Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Bill 2013

Bills Digest no. 143 2012–13

PDF version  [680KB]

WARNING: This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Cat Barker, Foreign Affairs, Defence and Security Section
Monica Biddington, Law and Bills Digest Section
17 June 2013

Contents
Purpose of the Bill
Background
Policy position of non-government parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human Rights
Key issues and provisions
Other provisions
Concluding comments

 

Date introduced: 29 May 2013
House: House of Representatives
Portfolio: Attorney-General

Commencement: Sections 1 to 3 commence on Royal Assent. Schedules 1, 2, 3 (Part 1), 4 (Part 1), 5 and 6 commence on the day after Royal Assent. Schedule 3 (Part 2) commences on the later of the day after Royal Assent and the start of the day Schedule 4 to the Maritime Powers (Consequential Amendments) Act 2013 commences. Schedule 4 (Part 2) commences on 12 March 2014.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill's home page, or through http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation. When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website at http://www.comlaw.gov.au/.

Due to time and resource constraints, a comprehensive Digest on all Schedules is not possible. The most significant amendments are contained in Schedules 2 and 3. More detail can be provided by making a specific request to the authors.

Purpose of the Bill

The purpose of the Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Bill 2013 (the Bill) is to:

  • amend the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML-CTF Act) and the Law Enforcement Integrity Commissioner Act 2006 regarding the disclosure of information by AUSTRAC employees to the Integrity Commissioner for the purposes of corruption investigations (Schedule 1)
  • amend Part IAD and IB of the Crimes Act 1914 (Crimes Act) and Chapter 8 of the Criminal Code to facilitate support and protection of victims and witnesses in Commonwealth criminal proceedings. This includes provision for the use of victim impact statements in the sentencing of federal offenders (Schedule 2)
  • amend the Crimes Act to remove references to wrist X-rays in relation to age determination procedures (Schedule 3)
  • amend the Migration Act 1958 (Migration Act) to:

–      provide that time spent in immigration detention must be taken into account in sentencing for people smuggling and related offences

–      clarify that the prosecution bears the burden of proof where the age of a person being prosecuted for a people smuggling offence is at issue and

–      enable evidentiary certificates to be used to establish prima facie evidence of certain matters in proceedings for people smuggling and related offences (Schedule 3)

  • amend the AML-CTF Act to clarify the privacy protections on AUSTRAC information that is disclosed and to add the Clean Energy Regulator and the Integrity Commission of Tasmania as designated agencies that are authorised to access AUSTRAC data (Schedule 4)
  • amend the International War Crimes Tribunals Act 1995 and the International Transfer of Prisoners Act 1997 to recognise the International Residual Mechanism for Criminal Tribunals (Schedule 5) and
  • make minor miscellaneous amendments to the Australian Federal Police Act 1979 and the Telecommunications Interception and Access) Act 1979 (Schedule 6 - not discussed in this Digest).

Background

Disclosure of information to the Integrity Commissioner for corruption investigations

The Australian Commission for Law Enforcement Integrity (ACLEI) seeks to prevent, detect and investigate serious corruption within prescribed Commonwealth law enforcement agencies. From
1 July 2013, the Australian Transaction Reports and Analysis Centre (AUSTRAC), will come under the jurisdiction of the ACLEI. The amendments in this Bill will consequently facilitate the access to AUSTRAC information by the Commission when a corruption investigation is underway. This expanded jurisdiction has also, by way of the Law Enforcement Integrity Legislation Amendment Act 2012, been further extended to CrimTrac and the Department of Agriculture, Fisheries and Forestry.[1]

Vulnerable witness protections and victim impact statements

The Crimes Act provides a range of protections for child witnesses in proceedings for particular offences, including child sex offences and people trafficking. However, those protections are not yet available to vulnerable adult witnesses, such as victims of slavery or trafficking, or to child witnesses in other Commonwealth proceedings. While state and territory provisions may be applied to Commonwealth proceedings under section 68 of the Judiciary Act 1903, there are differences in the protections available under those provisions.[2]

The proposed amendments will change the heading of Part IAD of the Crimes Act from ‘Protection of children in proceedings for sexual offences’ to ‘Protecting vulnerable persons’ (Schedule 2, item 1).[3] Amendments are then made to subsection 15Y(2) to insert special rules for adults complainants involved in slavery and trafficking offences. Vulnerable witness protections are then provided under section 15YAB through defining certain persons as a special witness and consequently affording them special circumstances regarding their cross-examination, use of video or other technology, excluding certain people from the courtroom et cetera; see proposed subsection 15YAB(3).

The amendments to Part IB of the Crimes Act proposed in this Bill will also allow for a verbal or signed written statement that can be presented to inform the court about the harm suffered by the victim as a result of the offence. These are called victim impact statements and assist the court at the time of sentencing. The statement may include details of injuries, loss or damage suffered by a victim as a direct result of the crime, including emotional and psychological harm; proposed sections 16AAA and 16AB.

The Government is implementing recommendations emerging from the report of the Anti-People Trafficking Inter Departmental Committee which reported in 2011.[4] Explicitly, the Government believes that:

… these protections will ensure that witnesses can present their best testimony in court, without intimidation, re-traumatisation, fear for their safety or undue public embarrassment. A scheme allowing the use of victim impact statements will benefit victims by providing catharsis, vindication and healing. It will also promote the rehabilitation of offenders by confronting them with the impact of their offending behaviour.[5]

People smuggling amendments

Age determination procedures

Provisions allowing for procedures to determine the age of a person alleged to have committed a Commonwealth offence were inserted into the Crimes Act by the Crimes Amendment (Age Determination) Act 2001.[6] Division 4A, Part IAA of the Crimes Act enables prescribed procedures, including X-rays, to be carried out to determine whether a person is, or was, at the time of the alleged offence, under the age of 18, where the person’s age is relevant to the rules governing the person’s detention, the investigation of the offence or the institution of criminal proceedings. Wrist X-rays were subsequently prescribed under the Crimes Regulations 1990 by the Crimes Amendment Regulations 2001 (No. 2), and since that time have remained the only prescribed procedure.[7]

Determining the age of a person suspected of a people smuggling offence is important because:

  • the Australian Government’s policy is to charge minors with people smuggling offences only in exceptional circumstances, such as where the person had significant involvement in a venture or involvement in multiple ventures[8]
  • an order under section 19B of the Crimes Act (which allows for discharge without conviction or dismissal of a charge despite it being proven) may only be made in relation to a charge for an aggravated people smuggling offence if it is established on the balance of probabilities that the person charged was aged under 18 years when the offence was alleged to have been committed[9]
  • the mandatory minimum penalties that otherwise apply for aggravated people smuggling offences do not apply if it is established on the balance of probabilities that the person was aged under 18 years when the offence was committed and[10]
  • individuals regarded as adults are generally detained in adult correctional facilities while awaiting trial and serving any resulting sentence.[11]

Some of the limitations of, and objections to, the use of wrist X-rays in assessing or determining a person’s age for criminal justice purposes were recognised by the Senate Standing Committee on Legal and Constitutional Affairs in its report on the Crimes Amendment (Age Determination) Bill 2001.[12] These issues have received considerably more attention in recent years as increasing numbers of Indonesian crew from ‘suspected irregular entry vessels’ (SIEVs), some of whom claim to be minors, have been investigated for people smuggling offences.

During 2011, the then President of the Australian Human Rights Commission (AHRC); the Australasian Paediatric Endocrine Group, the Royal Australasian College of Physicians, the Australian and New Zealand Society for Paediatric Radiology and the Royal Australian and New Zealand College of Radiologists (in a joint letter); and the Indonesian Government, all raised concerns with the Australian Government about the processes used to determine the age of Indonesian nationals facing people smuggling charges.[13] The AHRC subsequently initiated its own inquiry into ‘Australia’s treatment of individuals suspected of people smuggling or related offences who claim to have been under the age of 18 years at the date of the offences of which they are suspected’ on 21 November 2011.[14] Two days later, Greens Senator Sarah Hanson-Young introduced a private Senator’s Bill (the Crimes Amendment (Fairness for Minors) Bill 2011 (Fairness for Minors Bill)) that would remove wrist X-rays as a prescribed procedure, which remains before the Senate.[15]

The concerns surrounding the use of wrist X-rays to determine the age of individuals suspected of people smuggling are outlined in detail in the report of the AHRC on its inquiry and the report of the Senate Standing Committee on Legal and Constitutional Affairs on its 2012 inquiry into detention of Indonesian minors in Australia, as well as submissions to each of those inquiries.[16] Broadly, they are that:

  • the accuracy of wrist x-rays as an age assessment tool has been discredited;
  • variations in skeletal maturity based on environmental and ethnic factors lead to inaccurate conclusions of wrist x-rays;
  • the skeletal atlases used for most wrist x-ray age assessments are outdated and not suited to individuals of Indonesian ethnicity; and
  • the use of x-rays for non-medical purposes raises serious ethical concerns.[17]

The Australian Government has responded to the concerns raised by introducing ‘improved criminal justice measures’ in July 2011, under which the Australian Federal Police (AFP):

  • offer dental x‐rays to alleged people smuggling crew claiming to be minors, in addition to the existing process, commencing as soon as possible
  • take steps as early as possible to seek information from the individual’s country of origin, including birth certificates, where age is contested, and
  • use additional interview techniques to help determine age.[18]

In May 2012, it also tasked the Attorney-General’s Department (AGD) with reviewing the cases of 24 Indonesian nationals convicted of people smuggling and held in adult gaols whom the AHRC and the Indonesian Government were concerned may be minors.[19] The review ended up considering 28 cases, the final outcomes being that:

  • 15 crew were released early from prison on licence [and returned to Indonesia] as there was a doubt they may have been minors on arrival in Australia
  • two crew were released early on parole
  • three crew completed their non-parole periods
  • eight crew remain to serve their sentences, as there was no evidence supporting suggestions they were minors at the time of their arrival.[20]

Among the 17 recommendations in the report of its inquiry, the AHRC made the following recommendation:

Recommendation 3: No procedure which involves human imaging using radiation should be specified as a prescribed procedure for the purposes of s 3ZQA(2) of the Crimes Act 1914 (Cth), or remain a prescribed procedure for that purpose, without a justification of the procedure being undertaken in accordance with the requirements of paragraphs 3.18, 3.61–3.64 and 3.66 of the International Atomic Energy Agency Safety Standard: Radiation Protection and Safety of Radiation Sources: International Basic Safety Standards – Interim Edition (General Safety Requirements: Part 3) or any later edition of these requirements. Such justification should take into account contemporary understanding of the extent to which the procedure is informative of chronological age.[21]

Among the seven recommendations in its report on its inquiry into the detention of Indonesian minors in Australia, the Senate Standing Committee on Legal and Constitutional Affairs made the following recommendation:

Recommendation 1

5.10 Subject to the advice of the Office of the Chief Scientist regarding the utility of wrist x-rays as an age assessment tool, and noting evidence received by the committee raising significant doubts about this procedure, the committee recommends that the Australian Government consider removing wrist x-rays as a prescribed procedure for the determination of age under section 3ZQB [sic] of the Crimes Act 1914 and regulation 6C of the Crimes Regulations 1990.[22]

In its response to the latter report, the Australian Government acknowledged that the Chief Scientist had advised AGD that ‘wrist X-rays did not allow for precise estimation of chronological age; that results vary with ethnic and socio-economic conditions; and that there were ethical considerations’ and that a report by Professor Patty Solomon concluded that neither of the usual atlases or manuals used to interpret wrist X-rays contained enough scientific data for experts to draw sufficiently precise inferences about the chronological age of Indonesian males. It stated that AGD was considering options for legislative change to address those issues.[23]

Proposed amendments in Schedule 3 of the Bill that will remove references to X-rays from the relevant Crimes Act provisions represent the first step in implementing the above recommendations.

Other people smuggling amendments

Most of the other proposed amendments in Schedule 3 of the Bill also respond to recommendations made by the AHRC and the Senate Standing Committee on Legal and Constitutional Affairs.

The Senate Standing Committee on Legal and Constitutional Affairs recommended in its reports on the Fairness for Minors Bill and its inquiry into detention of Indonesian minors in Australia that:

… the Australian Government introduce legislation to expressly provide that, where a person raises the issue of age during criminal proceedings, the prosecution bears the burden of proof to establish that the person was an adult at the time of the relevant offence.[24]

Proposed amendments to the Migration Act in Schedule 3 will implement this recommendation for proceedings for people smuggling and related offences.

The AHRC and the Senate Standing Committee on Legal and Constitutional Affairs have also expressed concern at the time it can take to bring charges and commence proceedings against foreign nationals for people smuggling. The AFP has outlined the challenges impacting on the time taken to bring charges on several occasions, including in February 2012:

Senator HANSON-YOUNG: I have a couple of quick questions in relation to boat crew. There seems to be a bit of lag time between when boats are intercepted and when those who are suspected of people smuggling—who have been held in various forms of detention—are charged. Would you explain to us why there is such a lag time?

Mr Colvin: I may be able to help you with that. Regarding witness statements from those on boat arrivals and passengers held in immigration facilities across Australia, we need to get statements from both Customs and Royal Australian Navy personnel to help form a brief of evidence and to help establish that investigation. Often those people are serving at sea for extended periods of time—

Senator HANSON-YOUNG: Serving at sea? Naval personnel?

Mr Colvin: Correct. When they come back from sea they are often dispersed on leave, which is understandable, so we go to great lengths to try to expedite the process of getting their statements and information. We also generally require the services of accredited interpreters. You would appreciate that many of these passengers who are crucial witnesses to us against the crew come from a variety of backgrounds for which accredited interpreters—the key is they are accredited by the court or accredited for court purposes—are not always readily available, so there is a time lag in the investigation before such point as we make a judgment to either commence a crew prosecution or not.[25]

The AFP has advised that for SIEV crew members who arrived in Australia between 1 December 2011 and 1 June 2012, the longest period of detention prior to charge was 145 days, the shortest was 84 days, and the average was 114.1 days.[26]

The Senate Standing Committee on Legal and Constitutional Affairs recommended in its majority report on the Fairness for Minors Bill that the Government review the AFP’s procedural and legislative requirements for dealing with persons suspected of people smuggling offences, ‘with a view to facilitating the prompt laying of charges where appropriate’.[27] The AHRC recommended enforcing a time limit between the apprehension of suspects who do not admit to being over the age of 18 years and the bringing of charges.[28]

Proposed amendments in Schedule 3 to enable evidentiary certificates to be used to establish prima facie evidence of certain matters in proceedings for people smuggling and related offences are intended to mitigate some of the delays faced under current arrangements that can prolong the pre‑charge detention of suspected people smuggling crew.[29] They are also intended to minimise the time that officers assigned to Border Protection Command spend away from their duties providing evidence to law enforcement agencies and appearing in court for people smuggling prosecutions.[30]

Anti-Money Laundering and Counter-Terrorism Financing Amendments

The amendments in the Bill to the AML-CTF legislative framework will repeal the current definition of reviewable decision in the AML-CTF Act (under section 5 – Definitions) and insert a new definition, by way of a table in proposed section 233B.[31] Other amendments will insert a new Part 17A into the Act to consolidate administrative review provisions.

The Definitions section in the AML-CTF Act lists designated agencies which have access to AUSTRAC information under Part 11 of the Act. Items 2 and 3 of the Bill will insert new paragraphs to add the Clean Energy Regulator (CER) and the Integrity Commission of Tasmania (the Commission) to the definition list of designated agency. The Explanatory Memorandum states that the CER’s access ‘to AUSTRAC data will assist it to prevent organised criminal groups from misusing the carbon trading scheme to launder illicit funds’ and further, ‘enabling the Commission to access AUSTRAC information will enhance [the] Commission’s investigative abilities, in line with those of similar agencies in other jurisdictions’.[32]

Assisting the International Residual Mechanism for Criminal Tribunals

The International War Crimes Tribunals Act 1995 enables the Commonwealth to provide assistance to the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) in the performance of their functions.[33] The International Transfer of Prisoners Act 1997 currently enables persons who have been convicted by the ICTY or the ICTR of a Tribunal offence to be transferred to Australia to serve their sentences.[34]

The ICTY and the ICTR were created in 1993 and 1994 respectively as ad hoc measures under Chapter VII[35] of the UN Charter, with tacit finite lifespans[36], to investigate and prosecute the international crimes of genocide, crimes against humanity and ‘war crimes’.[37] The limited lifespan of the ICTY and the ICTR gave rise to complex legal, technical, and political questions regarding the legal and practical obligations that continue as unfinished tasks after closure. These obligations are usually referred to as ‘residual issues’ or ‘residual functions’. Four central residual functions are: the trial of fugitives; the ongoing protection of victims and witnesses; the supervision of enforcement of sentences; and the preservation and protection of, and provision of controlled access to, tribunal archives. On 22 December 2010, the UN Security Council adopted Resolution 1966, establishing the legal basis for the establishment of the International Residual Mechanism for Criminal Tribunals (‘Mechanism’). This body takes over the functions of both the ICTY and the ICTR as they wind down most of their judicial activities[38] and will play an important role in ensuring that the completion strategies of the ad hoc tribunals do not result in impunity for fugitives and in unfairness to other stakeholders. The UN Security Council also clarified that ‘the international residual mechanism should be a small, temporary and efficient structure, whose functions and size will diminish over time, with a small number of staff commensurate with its reduced functions’.[39] While unable to issue new indictments,[40] the Mechanism will have the power to conduct review proceedings, supervise the enforcement of sentences and decide on pardon or commutation of sentences.[41]

As stated in the Explanatory Memorandum to the Bill:

‘The proposed amendments will ensure Australia can continue to provide the same level of assistance to the Mechanism as it completes the work of the ICTY and ICTR as we can currently provide to those two Tribunals.’[42]

Policy position of non-government parties/independents

The Greens welcomed the Government’s announcement that wrist X-rays will be removed as a prescribed procedure for age determination in a media release issued the day the Bill was introduced.[43]

Others have not made public statements at the time of publication of this Digest with specific reference to the amendments proposed in this Bill. Based on previous debates surrounding Law Enforcement Integrity and witness protections, the Bill is likely to be broadly supported by the Opposition.[44]

Position of major interest groups

The AHRC has welcomed the measures included in the Bill to remove wrist X-rays as a prescribed procedure for age determination and to clarify that the prosecution bears the burden of proof where the age of a person being prosecuted for a people smuggling offence is at issue.[45] The President of the AHRC stated:

The Commission hopes these changes will be passed into law as soon as possible … While they do not address the Commission’s inquiry recommendations in their entirety, they are a strong step in the right direction towards protecting the human rights of some very vulnerable young people in Australia.[46]

Financial implications

The Explanatory Memorandum notes that the new measures in Schedule 4 will be met within existing resources of AUSTRAC.[47]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act.[48] The Statement of Compatibility specifically addresses the impacts of the Bill in relation to:

  • protection against unlawful and arbitrary interference with privacy (Schedules 1 and 4)
  • the presumption of innocence (Schedules 1 and 4)
  • the right to a fair trial (Schedules 2, 3 and 5) and
  • the right of all persons deprived of their liberty to be treated with humanity and with respect for the inherent dignity of the human person (Schedules 3 and 5).

Note that while Schedule 5 engages these rights, it does not make alterations to the existing safeguards in the International Transfer of Prisoners Act 1997 and the International War Crimes Tribunal Act 1995. The Parliamentary Joint Committee on Human Rights is due to make a report on this Bill on 19 June 2013 and may have more detailed consideration of the human rights implications of this Bill.

The Government considers that the Bill is compatible because ‘it promotes a number of human rights and to the extent that it may also limit human rights, those limitations are reasonable, necessary and proportionate’.[49]

Key issues and provisions

Schedule 2: Vulnerable witness protection and victim impact statements

Part IAD of the Crimes Act is to be renamed ‘Protecting vulnerable persons’. Proposed subsection 15Y(2) will outline that the Part contains special rules for adult (aged 18 or over) complainants to proceedings for offences, and the intention to commit offences, against Divisions 270 and 271 of the Criminal Code (slavery and slavery-like conditions and trafficking in persons and debt bondage respectively). Vulnerable adult complainants are defined at proposed section 15YAA and protections can be ordered by the court if a person is declared a special witness under proposed section 15YAB. The court may make such a declaration if satisfied that the person is unlikely to be able to give evidence satisfactorily under normal arrangements, including because of a disability; or intimidation, distress or emotional trauma arising from age, cultural background or relationship to a party to the proceeding proposed subsection 15YAB(1).

Schedule 3: Deterring people smuggling

Age determination procedures

Division 4A, Part IAA of the Crimes Act provides a legislative framework for procedures to determine the age of a person alleged to have committed a Commonwealth offence. It enables a prescribed procedure to be carried out to determine whether a person is, or was, at the time of the alleged offence, under the age of 18, where the person’s age is relevant to the rules governing the person’s detention, the investigation of the offence or the institution of criminal proceedings. Section 3ZQA provides definitions for the purposes of Division 4A.

Item 1 of Schedule 3 to the Bill will amend the definition of age determination information in subsection 3ZQA(1) to remove the current reference to ‘a photograph (including an X-ray photograph)’ so that term will simply mean ‘a record, or information, relating to a person that is obtained by carrying out a prescribed procedure.’

Prescribed procedure is defined in subsection 3ZQA(1) as ‘a procedure specified by regulations made for the purposes of subsection (2) to be a prescribed procedure for determining a person’s age.’ Subsection 3ZQA(2) provides that the procedures prescribed in the regulations ‘may include the taking of an X-ray of a part of a person’s body’. Item 2 will amend subsection 3ZQA(2) to remove the specific reference to X-rays.

These proposed amendments will not affect the current listing of wrist X-rays as a prescribed procedure under the Crimes Regulations.[50] However, AGD has confirmed that it is progressing proposed amendments to the Crimes Regulations to remove wrist X-rays as a prescribed procedure for age determination.[51] While there is no legal reason the Crimes Regulations could not be amended before or at the same time as the Crimes Act, AGD stated that those amendments will not be put forward until the Bill has passed, so as to ensure consistency between the Act and the Regulations.[52]

The Explanatory Memorandum states that the intention of item 2 is to ‘remove the taking of X-rays of a person‘s body from the list of procedures that the Crimes Regulations may specify as a prescribed procedure for determining a person‘s age’.[53] However, while they will remove explicit reference to wrist X-rays from section 3ZQA of the Crimes Act, the proposed amendments will not prevent wrist X-rays from being re-listed in future, even if the current prescription is repealed. This is something that the Greens’ Fairness for Minors Bill, would achieve. In its majority report on the Fairness for Minors Bill, the Senate Standing Committee on Legal and Constitutional Affairs acknowledged the limitations of X-rays in assessing age, but did not endorse repealing the prescription of wrist X-rays.[54] However, as noted in the Background section above, it has since recommended repeal in a more recent report.

Amendments to the Migration Act

Section 16E of the Crimes Act ensures that the court must take account of any period a person has spent in custody ‘for the offence’ or ‘in relation to the offence’ when imposing a federal sentence or fixing a non-parole period for such a sentence.[55] There has been a degree of inconsistency in the application of this provision in relation to whether immigration or fisheries detention is taken into account at sentence.[56]

Item 4 will insert proposed section 236C into the Migration Act to provide that time spent in immigration detention must be taken into account when a court imposes a sentence or sets a non‑parole period for a person convicted of an offence against Subdivision A, Division 12, Part 2 of the Act (People smuggling and related offences). This will ensure a consistent approach to sentencing for those offences, but will not resolve the issue in relation to other offences where the same issue arises, such as illegal fishing. This discrepancy is not addressed in the Explanatory Memorandum, but the lengthy periods that the crew of SIEVs spend in immigration detention prior to conviction and the existence of mandatory minimum penalties for aggravated people smuggling offences are likely considerations.[57]

Under subsection 236B(2) of the Migration Act, the mandatory minimum penalties that otherwise apply for aggravated people smuggling offences do not apply ‘if it is established on the balance of probabilities that the person was aged under 18 years when the offence was committed’. Item 4 will implement a recommendation of the Senate Standing Committee on Legal and Constitutional affairs by inserting proposed section 236D, which makes it explicit that it is the prosecution that bears the burden of proof where a defendant’s age is at issue.[58] This is consistent with the current approach of the Commonwealth Director of Public Prosecutions.[59]

Item 4 will also insert proposed sections 236E and 236F into the Migration Act to enable evidentiary certificates to be used to establish prima facie evidence of certain matters in proceedings for offences against Subdivision A, Division 12, Part 2 of the Act (People smuggling and related offences). This will mean that the prosecution will not be required to further prove those matters unless the contents of the certificate are challenged by the defendant. The Explanatory Memorandum states that the purpose of these provisions is to reduce delays in people smuggling investigations and alleviate pressure on Border Protection Command resulting from many officers being required to give evidence in prosecutions.[60]

Proposed subsection 236E(1) will limit the persons who may issue an evidentiary certificate to certain officers involved in the chase of a ship or boarding of a ship or aircraft. Subsection 236E(3) will provide an exhaustive list of matters the certificate may specify, including the location of an aircraft or ship when it was boarded and the numbers of passengers and crew on board. The Minister may prescribe additional matters by legislative instrument under proposed subsection 236E(5). Proposed subsection 236E(4) will provide that a certificate is not required to be taken as prima facie evidence that a person is the master, owner, agent or charterer of the ship or aircraft. This is an important restriction on the use of evidentiary certificates in such proceedings, as some of the relevant offences apply only to persons holding those positions.

Proposed section 236F sets out procedural matters in relation to evidentiary certificates issued under proposed section 236E, including timeframes for giving a copy of the certificate to the defendant or their lawyer, and for the person who signed the certificate to be called as a witness.

Schedule 4: Anti-Money Laundering and Counter-Terrorism Financing amendments

The new definition of reviewable decisions will include decisions made under subsection 75B(6) or section 75C of the AML-CTF Act to refuse to register a person as:

(a)    a remittance network provider

(b)   an independent remittance dealer, or

(c)    a remittance affiliate of a registered remittance network provider.

As the Explanatory Memorandum states, reviewable decisions by the AUSTRAC CEO will also include a decision made under section 75E to impose conditions to which a person’s registration is subject and a decision made under section 75G to cancel a person’s registration.[61]

Reviewable decisions will also include a decision under subsection 161(2) to require certain things of a reporting entity, a decision under subparagraph 161(2)(d)(ii) not to allow a longer period for provision of an audit report, and a decision under subsection 191(2) to give a reporting entity a direction. These are tabulated in the proposed section 233B.

Section 123 of the AML-CTF Act is an offence provision about communicating information about suspicious matters to anyone other than an AUSTRAC employee. Subsection 123(7A) lists an exception to this tipping off offence for specific disclosures. Proposed subsection 123(7B) will ensure that information that has been disclosed to a person under the permitted exception in subsection 123(7A) is not permitted to be disclosed to another person. A consequential offence provision is created under proposed paragraph 123(11)(a) for a person who is subject to a requirement not to disclose AUSTRAC information who engages in conduct in breach of that requirement.

A new offence provision is proposed in paragraphs 136(1)(c) and 137 (1)(c). The existing offence provision will be repealed and the new provision will extend the offences to persons who provide false or misleading information or documents to a reporting entity in purported compliance with the AML-CTF Rules and the AML-CTF Regulations. These persons will also be committing an offence under the AML-CTF Act, carrying a maximum penalty of imprisonment for ten years or 10,000penalty units or both.

Amendments will be made to section 130 of the Act to ensure that any person who receives information disclosed in accordance with that section is compliant with the Information Privacy Principles set out in section 14 of the Privacy Act 1988 in respect of AUSTRAC information obtained under paragraph 130(3)(a).

Other provisions

Part 2 of Schedule 3 to the Bill will amend proposed section 236E of the Migration Act, inserted by item 4 of that Schedule, upon the commencement of Schedule 4 to the Maritime Powers (Consequential Amendments) Act 2013. These amendments are intended to ensure consistent language between the two Acts and will not affect the substance of the provisions.[62]

Concluding comments

The proposed amendments to remove references to X-rays from Crimes Act provisions concerning age determination represent the first steps toward implementing Senate Committee and AHRC recommendations and respond to the long running controversy over use of the procedure in people smuggling cases. However, to have any practical effect, they will need to be followed by amendments to the Crimes Regulations. The proposed amendments to people smuggling provisions in the Migration Act similarly respond to inquiry recommendations and should improve procedural fairness and expedite investigations in relation to people smuggling offences.

Other amendments made to increase the availability of vulnerable witness protection and the uses of victim impact statements are significant in their potential effect. Amendments relating to the review of decisions under the AML/CTF regime and expanding definitions to continue to improve the Act’s scope of operation are also noteworthy in this Bill.

Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2500.



[1].     See the Law Enforcement Integrity Legislation Amendment Act 2012, accessed 14 June 2013.

[2].     See C Barker and M Biddington, Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Bill 2012, Bills Digest, 14, 2012–13, Parliamentary Library, Canberra, 2012, accessed 7 June 2013. See also: Australian Law Reform Commission (ALRC), Same crime same time: sentencing for federal offenders, ALRC report 103, AustLII website, p. 391–401 and Australian Government, Trafficking in persons: the Australian government response, The third report of the Anti-people Trafficking Interdepartmental Committee, 1 July 2010– 30 June 2011, p. 6, accessed 14 June 2013.

[3].     Crimes Act 1914 (Cth), accessed 15 June 2013.

[4].     Australian Government, Trafficking in persons: the Australian government response, op. cit.  

[5].     M Dreyfus (Attorney General), ‘Second reading speech: Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Bill 2013’, House of Representatives, Debates, 29 May 2013, p. 9, accessed 14 June 2013.

[6].     Crimes Amendment (Age Determination) Act 2001, accessed 14 June 2013.

[7].     Crimes Amendment Regulations 2001 (No. 2), accessed 14 June 2013.

[8].     Australian Human Rights Commission (AHRC), An age of uncertainty: inquiry into the treatment of individuals suspected of people smuggling offences who say that they are children, AHRC, July 2012, p. 28, accessed 4 June 2013.

[9].     Section 236A of the Migration Act 1958, accessed 14 June 2013.

[10].   Section 236B of the Migration Act.

[11].   AHRC, An age of uncertainty, op. cit., p. 28.

[12].   Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Crimes Amendment (Age Determination) Bill 2001, The Senate, Canberra, March 2001, pp. 9–30, accessed 4 June 2013,

[13].   AHRC, An age of uncertainty, op. cit, pp. 127–30; Australasian Paediatric Endocrine Group, the Royal Australasian College of Physicians, the Australian and New Zealand Society for Paediatric Radiology and the Royal Australian and New Zealand College of Radiologists, ‘Assessment of age of refugees and those persons accused of providing refugees with illegal access to Australia: the unethical use of ionizing radiation (X-rays) and / or genital examination’, letter, 19 August 2011, accessed 4 June 2013; L Sales, ‘Interview with Indonesia’s foreign Minister’, The 7.30 Report, transcript, Australian Broadcasting Corporation (ABC), 21 November 2011, accessed 4 June 2013.

[14].   Australian Human Rights Commission, Commission announces inquiry into the treatment of suspected people smugglers who say that they are children, media release, 21 November 2011, accessed 6 June 2013.

[15].   This Bill and associated information is available on the Bill homepage: Crimes Amendment (Fairness for Minors) Bill 2011, accessed 14 June 2013.

[16].   AHRC, An age of uncertainty, op. cit.; Senate Standing Committee on Legal and Constitutional Affairs, Detention of Indonesian minors in Australia, The Senate, Canberra, October 2012, accessed 3 June 2013. See also J Phillips, ‘Determining the ages of people smugglers’, FlagPost weblog, 21 November 2011, accessed 4 June 2013.

[17].   Senate Standing Committee on Legal and Constitutional Affairs, Detention of Indonesian minors in Australia, op. cit., p. 36.

[18].   R McClelland (Attorney-General), Improved process for age determination in people smuggling matters, media release, 8 July 2011, accessed 3 June 2013. See also B O’Connor (Minister for Home Affairs and Justice) Cooperation with Indonesia on people smuggling, human trafficking and age determination, media release, 6 December 2011, accessed 3 June 2013.

[19].   N Roxon (Attorney-General), Review of convicted people smuggling crew queried to be minors, media release, 2 May 2012, accessed 4 June 2013.

[20].   N Roxon (Attorney-General), People smuggling convictions review completed, media release, 29 June 2012, accessed 4 June 2013.

[21].   AHRC, An age of uncertainty, op. cit., p. 335.

[22].   Senate Standing Committee on Legal and Constitutional Affairs, Detention of Indonesian minors in Australia, op. cit., p. 60.

[24].   Senate Standing Committee on Legal and Constitutional Affairs, Crimes Amendment (Fairness for Minors) Bill 2011, The Senate, Canberra, April 2012, recommendation 2, p. 30, accessed 3 June 2013; Senate Standing Committee on Legal and Constitutional Affairs, Detention of Indonesian minors in Australia, op. cit., recommendation 6, p. 63

[25].   A Colvin (Deputy Commissioner, Operations), Senate Standing Committee on Legal and Constitutional Affairs, Official committee Hansard, 14 February 2012, p. 80, accessed 4 June 2013.

[26].   Senate Standing Committee on Legal and Constitutional Affairs, Answers to Questions on Notice, Attorney-General’s Portfolio, Budget Estimates 2012–13, 23–24 May 2012, Question 48, accessed 4 June 2013.

[27].   Senate Standing Committee on Legal and Constitutional Affairs, Crimes Amendment (Fairness for Minors) Bill 2011, op. cit., p. 30.

[28].   AHRC, An age of uncertainty, op. cit., p. 336.

[30].   Ibid., p. 63.

[32].   Explanatory Memorandum, Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Bill 2013, op. cit., p. 67.

[33].   International War Crimes Tribunals Act 1995, accessed 15 June 2013.

[34].   International Transfer of Prisoners Act 1997, accessed 15 June 2013.

[35].     Chapter VII of the United Nations Charter sets out the UN Security Council's powers to maintain peace. It allows the Council to ‘determine the existence of any threat to the peace, breach of the peace, or act of aggression’ and to take military and nonmilitary action to ‘restore international peace and security’.

[36].     1 SC Res. 808 (1993); SC Res. 827 (1993), preamble, § 11(2); SC Res. 955 (1994), preamble, § 11(1).

[37].     A war crime is a serious violation of the laws applicable in armed conflict (also known as international humanitarian law). Examples of war crimes include murder, the ill-treatment or deportation of civilian residents of an occupied territory to slave labour camps. The ICTY and ICTR Statutes do not refer to a category of atrocity crimes called ‘war crimes’ as such.

[38].     The ICTR branch of the Residual Mechanism began its functions on 1 July, while the branch for ICTY will start on 1 July 2013.

[39].    Security Council resolution 1966 (2010), adopted on 22 December 2010 by a vote of 14 to none, with 1 abstention (Russian Federation).

[40].    Trials of contempt cases and of false testimony are the only cases where new indictments may be issued by the Mechanism, Statute of the international residual mechanism for criminal tribunals, art. 1(4), accessed 15 June 2013.

[41].     Security Council resolution 1966 (2010), op. cit.

[42].     Explanatory Memorandum, Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Bill 2013, op. cit., p. 6.

[43].   Australian Greens, Wrist X-rays that led to children in adult prisons a thing of the past, media release, 29 May 2013, accessed 29 May 2013.

[44].   See recommendation 8 for example, on the functions and powers of ACLEI: Parliamentary Joint Committee on the Australian Commission for Law Enforcement Integrity, Inquiry into the operation of the Law Enforcement Integrity Commissioner Act 2006, Interim report, February 2010, accessed 11 June 2013.

[45].   AHRC, Commission recommendations about wrist X-rays embraced, media release, 30 May 2013, accessed 5 June 2013.

[46].   Ibid.

[47].   Explanatory Memorandum, Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Bill 2013, op. cit., p. 6.

[48].   The Statement of Compatibility with Human Rights can be found at page nine of the Explanatory Memorandum to the Bill.

[49].   Explanatory Memorandum, Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Bill 2013, op. cit., p. 22.

[50].   Repealing wrist X-rays as a prescribed procedure will require amendment of the Crimes Regulations, as recognised on page 60 of the Explanatory Memorandum.

[51].   AGD, email, 4 June 2013.

[52].   Ibid.

[53].   Explanatory Memorandum, Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Bill 2013, op. cit., p. 60.

[54].   Senate Standing Committee on Legal and Constitutional Affairs, Crimes Amendment (Fairness for Minors) Bill 2011, op. cit., pp. 28–31.

[55].   This may be done through reliance on relevant state and territory laws where they exist (under subsection 16E(2)), or otherwise under subsection 16E(3).

[56].   See for example CDPP v Sadiri & Mancora [2012] VCC 1546 (3 October 2012), R v Ambo [2011] NSWDC 182 (25 November 2011), Yusup v The Queen [2005] NTCCA 19 (22 December 2005) and R v Al-Hashimy (Unreported, District Court of Western Australia, Jenkins DCJ, 1 April 2003).

[57].   Mandatory minimum penalties apply to three aggravated offences under section 236B of the Migration Act. Lengthy periods spent in immigration detention are noted on page 61 of the Explanatory Memorandum and discussed in the ‘Background’ section of this Digest.

[58].   As noted in the Background section, the Committee made this recommendation in two separate reports.

[59].   Senate Standing Committee on Legal and Constitutional Affairs, Detention of Indonesian minors in Australia, op. cit., p. 63.

[60].   Explanatory Memorandum, Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Bill 2013, op. cit., pp. 4, 15, 62–63.

[61].   Explanatory Memorandum, Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Bill 2013, op. cit., p. 67.

[62].   Explanatory Memorandum, Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Bill 2013, op. cit., p. 65

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