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House of Representatives

Crimes and Other Legislation Amendment (Omnibus) Bill 2023

Explanatory Memorandum

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

GENERAL OUTLINE

1. The purpose of the Crimes and Other Legislation Amendment (Omnibus) Bill 2023 (the Bill) is to make minor, technical and uncontroversial amendments to crime-related legislation. The amendments are intended to update, improve and clarify the intended operation of key provisions administered by the Attorney-General's portfolio.

2. The Bill is an omnibus bill which will amend the Australian Crime Commission Act 2002 (ACC Act), Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF Act), Crimes Act 1914 (Crimes Act), Criminal Code Act 1995 (Criminal Code), Criminology Research Act 1971 (Criminology Research Act), Foreign Evidence Act 1994 (FE Act), International Transfer of Prisoners Act 1997 (ITP Act), Mutual Assistance in Criminal Matters Act 1987 (Mutual Assistance Act), Privacy Act 1988 (Privacy Act), Surveillance Devices Act 2004 (SD Act), Telecommunications (Interception and Access) Act 1979 (TIA Act) and Witness Protection Act 1994 (Witness Protection Act).

3. Amendments to the AML/CTF Act will:

strengthen and clarify the civil penalty provision for a person failing to enrol with AUSTRAC within 28 days of commencing to provide a designated service under the AML/CTF Act
clarify the existing secrecy and access framework to make it clear that sensitive AUSTRAC information obtained under specified provisions of the AML/CTF Act and the Financial Transaction Reports Act 1988 (FTR Act) cannot be inappropriately disclosed for the purposes of, or in connection with, court or tribunal proceedings, and
explicitly authorise the AUSTRAC CEO to use a computer program (including automated programs), under their control, to automatically take an action, make a decision or exercise powers under the AML/CTF Act or the Anti-Money Laundering and Counter-Terrorism Financing Rules Instrument 2007 (No. 1) (AML/CTF Rules), or assist with doing so.

4. Amendments to the ACC Act will:

relocate a penalty for non-compliance to the provision to which it relates.

5. Amendments to the Crimes Act will:

update the definition of 'judicial officer' in subsection 23B(1)
correct a number of drafting errors, such as incorrect section referencing, and
correct references to redundant legislation.

6. Amendments to the Criminology Research Act will:

amend section 33 so that the appointment by the Minister of the Commonwealth representative to the Criminology Research Advisory Council can be made by designation of a position, and remove the need for the Minister to make a new appointment each time there is a change in personnel within the Attorney-General's Department.

7. Amendments to the FE Act will:

provide that testimony may be signed or certified by 'a person authorised to administer an oath or affirmation or put a person under an obligation to tell the truth', in or of the foreign country to which the request was made
replace references to 'exhibit' with 'documents or things', and
replace the terminology of documents and things being 'annexed to' testimony with the formulation 'produced by or with'.

8. Amendments to the ITP Act will:

provide that the Attorney-General may refuse consent to a request or an application for transfer to or from Australia at an earlier stage in the process, namely:

o
for transfers from Australia, prior to seeking consent of the relevant state or territory Minister and the prisoner (or prisoner's representative)
o
for transfers to Australia, prior to seeking consent of the relevant state or territory Minister, the prisoner (or prisoner's representative) and the transfer country or tribunal as the case may be, and

make minor technical amendments to improve the operation of the Act and better reflect the processes followed in practice.

9. Amendments to the Mutual Assistance Act will:

change the ground for refusal regarding torture to apply where there are substantial grounds for believing that 'a person' would be in danger of being subjected to torture if the request were granted.

10. Amendments to the TIA Act will:

ensure that the jurisdictional Public Interest Monitors can provide effective oversight on applications for interception activities made by the relevant agency in their jurisdiction.

11. Amendments to the TIA Act, SD Act, Crimes Act, Criminal Code, and the Privacy Act will:

correct references relating to the South Australia (SA) Independent Commission Against Corruption.

12. Amendments to the Witness Protection Act will:

remove current ambiguity around whether past participants of previous Australian Federal Police (AFP)-run witness protection programs are covered by the Witness Protection Act
enable participants to be temporarily suspended from receiving protection and assistance under the National Witness Protection Program (NWPP) in situations where the AFP may be limited in providing protection and assistance, and
modernise and streamline language and delegation processes to reduce administrative burden on the AFP.

FINANCIAL IMPACT

13. There is no financial impact associated with this Bill.

REGULATION IMPACT

14. There is negligible regulatory impact associated with this Bill. The Office of Impact Analysis advised that an Impact Analysis is not required for this Bill.

Statement of Compatibility with Human Rights

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

Crimes and Other Measures (Omnibus) Bill 2023

15. 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

16. The purpose of this Bill is to make minor, technical and uncontroversial amendments to crimes-related legislation. The amendments are intended to update, improve and clarify the intended operation of key provisions administered by the Attorney-General's portfolio.

17. The Bill is an omnibus bill which will amend the Australian Crime Commission Act 2002 (ACC Act), Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF Act), Crimes Act 1914 (Crimes Act), Criminal Code Act 1995 (Criminal Code), Criminology Research Act 1971 (Criminology Research Act), Foreign Evidence Act 1994 (FE Act), International Transfer of Prisoners Act 1997 (ITP Act), Mutual Assistance in Criminal Matters Act 1987 (Mutual Assistance Act), Privacy Act 1988 (Privacy Act), Surveillance Devices Act 2004 (SD Act), Telecommunications (Interception and Access) Act 1979 (TIA Act) and Witness Protection Act 1994 (Witness Protection Act).

Schedule 1: Anti-Money Laundering and Counter-Terrorism Financing Act 2006

18. The Bill contains important technical legislative amendments to strengthen and modernise aspects of Australia's anti-money laundering and counter-terrorism financing (AML/CTF) regime and assist the Australian Transaction and Reporting Analysis Centre (AUSTRAC) in fulfilling its functions in an efficient and practical manner. The Bill amends the AML/CTF Act to:

strengthen and clarify the civil penalty provision for a person failing to enrol with AUSTRAC within 28 days of commencing to provide a designated service under the AML/CTF Act
clarify the existing secrecy and access framework to make it clear that sensitive AUSTRAC information obtained under specified provisions of the AML/CTF Act and the Financial Transaction Reports Act 1988 (FTR Act) cannot be inappropriately disclosed for the purposes of, or in connection with, court or tribunal proceedings, and
explicitly authorise the AUSTRAC CEO to use a computer program (including automated programs), under their control, to automatically take an action, make a decision or exercise powers under the AML/CTF Act or the Anti-Money Laundering and Counter-Terrorism Financing Rules Instrument 2007 (No. 1) (AML/CTF Rules), or assist with doing so.

Schedule 2: Australian Crime Commission Act 2002

19. The amendments to the ACC Act in Schedule 2 will relocate a penalty for non-compliance to the provision to which it relates.

20. These amendments clarify the existing provisions for the powers of ACIC examiners to request information in the ACC Act and do not expand or alter the jurisdiction of, or otherwise alter the powers available to, the Australian Criminal Intelligence Commission (ACIC) in the course of conducting coercive examinations.

21. By correcting drafting oversights in the ACC Act, this Bill improves trust and confidence in the exercise by the ACIC of its powers.

Schedule 3: Crimes Act 1914

22. Amendments to Part IC of the Crimes Act repeal the definition of 'judicial officer' and replace references to 'judicial officer' in subsections 23B(1), 23B(3), 23C(3), 23DB(4) and paragraphs 23C(8)(a) and 23DB(12)(a) with 'bail authority'. Bail authority is defined in section 3 of the Crimes Act as 'a court or person authorised to grant bail under a law of the Commonwealth, a State or a Territory'.

23. Further minor amendments will:

correct drafting errors, such as incorrect section referencing, and
correct references to redundant legislation.

Schedule 4: Criminology Research Act 1971

24. These amendments will amend section 33 so that the appointment by the Minister of the Commonwealth representative to the Criminology Research Advisory Council can be made by designation of a position, and remove the need for the Minister to make a new appointment each time there is a change in personnel within the Attorney-General's Department.

Schedule 5: Obtaining Foreign Materials

Foreign Evidence Act 1994

25. Schedule 5 of the Bill makes technical amendments to the Foreign Evidence Act 1994 (FE Act) to improve the operation of provisions regarding the use of foreign material in Australian proceedings.

26. The transnational nature of crime and relative ease of moving proceeds of crime from one jurisdiction to another means that Australia relies increasingly on mutual assistance from foreign countries to obtain evidence for prosecutions and proceeds of crime action within Australia in respect of Commonwealth offences.

27. Parts 3 and 4 of the FE Act provide a means of adducing foreign material, obtained in response to a request by the Attorney-General to a foreign country, as evidence in proceedings in Australian courts. This includes material obtained in response to a request made under the Mutual Assistance Act.

28. There can be challenges in obtaining and using foreign material in Australian proceedings. Obtaining evidence under mutual assistance arrangements can be a lengthy process. The Commonwealth may have only one or at most limited opportunities to obtain the material in admissible form from a foreign country. Some foreign countries are unwilling and sometimes unable to expend the resources necessary to comply with the admissibility requirements of Australian law.

29. There can be difficulties in obtaining evidence in a particular format, for example, under the cover of an affidavit, or otherwise in the form of testimony, where no such requirement or concept may exist under the domestic law of that country.

30. To help address these challenges, the Bill makes technical amendments to the FE Act. Specifically, the Bill:

provides that testimony may be signed or certified by 'a person authorised to administer an oath or affirmation or put a person under an obligation to tell the truth', in or of the foreign country to which the request was made
replaces references to 'exhibits' with 'documents or things', and
replaces the terminology of exhibits being 'annexed to' testimony, with the formulation 'produced by or with'.

Schedule 6: Refusal of consent to international transfer of prisoners

International Transfer of Prisoners Act 1997

31. Schedule 6 of the Bill amends the ITP Act, which governs Australia's International Transfer of Prisoners (ITP) scheme. The ITP scheme allows Australians imprisoned overseas to apply to serve the remainder of their sentence in Australia. The ITP scheme also allows foreign nationals who are imprisoned in Australia to apply to serve the balance of their sentence in their home country.

32. The primary purpose of the ITP scheme is to promote the successful rehabilitation and reintegration into society of prisoners, while preserving the original sentence imposed by the sentencing country as far as possible in the receiving country. The ITP Act also provides a framework for Australians serving a sentence of imprisonment imposed by a tribunal (as defined in section 4 of the ITP Act) to return to Australia and serve their sentence of imprisonment in Australia.

33. Eligibility and conditions for transfer are governed by requirements set out in the ITP Act, and where applicable, the Council of Europe Convention on the Transfer of Sentenced Persons (the Convention) or other applicable bilateral ITP treaties. Under the ITP Act, Australia can only undertake transfers to and from a country declared as a 'transfer country' in regulations made under the ITP Act.

34. The ITP scheme is voluntary and requires the formal consent of the prisoner, Australia's Attorney-General, and the government of the relevant transfer country (or Tribunal, as the case may be) before a transfer can take place. The consent of the relevant state or territory Minister is also required for transfers of prisoners from Australia who have been convicted of state or territory offences, and for all transfers of prisoners to Australia.

35. The purpose of Schedule 6 is to amend the ITP Act to enable the Attorney-General to refuse to provide his or her consent to requests or applications for transfer to or from Australia at an earlier stage in the process. The amendments would expressly allow the Attorney-General to refuse consent with respect to:

applications for transfers from Australia under Part 3 of the ITP Act before seeking consent from the relevant state or territory Minister and the prisoner (or prisoner's representative) under sections 17 and 20
requests for transfers to Australia under Part 4 of the ITP Act before seeking consent from the relevant state or territory Minister under section 27, the prisoner (or prisoner's representative) under paragraph 28(1)(b), and the transfer country under paragraph 28(1)(a), and
requests for transfers of tribunal prisoners to Australia under Part 5 of the ITP Act before seeking consent from the relevant state or territory Minister under section 36, the prisoner (as required) under paragraph 37(b), and the tribunal under paragraph 37(a).

36. Currently, the Attorney-General is required to seek and receive consent from the relevant state or territory Minister, the prisoner (or prisoner's representative) and the transfer country (or Tribunal) in respect of all requests or applications for transfers to or from Australia before he or she can decide whether to consent to the transfer.

37. The current process raises practical difficulties in circumstances where the Attorney-General, after considering relevant information (including the prisoner's application, and other information from the transfer country, other Australian government agencies, and state or territory corrective services as the case may be), is minded to refuse consent to the transfer. Under the ITP Act as currently drafted, the Attorney-General still needs to seek consent from the relevant state or territory Minister, the prisoner and transfer country or tribunal before making that decision, leading to a lengthy but ultimately unnecessary administrative process.

38. An example may be where the Attorney-General considers that the terms of sentence enforcement proposed by the transfer country for a transfer from Australia are not acceptable because the prisoner would be released earlier than he or she would otherwise be released if he or she remained in Australia.

39. As the Attorney-General cannot currently refuse consent at this stage, the current process is inefficient and places an unnecessary administrative burden on Commonwealth and state and territory government resources in the event that an application or request for transfer will ultimately be refused by the Attorney-General.

40. Further, in these circumstances the prisoner is required to wait for a longer period to receive the final outcome of his or her application, which in most cases can be many months if not years. Prolonging this period of uncertainty may negatively impact the prisoner's rehabilitation in custody.

41. The amendments in Schedule 6 of the Bill resolve these practical difficulties and inefficiencies by enabling the Attorney-General to refuse consent before the other parties become involved. However, they would not change the requirements and factors the Attorney-General considers when determining whether to consent to an application for transfer. Accordingly, the Attorney-General would continue to consider the requirements set out in the ITP Act, the relevant treaty, the circumstances of the case, the Australian Government's ITP Statement of Policy, and any other relevant information. Further, the requirement in section 52 of the ITP Act for the Attorney-General to arrange for the prisoner to be kept informed of the progress of any application or request remains.

42. The ITP Statement of Policy is a published document provided to all applicants and available on the Attorney-General's Department's website that expressly sets out the matters that the Attorney-General may consider when making a decision in respect of a transfer to or from Australia. This affords the prisoner with an opportunity to make representations to the Attorney-General on particular matters that may inform the Attorney-General's decision, in accordance with principles of procedural fairness. The Attorney-General would also continue to consider each application or request on its merits and on a case-by-case basis.

43. Other relevant information that the Attorney-General would have access to includes:

the prisoner's application
in respect of an application for transfer from Australia, proposed terms of transfer from the transfer country
material and information provided by relevant Australian government agencies and state and territory corrective services
in respect of a request to transfer to Australia from a transfer country, any information sought from the transfer country under section 25 of the ITP Act (which may include reports as to the prisoner's conviction, sentence and behaviour), and
in respect of a request to transfer to Australia of a tribunal prisoner, any information sought from the tribunal (if relevant) under section 34 of the ITP Act (which may include reports as to the prisoner's conviction, sentence and behaviour).

Schedule 7: Grounds to refuse mutual assistance requests

Mutual Assistance in Criminal Matters Act 1987

44. Schedule 7 of the Bill amends the grounds to refuse mutual assistance requests in the Mutual Assistance Act. The Mutual Assistance Act governs mutual assistance arrangements in Australia.

45. Mutual assistance is the process by which countries provide formal government-to-government assistance in the investigation and prosecution of criminal offences and related proceedings. Mutual assistance is a critical component of international crime cooperation and is used where evidence or information relating to a criminal investigation, prosecution or related proceeding is located in a foreign country. Mutual assistance is required for the transfer of evidence in admissible form between countries and to commence evidence gathering operations on behalf of foreign countries that require coercive powers.

46. Under sections 10 and 11 of the Mutual Assistance Act, Australia can make mutual assistance requests to, and receive mutual assistance requests from, foreign countries in relation to criminal matters. Where Australia receives a request from a foreign country, Australia may provide assistance to that country where authorised by the Attorney-General in accordance with the Mutual Assistance Act.

47. The Attorney-General can refuse requests for mutual assistance from foreign countries on a range of grounds. These grounds of refusal are either mandatory or discretionary. A mandatory ground of refusal means that a request must be refused if the requirements of the ground are met. A discretionary ground of refusal means that the request may be refused if the requirements of the ground are met, while allowing other matters to be considered.

48. Schedule 7 of the Bill amends the Mutual Assistance Act to provide that the existing mandatory ground of refusal relating to torture applies where there are substantial grounds to believe that any person would be in danger of being subjected to torture, if the request for assistance was granted. Currently, the existing ground of refusal applies only in relation to the person who is the subject of the request. There is a separate discretionary ground of refusal which allows assistance to be refused where it may prejudice the safety of any person (whether in or outside Australia).

49. Changing the wording from 'the person' to 'a person' expands the scope of the mandatory ground of refusal. Referring to 'a person' will include the subject of the investigation or prosecution and, where applicable, other persons such as witnesses, including those persons who consent to be transferred to a foreign country to give evidence. This provides a stronger safeguard against providing assistance where there are substantial grounds for believing there is a risk of torture, beyond the existing discretionary ground of refusal.

Schedule 8: Public Interest Monitors

Telecommunications (Interception and Access) Act 1979

50. Schedule 8 will amend the TIA Act to expand the matters on which the Public Interest Monitor (PIM) of Queensland and Victoria can make submissions relating to Part 2-5 (Interception) warrants, as well as interception International Production Orders (IPOs) for Part 5.3 supervisory orders.

51. Before an eligible judge or nominated Administrative Appeals Tribunal (AAT) member can issue a warrant or IPO they must have regard to a list of matters, as set out in the TIA Act, including any submissions made by a PIM, where an interception agency of Queensland or Victoria makes the application.

52. As it stands, PIMs are unable to make submissions on some matters relevant to warrants and IPOs relating to Part 5.3 supervisory orders (being control orders, extended supervision orders and interim supervision orders). The amendment will expand the matters to which a PIM may make submissions, to include these additional considerations, as well as other such matters to which an eligible judge or nominated AAT member considers relevant for an IPO.

53. This expansion of the oversight capability of the Victorian and Queensland PIMs strengthens the existing protections in the TIA Act against arbitrary or unlawful interference with privacy.

Schedule 9: Witness Protection

Witness Protection Act 1994

54. The Witness Protection Act provides a statutory basis for the National Witness Protection Program (NWPP), which is administered by the Australian Federal Police (AFP). The NWPP provides assistance to people who may require protection because they have given, or agreed to give, evidence or a statement on behalf of the Crown in criminal or certain other proceedings; or because of their relationship to such persons; or that for any other reason may require protection or assistance under the NWPP.

55. It is imperative that the AFP has a robust legislative framework that encourages people who assist law enforcement to trust the AFP's ability to protect.

56. The Bill amends the Witness Protection Act to:

clarify the existing provision at section 29 to ensure beyond doubt that protection and assistance provisions in the Witness Protection Act apply to cover all participants of previous AFP witness protection programs.

o
The existing provision is ambiguous about the extent to which the AFP can provide protection and assistance to past participants. This may have consequences for the individual in maintaining their identity.

enable participants to be temporarily suspended (either at the request of the participant or at the discretion of the AFP) from receiving protection and assistance under the NWPP in appropriate circumstances where the AFP's ability to provide protection or assistance may be limited. For example, when a participant does or intends to do something that would place them outside the AFP's jurisdiction.

o
Currently, there is no provision in the Act that allows a participant to be suspended from receiving protection or assistance under the NWPP, in circumstances where the AFP may be temporarily limited in providing protection or assistance. In these situations, an individual must be considered for termination from the NWPP and may be required to undertake a full re-assessment process in order to re-enter the NWPP.

modernise and streamline certain parts of the Witness Protection Act to reduce administrative burden on the AFP.

o
This includes updating language to reflect current terminology and providing that the powers for former participants are delegated to a designated position at the Commissioner's discretion, consistent with the approach for current participants.

57. The ultimate objective of the amendments is to ensure the Witness Protection Act is robust, efficient, contemporary and provides effective protection and assistance for participants under the NWPP.

Schedule 10: Amendments relating to the South Australian Independent Commission Against Corruption

Crimes Act, Criminal Code Act 1995, Privacy Act 1988, Surveillance Devices Act 2004, and the Telecommunications (Interception and Access) Act 1979

58. These amendments will correct references relating to the South Australia (SA) Independent Commission Against Corruption.

Human rights implications

59. The Bill may engage, directly or indirectly, with the following human rights:

the right to security of the person and freedom from arbitrary detention - article 9 of the International Covenant on Civil and Political Rights (ICCPR)
prohibition on torture and cruel, inhuman or degrading treatment or punishment - article 7 of the ICCPR and the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)
the right to reformation and social rehabilitation in penitentiary systems - subarticle 10(3) of the ICCPR
the right to a fair and public hearing - article 14(1) of the ICCPR
the rights of the accused to be tried without undue delay - paragraph (c) of subarticle 14(3) of the ICCPR
the right to privacy - subarticle 17(1) of the ICCPR,
the right to pursue economic development - article 1 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

The right to security of the person and freedom from arbitrary detention

60. Article 9 of the ICCPR provides that everyone has the right to liberty and security of person. It requires that persons not be subject to arrest and detention except as provided for by law, and provided that neither the arrest nor the detention is arbitrary. The right applies to all forms of detention where people are deprived of their liberty.

Part 1 of Schedule 3: Crimes Act 1914

61. As currently drafted, provisions in Part IC require that an arrested person is brought before a judicial officer before, or as soon as practicable after, the end of the investigation period. The definition of judicial officer in subsection 23B(1) has been drafted such that a person who commits a Commonwealth offence[1] in one state, but is arrested in another, could only be brought before a magistrate to have their bail application heard. Where the magistrate's availability is limited, such as after hours or on weekends, the person may be held in custody for a longer period of time than in ordinary circumstances.

62. Bail is a long-established principle of the justice system which allows a person who has been arrested and charged to be released from custody while they wait to appear in court. The amendments to Part IC in Part 1 of Schedule 3 will not impact the ability or statutory requirements that must be met in order for a person to obtain bail. Changing references from 'judicial officer' to 'bail authority' in Part IC will simply ensure that persons arrested in the above circumstances can be brought before a magistrate or a bail officer in the state where the offence occurred, which will ensure they person is bailed or remanded into custody in a timely manner.

63. These amendments mitigate the risk of arrested persons being subject to arbitrary detention by ensuring they are not held in detention for longer than is necessary. These amendments therefore have a positive impact on this right by ensuring that a person's ability to be remanded on bail is not unduly impacted by where they were arrested, and where the offence was committed.

Schedule 9: Witness Protection

Witness Protection Act 1994

64. New section 29A positively affects a person's right to security under subarticle 9(1) of the ICCPR by enabling the AFP to afford protection and assistance to a cohort of individuals not currently captured by the Act.

65. Under existing subsection 29(2), the protections in the Witness Protection Act only apply to persons who were part of an AFP witness protection program 'immediately before' this Act commenced in 1994. This wording creates ambiguity about the extent to which the AFP can provide protection and assistance to past participants. This may have consequences for the individual in maintaining their identity.

66. The objective of this amendment is to ensure the Witness Protection Act as a whole applies to past participants, by recognising them as former participants under the Witness Protection Act, therefore enabling the AFP to render protection and assistance to these persons.

67. This amendment therefore promotes subarticle 9(1) of the ICCPR through enabling the AFP to take necessary and reasonable actions to protect a person's (or in this case, a cohort of people's) safety and welfare.

68. New sections 17A and 17B, pertaining to the temporary suspension of protection and assistance under the NWPP, engage a person's right to security under subarticle 9(1) of the ICCPR, as they temporarily remove the protection and assistance afforded to the participant.

69. Currently, the Witness Protection Act does not allow a participant to be temporarily suspended from the NWPP. This is important in instances where the participant has done, or intends to do something that limits or would limit the AFP's ability to provide adequate protection and assistance.

70. The amendments provide greater flexibility for current participants, who will not need to be terminated from the program and re-apply in these circumstances. This minimises the risk a participant may otherwise be exposed to while awaiting re-entry into the program following a termination.

71. The objective of this amendment is to allow the Commissioner or their delegate to suspend the provision of protection and assistance to a participant if the participant requests this in writing (new section 17A) or if the relevant decision maker determines that the participant does or intends to do something that would limit the AFP's ability to provide adequate protection and assistance to that person (new section 17B). New subsections 24(4) and 24(5) allow the Commissioner to delegate their powers to suspend protection and assistance to an Assistant Commissioner. An Assistant Commissioner may further delegate these powers to a Commander or Superintendent, who may only exercise these powers in serious and urgent circumstances.

72. This preserves the integrity of the NWPP and allows the suspension to be lifted once the AFP's ability to provide adequate protection and assistance is restored.

73. While the right to security is limited by temporarily suspending the AFP's provision of protection and assistance, this is reasonable and necessary in circumstances where this is requested by the participant, or where the AFP's ability to provide adequate protection to the participant is limited.

74. There are a number of supporting provisions that ensure this amendment is proportionate, reasonable and necessary to address the identified issue:

New subsections 17A(6) and 17B(6) provide that a suspension does not prohibit protection or assistance being provided during the suspension if the Commissioner or their delegate considers it is reasonable and necessary for the assistance to be provided.
New section 17C provides for review of a decision (other than a decision made personally by the Commissioner), by a Deputy Commissioner, to suspend protection and assistance under new section 17B (where the Commissioner or their delegate determines the participant has done or intends to do something that would limit the AFP's ability to provide adequate protection and assistance to that person). This affords a participant procedural fairness. New section 17C does not provide for a review of the decision by an external oversight body (for example, the Commonwealth Ombudsman). This is due to the need to limit knowledge of sensitive information such as the participant's individual circumstances and of the broader administration of the NWPP. This is essential to protect the identity of the participant as well as the integrity of the NWPP generally. Decisions made personally by the Commissioner are not reviewable, which aligns with the approach to other powers exercised personally by the Commissioner in the Witness Protection Act - such as the termination of a participant's inclusion in the NWPP.

75. This particular amendment is compatible with the right to security under Article 9 of the ICCPR to the extent that the provisions are reasonable, necessary and proportionate in achieving the legitimate objectives of ensuring protection and assistance for participants can be suspended where appropriate and easily reinstated once the circumstances that may limit the AFP's ability to provide this protection and assistance have resolved.

The prohibition on torture and other cruel, inhuman or degrading treatment or punishment

76. Article 7 of the ICCPR and the CAT require that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Part 1 of Schedule 3: Crimes Act 1914

77. Amendments to Part IC of the Crimes Act in Part 1 of Schedule 3 will repeal the definition of 'judicial officer' and replace references to 'judicial officer' in subsections 23B(1), 23B(3), 23C(3), 23DB(4) and paragraphs 23C(8)(a) and 23DB(12)(a) with 'bail authority'.

78. These amendments do not change the existing rights and safeguards for detained persons set out under Part IC, nor do they change the obligations for law enforcement officers when questioning detained persons. The amendments will provide opportunities for a person to obtain bail in certain circumstances. These amendments therefore ensure that these provisions remain in accordance with Article 7 of the ICCPR and ensure that persons detained under Part IC are not subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Schedule 7: Grounds to refuse mutual assistance requests

Mutual Assistance in Criminal Matters Act 1987

79. Australia's human rights obligations apply to all people subject to Australia's jurisdiction. Australia has such jurisdiction with respect to all people in its territory and, with respect to persons outside of its territory, only to the extent that such persons are within Australia's effective control.

80. The amendment in Schedule 7 affects the way that Australia processes incoming mutual assistance requests made by foreign countries. By their nature, these requests relate to proceedings or investigations that are on foot in a foreign jurisdiction. Where the subject of a proceeding or investigation is not located within Australia's jurisdiction - as is usually the case with foreign requests - Australia's obligations under the ICCPR are not engaged when responding to foreign mutual assistance requests. This position is not altered by the amendments contained in the Bill.

81. Notwithstanding this, the amendments contain protections which would ensure that relevant rights remain protected, even where this extends beyond Australian's international human rights obligations, consistent with Australia's policy stance on human rights

82. The amendment in Schedule 7 in relation to the torture ground of refusal may engage and promote rights in relation to torture. Article 7 of the ICCPR and Article 16 of the CAT prohibit conduct which may be considered as torture or cruel, inhuman or degrading treatment or punishment. These rights are absolute and cannot be limited in any way.

83. Article 3 of the CAT establishes non-refoulement obligations prohibiting states from returning a person to a country where there are substantial grounds for believing that the person would be in danger of being subjected to torture. In addition, Article 7 of the ICCPR provides that no one shall be subjected to torture. It is widely accepted that Article 7 of the ICCPR includes implied non-refoulement obligations in relation to torture.

84. Amendments to the Mutual Assistance Act in Schedule 7 provide that the existing ground of refusal in relation to torture apply more broadly to any person, not just the subject of the investigation or prosecution. The amendment seeks to ensure that any person is not subject to torture as a result of Australia providing assistance in response to a request by a foreign country. For example, under the amendment, the Attorney-General must refuse to provide assistance where there are substantial grounds to believe that providing the evidence requested will result in a third person located in the foreign country being investigated and subjected to torture.

85. Accordingly, this amendment enhances protections in matters where there are torture concerns and affirms Australia's strong position against torture.

The right to reformation and social rehabilitation in penitentiary systems

86. Subarticle 10(3) of the ICCPR provides that '[t]he penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation.'

Schedule 6: Refusal of consent to international transfer of prisoners

International Transfer of Prisoners Act 1997

87. As outlined above in the overview of the Bill, the current process for considering applications under the ITP Act raises practical difficulties and inefficiencies by requiring the Attorney-General to obtain consent from all relevant parties before making a decision on whether to consent to the transfer. This ultimately delays a final response to the prisoner in circumstances where the Attorney-General is minded to refuse consent but is unable to lawfully make that decision until the end of the process.

88. Schedule 6 of the Bill has the potential to engage and promote the right in subarticle 10(3) of the ICCPR by allowing the Attorney-General to refuse consent at an earlier stage in the process, and thereby enabling a quicker resolution of the transfer application or request. A quicker resolution will avoid uncertainty for the prisoner as to whether or not the transfer will go ahead. Uncertainty about a transfer may negatively impact the prisoner's rehabilitation in custody, and may result in the prisoner not being able to actively engage in rehabilitation programs in their current prison location.

89. By providing a resolution to the prisoner's application as quickly as possible in these circumstances, the prisoner will be able to focus on continuing with their rehabilitation in their existing prison location, including through rehabilitation prison programs. This therefore promotes the right to reformation and social rehabilitation in penitentiary systems under subarticle 10(3) of the ICCPR.

The right to a fair and public hearing

90. Subarticle 14(1) of the ICCPR sets out the right to a fair and public hearing and requires that that all persons are equal before courts and tribunals and that they have right to a fair and public hearing before a competent, independent and impartial court or tribunal established by law. The right is concerned with procedural fairness and may be engaged by changes to the rules of evidence in courts or tribunals, or special procedures for witnesses to give evidence.

Schedule 1: Anti-Money Laundering and Counter-Terrorism Financing Act 2006

91. The Bill may engage the right to a fair and public hearing in Article 14(1) of the ICCPR by limiting the circumstances in which sensitive AUSTRAC information can be disclosed in the course of court and tribunal proceedings. In these circumstances, sensitive AUSTRAC information refers to information obtained under a suspicious matter report (SMR) under section 41 of the AML/CTF Act, section 49 notice-related information (as the notice relates to a communication under section 41), and suspicious transaction reports (SUSTRs) collected under the FTR Act.

92. The inadmissibility of sensitive AUSTRAC information is a long-standing policy position given effect by section 124 of the AML/CTF Act, with the intent that this sensitive information should not be made public in order to keep the identity of the author of sensitive AUSTRAC information confidential and maintain the safety of regulated entities and their employees. Allowing sensitive AUSTRAC information to be made public in court or tribunal proceedings is also likely to have a chilling effect on reporting by regulated entities.

93. These types of sensitive AUSTRAC information are only made available by AUSTRAC to other Commonwealth, state or territory officials for intelligence purposes to support the performance of their functions, such as law enforcement investigations. The sensitive AUSTRAC information itself is not evidence of the matter in relation to which a relevant suspicion has been reported, and should not be relied on or admitted as evidence, nor otherwise disclosed by Commonwealth, state or territory officials. Where sensitive AUSTRAC information is used in court or tribunal proceedings (as permitted under certain circumstances specified in section 124 of the AML/CTF Act), that information will be disclosed to the defendant consistent with the usual disclosure obligations that apply to AUSTRAC or the Australian Federal Police/Commonwealth Director of Public Prosecutions (CDPP), as appropriate.

94. The amendments clarify the existing information disclosure regime contained in the AML/CTF Act, operate to protect national security and public safety, and do not inappropriately interfere with the right to a fair hearing.

Part 1 of Schedule 3: Crimes Act 1914

95. Amendments to Part IC of the Crimes Act in Part 1 of Schedule 3 engage the right to a fair and public hearing in subarticle 14(1) of the ICCPR as they relate to an arrested person's right to make an application for bail, which allows an arrested person to be released from custody while they await their court appearance. While the amendments engage this right, the amendments do not negatively impact this right as they do not change or limit the process or statutory requirements for obtaining bail. This measure will also ensure that the amended provisions are in greater alignment with the Australian Constitution, which requires that trials for indictable offences are held in the state where the offence was committed.

Schedule 5: Obtaining foreign materials

Foreign Evidence Act 1994

96. Amendments to the FE Act in Schedule 5 may be perceived to engage the right to a fair trial because it amends the scope of persons before whom testimony may be sworn for the purposes of providing testimony to be used in criminal and related civil proceedings in Australia.

97. Currently, subsection 22(2) of the FE Act provides that testimony 'must purport to be signed or certified by a judge, magistrate or officer in or of the foreign country to which the request was made'. Schedule 5 amends this subsection to expand the category of persons before whom testimony may be sworn, to include a person who is authorised by or under a law of the foreign country concerned to administer an oath or affirmation, or impose an obligation on the person giving the testimony to tell the truth.

98. This amendment facilitates the provision of testimony, in a way that is consistent with the domestic laws of both Australia and the foreign country and does not adversely affect the rights of a person to a fair trial under Article 14 of the ICCPR.

99. The Bill may also engage the right to a fair trial because it amends the references in the FE Act to documents or things accompanying testimony, which may be adduced in criminal or related civil proceedings.

100. When responding to a mutual assistance request, a foreign country may gather the material requested, but return it to Australia without the attachments formally annexed to the affidavit or other form of testimony, as required under Australian law. This may cause delays in prosecutions while seeking conformity with the admissibility requirements, which may result in prosecutions not going ahead. To address this, the Bill amends the current requirement that exhibits be 'annexed to' testimony, and replaces it with 'produced by or with.'

101. The amendments provide for an appropriate connection between the testimony and the documents or things accompanying the testimony. The amendments do not lessen the probative value of the testimony or unfairly prejudice a defendant. The testimony and documents or things produced by or with the testimony will remain subject to the rules of evidence applicable in the relevant proceedings, and the court will retain discretion on whether or not to admit the testimony and accompanying documents or things, in proceedings to which the accused will be a party.

102. The amendments are therefore consistent with the right to a fair hearing under subarticle 14(1) of the ICCPR as they seek to ensure that all available evidence is put to the court, and do not unfairly prejudice a defendant in criminal proceedings.

The right of the accused to be tried without undue delay

103. Paragraph (c) of subarticle 14(3) of the ICCPR provides that a person is entitled to be tried without undue delay in the determination of any criminal charge against them. As noted by the United Nations Humans Right Committee, this is intended to avoid keeping persons in a state of uncertainty about their fate and, if held in detention during the period of the trial, to ensure that such deprivation of liberty does not last longer than necessary in the circumstances of the specific case but also to serve the interests of justice[2].

Schedule 5: Obtaining foreign materials

Foreign Evidence Act 1994

104. A likely effect of amendments to the FE Act in Schedule 5 is a reduction in the time spent in ensuring that evidence from foreign countries is physically annexed to testimony as currently required. The reduction of time will minimise undue delay in a trial of the accused.

105. The amendments are therefore consistent with the right to a hearing without undue delay in paragraph (c) of subarticle 14(3)of the ICCPR as they seek to reduce delays in the gathering of evidence.

The right to privacy

106. Article 17 of the ICCPR provides for the right not to be subjected to arbitrary or unlawful interference with privacy. In order for the interference with privacy not to be 'arbitrary', any interference must be reaso nable in the particular circumstances. Reasonableness, in this context, incorporates notions of proportionality to the end sought and necessity in the circumstances.

Schedule 8: Public Interest Monitors

Telecommunications (Interception and Access) Act 1979

107. The amendments relating to PIMs in Schedule 8 engages the protection against arbitrary or unlawful interference with privacy contained in Article 17 of the ICCPR. Article 17 provides that no one shall be subjected to arbitrary or 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.

108. The protection against arbitrary or unlawful interference with privacy under Article 17 can be permissibly limited in order to achieve a legitimate objective and where the limitations are lawful 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 subarticle 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.

109. The purpose of interception warrants and IPOs for Part 5.3 supervisory orders is to protect national security, public safety, address crime, and terrorism. This aims to protect the rights and freedoms of individuals by providing law enforcement and national security agencies with the tools they need to keep Australians safe. Where these powers limit the protection against arbitrary or unlawful interference with privacy in Article 17 of the ICCPR, the limitation is reasonable, necessary and proportionate in achieving these legitimate objectives.

110. These amendments will ensure greater protections against arbitrary and unlawful interferences with privacy in Article 17 of the ICCPR by Part 5.3 interception agencies of Queensland and Victoria, by ensuring that there is greater oversight and scrutiny of applications for these warrants. The current provisions relating to PIMs are relevant only to Victoria and Queensland. The establishment of a PIM is a matter for states and territories to address, and is outside the scope of these amendments.

The right to pursue economic development

Schedule 1: Anti-Money Laundering and Counter-Terrorism Financing Act 2006

111. The Bill engages Article 1 of the ICESCR by clarifying that it is a continuing offence for a reporting entity for failing to enrol within 28 days of commencing to provide a designated service. The definition of 'reporting entity' under the AML/CTF Act means a person who provides a designated service. The amendments in the Bill clarify the existing obligation to enrol and expand the circumstances in which financial penalties can be imposed. In this way, the Bill could infringe on a person's ability to 'freely' pursue their economic development and could deprive them of their subsistence.

112. The ICESCR recognises that this right can be limited where it is solely for the purpose of promoting general welfare in a democratic society. The requirement for reporting entities to enrol with AUSTRAC is vital to ensure that it is able to effectively supervise reporting entities under the AML/CTF Act, and that the reporting entity is complying with its obligations under that Act. A strong and effective AML/CTF regime is an integral part of ensuring Australia's democratic institutions and financial system are resilient against threats posed by terrorism and transnational, serious and organised crime.

113. These amendments are proportionate to addressing the national security threat posed by money laundering and terrorism financing. The amendments:

enable AUSTRAC to issue a reporting entity with an infringement notice each day that it provides a designated service while unenrolled, and
support a graduated system of enforcement whereby serious and systemic non-compliance is met with dissuasive penalties, without unduly penalising businesses for comparatively minor breaches.

Conclusion

114. The Bill is compatible with Australia's human rights obligations because it promotes rights, and to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.

Notes on Clauses

Preliminary

Clause 1 - Short title

1. This clause provides for the short title of the Act to be the Crimes and Other Legislation Amendment (Omnibus) Act 2023.

Clause 2 - Commencement

2. This clause provides for the commencement of specified sections and each Schedule to the Bill, as set out in the table.

3. Item 1 in the table provides that sections 1 to 3, which concern the formal aspects of the Bill, as well as anything in the Bill not elsewhere covered by the table, will commence on the day after the Bill receives Royal Assent.

4. Item 2 in the table provides that Part 1 of Schedule 1, which makes amendments to Part 3A and Part 15 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF Act), will commence on the 28th day after the day the Act receives Royal Assent.

5. Item 3 in the table provides that Parts 2 and 3 of Schedule 1, which make amendments to Part 1, Part 11 and Part 16 of the AML/CTF Act, will commence on the day after the Act receives Royal Assent.

6. Item 4 in the table provides that Schedule 2 and Schedule 3, which make amendments to Part II of the Australian Crime Commission Act 2002 (ACC Act), will commence on the day after the Act receives Royal Assent.

7. Item 5 in the table provides that Schedule 4, which makes amendments to Part III of the Criminology Research Act 1971 (Criminology Research Act), will commence on the 28th day after the Act receives Royal Assent.

8. Item 6 provides that Schedule 5, Schedule 6, Schedule 7 and Schedule 8, which make amendments to the Foreign Evidence Act 1994 (FE Act), the International Transfer of Prisoners Act 1997 (ITP Act), the Mutual Assistance in Criminal Matters Act 1987 (Mutual Assistance Act), and the Telecommunications (Interception and Access) Act 1979 (TIA Act), will commence on the day after the Act receives Royal Assent.

9. Item 7 in the table provides that Schedule 9, which will make amendments to the Witness Protection Act 1994 (Witness Protection Act), will commence on a single day to be fixed by Proclamation. It further provides that if the provisions do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.

10. The deferred commencement of Schedule 9 is required so that consequential amendments to the Witness Protection Regulations 2018 which will prescribe what an 'eligible national security clearance' is for the amendments in sections 3, 12 and 13 can be made.

11. Additional time is also required so that the Australian Federal Police (AFP) can create new delegation instruments to cater for the amendments in subsections 25(1) and 25(4) of the Witness Protection Act and to revoke the previous delegation instrument for the previous subsection 25(4).

12. Item 8 in the table provides that Schedule 10, which will make amendments to the Crimes Act 1914 (Crimes Act), the Criminal Code Act 1995 (Criminal Code), the Privacy Act 1988 (Privacy Act), the Surveillance Devices Act 2004 (SD Act), and the TIA Act, will commence on the day after the Act receives Royal Assent.

Clause 3 - Schedules

13. Clause 3 provides that legislation that is specified in a Schedule to this Act is amended or repealed as set out according to the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

SCHEDULE 1 - ANTI-MONEY LAUNDERING AND COUNTER-TERRORISM FINANCING ACT 2006

14. Amendments to the AML/CTF Act will:

strengthen and clarify the civil penalty for businesses that fail to enrol with Australian Transaction Reports and Analysis Centre (AUSTRAC) before providing a designated service under the Act
allow for automating decision-making for certain routine and low risk decisions, and
re-introduce necessary protections for sensitive categories of AUSTRAC information, such as Suspicious Matter Reports from disclosure to courts and tribunals.

Part 1 - Clarifying the offence for failure to enrol

15. Part 1 of Schedule 1 strengthens and clarifies that it is a breach of section 51B to provide a designated service under the AML/CTF Act without being enrolled with AUSTRAC. A separate contravention occurs each day that a person fails to apply for enrolment for the period between the enrolment deadline and the day the obligation to apply for enrolment ends.

16. Enrolment with AUSTRAC is vital to ensuring that it is able to effectively supervise reporting entities under the AML/CTF Act to ensure the reporting entity , as defined in section 5 of the AML/CTF Act, is complying with its obligations under that Act.

17. Section 51B of the AML/CTF Act requires reporting entities to enrol with AUSTRAC within 28 days of commencing to provide a designated service (the enrolment deadline). This is mandatory for all persons who provide a designated service. Section 51B is a civil penalty provision, and failure to enrol with AUSTRAC leaves the reporting entity liable to enforcement action by AUSTRAC.

18. Contraventions of section 51B can be enforced using a range of enforcement tools, depending on the severity and extent of the breach. For example, minor contraventions can be enforced by issuing the reporting entity with an infringement notice under section 184(1) of the AML/CTF Act whilst civil penalty proceeding may be more appropriate for the most serious and systemic contraventions.

19. An infringement notice for a contravention of section 51B is issued for the amount of 60 penalty units for a body corporate, or 12 penalty units for a person other than a body corporate. Where the pecuniary penalty is paid within 28 days of the notice being given, the reporting entity will not be liable to civil penalty proceedings in relation to that contravention.

20. Subsection 184(2) of the AML/CTF Act provides that infringement notices can only be issued within 12 months from the day when the contravention is alleged to have occurred. Prior to this amendment, if AUSTRAC did not become aware that a person provided, or is providing, a designated service while unenrolled (in contravention of section 51B) until 12 months after the person last provided a designated service, AUSTRAC was unable to issue an infringement notice to enforce the contravention.

21. Operational experience has demonstrated that the current drafting of section 51B limits AUSTRAC's ability to effectively use infringement notices as part of its enforcement action as there is no provision in the AML/CTF Act for AUSTRAC to effectively enforce ongoing breaches of the enrolment obligation (in a way that is commensurate with serious and ongoing breaches).

22. Currently, where a reporting entity fails to enrol within the 28-day period after commencing to provide a designated service for the first time, the entity is taken to only have contravened section 51B once, regardless of whether the entity continues to provide a designated service while unenrolled. Consequently, the AUSTRAC CEO can only give the person an infringement notice in relation to a single contravention, even when the person has continued to provide a designated service while unenrolled, and only if AUSTRAC becomes aware of the initial contravention within 12 months of it occurring.

23. The amendments will strengthen the enrolment obligation and clarify that a person who provides, or commences to provide, a designated service without applying to enrol within the 28-day period, will have an ongoing obligation to enrol even after that 28-day period has ended (the enrolment deadline), until the person either enrols, or ceases to be a reporting entity. Further, the amendment will clarify that a separate contravention occurs each day that a person fails to apply for enrolment for the period between the enrolment deadline and the day the obligation to apply for enrolment ends. This will allow AUSTRAC to enforce compliance by issuing an infringement notice for each contravention in the preceding 12 months where a person fails to enrol after the enrolment deadline while continuing to provide a designated service, regardless of when the designated service was first provided.

24. Strengthening AUSTRAC's ability to issue infringement notices encourages compliance with the AML/CTF Act and ensures continued non-compliance is met with proportionate and dissuasive pecuniary penalties. For more severe or persistent breaches, such as where the reporting entity continues to provide a designated service or has wilfully refused to enrol, AUSTRAC can issue infringement notices covering multiple contraventions from the ongoing period of providing a designated service, or pursue alternative civil penalty enforcement action.

Item 1 - Subsection 51B(1)

25. Item 1 repeals existing subsection 51B(1) and substitutes new subsection 51B(1). Subsection 51B(1) requires a person to apply to have their name entered on the Reporting Entities Roll no later than 28 days after commencing to provide a designated service. Failure to enrol as a reporting entity within the enrolment period is a breach of a civil penalty provision.

Item 2 - Subsections 51B(2A), 51B(2B), 51(2C) and 51(2D)

26. Subsection 51B(2A) establishes that the obligation in subsection 51B(1) does not apply if, when the person commences to provide a designated service additional to what they already provide, the person is already required under that subsection to apply for enrolment because of the existing provision of another designated service. This provision clarifies that the enrolment deadline attaches to the first commencement to provide a designated service and there is not a separate enrolment deadline that attaches to each subsequent commencement to provide a designated service. That is, the 28-day period in which the person must apply to enrol starting from when the person first commenced to provide a designated service is not 'reset' by the subsequent provision of another designated service by the person.

27. Subsection 51B(2A) differs from existing subsection 51B(2) in that, whereas subsection 51B(2A) ensures the person cannot defer the contraventions by continuously 'resetting' the 28 day period in which they must apply to enrol, existing subsection 51B(2) ensures that a person cannot be found to have contravened section 51B in circumstances where the person has already applied to be enrolled in connection with an earlier provision of another designated service, and the person has not since that application asked to be removed from the Reporting Entities Roll.

28. Subsection 51B(2B) establishes that the obligation for a person to apply for enrolment continues until whichever occurs first:

the person applies for enrolment, or
the person ceases to be a reporting entity.

29. A reporting entity is defined in section 5 of the AML/CTF Act as a person who provides a designated service.

30. This amendment clarifies the duration of the enrolment obligation and provides a safeguard against a person breaching that obligation in perpetuity, and in circumstances where they have stopped providing designated services.

31. Subsection 51B(2C) establishes that a person will contravene new subsection 51B(1) each day the person fails to apply for enrolment for the period between the enrolment deadline and the day the obligation to apply for enrolment ends. Subsection 51B(2D) clarifies that a person can only contravene new subsection 51B(1) once per day, even if they are providing multiple designated services on that day.

32. The amendment to establish continuing contraventions when a person fails to comply with their obligations will ensure that reporting entities do not evade penalty simply through the effluxion of time. It addresses an existing regulatory gap where a person only breaches section 51B once by failing to enrol after commencing to provide a designated service, even if they continue to provide designated services on an ongoing basis whilst remaining unenrolled. It ensures that AUSTRAC can enforce compliance by issuing an infringement notice for any contraventions that took place in the preceding 12 months, regardless of when the designated service was first provided.

33. The amendment also enables the enforcement approach to be tailored to address sufficiently serious, persistent or systemic non-compliance. The new provisions will enable infringement notices to be given that address multiple contraventions and to ensure that the penalties imposed align with the seriousness of the breaches. AUSTRAC will reserve bringing civil penalty proceedings for the most serious and ongoing breaches.

Item 3 - Application of Amendments

34. Item 3 provides that the amendments made by this Part apply in relation to commencing to provide a designated service on or after the commencement of this item.

35. The amendments will not have retrospective application to investigations and enforcement actions commenced by AUSTRAC prior to the commencement of this item. However, if these investigations and enforcement actions remain ongoing subsequent to the commencement of this item, the amendments made by this Part will apply thereafter or on the commencement date of this item.

Part 2 - Reinstating protections on the disclosure of sensitive AUSTRAC information in connection with courts and tribunal proceedings

36. Part 2 of Schedule 1 will reimpose safeguards on the use and disclosure of the most sensitive types of AUSTRAC information to ensure that it cannot be disclosed, whether voluntarily or otherwise, to a person for the purposes of, or in connection with, court or tribunal proceedings.

37. AUSTRAC information is defined in section 5 of the AML/CTF Act as being information obtained or generated by an AUSTRAC entrusted person under the AML/CTF Act, obtained by an AUSTRAC entrusted person for the purposes of any other law of the Commonwealth, or a law of a state or a territory, or information obtained by an AUSTRAC entrusted person from a government body. An AUSTRAC entrusted person includes the CEO, members of staff, consultants and members of task forces established by AUSTRAC. This definition does not extend to officials of other Commonwealth law enforcement agencies.

38. The amendments protect the integrity of the following subset of sensitive AUSTRAC information:

a suspicious matter report' (SMR) given to the AUSTRAC CEO under section 41 of the AML/CTF Act
information obtained under section 49 of the AML/CTF Act, in relation to a communication by a reporting entity under section 41, and
reports of suspect transactions (SUSTR) given to the AUSTRAC CEO under section 16 of the Financial Transaction Reports Act 1988 (FTR Act).

39. These types of AUSTRAC information are considered sensitive because SMR and SUSTR relate to the suspicions that a reporting entity has formed in the course of providing a designated service that certain activities may be indicative of money-laundering, terrorism-financing or other serious crime. The suspicions are subjective and unsubstantiated, and are intended to be used only as intelligence to prompt further investigations by intelligence, law enforcement, national security and revenue protection agencies, and should not be used to support court or tribunal proceedings in their own right or be produced or disclosed in connection with court or tribunal proceedings. Information obtained under section 49 that relates to SMR is also very sensitive because the very fact that further information is being collected arising from SMR is indicative of active intelligence, law enforcement, national security or revenue protection interest, and disclosure of the SMR-related section 49 information could reveal this interest and undermine the integrity of any ongoing investigations.

40. These types of AUSTRAC information also need to be treated as confidential to protect the identity of the author of the information and other employees of the regulated entity. Maintaining confidentiality minimises risk of reprisal from the subject of the SMR or SUSTR, and promotes the safety of any employees. In addition, regulated entities and their employees are less likely to be frank and fearless with this type of reporting if they have concerns about the potential public disclosure of SMRs or SUSTRs, which could impact the quality of future reporting.

41. In recognition of these sensitivities, the AML/CTF Act and the FTR Act prohibit these types of information from being admissible in evidence under section 124 of the AML/CTF Act (SMR and SMR-related section 49 information) and subsection 16(5) of the FTR Act (reports of suspect transactions), respectively.

42. In addition, section 134 of the AML/CTF Act provides that, except where it is necessary to do so for the purposes of giving effect to the AML/CTF Act or the FTR Act, a person is not to be required to produce a document containing AUSTRAC information, or to disclose AUSTRAC information, to a court or tribunal.

43. Before June 2021, the AML/CTF Act also included a provision which expressly prohibited the disclosure of these types of AUSTRAC information by AUSTRAC's partner agencies that held such information for the purposes of, or in connection with, court or tribunal proceedings.

44. In 2020, the Australian Government passed the Anti-Money Laundering and Counter-Terrorism Financing and Other Legislation Amendment Act 2020 (AML/CTF Amendment Act), which enhanced information sharing and cooperation between AUSTRAC and Commonwealth, state and territory agencies and provided for a more flexible model by which those agencies can access, use and disclose AUSTRAC information. Under this model, the definition of 'designated agency' was removed from the AML/CTF Act and was replaced with a new model by which the AUSTRAC CEO can authorise specified officials of Commonwealth, state or territory agencies to access AUSTRAC information. Once obtained, these officials have a broad authority to use or disclose AUSTRAC information for the purposes set out in sections 126 and 127 of the AML/CTF Act.

45. These reforms enhanced information-sharing and cooperation between AUSTRAC and its partner agencies, streamlining the process by which AUSTRAC information can be shared with (and by) the officials of other agencies. The policy intent of the reforms was to ensure that the increased flexibility accorded by these provisions was appropriately balanced, ensuring that the circumstances in which AUSTRAC information could be used or disclosed was clearly and appropriately constrained. It was intended that this balance would be achieved by retaining the safeguards in place in relation to sensitive AUSTRAC information while enabling other types of AUSTRAC information to be more flexibly shared, used and disclosed.

46. The AML/CTF Amendment Act retained the protections in sections 124 and 134 but inadvertently omitted the protection that prevents the disclosure of sensitive AUSTRAC information by AUSTRAC's partner agencies for the purposes of, or in connection with, court or tribunal proceedings. The amendments in this part seek to restore the protection that was erroneously omitted to ensure that sensitive AUSTRAC information, i.e. SMR, SMR-related section 49 information and SUSTR, cannot be disclosed by AUSTRAC's partner agencies. This would address the current incongruent situation where sensitive AUSTRAC information cannot be admitted in evidence and is not required to be disclosed to the court or tribunal in the course of a proceeding, but the same sensitive AUSTRAC information may be disclosed to any other person for the purposes of, or in connection with, the court or tribunal proceeding, including to persons who are the subject of the sensitive AUSTRAC information (for example, in accordance with prosecution disclosure requirements or "party-party disclosure" regimes contained in various Australian jurisdictions' legislation). The amendments would also reduce the regulated entities and their employees' current exposure to the risk of reprisal from having sensitive AUSTRAC information disclosed in the context of court or tribunal proceedings.

47. Whereas sensitive AUSTRAC information is not admissible in evidence under section 124 in criminal proceedings commenced under other legislation (e.g. the Criminal Code), sensitive AUSTRAC information may be admitted in evidence in relation to criminal (and civil penalty) proceedings commenced under the AML/CTF Act. Where sensitive AUSTRAC information is used in court or tribunal proceedings as permitted under certain circumstances specified in section 124, that information will be disclosed to the defendant or respondent consistent with usual disclosure obligations that apply.

Item 4 - Subsection 126(3)

48. Item 5 omits "Subsection (1)" from the beginning of subsection 126(3) of the AML/CTF Act and substitutes the words "Subject to subsection (3A), subsection (1)".

49. This amendment will have the effect that the exception in subsection 126(3) permitting disclosure of AUSTRAC information to a person for the purposes of or in connection with court or tribunal proceedings, proposed or possible court or tribunal proceedings, or obtaining legal advice, will be subject to the limitations in new subsection (3A).

Item 5 - After subsection 126(3)

50. Item 5 inserts new subsection 126(3A) which provides that the exception in subsection 126(3) does not apply if the AUSTRAC information:

was obtained under section 41 (reports of suspicious matters); or
was obtained under section 49 (further information to be given to the AUSTRAC CEO etc.), in so far as that section relates to a communication under section 41; or
was obtained under section 16 of the FTR Act (reports of suspect transactions).

51. New subsection 126(3A)(a) applies to information obtained under section 41 (reports of suspicious matters) of the AML/CTF Act. The strengthened protections for SMRs recognise that SMRs are inherently subjective as they reflect a reporting entity's suspicions arising during the course of providing designated service to a customer, meaning that a report containing information about a person may be submitted to AUSTRAC even where the person subject of the suspicious matter report has not necessarily engaged in wrongdoing and should therefore not be disclosed in legal proceedings - corroborating probative evidence to support the suspicion should be used. These protections also recognise the importance of anonymity in the SMR framework because, if the personal details (including the name) of the submitter was adduced in court or tribunal proceedings, this could lead to a chilling effect where reporting entities would be more hesitant to submit reports (i.e. if they were called to give evidence).

52. New subsection 126(3A)(b) covers AUSTRAC information obtained under section 49, where the notice requesting further information to be given under that section relates to a communication under section 41 (an SMR). For the avoidance of doubt, this measure does not limit the use or disclosure of information that is not AUSTRAC information. This will enable law enforcement agencies to disclose information (including a section 49 notice and information disclosed under it that is not an SMR) for the purposes of, or in connection with, or in the course of court or tribunal proceedings.

53. New subsection 126(3A)(c) covers AUSTRAC information obtained under section 16 of the FTR Act, which is the equivalent of section 41 in the AML/CTF Act. This information should be protected from disclosure for the same reasons as SMRs.

Item 6 - Application of amendments

54. Item 6 provides that subsection 126(3A) applies to disclosures of AUSTRAC information that occurs on or after the commencement of this item, whether the AUSTRAC information was obtained by the official of a Commonwealth, state or territory agency before, on or after that commencement.

Part 3 - AUSTRAC CEO may use computer programs to make decisions

55. Part 3 of the Bill explicitly authorises the AUSTRAC CEO to arrange for a computer program to be used to take administrative actions on their behalf under relevant provisions of the AML/CTF Act, the AML/CTF Rules, or other instruments made under that Act.

56. The AML/CTF Act currently does not explicitly authorise the AUSTRAC CEO to use computer programs (including automated programs) to execute any of their administrative decision-making responsibilities, or to assist with doing so. As a result, all decisions, including basic administrative decisions, must be made by the AUSTRAC CEO.

57. Computer decision making will support implementation of streamlined processes, such as fully automated processing of the renewal of registration on the Remittance Sector Register (Part 6), or the Digital Currency Exchange Register (Part 6A) in circumstances where the remitter or digital currency exchange provider seeking renewal of their registration has been compliant with their AML/CTF obligations and the renewal application does not raise red flags based on objectively determinable criteria. This will reduce administrative workload and create efficiencies for reporting entities and AUSTRAC. In turn, this will lead to efficiencies in detecting, deterring and disrupting criminal abuse of the financial system to protect the community from serious and organised crime.

58. The types of decisions that will be able to be made by a computer under the AML/CTF Act will be limited to decisions related to the administrative processes AUSTRAC takes to maintain the Reporting Entities Roll in Part 3A, the Remittance Sector Register in Part 6 and the Digital Currency Exchange Register in Part 6A. Due to the Reviewable Decisions framework in Part 17A of the AML/CTF Act automation of administrative action will only relate to 'positive' decision making responsibilities which do not impact the application of procedural fairness principles, or result in an adverse outcome for a person. Provisions which contain decisions that can be automated are to be prescribed in the AML/CTF Rules by the AUSTRAC CEO to allow for the use of information technology developments, whilst maintaining a scheme that is flexible and consistent with emerging money laundering and terrorism financing threats. This will provide efficiencies to regulated agencies and AUSTRAC, while still being subject to the parliamentary scrutiny and oversight that applies to delegated legislation.

59. For completeness, this measure will not allow adverse decisions to be made by a computer program. Given the terms and basis of any proposed adverse decision will differ from case to case depending on the facts and circumstances, the content of any communication that is required to be given to the person who is the subject of the proposed adverse decision must be individually tailored which is not functional with automated or computer-assisted processing. For example, before making a decision adverse to the applicant (a reviewable decision) under Part 6 or 6A of the AML/CTF Act, the AUSTRAC CEO is required under section 75Q or 76S (as the case may be) to give the applicant a written notice setting out the terms and basis of the proposed decision and give the applicant an opportunity to make submissions in relation to the proposed decision.

60. Further, where the AUSTRAC CEO, following the procedural fairness process under the reviewable decisions framework in the AML/CTF Act, decides to make a final decision that is adverse to the applicant, the AUSTRAC CEO must give the applicant a written notice of the decision setting out the terms and reasons for the decision. This includes the AUSTRAC CEO's consideration of the applicant's submissions in response to any earlier invitation to comment provided for procedural fairness purposes, pursuant to section 233C in Part 17A of the AML/CTF Act, which is not a part of the AML/CTF Act in relation to which the AUSTRAC CEO may take administrative action using a computer program or system. Therefore, the framework contained within the AML/CTF Act itself for the making of reviewable decisions provides a safeguard that ensures any reviewable decision is made by the AUSTRAC CEO or a delegate, and will also be subject to human scrutiny.

61. The specific provisions within Parts 3A, 6 and 6A of the AML/CTF Act under which a computer-based action can be taken will be prescribed in the AML/CTF Rules. This enables sufficient flexibility to adapt to development in technology while appropriately limiting the power to decisions related to registration and enrolment.

62. The objective criteria on which a computer decision is based will be clearly set out in the AML/CTF Rules. For example, for renewal of registration, this may include that the requisite declaration made by an authorised key personnel of the reporting entity confirms that all requirements specified in the AML/CTF Act and Rules have been complied with; there have been no changes to the reporting entity's details or key personnel since the entity was last registered; and there have been no disclosable civil or criminal proceedings, actions or convictions against any of its key personnel in the relevant period since the entity was last registered.

63. It is necessary for this detail to be set out in the AML/CTF Rules because the relevant provisions under which the AUSTRAC CEO may arrange for the use of computer programs are to be prescribed in the AML/CTF Rules and the objective criteria will differ according to the provision to which they relate. The AML/CTF Act provides for the AML/CTF Rules to specify the information required for enrolment and registration, and the objective criteria will therefore directly relate to the provisions in the AML/CTF Rules specifying such requirements. Further, such objective criteria are likely to directly relate to existing provision in the AML/CTF Rules that specify requirements for enrolment and registration. The benefit of having this detail contained in the AML/CTF Rules ensures the AUSTRAC CEO can maintain the ability to prescribe specific provisions and the accompanying criteria can remain flexible and consistent with emerging money laundering and terrorism financing threats.

64. The AUSTRAC CEO can make a decision to replace a decision made by the operation of the computer program if the AUSTRAC CEO is satisfied that the computer decision is incorrect or not preferable. This provides a safeguard to ensure that if a computer program is not operating correctly, or has taken a decision that the AUSTRAC CEO considers is wrong, the action can be substituted by the AUSTRAC CEO without the requirement for formal administrative review.

65. The operationalisation of the provisions is intended to be accompanied by sophisticated internal business rules and quality assurance processes to ensure that computer assistance is not used to make discretionary decisions, and to ensure that high-risk decisions (such as those that could conceivably lead to an adverse outcome by a person affected by the decision) will continue to be made in the first instance by the AUSTRAC CEO or delegated officers.

66. Under section 222 of the AML/CTF Act, the AUSTRAC CEO may, by writing, delegate any or all of their functions or powers to a member of the staff of AUSTRAC, which would therefore encompass the authority to arrange for a computer program to be used to take administrative actions on their behalf.

Item 7 - Section 5

67. Item 7 includes the definition of administrative action in the AML/CTF Act by reference to new subsection 228A(9).

Item 8 - Section 208

68. Item 8 inserts explanatory notes in the Simplified Outline to Part 16 of the AML/CTF Act.

Item 9 - Section 228A

69. New subsection 228A(1) authorises the AUSTRAC CEO to arrange for the use of computer programs under the AUSTRAC CEO's control for any purposes under the AML/CTF Act or AML/CTF Rules for which the AUSTRAC CEO may or must take administrative action under a provision prescribed by the AML/CTF Rules for this purpose.

70. For the avoidance of doubt, this power will only be used for specific objective decisions, and will not permit the AUSTRAC CEO to arrange for a computer program to make discretionary decisions.

71. Further, computer assistance will also only make decisions that do not impact the application of procedural fairness principles or result in an adverse decision or outcome for a person. For example, a decision by the AUSTRAC CEO or their delegate to refuse, cancel or impose conditions on a registration application will not be impacted by this change because they require a detailed consideration of the specific facts of an individual matter.

72. New subsection 228A(2) outlines the parts of the AML/CTF Act under which the AML/CTF Rules may prescribe a provision for the purposes of subsection 228A(1). These are Part 3A (the Reporting Entities Roll), Part 6 (the Remittance Sector Register) and Part 6A (the Digital Currency Exchange Register) and include any provision made in the AML/CTF Rules or another instrument to give effect to these Parts.

73. This is an important safeguard in relation to the AUSTRAC CEO's use of these powers by limiting their exercise to a set of prescribed decisions in the AML/CTF Rules. The Rules are disallowable by the Parliament and this prescription provides close parliamentary oversight in relation to the AUSTRAC CEO's use of these powers.

74. New subsection 228A(3) provides that the AUSTRAC CEO must take reasonable steps to ensure that administrative action taken by a computer program under an arrangement under this Part is consistent with the objects of the AML/CTF Act.

75. New subsection 228A(4) clarifies that administrative action taken by the operation of a computer program under such an arrangement is, for the purposes of this Act, the AML/CTF Rules and any other instrument made under this Act, is taken to be administrative action taken by the AUSTRAC CEO.

76. New subsection 228A(5) allows the AUSTRAC CEO to substitute a decision for a decision made using computer programs where the decision is not the correct or preferable decision. This would enable the AUSTRAC CEO to override and substitute a decision made using computer programs where, for example due to computer program malfunction, the AUSTRAC CEO considers the decision was not the correct or preferable decision having regard to the circumstances.

77. New subsection 228A(6) clarifies that new subsection 228A(5) does not impose a duty on the AUSTRAC CEO to consider whether to exercise the powers under that section in respect of that decision, whether the AUSTRAC CEO is requested to do so by the person affected by the decision, or by any other person, or in any other circumstances. This retains the unrestricted nature of the AUSTRAC CEO's discretion in choosing whether to substitute a decision.

78. New subsection 228A(7) clarifies that if the AUSTRAC CEO substitutes a decision under subsection 228A(5) for a decision taken pursuant to subsection 228A(4) under a provision of the AML/CTF Act, the AML/CTF Rules or an instrument made under the AML/CTF Act (the original provision), the substituted decision is taken to have been made under the original provision. This provides an additional layer of oversight and clarifies that the substituted decision taken by the AUSTRAC CEO is a reviewable decision, if the decision made by the computer program is reviewable pursuant to the AML/CTF Act.

79. New subsection 228A(8) clarifies that the arrangement in new subsection 228A(1) is not a legislative instrument as it does not determine or alter the law.

SCHEDULE 2 - AUSTRALIAN CRIME COMMISSION ACT 2002

80. Amendments to the ACC Act will:

relocate a penalty for non-compliance to the provision to which it relates.

Item 1: At the end of subsection 19A(4)

81. This item is a technical amendment that relocates the penalty at the end of section 19A of the ACC Act, to the end of subsection 19A(4), which is the provision to which the penalty relates.

82. The penalty states "Penalty: 10 penalty units or imprisonment for 6 months", and is intended to relate to a failure to comply with subsection 19A(4). Subsection 19A(4) provides that, if a prescribed officer directs a person to comply with a request "the person shall not refuse or fail to comply with the request".

83. This item does not amend, or create, the penalty for failing to comply.

Item 2: Subsection 19A(8) (penalty)

84. This item is consequential to item 1 and repeals the penalty from subsection 19A(8) that is now located at subsection 19A(4) as amended.

SCHEDULE 3 - CRIMES ACT 1914

85. Part 1 of Schedule 3 amends Part IC of the Crimes Act by repealing the definition of 'judicial officer' and replace references to 'judicial officer' in subsections 23B(1), 23B(3), 23C(3), 23DB(4) and paragraphs 23C(8)(a) and 23DB(12)(a) with 'bail authority'. Bail authority is defined in section 3 of the Crimes Act as 'a court or person authorised to grant bail under a law of the Commonwealth, a State or a Territory'.

86. Further minor amendments in Schedule 3 will:

correct drafting errors, such as incorrect section referencing, and
correct references to redundant legislation.

Part 1 - Amendments relating to the definition of judicial officer

Items 1-5: Amendments relating to the definition of judicial officer

87. As currently drafted, Part IC of the Crimes Act requires that an arrested person is brought before a judicial officer, as defined in subsection 23B(1), before, or as soon as practicable after, the end of the investigation period. This is to determine whether the person is remanded on bail or into custody to await their court appearance.

88. Item 1 repeals the definition of 'judicial officer' in subsection 23B(1), which is defined as a magistrate, a justice of the peace or 'a person authorised to grant bail in the State or Territory in which the person was arrested'.

89. Items 2-5 replace references to 'judicial officer' in subsections 23B(1), 23B(3), 23C(3), 23DB(4) and paragraphs 23C(8)(a) and 23DB(12)(a) with 'bail authority'. These amendments cause these provisions to rely on the definition of 'bail authority' in section 3 of the Crimes Act, which is defined as 'a court or person authorised to grant bail under a law of the Commonwealth, a State or a Territory'. Amending these provisions to use the defined term 'bail authority' means that an arrested person can be brought before a person authorised to grant bail in any state or territory (instead of being limited to a person authorised to grant bail in the state where the person was arrested). Using the term 'bail authority' more accurately reflects the intended process for subsections 23C(3) and 23BD(4), which is to ensure a person arrested for a Commonwealth offence is brought before an appropriate authority to be either remanded on bail or remanded in custody within an appropriate time frame following the allowed investigation period.

90. As currently drafted, the definition of judicial officer in subsection 23B(1) means that a person who commits an applied offence in one state, but is arrested in another, could only be brought before a magistrate to have their bail application heard. Where the magistrate's availability is limited, such as after hours or on weekends, the person may be held in custody for a longer period of time than in ordinary circumstances. Relying on the broader definition of 'bail authority' under section 3 of the Crimes Act will therefore reduce the amount of time an arrested person could be held in custody if a magistrate is not available.

91. Without these amendments, operational and procedural issues could arise if a person were arrested by the Australian Federal Police (AFP) and charged for a Commonwealth offence in a different jurisdiction to where the offence occurred. This is because there is a constitutional requirement that, for indictable offences, a person must be tried in the jurisdiction where the offence occurred, rather than where they were arrested.

92. These issues arise for the AFP primarily because the Commonwealth Places (Application of Laws) Act 1970 (COPAL) enables the AFP to enforce the surrounding state's laws at Commonwealth places, which are 'picked up' and applied as Commonwealth laws ('applied laws'). These issues outlined above may arise in circumstances where a Commonwealth place (as designated under COPAL) is situated across two jurisdictions.

93. The amendments in items 1-5 address these issues and ensure that in these circumstances, a person arrested for an applied offence in a different state to where the offence occurred, can be brought before a bail authority in a timely manner.

Item 1: Subsection 23B(1)

94. This item repeals the definition of 'judicial officer' in subsection 23B(1).

Item 2: Subsections 23B(3) and 23C(3)

95. This item omits 'judicial officer' and replaces with 'bail authority' in subsection 23B(3). This change ensures that an arrested person will cease to be 'under arrest' when they are remanded on bail or, if appropriate, into custody, by a person authorised to grant bail in any state or territory.

96. This item also omits 'judicial officer' and replaces with 'bail authority' in subsection 23C(3). This change ensures that a person who has been arrested for a non-terrorism offence and is not released before the end of the investigation period, can be brought before a person authorised to grant bail in any state or territory.

Item 3: Paragraph 23C(8)(a)

97. Item 3 omits 'judicial officer' and replaces with 'bail authority'. This change has the effect that, in any proceedings relating to non-terrorism offences, the burden lies on the prosecution to prove that the person was bought before a bail authority as soon as practicable after the end of the investigation period. Based on the definition of bail authority in section 3 of the Crimes Act, this is a court or person authorised to grant bail under a law of the Commonwealth, or any state or territory.

Item 4: Subsection 23DB(4)

98. Item 4 omits 'judicial officer' and replaces with 'bail authority'. This change ensures that a person who has been arrested for a terrorism offence and is not released before the end of the investigation period, can be brought before person authorised to grant bail in any state or territory.

Item 5: Paragraph 23DB(12)(a)

99. Item 5 omits 'judicial officer' and replaces with 'bail authority'. This change has the effect that, in any proceedings relating to terrorism offences, the burden lies on the prosecution to prove that the person was brought before a bail authority as soon as practicable after the end of the investigation period. Based on the definition of bail authority in section 3 of the Crimes Act, this is a court or person authorised to grant bail under a law of the Commonwealth, or any state or territory.

Item 6: Application of amendments

100. Item 6 provides that the amendments in Part 1 of Schedule 3 apply to arrests made on or after the commencement of this Part. This item also provides that the amendments apply to any conduct constituting the offence that was engaged in before, on or after commencement of this Part.

Part 2 - Minor amendments to rectify incorrect referencing

Item 7: Subparagraph 3ZZOB(2)(b)(i)

101. The amendment to subparagraph 3ZZOB(2)(b)(i) corrects a reference to a paragraph in subsection 3ZZOB(4). The amendment omits "(f)" and substitutes "(c)". The correction results from previous repeals in subsection 3ZZOB(4) and makes clear the matters of which an issuing officer needs to be satisfied before issuing a monitoring warrant in relation to premises.

Item 8: Paragraph 3ZZTC(3)(i)

102. Item 8 updates references to Northern Territory legislation by providing the full citation of the "Terrorism (Emergency Powers) Act 2003 (NT)".

Item 9: Paragraph 15AB(3A)(f)

103. Item 9 updates references to Northern Territory legislation by providing the full citation of the "Northern Territory Aboriginal Sacred Sites Act 1989 (NT)".

Item 10: Paragraph 15AB(3A)(g)

104. Item 10 removes redundant references to repealed provisions in Northern Territory legislation. Paragraph 15AB(3A)(g) of the Crimes Act refers to paragraph 33(a) of the Heritage Conservation Act of the Northern Territory. Paragraph 33(a) of that Northern Territory Act has been replaced by the provisions mentioned in subparagraph 15AB(3A)(i) of the Crimes Act, making paragraph 15AB(3A)(g) redundant. Item 10 repeals the redundant paragraphs.

Item 11: Paragraph 15AB(3A)(h)

105. Item 11 updates references to Northern Territory legislation by providing the full citation of the "Aboriginal Land Act 1978 (NT)".

Item 12: Paragraph 15AB(3A)(i)

106. Item 12 updates references to Northern Territory legislation by providing the full citation of the "Heritage Act 2011 (NT)".

Item 13: Paragraph 16AA(2)(a)

107. Item 13 updates references to Northern Territory legislation by providing the full citation of the "Northern Territory Aboriginal Sacred Sites Act 1989 (NT)".

Item 14: Paragraph 16AA(2)(b)

108. Paragraph 16AA(2)(b) refers to paragraph 33(a) of the Heritage Conservation Act of the Northern Territory. Paragraph 33(a) of that Northern Territory Act has been replaced by the provisions mentioned in subparagraph 15AB(3A)(i) of the Crimes Act, making paragraph 16AA(2)(b) redundant. Item 14 repeals the redundant paragraph.

Item 15: Paragraph 16AA(2)(c)

109. Item 15 updates references to Northern Territory legislation by providing the full citation of the "Aboriginal Land Act 1978 (NT)".

Item 16: Paragraph 16AA(2)(d)

110. Item 16 updates references to Northern Territory legislation by providing the full citation of the "Heritage Act 2011 (NT)".

Item 17: Subsection 85ZZG(1)

111. The amendment to subsection 85ZZG(1) omits reference to the repealed section 98 of the Privacy Act and replaces it with the correct reference to section 80W. Subsection 85ZZG(1) applies various sections of the Privacy Act when complaints are made to the Information Commissioner under Division 5 of Part VIIC of the Crimes Act. Section 80W of the Privacy Act relates to injunctions and replaced section 98, which had previously dealt with injunctions.

SCHEDULE 4 - CRIMINOLOGY RESEARCH ACT 1971

112. Amendments to the Criminology Research Act will:

amend section 33 so that the appointment by the Minister of the Commonwealth representative to the Criminology Research Advisory Council (the Advisory Council) can be made by designation of a position, and remove the need for the Minister to make a new appointment each time there is a change in personnel within the Attorney-General's Department.

Item 1: Subsections 33(3) and (4)

113. Item 1 repeals current subsections 33(3) and 33(4) of the Criminology Research Act 1971 (CR Act) and substitutes with new subsections 33(3) and 33(4). New subsection 33(3) provides that the Advisory Council will consist of a representative of the Commonwealth and a representative of each state and territory. New subsection 33(4) provides that the representative of the Commonwealth is the person holding a position designated in writing by the Minister, or a person appointed by the Minister.

114. Item 1 also adds a new subsection 33(5) to clarify that a designation by the Minister under paragraph 33(4)(a) is not a legislative instrument. This provision is included to assist readers, as the instrument is not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act 2003.

115. Item 1 also adds a new subsection 33(6) which replicates the current paragraph 33(3)(b) to provide that the Advisory Council representative from each state and territory is the person appointed by the Attorney-General of the state or territory in writing.

116. Item 1 also adds a new subsection 33(7) which replicates part of the current subsection 33(4)(a), providing that a person appointed as the Commonwealth representative under new paragraph 33(4)(b) may resign from the Advisory Council by written notice given to the Minister.

117. Similarly, new subsection 33(8) replicates part of the current paragraph 33(4)(a) by providing that a person appointed as a state or territory representative under new subsection 33(6) may resign from the Advisory Council by written notice given to the Attorney-General of the relevant state or territory.

118. The new note to be included after subsection 33(8) clarifies that an appointment may be revoked in line with new subsection 33(3) of the Acts Interpretation Act 1901.

119. The effect of this clause is to remove the need for the Minister to make a new appointment each time there is a change to the person representing the Commonwealth on the Advisory Council. By allowing the appointment to refer to the holder of a position designated by the Minister, this process will be simplified and ensure consistency for the Advisory Council.

Item 2: Transitional-appointments

120. Subsection (1) of item 2 is included to make clear that any appointment made under current paragraph 33(3)(a) of the CR Act which is in force immediately before the commencement of this item has the effect as if it had been made for the purposes of new paragraph 33(4)(b), as amended.

121. Subsection (2) of item 2 is included to make clear that any appointment made under current paragraph 33(3)(b) of the CR Act which is in force immediately before the commencement of this item has the effect as if it had been made for the purposes of new subsection 33(6), as amended.

122. The purpose of item 2 is to ensure the continuity of current appointments of Commonwealth, state and territory representatives to the Advisory Council.

SCHEDULE 5 - OBTAINING FOREIGN MATERIALS

Foreign Evidence Act 1994

123. Amendments to the FE Act will:

provide that testimony may be signed or certified by 'a person authorised to administer an oath or affirmation or put a person under an obligation to tell the truth', in or of the foreign country to which the request was made,
replace references to 'exhibit' with 'documents or things' and
replace the terminology of documents and things being 'annexed to' testimony with the formulation 'produced by or with'.

Item 1: Subsection 3(1) (paragraphs (a) and (b) of the definition of foreign material )

124. Section 3 of the FE Act defines specific terms used throughout the FE Act. The section defines foreign material to mean:

(a)
for the purposes of Parts 3 and 3A-the testimony of a person that:

(i)
was obtained as a result of a request of a kind referred to in section 21 and
(ii)
complies with the requirements of section 22,

including any exhibit annexed to such testimony; and
(b)
for the purposes of Part 4 - the testimony of a person that:

(i)
was obtained as a result of a request of a kind referred to in section 29 and
(ii)
complies with the requirements of section 30,

including any exhibit annexed to such testimony.

125. Part 3 of the FE Act relates to the use of foreign material in criminal and related civil proceedings. Part 3A of the FE Act relates to the use of foreign material and foreign government material in terrorism-related proceedings. Part 4 of the FE Act relates to the use of foreign material and records of foreign business authorities in certain civil proceedings.

126. Item 1 amends the definition of foreign material for the purposes of Parts 3, 3A and 4 by omitting references to 'any exhibit annexed to such testimony' and replacing them with 'any documents or things produced by or with such testimony'.

127. The intended effect of this item is to ensure the definition of foreign material is consistent with the amendments to section 20, section 21 and section 29, as discussed below.

Item 2: Subsection 20(1A)

128. Section 20 of the FE Act details the proceedings to which Part 3 of the FE Act applies, in relation to the use of foreign material in proceedings. Subsection 20(1A) specifies that Part 3 does not apply to terrorism-related proceedings, noting Part 3A deals with the use of foreign material in such proceedings. This does not prevent testimony or an exhibit from being foreign material for the purposes of Part 3A.

129. Item 2 amends the wording in subsection 20(1A) by omitting 'exhibit' and replacing it with 'any documents or things'.

130. The intended effect of item 2 is to ensure that the wording in subsection 20(1A) is consistent others references in the FE Act to documents or things, noting the amendments discussed below.

Item 3: Section 21

131. Section 21 of the FE Act provides that Part 3, which deals with the use of foreign material in criminal and related civil proceedings, applies to testimony, and any exhibit annexed to such testimony, obtained as a result of a request made by or on behalf of the Attorney-General for mutual assistance from a foreign country.

132. Item 3 amends the wording in section 21 by replacing 'any exhibit annexed to such testimony' (wherever occurring) with 'any documents or things produced by or with such testimony'. The two parts of this amendment are explained below.

Replacing 'annexed to' with 'produced by or with'

133. Firstly, the item replaces the term 'annexed to' with 'produced by or with'. The intent of this amendment is to ensure that documents or things produced can be provided in different formats from foreign countries, while retaining an appropriate connection to the accompanying testimony.

134. When responding to a mutual assistance request, a foreign country may gather the material requested, but return it to Australia without the attachments formally annexed to the affidavit or other form of testimony, as currently required under Australian law. This may cause subsequent delays in prosecutions while seeking conformity with the admissibility requirements, possibly resulting in prosecutions not going ahead.

135. The intended effect of this amendment is twofold. The first is to make it clear that testimony from a foreign country or business that does not provide sworn testimony in an affidavit form with annexures may be adduced (subsection 23(2) already provides that testimony need not be in the form of an affidavit). The second is to enable documents or things accompanying testimony from a foreign country to be provided in different formats, while allowing for a more practical connection to the accompanying testimony. The amendment supports current trends towards the electronic production of evidence, in Australia and other countries.

136. The terminology 'produced with' is intended to cover instances where:

the testimony does not explicitly state that the deponent is producing the item. For example, the testimony may state 'On 4 April 2021, I took a set of four photos of the consignment' and the photos are provided with the testimony; and
the testimony consists of a court transcript and is accompanied by items or documents referred to in the transcript, but the deponent does not say in evidence 'I produce that item/document'.

137. The terminology 'produced by' is intended to cover instances such as where an electronic link is provided by the testimony and has to be accessed separately. It would also apply where documents or things are physically annexed to testimony. The new terminology would assist in matters where the documents or things need to be conveyed to Australia separately or over several consignments because of their size or they are restricted in nature such as child abuse material.

Replacing 'exhibit' with 'documents and things'

138. Secondly, the item also replaces the reference in section 21 to 'exhibit' with 'documents or things'. Currently, there are inconsistencies in the FE Act with some sections referring to 'an exhibit' and others referring to 'documents or things' in relation to materials accompanying formal testimony received from a foreign country. The term 'exhibit' is associated with the terminology used in court rules governing affidavits.

139. The Bill amends references to 'exhibit' with 'documents or things' where appropriate, to better reflect the fact that Australia receives material from both common law countries that often use affidavits as well as civil law countries that do not recognise or use affidavits.

Item 4: Subsection 22(2)

140. Section 22 of the FE Act sets out the requirements for testimony obtained as a result of a mutual assistance request made by Australia to a foreign country. Subsection 22(1) provides that testimony must have been taken under oath or affirmation (for example, an affidavit) or provided under similar caution that would be acceptable in that foreign country.

141. Currently, subsection 22(2) provides that the testimony 'must purport to be signed or certified by a judge, magistrate or officer in or of the foreign country to which the request was made'.

142. Item 4 amends subsection 22(2) of the FE Act to provide that, in addition to the persons already listed, the testimony can be signed or certified by a person who is authorised, by or under a law of the foreign country concerned, to:

administer an oath or affirmation, or
impose an obligation on the person giving the testimony to tell the truth.

143. The intended effect of item 4 is to expand the category of persons before whom the testimony may be sworn in a foreign country to include the equivalent of a legal practitioner. The inclusion of a person authorised by law to administer an oath or affirmation, or impose an obligation on the person giving the testimony to tell the truth is consistent with Australia's domestic law. This will simplify the process for foreign countries to provide testimony for use in Australian proceedings, while ensuring that testimony is appropriately certified.

Item 5: Section 29

144. Section 29 of the FE Act provides that Part 4, which deals with the use of foreign material and records of foreign business authorities in certain civil proceedings, applies to testimony, and any exhibit annexed to such testimony, obtained as a result of a request made by the Australian Securities and Investments Commission (ASIC) to a foreign business authority.

145. Item 5 amends the wording in section 29 by replacing 'any exhibit annexed to such testimony' (wherever occurring) with 'any documents or things produced by or with such testimony'. This amendment is consistent with that made to section 21, as discussed above. The two parts of this amendment are explained below.

Replacing 'annexed to' with 'produced by or with'

146. Firstly, the item replaces the term 'annexed to' with 'produced by or with'. The intent of this amendment is to ensure that documents or things produced can be provided in different formats from foreign business authorities, while retaining an appropriate connection to the accompanying testimony.

147. When responding to a request from ASIC, a foreign business authority may gather the material requested, but return it to ASIC without the attachments formally annexed to the affidavit or other form of testimony, as currently required under Australian law. This may cause subsequent delays in proceedings while seeking conformity with the admissibility requirements.

148. The intended effect of this amendment is twofold. The first is to make it clear that testimony from a foreign country or business that does not provide sworn testimony in an affidavit form with annexures may be adduced (subsection 31(2) already provides that testimony need not be in the form of an affidavit). The second is to enable documents or things accompanying testimony from a foreign country to be provided in different formats, while allowing for a more practical connection to the accompanying testimony. The amendment supports current trends towards the electronic production of evidence, in Australia and other countries.

149. The terminology 'produced with' is intended to cover instances where:

the testimony does not explicitly state that the deponent is producing the item. For example, the testimony may state 'On 4 April 2021, I took a set of four photos of the consignment' and the photos are provided with the testimony; and
the testimony consists of a court transcript and is accompanied by items or document referred to in the transcript but the deponent does not say in evidence 'I produce that item/document'.

150. The terminology 'produced by' is intended to cover instances such as where an electronic link is provided by the testimony and has to be accessed separately.

151. The terminology 'produced by' is intended to cover instances such as where an electronic link is provided by the testimony and has to be accessed separately. It would also apply where documents or things are physically annexed to testimony. The new terminology would assist in matters where the documents or things need to be conveyed to Australia separately or over several consignments because of their size or they are restricted in nature.

Replacing 'exhibit' with 'documents and things'

152. Secondly, the item also replaces the reference in section 29 to 'exhibit' with 'documents or things'. Currently, there are inconsistencies in the FE Act with some sections referring to 'an exhibit' and others referring to 'documents or things' in relation to materials accompanying formal testimony received from a foreign country. The term 'exhibit' is associated with the terminology used in court rules governing affidavits.

153. The Bill amends references to 'exhibit' with 'documents or things', to ensure consistency and to reflect that ASIC receives material from both common law countries that often use affidavits as well as civil law countries that do not recognise or use affidavits.

SCHEDULE 6 - REFUSAL OF CONSENT TO INTERNATIONAL TRANSFER OF PRISONERS

International Transfer of Prisoners Act 1997

154. Amendments to the ITP Act will:

provide that the Attorney-General may refuse consent to a request or an application for transfer to or from Australia at an earlier stage in the process, namely:

o
for transfers from Australia, prior to seeking consent of the relevant state or territory minister and the prisoner (or prisoner's representative)
o
for transfers to Australia, prior to seeking consent of the relevant state or territory minister, the prisoner (or prisoner's representative) and the transfer country or tribunal as the case may be.

make minor technical amendments to improve the operation of the ITP Act and better reflect the processes followed in practice.

Terminology

155. The ITP Act governs Australia's International Transfer of Prisoners (ITP) scheme. The ITP scheme allows Australians imprisoned overseas to apply to serve the remainder of their sentence in Australia. It also allows foreign nationals who are imprisoned in Australia to apply to serve the balance of their sentence in their home country.

156. Eligibility and conditions for transfer are governed by requirements set out in the ITP Act, and where applicable, the Council of Europe Convention on the Transfer of Sentenced Persons (the Convention) or other applicable bilateral ITP treaties. Under the ITP Act, Australia can only undertake transfers to and from a transfer country, which is defined by section 4 of the ITP Act to mean '...a foreign country or a region that is declared by the regulations under section 8 to be a transfer country'.

157. The ITP scheme is voluntary and requires the formal consent of the prisoner, Australia's Attorney-General, and the government of the relevant transfer country (or Tribunal, as the case may be) before a transfer can take place. The consent of the relevant state or territory minister is also required for transfers of prisoners from Australia who have been convicted of state or territory offences, and for all transfers of prisoners to Australia.

158. The ITP Act also provides a framework for Australians who are tribunal prisoners to return to Australia and serve their sentence of imprisonment in Australia.

159. A tribunal prisoner is defined under section 4 of the ITP Act to mean '... a prisoner who is serving a sentence of imprisonment imposed by a tribunal for a tribunal offence'.

160. Section 4 further defines tribunal and a tribunal offence as follows:

Tribunal means:
(a) the Former Yugoslavia Tribunal; or
(b) the Rwanda Tribunal; or
(c) the International Residual Mechanism for Criminal Tribunals.
Tribunal offence means:
(a) an offence in relation to which the Former Yugoslavia Tribunal has the power to prosecute persons under Article 2, 3, 4 or 5 of the Statute of the Tribunal; or
(b) an offence in relation to which the Rwanda Tribunal has the power to prosecute persons under Article 2, 3 or 4 of the Statute of the Tribunal; or
(c) an offence in relation to which the International Residual Mechanism for Criminal Tribunals has the power to prosecute persons under Article 1 of the Statute of the Tribunal.

Overview

161. The purpose of these amendments is to provide the Attorney-General with a discretionary power to refuse consent to a request or an application for transfer to or from Australia at an earlier stage in the process. The amendments in Items 3 to 7 are consequential amendments as a result of the amendments to insert this discretionary power and are required to ensure the process continues to flow. Under the amendments in Schedule 6, the Attorney-General is not required to make a decision on whether to refuse consent at this stage of the process, they merely provide him or her with the power to do so in appropriate circumstances. The amendments will also make minor technical amendments to improve the operation of the ITP Act and better reflect the processes followed in practice.

162. The amendments maintain core procedural fairness protections across the ITP process.

163. The prisoner will continue to have the opportunity to make representations to the Attorney-General when making their application, including on matters which the Attorney-General may consider when deciding whether to provide or refuse consent to a transfer. This includes in relation to any matters listed in the ITP Statement of Policy, which is publicly available on the Attorney-General's Department's website and is provided to the prisoner at the time his or her application is received.

164. In respect of a transfer from Australia, procedural fairness is further embedded through new subsection 19(2), which imposes a mandatory obligation on the Attorney-General to notify the prisoner of the transfer country's proposed terms of transfer before making a decision to refuse consent under new subsection 19(1). This provides the prisoner with an opportunity to comment or make representations to the Attorney-General on the proposed terms of transfer, or to provide any further information for the Attorney-General to consider before making a decision to refuse consent.

165. Further, as a matter of course, the Attorney-General's Department would continue to seek the prisoner's comment and afford the prisoner an opportunity to respond to any adverse comments made about them in materials that the Attorney-General receives during the ITP process, as well as seek updated representations from the prisoner in the event that a considerable period of time had passed between the point the application was received and the time in which the Attorney-General makes a decision under the ITP Act. This ensures the prisoner has the opportunity to inform the Attorney-General of any additional matters that the prisoner would like the Attorney-General to consider, particularly where circumstances may have changed from the time the initial application or request was made.

Item 1: Section 17

166. Item 1 repeals section 17 of the ITP Act.

167. The effect of item 1 is that the Attorney-General is no longer required to provide a copy of an application for a transfer from Australia, and any other information that the Attorney-General considers relevant, to any state or territory ministers whose consent is required under subsection 5(1) of the ITP Act, before making a decision to refuse consent to the application for transfer.

168. The existing requirement to provide relevant state or territory ministers with a copy of an application for a transfer from Australia and the ability for relevant state or territory ministers to seek more information will be moved under new subsections 20(1) and 20(1A), as described in item 3 below.

Item 2: After section 18

169. Item 2 inserts a new section 19 that expressly allows the Attorney-General to refuse consent on an application to transfer from Australia at an earlier stage in the process.

170. New section 19 overcomes the practical difficulties and inefficiencies associated with the current drafting of the ITP Act, which requires the Attorney-General to first obtain consent from the transfer country under section 18, and the relevant state or territory minister and the prisoner (or prisoner's representative) under subsections 20(1) and 20(2), before making a decision on an application for transfer from Australia under subsection 20(3).

171. New subsection 19(1) provides that where the transfer country consents to a transfer of a prisoner from Australia on terms that it proposes, the Attorney-General may refuse consent to the transfer on those terms. The effect of new subsection 19(1) is that the Attorney-General will be able to refuse consent to a transfer after receiving the transfer country's consent and proposed terms of transfer under section 18, but before needing to seek and receive consent from the relevant state or territory minister or prisoner under subsection 20(2).

172. The power to refuse consent under new subsection 19(1) is discretionary and the Attorney-General is not required to make a decision under this subsection. If the Attorney-General does not exercise this power, the application will proceed through the process and the Attorney-General will be required to comply with the steps provided by sections 20 and 21.

173. New subsection 19(2) provides that the Attorney-General must, before making a decision under new subsection 19(1) to refuse consent, notify the prisoner (or prisoner's representative) of the proposed terms on which the transfer country has consented to the transfer, including the proposed method by which the sentence of imprisonment will be enforced by the transfer country. The effect of new subsection 19(2) is that the Attorney-General is unable to make a decision to refuse consent under new subsection 19(1) unless the prisoner (or prisoner's representative) has first been notified of the transfer country's proposed terms of transfer. This practically ensures that the prisoner continues to be afforded procedural fairness and has the opportunity to make representations to the Attorney-General on the terms of transfer before the Attorney-General makes a decision under new subsection 19(1).

174. New paragraph 19(3)(a) provides that the Attorney-General must notify the transfer country of any decision to refuse consent made under new subsection 19(1). New paragraph 19(3)(b) provides the Attorney-General with a discretion to advise the transfer country in writing that consent may be given if the transfer country proposes a variation of those terms, including any variation suggested by the Attorney-General.

175. The note under new subsection 19(3) confirms, in circumstances where the transfer country proposes varied terms after being advised in writing under new paragraph 19(3)(b), that each response from the transfer country is taken to be a proposal of new terms of transfer for the purposes of the ITP Act. The Attorney-General will therefore be able to consider whether to refuse consent to each variation of terms proposed by the transfer country under new subsection 19(1).

176. New subsection 19(4) provides that if the Attorney-General decides under new subsection 19(1) to refuse consent to the transfer on terms proposed by the transfer country, sections 20 to 23 do not apply for the transfer on those particular terms. The effect of this subsection is that the Attorney-General will not be required to carry out any further steps in relation to the application in these circumstances, including to seek consent from relevant state or territory ministers and the prisoner under section 20. In other words, the process in respect to the relevant application will be finalised.

177. The note under the new subsection 19(4) clarifies that sections 20 to 23 will continue to apply for the transfer on any proposed variation of those terms, unless the Attorney-General has refused consent to those varied terms under new subsection 19(1).

178. The purpose of the new section 19 is to ensure that the process for considering an application for transfer from Australia is more efficient.

179. It ensures that Commonwealth and state and territory governmental resources are not burdened in the event that the Attorney-General is minded to refuse consent to the transfer after the Attorney-General receives the proposed terms of transfer from the transfer country under section 18 (for example, on the basis of sentence enforcement terms that the Attorney-General considers to be unacceptable).

180. It also ensures that the prisoner is informed of the final outcome of their application as soon as possible.

181. Consistent with other decisions by the Attorney-General under the ITP Act, a decision to refuse consent under new subsection 19(1) will be subject to judicial review under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) or more broadly under section 39B of the Judiciary Act 1903 or in the High Court's original jurisdiction under paragraph 75(v) of the Constitution where there are grounds to do so.

Item 3: Subsection 20(1)

182. Item 3 repeals existing subsection 20(1) and substitutes it with new subsection 20(1) and new subsection 20(1A) to ensure it is consistent with new section 19. New subsection 20(1) will apply to applications for transfer from Australia where the Attorney-General has not made a decision to refuse consent under new section 19.

183. Subsection 20(1) of the ITP Act currently imposes a mandatory requirement for the Attorney-General to notify the prisoner (or prisoner's representative) and any state or territory ministers or ministers whose consent is required under subsection 5(1) of the ITP Act of the transfer country's decision under paragraph 18(1)(a) of the Act, and if consent is given, the proposed method by which the sentence of imprisonment will be enforced by the transfer country and any other proposed terms of transfer.

184. New subsection 20(1) provides that the Attorney-General must, if the transfer country consents to the transfer of the prisoner on particular terms that it proposes:

give any relevant state and territory ministers whose consent is required under subsection 5(1) of the ITP Act a copy of the application, and any other information the Attorney-General considers relevant, and
notify each minister concerned and, unless earlier notified under new subsection 19(2) of those proposed terms, the prisoner (or prisoner's representative), of the proposed terms on which the transfer country has given consent to the transfer, including the proposed method by which the sentence of imprisonment will be enforced by the transfer country.

185. New paragraph 20(1)(a) mirrors current subsection 17(1) (which has been repealed under item 1). This is a consequential amendment as a result of new section 19, to move the existing notification requirements for relevant state and territory ministers to a later stage in the process, namely after the Attorney-General has received the transfer country's consent and proposed terms and if the Attorney-General has not decided to refuse consent under new subsection 19(1). The policy intent of this amendment is that the Attorney-General would therefore not be required to first notify relevant state or territory ministers before seeking the consent of the transfer country or refusing consent under new subsection 19(1).

186. New paragraph 20(1)(b) redrafts the repealed paragraph 20(1)(b) to align with the drafting in new subsection 19(2) and retains the requirement for the Attorney-General to notify the relevant state and territory ministers and the prisoner (or prisoner's representative) of the proposed terms on which the transfer country has given consent to the transfer, including the proposed method by which the sentence of imprisonment will be enforced by the transfer country. It also clarifies that the Attorney-General need not notify the prisoner (or prisoner's representative) of the terms under new paragraph 20(1)(b) if he or she has already done so under new subsection 19(2). This avoids the need for the Attorney-General to notify the prisoner (or prisoner's representative) twice in circumstances where such notification was provided under new subsection 19(2) and the Attorney-General decided not to refuse consent under new subsection 19(1).

187. Item 3 also introduces a new subsection 20(1A) which provides each state or territory minister concerned with the discretion to:

advise the Attorney-General of matters that the minister considers relevant to the processing of the application, and
request that the Attorney-General obtain information from the transfer country that is relevant to the minister's assessment of the application.

188. New subsection 20(1A) is a consequential amendment as a result of new section 19. It retains the permissions provided for in current subsection 17(2) (which has been repealed under Item 1) and moves them to subsection 20(1A) to apply at a later stage in the process, namely after the Attorney-General has received the transfer country's consent and proposed terms and if the Attorney-General has not decided to refuse consent under new subsection 19(1).

Item 4: Subsection 20(2)

189. Item 4 is a technical amendment to correct a minor drafting error in the existing subsection 20(2), which provides that the prisoner or prisoner's representative and minister concerned are to advise the Attorney-General whether they consent to the transfer on the terms proposed by the transfer country.

190. This amendment inserts the word "each" after "and" so that the new subsection 20(2) reads "the prisoner or prisoner's representative and each minister concerned are to advise the Attorney-General as to whether they consent to the transfer on the terms proposed by the transfer country".

Item 5: Subsection 20(5)

191. Subsection 20(5) as currently drafted states that the Attorney-General may, if the Attorney-General decides not to consent to transfer on the terms proposed by the transfer country, "state in the notice" that consent may be given if the transfer country agrees to a specified variation of their terms.

192. Item 5 is a technical amendment to subsection 20(5) to omit "state in the notice" and substitute it with "advise the transfer country in writing". This amendment makes it clear that the person being advised of the Attorney-General's decision is the transfer country and that the communication is to be in writing.

193. This amendment also better characterises the practical process under subsection 20(5). The current drafting of subsection 20(5) incorrectly suggests the existence of a prescribed form for this process. In practice, the Attorney-General advises the transfer country in writing that consent may be given on varied terms, however there is no prescribed format for this advice.

Item 6: Subsection 20(5)

194. Item 6 is another technical amendment to subsection 20(5) that omits "agrees to a specified variation of those terms" and inserts "proposes a variation of those terms, including any variation suggested by the Attorney-General". Currently, it is unclear what the process is if the transfer country "agrees" to a specified variation of their proposed terms of transfer.

195. This technical amendment clarifies that it is the transfer country that may propose a variation of the terms of transfer, even if such a variation is first suggested by the Attorney-General. The effect of this is to ensure that each time the transfer country responds to the Attorney-General with revised terms of transfer, they will be considered as if the transfer country is proposing new terms of transfer and therefore new section 19 and new subsection 20(1) are enlivened. Accordingly, in order for a transfer to take place on these new terms, the relevant state or territory minister, prisoner (or prisoner's representative) and the Attorney-General will need to consent to these new terms. The Attorney-General will also have the ability to refuse consent to the transfer on the new terms under new section 19.

Item 7: Section 21

196. Section 21 relevantly provides that the Attorney-General may, subject to Part 2 of the ITP Act, issue a warrant for the transfer of the prisoner from Australia to a transfer country if all required consents have been given.

197. Item 7 is a technical amendment to align the wording of section 21 with terminology used in new section 20(5), as discussed in item 6 above. The amendment omits "(or, if the transfer country has agreed to variation of the terms, the terms as varied)" and substitutes it with "(including proposed terms that are an agreed variation of earlier terms)".

Item 8: After section 24

198. Item 8 inserts a new section 24A that expressly allows the Attorney-General to make a decision to refuse consent to a request to transfer to Australia from a transfer country at an earlier stage in the process. This amendment is consistent with the amendment at item 2 relating to applications for transfer from Australia.

199. New section 24A overcomes the practical difficulties and inefficiencies associated with the current drafting of the ITP Act, which provides that the Attorney-General must first obtain consent from the relevant state or territory minister, transfer country and the prisoner (or prisoner's representative) before making a decision in respect of a request under section 24.

200. New subsection 24A(1) provides that the Attorney-General may decide to refuse consent to the transfer of a prisoner to Australia after he or she receives a request under section 24 for the transfer, but before he or she has started to act under any of sections 26 to 32 in relation to the transfer.

201. The effect of new subsection 24A(1) is that the Attorney-General will now be able to refuse consent to a transfer before:

determining sentence enforcement terms under section 26
notifying relevant state or territory ministers of receipt of the request under subsections 27(1) and 27(2)
providing relevant state or territory ministers with the requisite information under subsection 27(3)
receiving relevant state or territory minister consent under subsection 27(4)
obtaining transfer country and prisoner consent to the proposed terms under subsection 28(1)
acting under sections 29 to 32 in relation to a warrant for transfer.

202. The power to refuse consent at an earlier stage in the process is discretionary and the Attorney-General is not required to make a decision under new subsection 24A(1). If the Attorney-General does not exercise this power, the application will proceed through the process and the Attorney-General will be required to comply with the steps provided by sections 26 to 32.

203. Once the Attorney-General has started to act under sections 26 to 32 (for example, by notifying and seeking consent from relevant state or territory ministers), the point in time for refusal under new subsection 24A(1) will have passed. In these circumstances, the Attorney-General must continue with the process and obtain all required consents from relevant state or territory ministers under section 27, and the prisoner (or prisoner's representative) and the transfer country under section 28 before he or she can decide whether to provide or refuse consent under section 24.

204. New subsection 24A(2) provides that sections 26 to 32 do not apply for the transfer of the prisoner if the Attorney-General decides to refuse consent to the transfer under new subsection 24A(1). The intent of new subsection 24A(2) is twofold:

to put beyond doubt that where the Attorney-General decides to refuse consent under new subsection 24A(1), the process ends and no further steps need to be taken under sections 26 to 32
to confirm that the Attorney-General is not required to carry out any of the steps in sections 26 to 32 of the ITP Act before making a decision to refuse consent under new subsection 24A(1).

205. The purpose of the new section 24A is to ensure that the process for considering an application for transfer to Australia is more efficient.

206. It ensures that Commonwealth and state and territory governmental resources, as well as those of transfer countries, are not burdened in the event that the Attorney-General is minded to refuse consent to the transfer after giving due consideration to the request and other relevant material.

207. It also ensures that the prisoner is informed of the final outcome of the request as soon as possible.

208. Consistent with other decisions by the Attorney-General under the ITP Act, a decision to refuse consent under new section 24A will be subject to judicial review under the ADJR Act or more broadly under section 39B of the Judiciary Act 1903 or in the High Court's original jurisdiction under paragraph 75(v) of the Constitution where there are grounds to do so.

Item 9: Paragraph 28(1)(a)

209. Item 9 makes a minor amendment to paragraph 28(1)(a) to omit the words "in the notice" and substitute them with "in writing by the Attorney-General".

210. This amendment better characterises the practical process under paragraph 28(1)(a). The current drafting of paragraph 28(1)(a) incorrectly suggests the existence of a prescribed form for this process. In practice, the Attorney-General would ask the transfer country whether it consents to proposed terms of transfer in writing, however there is no prescribed format for this process.

211. This amendment does not change the requirement for the Attorney-General to notify the transfer country of the matters outlined in subsection 28(2) and ask it to advise whether it and the prisoner (or prisoner's representative) consents to the transfer on the proposed terms.

Item 10: After section 33

212. Item 10 inserts a new section 33A that expressly allows the Attorney-General to refuse consent to a request from a tribunal for the transfer of a tribunal prisoner to Australia at an earlier stage in the process. This amendment is consistent with the policy intent for the amendments at Items 2 and 8.

213. New section 33A overcomes the practical difficulties associated with the current drafting of the ITP Act, which requires that the Attorney-General first obtain consent from the relevant state or territory ministers, the tribunal and, unless the Attorney-General determines that it is not necessary, the prisoner (or prisoner's representative) before making a decision on a request for transfer of a tribunal prisoner under section 33.

214. New subsection 33A(1) provides that the Attorney-General may decide to refuse consent to the transfer of a tribunal prisoner to Australia after the Attorney-General receives a request under section 33 for the transfer, but before he or she has started to act under any of sections 35 to 41 in relation to the transfer.

215. The effect of new subsection 33A(1) is that the Attorney-General will be able to refuse consent to a transfer after receiving the request under section 33, but before:

determining sentence enforcement terms under section 35
determining the most appropriate state or territory for the prisoner to begin to complete serving the sentence in and seeking consent of that state or territory minister under subsections 36(1) and (4)
providing the relevant state or territory minister with any information that the tribunal has provided, and the method by which the Attorney-General considers the sentence of imprisonment could be enforced by Australia under subsection 36(2)
receiving consent of the relevant state or territory minister under subsection 36(3)
seeking tribunal consent and prisoner consent (as required) to the proposed terms of transfer under section 37, and
acting under sections 38 to 41 in relation to a warrant for transfer.

216. The power to refuse consent at an earlier stage in the process is discretionary and the Attorney-General is not required to make a decision under new subsection 33A(1). If the Attorney-General does not exercise this power, the application will proceed through the process and the Attorney-General will be required to comply with the steps provided by sections 35 to 41.

217. Once the Attorney-General has started to act under sections 35 to 41 (for example, by developing proposed terms of sentence enforcement and seeking consent from the relevant state or territory minister), the point in time for refusal under new subsection 33A(1) will have passed. In these circumstances, the Attorney-General must continue with the process and obtain all required consents from relevant state or territory ministers under section 36, and the prisoner (as required) and the tribunal under section 37 before he or she can decide whether to provide or refuse consent under section 33.

218. New subsection 33A(2) provides that sections 35 to 41 do not apply for the transfer of the tribunal prisoner if the Attorney-General decides to refuse consent to the transfer under new subsection 33A(1). The intent of new subsection 33A(2) is twofold:

to put beyond doubt that the process in respect of a request under section 33 ends and that sections 35 to 41 do not apply where the Attorney-General refuses consent under new subsection 33A(1)
to confirm that the Attorney-General is not required to carry out any of the steps in sections 35 to 41 of the ITP Act before making a decision to refuse consent under new subsection 33A(1).

219. The purpose of new section 33A is to ensure that the process for considering an application for transfer to Australia is more efficient.

220. It ensures that Commonwealth, state and territory governmental resources, as well as those of the relevant Tribunal, are not burdened in the event that the Attorney-General is minded to refuse consent to the transfer after giving due consideration to the request and other relevant material.

221. It also ensures that the prisoner is informed of the final outcome of the request as soon as possible.

222. Consistent with other decisions by the Attorney-General under the ITP Act, a decision to refuse consent under new section 33A will be subject to judicial review under the ADJR Act or more broadly under section 39B of the Judiciary Act 1903 or in the High Court's original jurisdiction under paragraph 75(v) of the Constitution where there are grounds to do so.

Item 11: Application of amendments

223. The application of the amendments in Schedule 6 of the Bill commence on the day after the Act receives the Royal Assent.

224. Item 11 provides that the amendments made by Schedule 6 apply in relation to:

applications for transfer from Australia under section 16 of the ITP Act
requests for transfer to Australia under section 24
requests for transfer to Australia of tribunal prisoners under section 33 made on or after commencement of Schedule 6.

225. Item 11 therefore clarifies that the amendments in Schedule 6 are prospective, and will not apply to applications or requests to transfer from or to Australia that were made before commencement of Schedule 6.

SCHEDULE 7 - GROUNDS TO REFUSE MUTUAL ASSISTANCE REQUESTS

Mutual Assistance in Criminal Matters Act 1987

226. Amendments to the Mutual Assistance Act will change the ground of refusal regarding torture to apply where there are substantial grounds for believing that 'a person' would be in danger of torture if the request were granted.

Item 1: Paragraph 8(1)(ca)

227. Section 8 of the Mutual Assistance Act sets out the grounds under which the Attorney-General can or must refuse mutual assistance requests received from foreign countries. The grounds of refusal listed under subsection 8(1) are mandatory grounds of refusal. A mandatory ground of refusal means that the Attorney-General must refuse the request if the requirements of the ground are met.

228. Paragraph 8(1)(ca) currently provides that a request by a foreign country for assistance shall be refused if, in the opinion of the Attorney-General, there are substantial grounds for believing that, if the request was granted, the person would be in danger of being subjected to torture.

229. Item 1 omits the existing reference to 'the person' and substitutes it for 'a person'. The effect of this item is to expand the scope of the mandatory refusal ground in paragraph 8(1)(ca) to any person. For example, the Attorney-General must refuse a request for mutual assistance if there are substantial grounds to believe that, by granting the assistance, any person could be subjected to torture, including witnesses, persons who consent to be transferred to a foreign country to give evidence, or any other category of person.

230. The language 'a person' is consistent with other provisions in section 8, such as paragraph 8(1B)(a) which creates a ground of refusal in relation to the death penalty.

231. This item enhances protections in cases where there are torture concerns and affirms Australia's strong position against torture.

232. Paragraph 8(1)(ca) as amended will continue to operate in addition to paragraph 8(2)(e) of the Act, which is a discretionary ground allowing the Attorney-General to refuse assistance if the provision of the assistance would, or would be likely to, prejudice the safety of any person.

Item 2: Application of amendment

233. Item 2 provides that the amendments to section 8 of the Mutual Assistance Act apply in relation to a request by a foreign country that is under consideration on or after the commencement of this item. The amendments will apply regardless of whether the request was made before or after that commencement.

234. This means, if a mutual assistance request has been received from a foreign country before commencement, but has not yet been considered by the Attorney-General, or a delegate, the amendments will affect the consideration of this request. These amendments will also affect the consideration of requests received after commencement. Decisions in relation to mutual assistance requests that have been made by the Attorney-General, or a delegate, before the commencement of this item will not be impacted.

SCHEDULE 8 - PUBLIC INTEREST MONITORS

Telecommunications (Interception and Access) Act 1979

235. Amendments to the TIA Act will:

ensure that the jurisdictional Public Interest Monitors can provide effective oversight on applications for interception activities made by the relevant agency in their jurisdiction, and
correct references relating to the South Australia (SA) Independent Commission Against Corruption.

236. Public Interest Monitors (PIMs) currently operate in Victoria and Queensland. They were established under the Public Interest Monitor Act 2011 (Vic), the Police Powers and Responsibilities Act 2000 (Qld), and the Crime and Corruption Act 2001 (Qld). The PIM provides safeguards in relation to applications by Victorian and Queensland law enforcement agencies for various warrants, orders or approvals to use certain covert or coercive investigative powers, by:

appearing at hearings of applications to test the content and sufficiency of information relied upon
questioning any person giving information in relation to the application, and
making submissions as to the appropriateness of granting the application.

237. Before an eligible judge or nominated Administrative Appeals Tribunal (AAT) member can issue a warrant or International Production Order (IPO) they must have regard to a list of matters, as set out in the TIA Act, including any submissions made by a PIM, where the application relates to an interception agency of Queensland or Victoria. As it stands, PIMs are unable to make submissions on some matters relevant to warrants and IPOs relating to Part 5.3 supervisory orders (being control orders, extended supervision orders and interim supervision orders).

238. These amendments seek to address this gap by expanding the matters to which a PIM may make submissions, to include these additional considerations, as well as other such matters to which an eligible judge or nominated AAT member considers relevant for an IPO.

Items 1-2: Paragraph 44A(2)(a) and 44A(2)(b)

239. Items 1 and 2 amend paragraphs 44A(2)(a) and 44A(2)(b) of the TIA Act to expand the matters on which the Victorian PIM can make a submission to include the following additional considerations in respect to interception warrants for Part 5.3 supervisory orders:

if the Part 5.3 supervisory order is a control order-the possibility that the person in relation to whom the control order is in force:

o
has engaged, is engaging, or will engage, in a terrorist act; or
o
has provided, is providing, or will provide, support for a terrorist act; or
o
has facilitated, is facilitating, or will facilitate, a terrorist act; or
o
has provided, is providing, or will provide, support for the engagement in a hostile activity in a foreign country; or
o
has facilitated, is facilitating, or will facilitate, the engagement in a hostile activity in a foreign country; and

if the Part 5.3 supervisory order is an extended supervision order or interim supervision order-the possibility that the person in relation to whom the order is in force has committed, is committing, or will commit a serious Part 5.3 offence; and
in relation to any Part 5.3 supervisory order-the possibility that the person in relation to whom the order is in force:

o
has contravened, is contravening or will contravene the Part 5.3 supervisory order; or
o
will contravene a succeeding Part 5.3 supervisory order.

Items 3-4: Paragraph 45(2)(a) and 45(2)(b)

240. Items 3 and 4 amend paragraphs 45(2)(a) and 45(2)(b) of the TIA Act to expand the matters on which the Queensland PIM can make a submission to include the following additional considerations in respect to interception warrants for Part 5.3 supervisory orders:

if the Part 5.3 supervisory order is a control order-the possibility that the person in relation to whom the control order is in force:

o
has engaged, is engaging, or will engage, in a terrorist act; or
o
has provided, is providing, or will provide, support for a terrorist act; or
o
has facilitated, is facilitating, or will facilitate, a terrorist act; or
o
has provided, is providing, or will provide, support for the engagement in a hostile activity in a foreign country; or
o
has facilitated, is facilitating, or will facilitate, the engagement in a hostile activity in a foreign country; and

if the Part 5.3 supervisory order is an extended supervision order or interim supervision order-the possibility that the person in relation to whom the order is in force has committed, is committing, or will commit a serious Part 5.3 offence; and
in relation to any Part 5.3 supervisory order-the possibility that the person in relation to whom the order is in force:

o
has contravened, is contravening or will contravene the Part 5.3 supervisory order; or
o
will contravene a succeeding Part 5.3 supervisory order.

Items 5-6: Paragraph 58(2)(a) and Paragraph 58(2)(b) of Schedule 1

241. Items 5 and 6 amend paragraphs 58(2)(a) and 58(2)(b) of Schedule 1 to the TIA Act expand the matters to which the PIM of Victoria may make a submission to include the following additional considerations for an interception IPO relating to Part 5.3 supervisory orders:

if the Part 5.3 supervisory order is an extended supervision order or interim supervision order-the possibility that the person in relation to whom the order is in force has committed, is committing, or will commit a serious Part 5.3 offence; and
in relation to any Part 5.3 supervisory order-the possibility that the person in relation to whom the order is in force:

o
has contravened, is contravening or will contravene the Part 5.3 supervisory order; or
o
will contravene a succeeding Part 5.3 supervisory order.

such other matters (if any) as the eligible judge or nominated AAT member considers relevant.

Items 7-8: Paragraph 59(2)(a) and Paragraph 59(2)(b) of Schedule 1

242. Items 7 and 8 amend paragraphs 59(2)(a) and 59(2)(b) of Schedule 1 to the TIA Act to expand the matters to which the PIM of Queensland may make a submission to include the following additional considerations for an interception IPO relating to Part 5.3 supervisory orders:

if the Part 5.3 supervisory order is an extended supervision order or interim supervision order-the possibility that the person in relation to whom the order is in force has committed, is committing, or will commit a serious Part 5.3 offence; and
in relation to any Part 5.3 supervisory order-the possibility that the person in relation to whom the order is in force:

o
has contravened, is contravening or will contravene the Part 5.3 supervisory order; or
o
will contravene a succeeding Part 5.3 supervisory order.

such other matters (if any) as the eligible judge or nominated AAT member considers relevant.

SCHEDULE 9 - WITNESS PROTECTION

Witness Protection Act 1994

243. Amendments to the Witness Protection Act will:

ensure that past participants of previous AFP-run witness protection programs are covered by the Witness Protection Act
enable participants to be temporarily suspended from receiving protection and assistance under the National Witness Protection Program (NWPP) in situations where the AFP is unable to provide them with protection or assistance, and
modernise and streamline language and delegation processes to reduce administrative burden on the AFP.

Part 1 - Past program participants

Item 1: At the end of section 29

244. Item 1 inserts a new subsection 29(3) to specify that, for the avoidance of doubt, an identity provided to a person under the program mentioned in subsection 29(2) (the program operated by the AFP immediately before the commencement of the Witness Protection Act) is taken, for the purposes of the Witness Protection Act, to have been provided under the NWPP.

245. New subsection 29(3) removes any doubt raised by the new express provision in paragraph 29A(2)(b), which provides that an identity provided to a past program participant (a person included in an AFP-run witness protection program other than immediately before commencement of the Witness Protection Act) is taken to have been provided under the NWPP.

246. The cumulative effect of these provisions is to clarify that identities provided to both past program participants (who were included in programs before, but not immediately before the commencement of the Witness Protection Act) as well as former participants (who were included in the AFP-run witness protection program immediately before the commencement of the Witness Protection Act), are both taken to have been provided under the NWPP.

Item 2: After section 29

247. Under subsection 29(2), the protections in the Witness Protection Act only apply to persons who were part of an AFP witness protection program 'immediately before' the Act commenced. This means that persons who may have been in witness protection programs run by the AFP, but withdrew or whose participation in a protection program was terminated before the Witness Protection Act commenced, may not be captured by the Witness Protection Act.

248. Item 2 inserts new section 29A, which clarifies that a person who was, at some time before, (but not immediately before), the commencement of the Witness Protection Act, included in a program operated by the AFP for the purpose of witness protection (a past program participant), is considered to be a former participant.

249. This amendment clarifies beyond doubt that the AFP can provide protection and assistance, where required, to this cohort as former participants. For example, this may include applying for documents that sustain a former participant's identity.

250. New paragraph 29A(2)(a) provides that a past program participant is taken to be a former participant, and new paragraph 29A(2)(b) clarifies that an identity provided to a past program participant is taken to have been provided under the NWPP.

Part 2 - Suspension of protection and assistance

Item 3: At the end of subsection 9(2)

251. New paragraph 9(2)(h) provides that a memorandum of understanding between the participant and the AFP Commissioner (the Commissioner) may set out the details of how a suspension of protection and assistance under new section 17A or 17B affects any of the other matters in the memorandum of understanding.

252. This will enable the AFP to provide details of how a suspension would affect the provision of protection and assistance, specific to an individual participant's circumstances, if necessary or appropriate. This provision applies to memoranda of understanding entered into after the commencement of these amendments, and does not require existing memoranda of understanding to be amended. It is also not a requirement for future memoranda of understanding to contain these details, unless it is necessary or appropriate in the circumstances.

Item 4: After section 17

253. Item 4 provides for the suspension of protection and assistance under the NWPP, either at the request of the participant (new section 17A) or at the discretion of the Commissioner in circumstances where the participant does or intends to do something that limits, or would limit, the Commissioner's ability to provide adequate protection and assistance (new section 17B).

254. Currently, in situations where the AFP's ability to provide protection or assistance may be limited-for example, when a participant does or intends to do something that would place them outside the AFP's jurisdiction-participants must be considered for termination from the program and may be required to undertake a full re-assessment process to re-enter the program. This process can be both time and resource intensive.

Section 17A

Suspension of protection and assistance on request by participant

255. New subsection 17A(1) allows participants to request the suspension of protection and assistance under the program in writing, which may be granted by the Commissioner.

256. The Commissioner's powers under new section 17A may be delegated, under new section 25(4), to an Assistant Commissioner. The Assistant Commissioner may sub-delegate the power in writing to a Commander or Superintendent in the AFP (new subsection 25(5)), however a Commander or Superintendent may only exercise these powers if satisfied the circumstances are serious and urgent (new subsection 25(6)).

257. A suspension under new section 17A(1) is specified in new subsection 17A(2) to take effect at the time specified in the request (if the Commissioner makes a decision on the request before that time), or otherwise at a time determined by the Commissioner. New subsection 17A(3) provides that a suspension ceases to have effect when the participant requests in writing that the suspension ceases or, if the initial request by the participant specifies a time for the suspension to cease, at that time.

258. Under new subsection 17A(4), the Commissioner must, as soon as practicable after the request is made, give the participant written notice of the Commissioner's decision to suspend, or not to suspend, protection and assistance. The Commissioner must also notify the relevant approved authority of that decision.

259. Decisions made under new subsection 17A(1) are not subject to review. This reflects the fact that these decisions (for example, a decision not to suspend protection and assistance following a request from the participant) are unlikely to have a significantly adverse impact on the rights and interests of the individual. The voluntary nature of the NWPP provides the participant the opportunity to terminate their participation at any time, which must be granted by the Commissioner if requested (paragraph 18(1)(a)).

260. The effect of a suspension under new subsection 17A(1), specified in new subsection 17A(5), is that protection and assistance must not be provided under the NWPP to the participant while the suspension is in effect. This is subject to new subsection 17A(6), which provides that protection or assistance may still be provided under the NWPP to the participant if the Commissioner is satisfied that, in the circumstances, it is necessary and reasonable for the protection or assistance to be provided, despite the suspension.

261. For example, this could include circumstances where a participant's protection and assistance are suspended under the NWPP, but they require AFP assistance to replace identity documentation which is essential for maintaining their identity. New subsection 17A(6) allows the AFP to render assistance on the basis that this is reasonable and necessary to be provided, despite the suspension.

262. New subsection 17A(7) specifies that a suspension does not result in a person ceasing to be a participant of the NWPP while the suspension is still in effect. Participants are still bound by the Witness Protection Act, as well as the memorandum of understanding they agreed to at the time of entering the NWPP. The memorandum of understanding sets out the basis on which a participant is included in the NWPP and may contain terms and conditions on which protection and assistance is provided to the participant.

263. New subsection 17A(8) provides that voluntary requests for suspension by participants do not apply to former participants or those who are receiving protection or assistance because of a relationship with a former participant. This ensures the option to request a suspension of protection and assistance is appropriately limited to the applicable cohort, which comprises participants who are receiving active protection and assistance under the NWPP.

Section 17B: Suspension of protection and assistance by Commissioner

264. New section 17B allows for the suspension of protection and assistance by the Commissioner, enabling the AFP to respond quickly and flexibly to situations (including urgent and serious circumstances) where the ability to provide protection and assistance may be limited.

265. New subsection 17B(1) provides that the Commissioner may suspend protection and assistance provided under the NWPP if they are of the opinion that the participant has done or intends to do something that limits or would limit the Commissioner's ability to provide adequate protection and assistance under the NWPP, and the circumstances of the case warrant the suspension of protection and assistance.

266. Situations that are likely to limit the Commissioner's ability to provide protection and assistance may occur in instances where a participant does, or intends to do something, that places them outside the jurisdiction of the AFP. This may limit the AFP's ability to access (and therefore protect) and communicate with (and therefore assist) the individual.

267. Suspension of protection and assistance may be warranted in instances where the participant has acted in a manner that may be contrary to their memorandum of understanding and may impede the AFP's ability to provide protection and assistance on a temporary basis.

268. New subsection 17B(2) provides that a suspension under new subsection 17B(1) takes effect at the time determined by the Commissioner, or at the time the Commissioner decides to suspend the protection and assistance. This allows for the decision maker to respond appropriately to operational circumstances that may warrant either an immediate or delayed commencement of the suspension.

269. New subsection 17B(3) specifies the duration of a suspension, which has effect until the time determined by the Commissioner, which must be reasonable in all the circumstances, and may be extended by the making of a new decision under new subsection 17B(1) or revoked if the Commissioner is satisfied that new paragraph 17B(1)(a) or (b) no longer applies.

270. This allows for the Commissioner to take into account the specific details of the participant's case, such as whether or not there is a defined time they are likely to return to circumstances that restore the AFP's ability to provide adequate protection and assistance. In situations where this is unclear, new subsection 17B(3) allows for flexibility in determining the duration of a suspension, and extending or revoking it as required.

271. The Commissioner is required under new subsection 17B(4) to take reasonable steps to notify the participant of a decision made under new subsection 17B(1) to suspend protection and assistance provided under the NWPP. The Commissioner must also notify the relevant approved authority of the decision.

272. The effect of a suspension under new section 17B, specified in new subsection 17B(5) is that protection and assistance must not be provided under the NWPP to the participant while the suspension is in effect. This is subject to new subsection 17B(6), which provides that protection or assistance may still be provided under the NWPP to the participant if the Commissioner is satisfied that, in the circumstances, it is necessary and reasonable for the protection or assistance to be provided, despite the suspension.

273. For example, this could include circumstances where the participant has ongoing employment or education requirements through the suspension period and the AFP provides assistance to facilitate and ensure continuity of these.

274. New subsection 17B(7) specifies that a suspension does not result in a person ceasing to be a participant while the suspension is still in effect. Participants are still bound by the Witness Protection Act and memorandum of understanding they agreed to at the time of entering the NWPP. The memorandum of understanding sets out the basis on which a participant is included in the NWPP and may contain terms and conditions on which protection and assistance is provided to the participant.

275. New subsection 17B(8) provides that voluntary requests for suspension by participants do not apply to former participants or those who are receiving protection or assistance because of a relationship with a former participant. This ensures the option to request a suspension of protection and assistance is appropriately limited to the applicable cohort.

Section 17C: Review of decision to suspend protection and assistance

276. New section 17C provides for review of a decision under new subsection 17B(1) to suspend protection and assistance under the NWPP (other than a decision made as a result of a review under new subsection 17C(1)) or a decision made personally by the Commissioner.

277. A participant who is notified of a suspension under new subsection 17B(4) may apply in writing within 7 days of receiving the notification for a review of the decision to a Deputy Commissioner.

278. The Deputy Commissioner, upon receiving the application for review, must review the decision and confirm, reverse or vary it (new paragraph 17C(3)(a)) as well as provide the participant a reasonable opportunity to state their case before making such a decision (new paragraph 17C(3)(b)). After making their decision, the Deputy Commissioner must inform the participant in writing of the decision (new paragraph 17C(3)(c)).

279. The provision for internal review of these decisions reflects the need to limit knowledge of the participant's individual circumstances and of the broader administration of the NWPP. This is essential to protect the identity of the participant as well as the integrity of the NWPP generally.

280. Consistent with existing provisions in the Witness Protection Act (for example, in relation to termination of a participant's participation in the NWPP under section 18), decisions made by the Commissioner to suspend protection and assistance are not subject to review. This reflects the reality of operational circumstances and the intent of the delegation powers provided in new subsections 25(4), (5) and (6), which provide for the Commissioner's powers under new sections 17A and 17B to be delegated to an Assistant Commissioner. The Assistant Commissioner may subdelegate these powers to a Commander or Superintendent (new subsection 25(5)), who may only exercise these powers in serious and urgent circumstances (new subsection 25(6)).

281. The sub-delegation of these powers reflects the fact that often, decisions to suspend (or re-instate) protection and assistance are required to be made quickly in response to rapidly changing circumstances - and as such, these decisions are unlikely to be made by the Commissioner or an Assistant Commissioner.

Item 5: Subsection 25(4)

282. Section 25 of the Witness Protection Act allows the AFP Commissioner to delegate their powers under the Act to a person who holds or occupies a designated position.

283. New subsection 25(4) currently provides that the Commissioner may only delegate their powers and functions under subsections 13(5) and 13(7)-which relate to actions the Commissioner may take to protect the safety and welfare of a former participant-to a Deputy Commissioner, Assistant Commissioner or a person occupying an equivalent or higher rank in the AFP.

284. Subsection 13(5) relates to the Commissioner's ability to take actions to protect former participants of the NWPP, while subsection 13(7) requires the Commissioner to give a written notice to the Immigration Secretary, or an officer nominated by that Secretary, that they have taken actions under subsections 13(1) or 13(2) regarding the provision of protection or assistance to former participants, where those former participants were included in the NWPP at the request of a foreign law enforcement agency or the International Criminal Court.

285. Item 5 repeals and replaces subsection 25(4) so that the Commissioner may now delegate their powers under subsections 13(5) and 13(7) to the designated position that they assess is operationally appropriate. This brings these decision-making powers into line with delegations for decisions relating to current participants, which reflects the fact that many of these routine actions (for example, applying for any documents necessary to protect the former participant) are more appropriately dealt with at the same level as actions taken to protect current participants.

286. Item 5 inserts new subsection 25(4), which limits the Commissioner's ability to delegate powers under new sections 17A and 17B to an Assistant Commissioner. The powers at new sections 17A and 17B relate to the suspension of protection and assistance under the NWPP. The outcome of a suspension is that the AFP must not provide protection and assistance to the NWPP (subject to new subsections 17A(6) and 17B(6)), which specify that assistance may be provided while a suspension is in force if the Commissioner is satisfied, in the circumstances, it is necessary and reasonable to provide the protection despite the suspension).

287. New subsection 25(4) acknowledges it is generally appropriate for a senior decision maker (such as an Assistant Commissioner) to determine whether to suspend (or re-instate) the provision of protection and assistance under the NWPP. As the suspension of a participant's protection and assistance will either be at the request of the participant or when the participant has done or intends to do something that may limit the AFP's ability to adequately provide protection and assistance, the rank of Assistant Commissioner is sufficient for making these decisions. A suspension decision is temporary and limited to protection and assistance, unlike the decision to terminate a participant from the NWPP in its entirety (which is a decision that is appropriately made at the Deputy Commissioner level).

288. However, circumstances are likely to arise where decisions on whether to suspend or re-instate the provision of protection and assistance under the NWPP must be made quickly, in response to urgent and serious circumstances. In these scenarios, it may be impractical to seek a decision from a senior decision-maker such as an Assistant Commissioner.

289. Item 5 therefore inserts new subsection at 25(5), which allows for an Assistant Commissioner to sub-delegate the powers under new sections 17A and 17B to a Commander or Superintendent. New subsection 25(6) provides that a Commander or Superintendent may only exercise these powers in circumstances that are serious and urgent.

290. This will allow for decisions to be made quickly where operationally required to ensure the provision of protection and assistance under the NWPP can be suspended or re-instated. For example, where the circumstances limiting the AFP's ability to provide protection or assistance resolve at short notice, the AFP can act quickly to re-instate the provision of protection and assistance to ensure the person is safe from harm.

Part 3 - Minor and technical amendments

Item 6: Section 3 (paragraph (a) of the definition of designated position )

291. Item 6 replaces the terminology used in paragraph (a) of the definition which specifies the type of security clearance required for an occupant in a designated position.

292. This amendment aligns with the introduction of the definition of an eligible security clearance under item 7 and provides consistency throughout the Witness Protection Act.

Item 7: Section 3

293. Item 7 inserts the definition for an eligible national security clearance, and provides that the term means a clearance prescribed by regulations for the purposes of this definition. This ensures requirements for the security clearance an occupant of a designated position must hold remain accurate and up to date, which is important to ensure the ongoing safeguarding of information relating to the NWPP.

Item 8: Section 3

294. Item 8 repeals the definitions of position of trust clearance and sensitive information, which no longer apply following the insertion of the definition for eligible national security clearance.

Item 9: Subsection 12(2)

295. Item 9 amends subsection 12(2) to remove now outdated references to security clearances and replace them with the new definition of eligible national security clearance.

296. This has the effect of specifying the type of security clearance required for the Ombudsman, or a person authorised by the Commonwealth Ombudsman, to have access to the Register of Participants for the purposes of paragraphs 12(2)(a) or (b).

297. This amendment aligns with the introduction of an eligible security clearance under Item 7 and provides consistency throughout the Witness Protection Act.

Item 10: Subsection 13(4)

298. Item 10 amends subsection 13(4) to remove now outdated references to security clearances and replace them with the new definition of eligible national security clearance.

299. This has the effect of specifying the type the security clearance required for a Commonwealth officer to be able to prepare documentation relating to the establishment of a new identity for a participant.

300. This amendment aligns with the introduction of an eligible security clearance under Item 7 and provides consistency throughout the Witness Protection Act.

SCHEDULE 10 - AMENDMENTS RELATING TO THE SOUTH AUSTRALIAN INDEPENDENT COMMISSION AGAINST CORRUPTION

Crimes Act 1914, Criminal Code Act 1995, Privacy Act 1988, Surveillance Devices Act 2004 and the Telecommunications (Interception and Access) Act 1979

301. On 7 October 2021, the Independent Commissioner Against Corruption (CPIPC Recommendations) Amendment Act 2021 (SA) amended the Independent Commissioner Against Corruption Act 2012 (SA) to become the Independent Commission Against Corruption Act 2012 (SA). This means that the entity previously known as the 'Independent Commissioner Against Corruption' of South Australia is now the 'Independent Commission Against Corruption' of South Australia.

302. The amendments in this Schedule will update references in the Crimes Act, the Criminal Code, the Privacy Act, the SD Act and the TIA Act relating to the Independent Commission Against Corruption of South Australia.

Items 1-4: Amendments to the Crimes Act 1914

303. Items 1 to 3 amend various definitions in the Crimes Act to refer to the 'Independent Commission Against Corruption' instead of the 'Independent Commissioner Against Corruption'. Item 2 also updates the reference to the 'Independent Commissioner Against Corruption 2012 (SA)' in paragraph (h) of the definition of 'State or Territory law enforcement agency' in section 3ZZAC of the Crimes Act to the 'Independent Commission Against Corruption Act 2012 (SA)'.

304. Item 4 repeals paragraph (fa) of the definition of 'law enforcement agency' in section 85ZL of the Crimes Act. The Independent Commission Against Corruption of South Australia is covered by paragraph (f) of the definition of 'law enforcement agency'.

Item 5: The Criminal Code Act 1995

305. Item 5 repeals paragraph (l) of the definition of 'law enforcement officer' in section 473.1 of the Criminal Code and replaces it with equivalent persons under the Independent Commission Against Corruption Act 2012 (SA).

Item 6: Privacy Act 1988

306. Item 6 amends paragraph (lb) of the definition of 'enforcement body' in section 6 of the Privacy Act to reflect the new title of the Independent Commission Against Corruption.

Items 7-8: Surveillance Devices Act 2004

307. Item 7 inserts a definition of 'member of the staff' in relation to the Independent Commission Against Corruption of South Australia to reference a person who is engaged under subsection 12(1) of the Independent Commission Against Corruption Act 2012 (SA).

308. Item 8 amends the table in subsection 6A(7) of the SD Act to replace the current entities under the Independent Commissioner Against Corruption 2012 (SA) with the entities under the Independent Commission Against Corruption Act 2012 (SA).

Items 9-30: Telecommunications (Interception and Access) Act 1979

309. Items 9 to 12 and 14 to 27 amend various provisions of the TIA Act that reference the 'Independent Commissioner Against Corruption' and 'Independent Commissioner Against Corruption 2012 (SA)' to refer to the 'Independent Commission Against Corruption (SA)' and the 'Independent Commission Against Corruption Act 2012 (SA)'. This includes amendments to the definitions of certifying officer, chief officer, eligible authority, officer, permitted purpose, prescribed investigation and relevant offence.

310. Item 13 inserts a definition of 'member of the staff' in relation to the Independent Commission Against Corruption of South Australia to reference a person who is engaged under subsection 12(1) of the Independent Commission Against Corruption Act 2012 (SA).

311. Items 28 to 30 makes similar amendments to the relevant paragraphs of Schedule 1 of the TIA Act, which relates to International Production Orders.

This includes state offences which are 'picked up' and applied as a Commonwealth offence under section 4 of the Commonwealth Places (Application of Laws) Act 1970 (COPAL).

UN Human Rights Committee, General Comment 32: Article 14, Right to Equality before Courts and Tribunals and to Fair Trial (23 August 2007).


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