Explanatory Memorandum
(Circulated by authority of the Minister for Justice, the Hon Michael Keenan MP)Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Australian Crime Commission Amendment (National Policing Information) Bill 2015
9. 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
10. The Bill amends the Australian Crime Commission Act 2002 (ACC Act) to merge the functions of CrimTrac into the Australian Crime Commission (ACC).
Human rights implications
11. This Bill engages the right to freedom from unlawful or arbitrary interferences with a person's privacy under Article 17 of the International Covenant on Civil and Political Rights (ICCPR).
12. Article 17 of the ICCPR accords everyone the right to protection against arbitrary or unlawful interference with their privacy. Lawful interferences with the right to privacy will be permitted, provided they are reasonable in the particular circumstances. The UN Human Rights Committee has interpreted 'reasonableness' in this context to imply that 'any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case'. [1]
13. The Bill engages the right to privacy by amending the ACC's existing information disclosure regime and inserting an additional information disclosure regime into the ACC Act. The types of information that may be disclosed under these regimes could include personal information.
14. The ACC Act currently contains strict information sharing provisions that apply to 'ACC information'. 'ACC information' is broadly defined to mean information that is in the ACC's possession. Given the breadth of this definition, following a merger, CrimTrac information and data holdings would become 'ACC information' for the purposes of the Act.
15. This would have two impacts on the disclosure of 'CrimTrac' type information (referred to as national policing information in this bill) by the ACC:
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- The CrimTrac Board currently plays a significant role in determining which non-law enforcement agencies have access to most types of information held by CrimTrac. Under the current information sharing provisions of the ACC Act, the Board would no longer play such an influential role in disclosure decisions.
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- CrimTrac can currently disclose nationally coordinated criminal history checks to 'accredited agencies', which can be both government agencies and private sector bodies. The existing information disclosure provisions of the ACC Act apply different rules to disclosure of ACC information to government agencies and the private sector. While this would not prevent the ACC disclosing nationally coordinated criminal history checks to accredited agencies, it would potentially subject it to stricter conditions than currently apply (particularly in relation to private sector disclosure).
16. To address these issues, and ensure that the ACC can continue to disclose national policing information in a similar manner to that which CrimTrac currently adopts, the Bill will:
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- amend the ACC's existing information disclosure regime to provide the Board with a role in the disclosure of 'national policing information' (which is a defined term intended to capture all information that is collected, held and disseminated by CrimTrac, and which may include 'personal information') to government agencies and the private sector, and
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- insert a new regime to enable the ACC to disclose national criminal history check information to accredited bodies and individuals that are subject to the check (which necessarily involves personal information about an individual's criminal history).
Amendments to existing information disclosure regime
17. The Bill will amend existing section 59AA of the ACC Act, which governs the dissemination of ACC information to other government agencies.
18. Under new subsection 59AA(1A), when deciding whether to disclose national policing information to a government body, the ACC CEO must act in accordance with any policy determined, and any directions given, in writing by the Board. This is intended to enable the ACC Board to set limits or conditions on the level of access a government agency may have to national policing information, as the CrimTrac Board currently can.
19. Further, under new subsection 59AA(1B), the ACC Board must agree to the ACC CEO disclosing national policing information to a body that is not:
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- a) the Australian Federal Police;
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- b) a Police Force of a State;
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- c) the Department administered by the Minister who administers the Australian Border Force Act 2015;
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- d) the Australian Securities and Investments Commission;
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- e) the Australian Security Intelligence Organisation;
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- f) the Australian Taxation Office;
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- g) a body prescribed by the regulations.
20. This provision is intended to require the Board to approve the dissemination of national policing information to any bodies that are not law enforcement agencies, as is currently the case for CrimTrac.
21. The Bill will make similar amendments to section 59AB, which governs the dissemination of ACC information to bodies corporate. Under the proposed amendments, the ACC CEO would have to obtain the ACC Board's agreement before disclosing national policing information under section 59AB. The ACC CEO would also have to comply with any policy determined, and any directions given, in writing by the Board when disclosing national policing information under this provision.
New information disclosure regime for nationally coordinated criminal history checks
22. The Bill will also insert a new section 59AAA into the ACC Act to enable the merged agency to disclose nationally coordinated criminal history checks to accredited bodies, as CrimTrac currently does, and/or the person to whom the check relates.
23. Currently, CrimTrac will only conduct a nationally coordinated criminal history check on an individual where that individual has applied for such a check through an accredited agency. In the future, CrimTrac has advised that the Board may wish to move to a model where individuals can apply for and access a nationally coordinated criminal history check about themselves, without going through an accredited body as an intermediary.
24. As accredited agencies can be both government agencies and private sector bodies, disclosure of criminal history checks to these agencies does not fit neatly within the ACC Act's existing information dissemination regime (which has different rules governing dissemination of information to government agencies (section 59AA) and the private sector (section 59AB)). Further, the current dissemination provisions in the ACC Act may frustrate the merged agency's national criminal history check business model from evolving so as to enable individuals to access checks directly from the ACC, without further amendment.
25. To address these issues, new section 59AAA will allow the ACC CEO to disclose nationally coordinated criminal history checks to an accredited body, or to the person to whom the check relates, if:
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- disclosing the information would not be contrary to a Commonwealth, state or territory law that would otherwise apply, and
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- disclosing the information would not be contrary to any conditions or restrictions determined by the Board in relation to providing nationally coordinated criminal history checks.
26. The second condition is intended to enable the ACC Board to set limits or conditions on the level of access an accredited body and/or an individual can have to nationally coordinated criminal history check s. This is intended to mirror the type of involvement the current CrimTrac Board has in these types of decisions.
Assessment of compatibility with human rights
27. The amendment of the ACC's existing information dissemination regime and the creation of a new regime to govern the disclosure of nationally coordinated criminal history checks by the ACC is reasonable in the circumstances and proportionate to the aims of the Bill.
28. In relation to the amendments to the existing regime, the Bill will ensure that the ACC may only disclose national policing information in similar circumstances to those currently applying to CrimTrac. By requiring the ACC CEO to obtain the ACC Board's approval of any disclosures to non-law enforcement agencies, and to comply with any policies or procedures set by the Board, the amendments impose additional requirements to the already strict information dissemination regime that applies to ACC information.
29. In relation to the new regime for the disclosure of nationally coordinated criminal history checks, the amendments enable the continuation of CrimTrac's current business model, where national coordinated criminal history checks are only disclosed to an accredited agency where an individual has consented to that agency applying for a check on their behalf. Should the national criminal history check business model evolve in the future, the Bill ensures that an individual's right to privacy will remain protected by enabling the merged agency to provide a criminal history check directly to an individual only where that individual is the subject of the check. Further, the amendments ensure that such information can only be disclosed where such disclosure is not contrary to a Commonwealth, state or territory law.
30. In these circumstances, the Bill creates permissible limitations on the right to privacy.
Conclusion
31. The measures in the Bill are compatible with the human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. To the extent that these measures may limit those rights and freedoms, such limitations are reasonable, necessary and proportionate.