

Issue - mandatory minimum penalties The Explanatory Memorandum notes that this amendment would implement an election commitment and justifies the measure with reference to the ‘clear and serious social and systemic harms associated with firearms trafficking’:

The entry of even a small number of illegal firearms into the Australian community can have a significant impact on the size of the illicit market, and, due to the imperishable nature of firearms, a firearm can remain within that market for many years. This provides a growing pool of firearms which can be accessed by groups who would use them to commit serious and violent crimes, such as murder. For example, in 2012, firearms were identified as being the type of weapon used in 25% of homicides in Australia (Australian crime: Facts and figures 2013, Australian Institute of Criminology).

122

While the Explanatory Memorandum points to evidence of the harms associated with illicit firearms, it does not provide evidence that mandatory minimum penalties are an effective response to those harms.

Mandatory minimum penalties have rarely been applied to Commonwealth offences and when they have been used,123 they have attracted criticism.124 The Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers advises against fixed and minimum penalties for several reasons, including that they:

• interfere with judicial discretion to impose a penalty appropriate to all the circumstances of a particular case

• can ‘create an incentive for defendants to fight charges, even where there is little merit in doing so’

• preclude the imposition of alternative sanctions such as community service orders that would otherwise be available under Part IB of the Crimes Act and

• may encourage the judiciary to look for technical grounds to avoid the restriction on sentencing discretion, leading to anomalous decisions.125

Similar arguments have been made by the LCA, AHRC, ALHR, the Law Society of NSW and Liberty Victoria in their submissions to the inquiry into this Bill, and in submissions to the inquiry that examined the 2014 Bill, including legal organisations and the Tasmanian ODPP.126 The LCA and the Law Society of NSW were among those who made submissions opposing this measure when it was included in the 2014 Bill.127 The LCA notes that that some of the ‘alternative recommendations’ in its submission on the 2014 Bill (if its recommendation to drop the measure was not taken up), which were endorsed by the Senate Legal and Constitutional Affairs Legislation

121. Section 4D of the Crimes Act 1914 provides that a penalty specified for a Commonwealth offence is to be taken as the maximum penalty unless the contrary intention appears: Crimes Act 1914, accessed 16 April 2015. 122. Explanatory Memorandum, op. cit., p. 26. 123. Certain people smuggling offences in the Migration Act 1958 are a notable exception (see section 236B); section 120 the Excise Act 1901

imposes a minimum penalty, but in the form of a fine, not imprisonment. 124. See for example the views of submitters summarised in Senate Standing Committee on Legal and Constitutional Affairs, Anti-People Smuggling and Other Measures Bill 2010 [Provisions], The Senate, Canberra, May 2010, pp. 18-21; W Martin, ‘Sentencing issues in people

smuggling cases’, paper presented to the Federal Crime and Sentencing Conference, Canberra, 11 February 2012; both accessed 24 April 2015. 125. Attorney-General’s Department, A guide to framing Commonwealth offences, infringement notices and enforcement powers, Australian Government, Canberra, updated September 2011 pp. 37-39, accessed 16 April 2015. 126. LCA, 2015 Submission, op. cit., pp. 16-17; AHRC, op. cit., pp. 7-10; ALHR, op. cit.; Law Society of NSW, 2015 Submission , op. cit.; Liberty

Victoria, op. cit.; C Barker, Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014, op. cit., pp. 11, 20-21. 127. LCA, 2014 Submission, op. cit; Law Society of NSW, 2014 Submission, op. cit.

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Committee, are reflected in the Explanatory Memorandum, mitigating some of its concerns. However, it remains opposed to the measure and considers it continues to risk undermining community confidence in the judiciary and the criminal justice system more broadly.128

Some organisations and commentators have also questioned the actual deterrent value of mandatory minimum sentences. John Coyne, a Senior Analyst at the Australian Strategic Policy Institute and former AFP officer, argues that this measure ‘sends a strong message about government’s commitment but won’t deliver the desired results’.129 He suggests that the Government’s objectives can be more effectively achieved through measures targeted at increasing the likelihood of offenders being caught (such as the National Border Targeting Centre130) instead of increasing the penalties that apply to those who are.131

A media release issued by the Minister for Justice when the Bill was introduced further states ‘[t]hese measures also reflect the Australian Government’s commitment to act quickly to implement the firearms-related recommendations from the joint Commonwealth-NSW Review into the Martin Place Siege’. 132 The report on that review was finalised in January 2015 (before amendments to the 2014 Bill were moved in the Senate), and released on 22 February 2015. It included four recommendations relating to firearms, none of which related specifically to offences or penalties:

6. The Commonwealth, States and Territories should simplify the regulation of the legal firearms market through an update of the technical elements of the National Firearms Agreement.

7. CrimTrac, in cooperation with Commonwealth and State Police and law enforcement agencies should prioritise bringing the National Firearms Interface into operation by the end of 2015.

8. States and Territories’ police forces should conduct an urgent audit of their firearms data holdings before the National Firearms Interface is operational where this has not already occurred.

9. The Commonwealth and the States and Territories should give further consideration to measures to deal with illegal firearms. 133

However, the report noted the reforms in the 2014 Bill (including but not limited to introduction of mandatory sentencing) and stated that its passage ‘would strengthen the Commonwealth’s ability to tackle illegal trafficking of firearms and firearm parts into and out of Australia’.134

Schedule 7—Sentencing and parole Schedule 7 will introduce amendments to provisions about sentencing, imprisonment and release of federal offenders in Part IB of the Crimes Act relating to:

• general deterrence

• remissions and reductions in sentence

• non-parole periods and recognizance release orders

• rectifications of errors in sentencing orders

• parole

128. LCA, 2015 Submission, op. cit., pp. 16-19. 129. J Coyne, ‘Gun trafficking and mandatory jail terms’, The Strategist weblog, 18 March 2015, accessed 16 April 2015. 130. See S Morrison (Minister for Immigration and Border Protection), National Border Targeting Centre launched, media release, 14 July 2014, accessed 16 April 2015.

131. Coyne, ‘Gun trafficking and mandatory jail terms’, op. cit. See also: LCA, 2015 Submission, op. cit., p. 17; Law Society of NSW, 2015 Submission, op. cit.; P Squires, ‘Missing the target—mandatory gun sentences don’t work’, The Conversation, 21 August 2013; and more generally D Roche, ‘Mandatory sentencing’, Trends and issues in criminal justice, 138, Australian Institute of Criminology, December 1999; L Roth, Mandatory sentencing laws, e-brief, 1/2014, NSW Parliamentary Research Service, Sydney, 2014 and Law Council of Australia (LCA), Policy discussion paper on mandatory sentencing, LCA, May 2014; all accessed 16 April 2015.

132. M Keenan (Minister for Justice), Tough penalties to tackle gun crime, media release, 19 March 2015, accessed 16 April 2015. 133. Department of Prime Minister and Cabinet and NSW Department of Premier and Cabinet, Martin Place siege joint Commonwealth-New South Wales review, Australian and NSW Governments, January 2015, p. 50, accessed 16 April 2015. 134. Ibid.

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• the effect of state and territory sentences on parole orders

• early release on parole

• amendments of parole orders and licences

• conditional release and

• alternative sentencing options.

The Schedule will also introduce a consequential amendment to clause 1 of the Schedule of the Commonwealth Places (Application of Laws) Act 1970 to remove a reference to section 21E of the Crimes Act, a section which would be repealed under this Schedule.

The amendments address a number of provisions that the Explanatory Memorandum identifies as containing anomalies or requiring further clarification. The Explanatory Memorandum claims that the provisions in their current form have created a number of administrative and operational difficulties for courts, the Attorney-General’s Department and state and territory agencies.

Section 16A of the Crimes Act sets out the matters that a court must consider when imposing sentence on a federal offender, including the nature and circumstances of the offence; the personal circumstances of any victim; the impact of the offence on the victim and the character, antecedents, age, means and physical or mental condition of the offender.135 Proposed paragraph 16A(2)(ja), at item 1 of Schedule 7, will add ‘general deterrence’ as a matter to be considered by the courts when passing sentence on federal offenders. This will add the new consideration of ‘the deterrent effect that any sentence or order under consideration may have on other persons’ to the existing list of considerations which include, at paragraph 16A(2)(j), the deterrent effect on the actual offender. The Explanatory Memorandum states that the lack of general deterrence as a sentencing factor has caused judicial concern, and that the factor is included in state and territory legislation.136 Under the legislation as it stands, courts have applied the general principles of sentencing law to read in general deterrence, despite its absence from paragraph 16A(2)(j).137 The amendment proposed by item 1 of Schedule 7 would codify this approach.

Item 2 is an application provision that will provide that the amendment made by item 1 would also apply to sentence determinations made in respect of persons convicted before the commencement of the item.

Section 19AA of the Crimes Act sets out how state and territory laws relating to remission or reduction of sentences apply to federal sentences. Subsection 19AA(1) currently provides that a law that provides for the remission or reduction of state or territory sentence applies in the same way to the remission or reduction of a federal sentence being served in that state or territory, but that this does not apply to the remission or reduction of non-parole periods or pre-release periods of imprisonment in respect of recognizance release orders.

Item 8 will insert proposed subsections 19AA(1) and (1A) to clarify the language of the existing subsection 19AA(1). This may be necessary following the decision in Frost v R, which provided that the application of Tasmania’s remission laws to federal prisoners was not impacted by the exclusion in subsection 19AA(1).138 This meant that such a prisoner could be granted a remission that reduces the pre-release period on a recognizance release order. The Explanatory Memorandum notes that this proposition is not in accordance with the Commonwealth’s policy views about the remission of pre-release periods.139

The proposed subsections will ensure that it is clear that ‘strike remissions’, provided under existing subsection 19AA(4), are the only types of remissions available on federal non-parole and pre-release periods of imprisonment. A remission is a reduction in the term of a sentence, and a strike remission is a reduction to compensate for hardship experienced during periods of industrial action in prisons. This amendment is designed

135. Crimes Act 1914, accessed 29 July 2015. 136. Explanatory Memorandum, op. cit., p. 67. 137. Tapper v R [1992] FCA 600; (1992) 111 ALR 347. pp. 350-352, accessed 5 June 2015. 138. Frost v R [2003] TASSC 39, accessed 4 August 2015. 139. Explanatory Memorandum, op. cit., p. 69.

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to ensure that state and territory courts cannot reduce the pre-release period on a recognizance release order of federal prisoners in their jurisdictions, except to compensate for strike action.

Item 10 will replace existing section 19AB with proposed section 19AB. This change will remove a court’s ability to fix a recognizance release order for federal sentences exceeding three years, and require a non-parole period to be set in respect of that sentence. A recognizance release order is an order that a court may issue to permit an offender to be released, after a certain period, on conditions set by the court, such as being of good behaviour and satisfying any other conditions which may be set, for a specified period of time. If the offender satisfies the conditions of the order there will be no further punishment. This is in contrast to a non-parole period, which results in the person’s release after that period being discretionary and under parole conditions which will be set by the Attorney-General’s Department. On release on parole a person will be under the supervision of state or territory parole authorities.

This change is intended to reflect the likely seriousness of offences that attract such sentences and the consequent consideration that parole, rather than recognizance release, would be a more appropriate form of release.140

As noted above in the ‘Position of major interest groups’ section of this Digest, this amendment has been criticised as a restraint on the exercise of judicial discretion, due to fact that it will impact on a sentencing court’s ability to determine a sentence that it considers appropriate in the individual circumstances of the case and will prevent the court from determining release conditions at the time of sentencing. A further criticism is that this amendment may require increased resources to consider the likely increase in parole applications.

Section 19AC provides that where a federal offender receives a sentence of imprisonment of three years or less, the court may only make a recognizance release order, rather than impose a non-parole period. The court is required to make such an order in relation to sentences of between six months and three years duration, except if the court considers that this would not be appropriate ‘having regard to the nature and circumstances of the offence or offences concerned and to the antecedents of the person’ (subsection 19AC(4)). Item 12 will repeal and replace subsections 19AC(4) and (5) to add to the circumstances in which a court is not required to make a recognizance order. This is a technical amendment in recognition of circumstances in which such an order would be of no practical effect because the person is concurrently serving a state or territory prison sentence that exceeds the federal sentence, and so cannot be released from prison at the end of their federal sentence (or any earlier time proposed under a recognizance release order).

Section 19AL of the Crimes Act deals with release of federal offenders on parole. Subsection 19AL(1) requires the Attorney-General to consider whether to release a federal offender on parole at the end of the prisoner’s non-parole period. Subsection 19AL(4) provides, however, that the Attorney-General is not required to consider the release on parole of a federal prisoner who is also serving a state or territory sentence if the state or territory sentence will end after their entire federal sentence has been served. If the federal offender is serving a federal life sentence and a state or territory sentence, the Attorney-General is not required to consider the prisoner’s release on federal parole until the person is eligible to be released on the state or territory sentence.

Part 7 of Schedule 7 will repeal and replace subsection 19AL(4) to clarify that the Attorney-General need not make a parole order where that would be of no practical effect due to an ongoing state or territory sentence, but must consider whether to make a federal parole order before the offender is eligible for release on the state or territory sentence. If the prisoner is eligible to be released on parole for the state or territory sentence, the Attorney-General must consider the person’s release on federal parole before the end of their state or territory non-parole period.

Section 20AB of the Crimes Act allows courts to impose certain alternative sentences on federal offenders, where those types of sentences may be imposed on state or territory offenders. The types of alternative sentences that may be imposed are those that are set out at subsection 20AB(1), such as community service orders and periodic detention, or sentences that are similar to the listed sentences orders, or are prescribed in the regulations.141 Part 11 will repeal subsection 20AB(1) and substitute proposed subsections 20AB(1) and 20AB(1AA). These provisions will expand the range of state and territory alternative sentencing options listed in

140. Explanatory Memorandum, op. cit., p. 70. 141. The prescribed sentences and orders are set out at regulation 6 of the Crimes Regulations 1990, accessed 29 July 2015.

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the Crimes Act as being applicable to federal offenders, while retaining the ability to prescribe additional types of alternative sentences and orders in the regulations.

Schedule 8—Transfer of prisoners Schedule 8 will make minor amendments to the Transfer of Prisoners Act 1983.142 This Act provides for the transfer of federal prisoners from a prison in one state or territory to a prison in another state or territory. Such transfers may be for prisoner welfare, or for purposes of a trial or security.

Item 3 of Schedule 8 will insert proposed subsection 17(3A), which will allow prisoners to be delivered into the custody of a state or territory escort at an authorised place. The existing provisions of section 17 require prisoners to be delivered into the custody of a superintendent or officer in charge, at a specified prison.

Items 2, 4 and 5 will make minor amendments to sections 17 and 26 to specifically include ‘remand prisoners’ in provisions of general application, alongside the existing references to ‘prisoners’.

Schedule 9—Sharing information relevant to federal offenders Schedule 9 will insert proposed Division 9A into Part IB of the Crimes Act to provide for the sharing of information relevant to federal offenders between federal and state or territory authorities.143 Proposed section 20BZA will allow the Attorney-General or a delegate to request or require a relevant person to provide information relating to federal offenders. Proposed section 20BZB will permit the Attorney-General’s Department to disclose federal offender information to a relevant person.

The definition of relevant person will be contained in proposed section 20BZ and will include employees of many federal law enforcement and justice bodies, as well as employees of state and territory justice and parole agencies, corrective services, courts or DPPs.

As noted in the ‘Position of major interest groups’ section of this Digest, concerns have been raised by the DPPs in NSW and Victoria regarding the scope of proposed Division 9A, in particular the proposed power for the Commonwealth to require information to be provided, as soon as practicable and despite any other law of the Commonwealth, a state or territory.144 Concerns include the possibility that notices requiring information under proposed subsections 20BZA(4) and (5) may override state privacy laws, legal professional privilege and non-publication orders.

The Victorian DPP does not believe that Directors and Offices of Public Prosecutions should be included in the definition of ‘relevant person’ in proposed section 20BZ, or if they remain in the definition they should be subject to an exemption similar to that provided for court registrars and officers under proposed subsection 20BZA(6), which provides that courts are not required to provide information that relates to proceedings that are still before the court.145

The Victorian DPP also noted:

• proposed subsection 20BZA(5) may be broader than necessary to meet its objectives relating to dealing with inconsistent laws and

• proposed section 20BZA is ambiguous due to the provisions for both requests (written or otherwise) and requirements. Requests should be in writing and ‘reasonable belief’ should be clarified.146

The NSW DPP requested that the new provision should allow ‘each request (to) be considered on its merits, and that the form and content of the information should be negotiable’.147

Schedule 10—AUSTRAC Section 167 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF Act) provides powers for authorised officers to require information and documents relevant to the operation of the Act or

142. Transfer of Prisoners Act 1983, accessed 26 May 2015. 143. Crimes Act 1914, accessed 30 July 2015. 144. Victorian DPP, Submission, op. cit., NSW DPP, Submission, op. cit. 145. Victorian DPP, op. cit. 146. Ibid. 147. NSW DPP, op. cit.

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associated regulations or rules.148 Section 169 abrogates the privilege against self-incrimination, but provides that neither the information or documents, or the giving of the information or document, is admissible in evidence against the person, except in certain proceedings as listed in that provision. The prohibition on the use of such information in proceedings against the person who provided it is known as ‘use immunity’. Section 169 does not prohibit the use of that information to obtain other information that may be used against the person, a further protection known as ‘derivative use immunity’.

Item 3 of Schedule 10 will repeal and replace paragraphs 169(2)(c) and (d) to broaden the proceedings in which information obtained under section 167 may be used in evidence against the person, thereby reducing the protection offered by the use immunity, as set out below.

• Currently, the only civil proceedings not covered by the use immunity are those under the Proceeds of Crime Act that relate to the AML/CTF Act. Item 3 would allow self-incriminating evidence to also be used in evidence for civil proceedings under the AML/CTF Act.

• Currently, the only criminal proceedings not covered by the use immunity are those for offences relating to non-compliance with the notice and provision of false or misleading information or documents. Item 3 would allow self-incriminating evidence to also be used in evidence for criminal proceedings under the AML/CTF Act or an offence in the Criminal Code that relates to the AML/CTF Act.

Lack of justification The Explanatory Memorandum states that this further abrogation of the privilege against self-incrimination is ‘precise and narrow in scope’ and makes section 169 consistent with the approach to self-incrimination under section 205 of the AML/CTF Act, thereby achieving ‘greater consistency in the operation and interpretation of the Act’.149 The amendments are relatively narrow in scope, in that self-incriminating evidence may only be used for proceedings under limited Acts. However, they are not precise. By not specifying particular provisions of the AML/CTF Act or the Criminal Code, the proceedings in which self-incriminating evidence may be used could expand over time as amendments are made to those Acts, without due consideration given to the impact. The argument based on consistency fails to take account of the more narrowly defined set of information that may be required from a person under the notice provisions to which section 205 relates. Further, no explanation is provided as to why consistency should not instead be achieved by making section 205 consistent with section 169. Finally, the Explanatory Memorandum wrongly claims that section 169 provides both use and derivative use immunity. The Parliament may require further information on why this amendment is proposed and what the impact will be in order to determine its appropriateness. Some additional information was provided by the Minister for Justice in his response to the PJCHR, but it does not fully address the issues outlined here.150

Schedule 11—Australian Commission for Law Enforcement Integrity Schedule 11 of the Bill will make several amendments to the LEIC Act to improve internal consistency and address difficulties identified through operational experience with the Act. The more significant of these are outlined below.

Amendments to the definition of ‘significant corruption issue’ The LEIC Act differentiates between corruption issues and significant corruption issues. There are some differences in the way significant corruption issues and other corruption issues are treated.

‘Significant corruption issue’ is currently defined in subsection 5(1) of the LEIC Act as follows (emphasis added):

(a) a corruption issue that relates to corrupt conduct that constitutes serious corruption or systemic corruption or

(b) a corruption issue that:

(i) relates to a law enforcement agency and

148. Anti-Money Laundering and Counter-Terrorism Financing Act 2006, accessed 24 April 2015. 149. Explanatory Memorandum, op. cit., pp. 34-35, 84-85. 150. PJCHR, Twenty-fourth report of the 44th Parliament, op. cit., pp. 77-81.

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(ii) is of a kind that the Integrity Commissioner and the head of the agency have agreed under paragraph 17(1)(a) to be a significant corruption issue in relation to staff members of the agency or

(c) a corruption issue of a kind that is prescribed by the regulations for the purposes of this paragraph. 151

‘Serious corruption’ (generally, that which could result in being charged with an offence with a maximum penalty of imprisonment for 12 months or more) and ‘systemic corruption’ (generally, that which reveals a pattern of corrupt conduct in a law enforcement agency or in law enforcement agencies) are defined in the same subsection. Under the current definition of significant corruption issue, all conduct that falls within paragraph (a) is treated as a significant corruption issue, as well as any that falls under paragraph (b).

Item 1 of Schedule 11 will amend the above definition so that paragraph (a) will only apply if there is no agreement in place under subsection 17(1). This change could only result in fewer corruption issues falling within the definition of significant corruption issue and, therefore, being treated as such. This is because any conduct that would be included in an agreement subsection 17(1), but that would not otherwise fall under paragraph (a), would already be captured under the current definition. The only impact will be that conduct that would fall within current paragraph (a), but is not included in an agreement, will no longer be taken to be a significant corruption issue.

Whether a corruption issue is a significant corruption issue (SCI) or not has implications for:

• which body investigates the issue:

- under section 20 of the LEIC Act, ACLEI must take over all investigations for SCIs referred by law enforcement agency heads (though it can refer them back) - under section 22, the relevant law enforcement agency must initiate or complete its own investigation of corruption issues that are not SCIs (ACLEI has the discretion to take over the investigation, but that is the

default position) and • decisions on how to deal with corruption issues:

- under section 27, the Integrity Commissioner must have regard to certain matters when deciding how to deal with a corruption issue or whether to take no further action; the matters include, under paragraph 27(2)(e): the need to ensure a balance between:

(i) the Integrity Commissioner’s role in dealing with corruption issues in law enforcement agencies (particularly in dealing with significant corruption issues); and

(ii) ensuring that the heads of law enforcement agencies take responsibility for managing their agencies. 152

Issue: excluding systemic corruption from the definition of significant corruption issue Removing the blanket coverage within the definition of significant corruption issue of all corrupt conduct that could result in a charge for an offence with a maximum penalty of imprisonment for 12 months may be a sensible move that means ACLEI has more discretion to direct its limited resources where they are most needed. However, it is more difficult to identify a rationale for removing blanket coverage of all matters relating to systemic corruption, and the Explanatory Memorandum does not address this aspect of the proposed amendment. In the absence of any examples of where it would be appropriate for a corruption issue relating to systemic corruption (instances of corruption that ‘reveal a pattern of corrupt conduct in a law enforcement agency or in law enforcement agencies’) not to be treated as a significant corruption issue and be investigated by ACLEI in the first instance, the Parliament may wish to consider an alternative amendment. In particular, such an amendment could instead ensure all instances of systemic corruption continue to be dealt with as significant corruption issues, while providing more flexibility on the serious corruption aspect of the definition.

151. Law Enforcement Integrity Commissioner Act 2006 (LEIC Act), accessed 24 April 2015. 152. LEIC Act, op. cit.

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Changes to obligations to keep someone who has referred a corruption issue informed of progress Section 23 of the LEIC Act enables people (other than the heads of law enforcement agencies and the Minister responsible for ACLEI, for which there are specific provisions) to refer an allegation or information that raises a corruption issue to ACLEI. Section 25 allows someone who has made a referral under section 23 to elect to be kept informed about actions taken in response. ACLEI is then obligated under sections 34, 52, 58, 65 and 68 to provide certain information to that person at certain stages of consideration and investigation of the matter.

Items 7, 13 and 17-21 of Schedule 11 will repeal section 25 and repeal and replace parts of sections 34, 52, 58, 65 and 68 so that instead of having to comply with specific obligations to keep the person who referred a matter informed of progress, ACLEI has the discretion to do so. The Explanatory Memorandum explains that compliance with the current obligations may in some instances undermine the operational security and integrity of an investigation.153 The amendments will address that issue by giving ACLEI flexibility about the timing and extent of information shared with a person who has referred an issue.

Schedule 12—Australian Crime Commission This Schedule will make several minor and technical amendments to the Australian Crime Commission Act 2002.154

Schedule 13—Proceeds of crime—penalties This Schedule will amend the POC Act to increase the penalties for failing to comply with a production order, or with a notice given to a financial institution in proceeds of crime investigations.155 These penalties will be increased from six months imprisonment (and/or 30 penalty units) to two years imprisonment (and/or 100 penalty units).156

Schedule 14—Proceeds of crime—other matters This Schedule will introduce a series of amendments to the POC Act and related sections of certain other acts.157

Items 1 and 2 of Schedule 14 will repeal paragraph 330(4)(e) and replace it with proposed paragraph 330(4)(e) to provide a new definition of situations in which property ceases to be proceeds of an offence under the POC Act due to similar proceedings under another law.

The current paragraph provides that this may occur where an interstate restraining order or an interstate forfeiture order is satisfied in respect of the property. The Explanatory Memorandum states that a consequence of this wording is that the making of an interstate restraining order may be sufficient to change the nature of property for the purposes of the POC Act, regardless of whether the property is ultimately forfeited to the state or territory, and that this is contrary to the intended operation of paragraph 330(4)(e). The proposed paragraph will clarify that property will cease to be proceeds of an offence under the POC Act only if the property is forfeited, confiscated or otherwise disposed of under a corresponding law. This paragraph will rely on the existing definition of ‘corresponding law’ in the POC Act and regulations, which specifies the proceeds of crime laws of all states and territories.

Items 3 and 4 will expand the existing definition of ‘related offence’ in section 338 of the POC Act. This section currently defines related offences as ones in which the physical elements are substantially the same acts or omissions. The proposed definition will expand the scope to include acts or omissions in a single series. This will result in orders made under the POC Act remaining in place after a person is acquitted or charges are withdrawn, providing the person is charged with another offence arising from the same series of acts or omissions. The Explanatory Memorandum notes that this is intended to ‘ensure that a person is not able to dissipate previously

153. Explanatory Memorandum, op. cit., pp. 89-90, 93, 95-97. 154. Australian Crime Commission Act 2002, accessed 30 July 2015. 155. Proceeds of Crime Act 2002, accessed 30 July 2015. 156. Section 4AA of the Crimes Act provides that a penalty unit is equal to $180. 157. Australian Federal Police Act 1979; Crimes (Superannuation Benefits) Act 1989; Mutual Assistance in Criminal Matters Act 1987; all accessed

9 July 2015.

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restrained assets in the period between the withdrawal of charges or acquittal and the granting of a restraining order or confiscation order in relation to the related offence.’158

Items 5 to 10 will implement similar changes in related Acts.

The Minister, in response to concerns raised by the Scrutiny of Bills Committee, noted that although the operation of the proposed definition would be ‘partially retrospective because it may apply in relation to related offences that occurred prior to the commencement of the measures’, the intent is to allow courts to determine all relevant acts when considering restraining orders.159 The Minister also considered that this measure would not adversely affect a person’s rights as it related only to the preserving of property and would not affect the court’s discretion in making restraining or confiscation orders.160 The Committee remained of the view that the amendments may create an adverse effect and that the ability of a person to dispose of or otherwise deal with restrained property could be retrospectively constrained.

Items 11 and 12 will expand the definition of ‘approved examiner’ provided in subsection 183(4) and clarify the administrative arrangements surrounding their appointment, resignation and revocation. An approved examiner is a person who is authorised under section 183 to issue a written notice to a person requiring them to submit to an examination for information gathering purposes. The approved examiner may then examine that person according to section 187. The categories of persons who may be currently appointed as approved examiners are a person who holds an office, or is included in a group of people, specified in the Regulations, or a person who is appointed by the Minister.

Proposed paragraphs 183(4)(a) and (b) will make it clear what steps the Minister must take to appoint an approved examiner, and will require approved examiners to either belong to a class specified in the Regulations, or be a legal practitioner of at least five years standing.

Item 13 will insert proposed section 315C into the POC Act to enable the Official Trustee in Bankruptcy to bring proceedings on behalf of the Commonwealth. The Explanatory Memorandum states that this will clarify the standing of the Official Trustee to make applications under the POC Act after doubts were raised by the unpublished decision in Official Trustee v Gale Pty Ltd ACN [2009] NSWSC, in which the court found that the Official Trustee did not have standing in certain circumstances.161

Schedule 15— State law enforcement agencies The ICAC SA was established by the Independent Commissioner Against Corruption Act 2012 (SA) in 2012 to provide for the identification and investigation of corruption and misconduct in public administration in South Australia.162 Schedule 15 will provide recognition and powers for the ICAC SA under Commonwealth law, equivalent to that already in place for equivalent agencies in other states. The powers that will be made available to the ICAC SA will include access to information from relevant Commonwealth agencies, defences for certain telecommunications offences to enable operations and investigations, and the ability to apply for certain warrants.

In addition, this schedule will introduce amendments to acknowledge the renaming of the Queensland Crime and Misconduct Commission as the Crime and Corruption Commission by the Crime and Misconduct Commission Amendment Act 2014 (Qld), which entered into force on 1 July 2014.163

Schedule 16—Controlled operations Part IAB of the Crimes Act provides the legislative framework for the Commonwealth controlled operations regime. Controlled operations are covert law enforcement operations in which one or more persons are authorised to engage in otherwise unlawful conduct in order to obtain evidence of a serious criminal offence. A

158. Explanatory Memorandum, op. cit., p. 108. 159. Scrutiny of Bills Committee, Fifth report of 2015, op. cit., p. 336. 160. Ibid. 161. Explanatory Memorandum, op. cit., p. 114. 162. Independent Commissioner Against Corruption Act 2012 (SA), accessed 5 June 2015. 163. Crime and Misconduct Commission Amendment Act 2014 (Qld), accessed 3 June 2015.

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‘major controlled operation’ includes one that is likely to involve ‘the infiltration of an organised criminal group by one or more undercover law enforcement officers for a period of more than seven days’.164

The amendments in Schedule 16 of the Bill will make the approval processes more stringent by providing that:

• an alteration to a controlled operation that would result in it becoming a major controlled operation because it would involve infiltration of an organised criminal group by one or more undercover law enforcement officers for a period of more than seven days may only be made by the Commissioner or a Deputy Commissioner of the AFP (items 1, 2, 4 and 5) and

• an authority for a controlled operation may not be varied so as to significantly alter the nature of the criminal offences to which it relates (item 3). This will help clarify the scope of an existing limitation that excludes variations that would significantly alter the nature of a controlled operation. In such instances, approval must instead be sought for a new operation.

Schedule 17—Technical corrections Schedule 17 will make technical corrections to the Classification (Publications, Films and Computer Games) Act 1995.165

164. Crimes Act, op. cit., paragraph 15GD(2)(a). 165 Classification (Publications, Films and Computer Games) Act 1995, accessed 3 June 2015.

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