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



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ISSN 1328-8091

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BILLS DIGEST NO. 77, 2016-17 23 MARCH 2017

Crimes Legislation Amendment (International Crime Cooperation and Other Measures) Bill 2016 Cat Barker Foreign Affairs, Defence and Security

Monica Biddington Law and Bills Digest

Contents

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

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

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

International crime cooperation ............................................. 5

Other measures ....................................................................... 6

Committee consideration .................................................... 6

Legal and Constitutional Affairs Legislation Committee ......... 6

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

Policy position of non-government parties/independents ..... 8

Position of major interest groups ......................................... 8

International Crime Cooperation (Schedules 1-4) .................. 8

Protecting vulnerable persons (Schedule 5) ............................ 8

Slavery-like offences and evidence relevant to slavery-like and trafficking in persons offences (Schedule 6) .............. 9

Amendments to the AFP Act (Schedule 8) .............................. 9

Giving the Australian Charities and Not-for-profits Commission access to AUSTRAC information (Schedule 9) ............................................................................. 9

Financial implications .......................................................... 9

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

Parliamentary Joint Committee on Human Rights ................ 10

Key issues and provisions................................................... 10

Assistance to international courts and tribunals (Schedule 1) ........................................................................... 10

Date introduced: 23 November 2016

House: House of Representatives

Portfolio: Justice

Commencement: Sections 1 to 3 on Royal Assent. Schedules 3, 5, 6, 7, 9, 10, 11, Parts 1 and 3 of Schedule 2, and Part 2 of Schedule 8 the day after Royal Assent. Schedules 1 and 4, Part 2 of Schedule 2, and Part 1 of Schedule 8 on proclamation or six months after Royal Assent, whichever is earlier.

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 Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at

March 2017.

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Authorising the provision of lawfully obtained material to the ICC or an IWCT .......................................................... 11

Producing documents or other articles ............................... 12

Telecommunications related amendments (Schedule 1 cont.)...................................................................................... 13

Covert access to stored communications ........................... 13

Historical telecommunications data.................................... 13

Prospective telecommunications data ................................ 13

Obligations of carriage service providers et cetera, to provide assistance, and recovery of costs for providing assistance ............................................................................ 13

Mutual assistance and proceeds of crime for foreign serious offences (Schedule 2) ................................................ 13

Search warrants ................................................................... 13

Production of documents or other articles ......................... 14

Execution of surrender and temporary surrender warrants under the Extradition Act 1988 (Cth) (Schedule 3) ............................................................................................ 14

Foreign Evidence amendments (Schedule 4) ........................ 15

Protecting vulnerable persons (Schedule 5) .......................... 15

Slavery-like offences and relevant evidence (Schedule 6) .... 16

Debt bondage and slavery-like offences ............................. 17

Evidence relevant to slavery-like offences .......................... 18

Evidence relevant to trafficking in persons offences .......... 19

Reporting on investigations and proceedings for offences against the War Crimes Act 1945 (Cth) (Schedule 7) ........................................................................... 19

Amendments to the Australian Federal Police Act (Schedule 8) ........................................................................... 19

Alcohol and drug testing (Part 1 of Schedule 8) .................. 19

Commissioner’s power to delay date of effect of resignation (Part 2 of Schedule 8) ....................................... 21

Amendments to the AML/CTF Act (Schedule 9) .................... 23

Electronic reporting of physical currency movements (Part 1 of Schedule 9) .......................................................... 23

Australian Charities and Not-for-profits Commission access to AUSTRAC information (Part 2 of Schedule 9) ...... 23

Amendments to the Australian Crime Commission Act (Schedule 10) ......................................................................... 24

Background checking for major national events (Schedule 11) ......................................................................... 24

Concluding comments ....................................................... 25

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The Bills Digest at a glance • The Crimes Legislation Amendment (International Crime Cooperation and Other Measures) Bill 2016 (the Bill) contains 11 schedules of discrete measures that are intended to update several aspects of the criminal justice and law enforcement legislative framework to respond to issues identified through ongoing, internal review

• Schedules 1-4 of the Bill will address the provision of materials lawfully obtained by Australian law enforcement agencies, including telecommunications data, to the International Criminal Court and the international war crimes tribunals. The changes are consistent with existing arrangements for information sharing with foreign countries under the Mutual Assistance in Criminal Matters Act 1987. The amendments will also address drafting inconsistencies and practical issues that have arisen in international crime cooperation, particularly between search warrant provisions under both the Proceeds of Crime Act 2002 and the Mutual Assistance in Criminal Matters Act 1987

• Schedules 5-11 include amendments to a range of domestically focused criminal justice and law enforcement legislation. The proposed amendments include:

- updating the drug and alcohol testing regime that applies to the Australian Federal Police (AFP) (Schedule 8) - increasing the delay that the AFP Commissioner may impose in particular circumstances on an AFP employee’s nominated date of resignation (Schedule 8) - extending the protections afforded to vulnerable witnesses (Schedule 5) - expanding the definition of debt bondage and the list of matters to which a trier of fact may have regard

when determining whether particular elements of slavery-like and trafficking in persons offences are proven (Schedule 6) - allowing the Australian Charities and Not-for-profits Commission direct access to the Australian Transaction Reports and Analysis Centre’s financial intelligence(Schedule 9) and - enabling AusCheck to conduct criminal and national security-related background checks on individuals in

connection with their accreditation relating to a major national event (Schedule 11). • The Bill is being considered by the Senate Legal and Constitutional Affairs Committee. The Committee received 6 submissions on the Bill and is due to report on 23 March 2017. Submitters were broadly supportive of the Bill, especially the proposed changes relating to vulnerable witnesses and amendments

relating to slavery-like and trafficking in persons offences. However, the Australian Federal Police Association opposed the proposed amendments to the delayed resignation provisions in Schedule 8 of the Bill

• The Senate Standing Committee for the Scrutiny of Bills has reported on the Bill. It sought the Minister’s advice on and further justification for several measures and has requested the information contained in the Minister’s response be incorporated into the Explanatory Memorandum.

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Purpose and structure of the Bill The Crimes Legislation Amendment (International Crime Cooperation and Other Measures Bill 2016 (the Bill) contains 11 Schedules. The amendments in Schedules 1-4 all relate to international crime cooperation, while Schedules 5-11 contain discrete amendments to several Acts relating to Commonwealth criminal justice, law enforcement and national security.

The purpose of Schedules 1-4 of the Bill is to:

• amend the International Criminal Court Act 2002 (ICC Act) and the International War Crimes Tribunal Act 1995 (IWCT Act) to facilitate assistance to those bodies for investigating and prosecuting offences within their jurisdiction (Schedule 1)

• amend the Mutual Assistance in Criminal Matters Act 1987 (the MA Act) to align definitions with the Proceeds of Crime Act 2002 (POCA) provisions to which they refer (Schedule 2)

• expressly provide for a person to be committed to prison following the discharge of any bail recognisances when a surrender or temporary surrender warrant has been issued under the Extradition Act 1988 (Extradition Act) (Schedule 3)1 and

• amend the Foreign Evidence Act 1994 (Foreign Evidence Act) to extend the application of Part 3 of that Act (governing the use of foreign material in certain criminal and related civil proceedings) to proceedings conducted in state or territory courts in relation to the external territories and the Jervis Bay Territory (Schedule 4).

The purposes of the remaining schedules of the Bill are to:

• amend the Crimes Act 1914 to extend an offence of identifying a child witness or vulnerable adult complainant to also include identification of child complainants, and amend the application of certain procedural protections inserted in the Crimes Act and the Criminal Code Act 1995 (Criminal Code) by the Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Act 2013 (Vulnerable Witness Act) (Schedule 5)

• amend the Criminal Code to expand the definition of debt bondage and change the location of that offence in the Act, and to expand the matters to which a trier of fact may have regard when determining whether particular elements of slavery-like and trafficking in persons offences are proven, and make consequential amendments to other laws (Schedule 6)

• amend the War Crimes Act 1945 (War Crimes Act) to remove the annual reporting requirement under the Act and instead require the Attorney-General to report to Parliament only where an investigation or proceeding is started or carried on in the preceding year (Schedule 7)

• amend the Australian Federal Police Act 1979 (AFP Act) to update the alcohol and drug testing regime, and to increase the delay that the Commissioner may impose in particular circumstances on an Australian Federal Police (AFP) employee’s nominated date of resignation (Schedule 8)

• amend the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF Act) to provide for electronic reports to be made to the Australian Transaction Reports and Analysis Centre (AUSTRAC) of physical currency being moved out of Australia, and to allow the Australian Charities and Not-for-profits Commission direct access to AUSTRAC’s financial intelligence (Schedule 9)

• amend the Australian Crime Commission Act 2002 (ACC Act) to provide a legal basis for the official use of alternative names and alternative acronyms for the entity that is now referred to as the Australian Criminal Intelligence Commission (Schedule 10) and

1. For clarification, the term ‘recognizance’ in the context of bail under the Extradition Act is a general term referring to an undertaking or a bond provided by a person who is charged with an offence to appear in court as and when required, and to adhere to any other conditions that are required; s15(6) and s49B of the Extradition Act. The Explanatory Memorandum clarifies that the Bill will allow, once a person has been released on bail and a surrender or temporary surrender warrant has been issued, for the judicial officer to commit the person to prison following the discharge of bail recogni[z]ances.

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• amend the AusCheck Act 2007 to enable AusCheck to conduct criminal and national security-related background checks on individuals in connection with their accreditation relating to a major national event (Schedule 11).

Background The Minister for Justice indicated that as a whole, the Bill is intended to update several aspects of the criminal justice and law enforcement legislative framework to respond to issues identified through ongoing, internal review:

The government is committed to ensuring Australia's criminal justice framework is as strong as it can be—striking the right balance between protecting fundamental rights while ensuring justice is served. We are committed to ensuring our law enforcement and justice agencies have the requisite powers to appropriately contribute to the fight against crime at home and abroad.

To that end, we keep our criminal justice framework under constant review—our agencies, policies, laws and processes—to ensure that we have a regime in place that is well equipped for the job of tackling crime.

Australia's criminal justice framework is both fair and strong. But it never serves to be complacent. Where we find opportunities to fine-tune aspects of our regime, we will take these up. This bill, which is very comprehensive in nature, is an example of the government doing exactly that. 2

International crime cooperation The amendments proposed in Schedules 1-4 are broadly grouped under an international crime cooperation umbrella. The amendments include facilitating the access of stored communications, prospective telecommunications data and historical telecommunications data with international courts and tribunals. There is not specific background information provided on each measure and these Schedules of the Bill have not attracted much attention from key stakeholders. The nature of the Schedules 1-4 is such that they are addressing some practical, technical and legislative consistency issues with no critical timeframe identified in the extrinsic materials to the Bill.

The measures in Schedule 1 may complement the implementation of the United Nation’s General Assembly adopting resolution 71/248 on 21 December 2016 to establish an ‘International, Impartial and Independent Mechanism to assist in the Investigation and Prosecution of those Responsible for the Most Serious Crimes Under International law committed in the Syrian Arab Republic since March 2011’3 … This Mechanism has two main tasks:

(1) To collect, consolidate preserve and analyse evidence of violation of international humanitarian law and human rights violations and abuses; and

(2) To prepare files in order to facilitate and expedite fair and independent criminal proceedings, in accordance with international law standards, in national, regional or international courts or tribunals that have or may in the future have jurisdiction over these crimes, in accordance with international law. 4

The Mechanism will further ‘assist in the investigation and prosecution of those responsible for the most serious crimes under international law, in particular the crime of genocide, crimes against humanity and war crimes as defined in relevant sources of international law.5

2. M Keenan, ‘Second reading speech: Crimes Legislation Amendment (International Crime Cooperation and Other Measures) Bill 2016’, House of Representatives, Debates, 23 November 2016, pp. 4072-4074. 3 United Nations General Assembly, Resolution 71/248, 21 December 2016. 4 Ibid., para. 4.

5. United Nations Secretary-General, ‘Note to Correspondents: International, Impartial and Independent Mechanism to assist in the Investigation and Prosecution of those Responsible for the Most Serious Crimes under International Law committed in the Syrian Arab Republic since March 2011’, United Nations website, 26 January 2017.

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The proposed amendments in Schedule 1 to the Bill do not authorise Australian law enforcement agencies to provide material to the Independent Mechanism. However, if matters considered by the Mechanism proceeded to investigation by the International Criminal Court Prosecutor, or a prosecution before the International Criminal Court, the proposed amendments would enable Australian law enforcement agencies to provide lawfully obtained material to the Court. This could potentially be relevant if a person under investigation by the ICC Prosecutor or subject to prosecution had some connection with Australia. (For example, an Australian citizen or resident who participated in hostilities in Syria was being investigated or prosecuted; or if a person of another nationality had some form of contact or dealing with an Australian person.)

On 17 February 2017, The Guardian reported that in establishing a new unit in the United Nations in Geneva to prepare prosecutions of war crimes committed in Syria ‘it will not be able to prosecute, [although] the unit will prepare files that could be used in future prosecutions by states or by the international criminal court in The Hague.’ Funding for the unit is initially voluntary and Australia announced on 28 February that it would contribute $150 000 in response to the United Nations call for states to fund start-up costs for the Mechanism.6

Other measures Schedules 5-11 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 beginning on page 10 of this Digest.

Committee consideration Legal and Constitutional Affairs Legislation Committee The Bill has been referred to the Legal and Constitutional Affairs Legislation Committee for inquiry. The Committee was granted an extension of time for reporting until 23 March 2017. Details of the inquiry are at the inquiry homepage.7

Senate Standing Committee for the Scrutiny of Bills The Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee) sought further justification from the Minister on proposed amendments in Schedules 1 and 4.8

Item 6 in Schedule 1 raised the concern of the Scrutiny of Bills Committee to the extent that it inserts two new exceptions to the offences in subsections 45(1) and 45(2) of Surveillance Devices Act 2004 (the SD Act), which apply to persons who contravene the prohibition on the use, recording, communication and publication of ‘protected information’. (Subsection 45(3) also prohibits the admission of protected information into evidence in any proceedings.) Subsections 45(4) and 45(5) contain exceptions to the offences in subsections 45(1) and 45(2) and the rule in subsection 45(3). ‘Protected information’ is a defined term in subsection 44(1) that includes, in broad terms, information obtained from the use, or related to the use, of a surveillance device under warrant or authorisation. The amendments will allow the communication of information for the purpose of providing it to the ICC or an IWCT if that communication is authorised under the ICC Act or the IWCT Act (as applicable). The effect of the proposed exceptions is that information lawfully obtained under a surveillance device warrant executed for a domestic purpose can then be lawfully disclosed to the ICC or an IWCT in response to a formal request (proposed paragraphs 45(4)(h) and (i)). The proposed exceptions would also appear to extend to interim communications of information (for example, from one officer to another) for the purpose of an ultimate disclosure to the ICC or an IWCT. Aligned with this item, Item 95 inserts further exceptions to the offences in subsections 45(1) and 45(2) and the rule in subsection 45(3) for the communication of information for the purpose of providing it to a foreign country or the ICC or an IWCT, where the information was obtained under, or relates to, a surveillance device warrant issued in relation to an international assistance authorisation requested by that entity the MA Act (proposed paragraph 45(4)(f)).

6. J Bishop (Minister for Foreign Affairs) and C Fierravanti-Wells (Minister for International Development and the Pacific), Australia supports UN investigations into violations of international law and human rights abuses in Syria, media release, 28 February 2017. 7. Inquiry homepage, Legal and Constitutional Affairs Legislation Committee, ‘Crimes Legislation Amendment (International Crime Cooperation and Other Measures) Bill 2016 [Provisions]’. 8. Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee), Alert digest, 10, 2016, The Senate, 30 November 2016,

pp. 10-11.

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Subsection 13.3(3) of the Criminal Code provides that a defendant who wishes to rely on any exception etc provided by the law creating an offence bears an evidential burden in relation to that matter. The Scrutiny of Bills Committee’s concern related to the reversal of the burden of proof on to the defendant without justification and the Committee sought further justification from the Attorney-General on the creation of these exceptions under subsection 45(4). The response received was that:

Given communications to foreign countries, the International Criminal Court and international war crimes tribunals in international crime cooperation matters are confidential, these matters would be peculiarly within the knowledge of the defendant and would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter. For this reason it would be for the defendant to raise evidence as to the application of these exceptions.

9

The Scrutiny of Bills Committee expressed concern at the broad delegation of administrative powers in item 3 of Schedule 4 relating to the power to issue a certificate which provides prima facie evidence to a court of the matters stated in the certificate, under the Foreign Evidence Act 1994. The Committee sought further justification that what was provided in the explanatory memorandum as to the level of delegation:

In this case, the explanatory memorandum (at p.164) states the reason for removing the limit on the power of delegation as allowing for 'reliability, flexibility and promptness, with sufficient oversight'. However, it is not clear to the committee why the bill proposes removing any detail regarding the office-holder who may be delegated this important function. The explanatory memorandum states that the delegation will not be to persons below the executive level, yet there is nothing on the face of the bill (or in section 17 of the Law Officers Act 1964) which restricts the delegation in this way.

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The Minister stated that in practice, the instrument of delegation specifies particular position numbers so will be limited to only certain positions that the Attorney-General considers appropriate in the circumstances.

The Scrutiny of Bills Committee also sought the Minister’s advice on several other matters.

The Committee considered that the amendments in Schedule 3 to the Extradition Act were imposing an obligation on the court, rather than a discretion, for a magistrate to commit a person to prison to await surrender under an extradition warrant. In his response to request for further advice, the Attorney-General explained that:

the amendments to sections 26 and 35 of the Extradition Act address the logistics for the execution of a surrender warrant when a person is on bail and a surrender warrant has been issued to surrender the person to an extradition country. The surrender warrant is the instrument that empowers the police to bring an eligible person into custody to await transportation out of Australia.

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The Minister confirmed that the amendments do not affect existing bail processes under the Extradition Act, explained further under Key Issues and Provisions.12

The Committee questioned whether the application of the proposed amendments in Schedule 5 to an offence of identifying a vulnerable witness or complainant would impose retrospective criminal liability, and if so, how that was justified.13 The Committee was satisfied with the Minister’s response, which stated that the provisions do not impose retrospective criminality, but requested that the further information it contained be included in the Explanatory Memorandum.14

Proposed amendments in Schedule 8 will allow regulations made in relation to drug and alcohol testing of AFP appointees to apply, adopt or incorporate a matter contained in a standard published by or on behalf of Standards Australia. The Committee noted its ongoing concerns about provisions that operate in this way,

9. Scrutiny of Bills Committee, Scrutiny digest, 1, 2017, The Senate, 8 February 2017, p. 67. 10. Scrutiny of Bills Committee, Alert digest, 10, 2016, op. cit., p. 13. 11. Ibid., pp. 11-12. 12. Scrutiny of Bills Committee, Scrutiny digest, 1, 2017, op. cit., pp. 68-69. 13. Scrutiny of Bills Committee, Alert digest, 10, 2016, op. cit., p. 14. 14. Scrutiny of Bills Committee, Scrutiny digest, 1, 2017, op. cit., pp. 74-75.

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including lack of accessibility to the content of standards.15 The Committee accepted the Minister’s advice that AFP could not make the standards available to the public due to copyright restrictions and noted the advice that all AFP appointees would be able to access the standards via the agency’s intranet. However, it sought further advice from the Minister on whether the Bill could be amended to include a statutory requirement for the standards to be made freely and readily available to all AFP appointees.16 Further detail is provided in the analysis of Schedule 8 beginning on page 19 of this Digest.

Policy position of non-government parties/independents At the time of publication of this Digest, there is no public indication of the policy position of any non-government parties and independents on this Bill.

Position of major interest groups International Crime Cooperation (Schedules 1-4) The Law Council of Australia (LCA) is the only stakeholder to have made any comment on the amendments in Assistance to international courts and tribunals (Schedule 1). As outlined further under Key Issues and Provisions, the LCA is supportive of the amendments in Schedule 1.The LCA did not oppose in principle measures relating to mutual assistance in criminal matters (Schedule 2) which seek to ensure consistency between the MA Act and the Proceeds of Crime Act 2002.17

The Commonwealth Director of Public Prosecutions (CDPP) expressed broad support for amendments that will impact on mutual assistance and extradition processes proposed in Amendments relating to mutual assistance in criminal matters (Schedule 2) and amendments relating to surrender warrants in the Extradition Act 1988 Schedule 3 respectively.18

The CDPP noted its support of the proposed Amendments relating to foreign evidence (Schedule 4). Similarly, the LCA did not consider that the proposed amendments to the Foreign Evidence Act are problematic.19

Protecting vulnerable persons (Schedule 5) The CDPP, Anti-Slavery Australia, the LCA and the Justice and International Unit of the Uniting Church in Australia’s Synod of Victoria and Tasmania (Uniting Church) support the proposed amendments to provisions that relate to protecting vulnerable witnesses and complainants.20

The CDPP noted that the amendments will correct an anomaly apparently inadvertently introduced by amendments made in 2013 and since brought to the attention of the Attorney-General’s Department by the CDPP.21 The 2013 amendments extended an offence that applied for publishing a matter where the matter identifies, or is likely to identify, certain children in relation to proceedings, to also apply to vulnerable adult complainants. However, they also narrowed the offence so that it applied to identification of child witnesses only, instead of child witnesses and child complainants.22 The CDPP provided a practical example of why it is important to include child complainants among those to whom the protection against identification applies:

It is not unusual for online child exploitation matters prosecuted by the CDPP to involve victims who are not witnesses in the proceedings. This is because the commission of the crime can often be proved by digital means,

15. Alert digest, 10, 2016, op. cit., pp. 15-16. 16. Scrutiny of Bills Committee, Scrutiny digest, 1, 2017, op. cit., pp. 75-79. 17. Law Council of Australia (LCA), Submission to Legal and Constitutional Affairs Legislation Committee, Inquiry into the Crimes Legislation Amendment (International Crime Cooperation and Other Measures) Bill 2016, 18 January 2016, pp. 7-8.

18. Commonwealth Director of Public Prosecutions (CDPP), Submission to Legal and Constitutional Affairs Legislation Committee, Inquiry into the Crimes Legislation Amendment (International Crime Cooperation and Other Measures) Bill 2016, submission no. 4, 13 January 2017, p. 2. 19. LCA, Submission, op.cit., p. 8. 20. CDPP, Submission, op. cit., pp. 2-4; Anti-Slavery Australia, Submission to Legal and Constitutional Affairs Legislation Committee, Inquiry into

the Crimes Legislation Amendment (International Crime Cooperation and Other Measures) Bill 2016, submission no. 2; LCA, Submission, op. cit., pp. 8-10; Justice and International Unit, Synod of Victoria and Tasmania, Uniting Church in Australia (Uniting Church), Submission to Legal and Constitutional Affairs Legislation Committee, Inquiry into the Crimes Legislation Amendment (International Crime Cooperation and Other Measures) Bill 2016, submission no. 3, 11 January 2017, pp. 2-3. 21. CDPP, Submission, op. cit., p. 2. 22. Ibid.

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without recourse to sworn evidence from a child. In other cases the child (for example, an infant) is not of an age where evidence could be given, or is overseas or is not otherwise available to give evidence. 23

Anti-Slavery Australia noted that many victims of human trafficking and slavery-related offences fear that their safety will be compromised by assisting with investigation and prosecution of those offences, and that this fear can be a significant impediment to successful prosecutions (due to the importance of victim testimony). It considered the amendments ‘will enable witnesses to give their best possible testimony, thereby strengthening prosecutions and promoting the access to justice’ for victims of such offences.24

Slavery-like offences and evidence relevant to slavery-like and trafficking in persons offences (Schedule 6) The CDPP, Anti-Slavery Australia, the LCA and the Uniting Church support the proposed amendments relating to the offence of debt bondage. They also support those that will expand the circumstances that can be taken into account by a trier of fact in determining whether elements of slavery-like and trafficking in persons offences are proven, and that will enable those factors to be considered in determining additional elements of slavery-like offences.25

Amendments to the AFP Act (Schedule 8) The Australian Federal Police Association (AFPA) stated that it had no concerns with the proposed amendments relating to drug and alcohol testing. However, it strongly opposes the proposed extension of the delay that the Commissioner of the AFP may impose on an AFP employee’s nominated date of resignation (from the current 90 days to a proposed 180 days).26 Section 30A of the AFP Act is intended to prevent AFP employees from resigning in anticipation of being terminated for a conduct or corruption issue by allowing the Commissioner to substitute a later date from which a resignation will take effect in certain circumstances. However, the AFPA considers there is no practical justification for the provision (which it also opposed when it was first introduced in 2006).27 AFP’s submission to the Legal and Constitutional Affairs Legislation Committee expands on the justification included in the Explanatory Memorandum and responding to the AFPA’s comments.28 Further detail is provided in the analysis of Schedule 8 beginning on page 19 of this Digest.

Giving the Australian Charities and Not-for-profits Commission access to AUSTRAC information (Schedule 9) The Uniting Church supports the proposed amendments to provide the Australian Charities and Not-for-profits Commission (ACNC) with access to AUSTRAC’s financial intelligence.29 It considered that this amendment would improve the ACNC’s ability to conduct thorough due diligence before registering charities and not-for-profit organisations, and to monitor registered organisations to ensure they are not being misused to launder criminal proceeds or finance terrorism.30

Financial implications The Explanatory Memorandum states that the cost of implementing the changes to the AusCheck Act in Schedule 11 will be cost recovered, so will have ‘negligible financial implications’, and that the remaining

23. Ibid.

24. Anti-Slavery Australia, Submission,op. cit. 25. Ibid.; CDPP, Submission, op. cit., pp. 4-5; LCA, Submission, op. cit., pp. 10-11; Uniting Church, Submission, op. cit., p. 3. 26. Australian Federal Police Association (AFPA), Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Crimes Legislation Amendment (International Crime Cooperation and Other Measures) Bill 2016, submission no. 1, 13 December 2016.

27. Ibid.

28. Australian Federal Police (AFP), Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Crimes Legislation Amendment (International Crime Cooperation and Other Measures) Bill 2016, 13 December 2017. 29. The ACNC is the national regulator of charities and not-for-profit organisations: Australian Charities and Not-for-profits Commission (ACNC), ‘ACNC’s role’, ACNC website; Australian Charities and Not-for-profits Commission Act 2012, Chapter 5. AUSTRAC has a dual role as national

anti-money laundering and counter-terrorism financing regulator and Australia’s Financial Intelligence Unit: Australian Transaction Reports and Analysis Centre (AUSTRAC), ‘About AUSTRAC’, AUSTRAC website; Anti-Money Laundering and Counter-Terrorism Financing Act 2006, Part 16. 30. Uniting Church, Submission, op. cit., p. 3.

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Schedules will have little or no financial impact on Government revenue.31 AusCheck operates on a cost recovery basis, so this does not represent any change to existing arrangements.32

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.33

Parliamentary Joint Committee on Human Rights In its examination of the Bill, the Parliamentary Joint Committee on Human Rights raised a concern about the new obligation in Schedule 3 for a magistrate, judge or court to commit a person to prison to await surrender under an extradition surrender or temporary surrender warrant.34 The Committee noted that this requirement will engage and limit the right to liberty, further questioning if it is proportionate to the objective of preventing suspects from absconding.35 The Government noted in its Statement of Compatibility of Human Rights that:

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

36

The Committee has sought the Minister’s advice as to why these amendments are framed as an obligation on the court rather than a discretion and how the existing bail process under the Act fits with the amendments proposed by the Bill.37

Key issues and provisions Assistance to international courts and tribunals (Schedule 1) The ICC Act implements Australia’s obligations under the Rome Statute, the treaty by which the International Criminal Court (the ICC) was established.38 The ICC Act outlines procedures to enable Australia to assist the ICC in its administration of justice. Importantly to note, subsection 3(2) of the Act explicitly states that the Act does not affect the primacy of Australia’s right to exercise its jurisdiction with respect to crimes within the jurisdiction of the ICC.

The Rome Statute requires, under Article 88, that States Parties must ensure that there are procedures available under their national law for many forms of cooperation, including assistance which is not prohibited by the law of the requested State, with a view to facilitating the investigation and prosecution of crimes within the jurisdiction of the ICC.39 This Bill will improve Australia’s procedures for providing assistance to the ICC and International War Crimes Tribunals (IWCTs) for investigating and prosecuting offences within their jurisdiction by aligning the procedures with those relating to providing assistance to foreign countries under the MA Act. The Bill facilitates the provision of documents and records to the ICC and IWCTs which will also include stored communications and prospective telecommunications data.

31. Explanatory Memorandum, Crimes Legislation Amendment (International Crime Cooperation and Other Measures Bill 2016, p. 10. 32. Attorney-General’s Department (AGD), ‘Fees’ (AusCheck), AGD website. 33. The Statement of Compatibility with Human Rights can be found at page 12 of the Explanatory Memorandum to the Bill. 34. Parliamentary Joint Committee on Human Rights (PJCHR), Report, 2, 2017, 21 March 2017. 35. Ibid., p. 24. 36. Explanatory Memorandum, p. 24. 37. Ibid., p. 9. 38. For an overview of Australia’s implementation of the Rome Statute, see G Triggs, ‘Implementation of the Rome Statute for the International

Criminal Court: a quiet revolution in Australian law’, Sydney Law Review, 25(4), 2003, p. 507. 39. Rome Statute of the International Criminal Court 1998, opened for signature 17 July 1998, [2002] ATS 15 (entered into force 1 July 2002).

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In its submission to the Senate Legal and Constitutional Affairs Committee’s inquiry into the Bill, the LCA flagged a concern about the need to implement recommendations made by the Joint Standing Committee of Foreign Affairs, Defence and Trade in its ‘A World Without the Death Penalty’ Report before concluding that ‘generally providing information to the ICC or IWCTs is not a problem, in itself, because those bodies are not empowered to order the death penalty.’40 The LCA supports the amendments proposed by Schedule 1.

There are no apparent concerns with the amendments to Schedule 1.

Schedule 1 contains 9 Parts to facilitate the provision of Australian assistance to the ICC and the IWCTs for investigating and prosecuting offences within their jurisdiction.

The Parts will:

• allow the process of providing lawfully obtained material to the ICC or an IWCT to be authorised by the Attorney-General rather than being brought before a magistrate (Part 1)

• clarify the roles of judicial officers under the ICC Act and IWCT Act in proceedings to require the production of documents or other articles (Part 2)

• enable the ICC and IWCTs to request and receive stored communications subject to the Attorney-General’s authorisation (Part 3)

• allow the AFP to provide historical telecommunications data to the ICC and the IWCT’s on an agency-to-agency basis (Part 4)

• enable the collection and provision of prospective telecommunications data for international law enforcement purposes (Part 5)

• enable Australia to provide surveillance assistance to the ICC and IWCTs, in accordance with the Attorney-General’s authorisation and the usual domestic processes for obtaining warrants (Part 6)

• enable a member or special member of the AFP, or a state or territory police officer, to carry out a forensic procedure on a suspect, at the request of the ICC or an IWCT. The Part will also clarify procedures for obtaining forensic material from a volunteer on an informal basis on behalf of a request by a person investigating an offence within the jurisdiction of the ICC or an IWCT (Part 7)

• improve the operation of the proceeds of crime provisions in the ICC Act and the IWCT Act, including amendments to the authorisation process and ensuring that investigative and restraint tools are available for investigation or prosecution at the ICC or an IWCT (Part 8)

• enable carriers and carriage service providers to recover costs, under the cost recovery regime in the Telecommunications Act 1997, that are incurred in processing requests relating to investigations and prosecution of ICC or IWCT offences (Part 9).

Authorising the provision of lawfully obtained material to the ICC or an IWCT The key amendment in Part 1 is Item 2, which will insert new Division 5A into the ICC Act. The changes will align the process with that which currently applies for foreign countries under section 13A of the MA Act. Proposed section 69A will allow the Attorney-General to authorise, in writing, the provision of material to the ICC following a request by the ICC (proposed paragraph 69A(1)(a)).41

The Attorney-General must be satisfied that:

(i) the request relates to an investigation being conducted by the Prosecutor or a proceeding before the ICC; and

(ii) if the material is or includes lawfully intercepted information or interception warrant information - the investigation is into, or the proceeding relates to, an offence punishable by a maximum penalty of imprisonment for 7 years or more, or imprisonment for life; and

40. LCA, Submission,op. cit., p. 7. For information on the Joint Standing Committee on Foreign Affairs, Defence and Trade’s Inquiry into Australia’s Advocacy for the Abolition of the Death Penalty. 41. Explanatory Memorandum, p. 43. The Explanatory Memorandum notes that the authorisation will not be a legislative instrument. See: Legislation (Exemptions and Other Matters) Regulation 2015; section 6, table item 4, paragraph (a).

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(iii) the material was lawfully obtained in Australia 42 by, and is lawfully in the possession of, a law enforcement agency.

Item 4 will insert a similar amendment to the IWCT Act, under new Division 1AA and proposed section 25A, again bringing the current process in line with that under section 13A of the Mutual Assistance Act.

Items 8 and 9 will facilitate the chief officer of an agency to communicate lawfully intercepted information or interception warrant information to the ICC or an IWCT as an exception under section 68 in the Telecommunications (Interception and Access) Act 1979 Cth (TIA Act) to the use of interception warrant information, which is broadly prohibited by section 63 of the Act.43 Item 9 will repeal section 68A and substitute new section 68A to describe the circumstances in which information communicated to the Secretary of the Department in accordance with existing paragraph 68(1) and proposed paragraphs 68(1a) and 68 (1b) will be able to be communicated to another person, including the foreign country concerned, the ICC or an IWCT. The Explanatory Memorandum clarifies that as:

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

44

Item 10 amends the reporting requirements currently under section 102 of the TIA Act to extend the information to be included in the report to cover the provision of information pursuant to an ICC or IWCT request. New section 102B requires the Minister’s report to be tabled in Parliament to ensure:

there is transparency and accountability as to how often information lawfully obtained for a domestic purpose, is provided to a foreign country, the ICC or IWCT for the purpose of foreign or international law enforcement. 45

Items 1, 3, and 7 will make relevant definitional changes to the following terms, and are consistent with those used in other Acts including the MA Act and SD Act:

• interception warrant information;

• law enforcement agency;

• law enforcement officer;

• lawfully intercepted information;

• lawfully obtained in Australia.

Additionally, item 5 will insert definitions of the International Criminal Court46 and War Crimes Tribunal47 into section 6 of the SD Act. These terms are defined by reference to their meaning in the ICC Act and the IWCT Act.

Producing documents or other articles The amendments in Part 2 are procedural. Under both the ICC Act and the IWCT Act, where there is a requirement to produce documents or other articles, the amendments will clarify that the magistrate who requires the production of documents or other articles does not need to be the same magistrate to whom the documents or other articles are produced (items 12-15 and items 17-20).

42. Material lawfully obtained in Australia is defined in proposed subsection 69A(3) and includes: (a) material obtained from individuals or entities by consent; and (b) material obtained by warrant, or the exercise of a coercive power by a court, in Australia for the purposes of a domestic investigation or prosecution.

43. Section 63 of the TIA Act. 44. Explanatory Memorandum, p. 49. 45 Ibid.

46. The ICC meaning the International Criminal Court established under the Rome Statute, and will include any of the organs of that Court within the meaning of the Rome Statute. 47. The War Crimes Tribunal, meaning (a) the Former Yugoslavia Tribunal; or (b) the Rwanda Tribunal; or (c) the International Residual Mechanism for Criminal Tribunals.

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Telecommunications related amendments (Schedule 1 cont.)

Covert access to stored communications Part 3 will amend the ICC Act, the IWCT Act and the TIA Act to allow the ICC and the IWCTs to request and receive stored communications, subject to the Attorney-General’s authorisation. The Explanatory Memorandum confirms that ‘this includes enabling the ICC and IWCTs to request preservation of those communications.’48 Item 24 will insert a new definition of ‘stored communication’ into the ICC Act by reference to the definition of that term in section 5 of the TIA Act.

Historical telecommunications data Historical telecommunications data can currently be provided on an agency to agency basis between the Australian Federal Police and a foreign law enforcement agency under the TIA Act. The Explanatory Memorandum states that because the ICC and the IWCTs do not come within the definition of a ’foreign law enforcement agency’, there are delays and inefficiencies when dealing with the ICC and the IWCTS.49 The data can currently be sought through mutual assistance procedures. The amendment in Part 4 will facilitate the AFP to provide historical telecommunications data to the ICC and the IWCTs on an agency-to-agency basis. Item 61 will expand the current definition of ‘foreign law enforcement agency’ at subsection 5(1) of the TIA Act to include, in addition to the existing authorities, any authority or person responsible to the ICC for investigating or prosecuting a ’crime within the jurisdiction of the ICC’ or a ‘War Crimes Tribunal offence’. Items 62 to 64 make amendments to extend the application of section 180A (allowing the AFP to authorise the disclosure of historical telecommunications data) to the ICC or an IWCT.

Prospective telecommunications data Similar to Part 3, but in relation to prospective telecommunications data, the amendments in Part 5 will facilitate the authorisation by the Attorney-General for the disclosure of prospective telecommunications data if the ICC has requested the disclosure, and the Attorney-General is satisfied that an investigation is being conducted by the Prosecutor of a proceeding that is before the ICC (proposed paragraph 78B(1)(c)). The IWCT Act is similarly amended by item 74, to insert a new section 34B. The sections are consistent with the processes applying to providing assistance in this form to foreign countries under section 15D of the MA Act.

Obligations of carriage service providers et cetera, to provide assistance, and recovery of costs for providing assistance Amendments in Part 9 will allow carriers and carriage service provides to recover costs, as prescribed in the Telecommunications Act 1997 (Cth) incurred in processing requests relating to matters under the ICC or IWCT Acts.

Mutual assistance and proceeds of crime for foreign serious offences (Schedule 2)

Search warrants Schedule 2 inserts amendments to the MA Act relating to the proceeds of crime investigative tools for use in foreign context. These amendments will make the proceeds of crime search warrants in the MA Act consistent with those in the POC Act to which they refer. Definitions of benefit, evidential material, tainted property and responsible enforcement agency head will be inserted by items 1, 2 and 5 to bring them into line with the POC Act.

Item 7 will repeal existing subsection 34ZB(3) and substitute proposed subsection 34ZB(3) using the new definitions identified in the earlier items in this Schedule. The amendments ‘will ensure that the tainted property and evidential material covered by this Subdivision is appropriate to the foreign context of a mutual assistance request.’50 There are provisions in both the POC Act and the MA Act that address dealing with things seized pursuant to a search warrant executed on behalf of a foreign country in response to a mutual assistance request. These amendments will bring consistency and clarification between the two Acts.

48 Explanatory Memorandum, op. cit., p. 10. 49 Ibid., p. 67. 50. Ibid., p. 153.

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Item 8 will insert new section 34ZC in the MA Act to outline what a POC Act search warrant must state, in order for a property or thing to be seized. These changes are necessary to be made to the MA Act rather than to the POC Act because the action is generally taken in the foreign country, not under the POC Act. The new section 34ZC replaces the phrase ‘instrument of a foreign serious offence’ with the term tainted property. New section 34ZCA outlines that the authorised officer or person assisting believes on reasonable grounds that:

(a) the property or thing

(i) is tainted property of the foreign serious offences that is not of a kind specified in the warrant; or

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

(iii) is tainted property of, or evidential material relating to, another foreign serious offence in relation to which a POCA search warrant is in force; or

(iv) is relevant to a criminal proceeding in respect of the foreign serious offence in the foreign country that requested the assistance referred to in section 34ZG in relation to that offence; or

(v) will afford evidence as to the commission of an Australian criminal offence; and

(b) the seizure of the property or thing is necessary to prevent its concealment, loss of destruction or its use in committing an offence.

These amendments will assist investigations by removing any doubt as to what can be seized by search warrant and bringing consistency to the mirror provisions in the POC Act.

Item 22 will repeal and replace section 34ZF of the MA Act to deal with evidential material and certain property or things seized under a POC Act search warrant by a seizing officer. The substantive effect of the provision remains the same, including that new subsection 34ZF(2) will provide that the seizing officer may retain the seized item for a period not exceeding one month pending a written direction from the Attorney-General as to how to deal with the seized item.

Production of documents or other articles Part 2 of Schedule 2 makes some minor amendments to clarify the procedural roles of judicial officers under the MA Act in proceedings requiring the production of documents or other articles. This is to give certainty to allow a judicial officer to require the production of documents or other articles and that those items can be produced for a different judicial officer.

The LCA was supportive of the amendments proposed by Schedule 2 but indicated a number of unrelated concerns with the POC Act.51

Execution of surrender and temporary surrender warrants under the Extradition Act 1988 (Cth) (Schedule 3) Since the Act’s commencement, there were not extensive amendments to the Extradition Act until 2012 following a broad review of both the MA Act and the Extradition Act.

The Act allows for surrender warrants and temporary surrender warrants to be issued by the Attorney-General under existing sections 23 and 24. For a temporary surrender warrant to be issued, a number of criteria need to be met, including that the Attorney-General is satisfied that it is in the interests of the administration of justice that a warrant be issued (subsection 24(1). The amendments proposed in this Bill address an issue of clarity around committing a person to prison to await surrender, when subject of a surrender or temporary surrender warrant. New subsection 26(2A) will provide that, where the Attorney-General issues a surrender or temporary surrender warrant in relation to a person who has been released on bail, and that person is then brought before a magistrate, or similar eligible judicial officer, the judicial officer must order the discharge of the recognisances on which bail was granted and commit the person to prison to await surrender.

51 LCA,Submission, op.cit., p. 8.

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Similarly, because the Extradition Act separately provides for a person being extradited from Australia to New Zealand, the new subsection 35(7) will provide that where the Federal Court, Full Federal Court or High Court makes or confirms an order that the person should be surrendered to New Zealand, that court must order that the person is committed to prison pending the execution of the surrender warrant.

Foreign Evidence amendments (Schedule 4) A technical amendment is proposed to the Foreign Evidence Act 1994 (FE Act) to ensure that Part 3 of the FE Act applies to proceedings conducted in state or territory courts in relation to the external territories and the Jervis Bay Territory. The amendments in items 1 and 2 in Schedule 4 amend the FE Act to ensure foreign evidence can be appropriately certified and to extend the application of foreign evidence rules to proceedings in the external territories, including Jervis Bay.

Section 26 of the FE Act is to be repealed and replaced with a provision that accords with modern drafting practices and for consistency amongst similar provisions, including proposed new section 27AA and proposed new section 35. The changes are necessary to address the revisions to the delegation of the Attorney-General’s powers under section 17 of the Law Officers Act 1964 (Cth). Delegations would still be possible for these certificates; however their validity now arises from a different legislative instrument.

The intention of the section is to provide:

that a certificate is prima facie evidence of the matters stated in the certificate. This is appropriate given the certificate is certifying a routine administrative matter, namely that the specified document or thing was received by the Attorney-General (or his or her delegate) from a foreign country, as a result of a mutual assistance request made to the foreign country. This constitutes confirmation of a procedural matter that goes to an administrative process and also protects the public interest by not requiring confidential correspondence in criminal matters between foreign governments to be tendered in court.

52

Part 3A of the FE Act provides for the use of foreign material and foreign government material in terrorism-related proceedings. Similar to the amendments made by Item 3, proposed section 27AA in item 4 will provide a consistent process for certifying material received from a foreign country in response to a mutual assistance request in terrorism-related proceedings.

Similarly item 5 replaces existing section 35, addressing the certificates provided under the FE Act by the Chairperson and Deputy Chairperson of the Australian Securities and Investments Commission.

The LCA indicated in its submission to the Senate Committee that it does not consider these amendments to be problematic.53

Protecting vulnerable persons (Schedule 5) Part IAD of the Crimes Act includes several protections for vulnerable people that apply to proceedings for certain Commonwealth offences, such as human trafficking and child sex offences (and related proceedings).

Section 15YR makes it an offence for a person to publish any matter, without the leave of the court, where the matter identifies, or is likely to identify, a vulnerable person in relation to a proceeding as a child witness or vulnerable adult complainant (where the vulnerable person is not a defendant).54 Items 2 and 3 of Schedule 5 will amend subsections 15YR(1) and (1A) respectively to extend the offence to also cover publication of information identifying, or likely to identify, a child complainant. This will correct an anomaly apparently inadvertently introduced by amendments to section 15YR in 2013 and since identified by the CDPP.55

Item 4 of Schedule 5 provides that this amendment will apply in all proceedings instituted after commencement, regardless of when the offence to which the proceedings relate was committed or alleged to have been

52. Explanatory Memorandum, p. 165. 53. LCA, Submission, op. cit., p. 8. 54. Sections 15Y (proceedings to which the Part IAD applies), 15YA (definitions) and 15YAA (vulnerable adult complainants) are relevant to the scope of the offence.

55. CDPP, Submission, op. cit., p. 2.

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committed.56 As noted earlier in this Digest, the Scrutiny of Bills Committee sought the Minister’s advice on whether this imposed retrospective criminal liability. The offence in section 15YR applies specifically to the unauthorised publication of the identity of a witness or complainant in the course of proceedings to which Part 1AD applies, and the existence of such proceedings is an element of the offence.57 Accordingly, the amendments do not appear to impose retrospective criminal liability in respect of unauthorised publications because the relevant offence provision (section 15YR) applies only to acts done after the initiation of proceedings for the substantive offences specified in section 15Y (or related proceedings) that attract the procedural protections established under Part 1AD.

Importantly, the Bill does not propose to extend the scope of the substantive offences in section 15Y. The phrase in item 4, ‘regardless of when the offences committed, or alleged to have been committed, occurred’ is directed to the time of the commission, or alleged commission, of the substantive offences listed in section 15Y, and not to the time of the conduct constituting an unauthorised publication offence, or an alleged offence, against section 15YR.

The Minister’s response to the Scrutiny of Bills Committee stated that item 4 of Schedule 5 does not impose retrospective criminal liability. The Committee was satisfied with the Minister’s response but requested that the further information it contained be included in the Explanatory Memorandum.58

Item 6 of Schedule 5 will amend the Crimes Legislation (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Act 2013 (the Vulnerable Witness Act) so that amendments to vulnerable witness protections in Part 1 of Schedule 2 to that Act will apply in the same way for all proceedings instituted after the commencement of Schedule 5 of the Bill, regardless of when an offence to which the proceedings relate was committed or alleged to have been committed. They would otherwise only have applied to proceedings for an offence that was committed or alleged to have been committed on or after 29 June 2013.59 As identified in the Explanatory Memorandum, this is intended to avoid a complex and potentially inequitable system under which different protections apply on the basis of when an offence was committed instead of when proceedings commence.60 However, the CDPP noted in its submission that this amendment will not retrospectively apply those changes to cases involving offences alleged to have been committed before 29 June 2013 for which proceedings have already commenced.61 The CDPP did not indicate how many such proceedings have been initiated that remain on foot. This is a matter on which members of the Parliament may wish to seek further information from the Government in order to determine whether further application and transitional provisions might be thought desirable to extend the Bill’s protections to those cases.

Slavery-like offences and relevant evidence (Schedule 6) Division 270 of the Criminal Code contains offences for slavery (Subdivision B); and offences relating to servitude, forced labour, deceptive recruiting for labour or services, and forced marriage (Subdivision C, referred to collectively as ‘slavery-like’ offences or conditions). Slavery is defined in section 270.1 as ‘the condition of a person over whom any or all of the powers attaching to the right of ownership are exercised, including where such a condition results from a debt or contract made by the person’.62

Division 271 of the Criminal Code contains offences for trafficking persons within, into or out of Australia (Subdivision B); organ trafficking (Subdivision BA); harbouring a victim, where doing so assists the commission of a trafficking, slavery or slavery-like offence (Subdivision BB) and debt bondage (Subdivision C).

56. For the purposes of Part IAD of the Crimes Act, a proceeding means a proceeding to which one or more of subsections 15Y(1) (proceedings involving certain offences against children), (2) (proceedings involving adult complainants in relation to certain offences) and (3) (special witnesses involved in proceedings for any Commonwealth offence) apply: Crimes Act, section 15YA.

57. See Crimes Act section 15Y (proceedings to which Part 1AD applies), and paragraph 15YR(c) and subsection 15YR(1A) (elements of the unauthorised publication offence). 58. Scrutiny of Bills Committee, Scrutiny digest, 1, 2017, op. cit., pp. 74-75. 59. Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Act 2013, section 2

(commencement) and item 93 of Schedule 2 (application of amendments in that Schedule). 60. Explanatory Memorandum, pp. 28, 167. 61. CDPP, Submission, op. cit., p. 4. 62. This reflects the international definition of slavery found in the Slavery Convention (1926), to which Australia is a party: International

Convention to Suppress the Slave Trade and Slavery, done at Geneva on 25 September 1926, [1927], ATS 11 (entered into force for Australia 18 June 1927), art. 1(1).

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Each Division also includes provisions setting out matters relevant to all of the offences in those divisions, including evidence of matters to which the trier of fact (namely, the jury, or the judge in a judge-alone trial) may have regard in determining whether particular elements of the offences are established.

The main amendments made by Part 1 of Schedule 6 will be expanding the definition of debt bondage and moving the offence of debt bondage from Division 271 to Division 270, as it aligns more closely with slavery-like offences than trafficking offences.

The main amendments made by Part 2 of Schedule 6 will be expanding the list of matters that may be considered in determining whether an alleged victim of a slavery-like or trafficking offence was coerced, threatened or deceived, and providing for the same matters to be considered in determining certain other elements of those offences.

The explanatory information accompanying the Bill does not indicate a particular trigger for the amendments in Schedule 6 beyond that for the Bill as a whole.63 However, the changes may constitute a response to stakeholder suggestions or issues identified in the course of investigating or prosecuting relevant offences.64 While the amendments were not specifically foreshadowed in the Government’s National Action Plan to Combat Human Trafficking and Slavery 2015-19, the Plan does commit the Government to ongoing monitoring of the effectiveness of the legal and policy framework.65

Debt bondage and slavery-like offences Currently, offences for slavery and slavery-like conditions are set out under Division 270 of the Criminal Code and offences for trafficking in persons and debt bondage are set out under Division 271. Part 1 of Schedule 6 of the Bill would amend the definition of debt bondage and transfer the offence from Division 271 to Division 270 of the Criminal Code. The Explanatory Memorandum indicates that because debt bondage does not require an element of physical movement of the victim, the Government considers it is more closely aligned with slavery-like offences than trafficking offences.66 It is also more consistent with the relevant international instruments, and the definition of slavery in the Criminal Code, which reflects those instruments.67

Item 6 of Schedule 6 will insert a revised definition of ‘debt bondage’ into section 270.1A of the Criminal Code, which contains definitions for the purposes of that Division. Debt bondage will be defined as follows:

debt bondage is the condition of a person (the first person) if:

(a) the condition arises from a pledge:

(i) by the first person of the personal services of the first person; or

(ii) by another person of the personal services of the first person, and the first person is under the other person’s control; or

(iii) by the first person of the personal services of another person who is under the first person’s control; and

(b) the pledge is made as security for a debt owed, or claimed to be owed, (including any debt incurred, or claimed to be incurred, after the pledge is given) by the person making the pledge; and

63. As noted in the Background section of this Digest, the Minister for Justice stated that the Bill responds to issues identified through ongoing, internal review of the legislative framework for criminal justice and law enforcement. Keenan, ‘Second reading speech’, op. cit., pp. 4072- 4075.

64. The Government has an ongoing dialogue with a range of stakeholders, including through its National Roundtable on Human Trafficking and Slavery and related senior officials meetings. Information on the National Roundtable and member organisations is set out in Interdepartmental Committee on Human Trafficking and Slavery, Trafficking in persons: the Australian Government response 1 July 2015- 30 June 2016, Australian Government, 2016, pp. 49-68.

65. AGD, National action plan to combat human trafficking and slavery 2015-19, AGD, Canberra, 2014, p. 22. 66. Explanatory Memorandum, op. cit., p. 169. 67. Debt bondage is specifically prohibited under the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, to which Australia is a party: Supplementary Convention on the Abolition of Slavery, the Slave Trade, and

Institutions and Practices Similar to Slavery, done at Geneva on 7 September 1956, [1958] ATS 3 (entered into force for Australia 6 January 1958), art. 1(a). See also International Convention to Suppress the Slave Trade and Slavery, op. cit., and Criminal Code, section 270.1.

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(c) any of the following apply:

(i) the debt owed or claimed to be owed is manifestly excessive;

(ii) the reasonable value of those services is not applied toward the liquidation of the debt or purported debt;

(iii) the length and nature of those services are not respectively limited and defined.

[Underlined emphasis added]

The definition is largely equivalent to the current definition included in the Dictionary to the Criminal Code (which will be repealed by item 19 of Schedule 6 and replaced by a cross-reference to the revised definition), except for proposed paragraph (a)(ii), which is not captured by the existing definition. The amendment will address an inconsistency and gap in the current definition, under which a person who pledges the services of another person under his or her control is considered to be in a condition of debt bondage, but where the person whose services are pledged is not recognised as being in a condition of debt bondage.

Items 9 and 12 of Schedule 6 will move the offence of debt bondage from Division 271 (section 271.8) to Division 270 (proposed section 270.7C) of the Criminal Code. The elements of the offence and penalties will remain the same, but the scope of the offence will be affected by the revised definition of debt bondage. Item 12 also repeals the separate aggravated offence of debt bondage currently in section 271.9. This will no longer be required, as section 270.8 specifies aggravating circumstances (identical to those that that apply currently apply under section 271.9) that apply to all of the slavery-like offences. Item 7 will add offences against proposed section 270.7C (debt bondage) to the definition of ‘slavery-like offence’ in section 270.1A.

Items 10, 11, 13, 14, 15 and 17 will make consequential amendments to Division 271 to reflect the moving of the debt bondage offence from that Division to Division 270.

Items 5, 8 and 16 will replace references to ‘slavery-like conditions’ with references to ‘slavery-like offences’ so that consistent terminology is used throughout Chapter 8 of the Criminal Code.

Items 1-4 of Schedule 6 will make consequential amendments to the Crimes Act, and items 20-22 will make consequential amendments to the TIA Act, for consistency with the above amendments to the Criminal Code.

Evidence relevant to slavery-like offences Section 270.10 sets out matters to which a trier of fact may have regard in determining whether an alleged victim of a slavery-like offence has been coerced, threatened or deceived. Currently, these matters are the economic relationship between the alleged victim and alleged offender; the terms of any contract or agreement between the alleged victim and alleged offender; and the personal circumstances of the alleged victim, including but not limited to certain listed factors. The amendments in items 23-26 of Schedule 6 will make two key changes to section 270.10.

Items 24 and 25 will amend subsection 270.10(2) to expand the list of matters that may be considered in determining whether an alleged victim of a slavery-like offence has been coerced, threatened or deceived. A trier of fact will be able to consider the economic relationship, and the terms of any contract or agreement, not just between the alleged victim and alleged offender, but between ‘the alleged victim, the alleged offender or a family member of the alleged victim or alleged offender, and any other person’. The trier of fact may also consider, in the context of an alleged victim’s personal circumstances, the extent of his or her social and physical dependence not just on the offender, but also on any other person. These changes will better recognise the fact that slavery-like offences may involve individuals beyond just the alleged victim and alleged offender. For example, an agreement between a family member of the alleged victim and a family member of the alleged offender might be relevant to an assessment of whether someone was coerced into a forced marriage.

Item 23 will amend subsection 270.10(1) so that the matters listed in subsection 270.10(2) may also be considered in determining whether other elements of particular slavery-like offences are proven, specifically:

• for a servitude offence, whether the alleged victim was significantly deprived of personal freedom

• for a forced marriage offence, whether the alleged victim was incapable of understanding the nature and effect of a marriage ceremony and

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• for a debt bondage offence, whether another person has caused the alleged victim to enter into debt bondage (this is not new, but rather has been moved across from Division 271 as a result of separate changes outlined above).

Item 26 will insert a definition of family member for the purposes of section 270.10 (proposed subsections 270.10(4) and (5)).

Evidence relevant to trafficking in persons offences Section 271.11A sets out matters to which a trier of fact may have regard in determining whether an alleged victim of a trafficking in persons offence, or an offence of harbouring a victim, has been coerced, threatened or deceived; and whether an alleged victim of an organ trafficking offence, or that person’s guardian, consented to the removal of an organ of the alleged victim. It is broadly equivalent to section 270.10, described above.

Items 28 and 29 will make amendments to subsection 271.11A(2) equivalent to those made by items 24 and 25 to subsection 270.10(2) described above. These changes will better recognise the fact that trafficking in persons and organ trafficking offences may involve individuals beyond just the alleged victim and alleged offender. For example, the economic relationship between an alleged victim and another person might be relevant to determining whether the alleged offender used threats in the course of a trafficking offence.

Item 30 will insert a definition of family member for the purposes of section 270.11A (proposed subsections 27.11A(5) and (6)).

Item 27 is a technical amendment to remove a reference to Subdivision BB (which contains offences for harbouring a victim) from subsection 271.11A(1). No element of those offences concerns whether an alleged victim has been coerced, threatened or deceived, so section 271.11A is not relevant to the offences.

Reporting on investigations and proceedings for offences against the War Crimes Act 1945 (Cth) (Schedule 7) Existing section 21 of the War Crimes Act 1945 (Cth) requires that an annual report be prepared, with prescribed content that is to be brought before each House of Parliament within 15 sitting days of that House after the report is prepared. Item 1 of Schedule 7 will repeal existing section 21 and substitute a new provision. The new provision will remove the requirement for the report to be prepared annually and will require the Attorney-General to cause a report to be prepared as soon as practicable after the end of the relevant financial year if an investigation of a suspected offence against the Act, or a proceeding for an alleged offence against the Act, is started or carried on at any time during that financial year. The Attorney-General must cause a copy of the report to be tabled in each House of Parliament within 15 sitting days after the report is prepared. Item 2 of Schedule 7 provides that new section 21 will apply to the financial year commencing 1 July 2016.

Amendments to the Australian Federal Police Act (Schedule 8) The AFP Act provides a statutory basis for the AFP. Amongst other things, it sets out the functions of the AFP, provides for the appointment of the Commissioner and Deputy Commissioners and engagement of employees, provides for certain conditions of employment and sets out a professional standards framework.

Schedule 8 contains amendments to the AFP’s alcohol and drug testing regime to extend it to all AFP appointees and allow related regulations to make provision for a matter by applying, adopting or incorporating any matter contained in an Australian standard. It will also increase the delay that the Commissioner of the AFP may impose in particular circumstances on an AFP employee’s nominated date of resignation.

Alcohol and drug testing (Part 1 of Schedule 8) AFP appointees are prohibited from using illicit drugs and abusing pharmaceutical products. Their blood alcohol concentration whilst on duty must not exceed 0.02, and consumption of alcohol while on duty is only permitted in the context of official hospitality or special occasions formally sanctioned by a member of the AFP senior executive.68

68. Australian Federal Police (AFP), AFP national guideline on prohibited drugs, pharmaceutical drugs and alcohol, AFP, n.d.

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Division 8 of Part IV of the AFP Act provides the framework for the AFP’s alcohol and drug testing program. It is supplemented by further details set out in regulations made under section 40P of the AFP Act and legislative instruments made under section 40R.

Currently, under section 40LA, an ‘AFP appointee’ may be required to undergo an alcohol screening test if he or she is on duty and an authorised manager reasonably suspects he or she is under the influence of alcohol.69 However, sections 40M (which allows for random alcohol and drug testing) and 40N (which allows for testing after certain incidents, such as the death or injury of a person caused by the use of force by an on-duty officer) apply to an ‘AFP employee’ and to a ‘special member’, but not other types of AFP appointee.70 Part 1 of Schedule 8 will amend sections 40LA, 40M, 40N and 40Q (which relates to admissibility of test results in legal proceedings) so that the alcohol and drug testing regime applies consistently across all types of AFP appointee, by replacing references to AFP employees and special members with references to AFP appointees.71 This will mean that the following additional types of AFP appointee can also be required to undergo a drug or alcohol test under section 40M or 40N:

• a Deputy Commissioner

• a special protective service officer

• a person engaged under section 69A of the AFP Act to perform duties overseas as an employee of the AFP

• a consultant or independent contractor engaged to perform services for the AFP or determined by the Commissioner to be an AFP appointee and

• a person who is assisting the AFP in the performance of its functions under secondment.72

The Explanatory Memorandum indicates that currently, AFP appointees who are not AFP employees or special members are ‘generally subject to alcohol and drug testing under contract’.73

Section 40P allows regulations made under the AFP Act to make provision, not inconsistent with sections 40LA, 40M and 40N, in relation to various aspects of the alcohol and drug testing program. These include, for example, the provision of blood and other samples; the conduct of alcohol screening tests, breath tests, blood tests or prohibited drug tests; devices used in such testing; and the procedure for handling and analysing blood and other samples taken for such testing. Item 15 of Schedule 8 will insert proposed subsection 40P(2) to provide that despite subsection 14(2) of the Legislation Act 2003, the regulations made for the purposes of the alcohol and drug testing regime may make provision for a matter by applying, adopting or incorporating any matter contained in a standard published by or on behalf of Standards Australia (or jointly with Standards New Zealand) as in force or existing at a particular time or from time to time.

Subsection 14(2) of the Legislation Act provides that unless the contrary intention appears (as is proposed by the Bill), legislative instruments may not make provision for matters by applying, adopting or incorporating a matter contained in an instrument or other writing (other than a Commonwealth Act or a disallowable legislative instrument) ‘as in force or existing from time to time’ (emphasis added).74 The provision facilitates parliamentary control over the content of the law as applied, adopted or incorporated by reference to a non-disallowable legislative instrument or a non-legislative instrument.75 In creating a general prohibition on the incorporation of such materials as they are in force from time to time, the provision may also help to provide members of the public and regulated entities with a degree of certainty about the content of material incorporated by reference. That is, it may help to ensure that the relevant material incorporated, and thus the content of the law, will not

69. Subsection 4(1) of the AFP Act includes a definition of ‘AFP appointee’ for the purposes of the Act. 70. Subsection 4(1) of the AFP Act provides that ‘AFP employee’ means a person engaged under section 24 of the Act and ‘special member’ a person appointed under section 40E. 71. Items 1-13 and 16-19 of Schedule 8 of the Bill. 72. AFP Act, definition of ‘AFP appointee’ in subsection 4(1). 73. Explanatory Memorandum, p. 31. 74. Legislation Act 2003, subsection 14(2). See also paragraph 14(1)(a) which permits a legislative instrument or a notifiable instrument to apply,

adopt or incorporate provisions of an Act or a disallowable legislative instrument as in force from time to time. Paragraph 14(1)(b) also permits a legislative instrument or a notifiable instrument to apply, adopt or incorporate any matter contained in an instrument or other writing as in force or existing at the time when the first-mentioned legislative or notifiable instrument commences. An equivalent restriction to that in subsection 14(2) of the Legislation Act exists in relation to Acts under subsection 46AA(2) of the Acts Interpretation Act 1901. 75. Explanatory Memorandum, Legislative Instruments Bill 2003, p. 10. See also, Australian Government Solicitor, Legislative instruments—issues

in design, Legal Briefing, 102, 26 February 2014, pp. 12-13.

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be changed by an amendment to the material that may not be notified or readily accessible (except if the Parliament has passed legislation authorising such changes to be made).76

The Australian Federal Police Regulations 1979 currently require that provision and analysis of urine samples for the purposes of a prohibited drug test to be in accordance with an Australian/New Zealand Standard, but they incorporate the procedures in that standard as they existed at a certain point in time.77

The Explanatory Memorandum advances the following justification for displacing the general rule in subsection 14(2) of the Legislation Act. First, it suggests that applying standards, which will change from time to time, is less problematic in this instance because the alcohol and drug testing program applies only to AFP appointees, not the general public. Second, it states that it is important for AFP’s testing procedures to keep pace with scientific and technological advances and to accord with best practice, and that the relevant standards will be provided to AFP appointees on request and can be purchased by members of the public from SAI Global Limited.78

The Scrutiny of Bills Committee noted that explanation and welcomed the commitment for standards to be made available to AFP appointees on request. However, it considered that material incorporated into the regulations should be freely available to anyone interested in the law, not only to AFP appointees, and sought the Minister’s advice on how that could be achieved.79

The Minister’s response stated that all AFP appointees would have full access to the standards via the agency’s intranet, but that copyright restrictions prevented the AFP from making the standards available to the public at large.80 It further stated that the Government considered ‘the benefit gained from ensuring best-practice testing procedures are used outweighs the minimal detriment caused’ by the standards not being freely and readily available’ to the public.81 The Scrutiny of Bills Committee requested that the further information be included in the Explanatory Memorandum and requested the Minister’s advice on whether the Bill could be amended to include a statutory requirement for the standards to be made freely and readily available to all AFP appointees.82

Commissioner’s power to delay date of effect of resignation (Part 2 of Schedule 8) Section 30 of the AFP Act requires an AFP employee who wishes to resign to provide written notice to the Commissioner of the AFP and specify a date of effect generally between 14 days and four months from the time it is given. Section 30A of the AFP Act allows the Commissioner to give an employee a written notice substituting a day up to 90 days later than that provided by the employee as the day on which the employee’s resignation takes effect in certain circumstances, such as where the employee’s conduct:

• is being investigated as a serious conduct issue or in relation to a corruption issue or

76. Nonetheless, some commentators have expressed concern about any form of provision enabling the incorporation by reference of non-legislative material as in force from time-to-time, unless accompanied by a further provision for the mandatory notification, parliamentary review and circulation of the relevant material incorporated, including subsequent amendments as made from time to time. See, for example, DC Pearce, Delegated Legislation in Australia, 4th ed, LexisNexis Butterworths, Chatswood, 2012, pp. 383-384. (The author commented that enabling provisions such as subsection 14(2) of the Legislation Act may produce the undesirable outcome that 'not only may members of the public be subjected to the problem of going to another source before being able to identify the law on a topic, but they will also be unsure to which particular instrument they should go as there is, of course, no obligation on other organisations to publish their instruments as amended from time to time'.)

77. Australian Federal Police Regulations 1979, regulation 13V. The Australian Border Force (Alcohol and Drug Tests) Rule 2015 contains equivalent provisions in relation to urine samples (clause 20) and saliva samples (clause 22) for the purposes of prohibited drug testing. 78. Explanatory Memorandum, p. 179. It was previously also possible to access Australian Standards through the National Library of Australia and state libraries. However, in June 2016 National and State Libraries Australasia announced that in negotiations with SAI Global, ‘it was not

possible to arrive at a mutually acceptable and sustainable agreement’ and such access either had already or would soon cease at those libraries: National and State Libraries Australasia, No more access to Australian Standards at the national and state libraries of Australia, media release, 2 June 2016. 79. Scrutiny of Bills Committee, Alert digest, 10, 2016, op. cit., p. 15-16. The Committee briefly outlined its broader concerns with all instances of incorporation of external materials and also noted a recent report on the issue by a Western Australian Parliamentary committee: Joint Standing Committee on Delegated Legislation, Access to Australian standards adopted in delegated legislation, Report 84, Legislative Assembly of Western Australia, June 2016. 80. Scrutiny of Bills Committee, Scrutiny digest, 1, 2017, op. cit., p. 77. 81. Ibid., p. 78. 82. Ibid., p. 79.

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• has been so investigated, and the Commissioner is considering terminating the employee on the basis of the resulting findings.83

The provision was enacted in 2006 to complement a revised professional standards framework, and is intended to prevent employees from resigning in anticipation of being terminated for serious misconduct by providing additional time for a related investigation to be concluded and acted upon.84

Item 20 of Schedule 8 will increase the length of the extension the Commissioner may impose on an employee’s effective resignation date from 90 to 180 days. The Explanatory Memorandum states that a period of 90 days is not always sufficient to finalise an investigation, and that in some cases ‘employees subject to investigation have caused significant delays themselves’.85 It further indicates that in the absence of a record of an investigation outcome or a termination, other agencies may end up employing someone who has failed to meet AFP’s integrity standards.86

As noted earlier in this Digest, the AFPA opposes this amendment. The AFPA’s submission to the inquiry into the Bill stated that lengthy investigations into an employee’s conduct carry the potential for significant adverse financial, professional and psychological impacts on affected employees, and noted that the Government had not provided any data or examples of specific cases to justify the need for the amendment. The organisation also argued that there was no practical benefit to section 30A or the proposed amendment, and that the AFP had other means to convey any national security concerns relating to former employees. Instead, it considers that the proposed amendment reflects resource constraints on the AFP in terms of investigating and finalising conduct matters in a timely way.87

The AFP’s submission to the inquiry into the Bill expands on the justification provided in the Explanatory Memorandum by outlining both the factors that can contribute to the length of misconduct investigations, and the reasons it considers it important to prevent an employee’s resignation taking effect before an investigation is complete and the findings considered. On the former, it contends that the natural justice component of an investigation alone can take over 90 days, and notes that some of the components of an investigation, such as analysis associated with drug testing and digital forensic, can take ‘weeks to months’ to complete.88 On the latter, the AFP states that where an employee is able to resign on their own terms ‘the AFP’s ability to investigate misconduct by that individual, and also broader organisational problems, becomes limited’.89 The AFP also considers its ability to disclose to other agencies information provided as a complaint or during a misconduct investigation is ‘severely’ limited by the secrecy provisions in Part V of the AFP Act, whereas it is clearly able to disclose a person’s termination.90 Finally, it provides data in support of the need for the amendment:

In the past three years, six AFP employees have resigned prior to the conclusion of a category three investigation conducted by AFP Professional Standards (PRS). A further three employees resigned after a PRS investigation had made an established finding of category three conduct, but before their employment could be terminated. Generally, this occurs because the employee is informed of the investigation, attempts to resign to avoid having their employment terminated, and the PRS investigation is unable to be completed within 90 days of the resignation date.

91

83. The circumstances are set out in full in subsection 30A(1) of the AFP Act. 84. Section 30A was inserted by the Law Enforcement (AFP Professional Standards and Related Measures) Act 2006. Explanatory Memorandum, pp. 180-181; AFP, Submission, op. cit., pp. 7-8. 85. Explanatory Memorandum, p. 181. 86. Ibid.

87. AFPA, Submission, op. cit. 88. AFP, Submission, op. cit., pp. 8-9. 89. Ibid., p. 7-8, 10. 90. Ibid., p. 8. 91. Ibid., p. 6.

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Amendments to the AML/CTF Act (Schedule 9)

Electronic reporting of physical currency movements (Part 1 of Schedule 9) Division 2 of Part 4 of the AML/CTF Act sets out requirements for the reporting of movements of physical currency into or out of Australia, including when it is carried by travellers. Generally, movements of physical currency worth A$10,000 or more must be reported to AUSTRAC, which is both Australia’s anti-money laundering and counter-terrorism regulator and its national Financial Intelligence Unit.

Item 1 of Schedule 9 will insert proposed subsection 53(9) into the AML/CTF Act to allow for reports about physical currency above the threshold amount being taken out of Australia to be provided to AUSTRAC electronically, and to require electronic reports to be submitted using a system prescribed in the AML/CTF Rules.92

Section 54 of the AML/CTF Act sets out time limits within which reports under section 53 must be given to AUSTRAC. Items 2, 3 and 4 of Schedule 9 will amend section 54 so that electronic reports under section 53 must be made in accordance with the period prescribed by the AML/CTF Rules (which must be no longer than that which applies to equivalent hard copy reports provided under subsection 54(3)).

Australian Charities and Not-for-profits Commission access to AUSTRAC information (Part 2 of Schedule 9) Agencies listed within the definition of ‘designated agency’ in section 5 of the AML/CTF Act may receive, access and disclose AUSTRAC information in accordance with the Act for the purpose of performing their functions and exercising their powers.93 AUSTRAC information is certain information collected by AUSTRAC, and any compilation or analysis of that information.94 Item 6 of Schedule 9 will add the Australian Charities and Not-for-profits Commission (ACNC), the national regulator of that sector, to the list of designated agencies in section 5. AUSTRAC’s report, Terrorism Financing in Australia 2014, recognised that the risks associated with the misuse of charities and not-for profit organisations (NPOs) were high.95 On the Australian context, it stated:

… While charities and NPOs are one of the more significant Australian terrorism financing channels, they have not featured in a large number of Australian terrorism financing cases. Rather than representing a sector-wide risk, terrorism financing in Australia has been limited to a handful of charities and NPOs. 96

However, Australia’s efforts to prevent the misuse of NPOs for terrorism financing were assessed by the Financial Action Task Force (FATF) in 2015 as not being compliant with recommendation 8 of the International Standards on Combating Money Laundering and the Financing of Terrorism and Proliferation (FATF Recommendations).97 The report pointed to a number of ways in which Australian measures fell short, and while not the most significant issue identified, the report noted:

Although ACNC has access to information of NPOs, this only covers those charities that voluntarily register for tax purposes. Although there are information-sharing mechanisms in place, these do not focus on TF [terrorism financing]. In addition, the information sharing only relates to information that is available on those charities that voluntarily register for tax purposes.

98

Listing the ACNC as a designated agency will go some way to addressing such deficiencies.

92. Anti-Money Laundering and Counter-Terrorism Financing Rules Instrument 2007 (No. 1). 93. Designated agencies may receive AUSTRAC information under paragraph 121(3)(de), access information under section 126 and disclose it in accordance with sections 125, 127 and 128 of the AML/CTF Act. 94. AML/CTF Act, section 5 (definitions of ‘AUSTRAC information’ and ‘eligible collected information’). 95. AUSTRAC, Terrorism Financing in Australia 2014, AUSTRAC, Sydney, 2014, p. 15. See further Financial Action Task Force (FATF), Risk of

terrorist abuse in non-profit organisations, FATF, Paris, June 2014; S Bricknell, Misuse of the non-profit sector for money laundering and terrorism financing, Trends & Issues in Crime and Criminal Justice, 424, September 2011. 96. AUSTRAC, Terrorism Financing in Australia 2014, op. cit. 97. FATF and APG (Asia/Pacific Group on Money Laundering), Anti-money laundering and counter-terrorist financing measures—Australia, Fourth Round Mutual Evaluation Report, FATF and APG, Paris and Sydney, April 2015, pp. 145-146; FATF, International standards on combating money laundering and the financing of terrorism & proliferation: the FATF recommendations, FATF, Paris, February 2012, pp. 13, 54-58. The FATF is an intergovernmental body established to develop and promote national and international policies to combat money laundering and terrorist financing. FATF, ‘About’, FATF website. 98. FATF and APG, Anti-money laundering and counter-terrorist financing measures—Australia, op. cit., p. 146.

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Amendments to the Australian Crime Commission Act (Schedule 10) CrimTrac was merged into the Australian Crime Commission (ACC) as of 1 July 2016, and the combined agency is now known as the Australian Criminal Intelligence Commission (and uses the acronym ACIC).99 However, the merged agency continues to operate under the Australian Crime Commission Act 2002 (ACC Act) and the Australian Crime Commission Regulations 2002 (ACC Regulations). ‘Australian Criminal Intelligence Commission’ is prescribed in the ACC Regulations as an alternative name by which the agency may be known for the purpose of subsection 7(1A) of the ACC Act, but neither the ACC Act nor the ACC Regulations provide for use of an alternative acronym. Item 2 of Schedule 10 will amend subsection 7(1A) so that the ACC may be known by one or more names or acronyms specified in the ACC Regulations. The remaining items of Schedule 10 will amend other sections of the ACC Act to ensure that use of a prescribed acronym is taken to have the same meaning as use of ‘ACC’ and may be used in its place for any purpose.

Background checking for major national events (Schedule 11) AusCheck was established within the Attorney-General’s Department (AGD) in 2007 to provide a centralised government background checking service in response to a recommendation of the 2005 Independent Review of Airport Security and Policing.100 Auscheck currently coordinates criminal and national security background checking for the purposes of the Aviation and Maritime Security Identification Card schemes and the National Health Security check scheme.101 The amendments in Schedule 11 will amend the AusCheck Act so that AusCheck may also conduct background checks on individuals in connection with their accreditation relating to a major national event. ‘Background check’ has a specific meaning within the AusCheck Act and for the new function proposed in Schedule 11 may include an assessment of information relating to one or more of:

• an individual’s criminal history

• matters relevant to a security assessment (as defined under the Australian Security Intelligence Organisation Act 1979) of that individual

• the identity of that individual and

• that individual’s citizenship status, residency status or entitlement to work in Australia.102

The Government indicated it expects the amendments would be relevant to major international political or sporting events such as a G20 Summit or the Commonwealth Games.103

Item 2 will insert proposed section 5A into the AusCheck Act to allow the Minister for Justice to declare a particular event to be a major national event for the purposes of the Act, by legislative instrument.104 Proposed subsection 5A(2) will provide that the Minister may only make such a declaration if he or she is satisfied that it is in the national interest that the Commonwealth be involved in conducting and coordinating background checks in connection with the accreditation of individuals in relation to the event. Proposed subsection 5A(3) will provide a non-exhaustive list of matters to which the Minister may have regard when considering whether to make a declaration.

Part 2 of the AusCheck Act sets the parameters of the AusCheck scheme (the scheme) for the conduct and coordination of background checks, the detail of which is provided in the AusCheck Regulations 2007. Section 8 of the AusCheck Act provides for the establishment of the scheme in regulations and sets out the circumstances in which, and the purposes for which, background checking may be conducted under the scheme. Item 3 will insert proposed paragraph 8(1)(d) to allow the scheme to apply to background checking of individuals in

99. Australian Crime Commission Amendment (National Policing Information) Act 2016; Australian Criminal Intelligence Commission website. 100. For further background on the establishment and operation of AusCheck see: P Ruddock, ‘Second reading speech: AusCheck Bill 2006’, House of Representatives, Debates, 7 December 2006, pp. 11-12; AGD, ‘AusCheck’ and sub-pages, AGD website. 101. AGD, ‘Aviation and maritime schemes’ and ‘National Health Security scheme’, AGD website. 102. AusCheck Act, section 5. Paragraph 5(aa) of the definition is not relevant as it applies only to checks relating to Aviation and Maritime Security

Identification Cards. The Australian Security Intelligence Organisation’s (ASIO) security assessment function is set out in Part IV of the Australian Security Intelligence Organisation Act 1979, with a definition of the term in subsection 35(1). Security assessments are undertaken for a variety of purposes, and involve, broadly, an assessment of whether an individual’s background or past activities indicate he or she may present a threat to national security: ASIO, ASIO’s security assessment function, Information brief, ASIO, n.d. 103. Explanatory Memorandum, pp. 185-186. 104. Item 1 will insert a definition into subsection 4(1) of the AusCheck Act to provide that ‘major national event’ has the meaning given by

section 5A.

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connection with their accreditation in relation to a major national event. Item 4 will insert proposed subsection 8(2A) to set out the purposes for which background checking may be conducted if it is in connection with a major national event. The subsection indicates the Constitutional heads of power on which the Commonwealth seeks to rely in expanding the AusCheck scheme to cover background checking relating to major national events.105 It includes, for example, purposes related to external affairs, the defence of Australia, preventing terrorist acts, and Australia’s national security.

Item 6 will insert proposed section 10AA of the AusCheck Act to set out the matters that the scheme may make provision for in relation to background checking of individuals in connection with their accreditation in relation to a major national event.

Concluding comments Debate on this Bill may focus on the proposed change to the delayed resignation provisions that apply to AFP employees, contained in Schedule 8.The Bill does not appear to raise other controversial issues and addresses legislative inconsistencies in areas relating to mutual assistance, proceeds of crime and extradition. The Parliament’s consideration of the Bill may be further informed by the report of the Senate Legal and Constitutional Affairs Legislation Committee on the provisions of the Bill.

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105. Proposed subsection 8(2A) is a severability provision designed to prompt the High Court to read down a substantive provision to the extent it may exceed the legislative power of the Commonwealth. It appears to align with current Commonwealth drafting standards with respect to such clauses: Office of Parliamentary Council (OPC), Drafting Direction 3.1: constitutional law issues, reissued October 2012, pp. 9-10.