Addendum to the Explanatory Memorandum
(Circulated by authority of the Minister for Justice, the Hon Michael Keenan MP)Statement of Compatibility with Human Rights
Schedule 5-Protecting vulnerable persons
On page 27, in paragraph 141, after the dot point: "the right to a fair trial-Article 14 of the ICCPR", delete the conjunction ", and" and insert the following new dot point:
"prohibition on retrospective criminal laws-Article 15 of the ICCPR, and".
On page 28, after paragraph 146, insert the following new paragraphs:
"Prohibition on retrospective criminal laws-Article 15 of the ICCPR
Article 15 of the ICCPR prohibits the retrospective operation of criminal laws. This prohibition does not generally extend to retrospective changes to other measures, such as procedure, provided they do not affect the punishment to which an offender is liable.
Schedule 5, Item 4 is an application provision which proposes the existing non-publication offence contained in section 15YR of the Crimes Act apply in relation to proceedings instituted after the commencement of Schedule 5, regardless of when the offences committed, or alleged to have been committed, occurred.
While this will mean the protections may apply in proceedings for conduct committed prior to the commencement of Schedule 5, the provision does not affect the elements or penalties of any offence, nor does it criminalise or penalise conduct which was otherwise lawful prior to the commencement of Schedule 5. Therefore, Schedule 5, Item 4 does not engage the prohibition on retrospective criminal laws."
Notes on Clauses
Schedule 1-Assistance to international courts and tribunals
Surveillance Devices Act 2004
Item 6 - At the end of subsection 45(4)
On page 46, in paragraph 264, after the words: "...admitted into evidence in any proceedings" insert: "including communicating information to foreign countries in relation to a mutual assistance request."
On page 46, in paragraph 265, after the sentence that ends with: "paragraphs 45(4)(h) and 45(4)(i)." insert the following new sentence: "The amendments broaden the current exceptions in subsection 45(4) of the SD Act, to cover communications to the International Criminal Court and international war crimes tribunals in international crime cooperation matters, in addition to communications to foreign countries in relation to a mutual assistance request.
On page 46, after paragraph 265, insert the following new paragraph:
"As the amendments will create further exceptions to subsections 45(1) and 45(2), they will have the effect of reversing the burden of proof so the defendant will be required to raise evidence as to the application of these exceptions. However, given communications to foreign countries, the International Criminal Court and international war crimes tribunals in international crime cooperation matters are confidential, these matters would be peculiarly within the knowledge of the defendant and would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter."
Items 95 and 96 - Paragraph 45(4)(f) and subsection 45(6)
On page 86, after paragraph 518, insert the following new paragraph:
"The amendments broaden the current exceptions in subsection 45(4) of the SD Act, to cover communications to the International Criminal Court and international war crimes tribunals in international crime cooperation matters, in addition to communications to foreign countries in relation to a mutual assistance request. As the amendments will create further exceptions to subsections 45(1) and 45(2), they will have the effect of reversing the burden of proof so the defendant will be required to raise evidence as to the application of these exceptions. However, given communications to foreign countries, the International Criminal Court and international war crimes tribunals in international crime cooperation matters are confidential, these matters would be peculiarly within the knowledge of the defendant and would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter."
Schedule 3 - Amendment of the Extradition Act 1988
Item 1 - After subsection 26(2)
On page 161, in paragraph 1041, after the sentence that ends with "temporary surrender warrants." insert the following new sentence: "The surrender warrant is the instrument that empowers the police to bring an eligible person into custody to await transportation out of Australia. The amendment to section 26 of the Extradition Act addresses the logistics for the execution of a surrender warrant when a person is on extradition bail at the time a surrender warrant is issued for the surrender of that person."
On page 162, after paragraph 1047, insert the following new paragraphs:
"The amendment to section 26 does not affect the existing framework for bail under the Extradition Act. In the extradition context, a magistrate, eligible Federal Circuit Judge or relevant court must not release a person on bail unless there are special circumstances justifying such release. The presumption against bail is appropriate given the serious flight risk posed in extradition matters and Australia's international obligations to secure the return of alleged offenders to face justice in the requesting country. The requirement to demonstrate special circumstances justifying release ensures the Extradition Act is suitably flexible to accommodate exceptional circumstances that may necessitate granting a person bail, such as where the person is in extremely poor health.
The Extradition Act does not provide for a person to apply to have their bail extended while they await surrender to the extradition country once a surrender warrant has been issued. The amendment clarifies that following a discharge of bail recognisances, rather than just releasing the person into the custody of any police officer to await surrender, magistrates, eligible Federal Circuit Court Judges or relevant review or appellate courts are to remand the person to a prison to await surrender. The amendment is framed as an obligation on the magistrate, Federal Circuit Court Judge or relevant court to reflect the unavailability of bail pending logistical arrangements for surrender to the requesting country.
If the person seeks to challenge the surrender determination by way of judicial review, the person is able to make a new bail application under section 49C of the Extradition Act to the relevant review or appellate Court. Under section 49C(2) of the Extradition Act a grant of bail by a review or appellate Court terminates once the person's application has been determined or the appeal heard."
Item 2 - At the end of section 35
On page 162, after paragraph 1050, insert the following new paragraphs:
"In the extradition context, a magistrate must not release a person on bail unless there are special circumstances justifying such release. This ensures the Extradition Act is suitably flexible to accommodate exceptional circumstances that may necessitate granting a person bail, such as where the person is in extremely poor health. This presumption against bail is appropriate given the serious flight risk posed in extradition matters and Australia's international obligations to secure the return of alleged offenders to face justice in the requesting country.
The amendment to section 35 does not affect existing bail processes under the Extradition Act. It remains the case that bail is no longer available on the execution of a surrender warrant. The amendments are framed as an obligation because the Act requires that the person be remanded to ensure they can be surrendered. The amendments are consistent with subsections 33A(2) and 34(1) that provide that when a magistrate or Judge orders that a person is to be surrendered to New Zealand, the magistrate or Judge must order that the person be committed to prison pending the execution of the surrender warrant."
Schedule 4-Amendments relating to foreign evidence
Item 1 - Paragraphs 20(2)(a) and (b)
On page 163, after paragraph 1053, insert the following new paragraph:
"This amendment is procedural in scope and does not have the effect of criminalising or penalising conduct which was otherwise lawful prior to the amendment. The amendment merely provides a process for adducing foreign material in certain criminal and related proceedings and will not cause any person any detriment or hardship."
Item 2 - At the end of subsection 20(2)
On page 163, after paragraph 1054, insert the following new paragraph:
"This amendment is procedural in scope and does not have the effect of criminalising or penalising conduct which was otherwise lawful prior to the amendments. The amendment merely provides a process for adducing foreign material in certain criminal and related proceedings and will not cause any person any detriment or hardship."
Item 3 - Section 26
On page 163, after paragraph 1057, insert the following new paragraphs:
"The matters that are certified in the certificate are of a routine and administrative nature. The certificate will state that material was received from a foreign country in response to a request made by or on behalf of the Attorney-General. That is, it is solely attesting to the physical receipt of evidence by the Australian Central Authority (the Attorney-General's Department) from a requested foreign country.
Given the routine and administrative nature of this task, it is proposed that the officer issuing the certificate need not be limited to Senior Executive Service (SES) officers, but should also include certain other officers of the Attorney-General's Department. The person certifying the material is more likely to have direct knowledge of the matters to be certified than an SES officer, having received the evidence through a communications service such as a courier, Australia Post or email and being directly involved in the management of the case. In addition, there is often an urgent need to certify material for use in Australian proceedings; the amendment will provide for more flexibility in this procedural matter by allowing a broader range of officials to certify the material in a timely way. This will be a more efficient method of certifying material that is appropriate in the circumstances.
The delegation of powers under the Law Officers Act 1964 is consistent with the delegation of powers in other laws administered by the Attorney-General, including the Extradition Act 1988 and the Evidence Act 1995.
Under the Law Officers Act 1964 it is a matter for the Attorney-General to specify to whom the delegation is made; in practice, the instrument of delegation specifies particular position numbers so will be limited to only certain positions the Attorney-General considers appropriate in the circumstances. In practice the Attorney-General's Department would only propose certain executive level position numbers within the relevant Departmental business unit be specified."
Schedule 5-Protecting vulnerable persons
On page 165, after paragraph 1070, insert the following new paragraph:
"While this means the protections may apply in proceedings for conduct committed prior to the commencement of this schedule, the provision does not affect the elements or penalties of any offence, nor does it criminalise or penalise conduct which was otherwise lawful prior to the commencement of this schedule. On this basis, this item does not impose retrospective criminal liability."
Schedule 8-Amendment of the Australian Federal Police Act 1979
On page 178, after paragraph 1178, insert the following new paragraph:
"Any detriment caused by incorporated material not being freely and readily available to the public at large must be balanced against the benefit gained from utilising that incorporated material. This item strikes an appropriate balance."
On page 178, after paragraph 1179, insert the following new paragraphs:
"The relevant standard will be made freely and readily available to all persons directly affected by the law, being AFP appointees. All such persons will have full access to the current drug testing standard via an online portal accessible on the AFP intranet. However, the standards will not be made freely and readily available to the public at large, in light of copyright restrictions.
The relevant standards are copyright protected by Standards Australia, which provides SAI Global with exclusive distributor rights. The current AFP subscription agreement with SAI Global allows it to use and access the relevant standard for internal business purposes only. The AFP is not permitted to copy, distribute or allow access to any third party. These terms and conditions are not unique to the AFP's agreement, as they are incorporated into all subscriptions. As a result of the proprietary rights of Standards Australia, Standards Australia/New Zealand and SAI Global, the AFP is not permitted to make the drug testing standard freely and readily available to the general public."
On page 178, in paragraph 1180, after the sentence: "Their Standards are widely regarded as 'best practice'." insert the following new sentences:
"There is an expectation from employees that drug tests will be carried out pursuant to current industry standards. The Standards include highly technical scientific procedures, particularly relating to testing methods, apparatus and calculations. These procedures are carried out by trained technicians from an independent company, on behalf of the AFP, in accordance with Schedule 1A of the AFP Regulations. The incorporation of the most current standard supports the integrity of the results and ensures there is no discrepancy between the procedures and testing methods used by the company contracted to conduct drug tests and the standard referenced in the AFP Regulations."
On page 178, after paragraph 1180, insert the following new paragraph:
"The incorporation of the standard does not impact the general public. The incorporation of the standard does not create obligations with which AFP appointees must comply. Rather, it ensures that collection procedures and testing methods utilised by the AFP accord with industry best practice."
On page 178, after paragraph 1182, insert the following paragraph:
"This item ensures the AFP applies robust, best-practice alcohol and drug testing procedures to its appointees. The benefit gained from ensuring best practice testing procedures are used outweighs the minimal detriment caused by the standard not being freely and readily available to persons not directly affected by the law."