Senate

Revised Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Hon Mark Dreyfus KC MP)

ATTACHMENT A STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

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

Crimes and Other Legislation Amendment (Omnibus No. 1) Bill 2024

1. 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

2. The Bill would amend crimes-related legislation to update, improve and clarify the intended operation of key provisions in the Crimes Act 1914, the Criminal Code Act 1995 (Criminal Code), the Proceeds of Crime Act 2002, the National Anti-Corruption Commission Act 2022, the Telecommunications (Interception and Access) Act 1979 (TIA Act) and the Telecommunications Act 1997 (Telecommunications Act).

Schedule 1 - Seizing digital assets

3. Schedule 1 of the Bill amends the Crimes Act 1914 (Crimes Act) and the Proceeds of Crime Act 2002 (POCA) to ensure the powers available to law enforcement to seize digital assets under warrant reflect the operating environment.

Human rights implications

4. Schedule 1 to the Bill engages the following human rights:

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the right to privacy in Article 17 of the ICCPR, and

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the right to an effective remedy in Article 2(3) of the ICCPR.

The right to privacy

5. Article 17(1) of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with their privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation.

6. The use of the term 'arbitrary' means that any interference with privacy must be in accordance with the provisions, aims and objectives of the ICCPR and should be reasonable in the particular circumstances. The United Nations Human Rights Committee has interpreted 'reasonableness' to imply that any limitation must be proportionate and necessary in the circumstances.

7. A limitation on the right to privacy will be permissible under international human rights law where it addresses a legitimate objective, is rationally connected to that objective and is a reasonable and proportionate means of achieving that objective.

8. The seizing digital assets measure engages the right to privacy by enabling law enforcement agencies to conduct a search of a person, or to conduct a search at or in relation to a person's premises or conveyance, and seize a digital asset or a thing that suggests the existence of the digital asset identified in the course of those searches. The measure allows the executing officer to access the person's digital wallet to transfer the contents to a law enforcement digital wallet as a means of seizing the digital asset.

9. To the extent that the measure limits the right to privacy under Article 17 of the ICCPR, these limitations are not arbitrary, and are reasonable, necessary and proportionate to ensure law enforcement agencies are able to continue to effectively detect, disrupt and deter serious and organised crime.

10. For example, the executing officer needs to reasonably suspect that the seizure of the digital asset is necessary to prevent the digital asset's concealment, loss or destruction or its use in committing an offence.

11. Furthermore, the Bill provides that safeguards in the existing legislation which govern the time periods law enforcement can retain things moved or seized under warrant will also apply to the digital asset seizure measure. This intends to balance criminal justice outcomes with the effects depriving a person of their property may have.

12. For that reason, the limitation on privacy is reasonable, proportionate and necessary to support law enforcement investigations, help prevent digital assets being used to facilitate criminal activity, and support the functioning of Australia's proceeds of crime regime where the digital assets represent illicit proceeds or tainted property.

The right to an effective remedy

13. Article 2(3) of the ICCPR provides that each State Party to the present Covenant undertakes:

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to ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

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to ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; and

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to ensure that the competent authorities shall enforce such remedies when granted.

14. The seizing digital assets measure promotes the right to an effective remedy for any violation of rights and freedoms recognised by the ICCPR, including the right to have such a remedy determined by competent judicial, administrative or legislative authorities or by any other competent authority provided for by the legal system of the State.

15. Schedule 1 of this Bill amends paragraph 3M(1)(a) of the Crimes Act and paragraph 248(1)(a) of the POCA to provide that the Commonwealth must pay the owner of the equipment, or the user of the data or programs, reasonable compensation for damage caused to the equipment or data as a result of the equipment being operated under subsection 3FA(7) of the Crimes Act or subsection 228A(5) in the POCA. If the Commonwealth and the owner or user do not agree on the amount of compensation, the person may institute proceedings in the Federal Court of Australia for such reasonable amount of compensation as the Court determines.

Schedule 2 - Digital currency exchanges

16. Schedule 2 to the Bill amends the Proceeds of Crime Act 2002 (POCA) to expand the definition of 'financial institution' to include digital currency exchanges.

17. These amendments will ensure that freezing orders, notices to financial institutions, and monitoring orders can be made in relation to accounts held with digital currency exchanges.

Human rights implications

18. Schedule 2 of this Bill engages the following human rights:

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the right to privacy in Article 17 of the ICCPR

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the right to an adequate standard of living, and highest attainable standard of health in Articles 11 and 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

The right to privacy

19. Article 17(1) of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

20. The use of the term 'arbitrary' means that any interference with privacy must be in accordance with the provisions, aims and objectives of the ICCPR and should be reasonable in the particular circumstances. The United Nations Human Rights Committee has interpreted 'reasonableness' to imply that any limitation must be proportionate and necessary in the circumstances.

21. A limitation on the right to privacy will be permissible under international human rights law where it addresses a legitimate objective, is rationally connected to that objective and is a reasonable and proportionate means of achieving that objective.

22. The digital currency exchanges measure engages the right to privacy because it may:

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require a financial institution to disclose to law enforcement agencies a person's personal information related to an account held with a digital currency exchange (DCE), such as details of what accounts a person holds, details of transactions made from particular accounts for up to six months, and the current balance of the account, and

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require a financial institution to disclose to law enforcement agencies details of transactions a person makes over a period set out in a monitoring order.

23. The expansion of the regime to include digital currency exchanges retains existing safeguards, including that:

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these measures are subject to appropriate oversight which takes into account the need to preserve an individual's rights and interests

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freezing orders and monitoring orders are subject to independent oversight, such that the relevant orders must be made by magistrates as a designated class of persons after considering whether the legislative requirements for making the order have been met, and

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the orders only operate for a set period of time and need to be reviewed by a magistrate if they are to be extended. The types of orders that will be able to be sought under these measures initially operate in relation to:

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freezing orders, a period of three working days

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notices to financial institutions, six months in relation to the requirement to provide details about transactions on an account, and

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monitoring orders, three months in relation to the requirement to provide ongoing information about transactions on an account.

24. Although the amendments will result in the collection and storage of personal information, Australian Public Service agencies (including law enforcement agencies) are required to comply with the Australian Privacy Principles which protects the unauthorised disclosure of personal information.

25. These capabilities will enhance law enforcement investigations by providing credible actionable intelligence and evidence, and prevent the dissipation of digital currency in circumstances where it could be used to facilitate criminal activity or where it could be considered the proceeds of crime.

26. To the extent that these measures limit the rights protected under Article 17 of the ICCPR, these limitations are not arbitrary, and are reasonable, necessary and proportionate to achieve the above legitimate law enforcement objectives.

The right to an adequate standard of living, and highest attainable standard of health

27. Article 11 of the ICESCR establishes the right to an adequate standard of living, including adequate food, clothing and housing, and to the continuous improvement of living conditions.

28. It commits States Parties to improve methods of production, conservation and distribution of food.

29. Article 12 of the ICESCR provides the right to the enjoyment of the highest attainable standard of physical and mental health, including the creation of conditions which would assure to all medical service and medical attention in the event of sickness.

30. The digital currency exchanges measure may limit these rights to the extent that the operation of the freezing order or the seizure of digital assets impacts a person's ability to use their assets to access relevant goods or services.

31. Current section 15Q(1) of POCA confers a magistrate with the power to vary a freezing order to enable a financial institution to allow a withdrawal from the account to meet the reasonable living expenses of the person, dependents of the person, business expenses of the person, or a specified debt incurred in good faith by the person.

32. Amendments in the Bill ensure that these provisions extend to accounts held with digital currency exchanges, so that freezing orders can be varied in relation to digital currency subject to a freezing order in relevant circumstances.

33. Consistent with existing search warrant provisions in the POCA and the Crimes Act, a person is not able to seek a variation when digital assets are seized during the execution of a search warrant under the POCA or Crimes Act amendments in the Bill. While this may limit a person's ability to use their digital assets to access relevant goods or services, these limitations are reasonable, necessary and proportionate as digital assets subject to a seizure warrant are unlikely to form the entirety of a person's income, and not commonly exchangeable for goods and services.

Schedule 3 - Penalty unit

34. Schedule 3 to the Bill would amend the Crimes Act to increase the value of the penalty unit for Commonwealth criminal offences from $313 to $330, indexed every three years to the Consumer Price Index.

35. The increase to the penalty unit value would only apply to offences committed on or after the date of commencement of the Schedule. The amendment to the value of the penalty unit will not affect current proceedings for Commonwealth offences.

Human rights implications

36. Schedule 3 to the Bill does not engage any of the applicable rights or freedoms.

37. Penalty units only apply where a person or company has committed a Commonwealth offence that has a civil or criminal penalty attached to it expressed in penalty units.

38. Increasing the value of a penalty unit will increase the maximum fine or financial penalty prescribed by legislation for a relevant offence. However, it does not alter the obligation on a sentencing judge to apply the most appropriate fine or financial penalty with due consideration to the circumstances.

Schedule 4 - Communications Access Coordinator and Communications Security Coordinator

39. The Bill would amend the TIA Act and the Telecommunications Act to establish the role of Communications Security Coordinator (CSC) in the Department of Home Affairs to perform functions under Part 14 of the Telecommunications Act, currently performed by the Communications Access Coordinator in the Attorney-General's Department.

Human rights implications

40. Schedule 4 of this Bill does not raise any human rights issues.

41. The Bill would amend how the functions of the CAC are specified, and establishes the new CSC who will perform the national security functions under Part 14 of the Telecommunications Act, currently performed by the CAC.

42. The Bill does not introduce any new powers or responsibilities. While some decision making and administrative functions will now be performed by the CSC, the material obligations and rights available for telecommunications carriers and carriage service providers will remain unchanged.

43. The Bill makes no changes to the ability of carriers and carriage service providers to apply to the Australian Communications Media Authority (ACMA) under section 187KA of the TIA Act for review of CAC decisions in relation to exemptions or variations to their data retention obligations. Further, the CAC will continue to be required to refer disputes with carriers over amendments to interception capability plans to the ACMA under subsection 198(5) of the TIA Act.

44. Similarly, carriers and nominated carriage service providers will continue to be able to make an application to the Administrative Appeals Tribunal under subsection 314A(5C) of the Telecommunications Act for a review of a decision made by the CSC to refuse an application to be exempt from the requirement to notify the CSC of changes to a telecommunications service or system under section 314A.

45. The Bill provides for greater clarity and accountability for CAC and CSC decisions by expressly enabling the specification of multiple persons or bodies as CACs and CSCs. This will be achieved through legislative instruments to be made by the Attorney-General and Minister for Home Affairs specifying the powers each of those persons or bodies may exercise. These legislative instruments will be subject to Parliamentary scrutiny and possible disallowance.

Schedule 5 - Information sharing between integrity agencies and oversight bodies

46. Schedule 5 to the Bill would amend the Telecommunications (Interception and Access) Act 1979 (TIA Act) to enhance the ability of the Inspector of the Independent Commission Against Corruption (NSW), the Inspector of the Law Enforcement Conduct Commission (NSW), the Inspector of the Independent Commission Against Corruption (SA), the Parliamentary Inspector of the Corruption and Crime Commission (WA) and the Victorian Inspectorate to receive intercepted information and interception warrant information under the TIA Act.

47. The amendments will enable these oversight bodies to properly scrutinise and audit interception activities and compliance with the TIA Act, and fulfil their statutory functions through access to interception information and interception warrant information.

Human rights implications

48. Schedule 5 of this Bill engages the following human rights:

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the right to a fair trial and public hearing in Article 14(1) of the International Covenant on Civil and Political Rights (ICCPR), and

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the right to privacy in Article 17 of the ICCPR.

The right to a fair trial and public hearing

49. Article 14(1) of the ICCPR enshrines the right for all persons to be equal before courts and tribunals. This right is concerned with procedural fairness in that it recognises that everyone shall be entitled to a fair and public hearing by a competent, independent and impartial court or tribunal established by law, and excluded from the media and public for reasons of national security.

50. The amendments relating to expanding the use and disclosure provisions in Schedule 5 to the Bill may engage the right to a fair and public hearing in Article 14(1) of the ICCPR as it relates to integrity agencies' use of their existing information-gathering powers for their statutory functions under the TIA Act. Information gathered by integrity agencies through use of their existing powers is able to be used for a range of purposes, including in the prosecution of criminal offences.

51. The proposed amendments will promote the right to a free and fair trial by providing greater scrutiny of integrity agencies' use of existing covert powers.

The right to privacy

52. The amendments relating to information-sharing in Schedule 5 to the Bill engage the protection against arbitrary or unlawful interference with privacy contained in Article 17 of the ICCPR. Article 17 of the ICCPR provides that no one shall be subjected to arbitrary of unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation, and that everyone has the right to the protection of the law against such interference or attacks.

53. The protection against arbitrary or unlawful interference with privacy under Article 17 of the ICCPR can be permissibly limited in order to achieve a legitimate objective and where the limitations are unlawful and not arbitrary. The term 'unlawful' in Article 17 of the ICCPR means that no interference can take place except as authorised under domestic law. Additionally, the term 'arbitrary' in Article 17(1) of the ICCPR means that any interference with privacy must be in accordance with the provisions, aims and objectives of the ICCPR and should be reasonable in the particular circumstances. The United Nations Human Rights Committee has interpreted 'reasonableness' to mean that any limitation must be proportionate and necessary in the circumstances. ^[3]

54. The purpose of the amendments is to allow oversight bodies to receive and use interception information and interception warrant information for the purposes of carrying out their functions. This aims to protect and promote the rights and freedoms of individuals by ensuring agencies with significant and covert powers (including the power to access personal information) are using those powers appropriately.

55. These amendments will therefore ensure greater protections against arbitrary and unlawful interferences with privacy in Article 17 of the ICCPR.

56. Further, where these powers limit the protection against arbitrary or unlawful interference with privacy in Article 17 of the ICCPR because they authorise action which impinges on a person's privacy, family, home or correspondence through their information being shared, the limitation is reasonable, necessary and proportionate in achieving the legitimate objective of ensuring intrusive powers are used appropriately.

57. The amendments may impinge on a person's privacy in circumstances where personal information held by an integrity agency is shared with its oversight body for the proper audit and oversight of the integrity agency.

58. However, allowing oversight bodies to receive and use interception material will ultimately promote the protection of individuals rights as it will result in greater scrutiny about integrity agencies' use of intrusive powers.

59. The amendments also limit the permitted purposes for information sharing to those purposes which the oversight bodies require to be able to carry out their functions and fulfil their statutory obligations. This serves as a safeguard to the potential limitation of the protection against arbitrary or unlawful interference with privacy in Article 17 of the ICCPR.

Schedule 6 - Unauthorised disclosure of information by current and former commonwealth officers etc. - sunsetting extension

60. Schedule 6 will amend the Criminal Code to extend the sunsetting date of section 122.4 (Unauthorised disclosure of information by current or former Commonwealth officers) by 18 months to 29 June 2026.

61. Section 122.4 creates an offence where: a person communicates information; the person made or obtained the information by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity; the person is under a duty not to disclose the information; and the duty arises under a law of the Commonwealth.

62. Section 122.4 was intended to be time-limited, to continue to apply criminal liability until these duties could be reviewed to determine whether each should be converted into a stand-alone specific secrecy offence or whether criminal liability should be removed. A comprehensive review of Commonwealth secrecy provisions, including the non-disclosure duties, was undertaken as a part of the Commonwealth Review of Secrecy Provisions (the Secrecy Review).

63. On 21 November 2023, the Government released the Final Report - Review of Secrecy Provisions, which made 11 recommendations to improve the operation of the Commonwealth's secrecy provisions, including section 122.4. Subsequently, the Independent National Security Legislation Monitor's report Secrecy Offences - Review of Part 5.6 of the Criminal Code Act 1995 (the INSLM Review) was tabled in Parliament on 27 June 2024. The report also made 15 recommendations in relation to Commonwealth secrecy provisions, principally Part 5.6 (Secrecy) of the Criminal Code.

64. These amendments extend the sunsetting date of section 122.4 so that any reforms to Part 5.6 of the Criminal Code (including section 122.4) can collectively consider the recommendations of both the Secrecy Review and the INSLM Review.

Human rights implications

65. Schedule 6 of this Bill engages the right to freedom of expression in Article 19 of the International Covenant on Civil and Political Rights (ICCPR).

Right to freedom of expression

66. Article 19 of the ICCPR provides that everyone shall have the right to freedom of expression, including the right to seek, receive, and impart information and ideas of all kinds. Article 19(3) provides that there may be limitations placed on the right to freedom of expression where these are provided by law and necessary for the respect of the rights or reputations of others, or for the protection of national security or of public order, or of public health or morals.

67. Extension of the sunsetting date would maintain current criminal liability for non-disclosure duties, which effectively prohibit a person communicating information which was made or obtained by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.

68. Conduct involving communicating, disclosing, publishing or making available information clearly falls within the scope of the right to freedom of expression in so far as it involves the seeking, receiving or imparting of information and ideas. By criminalising these activities in certain circumstances, secrecy offences limit the right to freedom of expression.

69. However, section 122.4 does not criminalise the disclosure of any particular information in its own right. Section 122.4 makes it an offence for a Commonwealth officer or a person engaged to perform work for a Commonwealth entity to communicate information in breach of a duty arising elsewhere under the law of the Commonwealth. As such, section 122.4 does not establish a new limitation on the ability of such persons to communicate information.

70. This measure extends the sunset clause in subsection 122.4(3) for an additional 18 months. As such, this ensures that section 122.4 does not apply in relation to any communication of information that occurs after the specified period. The specified period is intended to preserve the operation of non-disclosure duties while the recommendations from the Secrecy Review and the INSLM Review are considered collectively, including any proposed legislative reform to section 122.4 and associated non-disclosure duties.

71. The availability of the general defences under Part 2.3 of the Criminal Code as well as the specific defences provided for in section 122.5 will further ensure that the application of secrecy offences is reasonable and proportionate to achieve their objective.

72. Accordingly, the measure to extend the sunsetting date of section 122.4 does not limit the right to freedom of expression in Article 19 of the ICCPR, except to the extent that it is reasonable, necessary and proportionate to achieving the legitimate objective of protecting information held by Commonwealth officers for a specified period.

Schedule 7 - Meaning of hors de combat

73. Schedule 7 to the Bill will retrospectively amend the definition of hors de combat in the Dictionary of the Criminal Code to confirm consistency between Australian domestic law and international law, in line with Parliament's intention when Division 268 and the definition of hors de combat were introduced.

Human rights implications

74. While this amendment may on its face appear to engage the prohibition on the retrospective operation of criminal laws in Article 15(1) of the International Covenant on Civil and Political Rights (ICCPR), it does not constitute a prohibited form of retrospective punishment or the imposition of a penalty for an offence beyond that which was applicable at the time the offence was committed.

75. The amendment does not change the substance of the law. The Australian Defence Force provides substantive training and carries out activities in accordance with the international law definition of hors de combat. This retrospective amendment is fully consistent with the Australian Defence Force's doctrine, policy and training packages.

76. Australia takes accountability for war crimes seriously. It is important to ensure our obligations as a State Party to the Rome Statute of the International Criminal Court continue to be upheld, and that our domestic legal framework is adequate to ensure perpetrators of war crimes are properly investigated and prosecuted. Investigating and prosecuting conduct of this kind is critical to upholding Australia's obligations as a State Party to the Rome Statute.

77. Due to the seriousness of the offences encapsulated by Division 268, section 268.121 provides that the Attorney-General's consent is required for any relevant prosecution to be brought under Division 268. This legislative requirement is intended to prevent any inappropriate prosecutions being commenced in Australia.

78. In addition, the determination of criminal liability under the relevant offences remains a matter for judicial consideration in the course of a prosecution.

Conclusion with respect to the measures included in this Bill

79. This Bill is compatible with human rights as the measures in Schedules 3 and 4 do not raise any human rights issues, and to the extent that measures in Schedules 1, 2, 5, 6 and 7 may limit human rights, those limitations are reasonable, necessary and proportionate, as described above.