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Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Bill 2013

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2010-2011-2012-2013

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

CRIMES LEGISLATION AMENDMENT (LAW ENFORCEMENT INTEGRITY, VULNERABLE WITNESS PROTECTION AND OTHER MEASURES) BILL 2013

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

(Circulated by authority of the

 

Attorney-General, the Hon Mark Dreyfus QC MP)



CRIMES LEGISLATION AMENDMENT (LAW ENFORCEMENT INTEGRITY, VULNERABLE WITNESS PROTECTION AND OTHER MEASURES) BILL 2013

GENERAL OUTLINE

This Bill amends the Anti-Money Laundering and Counter-Terrorism Financing Act 2006, the Australian Federal Police Act 1979, the Crimes Act 1914 , the Criminal Code Act 1995 , the International Transfer of Prisoners Act 1997 , International War Crimes Tribunals Act 1995, the Law Enforcement Integrity Commissioner Act 2006 , the Telecommunications (Interception and Access) Act 1979 (the TIA Act) and the Migration Act 1958.

Schedule 1—Amendments to ensure the effective operation of the Australian Commission for Law Enforcement Integrity

The purpose of this schedule is to amend the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (the AML-CTF Act) and the Law Enforcement Integrity Commissioner Act 2006 (the LEIC Act) to improve the Integrity Commissioner’s ability to access information held by the Australian Transaction Reports and Analysis Centre (AUSTRAC) and to improve the ability of the Australian Commission for Law Enforcement Integrity (ACLEI) to second employees of police forces who are not sworn police officers.

ACLEI is responsible for preventing, detecting and investigating serious corruption within Commonwealth law enforcement agencies in its jurisdiction.  This jurisdiction currently includes the Australian Federal Police, Australian Crime Commission and the Australian Customs and Border Protection Service.  On 1 July 2013, ACLEI’s jurisdiction will be expanded to include AUSTRAC, the CrimTrac Agency and the Department of Agriculture, Fisheries and Forestry.  The Law Enforcement Integrity Legislation Amendment Act 2012 contains amendments to the LEIC Act to give effect to this expanded jurisdiction, which will commence on 1 July 2013. 

Under the LEIC Act, the Integrity Commissioner has a range of coercive powers to compel information and evidence in relation to suspected corruption.  The purpose of the amendments in this schedule is to ensure that the Integrity Commissioner can use these powers to access all information held by AUSTRAC, where it is relevant to a corruption issue.

AUSTRAC is responsible for overseeing the compliance of Australian companies with their obligations under the AML-CTF Act.  In undertaking these functions, AUSTRAC collects a range of information, both from business and from other government agencies.  This information, known as ‘AUSTRAC information’, is given a significant level of protection under the AML-CTF Act and unauthorised disclosure of this information is an offence.

The amendments contained in this schedule will make clear that an AUSTRAC employee who discloses ‘AUSTRAC information’ to ACLEI, whether in response to a request from ACLEI, or where the employee wishes to voluntarily disclose suspected corruption, does not commit a criminal offence in doing so.  This is consistent with the position for employees of other agencies within ACLEI’s jurisdiction.

With the expansion of ACLEI’s jurisdiction to include AUSTRAC, it is important that ACLEI is able to access AUSTRAC information to investigate suspected corruption within AUSTRAC.  The amendments will also ensure that ACLEI can access AUSTRAC information where it is relevant to the investigation of corruption in any agency within its jurisdiction.

This schedule also contains amendments to the LEIC Act to improve the ability of ACLEI to second employees from the AFP and other police forces who are not sworn police officers.  The current provision in the LEIC Act which allows ACLEI to second employees of police forces and government agencies is unclear as to whether such secondments are allowed.  Unsworn police force employees often have technical skills which can be of benefit to ACLEI.  These amendments will ensure there is no barrier to the secondment of such employees to ACLEI.

Schedule 2—Amendments to support victims of slavery, slavery-like and people trafficking offences

 

This Bill amends Part IAD and Part IB of the Crimes Act, and Chapter 8 of the Criminal Code to ensure that victims and witnesses in Commonwealth criminal proceedings are afforded appropriate support and protection. 

 

Historically, the victim of Commonwealth criminal offences has been the Commonwealth itself (for example, social security fraud).  However, since the introduction of child pornography, child sex tourism, slavery, slavery-like and human trafficking offences, there has been a cohort of individual victims of inherently traumatic Commonwealth crimes.  Adult victims of slavery, slavery-like and human trafficking offences account for the majority of this cohort.  While the Crimes Act currently provides vulnerable witness protections for children in proceedings for sexual offences, there are no similar Commonwealth protections for adult victims of slavery, slavery-like and human trafficking offences, nor any specific protections for witnesses who may be vulnerable due to a particular characteristic (for example, a witness who requires support or alternative arrangements to effectively give evidence due to a disability or their cultural background). 

 

Vulnerable witness protections may include testimonial aids such as the ability to give evidence by means of closed-circuit television, video recording or video link, or the provision of an offence relating to the unauthorised publication of a witness’ name or identifying characteristics.  The availability of such protections is necessary to ensure witnesses are in a position to present their best testimony to the court, by minimising the risk of intimidation, additional trauma, fear for personal safety and/or undue public embarrassment.  If a witness is unable to give reliable evidence, or is reluctant to give evidence at all, this may adversely affect the outcome of a trial. 

 

The Crimes Act also currently does not make any provision for the use of victim impact statements in the sentencing of federal offenders.  A victim impact statement is a verbal or written statement that can be presented to inform the court about the harm suffered by the victim as a result of the offence.  Victim impact statements can benefit victims in terms of catharsis, vindication, healing, restoration, and being granted a voice in relation to the sentencing hearing.  Victim impact statements may also be beneficial in reducing the public perception of the victim’s alienation in the criminal justice process, in making sentencing more transparent and more reflective of the community’s response to crime, and in promoting the rehabilitation of defendants by confronting them with the impact of their offending behaviour.

 

The States and Territories have provisions to protect child and adult witnesses who are vulnerable due either to the nature of the offence (for example, sexual or violent offences), or to a particular characteristic (for example, age, disability, or ability to speak English), as well as schemes for the use of victim impact statements.  While State and Territory provisions may apply to Commonwealth criminal proceedings, these provisions differ between jurisdictions.  This Bill will ensure there is consistency in the support and protection afforded to victims and witnesses of Commonwealth criminal offences.

 

Amongst other things, the Bill will:

 

  • extend the existing vulnerable witness protections in the Crimes Act currently available for children in specified proceedings to apply to adult victims of slavery, slavery-like and human trafficking offences, as well as witnesses who apply to a court to be recognised as ‘special witnesses’ because of a particular characteristic, in certain cases
  • add a new category of vulnerable witness protections to the Crimes Act to assist victims of child sex-related, slavery, slavery-like and human trafficking offences to give evidence in retrials and subsequent trials for those offences
  • insert a scheme into the Crimes Act for the use of victim impact statements in the sentencing of federal offenders, and
  • insert provisions into the Criminal Code to allow a court to hear evidence by video link from witnesses outside Australia in proceedings for slavery, slavery-like and human trafficking offences.

 

Schedule 3—People smuggling amendments

The Bill formalises current practice by ensuring that the prosecution bears the onus of proof in relation to establishing age, and removes references to wrist X-rays in the Crimes Act 1914 in relation to materials that can be used to determine age.

In addition, the Bill makes a number of technical and enabling amendments to streamline investigations and prosecutions for people smuggling crew.  These amendments allow the use of evidentiary certificates in people smuggling proceedings; and ensure time spent in immigration detention and on remand are taken into consideration during sentencing for people smuggling offences.  These measures will assist to alleviate delays in people smuggling investigations.  In so doing the amendments will address several concerns raised by the recent Senate Legal and Constitutional Affairs Committee and Australian Human Rights Committee inquiries.  These measures will also alleviate pressures on Border Protection Command crew resulting from the need for significant numbers of crew to give evidence in people smuggling prosecutions.

 

Schedule 4—Amendments to the Anti-Money Laundering and Counter-Terrorism Financing Act 2006

This Bill amends the AML-CTF Act.

 

The purpose of these anti-money laundering amendments to the AML-CTF Act is to ensure that review of decisions of the Australian Transaction Reports and Analysis Centre (AUSTRAC) is efficient and effective, strengthen existing offences and add the Clean Energy Regulator and the Integrity Commission of Tasmania as designated agencies. 

Schedule 4 amends the AML-CTF Act to strengthen the Commonwealth anti-money laundering and counter-terrorism financing (AML-CTF) legislative framework. 

In summary, the amendments in Schedule 4 will:

·          ensure that AUSTRAC information disclosed by non-designated Commonwealth agencies is granted appropriate privacy protections

·          enable AUSTRAC to conduct internal review of its decisions concerning external audits and remedial directions to achieve a more timely and cost effective dispute resolution process

·          create an exception to the offence of providing a designated service to a person who is using a false name, where the person is using a legitimate false identity

·          extend offences for providing false or misleading information under the Anti-Money Laundering and Counter-Terrorism Financing Rules Instrument   2007 (No. 1)

·          add the Clean Energy Regulator and the Integrity Commission of Tasmania to the list of designated agencies that are authorised to access AUSTRAC data, and

·          enable AUSTRAC to engage secondees from the private sector including persons with relevant professional, academic and/or industry experience.

The Bill will enable AUSTRAC to share financial intelligence information with the Integrity Commission of Tasmania (Commission) and the Clean Energy Regulator (CER), improving information sharing between these agencies.

 

Enabling CER to access the financial intelligence data holdings of AUSTRAC will mitigate the risk of money laundering through tradeable carbon emission units.  The CER’s access to AUSTRAC data will assist it to prevent organised criminal groups from misusing the carbon trading scheme to launder illicit funds.  Enabling the Commission to access AUSTRAC information will enhance Commission’s investigative abilities, in line with those of similar agencies in other jurisdictions. 

 

 

Schedule 5—Amendments to facilitate assistance to the United Nations Mechanism for International Criminal Tribunals

This Bill will amend the International War Crimes Tribunal Act 1995 (IWCT Act) and the International Transfer of Prisoners Act 1997 (ITP Act) to recognise the International Residual Mechanism for Criminal Tribunals (‘the Mechanism’).

The IWCT Act enables the Commonwealth to provide assistance to the International Criminal Tribunal for the Former Yugoslavia (‘ICTY’) and the International Criminal Tribunal for Rwanda (‘ICTR’) in the performance of their functions.  The ITP Act currently enables persons who have been convicted by the ICTY or the ICTR of a Tribunal offence to be transferred to Australia to serve their sentences.  The ICTY and the ICTR were established in 1993 and 1994 respectively and are United Nations bodies established to investigate and prosecute war crimes, crimes against humanity and genocide.  The Mechanism was established pursuant to United Nations Security Council resolution 1966 (2010) of 22 December 2010 to complete the work of the ICTY and ICTR.  The amendments will ensure Australia can continue to provide the same level of assistance to the Mechanism as it completes the work of the ICTY and ICTR as we can currently provide to those two Tribunals.

Schedule 6—Miscellaneous amendments

This Bill updates the Australian Federal Police Act 1979 (AFP Act) in relation to the provision of policing and regulatory services in the external Territories.

The AFP Act currently provides that the Minister responsible for the Australian Federal Police (AFP) and the Administrator of an external Territory may enter into arrangements for the provision of police services and regulatory services in that external Territory.

This no longer reflects the governance arrangements for some of the external Territories, where responsibility for policy decisions and arrangements for the provision of services now rests with the Minister responsible for those Territories. 

The purpose of these amendments is to update the AFP Act so that the Minister responsible for the AFP may enter into these arrangements with either the Administrator or the Minister responsible for an external Territory.

The Telecommunications Interception and Other Legislation Amendment (State Bodies) Act 2012 amended the TIA Act to reflect new public sector anti-corruption arrangements in Victoria.  Victoria has recently renumbered the Independent Broad-based Anti-corruption Act 2011 and the Victorian Inspectorate Act 2011 .  The Bill will amend references to this legislation in the TIA Act to ensure the TIA Act correctly refers to the Victorian legislation. 

FINANCIAL IMPACT STATEMENT

AUSTRAC will meet the ongoing costs of administering the measures in Schedule 4 within existing resources. 

 

 

REGULATION IMPACT STATEMENT

The Office of Best Practice Regulation advised that a Regulation Impact Statement (RIS) was not required for the items in this Bill and a RIS was not prepared.

 



ACRONYMS AND ABBREVIATIONS



AAT                                        Administrative Appeals Tribunal

ACLEI                                                Australian Commission for Law Enforcement Integrity

AFP                                         Australian Federal Police

AFP Act                                 Australian Federal Police Act 1979

AUSTRAC                            Australian Transaction Reports and Analysis Centre

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

BPC                                        Border Protection Command

CER                                        Clean Energy Regulator

CDPP                                      Commonwealth Director of Public Prosecutions

ICCPR                                                International Covenant on Civil and Political Rights

IWCT Act                               International War Crimes Tribunal Act 1995

ITP Act                                   International Transfer of Prisoners Act 1997

ICTY                                       International Criminal Tribunal for the Former Yugoslavia

ICTR                                      International Criminal Tribunal for Rwanda

LEIC Act                               Law Enforcement Integrity Commissioner Act 2006

MPOCL                                 Manager Proceeds of Crime Litigation

Mechanism                             International Residual Mechanism for Criminal Tribunals

RAN                                       Royal Australian Navy

 

SIEV                                       Suspected Irregular Entry Vessel

 

WPTV                                     Witness Protection (Trafficking) (Permanent) visa



Statement of compatibility with human rights

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

Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Bill 2013

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Overview of the Bill

The Bill will improve and clarify aspects of Commonwealth criminal law through:

·          amendments to ensure the effective operation of ACLEI

·          amendments to support witnesses and victims in proceedings for federal offences during prosecution and sentencing

·          amendments relating to investigating, prosecuting and sentencing people smuggling offenders

·          amendments to the AML-CTF Act

·          amendments to facilitate assistance to the United Nations Mechanism for International Criminal Tribunals

·          amendments to the AFP Act to ensure that arrangements for the provision of AFP services in the external territories reflect current governance arrangements, and to ensure that proceeds of crime proceedings are not impeded when key personnel take leave, and

·          amendments to the TIA Act to update cross-references to reflect numbering of the Victorian Independent Broad-based Anti-corruption Commission Act 2011 and the Victorian Inspectorate Act 2011 .

The human rights implications of each schedule contained in the Bill have been dealt with separately below.       

Schedule 1—Assisting the Australian Commission for Law Enforcement Integrity

Overview of measures

From 1 July 2013, ACLEI’s jurisdiction will be expanded to enable the Integrity Commissioner to investigate corruption issues within AUSTRAC.  Secrecy provisions within the AML-CTF Act currently prevent AUSTRAC officers from disclosing AUSTRAC information to ACLEI.  This will operate to impede the Integrity Commissioner from accessing AUSTRAC information relevant to a corruption investigation as ACLEI will have to rely on authorisation from the AUSTRAC CEO.  It may also create uncertainty for AUSTRAC staff wishing to report suspected corruption within AUSTRAC to ACLEI.  This amendment will ensure the Integrity Commissioner has independent authority to access all relevant information when investigating corruption issues.  It will also be necessary to amend the Law Enforcement Integrity Commissioner Act 2006 to ensure that any AUSTRAC information received by the Integrity Commissioner is adequately protected.

The Bill contains amendments to the AML-CTF Act which will allow staff members of the Australian Transactions Reports and Analysis Centre to disclose certain information held by AUSTRAC (known as ‘AUSTRAC information’) to the Integrity Commissioner for the purposes of assisting the Integrity Commissioner investigate suspected corruption.  AUSTRAC is responsible for overseeing the compliance of Australian companies with their obligations under the AML-CTF Act and the Financial Transaction Reports Act 1988 .  In undertaking these functions AUSTRAC collects a range of information, both from business and from other government agencies, which might potentially include personal information.  This information is given a significant level of protection under the AML-CTF Act and unauthorised disclosure of this information is an offence.

This Bill will amend the AML-CTF Act to create an exception to this offence, where the disclosure was for the purposes of assisting the Integrity Commissioner in the investigation of suspected corruption.  The effect of this amendment will be to allow ‘AUSTRAC information’ to be disclosed to the Integrity Commissioner for this purpose. 

Human rights implications

This measure engages the following rights:

·          protection against unlawful and arbitrary interference with privacy - Article 17 of the International Covenant on Civil and Political Rights (ICCPR), and

·          presumption of innocence - Article 14(2) of the ICCPR.

Protection against unlawful and arbitrary interference with privacy—Article 17 of the ICCPR.

Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with their privacy.

This Bill interacts with the right to privacy by allowing, in limited circumstances, disclosure of information held by AUSTRAC which may include personal information.  As noted above, the disclosure of personal information without a person’s consent will engage, and limit, the protection from arbitrary and unlawful interference with privacy in article 17 of the ICCPR.  

The right in Article 17 may be subject to permissible limitations, where the limitations are authorised by law and are not arbitrary.  In order for an interference with the right to privacy to be permissible, the interference must be authorised by law, be for a reason consistent with the ICCPR and be reasonable in the particular circumstances.  The UN Human Rights Committee has interpreted the requirement of ‘reasonableness’ to imply that any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case.

To the extent that the measures in the Bill will limit the right in Article 17 of the ICCPR, they are lawful and non-arbitrary.  The amendment in the Bill allowing for the disclosure of AUSTRAC information is for a legitimate purpose (investigating corruption within the public sector) and is limited to disclosures that are necessary to achieve this purpose.  In the absence of this amendment, a member of staff of AUSTRAC who wished to disclose suspected corruption in AUSTRAC to the Integrity Commissioner may be unable to do so without committing a criminal offence.

Section 127 of the AML-CTF Act limits the further disclosure of information which has been lawfully disclosed under the AML-CTF Act (‘accessed information’).  This Bill amends the definition of ‘accessed information’ in subsection 127(4) of the AML-CTF Act to ensure that this existing protection will apply to any information disclosed under the amendment to section 122 in this Bill.  This protection will ensure that any on-disclosure of this information by the Integrity Commissioner will be prohibited, other than in a limited range of circumstances where on-disclosure may be necessary for the performance of the Integrity Commissioner’s functions.  This safeguard will ensure that the use of any information disclosed under the amendment to section 122 is limited to the legitimate purpose of investigating corruption within AUSTRAC.  This is an important safeguard going towards the reasonableness and proportionality of the measures.  The information will also be protected by provisions in the LEIC Act which prohibit unauthorised use and disclosure of information collected by ACLEI.

Presumption of innocence—Article 14(2) of the ICCPR

Article 14(2) of the ICCPR provides that everyone charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to law.  It imposes on the prosecution the burden of proving a criminal charge and guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt.  Offences that contain  ‘reverse burden’ provisions may amount to a limitation on the presumption of innocence.  This  includes where an ‘evidential’ or ‘legal burden’ defence is created by expressing a matter to be a defence or an exception to the offence or providing that the defendant must ‘prove’ the matter.  This is because a defendant’s failure to establish an absence of fault (for example, through a mistake of fact defence) or to discharge a burden of proof may permit their conviction despite reasonable doubts as to their guilt.

This Bill creates a new exception to the existing offence of unlawful disclosure of AUSTRAC information contained in Section 121 of the AML-CTF Act.  A person will no longer be liable for the offence if the disclosure was for the purpose of assisting the Integrity Commissioner.  As with the existing exceptions to the offence, a defendant must meet an evidential burden in relation to the exception.  That means the defendant must raise evidence that his or her conduct fell within the exception.  If the defendant discharges this evidential burden, the prosecution must disprove the matter beyond reasonable doubt.  Placing the evidential burden on the defendant in this case is appropriate as the matter required to be established—the defendant’s purpose for making the disclosure—is a matter peculiarly within the knowledge of the defendant.

                             

Schedule 2—Supporting victims and witnesses in criminal proceedings

           

Overview of Measures

The objective of the Bill is to expand protections available for vulnerable witnesses in Commonwealth criminal proceedings, and provide for the use of victim impact statements in the sentencing of federal offenders.

Specifically, the Bill will:

·          extend existing vulnerable witness protections available to children in sexual offence proceedings in Part IAD of the Crimes Act 1914 (Cth) to apply to adult victims of slavery, slavery-like and human trafficking offences, as well as witnesses who apply to a court to be recognised as ‘special witnesses’ due to a particular characteristic, in certain cases

·          add a new category of vulnerable witness protections to Part IAD of the Crimes Act 1914 (Cth) to assist victims of child sex-related, slavery, slavery-like and human trafficking offences give evidence in retrials and subsequent trials for those offences

·          amend Part IB of the Crimes Act 1914 (Cth) to provide a scheme for use of victim impact statements in the sentencing of federal offenders, and

·          amend Divisions 270 and 271 of the Criminal Code Act 1995 (Cth)  to allow a court to hear evidence by video-link from witnesses outside Australia in proceedings for slavery, slavery-like and human trafficking offences.

Human rights implications

The Bill promotes the following rights:

·          the right to an effective remedy—Article 2 of the ICCPR: by improving the capacity of witnesses to give effective evidence which increases the ability to prosecute trafficking and slavery offences, and strengthening victims’ ability to seek reparations, satisfaction and guarantees of non-repetition.

·          the right to privacy and reputation—Article 17 of the ICCPR: by introducing an offence for the unauthorised publication of a witness’ name or identifying characteristics which seeks to minimise the risk to the victim of intimidation, additional trauma, fear for their personal safety and undue public embarrassment, and

·          the rights of people with a disability—in particular Article 12 of the Convention on the Rights of Persons with Disabilities (equal recognition before the law): by introducing specific protections for witnesses who may be vulnerable due to a personal characteristic that affects their ability to give evidence in the usual manner. 

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

Article 14 of the ICCPR provides that, in the determination of any criminal charge against a person, that person shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.  Article 14 also contains a range of minimum guarantees in criminal proceedings.

The Bill engages the right to a fair trial and the right to minimum guarantees in criminal proceedings. 

The Bill serves the legitimate objective of improving the Commonwealth’s capacity to prosecute slavery and human trafficking-related offences.  This legitimate objective reflects the absolute right to freedom from slavery and forced labour contained in Article 8 of the ICCPR.  The Bill also serves the legitimate objective of improving the ability of victims to seek reparations, satisfaction and guarantees of non-repetition. 

The right to a public hearing Article 14(1)

The Bill provides:

·          that the court may order that some or all of the members of the public be excluded from the courtroom if a person to whom the vulnerable witness protections apply is giving evidence in a proceeding, and

·          for the suppression of material which identifies, or is likely to lead to the identification of, a vulnerable witness, unless the court gives leave.

These measures limit the right to Article 14 to a public hearing by allowing the court to exclude member of the public in certain circumstances and for the suppression of certain material.

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

Allowing the court to exclude the public from the courtroom will ensure that vulnerable witnesses are able to give effective evidence to the court, including by minimising intimidation, additional trauma, fear for their personal safety and undue public embarrassment.  If a witness is unable to give their best testimony, or is reluctant to give evidence at all, this may adversely affect the outcome of a trial. 

While the principle of open justice is fundamental, it is well established that the right of the public to open justice must be balanced against the right of participants in the criminal justice system to safety and protection from undue distress or public embarrassment. 

Given the exploitative nature of slavery, slavery-like and human trafficking offences, to ensure the protection of the interests of the private lives of the victims of these offences, it is appropriate that the court be empowered to exclude members of the public from the courtroom while a vulnerable adult complainant is giving evidence. 

Right to examine witnesses—Article 14(3)(e) of the ICCPR

Article 14(3)(e) protects the right of everyone to examine, or have examined, the witnesses against them and to obtain the attendance and examination of witnesses on their behalf under the same conditions as the witnesses against them. 

Restrictions placed on the ability of the accused to call and examine witnesses must be the same as those placed on witnesses against them.  As a fundamental rule, in calling and examining witnesses, criminal courts must not violate the principles of fairness and equality of parties.

The Bill engages the right to examine witnesses in criminal proceedings. The Bill provides:

·          for vulnerable witness protections including testimonial aids, such as the ability to give evidence via closed-circuit television, video recording or video link

·          for the disallowance of inappropriate or unnecessarily aggressive questions put to a vulnerable witness during cross-examination

·          that unrepresented defendants are not able to cross-examine vulnerable complainants without leave of the court, and

·          for the use of victim impact statements in the sentencing of federal offenders.  

Except as specified, the proposed protections will not affect the general power of a court to control the conduct of a proceeding, including the power of the court to control the questioning of witnesses.  Specifically, the Bill will not limit the ability of the defendant’s legal representative to test evidence put before the court, including through the cross-examination of witnesses.  Further, the decision of the court, and any material on which the court makes its decision (that is not the subject of a suppression order) will generally be publicly available and subject to public and media scrutiny.

Victim impact statements can benefit victims in terms of catharsis, vindication, healing, restoration, and being granted a voice in relation to the sentencing hearing.  Victim impact statements may also be beneficial in reducing the public perception of the victim’s alienation in the criminal justice process, in making sentencing more transparent and more reflective of the community’s response to crime, and in promoting the rehabilitation of defendants by confronting them with the impact of their offending behaviour.

The measures in the Bill provide that victim impact statements are subject to legislated limitations.  Certain types of content will be specifically excluded from victim impact statements: victims will be expressly precluded from including their opinion or wishes about an appropriate sentence, or from including offensive, threatening, intimidating or harassing material in their statement.  Offenders will be allowed to test the facts contained in a victim impact statement.

The Bill brings the Commonwealth’s legislation into line with the existing provisions available in the States and Territories, thereby remedying the current disadvantage faced by complainants and vulnerable witnesses in Commonwealth proceedings.

These measures of the Bill are compatible with human rights.  To the extent that the measures may limit Article 14, those limitations are reasonable, necessary and proportionate.

 

Schedule 3—Deterring people smuggling

Overview of the measures

The Bill includes a number of technical amendments relating to people smuggling prosecutions, to:

  • amend the Crimes Regulation 1990 to remove wrist x-ray as a prescribed age determination procedure
  • amend the Migration Act to ensure that the onus of proof in establishing age in people smuggling prosecutions lies with the prosecution
  • amend the Migration Act to streamline people smuggling investigations and prosecutions by enabling the use of evidentiary certificates concerning prima facie evidence of the interception of people smuggling vessels in the prosecution of people smuggling offences, and
  • ensure that all the time spent in immigration detention or on remand prior to a person being sentenced is recognised in the sentencing of persons convicted of people smuggling offences.

Human rights implications

People smuggling measures in the Bill engage the following rights:

·          the right to a fair trial and the right to a fair hearing under Article 14 of the ICCPR, and

  • the right of all persons deprived of their liberty to be treated with humanity and with respect for the inherent dignity of the human person under Article 10 of the ICCPR.

The right to a fair trial under Article 14 of the ICCPR.

Article 14 of the ICCPR provides for the presumption of innocence and sets out minimum guarantees in criminal proceedings, including, at paragraph 3(e), that a person charged with a criminal offence shall have the right to examine, or have examined, the witnesses against him or her, and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her.  Proposed section 236E engages an individual’s right to a fair trial by enabling the use of evidentiary certificates that establish prima facie evidence of facts related to the interception of people smuggling vessels. This means that certain factual matters related to the offence will not need to be proved further by the prosecution unless the defendant challenges the content of the certificate. Evidentiary certificates under section 236E will contain factual matters including the number of passengers, the number of persons who crewed the vessel, the location of the vessel when it was intercepted, and a description of items secured or seized.

The objective of these amendments is to mitigate some of the operational difficulties and delays involved in the current arrangements, which may prolong the pre-charge detention of suspected people smuggling crew.  The use of an evidentiary certificate will very likely mitigate the delays currently faced in obtaining witness statements and oral evidence in court proceedings from Border Patrol Personnel, who remain on patrol for up to six weeks at a time.  In this way, the use of evidentiary certificates will also promote the guarantee under Article 14 (c) of the ICCPR to be tried without undue delay.

Evidentiary certificates establish prima facie evidence, rather than conclusive evidence, of the matters contained with it. As such, the certificates create a rebuttable presumption as to the facts which the defendant may challenge during the court proceedings. Section 236E also preserves the defendant’s right to require evidence in person in respect to any matters in the certificate that are challenged, so that the reliability and credibility of the evidence contained in an evidentiary certificate can still be tested. In this way, the defendant’s right to be presumed innocent and to test witnesses is preserved. 

The right of all persons deprived of their liberty to be treated with humanity and with respect for the inherent dignity of the human person - Article 10 of the ICCPR.

The proposed amendments to the Crimes Regulations, and possible corresponding amendments to the Crimes Act, will remove wrist X-rays as a prescribed procedure for determining age.  These amendments promote the rights of juvenile defendants under the Convention on the Rights of the Child and Articles 14 (fair trial) and 10 (conditions of detention) of the ICCPR.

This will result in there being no prescribed procedure for age determination under the Crimes Regulations.  This amendment implements the recommendation of the Senate Legal and Constitutional Affairs References Committee, and responds to concerns raised by Australian Human Rights Commission and advice from the Office of the Chief Scientist that there is not sufficient scientific data to support the use of wrist X-rays to determine whether a person is a minor. 

Regulation 6C of the Crimes Regulations prescribes wrist X-rays as a procedure for determining age under Division 4A of the Crimes Act 1914.  In the past, the AFP have arranged for wrist X-rays to be taken in order to have an expert analysis of those X-rays put before the court as evidence in an age determination hearing.  Wrist X-rays have been criticised by the Australian Human Rights Commission and the Senate Committee on Legal and Constitutional Affairs.

 

Schedule 4—Anti-Money Laundering and Counter-Terrorism Financing amendments

Overview of measure

The objective of these measures is to strengthen the Commonwealth anti-money laundering and counter-terrorism financing (AML-CTF) legislative framework by providing more expeditious provisions for review of AUSTRAC decisions, ensuring AUSTRAC information is granted appropriate privacy protections, strengthening existing AML-CTF offences, enabling AUSTRAC to engage secondees from the private sector and adding the Clean Energy Regulator and Integrity Commission of Tasmania as designated agencies. Technical amendments are proposed to the AML-CTF Act to enhance its operation. 

Specifically, the proposed amendments will:

  • ensure that AUSTRAC information disclosed by non-designated Commonwealth agencies is granted appropriate privacy protections
  • enable AUSTRAC to conduct internal review of its decisions concerning external audits and remedial directions to achieve a more timely and cost effective dispute resolution process
  • create an exception to the offence of providing a designated service to a person who is using a false name where the person is using a legitimate false identity
  • extend offences for providing false or misleading information and documents to encompass information and documents provided in purported compliance with requirements under the Anti-Money Laundering and Counter-Terrorism Financing Rules 2007 and Anti-Money Laundering and Counter-Terrorism Financing Regulations 2008
  • add the Clean Energy Regulator and the Integrity Commission of Tasmania to the list of designated agencies that are authorised to access AUSTRAC data, and
  • enable AUSTRAC to engage secondees from the private sector including persons with relevant professional, academic and/or industry experience.

Human rights implications

The Bill will engage the following rights:

  • protection against unlawful and arbitrary interference with privacy—Article 17 of the ICCPR, and
  • presumption of innocence—Article 14(2) of the ICCPR.

 

Protection against unlawful and arbitrary interference with privacy—Article 17 of the ICCPR

 

Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with their privacy.

 

The measures in the Bill will both promote and limit the protection against unlawful and arbitrary interference with privacy.

 

The Bill will promote the protection against unlawful and arbitrary interference with privacy by:

  • ensuring that AUSTRAC information disclosed by non-designated Commonwealth agencies is granted appropriate privacy protections, and
  • creating new offences in relation to the disclosure of information obtained pursuant to 123(7) of the AML-CTF Act.

 

The amendments in the Bill will also limit the right in Article 17 by amending the definition of ‘designated agency’ in the AML-CTF Act to include the Commonwealth Clean Energy Regulator and the Integrity Commission of Tasmania.  This will allow these agencies to access AUSTRAC information, which may include personal information.  The collection, disclosure, storage or use of personal information without a person’s consent will engage, and limit, the protection from arbitrary and unlawful interference with privacy in Article 17 of the ICCPR. 

 

The right in Article 17 may be subject to permissible limitations, where the limitations are lawful and are not arbitrary.  In order for an interference with the right to privacy to be permissible, the interference must be authorised by law, be for a reason consistent with the ICCPR and be reasonable in the particular circumstances.  The United Nations Human Rights Committee has interpreted the requirement of ‘reasonableness’ to imply that any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case.

 

In this case, the limitations on Article 17 are reasonable, necessary and proportionate as they will enable criminal justice, national security and corruption matters to be investigated.  Enabling the Clean Energy Regulator to access AUSTRAC information will assist it to mitigate the risk of criminal abuse of carbon units.  The Clean Energy Regulator’s access to AUSTRAC data will assist it to prevent organised criminal groups from misusing the carbon trading scheme to launder illicit funds.  Enabling the Integrity Commission of Tasmania to access AUSTRAC information will enhance the Commission’s investigative abilities, in line with those of similar agencies in other jurisdictions.

 

Presumption of innocence—Article 14(2) of the ICCPR

 

Article 14(2) of the ICCPR provides that everyone charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to law.  It imposes on the prosecution the burden of proving a criminal charge and guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt.  Offences that contain ‘reverse burden’ provisions may amount to a limitation on the presumption of innocence.  This includes where an ‘evidential’ or ‘legal burden’ defence is created by expressing a matter to be a defence or an exception to the offence or providing that the defendant must ‘prove’ the matter.  This is because a defendant’s failure to establish an absence of fault (for example, through a mistake of fact defence) or to discharge a burden of proof may permit their conviction despite reasonable doubts as to their guilt.

 

New item 24 of the Bill will create an exception to the offence in the AML-CTF Act of providing a ‘designated service’, for example:

  • a banking service, to someone who has a lawful justification for using a false identity, or
  • an undercover law enforcement officer, or an individual in witness protection.

This will ensure that a regulated business will not be committing an offence by providing a designated service to an individual who is using a false identity but has a lawful reason for doing so.

 

These measures of the Bill are compatible with human rights.  They promote the right in Article 17 of the ICCPR.  To the extent that the measures may limit Article 14 or Article 17 of the ICCPR, those limitations are reasonable, necessary and proportionate.

 

Schedule 5—Assisting the International Residual Mechanism for Criminal Tribunals

Overview of measures

The Bill contains proposed amendments to the International Transfer of Prisoners Act 1997 (ITP Act) and the International War Crimes Tribunal Act 1995 (IWCT Act) to recognise a new UN Tribunal, the International Residual Mechanism for Criminal Tribunals (the Mechanism).  United Nations Security Council Resolution 1966 (2010) of 22 December 2010 provided that the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) take all possible measures to complete all their remaining work by no later than 31 December 2014 to prepare for the closure of the two tribunals, and established the Mechanism to complete the work of the two tribunals.

The ICTY and the ICTR are United Nations bodies established to investigate and prosecute war crimes, crimes against humanity and genocide.  The IWCT Act currently enables the Commonwealth to provide assistance to the ICTY and the ICTR in the performance of their functions.  This includes the surrender of individuals to those tribunals where requested under the Act.  The ITP Act currently enables persons who have been convicted by the ICTY or the ICTR of a Tribunal offence to be transferred to Australia to serve their sentences. 

The proposed amendments will include the new Mechanism as a Tribunal to which the IWCT Act and ITP Act applies.  This will enable Australia to provide the same level of assistance under the ITP Act and the IWCT Act to the Mechanism as is currently provided to the ICTR and ICTY, consistently with our international obligations to those Tribunals.

Human rights implications

The amendments will extend the application of the existing assistance regime in the ITP and IWCT Act to the new Mechanism.  The existing assistance regimes engage a number of rights under the International Covenant on Civil and Political Rights (ICCPR), including the right to be treated with humanity where deprived of liberty in Article 10 ICCPR and the right to a fair trial in Article 14 ICCPR .

The assistance provided by Australia to UN Tribunals is underpinned by a regime which appropriately balances Australia’s responsibilities to those Tribunals with matters of procedural fairness and individual rights.  Australia’s assistance to the Tribunals under the ITP Act facilitates criminal justice outcomes in the international community and aims to improve prisoners' prospects for rehabilitation by allowing access to custodial programs and facilitating contact with social support networks, whilst protecting the community through the effective management and monitoring of prisoners transferred to Australia.  Australia’s assistance to the Tribunals under the IWCT Act enables the Commonwealth to co-operate with a Tribunal in the investigation and prosecution of persons accused of committing Tribunal offences, while recognising individual rights and freedoms and thereby assists in achieving criminal justice outcomes in the international community.

Under the ITP Act, the Attorney-General may consent to a request from a Tribunal for the transfer of a Tribunal prisoner to Australia to complete their sentence if satisfied that:

  • the prisoner or prisoner’s representative has consented to the transfer on those terms, unless the Attorney-General determines that it is not necessary in the prisoner’s case
  • Australia and the Tribunal have agreed to the transfer on terms agreed under the Act
  • appropriate Ministerial consent in writing has been given to transfer on those terms, and
  • the relevant conditions for transfer to Australia of Tribunal prisoners are satisfied.

Inclusion of the new Mechanism as a Tribunal under the Act will allow the Attorney-General to consent to a request from the Mechanism for the transfer of a Tribunal prisoner to Australia where the above criteria are met. 

 

The IWCT Act recognises Australia’s international obligation to provide assistance to specialist tribunals.  The amendments will enable Australia to provide assistance to the new Mechanism, where it so requests, including requests for arrest and surrender to the Tribunal of a person in relation to whom the Tribunal has issued an arrest warrant, executing a request for search and seizure, obtaining evidence, a document or other article, providing a document or other record, locating and identifying a witness or suspect, arranging for a person to give evidence or assist investigations, causing the forfeiture of property or the proceeds of crimes, serving documents, or arranging for the Tribunal to sit in Australia.

 

The IWCT Act contains a range of safeguards to ensure that the rights of individuals, in particular privacy and fair trial rights, are protected where Australia acts on such requests. 

 

Following receipt of a request from the Tribunal for the surrender of a person in Australia, the Attorney-General may issue a notice that a request has been received after which a magistrate may issue a warrant for the person’s arrest.  The magistrate must only issue a warrant where the application is made in the statutory form (and includes details of the person who may be, is, is to be or has been charged with a Tribunal offence as a result of the investigation or prosecution in respect of which the request is made, the nature of any such charge and the intended time and place of any hearing of any such charge).  Section 16 provides for the Attorney-General to determine whether a remanded person is to be surrendered to the Tribunal.  The Attorney-General must determine to surrender the person unless he or she is satisfied that there are special circumstances.  In considering whether there are special circumstances, the Attorney-General must give the person a reasonable opportunity to provide documents showing special circumstances and the Attorney-General must consider any documents so provided. 

 

In relation to the other types of assistance (taking evidence, production of documents, search and seizure, persons giving evidence overseas and enforcement of forfeiture orders) the IWCT Act requires the Attorney-General to not comply with a Tribunal request if, in his or her opinion, complying with the request would prejudice Australia’s sovereignty, security or national interest or there are special circumstances justifying non-compliance.   This provision was originally enacted to facilitate an acceptable balance between protecting the rights of an accused and fulfilling Australia's international obligations.  ‘Special circumstances’ is a recognised term in the extradition field, and there is a body of case-law on its meaning including human rights considerations such as where there has been significant delay in investigating an alleged offence .  The IWCT Act also places additional limits on the coercive powers which the Tribunal can exercise.  For example, the Attorney-General may only authorise applications for search warrants where there are reasonable grounds to believe that the relevant material is in Australia.  Arrangements for the travel to a foreign country of a person who is in Australia will only be made if there are reasonable grounds to believe that the person can give evidence relevant to the proceeding or assist in the investigation, and the person has consented to giving evidence or assisting in the foreign country.  Similarly, where the Tribunal sits in Australia it may only exercise such powers as are prescribed by the regulations in respect of the Tribunal. 

In addition to the human rights safeguards already contained in the ITP Act and IWCT Act, all persons are afforded rights under the Statutes of the ICTY, ICTR and the Mechanism including:

·        the right to equality

·        the right to a fair and public hearing

·        the presumption of innocence

·        minimum guarantees relating to the determination of any charge including the right to not be compelled to testify against himself or herself

·         the right to be tried without undue delay, and

·        the right to cross-examine witnesses. 

The amendments do not alter any of the human rights safeguards that are already contained in the ITP Act and the IWCT Act. 

 

Schedule 6—Miscellaneous amendments     

 

Amendments to the Australian Federal Police Act 1979

Overview of measures

Subsection 8(1C) of the AFP Act currently provides that the Minister responsible for the AFP and the Administrator of an external Territory may enter into arrangements for the provision of police services and regulatory services to that external Territory. 

This no longer reflects the current governance arrangements for some of the external Territories. 

The purpose of these amendments is to update the AFP Act so that the Minister responsible for the AFP may enter into these arrangements with either the Administrator or the Minister responsible for an external Territory. 

The existing arrangements will continue to apply for Norfolk Island, where arrangements will be entered into with the Administrator in recognition that the Territory is self-governing.

Under subsection 69C(3) of the AFP Act, the Commissioner may delegate to the Deputy Commissioner or a senior executive AFP employee any of the Commissioner’s powers, functions or duties as a proceeds of crime authority. 

As a proceeds of crime authority, the Commissioner may conduct proceedings under the Proceeds of Crime Act 2002, in addition to exercising related powers, functions and duties under that Act.

A delegation is currently in place by the Commissioner to senior executive AFP employees holding, occupying or performing the duties of the position of Manager Proceeds of Crime Litigation (MPOCL).

A ‘senior executive AFP employee’ is defined in subsection 4(1) of the AFP Act as an AFP employee in respect of whom a declaration under section 25 is in force.  Currently, the Commissioner must make a new declaration that a particular person is a senior executive AFP employee each time the MCPOL takes leave or is otherwise absent.

This item inserts a new subsection 69C(4) into the AFP Act.  This provides that if the Commissioner has made a delegation to a senior executive AFP employee under subsection 69C(3), and another AFP employee, who is not a senior executive AFP employee, is performing the duties of that senior executive AFP employee, the Commissioner is taken to have made the delegation to that other employee.

Human rights implications

The measures do not engage any of the applicable rights or freedoms.

 

Amendments to the Telecommunications (Interception and Access) Act 1979  

 

Overview of measure

The State of Victoria has recently renumbered the Independent Broad-based Anti-corruption Act 2011 and the Victorian Inspectorate Act 2011 .  The Bill will amend references in the Telecommunications (Interception and Access) Act 1979 (the TIA Act) to this legislation to ensure the TIA Act correctly refers to the Victorian legislation. 

Human rights implications

These measures of the Bill are technical in nature and do not engage any human rights issues.

 

Conclusion

The Bill is compatible with human rights because it promotes a number of human rights and to the extent that it may also limit human rights, those limitations are reasonable, necessary and proportionate.

 

The Hon Mark Dreyfus QC MP

Attorney-General



NOTES ON CLAUSES

 

Clause 1: Short title

Clause 1 provides for the Bill to be cited as the Law Enforcement Integrity and Other Measures Act 2013

Clause 2: Commencement

Sections 1 to 3 of the Bill commence the day it receives the Royal Assent. 

Schedule 1 and 2 of the Bill commence the day after it receives the Royal Assent.

Schedule 3, Part 1 of the Bill commences the day after it receives the Royal Assent.  Schedule 3, Part 2 of the Bill commences at the same time as Schedule 4 to the Maritime Powers (Consequential Amendments) Act 2013 commences.

Schedule 4, Part 1 of the Bill commences the day after it receives the Royal Assent.  Schedule 4, Part 2 commences on 12 March 2014. 

Schedules 5 and 6 of this Bill commence the day after it receives Royal Assent. 

Clause 3: Schedule(s)

This clause provides that Schedules 1, 2, 3, 4, 5 and 6 to the Bill will amend the Act in accordance with the provisions set out in each Schedule.



Schedule 1 Assisting the Australian Commission for Law Enforcement Integrity

Anti-Money Laundering and Counter Terrorism Financing Act 2006

Item 1—After paragraph 121(3)(d)

Part 11 of the AML-CTF Act contains secrecy and access provisions, creating an offence for the disclosure of AUSTRAC information and a range of permitted exceptions to this disclosure offence.  Subsection 121(2) of the AML-CTF Act creates an offence for the unauthorised disclosure by an AUSTRAC staff member of ‘AUSTRAC information’.  ‘AUSTRAC information’ is defined in section 5 of the AML-CTF Act and includes any information collected by AUSTRAC under the AML-CTF Act or any other Act and any information obtained by a government body. 

Subsection 121(3) contains a list of exceptions to the offence at subsection 121(2).  This item will insert a new paragraph 121(3)(da) into this subsection, providing an exception to the offence where the disclosure is for the purposes of, or in connection with, the performance of the Integrity Commissioner’s functions relating to a corruption issue (within the meaning of the LEIC Act).

‘Corruption issue’ is defined in section 7 of the LEIC Act as ‘an issue whether a person who is, or has been, a staff member of a law enforcement agency has, or may have, engaged in corrupt conduct; or is, or may be, engaging in corrupt conduct; or will, or may at any time in the future, engage in corrupt conduct.

This will mean staff members of AUSTRAC do not commit an offence where they disclose ‘AUSTRAC information’ to the Integrity Commissioner, whether voluntarily or in response to a request from the Integrity Commissioner.  This is necessary as the definition of ‘AUSTRAC information’ is broad enough to encompass almost all information an AUSTRAC staff member will come across in the course of his or her duties.  For example, a State police agency may give information to AUSTRAC that raises suspicions about the conduct of a staff member of AUSTRAC.  This information may be highly relevant to an investigation being undertaken by ACLEI, but would fall within the definition of ‘AUSTRAC information’ contained in the AML-CTF Act, being information obtained from a government agency.

Currently, ACLEI is able to obtain ‘AUSTRAC information’ with the authorisation of the AUSTRAC CEO under section 126 of the AML-CTF Act.  ACLEI has been able to rely on this mechanism to date to obtain required ‘AUSTRAC information’ for the purposes of investigations into agencies currently within its jurisdiction.  However, with the addition of the staff of AUSTRAC, including the AUSTRAC CEO, to its jurisdiction, it is important that ACLEI now has authority independent of the AUSTRAC CEO to access ‘AUSTRAC information’.

Item 2—Before paragraph 127(4)(a)

Section 127 of the AML-CTF Act restricts what a person who is or was an official of a ‘designated agency’ may do with AUSTRAC information which they have accessed (‘accessed information’).  ACLEI is considered a ‘designated agency’ for the purposes of the AML-CTF Act.  Subsection 127(2) creates an offence for the disclosure of AUSTRAC information by an official of a designated agency.

Subsection 127(4) of the AML-CTF Act defines ‘accessed information’ for the purposes of section 127.  The definition includes a list of provisions under which agencies might access AUSTRAC information.  This item will add new paragraph 121(3)(da) to the list, at paragraph 127(4)(aa) to ensure AUSTRAC information obtained by ACLEI under the amendment contained in item 1 is protected from further disclosure by section 127 of the AML-CTF Act.  This is necessary to ensure that information obtained by ACLEI under the amended section 121 remains subject to the restrictions on further use and disclosure contained in the AML-CTF Act.

Item 3—Application of amendments

This item is an application provision which provides that the above amendments apply to corruption issues regardless of when the corrupt conduct is alleged to have occurred.

Law Enforcement Integrity Commissioner Act 2006

Item 4—Subsection 89(1)

Section 82 of the LEIC Act allows the Integrity Commissioner to hold hearings for the purposes of either investigating a corruption issue or conducting a public inquiry.  Subsection 83(3) provides that a hearing for the investigation of a corruption issue may be held in public or private, as the Integrity Commissioner sees fit.  Subsection 83(5) provides that a hearing for a public inquiry must be held in public, but part of a hearing may be held in private at the direction of the Integrity Commissioner.

Section 89 of the LEIC Act provides that at a hearing held in public certain evidence must be given in private.  Subsection 89(1) requires that this occur ‘if the evidence would disclose’ legal advice or matters protected by legal professional privilege or ‘if the evidence would breach a secrecy provision’.  This wording is imprecise, as the evidence cannot breach a secrecy provision, rather it is the giving of that evidence which breaches a secrecy provision.

This item will amend subsection 89(1) to replace the words ‘if the evidence’ with ‘if giving the evidence’.

Item 5—Subparagraph 89(1)(b)(ii)

Subsection 89(1) lists two general circumstances in which evidence at a public hearing must be given in private, at paragraphs (a) and (b).  Item 6 will add a third circumstance in which evidence must be given in private at paragraph (c).  To allow this to occur, this item replaces the full stop at the end of paragraph (b) with the word ‘or’.

 

Item 6—After paragraph 89(1)(b)



This item will insert a new paragraph 89(1)(c) into the LEIC Act, which will require that the giving of evidence at a public hearing which would disclose ‘AUSTRAC information’ be given in private.  Currently, the giving of evidence that contains AUSTRAC information cannot be compelled.  The amendments in this Schedule to the AML-CTF Act may allow a person to disclose AUSTRAC information in answers to questions at a public hearing.  This amendment will ensure that any such evidence is given in private.

Item 7—Subsection 199(1) (heading)

Items 7 and 8 will make amendments to section 199 of the LEIC Act, which deals with ACLEI’s ability to second employees of other agencies.  Subsection 199(1) allows ACLEI to make arrangements with the AFP and other police forces for the secondment of ‘members’ of those forces.  Subsection 199(2) allows ACLEI to make arrangements with Commonwealth government agencies, other than the AFP, for the secondment of employees.

The use of the term ‘member’ in subsection 199(1) and the specific exclusion of the AFP in subsection 199(2) makes it unclear whether ACLEI is able to second unsworn AFP employees or unsworn employees of other police forces.  The  Australian Federal Police Act 1979 defines ‘member of the Australian Federal Police’ to include only the Commissioner, Deputy Commissioners and an AFP employee in respect of whom a declaration under section 40B is in force (commonly referred to as sworn police officers).  This means that AFP employees who are not sworn police officers would not be considered members of the AFP for the purposes of the AFP Act.

The purpose of the amendments in items 7 and 8 is to make clear that employees of police forces who are not sworn police officers can be seconded to ACLEI under section 199 of the LEIC Act.

Item 7 will amend the heading of Subsection 199(1) from ‘Police officers’ to ‘Police personnel’ to better reflect the purpose of the amended subsection.

Item 8—Subsection 199(1)

This item will amend subsection 199(1) to replace the term ‘members’ with ‘members or employees’ to ensure that employees of police forces who may not be considered ‘members’ of a police force can be seconded to ACLEI.

 



Schedule 2—Supporting victims and witnesses in criminal proceedings

Part 1—Vulnerable witness protections

Crimes Act 1914

Item 1—Part IAD (heading)

 

This item repeals the heading of existing Part IAD of the Crimes Act, and replaces it with a new title to better reflect the contents of the Part.

 

Currently, Part IAD is titled “ Part IAD—Protection of children in proceedings for sexual offences ”.  As a result of this item, the new title of Part IAD will be “ Part IAD—Protecting vulnerable persons ”.

 

This amendment is necessary to reflect the expansion of the availability of the protections under Part IAD to child witnesses in proceedings for slavery, slavery-like and human trafficking offences where the exploitation was of a non-sexual nature; to adult complainants in proceedings for slavery, slavery-like and human trafficking, including where the exploitation was of either a sexual or a non-sexual nature; and to persons declared by the court to be ‘special witnesses’ because of a particular characteristic, as a result of this Bill.

 

The current protections available under existing Part IAD will continue to apply to child witnesses and complainants in proceedings for sexual offences. 

 

Item 2—Before subsection 15Y(1)

 

This item inserts the words “Proceedings involving children” before existing subsection 15Y(1) of the Crimes Act.

 

This item clarifies that Part IAD applies to child witnesses (including child complainants) in proceedings for the offences listed in existing subsection 15Y(1).  Item 11 (below) inserts new subsections into existing section 15Y, extending the protections available under Part IAD to vulnerable adult complainants in specified proceedings, and to special witnesses.  

 

A proceeding to which Part IAD applies, and involves a witness(s) to whom subsection 15Y(1) (proceedings involving children) applies, can also involve a witness(s) to whom either or both subsection 15Y(2) (proceedings involving vulnerable adult complainants) or subsection 15Y(3) (proceedings involving special witnesses) applies.

 

 

Item 3—Subsection 15Y(1)

 

This item omits “This Part applies to any proceedings for:” from existing subsection 15Y(1) of the Crimes Act, and substitutes “This Part contains special rules for children involved in proceedings to which this subsection applies.  This subsection applies to proceedings for any of the following offences:”. 

 

This item clarifies that Part IAD applies to child witnesses (including child complainants) in proceedings for the offences listed in existing subsection 15Y(1).  Item 11 (below) inserts new subsections into existing section 15Y, extending the protections available under Part IAD to vulnerable adult complainants in specified proceedings, and to special witnesses.  

Item 4—Paragraph 15Y(1)(b)

 

This item omits “(Sexual assault of United Nations and associated personnel); or” from existing paragraph 15Y(1)(b) of the Crimes Act, and substitutes “(sexual assault of United Nations and associated personnel);”.

 

This item is a stylistic drafting amendment that corrects a typographical error in existing paragraph 15Y(1)(b).

Item 5—Paragraph 15Y(1)(c)

 

This item omits “(Slavery and slavery-like conditions); or” from existing paragraph 15Y(1)(c) of the Crimes Act, and substitutes “(slavery and slavery-like conditions);”

 

This item is a stylistic drafting amendment that corrects a typographical error in existing paragraph 15Y(1)(c).

Item 6—Paragraph 15Y(1)(caa)

 

This item omits “(trafficking in persons, trafficking in children, debt bondage); or” from existing paragraph 15Y(1)(caa) of the Crimes Act, and substitutes “(trafficking in persons and debt bondage);”

 

This item is a stylistic drafting amendment that aligns the offence descriptor in paragraph 15Y(1)(c) with the title of Division 271 of the Criminal Code, to which it relates.

Item 7—Paragraphs 15Y(1)(cab), (cac), (ca) and (cba)

 

This item omits “); or” from existing paragraphs 15Y(1)(cab), 15Y(1)(cac), 15Y(1)(ca) and 15Y1(cba) of the Crimes Act, and substitutes “);”.

 

This item is a stylistic drafting amendment made necessary by Item 3.  Item 3 (above) specifies that Part IAD applies to proceedings for any of the offences listed in subsection 15Y(1).  As a result of Item 3, it is not necessary for the offences listed in subsection 15Y(1) to be separated by the word ‘or’.

 

Item 8—Paragraph 15Y(1)(cb)

 

This item omits “ 1958 .” from existing subsection 15Y(1) of the Crimes Act, and substitutes “ 1958 ;”.

 

This item is a stylistic drafting amendment that corrects a typographical error in existing paragraph 15Y(1)(cb).

 

Item 9—Paragraph 15Y(1)(d)

 

This item omits “regulations; or” from existing paragraph 15Y(1)(d) of the Crimes Act, and substitutes “regulations;”. 

 

This item is a stylistic drafting amendment made necessary by Item 3.  Item 3 (above) specifies that Part IAD applies to proceedings for any of the offences listed in subsection 15Y(1).  As a result of Item 3, it is not necessary for the offences listed in subsection 15Y(1) to be separated by the word ‘or’.   

 

Item 10—Paragraph 15Y(1)(e)

 

This item omits “subsection; or” from existing paragraph 15Y(1)(e) of the Crimes Act, and substitutes “subsection;”. 

 

This item is a stylistic drafting amendment made necessary by Item 3.  Item 3 (above) specifies that Part IAD applies to proceedings for any of the offences listed in subsection 15Y(1).  As a result of Item 3, it is not necessary for the offences listed in subsection 15Y(1) to be separated by the word ‘or’.   

 

Item 11—Subsection 15Y(2)

 

This item repeals existing subsection 15Y(2) of the Crimes Act and substitutes new subsections 15Y(2), 15Y(3), 15Y(4) and 15Y(5). 

 

New subsection 15Y(2) provides that Part IAD applies to adult complainants in proceedings for slavery, slavery-like and human trafficking offences under Divisions 270 and 271 of the Criminal Code. 

 

A proceeding to which Part IAD applies, and involves a witness(s) to whom subsection 15Y(2) (proceedings involving vulnerable adult complainants) applies, can also involve witness(s) to whom either or both subsection 15Y(1) (proceedings involving children) or subsection 15Y(3) (proceedings involving special witnesses) applies.

 

New subsection 15Y(3) provides that Part IAD can apply to special witnesses involved in proceedings for any Commonwealth offence.

 

A proceeding to which Part IAD applies, and involves a witness(s) to whom subsection 15Y(3) (proceedings involving special witnesses) applies, can also involve witness(s) to whom either or both subsection 15Y(1) (proceedings involving children) or subsection 15Y(2) (proceedings involving vulnerable adult complainants) applies.

 

New subsection 15Y(4) clarifies that the special rules for child witnesses, vulnerable adult complainants and special witnesses under Part IAD also apply in related proceedings, such as committal proceedings.   

 

New subsection 15Y(5) clarifies that a court may declare a person to be a special witness in proceedings related to a proceeding for a Commonwealth offence, such as committal proceedings.  This allows the court to declare that a person is a special witness at any stage of the court process under new subsection 15YAB(1).

 

Item 12—Section 15YA

 

This item inserts a definition of ‘ adult ’ into existing section 15YA of the Crimes Act.

 

As a result of this item, ‘adult’ is defined to mean a person who is 18 or over.

 

Item 13—Section 15YA (definition of child complainant )

 

This item omits “a proceeding” from the definition of ‘ child complainant in existing section 15YA of the Crimes Act, and substitutes “a child proceeding”.

 

This item is a consequential amendment made necessary by Items 14 and 17.  Item 14 (below) inserts a definition of ‘ child proceeding ’ into section 15YA.  As a result of Item 14, a ‘child proceeding’ is a proceeding to which subsection 15Y(1) applies .  As a result of Item 17 (below), the definition of ‘ proceeding ’ is a broader term encompassing proceedings to which subsections 15Y(1), 15Y(2) and 15Y(3) apply. 

 

Item 14—Section 15YA

 

This item inserts a definition of ‘ child proceeding ’ into existing section 15YA of the Crimes Act. 

 

As a result of this item, a ‘child proceeding’ is a proceeding to which subsection 15Y(1) applies (specified proceedings involving child witnesses, including child complainants).  The definition distinguishes proceedings to which subsection 15Y(1) applies from proceedings to which subsections 15Y(2) and 15Y(3) apply (proceedings involving vulnerable adult complainants and special witnesses, respectively).  This distinction is necessary so that the protections available to each category of witness can be easily described in Part IAD.

 

Item 15—Section 15YA (definition of child witness )

 

This item omits “a proceeding” from the definition of ‘ child witness in existing section 15YA of the Crimes Act, and substitutes “a child proceeding”.

 

This item is a consequential amendment made necessary by Items 14 and 17.  Item 14 (above) inserts a definition of ‘ child proceeding ’ into section 15YA.  As a result of Item 14, a ‘child proceeding’ is a proceeding to which subsection 15Y(1) applies .  As a result of Item 17 (below), the definition of ‘ proceeding ’ is a broader term encompassing proceedings to which subsections 15Y(1), 15Y(2) and 15Y(3) apply. 

 

Item 16—Section 15YA

 

This item inserts a definition of ‘ party ’ into existing section 15YA of the Crimes Act. 

 

As a result of this item, a ‘party’ to a proceeding is defined to include the prosecutor, each defendant and each person named in evidence given in the proceeding.  This is broader than traditional definitions of ‘party’ to a proceeding (see, for example, existing section 15M of the Crimes Act), which are generally limited to the prosecutor and each accused person. 

 

A wider definition has been adopted for the purposes of Part IAD, as being a ‘party’ allows a person to make certain applications which may equally be made by a witness as by the prosecution or defence. For example, under new subsection 15YAB(2), a party to the proceedings may apply to the court for a declaration that a person is a special witness.  It is appropriate that a person be able to apply to have themselves declared a special witness, as the personal characteristics that result in a witness requiring support or alternative arrangements to give effective evidence may be known only to the witness themselves. Consistent with traditional understandings of ‘party’ to a proceeding, the complainant is not considered to be an automatic party to the proceedings under this Part.  However, if the complainant is named as a witness in the proceedings, he or she will fall within this definition. 

 

Item 17—Section 15YA (definition of proceeding )

 

This item repeals the definition of ‘ proceeding ’ in existing section 15YA of the Crimes Act, and substitutes a new definition.

 

As a result of this item, ‘proceeding’ is defined to mean a proceeding to which one or more of subsections 15Y(1), 15Y(2) and 15Y(3) applies.  This amendment is necessary to reflect the expansion of the protections available under Part IAD to apply in proceedings involving vulnerable adult complainants and special witnesses, in addition to the specified proceedings listed in subsection 15Y(1) involving child witnesses.

 

Item 18—Section 15YA

 

This item inserts definitions for the terms ‘ special witness ’, ‘ special witness proceeding ’, ‘ vulnerable adult complainant ’ and ‘ vulnerable adult proceeding ’ into existing section 15YA of the Crimes Act.  Details of each new definition are below.

 

Special witness

 

As a result of this item, ‘special witness’ has the meaning given by new subsection 15YAB(1) (see Item 19, below).

 

The cross-reference to the definition of special witness is being inserted into section 15YA for ease of reference.  New subsection 15YAB(1) provides that a person is a special witness in relation to a proceeding if the court is satisfied that the person is unlikely to be able to satisfactorily give evidence in the ordinary manner because of:

·    a disability, or

·    intimidation, distress or emotional trauma arising from the person’s age, cultural background, or relationship to a party to the proceeding, or the nature of the evidence, or some other relevant factor. 

 

Special witness proceeding

 

As a result of this item, ‘special witness proceeding’ is defined to mean a proceeding to which subsection 15Y(3) applies.  New subsection 15Y(3) provides that Part IAD can apply to special witnesses involved in proceedings for any Commonwealth offence. 

 

Vulnerable adult complainant

 

As a result of this item, ‘vulnerable adult complainant’ has the meaning given by new section 15YAA (see Item 19, below).

 

The cross-reference to the definition of vulnerable adult complainant is being inserted into section 15YA for ease of reference.  New section 15YAA provides that a vulnerable adult complainant is an adult who is, or is alleged to be, a victim of a slavery, slavery-like or human trafficking offence under Division 270 or 271 of the Criminal Code.

 

Vulnerable adult proceeding 

 

As a result of this item, ‘vulnerable adult proceeding’ is defined to mean a proceeding to which subsection 15Y(2) applies.  New subsection 15Y(2) provides that Part IAD applies to vulnerable adult complainants in proceedings for slavery, slavery-like and human trafficking offences under Divisions 270 and 271 of the Criminal Code.

 

Item 19—After section 15YA

 

This item inserts new sections 15YAA and 15YAB after existing section 15YA of the Crimes Act. 

 

New section 15YAA sets out the meaning of ‘vulnerable adult complainant’.  Under section 15YAA, a vulnerable adult complainant is defined as an adult who is, or is alleged to be, a victim of an offence referred to in subsection 15Y(2).  New subsection 15Y(2) refers to slavery, slavery-like and human trafficking offences under Divisions 270 and 271 of the Criminal Code.  As these crimes necessarily involve the serious exploitation of the victim, often resulting in lifelong and traumatic consequences, it is appropriate that complainants in proceedings for these offences are considered to be vulnerable and afforded appropriate support and protection.

 

To recognise the individual agency and decision-making ability of adult complainants, the definition has been modelled so that an adult complainant in proceedings for a slavery, slavery-like or human trafficking offence can choose not to be considered a vulnerable adult complainant for the purposes of those proceedings, and therefore to not to be covered by the protections available under Part IAD.

 

New section 15YAB s ets out the meaning of ‘special witness’.  Under section 15YAB, a person is a special witness in relation to a proceeding if the court is satisfied that the person is unlikely to be able to satisfactorily give evidence in the ordinary manner because of:

·    a disability, or

·    intimidation, distress or emotional trauma arising from the person’s age, cultural background, or relationship to a party to the proceeding, or the nature of the evidence, or some other relevant factor. 

 

A court may declare that a person is a special witness in relation to the proceeding during the proceeding, or in a related proceeding (such as committal proceedings).  Such a declaration can be made on the court’s own initiative, or on application by or on behalf of a party to the proceeding. 

 

This amendment recognises that a witness may have a characteristic that may require them to be given support or access to alternative arrangements in order to effectively give evidence, such as age, disability or language, regardless of the nature of the offence.  However, as the listed factors may not render a witness inherently vulnerable, it is appropriate for the court to determine whether a particular witness should be considered a special witness on a case by case basis. 

 

Unlike child witnesses and vulnerable adult complainants, not all of the protections provided by Part IAD of the Crimes Act will be available automatically to a person declared to be a special witness under new subsection 15YAB(1).  New subsection 15YAB(3) sets out a number of protections that may apply to persons declared to be special witnesses if the court so orders.  An order under subsection 15YAB(3) may be made on the court’s own initiative or on application by or on behalf of the special witness.

 

Item 20—Subsections 15YB(1) and 15YC(1)

 

This item omits “a proceeding” from existing subsections 15YB(1) and 15YC(1) of the Crimes Act, and substitutes “a child proceeding”.

 

This item is a consequential amendment made necessary by Items 14 and 17.  Item 14 (above) inserts a definition of ‘ child proceeding ’ into section 15YA.  As a result of Item 17, a ‘child proceeding’ is a proceeding to which subsection 15Y(1) applies .  As a result of Item 17 (above), the definition of ‘ proceeding ’ is a broader term encompassing proceedings to which subsections 15Y(1), 15Y(2) and 15Y(3) apply. 

 

Item 21—Subsection 15YE(1)

 

This item repeals existing subsection 15YE(1) of the Crimes Act and substitutes a new subsection 15YE(1).  New subsection 15YE(1) provides that, during cross-examination, a court must disallow an inappropriate or unnecessarily aggressive question put to a person to whom subsection 15YE(3) applies.  New subsection 15YE(3) (see Item 23, below) applies to child witnesses, vulnerable adult complainants, and special witnesses.

 

This item is intended to ensure that, in addition to child witnesses, vulnerable adult complainants and special witnesses can be cross-examined without undue harassment or trauma, enabling them to give satisfactory evidence to the court.

 

Unlike some other protections extended to special witnesses under Part IAD as a result of this Bill, the court must disallow inappropriate or unnecessarily aggressive questions put to any person determined to be a special witness during cross-examination, without the need for an order to be made under subsection 15YAB(3).

 

Item 22—Subsection 15YE(2)

 

This item omits “child witness” from existing subsection 15YE(2) of the Crimes Act, and substitutes “person’s”.

 

This item is a consequential amendment made necessary by Items 21 and 23.  Items 21 (above) and 23 (below) extend the protection in section 15YE (about inappropriate or unnecessarily aggressive questions) so that it applies to vulnerable adult complainants and special witnesses, in addition to child witnesses.

 

As a result of this item, in determining whether a question put to a child witness, vulnerable adult complainant, or special witness during cross-examination is inappropriate or unnecessarily aggressive, the court is required to have regard to the person’s particular characteristics, including age, culture, mental capacity and gender.

 

This item is intended to ensure that the court can consider the specific factors that might result in undue harassment or trauma for the particular child witness, vulnerable adult complainant, or special witness, who is giving evidence.  As the majority of identified victims of slavery, slavery-like and human trafficking offences to date have been from culturally and linguistically diverse backgrounds, and special witnesses will be afforded protection under Part IAD due to a particular characteristic, it is important that the court can consider the individual circumstances of the witness in determining whether a question is inappropriate or unnecessarily aggressive. 

 

Item 23—At the end of section 15YE

 

This item inserts a new subsection 15YE(3) at the end of section 15YE of the Crimes Act.  New subsection 15YE(3) applies to child witnesses, vulnerable adult complainants, and special witnesses.

 

As a result of this item, the protection in section 15YE (about inappropriate or unnecessarily aggressive questions) applies to vulnerable adult complainants and special witnesses, in addition to child witnesses.

 

Item 24—Subsection 15YF(1)

 

This item omits “a proceeding” from existing subsection 15YF(1) of the Crimes Act, and substitutes “a child proceeding”.

 

This item is a consequential amendment made necessary by Items 14 and 17.  Item 14 (above) inserts a definition of ‘ child proceeding ’ into section 15YA.  As a result of Item 17, a ‘child proceeding’ is a proceeding to which subsection 15Y(1) applies .  As a result of Item 17 (above), the definition of ‘ proceeding ’ is a broader term encompassing proceedings to which subsections 15Y(1), 15Y(2) and 15Y(3) apply. 

 

Item 25—Section 15YG (heading)

 

This item omits “ child witnesses ” from the heading of existing section 15YG of the Crimes Act, and substitutes “ vulnerable persons ”, to better reflect the contents of the section.



Items 26 and 27 (below), extend the protection in section 15YG (about unrepresented defendants) so that it applies to vulnerable adult complainants and special witnesses (for whom an order is in force), in addition to child witnesses.

 

Item 26—Subsection 15YG(1)

 

This item omits “child witness (other than a child complainant)” from existing subsection 15YG(1) of the Crimes Act, and substitutes “person to whom subsection (1A) applies (the vulnerable person )”.  New subsection 15YG(1A) (see Item 27, below) applies to child witnesses (other than child complainants), vulnerable adult complainants, and special witnesses for whom an order under subsection 15YAB(3) is in force for section 15YG.

 

As a result of this item, an unrepresented defendant is not to cross-examine a child witness (other than a child complainant), a vulnerable adult complainant, or a special witness (for whom an order is in force), without leave of the court.  Child complainants cannot be cross-examined by unrepresented defendants under existing section 15YF.

 

This item is intended to ensure that, in addition to child witnesses, vulnerable adult complainants and special witnesses ( for whom an order is in force ) can be cross-examined without undue harassment or trauma, enabling them to give satisfactory evidence to the court.

 

Item 27—After subsection 15YG(1)

 

This item inserts a new subsection 15YG(1A) after existing subsection 15YG(1) of the Crimes Act.  New subsection 15YG(1A) applies to child witnesses (other than child complainants), vulnerable adult complainants, and special witnesses for whom an order under subsection 15YAB(3) is in force for section 15YG.

 

As a result of this item, the protection in section 15YG (about unrepresented defendants) applies to vulnerable adult complainants and special witnesses (for whom an order is in force), in addition to child witnesses.

 

Item 28—Subsection 15YG(2)

 

This item omits “unless satisfied that the child’s” from existing subsection 15YG(2) of the Crimes Act, and substitutes “under subsection (1) unless satisfied that the vulnerable person’s”.

 

This item is a consequential amendment made necessary by Items 26 and 27.  Items 26 and 27 (above) extend the protection in section 15YG (about unrepresented defendants) so that it applies to vulnerable adult complainants and special witnesses (for whom an order is in force), in addition to child witnesses.

 

Item 29—Before paragraph 15YG(4)(a)

 

This item inserts new paragraph 15YG(4)(aa) before existing paragraph 15YG(4)(a) of the Crimes Act.  New paragraph 15YG(4)(aa) provides that an application for leave for an unrepresented defendant to cross-examine a vulnerable adult complainant may be made by, or on behalf of, either the defendant or the vulnerable adult complainant.

 

This item is intended to recognise the individual agency and decision-making ability of vulnerable adult complainants, who may wish to have the opportunity to be cross-examined directly by the defendant in some circumstances.

 

Item 30—Subsection 15YG(5)

 

This item omits the references to “child” in existing subsection 15YG(5) of the Crimes Act, and substitutes “vulnerable person”.

 

This item is a consequential amendment made necessary by Items 26 and 27.  Items 26 and 27 (above) extend the protection in section 15YG (about unrepresented defendants) so that it applies to vulnerable adult complainants and special witnesses (for whom an order is in force), in addition to child witnesses.

 

Item 31—Section 15YH (heading)

 

This item omits “ child witnesses and child complainants ” from the heading of existing section 15YH of the Crimes Act, and substitutes “ vulnerable persons ”, to better reflect the contents of the section.



Items 33 and 34 (below), extend the protection in section 15YH (about represented defendants) so that it applies to vulnerable adult complainants and special witnesses (for whom an order is in force), in addition to child witnesses.

 

Item 32—Section 15YH

 

This item inserts the text “(1)” before the text at existing section 15YH of the Crimes Act.

 

This item means that the text in existing section 15YH will become new subsection 15YH(1).  This item is a consequential amendment made necessary by Item 34.  Item 34 (below) adds an additional subsection to section 15YH.  

 

Item 33—Section 15YH

 

This item omits “a child witness or a child complainant except through counsel” from existing section 15YH of the Crimes Act, and substitutes “, except through counsel, a person to whom subsection (2) applies”.  New subsection 15YH(2) (see Item 34, below) applies to child witnesses, vulnerable adult complainants, and special witnesses for whom an order is in force under subsection 15YAB(3) for section 15YH.

 

As a result of this item, a represented defendant is not to cross-examine, except through counsel, a child witness, a vulnerable adult complainant, or a special witness (for whom an order is in force).

 

This item is intended to ensure that, in addition to child witnesses, vulnerable adult complainants and special witnesses ( for whom an order is in force ) can be cross-examined without undue harassment or trauma, enabling them to give satisfactory evidence to the court.

 

Item 34—At the end of section 15YH

 

This item inserts a new subsection 15YH(2) after existing section 15YH of the Crimes Act.  New subsection 15YH(2) applies to child witnesses, vulnerable adult complainants, and special witnesses for whom an order under subsection 15YAB(3) is in force for section 15YH.

 

As a result of this item, the protection in section 15YH (about represented defendants) applies to vulnerable adult complainants and special witnesses (for whom an order is in force), in addition to child witnesses.

Item 35—Division 4 of Part IAD (heading)

 

This item omits “ child witnesses ” from the heading of existing Division 4 of Part IAD of the Crimes Act, and substitutes “ vulnerable persons ”, to better reflect the contents of the Division.

 

The item is necessary to reflect the expansion of the Division to provide special facilities for giving evidence to vulnerable adult complainants and special witnesses, in addition to child witnesses.

 

Item 36—Subsection 15YI(1)

 

This item omits “A child witness’ evidence in a proceeding” from existing subsection 15YI(1) of the Crimes Act, and substitutes “Evidence in a proceeding from a person to whom subsection (1A) applies (the vulnerable person )”.  New subsection 15YI(1A) (see Item 39, below) applies to child witnesses, vulnerable adult complainants, and special witnesses for whom an order under subsection 15YAB(3) is in force for section 15YI.

 

As a result of this item, the evidence of vulnerable adult complainants and special witnesses (for whom an order is in force), must be given by means of closed-circuit television, unless the witness is over 16 and chooses not to give evidence by that means, the court orders the witness is not to give evidence by that means, or the court is not equipped with facilities for closed-circuit television. 

 

This item is intended to ensure that, in addition to child witnesses, vulnerable adult complainants and special witnesses (for whom an order is in force) are able give evidence without being physically present in the courtroom.  This will ensure vulnerable adult complainants and special witnesses (for whom an order is in force) are in a position to present their best testimony to the court, by minimising the risk of intimidation, additional trauma, fear for personal safety and/or undue public embarrassment.   

 

This item is also intended to recognise the individual agency and decision-making ability of witnesses over the age of 16, who may wish to give their evidence in the courtroom, rather than by closed-circuit television, in some circumstances.

 

Item 37—Paragraphs 15YI(1)(a) and (b)

 

This item omits “child” from existing paragraphs 15YI(a) and (b) of the Crimes Act, and substitutes “vulnerable person”.

 

This item is a consequential amendment made necessary by Items 36 and 39.  Items 36 (above) and 39 (below) extend the protection in section 15YI (about closed-circuit television) so that it applies to vulnerable adult complainants and special witnesses (for whom an order is in force), in addition to child witnesses.

 

Item 38—Subsection 15YI(1) (note)

 

This item omits “child witness” from the note to existing subsection 15YI(1) of the Crimes Act, and substitutes “vulnerable person”.

 

This item is a consequential amendment made necessary by Items 36 and 39.  Items 36 (above) and 39 (below) extend the protection in section 15YI (about closed-circuit television) so that it applies to vulnerable adult complainants and special witnesses (for whom an order is in force), in addition to child witnesses.

 

Item 39—After subsection 15YI(1)

 

This item inserts new subsection 15YI(1A) after existing subsection 15YI(1) of the Crimes Act.  New subsection 15YI(1A) applies to child witnesses, vulnerable adult complainants and special witnesses for whom an order under subsection 15YAB(3) is in force for section 15YI. 

 

As a result of this item, the protection in section 15YI (about closed-circuit television) applies to vulnerable adult complainants and special witnesses (for whom an order is in force), in addition to child witnesses.

 

Item 40—Subsection 15YI(2)

 

This item omits “child witness’” from existing subsection 15YI(2) of the Crimes Act, and substitutes “vulnerable person’s”.

 

This item is a consequential amendment made necessary by Items 36 and 39.  Items 36 and 39 (above) extend the protection in section 15YI (about closed-circuit television) so that it applies to vulnerable adult complainants and special witnesses (for whom an order is in force), in addition to child witnesses.

 

Item 41—Subsection 15YJ(1)

 

This item omits “child witness’ evidence” from existing subsection 15YJ(1) of the Crimes Act, and substitutes “vulnerable person’s evidence”.

 

This item is a consequential amendment made necessary by Items 36 and 39.  Items 36 and 39 (above) extend the protection in section 15YI (about closed-circuit television) so that it applies to vulnerable adult complainants and special witnesses (for whom an order is in force), in addition to child witnesses.  Section 15YJ sets out matters related to giving evidence by means of closed-circuit television.   

 

Item 42—Paragraph 15YJ(1)(c)

 

This item omits the references to “child” in existing paragraph 15YJ(1)(c) of the Crimes Act, and substitutes “vulnerable person”.

 

This item is a consequential amendment made necessary by Items 36 and 39.  Items 36 and 39 (above) extend the protection in section 15YI (about closed-circuit television) so that it applies to vulnerable adult complainants and special witnesses (for whom an order is in force), in addition to child witnesses.  Section 15YJ sets out matters related to giving evidence by means of closed-circuit television.   

 

Item 43—Subsection 15YJ(2)

 

This item omits “15YM” from existing subsection 15YJ(2) of the Crimes Act and substitutes “15YO (about accompanying adults)”.

 

Subsection 15YJ(1) provides that the court may order that a court officer or another person accompany a witness giving evidence by means of closed-circuit television.  Existing subsection 15YJ(2) states that such an order does not limit the operation of section 15YM, which relates to the admittance of a video recording as evidence in chief.  The reference to section 15YM in existing subsection 15YJ(2) is an error. 

 

This item removes the reference to section 15YM from subsection 15YJ(2), and replaces it with a reference to section 15YO (about accompanying adults).  As a result of this item, an order of the court that a court officer or another person accompany a witness giving evidence by means of closed-circuit television does not affect the ability of the witness to choose a person to accompany them while giving evidence.  

 

Item 44—Section 15YK

 

This item omits “the child witness’ evidence” from existing subsection 15YK of the Crimes Act, and substitutes “the vulnerable person’s evidence”.

 

This item is a consequential amendment made necessary by Items 36 and 39.  Items 36 and 39 (above) extend the protection in section 15YI (about closed-circuit television) so that it applies to vulnerable adult complainants and special witnesses (for whom an order is in force), in addition to child witnesses.  Section 15YK sets out matters related to viewing evidence given by means of closed-circuit television.   

 

Item 45—Section 15YK

 

This item omits the second and third references to “child” in existing section 15YK of the Crimes Act, and substitutes “vulnerable person”.

 

This item is a consequential amendment made necessary by Items 36 and 39.  Items 36 and 39 (above) extend the protection in section 15YI (about closed-circuit television) so that it applies to vulnerable adult complainants and special witnesses (for whom an order is in force), in addition to child witnesses.  Section 15YK sets out matters related to viewing evidence given by means of closed-circuit television.   

 

Item 46—Subsection 15YL(1)

 

This item omits “a child witness’ evidence in a proceeding” from existing subsection 15YL(1) of the Crimes Act, and substitutes “evidence in a proceeding from a person to whom subsection (3) applies”.  New subsection 15YL(3) (see Item 49, below) applies to child witnesses, vulnerable adult complainants, and special witnesses for whom an order under subsection 15YAB(3) is in force for section 15YL.

 

As a result of this item, if the evidence of a vulnerable adult complainant or special witness (for whom an order is in force) is not given by means of closed-circuit television (for example, because the court is not equipped with appropriate facilities), the court must make arrangements in order to restrict the contact (including visual contact) the witness will have with the defendant, and may restrict the contact (including visual contact) the witness will have with members of the public, while giving evidence.  Such arrangements may include the use of screens or planned seating.  The protections in section 15YL do not apply if the witness is over 16 and chooses not to give evidence under the arrangements.  

 

This item is intended to ensure that, in addition to child witnesses, vulnerable adult complainants and special witnesses (for whom an order is in force) who do not give evidence by means of closed-circuit television are still able to give evidence with some protection from contact with the defendant and members of the public.  This will ensure vulnerable adult complainants and special witnesses (for whom an order is in force) are in a position to present their best testimony to the court, by minimising the risk of intimidation, additional trauma, fear for personal safety and/or undue public embarrassment.   

 

Item 47—Paragraphs 15YL(1)(a) and (b)

 

This item omits “child” from existing paragraphs 15YL(1)(a) and (b), and substitutes “person”.

 

This item is a consequential amendment made necessary by Items 46 and 49.  Items 46 (above) and 49 (below) extend the protection in section 15YL (about alternative arrangements for giving evidence) so that it applies to vulnerable adult complainants and special witnesses (for whom an order is in force), in addition to child witnesses.  

 

Item 48—Subparagraph 15YL(2)(b)(ii)

 

This item omits “child’s” from existing subparagraph 15YL(2)(b)(ii) of the Crimes Act, and substitutes “person’s”.

 

This item is a consequential amendment made necessary by Items 46 and 49.  Items 46 (above) and 49 (below) extend the protection in section 15YL (about alternative arrangements for giving evidence) so that it applies to vulnerable adult complainants and special witnesses (for whom an order is in force), in addition to child witnesses.  

 

Item 49—Subsection 15YL(3)

 

This item repeals existing subsection 15YL(3) of the Crimes Act and substitutes a new subsection 15YL(3).  New subsection 15YL(3) applies to child witnesses, vulnerable adult complainants and special witnesses for whom an order under subsection 15YAB(3) is in force for section 15YL.

 

As a result of this item, the protection in section 15YL (about alternative arrangements for giving evidence) applies to vulnerable adult complainants and special witnesses (for whom an order is in force), in addition to child witnesses, unless the witness is over the age of 16, and chooses not to give evidence under the arrangements.

 

This item is intended to recognise the individual agency and decision-making ability of witness over the age of 16, who may wish to give their evidence without the need for restricted contact, in some circumstances.

 

Item 50—Subsection 15YM(1)

 

This item omits “child witness” from existing subsection 15YM(1) of the Crimes Act, and substitutes “person to whom subsection (1A) applies”.  New subsection 15YM(1A) (see Item 51, below) applies to child witnesses, vulnerable adult complainants, and special witnesses for whom an order under subsection 15YAB(3) is in force for section 15YM.

 

As a result of this item, a video recording of an interview with a vulnerable adult complainant or a special witness (for whom an order is in force) may be admitted as evidence in chief in certain circumstances. 

 

This item is intended to ensure that, in addition to child witnesses, vulnerable adult complainants and special witnesses (for whom an order is in force) can be protected from the risk of re-traumatisation. 

 

This protection will only be available if the interview with the vulnerable adult complainant or special witness was recorded by a constable or other specified person, and if the court gives leave.  The witness must still be available for cross-examination and re-examination if evidence in chief is given by video recording.

 

Item 51—After subsection 15YM(1)

 

This item inserts new subsection 15YM(1A) after existing subsection 15YM(1) of the Crimes Act.  New subsection 15YM(1A) applies to child witnesses, vulnerable adult complainants and special witnesses for whom an order under subsection 15YAB(3) is in force for section 15YM. 

 

As a result of this item, the protection in section 15YM (about the use of video recordings) applies to vulnerable adult complainants and special witnesses (for whom an order is in force), in addition to child witnesses.

 

Item 52—Subsection 15YM(2)

 

This item omits “if satisfied that it is not in the interest of justice for the child’s” from existing subsection 15YM(2) of the Crimes Act, and substitutes “under subsection (1) if satisfied that it is not in the interest of justice for the person’s”.

 

This item is a consequential amendment made necessary by Items 50 and 51.  Items 50 and 51 (above) extend the protection in section 15YM (about the use of video recordings) so that it applies to vulnerable adult complainants and special witnesses (for whom an order is in force), in addition to child witnesses.  

 

Item 53—Subsection 15YM(4)

 

This item omits “child witness” from existing subsection 15YM(4) of the Crimes Act, and substitutes “person”.

 

This item is a consequential amendment made necessary by Items 50 and 51.  Items 50 and 51 (above) extend the protection in section 15YM (about the use of video recordings) so that it applies to vulnerable adult complainants and special witnesses (for whom an order is in force), in addition to child witnesses.   

 

Item 54—Subsection 15YN(1)

 

This item omits “child witness” from existing subsection 15YN(1) of the Crimes Act, and substitutes “person”.

 

This item is a consequential amendment made necessary by Items 50 and 51.  Items 50 and 51 (above) extend the protection in section 15YM (about the use of video recordings) so that it applies to vulnerable adult complainants and special witnesses (for whom an order is in force), in addition to child witnesses.  Section 15YN sets out the admissibility of evidence given using video recordings.   

 

Item 55—Paragraph 15YN(2)(a)

 

This item omits “child witness if the child” from existing paragraph 15YN(2)(a) of the Crimes Act, and substitutes “person if the person”.

 

This item is a consequential amendment made necessary by Items 50 and 51.  Items 50 and 51 (above) extend the protection in section 15YM (about the use of video recordings) so that it applies to vulnerable adult complainants and special witnesses (for whom an order is in force), in addition to child witnesses.  Section 15YN sets out the admissibility of evidence given using video recordings.   

 

Item 56—After Division 5 of Part IAD

 

This item inserts a new Division after existing Division 5 of Part IAD of the Crimes Act.  New Division 5A sets out special rules for a child complainant or vulnerable adult complainant’s evidence from an original proceeding to be admitted as evidence in a new proceeding.

 

The purpose of this Division is to ensure that child complainants and vulnerable adult complainants are only required to give evidence in person once, minimising the risk of re-traumatisation that may be associated with giving evidence on multiple occasions in the event a new proceeding is ordered. 

 

Section 15YNA—When this Division applies

 

New section 15YNA will set out when new Division 5A will apply.

 

Under this section, the new Division will apply if a proceeding (the ‘original proceeding’) either:

·    concludes and, on appeal, a new trial is ordered, or

·    is discontinued for any reason and as a result a new trial is listed.

 

The Division will apply regardless of whether a new trial is ordered or listed for any or all of the defendants in the original proceeding.  For example, the Division will apply where a new trial is ordered for one defendant, even if there were multiple defendants in the original proceeding.

 

Section 15YNB—Original evidence admissible in new proceeding

 

New section 15YNB sets out how a child complainant or vulnerable adult complainant’s evidence from an original proceeding may be admitted as evidence in the new proceeding.

 

Subsection 15YNB(1) allows the prosecutor to prepare a record of all the evidence given by a person set out in subsection 15YNB(4) in the original proceedings, including all evidence given by that person on examination in chief, cross-examination and re-examination.  However, this is subject to a number of conditions including that:

·    the record is in a form and is authenticated in a way prescribed under new subsection 15YNB(5), which allows the Minister to prescribe the form and ways for authenticating records prepared under this subsection, and

·    the prosecutor gives written notice to the court and to the defendants in the new proceeding of their intention to tender the record as evidence in the new proceedings at least 21 days before the court commences hearing the new proceeding, or within such other period as the court allows.

 

Under subsection 15YNB(4), this allows the evidence of a child complainant and the evidence of a vulnerable adult complainant given in the original proceeding to be admitted as evidence in the new proceeding.  Subsection 15YNB(4) will not apply to persons determined by the court to be ‘special witnesses’ or to child witnesses who are not the complainant.   This is because child complainants and vulnerable adult complainants are considered to be in a special position in relation to giving evidence in multiple proceedings.  That is, being required to re-tell the details of an alleged crime, and be cross-examined on this, is likely to be most traumatic for the persons against whom those crimes are alleged to have been committed, as opposed to persons named as witnesses only.  

 

Subsection 15YNB(2) enables the prosecutor to alter or edit this record with the agreement of all defendants to the new proceeding.  There are a number of reasons why the prosecutor and all defendants may agree to the amendment of the record produced under subsection 15YNB(1), including, for example:

·    the removal of evidence deemed irrelevant to the issues in dispute, in order to shorten the record and reduce the burden on the court, or

·    to remove any statements that would not be admissible if the original evidence of the complainant had been given orally before the court hearing the new proceedings in accordance with the usual rules and practice of the court.

 

Under subsection 15YNB(3), the record of evidence prepared under subsections 15YNB(1) and 15YNB(2) is admissible as evidence in the new proceedings, as are exhibits tendered in the original proceeding in connection with that evidence.  This will ensure that, unless section 15YNC applies, child complainants and vulnerable adult complainants will not be required to give evidence in person at a new trial, and that the prosecutor may instead rely on the evidence given by these complainants in the original proceedings, as per the record prepared under subsections 15YNB(1) and 15YNB(2). 

 

Section 15YNC—Vulnerable persons not to be made to give further evidence

 

New subsection 15YNC(1) provides that a vulnerable person whose evidence is included in a record admitted under section 15YNB will not be required to give further evidence in the new proceeding unless the court orders that this is necessary:

·    to clarify the evidence given by the vulnerable person in the original proceeding,

·    to give proper consideration of information or material that has become available since the original proceeding, or

·    in the interest of justice.

 

This ensures that a child complainant or vulnerable adult complainant whose evidence has been admitted in the new proceedings under section 15YNB cannot be compelled to give further evidence in the new proceedings unless the court orders that there are compelling reasons for them to do so.  This order can be made on the court’s own initiative or on behalf of a party to the proceeding.  As the child complainant or vulnerable adult complainant will be a witness in the new proceedings, this enables the complainant themselves to apply for an order under subsection 15YNC(3). 

 

If the court does order that the child complainant or vulnerable adult complainant give further evidence in the new proceedings, subsection 15YNC(2) provides protections to the vulnerable person when giving this further evidence.  In particular, any examination of the vulnerable person by either the prosecution or defence must be limited to the matter that caused the court to make the order.  This prevents the prosecution and the defence from being able to reopen the vulnerable person’s evidence as provided in the record admitted under section 15YNB, unless the court has specifically ordered that it is appropriate to do so.  This is designed to ensure that any trauma to the child complainant or vulnerable adult complainant associated with giving evidence in these circumstances is minimised.

 

In recognition of the individual agency of vulnerable persons, subsection 15YNC(4) allows a child complainant or vulnerable adult complainant to seek the leave of the court to give further evidence in person in the new proceedings.  If the court gives leave, subsections 15YNC(1) and (2) cease to apply, allowing a vulnerable person to give evidence, and be questioned on, any matter relevant to the proceedings.

 

Section 15YND—Defendant’s access to video recordings

 

Under new subsection 15YND(1), if the record of evidence admitted under section 15YNB includes a video recording, neither a defendant in a new proceeding or their legal representative are entitled to be given that video recording, or a copy of it.  However, under new subsection 15YND(2), a defendant or their legal representative is to be given reasonable access to the video recording in order to view it, on more than one occasion if necessary.

 

This reflects the fact that, in some circumstances, it may be inappropriate for a defendant to have unfettered custody of a video recording of a child complainant or vulnerable adult complainant.  For example, it would generally be inappropriate for a defendant in a child-sex related proceeding to retain a video recording of the child complainant.  However, in order to adequately prepare a defence to the charges before them, it is important that a defendant or their legal representative is provided with reasonable access to all the evidence to be relied upon by the prosecution, including a video recording to which this section applies.  Allowing a defendant or their legal representative reasonable access to the video recording, without entitling them to be given a copy of the recording, strikes the appropriate balance between these two competing interests. 

 

Section 15YNE—Warnings etc. not to be given about vulnerable persons’ evidence

 

Under new section 15YNE, if there is a jury in the new proceeding the judge will be prevented from warning them, or suggesting in any way, that the law requires greater or lesser weight to be given to evidence that is included in a record admitted under section 15YNB.

 

This section will ensure that a record of evidence admitted under section 15YNB is treated in the same way as if the complainant had given evidence in person.  It is intended to ensure that neither the prosecution nor the defence is advantaged or disadvantaged by the admission of a record of evidence under section 15YNB.

 

Section 15YNF—Division applies despite other rules of evidence

 

Under new section 15YNF, new Division 5A has effect despite the Evidence Act 1995 , any other law and any other rules of evidence or procedure.

 

This will ensure that all of the rules in the Evidence Act (or any other law), which may affect the admissibility of a record of evidence produced under section 15YNB do not apply. 

 

For example, under this section the hearsay rule in the Evidence Act does not:

·    prevent the admission of a record of the original evidence of the complainant under this Division, or

·    the use of that record to prove the existence of a fact that the complainant intended to assert by a representation made in the original evidence.

 

If this provision were not included, it is likely that, in practice, the hearsay rule and other rules of evidence will render a record produced under section 15YNB inadmissible, defeating the purpose of the new Division.

 

Item 57—Section 15YO (heading)

 

This item omits “ child witnesses ” from the heading of existing section 15YO of the Crimes Act, and substitutes “ vulnerable persons ”, to better reflect the contents of the section.

 

Items 58 and 60 (below), extend the protection in section 15YO (about accompanying adults) so that it applies to vulnerable adult complainants and special witnesses (for whom an order is in force), in addition to child witnesses.

 

Item 58—Subsection 15YO(1)

 

This item omits “child witness” from existing subsection 15YO(1) of the Crimes Act, and substitutes “person to whom subsection (1A) applies”.  New subsection 15YO(1A) (see Item 60, below) applies to child witnesses, vulnerable adult complainants, and special witnesses for whom an order under subsection 15YAB(3) is in force for section 15YO.

 

As a result of this item, a vulnerable adult complainant or special witness (for whom an order is in force), may have a person accompany them when giving evidence, unless the court determines it is not appropriate for the person to accompany the witness.  Section 15YO applies whether the witness is giving evidence in the courtroom or by means of closed-circuit television.  More than one person may accompany the witness, if the court considers it in the interests of justice.  The accompanying person must not prompt the witness, influence the witness’ answers or disrupt the questioning of the witness.  Any words spoken by the accompanying person must be able to be heard by the judge and any jury.  

 

This item is intended to ensure that, in addition to child witnesses, vulnerable adult witnesses and special witnesses (for whom an order is in force), are able to have a person to support them while giving evidence, when it is appropriate to do so.  This will ensure vulnerable adult complainants and special witnesses (for whom an order is in force) are in a position to present their best testimony to the court, by increasing their confidence and minimising the risk of intimidation, trauma and fear that may be associated with giving evidence.     

 

Item 59—Subsection 15YO(1)

 

This item omits the second and third references to “child” in existing subsection 15YO(1) of the Crimes Act, and substitutes “person”.

 

This item is a consequential amendment made necessary by Items 58 and 60.  Items 58 (above) and 60 (below) extend the protection in section 15YO (about accompanying adults) so that it applies to vulnerable adult complainants and special witnesses (for whom an order is in force), in addition to child witnesses.

 

Item 60—After subsection 15YO(1)

 

This item inserts new subsection 15YO(1A) after existing subsection 15YO(1) of the Crimes Act.  New subsection 15YO(1A) applies to child witnesses, vulnerable adult complainants and special witnesses for whom an order under subsection 15YAB(3) is in force for section 15YO. 

 

As a result of this item, the protection in section 15YO (about accompanying adults) applies to vulnerable adult complainants and special witnesses (for whom an order is in force), in addition to child witnesses.

 

Item 61—Subsection 15YO(2)

 

This item omits “so chosen” from existing subsection 15YO(2) of the Crimes Act and substitutes “chosen under subsection (1)”.

 

This item is a stylistic drafting amendment and has no practical effect.

 

Item 62—Subsections 15YO(2) and (3)

 

This item omits the references to “child” in existing subsections 15YO(2) and (3) of the Crimes Act, and substitutes “person”.

 

This item is a consequential amendment made necessary by Items 58 and 60.  Items 58 and 60 (above) extend the protection in section 15YO (about accompanying adults) so that it applies to vulnerable adult complainants and special witnesses (for whom an order is in force), in addition to child witnesses.

 

Item 63—Subsection 15YO(4)

 

This item omits the first reference to “child” in existing subsection 15YO(4) of the Crimes Act, and substitutes “person”.

 

This item is a consequential amendment made necessary by Items 58 and 60.  Items 58 and 60 (above) extend the protection in section 15YO (about accompanying adults) so that it applies to vulnerable adult complainants and special witnesses (for whom an order is in force), in addition to child witnesses.

 

Item 64—Paragraph 15YO(4)(a)

 

This item omits “child or otherwise influence the child’s” from existing paragraph 15YO(4)(a) of the Crimes Act, and substitutes “person or otherwise influence the person’s”.

 

This item is a consequential amendment made necessary by Items 58 and 60.  Items 58 and 60 (above) extend the protection in section 15YO (about accompanying adults) so that it applies to vulnerable adult complainants and special witnesses (for whom an order is in force), in addition to child witnesses.

 

Item 65—Paragraph 15YO(4)(b)

 

This item omits “child” from existing paragraph 15YO(4)(b) of the Crimes Act, and substitutes “person”.

 

This item is a consequential amendment made necessary by Items 58 and 60.  Items 58 and 60 (above) extend the protection in section 15YO (about accompanying adults) so that it applies to vulnerable adult complainants and special witnesses (for whom an order is in force), in addition to child witnesses.

 

Item 66—Subsection 15YO(5)

 

This item omits “child” from existing subsection 15YO(5) of the Crimes Act, and substitutes “person”.

 

This item is a consequential amendment made necessary by Items 58 and 60.  Items 58 and 60 (above) extend the protection in section 15YO (about accompanying adults) so that it applies to vulnerable adult complainants and special witnesses (for whom an order is in force), in addition to child witnesses.

 

Item 67—Section 15YP

 

This item repeals existing section 15YP of the Crimes Act, and substitutes a new section 15YP.  New section 15YP provides that a court may order some or all of the members of the public be excluded from the courtroom when a child witness, vulnerable adult complainant, or special witness for whom an order under subsection 15YAB(3) is in force for section 15YP is giving evidence in a proceeding.

 

While the principle of open justice is fundamental, it is well established that the right of the public to open justice must be balanced against the right of participants in the criminal justice system to safety and protection from undue distress or public embarrassment.  Whether or not to make an order excluding people from the courtroom will be a matter for the court’s discretion.  In determining whether to make such an order, the court should consider the balance between the principle of open justice and the effect on the witness’ ability to give effective evidence in open court.     

 

Given the exploitative nature of slavery, slavery-like and human trafficking offences, it is appropriate that the court be empowered to exclude members of the public from the courtroom while a vulnerable adult complainant is giving evidence.

 

A special witness may also have a particular vulnerability that the court considers will require members of the public to be excluded from the courtroom while the special witness is giving evidence.

 

Item 68—Section 15YQ (heading)

 

This item omits “ children’s ” from the heading of existing section 15YQ of the Crimes Act, and substitutes “ vulnerable persons ”, to better reflect the contents of the section.

 

Items 70 and 73 (below), extend section 15YQ (about warnings) so that it applies to vulnerable adult complainants and special witnesses, in addition to child witnesses.

 

Item 69—Section 15YQ

 

This item inserts the text “(1)” before the text at existing section 15YQ of the Crimes Act.

 

This item means that the text in existing section 15YQ will become new subsection 15YQ(1).  This item is a consequential amendment made necessary by Item 73.  Item 73 (below) adds an additional subsection to section 15YQ.  

 

Item 70—Section 15YQ

 

This item omits “child witness” from existing section 15YQ of the Crimes Act, and substitutes “person to whom subsection (2) applies”.  New subsection 15YQ(2) (see Item 73, below) applies to child witnesses, vulnerable adult complainants and special witnesses.

 

As a result of this item, a judge is not to warn a jury, or suggest to a jury, that the law regards child witnesses, vulnerable adult complainants or special witnesses as an unreliable class of witness.

 

The extension of vulnerable witness protections (including special facilities for giving evidence) to vulnerable adult complainants and special witnesses is intended to enable them to give their best, and therefore most reliable, evidence to the court.  This item is intended to clarify that, in addition to child witnesses, a vulnerable adult complainant or special witness is not an unreliable witness by virtue of that fact.   

 

Section 15YQ is intended to apply automatically to any person determined to be a special witness.

 

Item 71—Paragraph 15YQ(a)

 

This item repeals existing paragraph 15YQ(a) of the Crimes Act, and substitutes a new paragraph 15YQ(1)(a).  New paragraph 15YQ(1)(a) provides that section 15YQ applies to the persons to whom subsection 15YQ(2) applies.

 

This item is a consequential amendment made necessary by Items 70 and 73.  Items 70 (above) and 73 (below) extend section 15YQ (about warnings) so that it applies to vulnerable adult complainants and special witnesses, in addition to child witnesses.

 

Item 72—Paragraph 15YQ(d)

 

This item omits “child” from existing paragraph 15YQ(d) of the Crimes Act, and substitutes “person”.

 

This item is a consequential amendment made necessary by Items 70 and 73.  Items 70 (above) and 73 (below) extend section 15YQ (about warnings) so that it applies to vulnerable adult complainants and special witnesses, in addition to child witnesses.

 

Item 73—At the end of section 15YQ

 

This item inserts new subsection 15YQ(2) at the end of existing section 15YQ of the Crimes Act.  New subsection 15YQ(2) applies to child witnesses, vulnerable adult complainants and special witnesses.

 

As a result of this item, subsection 15YQ(1) (about warnings) applies to vulnerable adult complainants and special witnesses, in addition to child witnesses.

 

It is intended that section 15YQ will apply automatically any person determined to be a special witness.

 

Item 74—Section 15YR (heading)

 

This item omits “ child complainants ” from the heading of existing section 15YR of the Crimes Act, and substitutes “ vulnerable adult complainants ”, to better reflect the contents of the section.

 

Items 75 and 76 (below) extend the non-publication offence in section 15YR so that it applies to publishing matters identifying vulnerable adult complainants, in addition to child witnesses.

 

Item 75—Paragraph 15YR(1)(c)

 

This item repeals existing paragraph 15YR(1)(c) of the Crimes Act, and substitutes new paragraphs 15YR(1)(c) and 15YR(1)(d). 

 

New paragraph 15YR(1)(c) extends the non-publication offence in existing section 15YR to apply to the publication of matters that identify, or are likely to lead to the identification of, a person to whom subsection 15YR(1A) applies.  New subsection 15YR(1A) (see Item 76, below) applies to child witnesses and vulnerable adult complainants.

 

As a result of this item, it is an offence to publish, without leave of the court, any matter identifying a child witness or vulnerable adult complainant.  Many human trafficking and slavery schemes involve organised crime groups, and victims participating in the criminal justice process may face threats of retribution against themselves or their families.  Victims of slavery, slavery-like and human trafficking offences who have made a contribution to an investigation or prosecution of an alleged slavery, slavery-like or human trafficking offence may be eligible for a Witness Protection (Trafficking) (Permanent) visa (WPTV) if they would be in danger upon return to their home country.  The WPTV allows the holder to remain in Australia permanently.  Under existing arrangements, victims who have been issued a WPTV in recognition of the danger they face as a result of their contribution to the criminal justice process may be unable to obtain an order from the court to suppress their identity, placing them at further risk.

 

Extending the non-publication offence to prevent the identification of victims of slavery, slavery-like and human trafficking offences also protects their right to privacy and to be protected from the stigmatisation and undue public embarrassment that may result from the nature of the offence committed against them. 

 

New paragraph 15YR(1)(d) clarifies that the non-publication offence in section 15YR does not apply to the publication of matters that identify, or are likely to lead to the identification of, a witness who is a defendant in the proceedings. 

 

This amendment does not make it an offence to publish matters that identify, or are likely to lead to the identification of, special witnesses.  While the nature of child sex offences and slavery, slavery-like and human trafficking offences justify a non-publication offence, such an offence would not be appropriate to apply to all categories of persons who might be determined to be a special witness.  For example, a person with a disability may require access to special facilities in order to give effective evidence, but would not likely require their identity to be suppressed.  Special witnesses may, however, still qualify for a suppression order under section 50 of the Federal Court of Australia Act 1976 and equivalent State and Territory legislation.  

 

Item 76—After subsection 15YR(1)

 

This item inserts new subsection 15YR(1A) after existing subsection 15YR(1) of the Crimes Act.  New subsection 15YR(1A) applies to child witnesses and vulnerable adult complainants. 

 

As a result of this item, the non-publication offence in section 15YR applies to publishing matters identifying vulnerable adult complainants, in addition to child witnesses.

 

Item 77—Paragraphs 15YR(4)(a) and (b)

 

This item omits “child witness or child complainant” from existing paragraphs 15YR(4)(a) and 15YR(4)(b) of the Crimes Act, and substitutes “vulnerable person”.

 

This item is a consequential amendment made necessary by Items 75 and 76.  Items 75 and 76 (above) extend the non-publication offence in section 15YR so that it applies to publishing matters identifying vulnerable adult complainants, in addition to child witnesses.  

 

Item 78—Section 15YT

 

This item repeals existing section 15YT of the Crimes Act, and substitutes a new section 15YT.  New section 15YT provides that nothing in Part IAD affects the operation of Division 279 of the Criminal Code (about video link evidence).  New Division 279 of the Criminal Code (see Item 85, below) sets out provisions for the court to hear evidence by video link from witnesses located overseas in proceedings for slavery, slavery-like and human trafficking offences, in addition to proceedings for child sex, child pornography and child abuse material offences outside Australia

 

Criminal Code Act 1995

 

Item 79—At the end of subsection 270.12(1) of the Criminal Code

 

This item adds a note at the end of existing subsection 270.12(1) of the Criminal Code to specify that Division 279 (about video link evidence) applies to a proceeding for an offence against Division 270 (about slavery and slavery-like conditions).  Existing subsection 270.12(1) provides that Division 270 is not intended to exclude or limit the operation of any other law of the Commonwealth or any law of a State or Territory.

 

This item is being inserted into section 270.12 for ease of reference.  As a result of Item 85 (below), new Division 279 will allow the court to hear evidence from witnesses located overseas in proceedings for slavery and slavery-like practices, including servitude, forced labour, deceptive recruiting for labour or services, and forced marriage.

 

Item 80—At the end of subsection 271.12(1) of the Criminal Code

 

This item adds a note at the end of existing subsection 271.12(1) of the Criminal Code to specify that Division 279 (about video link evidence) applies to a proceeding for an offence against Division 271 (about trafficking in persons and debt bondage).  Existing subsection 271.12(1) provides that Division 271 is not intended to exclude or limit the operation of any other law of the Commonwealth or any law of a State or Territory.

 

This item is being inserted into section 271.12 for ease of reference.  As a result of Item 85 (below) new Division 279 will allow the court to hear evidence from witnesses located overseas in proceedings for trafficking in persons, including trafficking in children and organ trafficking, harbouring a victim, and debt bondage.

 

Item 81 - At the end of section 272.7 of the Criminal Code

 

This item adds a note at the end of existing section 272.7 of the Criminal Code to specify that Division 279 (about video link evidence) applies to a proceeding for an offence against Division 272 (about child sex offences outside Australia).  Existing section 272.7 provides that Division 272 is not intended to exclude or limit the operation of any other law of the Commonwealth or any law of a State or Territory.

 

This item is being inserted into section 272.7 for ease of reference.  As a result of Item 82 (below) existing Subdivision D of Division 272 (about video link evidence) will be repealed.  As a result of Item 85 (below) the court’s existing ability to hear evidence from witnesses located overseas in proceedings for child sex offences outside Australia will be provided for in new Division 279, rather than in Subdivision D of Division 272.  The video link evidence provisions in Division 272 are being moved to new Division 279 to simplify the video link evidence provisions that apply to specified offences under Chapter 8 of the Criminal Code, including slavery, slavery-like and human trafficking offences, in addition to proceedings for child sex, child pornography and child abuse material offences outside Australia.   

 

Item 82—Subdivision D of Division 272 of the Criminal Code

 

This item repeals existing Subdivision D of Division 272, which sets out the video link evidence provisions that apply to proceedings for child sex offences outside Australia.  As a result of Item 85 (below) the court’s existing ability to hear evidence from witnesses located overseas in proceedings for child sex offences outside Australia will be provided for in new Division 279, rather than in Subdivision D of Division 272.  The video link evidence provisions in Division 272 are being moved to new Division 279 to simplify the video link evidence provisions that apply to specified offences under Chapter 8 of the Criminal Code, including slavery, slavery-like and human trafficking offences, in addition to proceedings for child sex, child pornography and child abuse material offences outside Australia.

 

Item 83—At the end of section 273.4 of the Criminal Code

 

This item adds a note at the end of existing subsection 273.4 of the Criminal Code to specify that Division 279 (about video link evidence) applies to a proceeding for an offence against Division 273 (about child pornography or child abuse material offences outside Australia).  Existing section 273.4 provides that Division 273 is not intended to exclude or limit the operation of any other law of the Commonwealth or any law of a State or Territory.

 

This item is being inserted into section 273.4 for ease of reference.  As a result of Item 84 (below), existing Subdivision D of Division 273 (about video link evidence) will be repealed.  As a result of Item 85 (below), the court’s existing ability to hear evidence from witnesses located overseas in proceedings for child pornography or child abuse material offences outside Australia will be provided for in new Division 279, rather than in Subdivision D of Division 273.  The video link evidence provisions in Division 273 are being moved to new Division 279 to simplify the video link evidence provisions that apply to specified offences under Chapter 8 of the Criminal Code, including slavery, slavery-like and human trafficking offences, in addition to proceedings for child sex, child pornography and child abuse material offences outside Australia.   

    

Item 84—Subdivision D of Division 273 of the Criminal Code

 

This item repeals existing Subdivision D of Division 273, which sets out the video link evidence provisions that apply to proceedings for child pornography or child abuse material offences outside Australia.  As a result of Item 85 (below), the court’s existing ability to hear evidence from witnesses located overseas in proceedings for offences involving child pornography or child abuse material outside Australia will be provided for in new Division 279, rather than in Subdivision D of Division 273.  The video link evidence provisions in Division 273 are being moved to new Division 279 to simplify the video link evidence provisions that apply to specified offences under Chapter 8 of the Criminal Code, including slavery, slavery-like and human trafficking offences, in addition to proceedings for child sex, child pornography and child abuse material offences outside Australia.   

 

Item 85—At the end of Chapter 8 of the Criminal Code

 

This item inserts new Division 279 at the end of existing Chapter 8 of the Criminal Code.  Under new Division 279, the court may hear evidence by video link from witnesses located overseas during proceedings for specified offences under Chapter 8.  New Division 279 sets out the practical matters and requirements relating to hearing evidence by means of video link.

 

Under new section 279.1, the Division 279 video link evidence provisions apply to proceedings for offences against Division 270 (slavery and slavery-like conditions), Division 271 (trafficking in persons and debt bondage), Division 272 (child sex offences outside Australia), and Division 273 (offences involving child pornography material or child abuse material outside Australia). 

 

The existing video link evidence provisions in Divisions 272 and 273 are being moved to new Division 279 to simplify the video link evidence provisions that apply to offences against Chapter 8 of the Criminal Code.

 

The video link evidence provisions in the Criminal Code are being extended to proceedings for the slavery, slavery-like and human trafficking offences under Divisions 270 and 271 because, like child sex tourism and child pornography offences, these offences often involve a transnational element, and may therefore require witnesses who live overseas to give evidence.  To maximise the ability of the courts to obtain relevant witness evidence it is important that witnesses located overseas can give evidence by video link.  This will ensure witnesses are not precluded from giving their evidence due to the potential cost, inconvenience, harm, trauma or distress they would face in travelling to Australia to give evidence.

 

New sections 279.2 (when a court may take evidence by video link), 279.3 (technical requirements for video link), 279.4 (application of laws about witnesses), 279.5 (administration of oaths and affirmations), 279.6 (expenses) and 279.7 (other laws about foreign evidence not affected) replicate the existing practical matters and requirements relating to video link evidence that are contained within existing Subdivision D of Division 272, and existing Subdivision D of Division 273. 

 

Part 2—Victim impact statements

 

Crimes Act 1914

 

Item 86—Subsection 16(1)

 

This item inserts a definition of ‘ family ’ into existing subsection 16(1) of the Crimes Act.  As a result of this item, ‘family’ is taken to have a meaning affected by subsection 16A(4) (see Item 91, below). 

 

Item 87—Subsection 16(1)

 

This item inserts a definition of ‘ harm ’ into existing subsection 16(1) of the Crimes Act.  As a result of this item, ‘harm’ is defined to include physical, psychological and emotional suffering, economic and other loss, and damage.

 

The insertion of a scheme for the use of victim impact statements in Part IB is intended to benefit victims in terms of catharsis, vindication, healing, restoration, and being granted a voice in relation to the sentencing hearing.  For that reason, the definition of ‘harm’ is broadly defined to ensure that the victim, or the person making a statement on behalf of a victim, is able to inform the court of any detrimental effect experienced as a result of the offence.

 

Item 88—Subsection 16(1)

 

This item inserts a definition of ‘ victim impact statement ’ into existing subsection 16(1) of the Crimes Act.  As a result of this item, ‘victim impact statement’ has the meaning given by section 16AAA.

 

The cross-reference to the definition of victim impact statement is being inserted into subsection 16(1) for ease of reference.  New subsection 16AAA(1) (see Item 89, below) provides that a victim impact statement is an oral or written statement that describes the impact of an offence on an individual victim.

 

Item 89—At the end of Division 1 of Part IB

 

This item inserts new section 16AAA at the end of existing Division 1 of Part IB of the Crimes Act.  New section 16AAA sets out the definition and requirements of a victim impact statement.

 

Under new section 16AAA, a victim impact statement, for an individual who is a victim of an offence, is an oral or written statement made by an individual, a member of the individual’s family (with leave of the court), or a person appointed by the court. 

 

It is intended that victim impact statements only be made by, or on behalf of, individuals who have suffered harm as a result of a Commonwealth criminal offence.  The insertion of a scheme for the use of victim impact statements in Part IB is intended to benefit victims in terms of catharsis, vindication, healing, restoration, and being granted a voice in relation to the sentencing hearing.  W here the victim of a Commonwealth criminal offence is the Commonwealth itself or a body corporate, it is not intended that the victim be entitled to make a victim impact statement, b ecause the circumstances of the offence do not involve a crime against the person.

 

The provision for a family member, or person appointed by the court, to make a victim impact statement on behalf of the victim is intended to ensure that in circumstances where the victim has died, or is unable to make a statement due to any incapacity (for example, age), a statement about the harm suffered as a result of the offence can still be made to the court.

 

New paragraph 16AAA(1)(c) requires that, if the statement is written, it must be signed or otherwise acknowledged by the maker of the statement, and given to the prosecutor and the offender (or the offender’s legal representative) within a reasonable time before sentencing.  If the statement is to be oral, new paragraph 16AAA(1)(d) requires a written or oral summary of the statement to be given to the prosecutor and the offender (or the offender’s legal representative) within a reasonable time before sentencing.  New subsection 16AAA(2) allows the court to order that a summary of an oral statement is not required in particular cases. 

 

These requirements are intended as safeguards to ensure that the making of a victim impact statement does not prejudice the offender.

 

New subsection 16AAA(3) provides that the Minister may prescribe a form for victim impact statements.  Such a form will not restrict how victim impact statements may be made.  This amendment is intended to allow the Minister to provide a template for victim impact statements, which will serve as an example for any victim, or person making a statement on behalf of a victim, seeking guidance as to how to make a statement.  Under new subsection 16AAA(4), the Minister may delegate this power to the Secretary of the Attorney-General’s Department or an SES employee of the Department.  

 

Item 90—After paragraph 16A(2)(e)

 

This item inserts new paragraph 16A(2)(ea) after existing paragraph 16A(2)(e) of the Crimes Act.  New paragraph 16A(2)(ea) provides that, if an individual who is a victim of an offence has suffered harm as a result of the offence, a court must take any victim impact statement for the victim into account in determining the sentence to be passed.

 

Existing subsection 16A(2) of the Crimes Act lists the matters to be taken into account by the court when sentencing a federal offender, including the personal circumstances of any victim of the offence (paragraph 16A(2)(d)), and any injury, loss or damage resulting from the offence (paragraph 16A(2)(e)).  Despite these matters being sentencing factors, Part IB of the Crimes Act currently gives no guidance as to how such information should be placed before the court.

The inclusion of a victim impact statement as a matter the court must take into account during sentencing will formalise the process of the court’s consideration of the harm suffered by the victim as a result of the offence in determining an appropriate sentence for an offender.  

 

Item 91—Subsection 16A(4)

 

This item omits “this section” from existing subsection 16(4) of the Crimes Act, and substitutes “this Part”.

 

As a result of this item, the existing definition of ‘family’ in subsection 16(4) will apply to determining who is a person in the victim’s family for the purpose of making a victim impact statement.  Under subsection 16(4), the members of a person’s family are taken to include (without limitation), de facto partners, parents and children.

 

Item 92—After section 16AA

 

This item inserts a new section 16AB after existing section 16AA of the Crimes Act.  New section 16AB sets out matters relating to victim impact statements.

 

Under new subsection 16AB(2), only one victim impact statement may be made for each victim of an offence, unless the court gives leave. 

 

This provision is intended to ensure that the court is generally presented with a single statement that contains details about any detrimental effect experienced as a result of the offence.  However, the court will have the discretion to allow for more than one victim impact statement to be made for each victim if appropriate or necessary in the circumstances.  

 

Under new subsection 16AB(3), no implication is to be drawn from the absence of a victim impact statement for a victim.

 

This provision is intended to ensure that the decision about whether to make a victim impact statement is a matter of genuine choice for the victim, or the person who would make a statement on behalf of the victim.  The purpose of inserting a scheme for the use of victim impact statements in Part IB is to empower victims of Commonwealth criminal offences, and not to add to the trauma of their experiences.  If a victim, or the person who would make a statement on behalf of the victim, does not wish to, or is unable to, make a victim impact statement, the court is not to infer from this that there was little or no harm suffered as a result of the offence. 

 

Under new subsection 16AB(4), all or part of a victim impact statement may be read to the court by or on behalf of the victim.

 

This provision is intended to ensure that the victim, or the person making a statement on behalf of the victim, feels they have been granted a voice in relation to the sentencing proceedings.  This is an optional provision, and a written statement does not need to be read aloud to the court if the victim, or the person making a statement on behalf of the victim, does not choose to do so. 

 

Under new subsection 16AB(5), a victim impact is not to be read to the court, or otherwise taken into account, to the extent that it expresses an opinion about an appropriate sentence, is offensive, threatening, intimidating or harassing, or admitting it into evidence would not be in the interests of justice. 

 

Under new subsection 16AB(6), the offender may, with the leave of the court, test the facts in a victim impact statement by cross-examining the maker of the statement. 

 

These provisions are intended as safeguards to ensure that the making of a victim impact statement does not prejudice the offender.

 

Under new subsection 16AB(7), if a person reads a victim impact statement aloud under subsection 16AB(4), or is cross-examined on the facts in a victim impact statement under subsection 16AB(6), any protections available to that person under Part IAD of the Crimes Act (about protecting vulnerable persons) apply for the reading or the cross-examination.  This means that a person may use any special facilities that would be available to them under Part IAD for giving evidence in a proceeding.  For example, an adult victim of a human trafficking offence may read their victim impact statement aloud to the court by means of closed-circuit television.

 

Part 3—Application of amendments

 

Item 93—Application of amendments

 

As a result of this item, the amendments made by Schedule 2 will only apply in relation to offences committed (or alleged to have been committed) on or after the day the Schedule commences.

 

This item is intended to clarify that the supports and protections afforded to witnesses as a result of this Bill will only apply to proceedings where the offence, or alleged offence, was committed after the Schedule commences.  That is, the supports and protections are not intended to be available to witnesses in matters already before the courts at the time of commencement. 

 



Schedule 3 Deterring people smuggling

Crimes Act 1914

Item 1—Subsection 3ZQA(1) (definition of age determination information)

This item omits the words “a photograph (including an X-ray photograph) or any other record or information” from subsection 3ZQA(1) of the Crimes Act, and substitutes “a record or information”.

The intention of this item is to remove X-ray photographs from the definition of age determination information.  This amendment is necessary to respond to concerns about the accuracy of wrist X-ray materials in making a determination in relation to a person’s age.

The removal of the term “a photograph” from the definition of age determination information is appropriate in that no photograph (including an X-ray photograph) will be considered to be within the definition of age determination information.

Consequential amendments to the Crimes Regulations will be required to remove wrist X-rays as a prescribed procedure for age determination.

Item 2—Subsection 3ZQA(2)

This item omits the words “which may include the taking of an X-ray of a person’s body,” from subsection 3ZQA(1) of the Crimes Act. 

The intention of this item is to remove the taking of X-rays of a person’s body from the list of procedures that the Crimes Regulations may specify as a prescribed procedure for determining a person’s age.  This amendment is necessary to respond to concerns about the accuracy of wrist X-ray materials in making a determination in relation to a person’s age.

Consequential amendments to the Crimes Regulations will be required to remove wrist X-rays as a prescribed procedure for age determination.

Migration Act 1958

Item 3—Section 236A

This amendment repeals the existing section 236A and substitutes a new section 236A.  New section 236A provides that a court may only make an order under section 19B of the Crimes Act 1914 (discharge of offenders without conviction) in respect of a charge for an offence against section 233B, 233C or 234A if the person charged was aged under 18 when the offence was alleged to have been committed.

Proposed new section 236A will provide that a court may discharge an offender without conviction for a people smuggling offence under the Migration Act only if the person charged was aged under 18 years when the offence was alleged to have been committed.

Similar to current section 236A, proposed new section 236A will provide that a court may make an order under section 19B of the Crimes Act 1914 if the person charged with a relevant people smuggling offence was aged under 18 years when the offence was alleged to have been committed.  Section 19B of the Crimes Act allows a court to discharge certain offenders without proceeding to conviction.

The relevant offences for the purposes of section 236A are the people smuggling offences under sections 233B, 233C and 234A (consistent with existing section 236A of the Migration Act).



Item 4—At the end of Subdivision A of Division 12 of Part 2

Item 236C—Time in immigration detention counts for sentencing etc.

This item inserts a new section 236C after existing section 236B of the Migration Act.

Subsection 236C(1) sets out that section 236C applies to the court when imposing a sentence for a people smuggling offence under the Migration Act.

Subsection 236C(2) specifies that the court must take into account any period that the person has spent in immigration detention during the period starting when the offence was committed and ending when the person is sentenced for the offence.  Time spent in immigration detention during this period will be the time between the persons’ detention at the time of interception of the vessel, and the time of charge.  While an offence for people smuggling may in some circumstances commence some weeks or even months prior to interception, none of the time in between the commencement of the offence and the interception and detention of offenders could be characterised as ‘time spent in immigration detention’.  

Subsection 236C(3) specifies that nothing in this section or section 236B relating to the application of mandatory minimum penalties limits the application of section 16E of the Crimes Act 1914 from applying to the imposition of a sentencing or setting of a non-parole period.

Section 16E of the Crimes Act permits courts sentencing federal offenders to use State and Territory sentencing provisions to take into account any period that the person has spent in custody in relation to the offence concerned.

The majority of people who are investigated for people smuggling offences are unlawful non-citizens and are therefore held in immigration detention.  Experience has shown that the crew of suspected irregular entry vessels (SIEVs) can spend lengthy periods in immigration detention between arrival in Australia and possible conviction for people smuggling.  However, as immigration detention is a non-custodial and non-punitive administrative arrangement, there may be doubt as to whether section 16E of the Crimes Act, and relevant State and Territory sentencing laws, allow a court to take time spent in immigration detention into consideration when sentencing individuals for people smuggling under the Migration Act.  New subsection 236C will ensure that the periods a person spends in immigration detention between arrival in Australia and charge for people smuggling, and any subsequent period between charge and sentencing, can be taken into consideration by a court at the sentencing stage of court proceedings in relation to a people smuggling offence. 

The aim of this amendment is to ensure that, when imposing mandatory minimum penalties for people smuggling offences, all pre-sentence detention, whether administrative or custodial, is taken into account for people smugglers.  It will also ensure consistent treatment of time spent in custody and immigration detention throughout State and Territory jurisdictions.

This amendment will apply to all sentences imposed on or after the date of commencement of the Crimes Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Act.

Section 236D—Burden and standard of proof in relation to age

This item inserts a new section 236D after new section 236C of the Migration Act. 

Subsection 236B(2) of the Migration Act establishes that mandatory minimum penalties for certain people smuggling offences do not apply if it is established on the balance of probabilities that the person was aged under 18 years when the offence was committed.

Section 236D provides that, where age is at issue during court proceedings for any people smuggling offence under Subdivision A of Division 12 of Part 2 of the Migration Act, the prosecution bears the burden of proving, on the balance of probabilities, that the defendant was aged 18 or over when the offence was alleged to have been, or was, committed.

This amendment makes it clear that, where age is at issue during proceedings relating to people smuggling, the burden of proof rests with the prosecution to prove age and not with the defendant.  Experience has shown that the majority of defendants being prosecuted for people smuggling offences do not possess proof of age documentation.  This amendment ensures that such defendants are not unduly prejudiced by being required to prove age. Generally, investigative age determination processes establish age before a person is charged with a people smuggling offence.

Section 236E—Evidentiary certificates in proceedings for offences

This item inserts a new section 236E after new section 236D of the Migration Act.

This item provides for the use of evidentiary certificates in the prosecution of people smuggling offences under Subdivision A of Division 12 of the Migration Act.  It allows for matters stated in an evidentiary certificate to be received as prima facie evidence in a court. 

Different Royal Australian Navy (RAN) personnel and personnel assigned to Border Protection Command (BPC) will observe various different aspects of the boarding of a SIEV in Australian waters.  To present a court with a complete account of the boarding of a SIEV, it is necessary to obtain evidence from a large number of RAN personnel and personnel assigned to BPC.  This creates a logistical difficulty for prosecuting people smuggling offences as RAN personnel assigned to BPC have limited access to communications, other than secure communications, and because the intercepting vessels can remain on patrol for long periods for national security purposes.

It is important to minimise the time spent by RAN personnel and personnel assigned to BPC providing evidence to law enforcement agencies and appearing at court in relation to prosecutions of people smuggling offences.  It is in the interests of national security that the capacity of such personnel to carry out border protection duties be restrained as little as practicable

The evidentiary certificates inserted by this item will contain a consolidation of relevant observations made by RAN, BPC, or other relevant agency personnel, in the course of intercepting a SIEV or aircraft.  In this way, the information provided in an evidentiary certificate may not be limited to the observations of one particular officer, although it will be signed by an individual officer.

In preparing an evidentiary certificate, an officer will be required to act in accordance with principles of administrative decision making in deciding whether to include a matter.

Paragraph 236E(1)(a) permits an officer who participates in the boarding of a vessel under Division 12A of Part 2 of the Migration Act, which includes a SIEV or an aircraft, to issue a written evidentiary certificate.

Paragraph 236E(1)(b) permits the commander of a Commonwealth ship whose crew members participate in the boarding to issue a written certificate.

Paragraph 236E(1)(c) permits the commander of a vessel that chases a ship that is not boarded to issue a written evidentiary certificate.

Subsection 236E(2) provides that a court hearing a criminal prosecution of a people smuggling offence under Subdivision A of Division 12 of the Migration Act is obliged to accept such a certificate, prima facie , as evidence of the matters stated in the certificate.

Subsection 236E(3) provides that an evidentiary certificate may specify one or more of the nine matters listed at that subsection; which include the location of a vessel at the time the officer boarded it and the number of passengers on board the vessel.  This subsection is an exhaustive list of what may be included in an evidentiary certificate.  Paragraph 236E(3)(j) allows other matters that may be included in the evidentiary certificates to be prescribed by regulations. 

Subsection 236E(4) establishes that insofar as a certificate specifies whether a person is the master, owner, agent or charterer of the target ship or aircraft, such information is not required to be taken by the court as prima facie evidence under subsection 236E(3).

236F—Evidentiary certificates—procedural matters

This item inserts a new section 236F after new 236E of the Migration Act.  New section 236F establishes procedural arrangements for the issuing of evidentiary certificates under section 236E.

Subsection 236F(1) prohibits an evidentiary certificate from being admitted in evidence in particular circumstances.  If the prosecution seeks to rely on an evidentiary certificate in proceedings for an offence against Subdivision A of Division 12 of Part 2 of the Migration Act, subsection 236F(1) requires the prosecution to give  notice of the intention to produce the certificate as evidence.  Subsection 236F(1) also requires a copy of the certificate to be provided to the person charged with the relevant offence (or to a barrister or solicitor who has appeared for the person in court proceedings in relation to that charge).  The relevant notice period is at least 28 days before the certificate is sought to be admitted into evidence.

Subsection 236F(2) enables a person charged with an offence to require the person who signed a certificate to be called as a witness for the prosecution and to be cross-examined.

Subsection 236F(3) provides that a person charged with a relevant offence is not entitled to require the person who signed the evidentiary certificate to be called as a witness for the prosecution unless:

·       the prosecutor has been given at least 21 days’ notice that the person charged requires the person who signed the certificate to be called, and

·       the court, by order, allows the person charged to require the person who signed the certificate to be called.

Subsection 236F(4) makes it clear that any evidence given in support, or in rebuttal, of a matter stated in a certificate, must be considered on its merits, and the credibility and probative value of such evidence must be neither increased nor diminished by reason of this section.

Item 5—Application of amendments

Item 5 determines the way that the amendments made by Schedule 3 apply. 

Item 5(1) establishes that amendments made by items 3 to 6 will only apply in relation to offences committed (or alleged to have been committed) on or after the day the Schedule commences. 

Item 5(2) establishes that new section 236C, relating to time spent in immigration detention being taken into account at sentencing, applies in relation to sentences imposed, or non-parole periods set on or after the day the schedule commences. 

Item 5(3) establishes that new section 236D, relating to the prosecution bearing the burden of proof in relation to age, applies in relation to claims made, at or after the commencement of this Schedule, by defendants in proceedings (whether the proceedings began before, at or after that commencement.

Item 5(4) establishes that new sections 236E and 236F, relating to evidentiary certificates and procedural arrangements relating to evidentiary certificates, apply in relation to the boarding of ships or aircraft, or the chasing of ships not boarded, at or after the commencement of this Schedule.

Part 2 - Other amendments

Migration Act 1958

Item 6—Subsection 236E(1)

This item repeals subsection 236E(1) inserted by item 4 of this Schedule, and includes a new subsection 236E(1A) noting that the section applies where an authorising officer authorises the exercise of powers under the Maritime Powers Act 2013 .  This item commences at the same time as the commencement of the Schedule 4 of the Maritime Powers (Consequential Amendments) Act 2013 .

This item is intended to ensure references to the exercise of maritime powers in relation to the issuing of evidentiary certificates remain consistent upon commencement of the Maritime Powers Act in 2014.  This item retains the effect of amendments in item 4 of this schedule.

Item 7—Paragraphs 236E(3)(a) to (i)

This item repeals paragraphs 236E(3)(a) to (i) inserted by item 4 of this Schedule and includes new paragraphs.  This item commences at the same time as the commencement of the Schedule 4 of the Maritime Powers (Consequential Amendments) Act 2013 .

This item is intended to ensure references to the exercise of maritime powers in relation to the issuing of evidentiary certificates remain consistent upon commencement of the Maritime Powers Act in 2014.  This item retains the effect of amendments in item 4 of this schedule.

Item 8—Subsection 236E(4)

This item omits the word “ship” from subsection 236E(4) and replaces it with the word “vessel”.  This item commences at the same time as the commencement of the Schedule 4 of the Maritime Powers (Consequential Amendments) Act 2013 .

This item is intended to ensure references to the exercise of maritime powers in relation to the issuing of evidentiary certificates remain consistent upon commencement of the Maritime Powers Act in 2014.  This item retains the effect of amendments in item 4 of this schedule.

Item 9—Subsection 236E(6)

This item repeals subsection 236E(6) inserted by item 4 of this Schedule and replaces it with a new subsection 236E(6).  This item amends the definitions in the Migration Act to ensure consistency with the Maritime Powers Act.

This item is intended to ensure references to the exercise of maritime powers in relation to the issuing of evidentiary certificates remain consistent upon commencement of the Maritime Powers Act in 2014.  This item retains the effect of amendments in item 4 of this schedule.

Item 10—Application and transitional provisions

Item 10(1) specifies that amendments in Schedule 3, Part 3 apply in relation to authorisations made at or after the commencement of Schedule 3, Part 3.

Item 10(2) specifies that amendments made by Schedule 3, Part 3, do not apply to the continuous exercise of powers begun under the Migration Act prior to the commencement of Part 3 (that is, prior to the commencement of the Maritime Powers Act 2013.

This item is intended to ensure that amendments in Schedule 3, Part 3, do not affect any authorisation in respect of an evidentiary certificate made or commenced prior to the commencement of the Maritime Powers Act 2013.

 



Schedule 4—Anti-Money Laundering and Counter-Terrorism Financing amendments

Part 1—Main amendments

Anti-Money Laundering and Counter-Terrorism Financing Act 2006

Item 1—section 5 (definition of AAT reviewable decision)

 

This item repeals the definition of ‘AAT reviewable decision’ as this will be subsumed by the broader definition of ‘reviewable decision’ (see item 5). 

 

Items 2 and 3—section 5 (after paragraphs (h) and (u) of the definition of designated agency )

 

The definition of ‘designated agency’ in section 5 of the AML-CTF Act lists certain Federal, State and Territory agencies which have access to AUSTRAC information under Part 11 of the Act.

 

These items add the Clean Energy Regulator (CER) and the Integrity Commission of Tasmania (Commission) to the definition of designated agency.  Enabling the CER to access AUSTRAC information will assist it to mitigate the risk of criminal abuse of carbon units.  The CER’s access to AUSTRAC data will assist it to prevent organised criminal groups from misusing the carbon trading scheme to launder illicit funds.  Enabling the Commission to access AUSTRAC information will enhance Commission’s investigative abilities, in line with those of similar agencies in other jurisdictions. 

 

Item 4—Section 5 (definition of reviewable decision)

 

This item repeals the current definition of reviewable decision and introduces a new definition of reviewable decision which will have the meaning given by section 233B (see item 32). 

 

Reviewable decisions will include decisions made under subsection 75B(6) or section 75C to refuse to register a person as:

(a)     a remittance network provider; or

(b)    an independent remittance dealer; or

(c)     a remittance affiliate of a registered remittance network provider.

 

Reviewable decisions will also include a decision made under section 75E to impose conditions to which a person’s registration is subject and a decision made under section 75G to cancel a person’s registration.

 

Reviewable decisions will also include a decision under 161(2) to require certain things of a reporting entity, a decision under subparagraph 161(2)(d)(ii) not to allow a longer period and a decision under subsection 191(2) to give a reporting entity a direction.

 

Item 5—Section 73

 

This item omits the reference to Division 4 providing for review of decisions from the simplified outline of Part 6 of the AML-CTF Act as it no longer falls in Division 4 of Part 6, but has been consolidated so that all matters relating to review of decisions are co-located at Part 17A (see item 32).

Items 6 and 7—At the end of subsection 75B(6) and at the end of subsection 75C(2)

These items add notes to provide that:

(a)     a deemed decision not to register the person, and

(b)    a decision not to register the person,

are reviewable (see item 32 which provides for a new Part 17A: Review of Decisions).

 

Item 8—Subsection 75C(5) (note)

 

This item repeals the note as the requirement for the AUSTRAC CEO to give notice to a person to whom registration is refused or registration is granted subject to conditions is now consolidated into the new Part 17A (see item 32).

 

Items 9 and 10—At the end of subsection 75E(1) and at the end of subsection 75G(1)

These items add notes to provide that:

(a)     a decision to impose a condition, and

(b)    a decision to cancel a registration,

are reviewable (see item 32 which provides for a new Part 17A: Review of Decisions).

 

Item 11—Subsection 75G(2)

 

This item updates the reference to the provision under which the AUSTRAC CEO is required to give notice to a person of a decision to reflect the new Part 17A (see item 32).

 

Item 12—Division 4 of Part 6 (heading)

 

This item repeals the heading: ‘Division 4 - Notice and review of decision’ as all the review of decisions provisions are consolidated in the new Part 17A (see item 32).

 

Items 13 and 14—Subsection 75Q(1)

 

This item updates the references in subsection 75Q(1) in relation to reviewable decisions to reflect the new Part 17A (see item 32).

 

Item 15—At the end of subsection 75Q(1)

 

This item provides a note giving an example of the type of decision which will be reviewable under the new Part 17A (see item 32).

 

Item 16—Sections 75R and 75S

 

This item repeals sections 75R and 75S as these sections will now be consolidated with the other review provisions under the new Part 17A (see item 32).

 

Item 17—After subsection 123(7)

 

This item enhances protections on AUSTRAC information to prevent a reporting entity ‘tipping off’ a person about whom a suspicious matter report has been raised.  The tipping off offence in section 123 prohibits a person from communicating information about a suspicious matter to anyone other than an AUSTRAC staff member.

 

Subsection 123(7) provides an exception to the offence in section 123.  New subsection 123(7AA) ensures that information that has been disclosed to a reporting entity in the same designated business group under the permitted exception in subsection 123(7) is not permitted to be disclosed by the recipient of that information, other than to another reporting entity that belongs to the same designated business group.  The purpose of the subsequent disclosure must be to inform the other reporting entity about the risks involved in dealing with the customer. 

 

Item 18—After subsection 123(7A)

 

This item enhances protections on AUSTRAC information to prevent a reporting entity ‘tipping off’ a person about whom a suspicious matter report has been raised.  The tipping off offence in section 123 prohibits a person from communicating information about a suspicious matter to anyone other than an AUSTRAC staff member.

 

Subsection 123(7A) provides an exception to the tipping off offence in section 123 for disclosures made between registered remittance network providers and their registered remittance affiliates, and vice versa.  It does not allow disclosure between remittance affiliates.  These exceptions are necessary to ensure that remittance network providers have the ability to operate their network in an efficient manner, including by providing advice, support and information on suspicious matters to their affiliates. 

 

New subsection 123(7B) ensures that information that has been disclosed to a person under the permitted exception in subsection 123(7A) is not permitted to be disclosed to another person.

 

Item 19—Paragraph 123(11)(a)

 

This item provides a consequential amendment to implement items 17-18 above, creating an offence for a person who is subject to a requirement not to disclose AUSTRAC information who engages in conduct in breach of that requirement.

 

Items 20 and 21—Subsection 130(3)

These items enhance the privacy protections given to information that is disclosed in accordance with section 130 of the AML-CTF Act.  These items ensure that information that is passed by a non-designated Commonwealth agency to a person who is not bound by Commonwealth privacy laws (for example a State agency that is not also a designated agency) will undertake to comply with the Commonwealth Information Privacy Principles with respect to the information.

 

Items 22 and 23—Paragraphs 136(1)(c) and 137(1)(c)

 

These items extend the offences for customers of, and other persons who deal with, reporting entities providing false or misleading information or documents.  As amended, persons providing false or misleading information or documents to a reporting entity in purported compliance with the AML-CTF Rules and the AML-CTF Regulations will also be committing an offence under the AML-CTF Act. 

 

The offence carries a maximum penalty of imprisonment for 10 years or 10,000 penalty units or both.  This significant maximum penalty is appropriate as the primary purpose of this provision is to target organised criminals and terrorists who may adopt a false identity or provide false information, as a preparatory step to laundering illicit profit or performing terrorist acts.

 

These items also contain a safeguard in that the existence of these offences will be flagged in the AML-CTF Rules and AML-CTF Regulations so that individuals are on notice that providing false or misleading information or documents in purported compliance with the AML-CTF Rules and AML-CTF Regulations is an offence under the AML-CTF Act.

 

As noted in the Replacement Explanatory Memorandum for the Anti-Money Laundering and Counter-Terrorism Financing Bill 2006, it is necessary for the AML-CTF Act to contain these offences despite similar offences in the Criminal Code.  This is because offences at sections 137.1 and 137.2 of the Criminal Code include a physical element that the information is given, or documents produced, in compliance or purported compliance with a law of the Commonwealth.  This element of sections 137.1 and 137.2 of the Criminal Code offence could not be satisfied in relation to a prosecution under the AML-CTF Act of a customer because there are no specific obligations under the AML-CTF Act, AML-CTF Rules and AML-CTF Regulations for a customer to give information.  Rather the reporting entity must adhere to various procedures and discharge certain obligations.

 

Item 24—After subsection 139(2)

 

This item creates an exception to the offence of a reporting entity providing a designated service under the AML-CTF Act to a customer who is using a false customer name where use of that false name is justified, or excused, by or under a law.  This amendment will ensure that reporting entities providing a designated service to individuals who have a lawful reason for using a false name, such as those in witness protection or those conducting undercover law enforcement operations, will not be committing an offence.

 

Item 25—Subsection 145(1)

 

This item amends section 145 to ensure that industry secondees engaged under the new paragraph 225(3)(g) (see items 30-31) are not able to be appointed as authorised officers.  Secondees to AUSTRAC with relevant industry, professional or academic qualifications will enhance AUSTRAC’s capacity to perform its functions.  However, it is appropriate that persons engaged in such a manner be restricted from exercising coercive powers as authorised officers for audit purposes.

 

Item 26—At the end of subsection 161(2)

This item inserts a note to clarify that the AUSTRAC CEO’s decisions under subsection 161(2) are reviewable under the new Part 17A (see item 32).

 

Item 27—Section 164A

 

This item repeals section 164A as this section will now be consolidated with the other review provisions under the new Part 17A (see item 32).

 

Item 28—At the end of subsection 191(2)

 

This item inserts a note to clarify that the AUSTRAC CEO’s decisions under this subsection 191(2) are reviewable under the new Part 17A (see item 32).

 

Item 29—Section 191A

 

This item repeals section 191A as this section will now be consolidated with the other review provisions under the new Part 17A (see item 32).

 

Items 30 and 31—paragraph 225(3)(f)

 

These items enable AUSTRAC to engage secondees from the private sector in addition to those employed by the public service.  The ability to engage individuals from industry will enable AUSTRAC to draw on the expertise of individuals who operate within Australia’s AML-CTF regime, such as those who work in compliance units of reporting entities.  This will strengthen AUSTRAC’s capacity. 

 

Item 25 ensures that industry secondees engaged under the new paragraph 225(3)(g) are not able to be appointed as authorised officers.  Secondees to AUSTRAC with relevant industry, professional or academic qualifications will enhance AUSTRAC’s capacity to perform its functions.  However, it is appropriate that persons engaged in such a manner be restricted from exercising coercive powers as authorised officers for audit persons.

 

Item 32—After Part 17

 

This item inserts a new Part 17A into the AML-CTF Act—Review of decisions.  This Part consolidates administrative review provisions so that they are all co-located in this Part. 

 

Part 17A encapsulates review of decisions of delegates of the AUSTRAC CEO by the AUSTRAC CEO prior to review by the Administrative Appeals Tribunal, as well as review by the Administrative Appeals Tribunal.

 

Section 233A provides a simplified outline of this Part.  Section 233B sets out a table of reviewable decisions.  Section 233C provides that the AUSTRAC CEO must give notice to a person in relation to whom a reviewable decision has been made.  The notice must include the terms of the decision, in the case of a decision under section 75G to cancel a person’s registration—the date that cancellation takes effect, the reasons for the decision and a statement setting out the particulars of the persons’ right to have the decision reviewed under this Part.

 

Section 233D enables internal review of decisions made by a delegate of the AUSTRAC CEO to take place prior to review by the Administrative Appeals Tribunal.  Section 233E requires the AUSTRAC CEO to reconsider a reviewable decision if he or she receives an application for reconsideration under section 233D. 

 

If the AUSTRAC CEO receives an application for reconsideration of a reviewable decision under section 233D, the AUSTRAC CEO must affirm, vary or revoke the reviewable decision.  The AUSTRAC CEO’s reconsideration under section 233E must be done by either the CEO personally, or by a person who was not involved in making the reviewable decision and occupies a position that is senior to the position occupied by the original decision maker.

 

If an applicant is the subject of a decision under section 233E that was not a decision of the AUSTRAC CEO, and he or she is dissatisfied with that decision, he or she may:

·        request a further reconsideration of that decision under section 233E, or

·        appeal that decision in the Administrative Appeals Tribunal under section 233F.

 

If an applicant is the subject of a decision of the AUSTRAC CEO under section 233E and remains dissatisfied with that decision, he or she may appeal that decision in the Administrative Appeals Tribunal under section 233F.

 

Section 233F enables applications to be made to the Administrative Appeals Tribunal for reviews made by the AUSTRAC CEO personally or by the AUSTRAC CEO’s delegate under subsection 233E(2).

 

Section 233G provides that a failure to comply with subsection 233C(1) or 233E(4) about giving notice to a person in relation to whom a reviewable decision has been made does not affect the validity of the decision.

 

Item 33—Application and transitional provisions

 

Item 33 provides transitional provisions for reviewable decisions that were made or proposed to be made before the commencement date and decisions of the AUSTRAC CEO under sections 161 (external audits) and 191 (remedial directions) made before the commencement date.  Such decisions continue to operate as though the amendments made under item 32 had not happened. 

 

Item 33 also provides transitional provisions to preserve appointments of authorised officers made by the AUSTRAC CEO under subsection 145(1) that were in force immediately before the commencement day.  Item 33 preserves such appointments so that they have effect, on and after the commencement day, as if they had been made under that subsection as amended by this Part.

 

Part 2—Other amendment

 

Item 34—Subsection 130(3AA)

 

This item commences on 12 March 2014, the day that the Privacy Amendment (Enhancing Privacy Protection) Act 2012 commences, to update the reference in subsection 130(3AA) from the “Information Privacy Principles set out in section 14 of the Privacy Act 1988 ” to “Australian Privacy Principles”.



Schedule 5 International Criminal Tribunals

United Nations Security Council resolution 1966 (2010) of 22 December 2010 (the Resolution) provided that the International Criminal Tribunal for the Former Yugoslavia (‘ICTY’) and the International Criminal Tribunal for Rwanda (‘ICTR’) take all possible measures to complete all their remaining work by no later than 31 December 2014 to prepare for the closure of the two Tribunals.  The Resolution established the ‘International Residual Mechanism for Criminal Tribunals’ (now known as the ‘United Nations Mechanism for International Criminal Tribunals’) (‘the Mechanism’) to complete the work of the two Tribunals.  

The proposed measures in this Schedule are designed to ensure Australia can transfer prisoners convicted of a Tribunal offence to Australia under the ITP Act and provide assistance to the Mechanism pursuant to the IWCT Act in relation to requests for assistance relating to a Tribunal offence.  These measures will ensure that Australia can provide the same level of assistance to the Mechanism as it completes the work of the ICTY and ICTR as we can currently provide to those two Tribunals.

 

International Transfer of Prisoners Act 1997

Item 1—Subsection 4(1) (definition of Former Yugoslavia Tribunal )

 

Subsection 4(1) provides definitions for the terms used in the ITP Act including a definition for the ‘Former Yugoslavia Tribunal’.  The current definition for the Former Yugoslavia Tribunal refers to the UN Resolution establishing the Former Yugoslavia Tribunal being set out at Schedule 1 of the International War Crimes Tribunal Act 1995 .  This item repeals the current definition and will insert a new definition for the Former Yugoslavia Tribunal to reflect that the UN Resolution is no longer at Schedule 1 of the International War Crimes Tribunal Act 1995 .  The Former Yugoslavia Tribunal means the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, established by United Nations Security Council Resolution 827 S/RES/827 (1993).  The definition includes any of the organs referred to in Article 11 of the Statute of the Tribunal.  The note to the definition provides that in 2013, the text of United Nations Security Council Resolution 827 S/RES/827 was accessible through the United Nations website ( www.un.org ).  The effect of this amendment is that where the ITP Act refers to the Former Yugoslavia Tribunal, this will refer to that body which carries out the above functions, noting that the UN Resolution establishing the Tribunal was accessible at www.un.org in 2013. 

Item 2—Subsection 4(1)

Subsection 4(1) provides definitions for the terms used in the ITP Act.  This item inserts the definition of the Mechanism as the International Residual Mechanism for Criminal Tribunals, established by the United Nations Security Council Resolution 1966 S/RES/1966 (2010).  This definition includes the organs referred to in Article 4 of the Statute of the Tribunal.  Note 1 to the definition provides that in 2013, the text of this Resolution was accessible through the United Nations website ( www.un.org ).  Note 2 to the definition provides that the United Nations Security Council decided on 22 December 2010 to establish this Mechanism to carry out the residual functions of the Former Yugoslavia Tribunal and the Rwanda Tribunal.  The effect of this inclusion is provide a definition of the new Tribunal in the ITP Act.  

Item 3—Subsection 4(1) (definition of Rwanda Tribunal )

Subsection 4(1) provides definitions for the terms used in the ITP Act including a definition for the ‘Rwanda Tribunal’.  The current definition for the Rwanda Tribunal refers to the UN Resolution establishing the Rwanda Tribunal being set out at Schedule 3 of the International War Crimes Tribunal Act 1995 .  This item repeals the current definition and will insert a new definition for the Rwanda Tribunal to reflect that the UN Resolution is no longer at Schedule 3 of the International War Crimes Tribunal Act 1995 .  The Rwanda Tribunal means the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994, established by United Nations Security Council Resolution 955 S/RES/955 (1994).  The definition includes any of the organs referred to in Article 10 of the Statute of the Tribunal.  The note to the definition provides that in 2013, the text of United Nations Security Council Resolution 955 S/RES/955 (1994) was accessible through the United Nations website ( www.un.org ).  The effect of this amendment is that where the ITP Act refers to the Rwanda Tribunal, this will refer to that body which carries out the above functions, noting that the UN Resolution establishing the Tribunal was accessible at www.un.org in 2013 and is no longer contained in the schedules to the IWCT Act. 

Item 4—Subsection 4(1) (definition of Statute of the Tribunal )

 

Subsection 4(1) provides definitions for the terms used in the ITP Act including a definition for ‘Statute of the Tribunal’.  The current definition covers the Statute of the ICTY and the Statute of the ICTR and notes that a copy of the English text of the Statutes, along with the resolutions establishing those Tribunals, is set out in Schedules 1 to 4 to the International War Crimes Tribunal Act 1995 .  This item repeals the current definition and will add a new definition of the Statute of the Tribunal to include the Statute of the Mechanism within the definition of ‘Statute of the Tribunal’ and will also reflect the fact that the text of the Statutes and the resolutions establishing the ICTY and ICTR are no longer at Schedules 1 to 4 of the International War Crimes Tribunal Act 1995 .  For the Former Yugoslavia Tribunal, the Statute of the Tribunal means the Statute adopted by United Nations Security Council Resolution 827 S/RES/827 (1993) and annexed to the United Nations Secretary-General’s report S/25704 (1993) pursuant to paragraph 2 of the United Nations Security Council Resolution 808 S/RES/808 (1993).  For the Rwanda Tribunal, the Statute of the Tribunal means the Statute annexed to, and adopted by, United Nations Security Council Resolution 955 S/RES/955 (1994).  For the International Residual Mechanism for Criminal Tribunals, the Statute of the Tribunal means the Statute at Annexure 1 to (and adopted by) United Nations Security Council Resolution 1966 S/RES/1966 (2010).  In 2013, the text of these Resolutions and United Nations Secretary-General reports were accessible through the United Nations website ( www.un.org ).  The effect of this amendment is that where the ITP Act refers to the Statute of the Tribunal, this includes the Statute of the Mechanism, noting that the UN Resolutions and United Nations Secretary-General reports referred to in the provision were accessible at www.un.org in 2013 and are no longer contained in the schedules to the IWCT Act.

Item 5—Subsection 4(1) (at the end of the definition of Tribunal )

Subsection 4(1) provides definitions for the terms used in the ITP Act including a definition for ‘Tribunal’.  The current definition covers the ICTY and the ICTR.  This item includes the International Residual Mechanism for Criminal Tribunals within the definition of ‘Tribunal’ at subsection 4(1).  By including the Mechanism within the definition of Tribunal, the Commonwealth can provide the same assistance to the Mechanism as is currently provided to the ICTY and ICTR under the Act.  The effect of this amendment is that where the Act refers to a Tribunal, this will include reference to the Mechanism.  

Item 6—Subsection 4(1) (at the end of the definition of Tribunal offence )

Subsection 4(1) provides definitions for the terms used in the ITP Act including a definition for ‘Tribunal offence’.  The current definition lists those offences for which the relevant Tribunals have the power to prosecute.  This item adds an additional offence to the definition of a ‘Tribunal offence’ at subsection 4(1).  A Tribunal offence will include an offence in relation to which the Mechanism has the power to prosecute persons.  Article 1 to the Statute of the Tribunal sets out the competence of the Mechanism and notes that the Mechanism shall continue the material, territorial, temporal and personal jurisdiction of the ICTY and the ICTR and lists the persons for which the Mechanism shall have the power to prosecute.  The effect of this amendment is that reference in the ITP Act to a Tribunal offence will include reference to an offence under Article 1 of the Statute of the Mechanism.

International War Crimes Tribunals Act 1995

Item 7—Section 4 (definition of Former Yugoslavia Tribunal )

Section 4 provides definitions for the terms used in the IWCT Act including a definition for the ‘Former Yugoslavia Tribunal’.  The current definition for the Former Yugoslavia Tribunal refers to the UN Resolution establishing the Former Yugoslavia Tribunal being set out at Schedule 1 of the Act.  This item repeals the current definition and will insert a new definition for the Former Yugoslavia Tribunal to reflect that the UN Resolution is no longer at Schedule 1.  The Former Yugoslavia Tribunal means the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, established by United Nations Security Council Resolution 827 S/RES/827 (1993).  The definition includes any of the organs referred to in Article 11 of the Statute of the Tribunal.  The note to the definition provides that in 2013, the text of United Nations Security Council Resolution 827 S/RES/827 was accessible through the United Nations website ( www.un.org ).  The effect of this amendment is that where the IWCT Act refers to the Former Yugoslavia Tribunal, this will refer to that body which carries out the above functions, noting that the UN Resolution establishing the Tribunal was accessible at www.un.org in 2013 and is no longer contained in the schedules to the Act. 

Item 8—Section 4

Section 4 provides definitions for the terms used in the IWCT Act.  This item inserts the definition of the Mechanism as the International Residual Mechanism for Criminal Tribunals established by the United Nations Security Council Resolution 1966 S/RES/1966 (2010).  This definition includes the organs referred to in Article 4 of the Statute of the Tribunal.  Note 1 to the definition provides that in 2013, the text of this Resolution was accessible through the United Nations website ( www.un.org ).  Note 2 to the definition provides that the United Nations Security Council decided on 22 December 2010 to establish this Mechanism to carry out the residual functions of the Former Yugoslavia Tribunal and the Rwanda Tribunal.  The effect of this inclusion is to provide a definition of the new Tribunal in the ITP Act.  

Item 9—Section 4 (definition of Rwanda Tribunal )

Section 4 provides definitions for the terms used in the IWCT Act including a definition for the ‘Rwanda Tribunal’.  The current definition for the Rwanda Tribunal refers to the UN Resolution establishing the Rwanda Tribunal being set out at Schedule 3 of the International War Crimes Tribunal Act 1995 .  This item repeals the current definition and will insert a new definition for the Rwanda Tribunal to reflect that the UN Resolution is no longer at Schedule 3 of the Act.  The Rwanda Tribunal means the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994, established by United Nations Security Council Resolution 955 S/RES/955 (1994).  The definition includes any of the organs referred to in Article 10 of the Statute of the Tribunal.  The note to the definition provides that in 2013, the text of United Nations Security Council Resolution 955 S/RES/955 (1994) was accessible through the United Nations website ( www.un.org ).  The effect of this amendment is that where the IWCT Act refers to the Rwanda Tribunal, this will refer to that body which carries out the above functions, noting that the UN Resolution establishing the Tribunal was accessible at www.un.org in 2013 and is no longer contained in the schedules to the Act.   

Item 10—Section 4 (definition of Statute of the Tribunal )

Section 4 provides definitions for the terms used in the IWCT Act including a definition of ‘Statute of the Tribunal’.  The current definition covers the Statute of the ICTY and the Statute of the ICTR and notes that a copy of the English text of the Statutes, along with the resolutions establishing those Tribunals, is set out in Schedules 1 to 4 to the International War Crimes Tribunal Act 1995 .  This item repeals the current definition and will add a new definition of the Statute of the Tribunal to include the Statute of the Mechanism within the definition of ‘Statute of the Tribunal’ and will to also reflect the fact that the text of the Statutes and resolutions establishing the ICTY and ICTR are no longer at Schedules 1 to 4 of the International War Crimes Tribunal Act 1995 .  For the Former Yugoslavia Tribunal, the Statute of the Tribunal means the Statute adopted by United Nations Security Council Resolution 827 S/RES/827 (1993) and annexed to the United Nations Secretary-General’s report S/25704 (1993) pursuant to paragraph 2 of the United Nations Security Council Resolution 808 S/RES/808 (1993).  For the Rwanda Tribunal, the Statute of the Tribunal means the Statute annexed to, and adopted by, United Nations Security Council Resolution 955 S/RES/955 (1994).  For the International Residual Mechanism for Criminal Tribunals, the Statute of the Tribunal means the Statute at Annexure 1 to (and adopted by) United Nations Security Council Resolution 1966 S/RES/1966 (2010).  In 2013, the text of these Resolutions and United Nations Secretary-General reports were accessible through the United Nations website ( www.un.org ).  The effect of this amendment is that where the IWCT Act refers to the Statute of the Tribunal, this includes the Statute of the Mechanism, noting that the UN Resolutions and United Nations Secretary-General reports referred to in the provision were accessible at www.un.org in 2013 and are no longer contained in the schedules to the Act. 

Item 11—Section 4 (at the end of the definition of Tribunal )

Section 4 provides definitions for the terms used in the IWCT Act including a definition for ‘Tribunal’.  The current definition covers the ICTY and the ICTR.  This item includes the International Residual Mechanism for Criminal Tribunals within the definition of ‘Tribunal’ at section 4.  By including the Mechanism within the definition of Tribunal, the Commonwealth can provide the same assistance to the Mechanism as is currently provided to the ICTY and ICTR under the IWCT Act.  The effect of this amendment is that where the IWCT Act refers to a Tribunal, this will include the Mechanism.  

Item 12—Section 4 (at the end of the definition of Tribunal offence )

Section 4 provides definitions for the terms used in the IWCT Act including a definition for ‘Tribunal offence’.  The current definition lists those offences for which the relevant Tribunals have the power to prosecute.  This item adds an additional offence to the definition of a ‘Tribunal offence’ at section 4.  A Tribunal offence will include an offence for which the Mechanism has the power to prosecute persons.  Article 1 to the Statute of the Tribunal sets out the competence of the Mechanism and notes that the Mechanism shall continue the material, territorial, temporal and personal jurisdiction of the ICTY and the ICTR and lists the persons for which the Mechanism shall have the power to prosecute. The effect of this amendment is that reference in the IWCT Act to a Tribunal offence will include reference to an act under Article 1 of the Statute of the Mechanism.

Item 13—Subsection 42(3)

Section 42 provides for the Tribunal’s powers while sitting in Australia.  Subsection 42(1) of the IWCT Act provides that while a Tribunal is sitting in Australia, it may exercise such powers as are prescribed by the regulations in respect of the Tribunal.  This item inserts reference to Article 13 of the Statute of the Mechanism to subsection 42(3) of the Act.  The item has the effect that regulations made for the purposes of subsection 42(1) may apply, adopt or incorporate, with or without modification, the rules of procedure and evidence adopted under Article 13 of the Statute of the Mechanism. 

 

Item 14—Schedules 1 to 4

This item repeals Schedule 1 to 4 to the Act.  United Nations Security Council Resolutions and Statutes are now accessed via the United Nations website which in 2013 was accessible through www.un.org

Item 15—Application of amendments

This item provides that amendments made by items 2, 5, 6, 8, 11, 12, 13 and paragraph (c) of the definition of Statute of the Tribunal in subsection 4(1) of the ITP Act (as inserted by this Schedule) and paragraph (c) of the definition of Statute of the Tribunal in section 4 of the IWCT Act (as inserted by this Schedule) apply on or after the day this Schedule commences in relation to requests, or orders, made by the Mechanism before, on or after that day.



Schedule 6 Miscellaneous amendments

 

Australian Federal Police Act 1979

 

Item 1—Subsection  8(1C)

 

This item repeals existing subsection 8(1C) of the AFP Act and substitutes new subsections 8(1C) and (1D).  

 

Under new subsection 8(1C), the Minister responsible for the AFP will be able to enter into arrangements for the provision of police services and regulatory services in any of the external Territories, except Norfolk Island, with either the Administrator of that external Territory or the Minister responsible for that external Territory. 

 

Not all external Territories have an Administrator and, in those which do, the duties and responsibilities of the Administrator vary significantly.  This amendment will allow greater flexibility in establishing arrangements for policing and regulatory services and better reflect current governance arrangements in the external Territories, particularly in the Christmas Island and Cocos (Keeling) Island Territories.

 

This amendment will also provide a framework for any future arrangements for policing or regulatory services that may be required with respect to Ashmore and Cartier Islands Territory and the Coral Sea Islands Territory.

 

The existing framework will continue to apply for Norfolk Island, where arrangements will be entered into with the Administrator.  As Norfolk Island is a self-governing Territory, it is appropriate that the Administrator, rather than a Commonwealth Minister, retain the authority to make decisions with respect to the provision of services by the AFP in Norfolk Island.

 

New subsection 8(1D) states that the provision of police services and regulatory services in an external Territory must be in accordance with any arrangements entered into under new subsection 8(1C).  This clause is contained in existing subsection 8(1C), but will now be set out in a separate subsection for ease of interpretation.

 

Item 2—Transitional—preserving existing arrangements

 

This item applies to arrangements entered into under subsection 8(1C) and in force immediately before the commencement of this Item.

 

This item preserves the effect of these arrangements as if they had effect under the amendments in Item 1.

 

Item 3—Subsection 69C(3)

 

This item omits “the Deputy Commissioner” from existing subsection 69C(3) and substitutes “a Deputy Commissioner”. 

 

This item ensures that the section is consistent with the organisational structure of the AFP.  There are currently three Deputy Commissioners, all of whom may be the subject of delegations of the Commissioner’s powers, functions and duties.

Item 4—At the end of section 69C (after the note)

This item adds a new subsection (4) to section 69C of the AFP Act. 

New subsection 69C(4) provides that if the Commissioner has made a delegation to a senior executive AFP employee under subsection 69C(3), and another AFP employee, who is not a senior executive AFP employee, is acting in the position of or performing the duties of that senior executive AFP employee, the Commissioner is taken to have made the delegation to that other employee. 

Under existing subsection 69C(3), the Commissioner may delegate to the Deputy Commissioner or a senior executive AFP employee any of the Commissioner’s powers, functions or duties as a proceeds of crime authority. 



As a proceeds of crime authority, the Commissioner may conduct proceedings under the Proceeds of Crime Act 2002 , in addition to exercising related powers, functions and duties under that Act.  This includes, for example, the power to make applications for orders that:

·                            property not be disposed or otherwise dealt with

·                            property be forfeited to the Commonwealth, or

·                            a person pay an amount to the Commonwealth.

A delegation is currently in place by the Commissioner to senior executive AFP employees holding, occupying or performing the duties of the position of Manager Proceeds of Crime Litigation (MPOCL). 

The MPOCL leads the Proceeds of Crime Litigation Team, which is a team of specialist litigation lawyers within the AFP that take proceeds of crime action on behalf of the Commissioner.  This Team is a key part of the Criminal Assets Confiscation Taskforce, which provides a coordinated and integrated approach to criminal asset identification and confiscation on behalf of the Commonwealth. 

The MPOCL is the only senior executive AFP employee in the Proceeds of Crime Litigation Team.  When the MPOCL is on leave, another AFP employee who is not a senior executive AFP employee acts in the position or performs the duties of the MPOCL.

A ‘senior executive AFP employee’ is defined in subsection 4(1) of the AFP Act as an AFP employee in respect of whom a declaration under section 25 is in force.  Currently, the Commissioner must make a new declaration that a particular person is a senior executive AFP employee each time the MCPOL takes leave or is otherwise absent.

This ensures that the person occupying the position of MPOCL, when the MPOCL is on leave or otherwise absent, can validly exercise the Commissioner’s powers, functions and duties as a proceeds of crime authority.

Telecommunications (Interception and Access) Act 1979

Item 5—Subsection 5(1) (definition of Inspector of the Victorian Inspectorate )

This item amends references to the Telecommunications (Interception and Access) Act to ensure that it correctly refers to the Independent Broad-based Anti-corruption Act 2011 and the Victorian Inspectorate Act 2011.

Item 6—Subsection 5(1)—(subparagraph (f)(i) of the definition of permitted purpose )

This item amends references to the Telecommunications (Interception and Access) Act to ensure that it correctly refers to the Independent Broad-based Anti-corruption Act 2011 and the Victorian Inspectorate Act 2011.

Item 7—Subsection 5(1) (subparagraph (f)(ii) of the definition of permitted purpose )

This item amends references to the Telecommunications (Interception and Access) Act to ensure that it correctly refers to the Independent Broad-based Anti-corruption Act 2011 and the Victorian Inspectorate Act 2011.

Item 8—Subsection 5(1) (subparagraph (fa)(i) of the definition of permitted purpose )

This item amends references to the Telecommunications (Interception and Access) Act to ensure that it correctly refers to the Independent Broad-based Anti-corruption Act 2011 and the Victorian Inspectorate Act 2011.