Senate

Revised Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Hon Christian Porter MP)

General Outline

1. This Bill amends the Anti-Money Laundering and Counter-Terrorism Financing Act 2006, AusCheck Act 2007, Australian Crime Commission Act 2002, Australian Federal Police Act 1979, Crimes Act 1914, Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Act 2013, Criminal Code Act 1995, Extradition Act 1988, Foreign Evidence Act 1994, International Criminal Court Act 2002, International War Crimes Tribunals Act 1995, Mutual Assistance in Criminal Matters Act 1987, Surveillance Devices Act 2004, Telecommunications Act 1997, Telecommunications (Interception and Access) Act 1979 and War Crimes Act 1945.

2. The Bill contains a range of measures to improve and clarify Commonwealth criminal justice arrangements, including amendments to:

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ensure Australia can effectively respond to requests from the International Criminal Court and international war crimes tribunals

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enhance the provisions on proceeds of crime search warrants, clarify which foreign proceeds of crime orders can be registered in Australia and clarify the roles of judicial officers in domestic proceedings to produce documents or articles for a foreign country, and others of a minor or technical nature

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ensure magistrates, judges and relevant courts have sufficient powers to make orders necessary for the conduct of extradition proceedings

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ensure foreign evidence can be appropriately certified and extend the application of foreign evidence rules to proceedings in the external territories and the Jervis Bay Territory

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ensure the offence of identifying a child witness or vulnerable adult complainant also extends to identifying a child complainant

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clarify the application of the supports and protections for victims and witnesses in the Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Act 2013 to future criminal proceedings, regardless of when the alleged conduct occurred

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address ambiguity and inconsistencies in the offences relating to slavery and slavery-like conditions, including definitions and cross references

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expand the definition of debt bondage to cover the condition of a person whose personal services are pledged by another person as security for the other person's debt

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allow a trier of fact to take into account relevant evidence (including personal circumstances and the relationship between the alleged victim and alleged offender) in determining whether a person was incapable of understanding the nature and effect of a marriage ceremony and whether a person was significantly deprived of personal freedom

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require the Attorney-General to report to the Parliament on the operation of the War Crimes Act 1945 only if an investigation or prosecution is commenced or carried on in the preceding financial year

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ensure the Australian Federal Police's alcohol and drug testing program and integrity framework is applied efficiently and effectively to the entire workforce and clarify and enhance processes for resignation in cases of serious misconduct or corruption

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provide additional flexibility regarding the method and timing of reports about outgoing movements of physical currency, allowing travellers departing Australia to report cross-border movements of physical currency electronically

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include the Australian Charities and Not-for-profits Commission (ACNC) in the existing list of designated agencies which have direct access to financial intelligence collected and analysed by the Australian Transaction Reports and Analysis Centre (AUSTRAC) (known as 'AUSTRAC information'), enabling it to access AUSTRAC information.

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clarify use of the Australian Crime Commission's prescribed alternative name, and

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permit the AusCheck scheme to provide for the conduct and coordination of background checks in relation to major national events.

3. The Bill contains 11 Schedules.

4. Schedule 1 will ensure that both the formal and informal assistance that Australia can currently provide to foreign countries can also be provided to the International Criminal Court (ICC) and international war crimes tribunals (IWCTs).

5. The International Criminal Court Act 2002 (ICC Act) implements Australia's obligations under the Rome Statute of the ICC. In particular, it contains procedures enabling Australia to comply with requests for assistance from the ICC. The International War Crimes Tribunal Act 1995 (IWCT Act) enables Australia to provide assistance to certain IWCTs in performing their functions, including obtaining evidence, documents or other articles and arranging for a person to give evidence or assist an investigation.

6. Australia's ability to provide assistance in criminal matters to the ICC and IWCTs is presently more limited than our ability to assist foreign countries under the Mutual Assistance in Criminal Matters Act 1987 (MA Act). The amendments in Schedule 1 of this Bill will be confined to providing assistance to the ICC and IWCTs for investigating and prosecuting offences within their jurisdiction. Further, the assistance would be subject to the same processes as currently apply to the assistance provided to foreign countries under the MA Act, and on an agency-to-agency basis, and to similar safeguards as apply to the use of these powers for foreign and domestic law enforcement purposes.

7. Schedule 1 contains amendments relating to formal assistance and agency-to-agency assistance which Australia can provide to the ICC and IWCTs. It contains nine Parts.

8. Part 1 of Schedule 1 will streamline the process of providing lawfully obtained material (that is, material acquired by a law enforcement agency in the course of a domestic investigation, which is in their possession) to the ICC or an IWCT after authorisation by the Attorney-General.

9. Part 2 of Schedule 1 will clarify the roles of judicial officers under the ICC Act and IWCT Act in proceedings to require the production of documents or other articles. In particular, the amendments will indicate when the role is performed by a different judicial officer or the same judicial officer within a single matter.

10. Part 3 of Schedule 1 will enable the ICC and IWCTs to request and receive stored communications subject to the Attorney-General's authorisation and the normal processes for applying for a stored communication warrant for domestic purposes. This includes enabling the ICC and IWCTs to request preservation of those communications.

11. Part 4 of Schedule 1 will make a range of amendments to allow the AFP to provide historical telecommunications data to the ICC and IWCTs on an agency-to-agency basis.

12. Part 5 of Schedule 1 will make amendments to enable the collection and provision of prospective telecommunications data (telecommunications data that comes into existence during the period in which an authorisation is in force) for international law enforcement purposes, following the Attorney-General's approval of a formal request from the ICC or an IWCT.

13. Part 6 of Schedule 1 will make amendments to enable Australia to provide surveillance assistance to the ICC and IWCTs, in accordance with the Attorney-General's authorisation and the usual domestic processes for obtaining warrants.

14. Part 7 of Schedule 1 will make amendments to enable a member or special member of the AFP, or a state or territory police officer, to carry out a forensic procedure on a suspect, either with informed consent or compulsorily, at the request of the ICC or an IWCT. Part 6 will also clarify the procedures for obtaining forensic material from a volunteer on an informal basis on behalf of a request by a person investigating an offence within the jurisdiction of the ICC or an IWCT.

15. Part 8 of Schedule 1 will make a range of amendments to improve the operation of the proceeds of crime provisions in the ICC Act and IWCT Act. This includes streamlining the authorisation process for proceeds of crime tools (monitoring orders, production orders and search warrants) and ensuring a range of investigative and restraint tools available for domestic purposes (or to assist in relation to an investigation or prosecution in a foreign country) are also available in respect of an investigation or prosecution at the ICC or an IWCT and apply appropriately in the particular foreign context. It also includes amendments to both Acts to enhance the processes for seeking restraining orders and giving effect to forfeiture orders.

16. Part 9 of Schedule 1 will extend the cost recovery regime in the Telecommunications Act 1997 (Telecommunications Act) to enable carriers and carriage service providers to recover costs incurred in processing requests relating to investigations and prosecutions of ICC or IWCT offences. This will be consistent with the position when carriers and carriage service providers assist with domestic investigations and investigations on behalf of foreign countries.

17. Schedule 2 will make amendments to the MA Act relating to the assistance that Australia can provide in response to a mutual assistance request from a foreign country in a criminal matter.

18. These amendments will ensure that the provisions relating to proceeds of crime investigative tools in the MA Act align with and are consistent with the Proceeds of Crime Act 2002 (POC Act) provisions to which they refer, and that the POC Act provisions are modified appropriately for the foreign context. They also clarify the types of foreign proceeds of crime orders to which the MA Act applies and confirm that the MA Act applies to interim foreign proceeds of crime orders that are issued by non-judicial government bodies. They also make other minor or technical changes to the MA Act to facilitate its operation.

19. Schedule 3 will make amendments to the Extradition Act 1988 (the Extradition Act) to ensure that magistrates and judges have sufficient powers to make orders necessary for the conduct of extradition proceedings.

20. Schedule 4 will make amendments to the Foreign Evidence Act 1994 (FE Act) relating to the external territories and the Jervis Bay Territory, and the certification of material received from a foreign country. These amendments extend the application of Part 3 of the FE Act to certain criminal and related civil proceedings in the external territories and the Jervis Bay Territory.

21. These amendments also ensure there is a process in the FE Act to certify material received from a foreign country in response to a mutual assistance request in terrorism-related proceedings so that the certification is prima facie evidence of the fact of such receipt, and will modify who can issue certificates under Part 3 of the FE Act and how these people are authorised to do so. They will also make consequential amendments to the certificate provisions in Part 4 of the FE Act regarding certificates for use in certain civil proceedings and proceedings to which ASIC are a party, to align all of the certificate provisions.

22. Schedule 5 will amend section 15YR of the Crimes Act 1914 (Crimes Act) to clarify the scope of the offence of publishing any matter that identifies, or is likely to identify, vulnerable witnesses or complainants without leave of the court.

23. The existing offence applies to the publication of matters identifying a child witness or vulnerable adult complainant. Identification of a child complainant, who is not also a witness in the proceedings, is not covered by the current offence. Prior to the commencement of the Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Act 2013 (Vulnerable Witness Act), the offence specifically referred to child complainants. That reference was inadvertently removed in adding the reference to a vulnerable adult complainant. The amendments will ensure that the offence covers the identification of a child complainant as well as a child witness, as was originally intended.

24. Schedule 5 will also amend the Vulnerable Witness Act to extend the application of the supports and protections in Schedule 2 of that Act to proceedings commenced after the commencement of Schedule 5 of this Bill.

25. Item 93 in Schedule 2 of the Vulnerable Witness Act applies the protections and supports in Schedule 2 to offences committed after the commencement of that Schedule. Given lengthy and complex investigations can mean that prosecutions may occur many years after the alleged conduct took place, this has the potential to create an overly complex system in which some witnesses are protected by certain provisions and some are not. Schedule 5 will remove this complexity by extending the application of those protections and supports to proceedings commenced the day after Schedule 5 commences, regardless of when the alleged conduct occurred.

26. Schedule 6 will amend the Criminal Code to address ambiguity and inconsistencies in the offences in Division 270 relating to slavery and slavery-like conditions, as well as clarifying and expanding the operation of existing offences.

27. The amendments will expand the existing definition of debt bondage in the Dictionary in the Criminal Code to specifically cover the condition of a person whose personal services are pledged by another person as security for the other person's debt. Under the current definition, a person who pledges the services of another person under his or her control can currently be considered to be in a condition of debt bondage, but the person whose services are pledged cannot. The amendments will address this inconsistency.

28. Schedule 6 will also move the offences relating to debt bondage from Subdivision C in Division 271 to Division 270. The offences in Division 271 criminalise the trafficking or harbouring of a person and relate to the physical movement of the victim. The offences in Division 270 covering slavery and slavery-like offences do not require an element of movement. For consistency, the debt bondage offences will be moved to Division 270 as they do not require an element of movement.

29. Schedule 6 will amend existing section 270.1A in the Criminal Code to include a reference to debt bondage as a slavery-like offence. This will allow the aggravated offence and jurisdictional requirement provisions at existing sections 270.8 and 270.9 to apply to debt bondage, and allow existing section 271.9 and the references to 271.8 and 271.9 at existing section 271.10 to be omitted, simplifying the existing offence regime.

30. Schedule 6 will also expand the slavery and slavery-like offences in relation to which relevant evidence (including personal circumstances and the relationship between the alleged victim and alleged offender) may be considered in determining other elements of other slavery-like offences in Subdivision C in Division 270. Alleged victims of human trafficking, slavery and slavery-like offences may be economically powerless, socially isolated, and from culturally and linguistically diverse backgrounds, making them particularly vulnerable to an alleged offender's conduct. Given these particular vulnerabilities, the relevant evidence factors may be useful in determining other elements of Division 270 offences, including whether a person was incapable of understanding the nature and effect of a marriage ceremony, and whether a person was significantly deprived of personal freedom.

31. Schedule 7 will amend section 21 the War Crimes Act 1945 to streamline the existing reporting requirements.

32. The Attorney-General is currently required to report annually to the Parliament on the operation of the Act. Given the limited number of investigations and proceedings commenced under the Act, the amendments will change this provision to instead require the Attorney-General to report to Parliament where an investigation or proceeding is started or carried on in the preceding year.

33. Schedule 8 amends the Australian Federal Police Act 1979 (AFP Act) to ensure the Australian Federal Police (AFP) internal alcohol and drug testing regime applies to the entire AFP workforce and that all persons directly affected will have access to the relevant alcohol and drug testing standards. The amendments allow the AFP to maintain the integrity of its workforce and enforce its zero-tolerance policy regarding illicit drug taking by:

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clarifying that the alcohol and drug testing program applies to all AFP appointees, to cover a broader range of AFP personnel than 'an AFP employee or a special member'

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ensuring the AFP can keep pace with technological advances and industry best practice by using the most up to date standards for drug and alcohol testing at the time a sample is provided

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ensuring that the relevant alcohol and drug testing standards are freely and readily available to all AFP appointees, and

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extending the maximum length of time the AFP Commissioner is authorised to postpone an employee's date of resignation from 90 days to 150 days while under investigation for serious misconduct or corruption.

34. Schedule 9 will amend the AML/CTF Act to:

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provide additional flexibility regarding the method and timing of reports about outgoing movements of physical currency, allowing travellers departing Australia to report cross-border movements of physical currency electronically, and

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include the ACNC in the existing list of designated agencies which have direct access to financial intelligence collected and analysed by AUSTRAC (known as 'AUSTRAC information'), enabling it to access AUSTRAC information.

Electronic reporting of cross-border movements of physical currency

35. Travellers have an obligation to declare outgoing cross-border movements of currency of $10,000 or more under section 53 of the AML/CTF Act. Currently, these reports must be lodged in written form at the time and point of departure.

36. AUSTRAC is now working to digitise the declaration process and allow travellers to declare outgoing movements of currency online before departure.

37. Items 1 to 5 in Part 1 of Schedule 9 amend Division 2 of Part 4 of the AML/CTF Act to provide the necessary flexibility to ensure that the new digital forms can be utilised, while maintaining existing CBM-PC reporting requirements.

ACNC as a designated agency

38. The ACNC is a permanent statutory office with responsibility for regulating the charity and not-for-profit sector in Australia. A key role of the ACNC is to promote transparency and public trust and confidence in the charity sector which is integral to ensuring that the sector is not misused, including for terrorism financing. To this end, the ACNC registers organisations as charities for Commonwealth purposes, which includes ensuring those organisations are not engaging in, or supporting, terrorist or other criminal activities, and provides guidance and advice to charities on managing risks including protecting against the risk of terrorism financing.

39. Adding the ACNC as a designated agency in section 5 of the AML/CTF Act will enable it to access AUSTRAC information and ensure it is better able to protect and enhance public confidence in the Australian charity and not-for-profit sector. This will considerably enhance its capacity to make timely and comprehensive assessments in relation to money laundering and terrorism financing risks associated with charities when they register with the ACNC and provide accurate advice to prevent the charity sector being misused for terrorism financing. As a designated agency, the ACNC will also be able to better detect, monitor and halt money laundering, terrorism financing and other criminal activities involving ACNC registered entities and monitor ongoing compliance with regulatory requirements.

40. Items 6 and 7 in Part 2 of Schedule 9 amend section 5 of the AML/CTF Act to include the ACNC in the existing list of designated agencies, enabling it to access AUSTRAC information.

41. Schedule 10 amends the Australian Crime Commission Act 2002 to clarify use of the alternative name for the Australian Crime Commission, specified in the Australian Crime Commission Regulations 2002.

42. Schedule 11 will amend Parts 1 and 2 of the AusCheck Act 2007 (the AusCheck Act) to help enable AusCheck, a business unit within the Department of Home Affairs, to conduct and coordinate background checks in relation to major national events, through a declaration by the Minister and enactment of associated regulations.

43. A 'background check' in relation to an individual is defined in section 5 of the AusCheck Act. A background check can include an assessment of information relating to one or more of the following:

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the individual's criminal history

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matters relevant to a security assessment (as defined in subsection 35(1) of the Australian Security Intelligence Organisation Act 1979) of the individual

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the individual's citizenship status, residency status or the individual's entitlement to work in Australia, including but not limited to, whether the person is an Australian citizen, a permanent resident or an unlawful non-citizen

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the identity of the individual.

44. Section 8 of the AusCheck Act provides for the establishment of an AusCheck scheme, which permits regulations to be made relating to the conduct and coordination of background checks. The AusCheck scheme is established by the AusCheck Regulations 2007 (AusCheck Regulations).

45. Subsection 8(1) of the AusCheck Act permits the AusCheck scheme to provide for the conduct and coordination of background checks of individuals, only in certain circumstances. Paragraph 8(1)(a) provides for background checks for specified purposes relating to the Aviation Transport Security Act 2004 and Maritime Transport and Offshore Facilities Security Act 2003. Paragraph 8(1)(b) permits any other Act of the Commonwealth to provide expressly for a background check of an individual for purposes specified in that other Act. Paragraph 8(1)(c) permits regulations to be made concerning background checks in relation to Aviation and Maritime Security Identification Cards.

46. Under current subsection 8(1), AusCheck is unable to conduct and coordinate background checks in relation to major national events unless another Act of the Commonwealth expressly permits it to do so. As a result of this, if AusCheck receives a request to conduct background checks for a large scale event of national character with security and other serious risks, it is unable to do so without an amendment to another Act. Due to the time and complexity involved in this process, AusCheck has been unable to assist with background checks for a number of major national events such as the G20.

47. The proposed amendments in Schedule 11 will enable AusCheck to respond to requests to conduct and coordinate background checks in relation to designated major national events. This will allow AusCheck to further contribute to the national security and safety of Australia by addressing specific risks arising out of certain large scale events. For example, the amendments could support AusCheck's ability to conduct and coordinate background checks in relation to the Commonwealth Games and thereby help to prevent a national security incident or other risks affecting a large number of attendees.

48. The amendments provide the Minister with a power to declare a major national event by legislative instrument. They also permit regulations to be made in relation to the conduct and coordination of background checks for a major national event. Further detail relating to the definition of a major national event, and the coordination and conduct of background checks in relation to major national events is included in the notes on clauses.

49. The amendments will form part of the legislative framework that governs AusCheck's existing background checking activities. This is comprised of the AusCheck Act and the AusCheck Regulations. This framework is supported by Guidelines for Accessing Information on the AusCheck Database (AusCheck Guidelines).

50. Using the established AusCheck scheme for these purposes will ensure that the background checks can be facilitated through established mechanisms which are well supported by technical channels and legal frameworks.

Safeguards

51. The amendments will authorise the collection of personal information of individuals who undergo a background check in relation to a major national event. This is defined as 'AusCheck scheme personal information' under subsection 4(1) of the AusCheck Act. Strict legislative safeguards are in place to protect the use and disclosure of AusCheck scheme personal information under the AusCheck Act. AusCheck scheme personal information is also subject to the privacy protections in the Privacy Act 1988 (the Privacy Act), including the Australian Privacy Principles.

52. The AusCheck Guidelines provide for compulsory decision-making to determine whether disclosure of AusCheck scheme personal information is appropriate and for prescribed purposes only. Under subregulation 15(2) of the AusCheck Regulations, all AusCheck staff members are required to comply with the AusCheck Guidelines. Failure to comply with the Guidelines may constitute a criminal offence under section 15 of the AusCheck Act.

53. Section 13 of the AusCheck Act provides that the collection, use or disclosure of personal information is taken to be authorised by the AusCheck Act for the purposes of the Privacy Act if it relates to background checks under the AusCheck scheme. Section 14 of the AusCheck Act provides for the retention and subsequent use and disclosure of information in an AusCheck database, and the purposes for which information in the database may be used or disclosed.

54. Section 15 of the AusCheck Act makes it a criminal offence to unlawfully disclose AusCheck scheme personal information. An offence under this section is punishable by up to two years imprisonment.

55. These safeguards provide a robust framework that appropriately protects the disclosure of AusCheck scheme personal information. The safeguards are not being modified or affected by these amendments, and will apply to information collected as part of a background check in relation to a major national event. Information provided by AusCheck to other agencies will also be protected by these agencies' own privacy or secrecy obligations.

56. Schedule 11 amends the AusCheck Act to:

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permit the Minister to declare a 'major national event', having regard to various matters

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limit the purposes for which a background check may be conducted in relation to major national events

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enable amendments to the AusCheck scheme provided in the AusCheck Regulations to permit background checks of individuals in connection with their accreditation in relation to a major national event, and

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make provision for regulations to be made for the purposes of conducting background checks for declared major national events.

Financial Impact

57. The costs of implementing the amendments to the AusCheck Act (Schedule 11) will be fully cost recovered and so the amendments will have negligible financial implications.

58. The remaining Schedules within this Bill have little or no financial impact on Government revenue.

ACRONYMS

ACC Australian Crime Commission

ACC Act Australian Crime Commission Act 2002

ACNC Australian Charities and Not-for-profits Commission

AFP Australian Federal Police

AFP Act Australian Federal Police Act 1979

AGD Attorney-General's Department

AML/CTF Anti-money laundering and counter-terrorism financing

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

AML/CTF Rules Anti-Money Laundering and Counter-Terrorism Financing Rules Instrument 2007 (No.1)

AUSTRAC Australian Transaction Reports and Analysis Centre

CBM-PC Report Cross-Border Movement - Physical Cash (AUD$10,000 or more) Report

Crimes Act Crimes Act 1914

Criminal Code Criminal Code Act 1995

Extradition Act Extradition Act 1988

FE Act Foreign Evidence Act 1994

ICC Act International Criminal Court Act 2002

ICCPR International Covenant on Civil and Political Rights

IWCT Act International War Crimes Tribunal Act 1995

MA Act Mutual Assistance in Criminal Matters Act 1987

POC Act Proceeds of Crime Act 2002

SD Act Surveillance Devices Act 2004

TIA Act Telecommunications (Interception and Access) Act 1979

War Crimes Act War Crimes Act 1945