Senate

Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Honourable Philip Ruddock MP)

Schedule 1 - Amendment of other legislation and transitional provisions

Australian Federal Police Act 1979

1. Division 2 of Part II

This item repeals part II of Division 2 of the AFP Act.

2. Transitional and saving provision

This provision establishes the relationship between the SD Bill and the old law under the AFP Act. It sets out the application of the SD Bill to matters that arose before the alteration to the AFP Act. For example, paragraph (a) provides deals with the validity of warrants issued under Division 2 of the AFP Act that are in force before the repeal. Following the repeal, such warrants are to remain in force according to their terms as if the Division had not been repealed.

Paragraphs (b), (c) and (d) set out to what extent nominations and consents under Division 2 of the AFP Act are to have effect under the Bill. Specifically, paragraph (b) provides that any consent given by a Judge of a court created by the Parliament to be nominated under subsection 12D(2) of the AFP Act which is in force prior to the repeal of Division 2, is to be treated from the day of repeal as if it was a consent under subclause 12(3) of the SD Bill.

Similarly, paragraph (c) provides that any nomination by the Minister of a Judge of a court created by the Parliament under section 12G of the AFP Act which is in force prior to the repeal of Division 2, is to be treated from the day of repeal as if it was a nomination under clause 12 of the SD Bill.

Paragraph (d) provides that any nomination by the Minister of a person holding an appointment referred to in subsection 12DA(1) of the AFP Act which is in force prior to the day of repeal, is to be taken as if it were a nomination of that person for the purposes of clause 13 of the SD Bill.

3. Operation of Division 2 of Part II of the Australian Federal Police act 1979 preserved or limited purposes

This item provides that, despite the repeal of Division 2, that Division is to be treated as continuing in its application to the use of LDs for offences against the law of the ACT. Paragraph (b) provides that, despite the repeal, definitions of various terms in Division 2 are to be taken as if they were limited to offences against the law of the ACT.

Paragraph (c) provides that, despite the repeal and for the purposes of the continued operation of section 12L of the AFP Act, sections 219F to 219K of the Customs Act are to be treated as having not been repealed. In addition, reference to section 12L of the AFP Act to general, class 1 general or class 2 general offences are to be construed as if they were limited to offences against ACT law.

Criminal Code Act 1995

4. Paragraph 476.2(4)(b) of the Schedule

This item provides that paragraph 476.2(4)(b) in the Schedule to the Criminal Code Act is to be repealed and replaced with the paragraph appearing in the Schedule of the SD Bill. This paragraph has the effect of including in the Code, reference to emergency and TD authorisations that had not previously been dealt with by the Code. In this way, access to data held in a computer, the modification of such data, the impairment of electronic communication to or from a computer, or the impairment of the reliability, security or operation of any data held on a computer disk, credit card or other device used to store data by electronic can be authorised by a warrant, emergency or TD authorisation.

This provision provides an immunity from the Computer Offences in Part 10.7 of the Code for Commonwealth or State law enforcement officers acting under a Commonwealth warrant, emergency authorisation (or State equivalent thereof) or a tracking device authorisation.

Customs Act 1901

5. Division 1A of Part XII

This Item repeals this Division.

6. Transitional and saving provision

In the same way as Item 2 does for the AFP Act, item 6 establishes the relationship between the new provisions relating to warrants, consent by Judges and nominations by the Minister under the SD Bill to the provisions which dealt with these matters under Division 1A of Part XII of the Customs Act.

Warrants issued under the Division are to remain in force according to their terms after the repeal as if the Division had not been repealed.

Consents by Judges and nominations by the Minister under the Customs Act are to be treated as if they were consents and nominations under the SD Bill in relation to eligible Judges or nominated AAT members.

Mutual Assistance in Criminal Matters Act 1987

7. 13A Requests by foreign countries for provision of material lawfully obtained

Foreign countries often request material that is in the lawful possession of law enforcement agencies, such as material obtained by consent or search warrant. Such material also includes protected information under clause 34 of the SD Bill. Clause 13A of the Mutual Assistance in Criminal Matters Act 1987 (MA Act) streamlines the process for providing material in the lawful possession of law enforcement agencies to foreign countries without limiting alternative processes that may be available under the MA Act or otherwise.

Clause 13A provides an additional means of providing material to foreign countries under the MA Act. Clause 13A allows the Attorney-General to authorise material that is in the lawful possession of law enforcement agencies, other than telephone intercept material, being provided to foreign countries for foreign investigations and prosecutions. This avoids the need to apply to a court to provide to foreign countries material that has already lawfully been obtained by law enforcement agencies. The Attorney-General's authorisation under clause 13A may include a direction by the Attorney-General about how the material is to be dealt with by the law enforcement agency when providing it to a foreign country. The authorisation is not a legislative instrument for the purposes of the Legislative Instruments Act 2003.

Material gathered under a telecommunications interception warrant is not included in this provision.

Australian law enforcement agencies can provide material to foreign countries on a police-to-police basis in certain circumstances. Clause 13A is not intended to limit the ability of law enforcement agencies to provide material on the basis of police-to-police assistance.