Revised Explanatory Memorandum
(Circulated by authority of the Attorney-General, the Hon Mark Dreyfus KC MP)GENERAL OUTLINE
The Crimes and Other Legislation Amendment (Omnibus No. 1) Bill 2024
1. The Crimes and Other Legislation Amendment (Omnibus No. 1) Bill 2024 (the Bill) will amend the Crimes Act 1914, the Criminal Code Act 1995, the Proceeds of Crime Act 2002, the National Anti-Corruption Commission Act 2022, the Telecommunications (Interception and Access) Act 1979 and the Telecommunications Act 1997.
2. Each Schedule to the Bill deals with specific measures related to the abovementioned legislation. These measures are described in further detail below. Detailed notes on the clauses of the Bill are included at Attachment B .
Schedule 1 to the Bill - Seizing digital assets
3. Schedule 1 to the Bill would amend the Crimes Act 1914 (Crimes Act ), the Proceeds of Crime Act 2002 (POCA) and the National Anti-Corruption Commission Act 2022 (NACC Act) to enhance the legal framework relating to the seizure of digital assets.
4. Law enforcement agencies have identified an increase in criminals' use of digital assets (including cryptocurrency) to facilitate their offending and as a means to hold and distribute the benefits derived from their offending. Investigations involving digital assets have been associated with a variety of crime types including the purchase of drugs, child exploitation material and firearms through dark web markets; ransomware and cyber related offences; and money laundering and financing of terrorist organisations.
5. The proposed amendments to the Crimes Act, the POCA and the NACC Act would expressly clarify that a warrant may authorise the seizure of digital assets and that an executing officer is able to access a person's digital wallet and transfer its contents as a means of 'seizing' the digital asset.
Schedule 2 to the Bill - Digital currency exchanges
6. Schedule 2 to the Bill would amend the POCA to ensure law enforcement authorities' current information gathering powers and freezing orders apply to digital currency exchanges.
7. The POCA provides law enforcement authorities with broad powers to monitor, freeze, restrain and forfeit proceeds and instruments of crime. The proposed amendments to the POCA would extend investigative and freezing powers that currently only apply to financial institutions to ensure they may also be exercised in relation to certain digital currency exchanges.
8. The amendments would ensure law enforcement can identify digital currencies associated with criminal offending and freeze the relevant accounts to prevent the dissipation of funds (and potential reinvestment in future criminal activity) before any restraint action can be taken under the POCA.
Schedule 3 to the Bill - Penalty unit
9. Schedule 3 to the Bill would amend the Crimes Act 1914 (Crimes Act) to increase the Commonwealth penalty unit amount from $313 to $330, with effect from 14 days after the Act receives the Royal Assent.
10. Penalty units are used to describe the amount payable for monetary penalties imposed for criminal offences in Commonwealth legislation and territory ordinances. The penalty unit mechanism allows for the maximum monetary penalty for all offences under Commonwealth law, including territory ordinances, to be automatically adjusted with a single amendment to section 4AA of the Crimes Act. This removes the need for multiple legislative amendments and ensures that monetary penalties in Commonwealth legislation and territory ordinances remain comparable.
11. The current penalty unit amount does not act as an effective deterrent for the most serious offending. Fines are the most common sentencing disposition imposed by courts in Commonwealth matters, occurring in 31% of sentencing matters in the 2021-22 financial year. In sentencing, it is open to the court to consider all the relevant circumstances, and impose an appropriate monetary penalty. The increase in penalty units does not curtail the court's discretion to impose what it deems to be an appropriate penalty, and does not compel the court to impose more severe financial penalties if they are not warranted.
12. The penalty unit increase reflects community expectations that courts have appropriate sanctions available to them when sentencing individuals and corporations. Other offences that attract financial penalties expressed in penalty units include serious Commonwealth criminal offences such as importation of drugs, people smuggling, theft or destruction of Commonwealth property, and social security fraud. Serious offences commonly include both a financial penalty and a term of imprisonment, expressed as maximums. A court may impose either, or a combination of these sanctions as appropriate.
13. Maintaining the value of the penalty unit over time ensures that financial penalties for Commonwealth offences reflect community expectations and continue to remain effective in deterring unlawful behaviour. The value of the penalty unit has increased five times by legislative amendment and twice by automatic indexation since it was first instituted in 1992, increasing from $100 to $313 (currently). These increases represent an increase of 213%, while average incomes have increased by 282% during the same period.
14. In 2015, the Crimes Act was amended to provide for the automatic Consumer Price Index adjustment of penalty units every three years. The three yearly indexation cycle will continue as usual, with the next indexation increase occurring on 1 July 2026, which is three years from the last automatic indexation.
Schedule 4 to the Bill - Communications Access Coordinator and Communications Security Coordinator
15. Schedule 4 to the Bill would amend the Telecommunications (Interception and Access) Act 1979 (TIA Act) and the Telecommunications Act 1997 (Telecommunications Act) to clarify the functions of the Communications Access Coordinator (CAC) in the Attorney-General's Department and create the position of Communications Security Coordinator (CSC) in the Department of Home Affairs.
16. The CAC's functions under the TIA Act and Telecommunications Act include matters relating to carriers and carriage service providers' interception capability and data retention obligations, and consideration of new carrier licence applications in consultation with the Australian Communications and Media Authority.
17. Under Part 14 of the Telecommunications Act, the CAC is also responsible for responding to notifications from service providers regarding proposed changes to their telecommunications services or systems which may be prejudicial to security. The Bill would establish the role of CSC in the Department of Home Affairs and transfer the functions under Part 14 of the Telecommunications Act to the CSC. The Bill does not propose any new functions, but rather aligns the performance of the existing functions under Part 14 of the Telecommunications Act with the responsibilities of the Attorney-General's Department and the Department of Home Affairs.
18. The amendments would also enable the Attorney-General and the Minister for Home Affairs to authorise officers of their respective departments to perform certain CAC and CSC functions as appropriate. The legislative instruments made by the Attorney-General and Minister for Home Affairs will be subject to review and may be disallowed.
Schedule 5 to the Bill - Information sharing between integrity agencies and oversight bodies
19. The Telecommunications (Interception and Access) Act 1979 (TIA Act) currently limits the ability for state and territory oversight bodies to receive interception warrant information and interception information from integrity agencies within their respective jurisdictions. State and territory oversight bodies oversee the operation of respective integrity bodies for allegations of corruption, misconduct, unreasonable delays or invasions of privacy.
20. Schedule 5 to the Bill would amend the TIA Act to enhance the ability of specific New South Wales, South Australian and Western Australian oversight bodies to receive intercepted information and interception warrant information under the TIA Act. The information sharing amendments apply to the:
- •
- Inspector of the Independent Commission Against Corruption (NSW);
- •
- Inspector of the Law Enforcement Conduct Commission (NSW);
- •
- Inspector of the Independent Commission Against Corruption (SA);
- •
- Parliamentary Inspector of the Corruption and Crime Commission (WA); and
- •
- Victorian Inspectorate.
21. Schedule 5 would also amend the TIA Act to include the South Australia Inspector of the Independent Commission Against Corruption as it absorbed the functions of the former reviewer of the Independent Commissioner Against Corruption in 2022.
22. The inclusion of the South Australia Inspector of the Independent Commission Against Corruption in the TIA Act specifies the entirety of its oversight functions to enable it to lawfully receive interception information and interception warrant information to scrutinise and audit the interception activities of the South Australia Independent Commission Against Corruption and ensure it complies with its obligations under the TIA Act.
23. Specifically, amendments to the TIA Act would:
- •
- specify the jurisdiction of each integrity agency and oversight body referred to in the TIA Act;
- •
- provide that the Inspector of the Independent Commission Against Corruption (SA) is an eligible authority under the TIA Act;
- •
- clarify the jurisdiction of each integrity agency and oversight body by repealing and replacing their definitions with their jurisdiction in the title;
- •
- expand the definition of 'permitted purpose' and/or 'prescribed investigation' under subsection 5(1) of the TIA Act to align with the definition within the oversight bodies' respective enabling legislation to accurately encompass their oversight functions;
- •
- expand the scope of purposes for which the integrity agencies and oversight bodies are able to share interception information and interception warrant information under section 68 of the TIA Act to include sharing for the purposes of their oversight functions; and
- •
- make other minor technical and consequential amendments
Schedule 6 - Unauthorised disclosure of information by current and former commonwealth officers etc. - sunsetting extension
24. Schedule 6 will amend the Criminal Code Act 1995 (Criminal Code) to extend the sunsetting date of section 122.4 (Unauthorised disclosure of information by current or former Commonwealth officers) by 18 months to 29 June 2026.
25. Section 122.4 creates an offence where: a person communicates information; the person made or obtained the information by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity; the person is under a duty not to disclose the information; and the duty arises under a law of the Commonwealth.
26. Section 122.4 was intended to be time-limited, to continue to apply criminal liability until these duties could be reviewed to determine whether each should be converted into a stand-alone specific secrecy offence or whether criminal liability should be removed. A comprehensive review of Commonwealth secrecy provisions, including the non-disclosure duties, was undertaken as a part of the Commonwealth Review of Secrecy Provisions (the Secrecy Review).
27. On 21 November 2023, the Government released the Final Report - Review of Secrecy Provisions, which made 11 recommendations to improve the operation of the Commonwealth's secrecy provisions, including section 122.4. The Final Report of the Secrecy Review identified that section 122.4 applied criminal liability to approximately 295 non-disclosure duties.
28. Subsequently, the Independent National Security Legislation Monitor's report Secrecy Offences - Review of Part 5.6 of the Criminal Code Act 1995 (the INSLM Review) was tabled in Parliament on 27 June 2024. The report also made 15 recommendations in relation to Commonwealth secrecy provisions, principally Part 5.6 (Secrecy) of the Criminal Code.
29. These amendments extend the sunsetting date of section 122.4 so that any reforms to Part 5.6 of the Criminal Code (including section 122.4) can collectively consider the recommendations of both the Secrecy Review and the INSLM Review.
Schedule 7 - Meaning of hors de combat
30. These amendments will also add a new Schedule 7 to the Bill, which will retrospectively amend the definition of hors de combat in the Dictionary of the Criminal Code to correct an anomaly in the current drafting and confirm consistency between Australian domestic law and international law, in line with Parliament's intention when Division 268 and the definition of hors de combat were introduced in 2002.
31. International humanitarian law prohibits as a war crime violence to life and person (including murder of all kinds, mutilation, torture and cruel treatment), taking of hostages, outrages upon personal dignity, and the sentencing or execution without due process of persons who are hors de combat ('out of the fight').
32. The definition of hors de combat in Article 41 of Additional Protocol I of the Geneva Conventions provides:
A person is 'hors de combat' if:
- (a)
- he is in the power of an adverse party;
- (b)
- he clearly expresses an intention to surrender; or
- (c)
- he has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and therefore is incapable of defending himself;
provided that in any of these cases he abstains from any hostile act and does not attempt to escape [emphasis added].
33. By contrast, the definition in the Dictionary to the Criminal Code provides:
hors de combat : a person is hors de combat if:
- (a)
- the person is in the power of an adverse party; and
- (b)
- the person:
- (i)
- clearly expresses an intention to surrender; or
- (ii)
- has been rendered unconscious or is otherwise incapacitated by wounds or sickness and is therefore incapable of defending himself or herself; and
- (c)
- the person abstains from any hostile act and does not attempt to escape [emphasis added].
34. The use of 'and' instead of 'or' after paragraph (a) in the Criminal Code definition is a drafting error that, if construed literally, could lead to illogical outcomes contrary to international law and Parliament's express intent when introducing these provisions in 2002. This amendment does not change the substance of the law.
35. The purpose of Division 268 is to give effect to Australia's obligations as a party to the Rome Statute of the International Criminal Court (the Rome Statute) by expressly codifying, in the Criminal Code, offences of genocide, crimes against humanity and war crimes, etc. equivalent to those punishable by the International Criminal Court (ICC). In doing so, it was Parliament's express intention that the jurisdiction of the ICC would be complementary to the jurisdiction of Australia, as stated in section 268.1 of the Criminal Code. In this way, Australia retains the right and power to prosecute any person accused of a crime under the Rome Statute in Australia rather than surrender that person for trial in the ICC.
36. In the Second Reading Speech for the International Criminal Court (Consequential Amendments) Act 2002 (ICC Consequential Amendments Act), which introduced Division 268 into the Criminal Code, the then Attorney-General, the Hon Daryl Williams KC AM MP stated that:
The main purpose of the International Criminal Court (Consequential Amendments) Bill 2002 is to create, as offences against the criminal law of Australia, each of the offences over which the International Criminal Court has jurisdiction - genocide, crimes against humanity and war crimes.
[It] is important that Australia enact laws specifically covering all of the crimes in the International Criminal Court statute so that we can take full advantage of the principle and protection of complementarity.
By enacting these crimes, Australia can be sure that we will be able to investigate and prosecute under Australian law persons accused of crimes within the jurisdiction of the International Criminal Court.
These offences apply regardless of whether the conduct occurred in Australia or not, and regardless of whether the person is an Australian citizen or not. In this way, Australia can never become a safe haven for the perpetrators of the most serious international crimes.
While these crimes cover the same acts as the International Criminal Court statute, they are part of Australia's criminal law and they have been defined according to the same principles, and with the same precision, as other Commonwealth criminal laws. [1]
37. This intent is reiterated in the Explanatory Memorandum to the ICC Consequential Amendments Act, which states with respect to Division 268:
... it is Parliament's intent that the jurisdiction of the ICC is complementary to the jurisdiction of Australia ... By creating crimes in Australian law that mirror the crimes in the [Rome] Statute, Australia will always be able to prosecute a person accused of a crime under the [Rome] Statute in Australia rather than surrender that person for trial in the ICC. [2]
38. Consistent with Parliament's intent, the Australian Defence Force provides substantive training and carries out activities on the basis of the international law definition of hors de combat. This amendment is consistent with the Australian Defence Force's doctrine, policy and training packages.
39. The provisions under Division 268 to which the definition of hors de combat applies and will be impacted by the proposed amendment are:
- •
- Killing or injuring a person who is hors de combat (section 268.40)
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- Using protected persons as shields (section 268.65)
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- Murder (section 268.70)
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- Mutilation (section 268.71)
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- Cruel treatment (section 268.72)
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- Torture (section 268.73)
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- Outrages upon personal dignity (section 268.74)
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- Taking hostages (section 268.75), and
- •
- Sentencing or execution without due process (section 268.76).
40. Australia takes accountability for war crimes seriously. Investigating and prosecuting conduct of this kind is critical to upholding Australia's obligations as a State Party to the Rome Statute.
FINANCIAL IMPACT
41. Schedule 3 would increase the revenue returned to the Consolidated Revenue Fund for pecuniary penalties imposed for the commission of Commonwealth criminal offences.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
42. A Statement of Compatibility with Human Rights has been completed in relation to the Bill. It has been assessed that the amendments are compatible with Australia's human rights obligations. A copy of the Statement of Compatibility with Human Rights is at Attachment A .