BILLS DIGEST NO. 122, 2011–12, 9 March 2012

Crimes Legislation Amendment (Powers and Offences) Bill 2011

Mary Anne Neilsen and Monica Biddington
Law and Bills Digest Section

Date introduced:  23 November 2011

House:  House of Representatives

Portfolio:  Justice

Commencement:  Several different dates as set out in clause 3.

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/bills/. 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/.

Purpose

The Crimes Legislation Amendment (Powers and Offences) Bill 2011 (the Bill) amends a range of law enforcement legislation. The Bill consists of eight discrete Schedules, each with a different purpose:

•       Schedule 1 implements recommendations from the DNA Forensic Procedures: Further Independent Review of Part 1D of the Crimes Act 1914 (Crimes Act) Review (the DNA Review) governing the collection and use of DNA forensic material in Part 1D of the Crimes Act.

•       Schedule 2 amends the Australian Crime Commission Act 2002 (ACC Act) in relation to ways in which the Australian Crime Commission (ACC) can share and disclose information and material in its possession to combat serious and organised crime.

•       Schedule 3 also makes amendments to the ACC Act that introduces new rules about the use, sharing and retention of things seized under the ACC Act.

•       Schedule 4 amends the Law Enforcement Integrity Commissioner Act 2006 (LEIC Act) regarding the ability of the Australian Commission for Law Enforcement Integrity (ACLEI) to investigate corruption.

•       Schedule 5 includes amendments to Part 9.1 of the Criminal Code Act 1995 (Criminal Code) relating to illicit substances and quantities that are temporarily prescribed in the Criminal Code Regulations 2002 so that they will remain subject to Commonwealth serious drug offences in the longer term.

•       Schedule 6 amends the Proceeds of Crime Act 2002 and the Director of Public Prosecutions Act 1983 to allow a court to restrict publication of certain matters to prevent prejudice to the administration of justice and enable Australian Federal Police employees and secondees to become ‘authorised officers’.

•       Schedule 7 amends Part 1B of the Crimes Act to ensure that all parole decisions are able to be made at the Attorney-General’s discretion. The amendments implement some of the recommendations arising out of the Australian Law Reform Commissions 2006 Report: Same Crime, Same Time: Sentencing of Federal Offenders.

•       Schedule 8 amends section 15A of the Crimes Act to enable State and Territory fine enforcement agencies to take non-judicial enforcement action to enforce Commonwealth fines without first obtaining a court order.

Background

At the time of publication, this Bill has passed the House of Representatives, with a couple of Government amendments. It was debated in the Federation Chamber on 1 March 2012.

As the Bill consists of eight discrete schedules, relevant background and comments are set out under the relevant schedule heading below.

Committee consideration

On 24 November 2011, the Bill was referred to the House of Representatives Social Policy and Legal Affairs Committee for inquiry and report (the HR Committee inquiry). Details of the inquiry are at:

http://aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=spla/bill%20crime%20legislation/index.htm

The HR Committee inquiry Report[1] was tabled on 29 February 2012. It recommended that Schedules 1, 3, 4, 5 and 6 of the Bill be passed without amendment but recommended changes in relation to Schedules 2, 7 and 8. These recommendations are discussed in the relevant sections of the Digest.

The Senate Scrutiny of Bills Committee has also examined the Bill according to its terms of reference and has made several comments. These are referred to at relevant points through the Bills Digest.

Financial implications

The Explanatory Memorandum states that the amendments in the Bill will have little or no financial impact on Government revenue.[2]

Schedule 1—Forensic procedures

Schedule 1—Forensic procedures

Background

Part ID of the Crimes Act 1914 (Cth) (the Crimes Act) regulates forensic procedures undertaken in relation to the investigation of crimes, missing persons and unknown deceased persons, including identifying disaster victims. In 2003, Part 1D of the Crimes Act was reviewed by a Committee chaired by Mr Tom Sherman AO. The findings and recommendations of the 2003 review are set out in the Report of Independent Review of Part 1D of the Crimes Act 1914 – Forensic Procedures (the Sherman Report).

Subsection 23YV(5) of the Crimes Act 1914 requires that another independent review must be undertaken to ascertain whether previously identified inadequacies (identified in the Sherman Report) have been effectively dealt with.[3] Since the Sherman Review was completed, the major development has been the participation in the national DNA database by all Australian jurisdictions (April 2009).

The DNA Forensic Procedures: Further Independent Review of Part 1D of the Crimes Act 1914 Review (the DNA Review) commenced in 2009 and was presented to Parliament on 30 June 2010. Mr Peter Ford was the chairperson of this Review and this committee was comprised officials from the Commonwealth Director of Public Prosecutions, the Australian Privacy Commissioner, Crimtrac, Commonwealth Ombudsman and the Australian Federal Police.[4]

Schedule 1 of this Bill will implement many of the recommendations from the DNA Review. The Explanatory Memorandum noted:

the DNA Review identified the need to amend Part 1D to ensure the ongoing development of a principled and balanced regime for the carrying out of forensic procedures during the investigation of Commonwealth offences and for the use, storage and destruction of material derived from those procedures. [5]

The amendments are intended to reduce the complexity of the procedures prescribed in Part 1D; reduce inconsistencies between jurisdictions in forensic procedures for law enforcement purposes; amend provisions that facilitate the collection and exchange of forensic information between law enforcement agencies across jurisdictions; and impose accreditation requirements on laboratories dealing with DNA samples under the Crimes Act.[6]

Law relating to forensic procedures is complicated and fraught with tension between a person’s rights and the requirements to have an effective DNA testing (which includes samples, profiles and matching) system. This system needs to be sufficiently robust for law enforcement to be able to conduct tests promptly and rely on their results without hindrance and delays from court procedures. 

The use of DNA material is a significant concern to many people. The DNA Review noted that ‘people feel more concerned about the use of DNA material than they do about other forms of biometric identifying information, including fingerprints. There is undoubtedly a widespread view that the potential for misuse of DNA information than that for other biometrics’.[7]

Relating to this Schedule, the HR Committee inquiry into the Bill commented on:

the importance of safeguards to ensure privacy and protect individual rights. The Committee also notes that law enforcement agencies act in the public interest, and require tools to effectively and efficiently carry out their functions. In this instance, the Committee considers that an appropriate balance between these two objectives has been achieved.

In particular, the Committee supports the inclusion of greater opportunities for children and incapable persons to object to DNA testing, including being told that if they resists, the procedure will not take place. Similarly the Committee supports the increase in the availability of interpreters.[8]

The Committee concluded its consideration of this Schedule with a recommendation that it be passed by the House of Representatives.

Key provisions

Items 1-8 inserts or replaces definitions of the following terms:  ‘accredited laboratory’, ‘Commissioner’, ‘AFP appointee’, ‘informed consent’, ‘intimate forensic procedure’, ‘non-intimate forensic procedure’,  ‘senior police officer’. These amendments are necessary corrections and consequential to other items as well as implementing recommendations 6 (a), 11, 16 and 18 of the DNA Review.

Implementing recommendation 16 of the DNA Review, item 1 inserts a definition of ‘accredited laboratory’ in subsection 23WA(1). 

Item 4 implements recommendation 18 of the DNA, recommending that finer prick samples be included in the definition of ‘non intimate forensic procedure’.

Items 5 and 6 implement recommendation 11 of the DNA Review, in part. These items reclassify a sample taken by buccal (cheek) swab as a non-intimate forensic procedure. Item 6 adds to the definition of ‘non-intimate forensic procedure’, to include ‘taking of a sample of blood by a finger prick’ as well the ‘taking of a sample of saliva, or a sample by buccal swab’. Consequently, there is a change in the circumstances in which these samples can be taken.  Civil Liberties Australia has criticised these provisions on the grounds that

if sticking something inside someone’s body, for the purpose of removing fluids, is ‘non-intimate’, then what type of procedure is intimate? Whether the procedure is painful, or particularly uncomfortable, is irrelevant: it is an invasion upon the bodily integrity of a human being, and as such, should not be trivialised. An increase in the efficiency of the justice system is to be welcomed, but that increase should not come at the expense of the fundamental tenets and human rights to the system itself.[9]

However, the number of people who might resist the procedure on these grounds is likely to be small and the Government has considered that court supervision is not necessary in these circumstances.

Items 7, 8, 9 and 10 ensure that terminology and definitions are consistent with those used by the Australian Federal Police; ie ‘senior police officer’.   Items 7 and 8 will repeal the definition of ‘senior constable’ to be replaced by ‘senior police officer’. A ‘senior police officer’ is a constable of the rank of sergeant or higher (subsection 23WA(1)). There is no expansion of persons permitted to exercise specific procedures under this Part.  These changes align the Commonwealth with jurisdictions including Queensland, Western Australia, Tasmania, the Northern Territory and the Australian Capital Territory.

In its submission to the HR Committee, Civil Liberties Australia has strongly criticised these provisions as:

a dangerous step in further removing scrutiny from the [forensic testing] process. Essentially the Bill purports to devolve discretion from the courts to the ... investigating AFP officer.  Far from being a purely administrative measure, the role of the courts here is to weigh the evidence and determine whether compelling reasons exist to justify subjecting a suspect to this procedure.[10]

However, this criticism is not accurate as a discretion already exists with the investigating police officer.

Items 21 and 41

A magistrate may order a forensic procedure on a suspect and item 21 will make it explicit that the magistrate need not consider whether a request for consent from the suspect has been sought prior to an applicant seeking an order from the court for that procedure to be undertaken. Similarly item 41 allows this to happen in relation to offenders. These amendments clarify that it was not intended that consent be sought under section 23XWO order, relating to offenders. Remedying this inconsistency will allow the use of a non-intimate option.

Item 23 amends Table item 2 in section 23XM to ensure that the intimate forensic procedure of taking a sample of blood does not include the taking of a sample of blood via a prick to the finger. This will permit blood samples by finger prick to be taken by a medical practitioner, nurse, ‘constable’ or another appropriately qualified person. Similarly, item 24 repeals the reference to the taking of a sample of saliva and a buccal swab as intimate forensic procedures.

Item 25 will expand the classes of persons currently able to undertake the collection of DNA forensic samples. This expansion occurs because of the reclassification of non-intimate procedures. No medical expertise is required for these non-intimate forensic procedures. The class will now include ‘constables’, presumably ‘investigating constables’ as defined in subsection 23WA(1). The reference to ‘constable’ in these tables is unclear given that ‘investigating constable’ is the defined term and earlier items 7, 8, 9 amend the definitions section to refer to a ‘senior police officer’ (rank of sergeant or higher). 

To avoid contamination and security issues with forensic samples, items 28, 29, 31 and 32 modify the conditions under which a person nominated by the suspect can attend and be present during the testing of the suspect’s sample. An offence is created under item 32 in proposed subsection 23XUA(7) for circumstances where a suspect attending the testing fails to comply with those directions and conditions given by an analyst. The penalty for this offence is 30 penalty units.[11] This strict liability offence has been justified in the Explanatory Memorandum on the grounds that:

once forensic samples have been tampered with or contaminated, there is a real possibility the sample will not be able to be used in the investigation of the specific offence or in future prosecutions. This would undermine steps being taken to improve confidence in the DNA testing system and promote mechanisms for suspects or convicted persons to test their innocence.[12]

These items implement recommendations 13 and 14 of the DNA Review. The Review noted that these changes were important to maintaining confidence in the DNA testing system. These recommendations also suggested that access to samples, analysis and results should be provided to a person who has undergone a forensic test. Item 33 addresses this. Proposed section 23XW requires an investigating constable to provide copies of analysis within 14 days of a request from a suspect, at least 14 days since the analysis of the material.

Items 34-39 make similar changes as the changes proposed in items 4-6 but apply to certain forensic procedures after the conviction of serious and prescribed offenders (Division 6A of Part 1D). The taking of a sample of blood (other than by a finger prick) is an intimate forensic procedure in relation to offenders.  Item 35 amends subsection 23XWB(2) to provide that the taking of a sample of saliva and a buccal swab are non-intimate forensic procedures for offenders.

Item 36 inserts subparagraph 23XWC(1)(c) to allow a judge or magistrate to authorise a non-intimate forensic procedure, such as a hair sample or buccal swab.[13] The Explanatory Memorandum justifies this amendment on the grounds that it ‘allows a wider variety of collection methods to be considered when an application is made for an order to take a DNA sample from an offender’[14].

Item 39 clarifies that in subdivision F of Division 6, a reference to ‘investigating constable’ is taken to be a reference to the ‘AFP Commissioner’. This will allow offenders to apply for access to material and samples from authorised forensic procedures. An application could be made to the AFP Commissioner.

Item 41 will insert proposed section 23XWNA to allow a judge or magistrate to order, under existing section 23XWO, a forensic procedure of an offender, whether or not consent has been sought. In those circumstances, item 42 will allow that to be an order for either an intimate or non-intimate forensic procedure. 

Item 44 creates a similar set of procedures to sections 23WV, 23WW and 23XD (governing custody for suspects in specified circumstances) for the custody of an offender during a court’s consideration of a forensic procedure order. The judge or magistrate may issue a warrant if satisfied it is necessary to ensure the appearance of the offender at the hearing, or that it is otherwise justified (proposed subsection 23XWOB(3)).[15]

Item 49 inserts proposed subparagraph 23XWQ(2)(b)(ia) requiring the constable performing a forensic procedure on a child or incapable person to inform that person that if they object or resist the procedure, it will not be carried out.[16] This item has been inserted in response to a submission to the DNA Review that children and incapable persons need to have greater control over decisions in forensic procedures.[17] A child or other incapable person will have the opportunity to resist to the procedure at the time it is being conducted or object to it at the time that the consent of their parent or guardian is sought.

Item 51 explicitly creates, under Division 8A, a presumption that all volunteer profiles are for limited purposes and that all volunteers are to be informed of this presumption. This is implementing recommendation 7 of the DNA Review and may have the consequence of more volunteers offering their assistance in investigations. This does not exclude a volunteer from being on another National Criminal Investigation DNA Database (NCIDD) index. Explicitly,

Placement of a DNA profile on the limited purpose volunteer index creates strict restrictions on how the profile is used and when it is destroyed. For example, subsection 23XWR(2) requires that this information can only be used for the specific limited purpose for which it was taken, and allow the volunteer to make a request that the sample and related profile be destroyed at any time.[18]

Provisions in this Bill will expand the content that is held on the National Criminal Investigation DNA Database (NCIDD) which is established under Part 1D.  The Australian Federal Police will be able to respond to an inquiry from a foreign law enforcement agency. The amendments will allow a foreign profile to be entered on the NCIDD to facilitate matching with profiles from Australian jurisdictions. This will implement Recommendation 5(a) from the DNA Review. The existing legislation requires clarification so as to allow DNA profiles obtained by foreign law enforcement agencies to be uploaded onto NCIDD indices. Therefore, item 54 will amend the definition of ‘Commonwealth DNA database system’ to ensure that in relation to a crime scene index, the database can contain material taken or obtained by a foreign law enforcement agency.

Further, item 55 will amend section 23YDAC to allow a foreign DNA profile, when put onto a NCIDD index, to become a part of that index.  This ensures that there is clear statutory support for the placement of foreign DNA profiles that have been provided to the AFP for the purposes of mutual assistances requests onto the Commonwealth DNA database system.

Items 60-65 implement recommendation 8(d) of the DNA Review, which recommended that interpretation facilities be available to suspects, offenders and volunteers in the same way. To receive an interpreter, a constable must believe on reasonable grounds that the person has an inadequate knowledge of the English language, or physical disability that prevents oral (English) communication.

Items in Schedule 1 that have not been considered explicitly in this Digest are administrative and technical in nature.

Comment

Provisions in this Bill will expand the content that is held on the National Criminal Investigation DNA Database (NCIDD) which is established under Part 1D.  The Australian Federal Police will be able to respond to an inquiry from a foreign law enforcement agency. The amendments will allow a foreign profile to be entered on the NCIDD to facilitate matching with profiles from Australian jurisdictions. This will implement Recommendation 5(a) from the DNA Review.

The DNA Review provides an exceptionally thorough resource on DNA forensic procedures. The provisions in this Schedule have not attracted extensive commentary and were not a topic of debate in the Federation Chamber before the Bill was passed by the Lower House on 1 March 2012. With this in mind, it is worth noting Recommendation 32 of the DNA Review, advocating that the Commonwealth carry out another review of Part 1D after a further period of no longer than five years to examine whether further amendments are required in the light of developments in DNA technology and any other matters that may be considered appropriate. Alternatively, the recommendation continues, the Commonwealth might invite participating jurisdictions to participate in a joint review of the national scheme for DNA forensic procedures.

Schedule 2—Amendment relating to disclosure of ACC information

Background

The Australian Crime Commission

The Australian Crime Commission (ACC) was established in 2003 under the Australian Crime Commission Act 2002 as a successor to the National Crime Authority and is said to have been formed in response to identified weaknesses in the capacity of traditional policing to combat sophisticated organised crime effectively.[19] The ACC reports directly to the Minister for Justice and is part of the Attorney-General's portfolio.

In its 2005 review of the Act, the then Parliamentary Joint Committee on the ACC (PJCACC) observed that the ACC exists to provide investigations that operate across jurisdictional boundaries, is equipped with necessary specialist expertise and resources, and is able to focus exclusively on organised crime rather than street crime/volume crime.[20]

The ACC is able to undertake intelligence operations and investigations authorised by the ACC Board (the Board). The Board may also determine that such operations and investigations are special operations and special investigations. ACC examiners can conduct examinations for the purpose of special operations and investigations. The Board is made up of relevant office holders from the Australian Federal Police, each state and territory police force, the Attorney-General’s Department, Customs, the Australian Securities and Investment Commission, ASIO, and the Taxation Office. The Chief Executive Officer (CEO) of the ACC is also a member of the Board.

The Inter-Governmental Committee on the ACC ( IGC) consists of the relevant Commonwealth Minister and State and Territory Ministers. The IGC monitors the work of the ACC and the Board, oversees the strategic direction of the ACC and the Board and receives reports from the Board for transmission to the Governments represented on the IGC.

A determination by the Board that an operation or an investigation is ‘special’ is a prerequisite for ACC coercive powers to be enlivened. For the Board to determine that an operation or an investigation is ‘special’, the Board must have regard to additional criteria that address whether non-coercive methods of collecting the criminal information and intelligence have been effective, or whether ordinary police methods of investigation are likely to be effective.[21]

The coercive powers exercised by ACC examiners in the context of special operations and investigations, include the power to compel any person to attend an examination, answer questions and produce documents or things. Examiners can issue summonses for persons to appear at an examination under section 28 and for such persons to produce documents or things at the examination. Examiners can also issue notices to other persons to produce documents or things to an examiner or member of staff of the ACC under section 29.[22]

If the person does not attend the examination, does not answer questions or does not cooperate or produce documents or things at the examination, he or she will be guilty of an offence under section 30. A person refusing to answer questions, cooperate or produce documents or things at an examination may also be referred to a prescribed court to be dealt with for contempt under sections 34A to 34D as an alternative to being prosecuted for an offence, such as the offence under section 30. Section 25A provides that the examination must be held in private and the examiner may give directions about persons who may be present.[23]

According to the ACC CEO, John Lawler, an important part of the ACC function is its information sharing role. In evidence to the HR Committee inquiry he explained:

[...]in performing a national coordinating role in the fight against serious and organised crime, close collaboration with Australian law enforcement and related government agencies is central to this role. As such, one of the ACC’s unique strengths is the legislative framework allowing information sharing. The framework allows information sharing among the ACC’s partner agencies to lawfully combine information, resources and expertise for maximum effect in the coordinated national fight against serious and organised crime. [24]

The CEO concludes that the amendments in Schedule 2 are improvements to and an expansion of this framework and ‘will greatly improve the ability of the ACC to carry out these functions’.[25]

Key provisions

Amendments to the Australian Crime Commission Act 2002

Item 27 is the key amendment in Schedule 2 of the Bill. It inserts proposed sections 59AA, 59AB, 59AC and 59AD into the ACC Act and sets up a new information disclosure regime for the ACC.

Disclosing information to government bodies

Proposed section 59AA relates to sharing information with government bodies, including Commonwealth, state, territory and foreign agencies as well as the Australian Security Intelligence Organisation.

More specifically, proposed subsection 59AA (1) provides that the CEO (or delegate[26]) may disclose ‘ACC information’[27] to:

•       a ‘body’[28] of the Commonwealth, a State or a Territory

•       a person who holds an office or appointment under a law of a Commonwealth, a State or a Territory

•       an agency that has responsibility for law enforcement, intelligence gathering or security of a foreign country

•       an international body that: (i) has functions relating to law enforcement or gathering intelligence; and (ii) is prescribed by the regulations, or

•       an international judicial body that is prescribed by the regulations

if:

•       the CEO considers it appropriate to do so, and

•       the CEO considers that the information is relevant to a ‘permissible purpose’ as defined, and

•       disclosing the ACC information would not be contrary to a law of the Commonwealth, a State or Territory that would otherwise apply.

The meaning of ‘permissible purpose’

The meaning of ‘permissible purpose’ is defined (item 18, subsection 4(1)). It refers to one or more of a number of purposes for information sharing, including:

•       performing the functions of the ACC or the Board

•       preventing, detecting, investigating, prosecuting or punishing:

–      criminal offences or activities that might constitute criminal offences (including under a law of a foreign country), or

–      contraventions of a law of the Commonwealth, a State or a Territory imposing a penalty or sanction; or

–      seriously improper conduct (including professional misconduct or misconduct by a public official)

•       preventing, detecting or investigating threats to national security

•       preventing serious threats to an individual’s life, health or safety, or to public health or public safety

•       enforcing laws (including laws of foreign countries) relating to proceeds of crime and unexplained wealth

•       protecting public revenue

•       developing government policy

•       researching criminology, and

•       any other purpose prescribed by regulations.[29]

Comment

The Explanatory Memorandum justifies this new information disclosure provision on the basis that it will be consistent with the current sharing provisions (existing subsections  59(7) to (11)), to be repealed by item 26), but will set them out in a simpler and clearer manner.[30]

While the Explanatory Memorandum states the new provisions closely mirror the existing disclosure regime, arguably the new provision could provide much broader scope for information sharing than the existing arrangements.

The Law Council submission makes substantial comments about new section 59AA, noting particularly the broad meaning of ‘body ‘, the need for greater specificity of ‘permissible purposes’ for which information can be shared and the need for greater protection of personal information shared with government agencies.

For example in relation to the meaning of body (the CEO may disclose ACC information to a ‘body’[31] of the Commonwealth, a State or a Territory) the Law Council notes that the approach to defining a government body in proposed subsection 59AA(3) is a significant departure from the approach in existing subsection 59(7) which provides for disclosure to law enforcement agencies, including foreign law enforcement agencies and other agencies or bodies which have been prescribed by the regulations.[32]

The Explanatory Memorandum states that subsections 59(7) to (9) have created difficulties for the ACC when it has needed to share information with a body that did not fit within the specific descriptions currently used in those subsections. However, as the Explanatory Memorandum does not provide any examples of bodies that do not fit within the current descriptions, the Law Council is concerned that the very broad definition of ‘body’ proposed may go further than necessary to include those bodies that the ACC considers it needs to share information with.[33]

The Law Council also raises questions about the proposed definition of ‘permissible purpose’. While agreeing that information for a number of these purposes could probably be shared under the existing provisions in section 59, the Law Council argues that the expression of a number of these permissible purposes appears to go beyond the possibilities under the existing section 59 and to be expressed quite broadly, including:

•       activities that might constitute criminal offences (including under a law of a foreign country) (emphasis added)

•       seriously improper conduct (including professional misconduct or misconduct by a public official)

•       protecting public revenue

•       developing government policy, and

•       researching criminology. [34]

The Law Council suggests that a qualifier relating to serious and organised crime should be introduced to reduce the breadth of some of these expressions, for example ‘protecting public revenue from threats posed by serious and organised crime’; ‘developing government policy relating to serious and organised crime’ and ’researching criminology relating to serious and organised crime’.[35]

Disclosing information to private sector bodies

Proposed section 59AB makes provision for the dissemination of information outside government (that is, to the private sector), the rationale being a recognition of the importance of public-private partnerships in combating organised crime.[36]  Examples of classes of bodies that will be able to be prescribed by regulation are banks, financial institutions, telecommunications companies, internet service providers, insurance companies, or companies in a specified location or type of location such as specified ports and airports).[37]

The Explanatory Memorandum notes that the ACC Act currently makes no express provision for the dissemination of information outside of government other than through public meetings and bulletins issued by the Board.[38] It also notes that recommendations made in reports to the various reviews and inquiries have proposed that the ACC Act be amended to allow dissemination to the private sector in appropriate cases.[39]

Proposed subsection 59AB(1) provides that the ACC can share information with a body corporate prescribed in regulations, or within a prescribed class of bodies.

When disclosing information, the CEO is required to consider similar matters to those outlined above in relation to disclosure to government bodies, namely that:

•       the CEO considers it appropriate to do so, and

•       the CEO considers that the information is necessary[40] for a ‘permissible purpose’ as defined, and

•       disclosing the ACC information would not be contrary to a law of the Commonwealth, a state or territory that would otherwise apply.

There are  additional requirements for the body corporate to have undertaken in writing to comply with conditions relating to use or further disclosure of the information as specified by the CEO in writing (proposed paragraph 59AB(1)(d)).

Proposed subsection 59AB(2) also contains specific requirements in relation to the disclosure of personal information within the meaning of the Privacy Act 1988 (the Privacy Act) to a body corporate. Specifically the CEO may disclose personal information only if the information is necessary for the purposes of:

•       preventing or detecting criminal offences or activities that might constitute criminal offences (including under a law of a foreign country)

•       facilitating the collection of criminal information and intelligence in relation to criminal offences or activities that might constitute criminal offences (including under a law of a foreign country).

Proposed subsections 59AB(7) and 59AB(8) create criminal offences for:

•       disclosing ACC information for unauthorised purposes (proposed subsection 59AB(7))

•       breaching conditions imposed by the CEO in relation to ACC information (proposed subsection 59AB(8)).

Penalties for these offences are up to 12 months imprisonment and/or 50 penalty units, one penalty unit currently equal to $110.[41] For a body corporate the penalty would be five times the penalty unit for a natural person,[42] amounting to $27,500.

Comment

The ACC in supporting proposed section 59AB argues that the provision introduces appropriate mechanisms and safeguards for disclosing ACC information to private sector bodies, including prescription by regulation, tests for appropriate and necessary permissible purpose, written undertakings by recipient private sector bodies and the introduction of two criminal penalties for disclosing ACC information for unauthorised purposes or breaching of conditions.[43] The ACC further notes that as a result of the amendments in both sections 59AA and 59AB that facilitate information sharing within government and the development of preventative partnerships with industry, the ability of the ACC to comprehensively respond to serious and organised crime is enhanced.[44]

The Law Council, while it has some concerns about section 59AA, is more supportive of the drafting of section 59AB. It is particularly pleased that there are additional requirements relating to the disclosure of personal information and that these requirements are consistent with the National Privacy Principles.[45] Their submission notes that the Law Council has previously raised concerns about the exemption of the ACC from the Privacy Act. It also considers that the Government should respond to the ALRC recommendation relating to the development of information-handling guidelines for the ACC, particularly as such guidelines would complement the requirements in proposed section 59AB. [46]

The Senate Scrutiny of Bills Committee however raises an issue with this provision and considers that it may potentially be considered to trespass unduly on personal rights and liberties, in breach of principle 1(a)(i) of the Committee’s terms of reference.[47] While understanding the rationale for the proposed approach, the Committee states that in light of the importance of the right to privacy and the significance of sharing personal information with the private sector the Committee

seeks the Minister’s advice as to whether the provisions could be limited to apply only to more serious offences, such as those attracting a minimum period of imprisonment (for example, 12 months).[48]

The ‘permissible purpose’ test was also raised in relation to section 59AB. Ms Smyth, MP, a member of the HR Committee inquiry into the Bill, queried why the list of ‘permissible purposes’ is so broad. She argued that even if the range of provisions in the definition of permissible purpose remains the same for government bodies, Ms Smyth could see a case for limiting the range of purposes for which disclosure could be made to a private sector body. She found it very difficult to understand why sharing information for developing government policy and researching criminology are so critical in relation to the disclosure to a private sector body where there are obvious additional sensitivities about the people to whom that information is being disclosed and where that information might go.[49]

In defence of the new provisions, Ms Phillippa De Veau, National Manager, Legal Services, ACC, pointed out that the ‘permissible purpose’ test would not actually apply to disclosure of sensitive information about individuals to a private sector body, nor would it apply to disclosure of confidential commercial information. [50]

However it is notable that this provision received strong criticism in submissions and evidence from civil liberties organisations. Civil Liberties Australia warned that the changes to the law risked overturning the presumption of innocence and ''normalis[ing] the practice of assuming citizens are guilty for the purposes of investigation''.[51]

The Rule of Law Institute was concerned that the sharing of information with the private sector would result in an employee being subject to adverse treatment due to their perceived involvement in criminal activities.[52]

It was particularly concerned about the lack of safeguards in the amendments to protect employees, and gave the following example:

… [the employer] can be told, ‘I saw you mixing with the bikies’ or ‘I am telling you that you have an employee that mixes with the bikies’. What are you meant to do? Fire the guy? That is not fair and that is not right.[53]

As the HR Committee inquiry report notes, the Committee questioned the ACC at length regarding the amendments proposed around disclosing information to private sector bodies, and the protections and redress which might be in place for individuals. The report states:

While the ACC assured the Committee that it would operate with integrity and the Memorandum of Understanding was thorough in specifying how information could not be used or disclosed, the Committee was not convinced of the adequacy of safeguards to avoid inadvertent or prejudicial use of disclosure of information. In the wake of a lack of safeguards, the Committee was also concerned about a lack of redress to the individual should information be disclosed or used inappropriately.

The Committee supports the capacity for information sharing. However, it is concerned that, as they stand, the measures proposed in the Bill are insufficient to protect the rights of the individual in, for example, adverse employment decisions.[54]

The Committee report notes that protections already exist in the ACC Act at section 25A[55] to protect individuals against the consequences of information disclosure if this information was obtained through the examination process. The Committee is of the view that similar protections should apply to information obtained by a private company through the ACC and therefore recommends amendments to section 59AB that would provide similar protections and wording.[56]

The report continues:

While Memorandums of Understanding may set out the conditions controlling information sharing, the Committee is concerned that they may not actually be contractually enforceable and that sanctions may be too low to deter any breach. Additionally, the Committee considers it important that the most fundamental of protections against prejudicial disclosure should be enshrined in legislation — namely protection against disclosure which would prejudice the safety or reputation of a person, or prejudice their access to a fair trial.

These fundamental protections should be clearly stipulated in the Bill and could easily be achieved by inserting into Schedule 2 of the Bill wording similar to that setting out such protections in the ACC Act.[57]

Confidentiality

Existing subsection 25A(9) of the ACC Act gives an ACC examiner the power to direct that evidence given before the examiner, information about a document or thing produced to the examiner, or information about the identity of a witness or the giving of evidence, must not be published or may only be published in specified ways or to specified persons. This is referred to as a non-publication direction. The examiner must give a non-publication direction if failure to do so might prejudice the safety or reputation of a person, or the fair trial of a person who has been, or may be, charged with an offence.  [58]

Proposed section 59AC states that sections 59, 59AA and 59AB are subject to any relevant direction in force under subsection 25A(9).The effect of section 59AC is to make it explicit that confidentiality directions made in relation to examinations override other sections of the ACC Act that make provision for the disclosure of ACC information. The Explanatory Memorandum notes that this amendment confirms the view expressed by the majority in Australian Crime Commission v OK [2010] FCAFC 61 (2 June 2010).[59]

Schedule 3—Amendments relating to returnable items for the ACC

Background

The reader is referred to the general background about the ACC found above at page 11 of the Bills Digest.

In the context of Schedule 3 and as noted above, the ACC Act provides the ACC with several different mechanisms to coercively obtain material that is relevant to a special ACC operation or investigation. 

•       Section 22 of the ACC Act allows the ACC to apply for and execute a warrant to search for a thing or things of a particular kind that are connected with a special ACC operation or investigation.

•       Section 28 provides examiners with the power to summons witnesses to appear before an examiner at an examination to give evidence and to produce such documents or other things, as outlined in the summons.

•       Section 29 provides examiners with the power to require persons to produce a document or thing to a specified person.

The Explanatory Memorandum states that while section 22 currently contains some provisions for the sharing of things seized under a warrant, there are no explicit rules governing what can be done with things or documents obtained under sections 28 or 29.[60]

Schedule 3 of the Bill will introduce rules governing the use, sharing and retention of material which has been coercively obtained by the ACC. The rules are modelled on the regime introduced into the Crimes Act in 2010 in the Crimes Legislation Amendment (Serious and Organised Crime) Act (No 2) 2010.

The Explanatory Memorandum explains the rationale for Schedule 3 as follows:

To ensure there is consistency between Commonwealth regimes governing the seizure and production of things and documents, it is desirable that the same rules which govern how things seized under the Crimes Act are used, shared and retained also apply to other seizure and production regimes.[61]

Key provisions

Amendments to the Australian Crime Commission Act 2002

Item 2 inserts a definition of ‘returnable item’ into subsection 4(1) and defines it as:

•       a thing seized under a warrant issued under section 22, or

•       a thing or document produced:

–      under a notice given under section 29[62], or

–      during an examination conducted under a special ACC operation/investigation.

Item 10 inserts proposed section 24AA and is the central amendment.

Proposed section 24AA allows the CEO of the ACC (or delegate) to make a ‘returnable item’ available to a constable[63] or a Commonwealth officer[64] , if necessary for the following purposes:

•       a purpose under subsection 3ZQU(1) of the Crimes Act for using and sharing documents and things seized[65]

•       for the performance of the functions of the ACC and the ACC Board, or

•       as authorised by the law of a state or territory.

Under proposed subsection 24AA(8) the CEO may also make a returnable item available to a State or Territory law enforcement agency, or an agency that has responsibility for law enforcement, intelligence gathering or security in a foreign country for any of a number of purposes prescribed by reference to the Crimes Act or relevant laws of a State or Territory.

Proposed section 24AB provides that where the CEO is satisfied that a returnable item is not or is no longer required for any of the above purposes or for other judicial or administrative proceedings, the CEO must take reasonable steps to return the item to the person from whom it was seized or who produced it, or, if that person is not entitled to possession, to the owner. However, the CEO does not have to take these steps in a number of prescribed circumstances, including if the CEO has applied for or obtained an order from a Federal Court judge, a Federal Magistrate or a judge of a court of a State or Territory under proposed subsection 24AC in relation to the item (proposed subsection 24AB(2)).

The judicial officer may make an order under proposed section 24AC if satisfied that there are reasonable grounds to suspect that the item is likely to be used, if returned, in the commission of a terrorist act, a terrorism offence or a serious offence by the owner or the person from whom it was seized or who produced it. The judicial officer may order that the item be retained for a specified period; be forfeited; destroyed; otherwise disposed of; or if not a document, be sold. If not so satisfied, the judicial officer must order return of the item.[66]

Comment

The Law Council in its submission supports the introduction of more comprehensive rules for the use, sharing and retention of returnable items and observes that the proposed rules appear to be more restricted in their operation than the provisions relating to the sharing of information discussed above.

Civil Liberties Australia, noting that the provisions in Schedule 3 allow for the sharing of an item with other agencies for other investigations, argues that this effectively means that a warrant could be gained for one purpose by one government agency with the specific intention of using it in another investigation for which a warrant has not been issued and for which one may not be issued for a lack of evidence, or lack of the ability to do so under the laws applying to the second agency. It states:

Essentially a real concern exists that this provision could be used to circumvent legislative safeguards. The possibility also exists that a warrant could be gained for one purpose and the information shared universally in “fishing” terms. None of these practices accord with the rule of law in Australia. They are contrary to necessary limitations on government agencies and forces to operate under the proper constraints that parliaments for decades have thought necessary.[67]

The Government has however, considered that this sharing is necessary to the existing law enforcement environment and the safeguards of the Memorandums of Understanding should address such ‘fishing’ concerns of the CLA.

Schedule 4—Amendments relating to the Integrity Commissioner’s investigative powers

Background

The Law Enforcement Integrity Commissioner Act 2006 (the LEIC Act) establishes the Australian Commission for Law Enforcement Integrity (ACLEI) and the position of the Integrity Commissioner. The Act provides them with powers to prevent, detect and investigate corrupt conduct within Australian Government law enforcement agencies.  Those agencies subject to the Integrity Commissioner’s jurisdiction are the Australian Crime Commission (ACC), the Australian Customs and Border Protection Service (Customs), the Australian Federal Police (AFP) and the former National Crime Authority. Other agencies with a law enforcement function may also be added by regulation.

ACLEI’s primary role is to investigate law enforcement-related corruption issues, giving priority to systemic and serious corruption. ACLEI also collects intelligence about corruption in support of the Integrity Commissioner’s functions.[68]

ACLEI has access to a range of special law enforcement powers for the purpose of corruption investigations. These information-gathering powers are set out in Part 9 of the LEIC Act. Amongst others the key investigative powers available to the Integrity Commissioner and ACLEI include:

•       coercive information-gathering powers

•       notices to produce information, documents or things

•       summons to attend an information-gathering hearing, answer questions and give sworn evidence, and/or to produce documents or things, and

•       intrusive information-gathering (covert).

Schedule 4 of the Bill contains amendments to the LEIC Act to provide the ACLEI with a contempt power and to enhance the Commission's capability to investigate corruption.

Key provisions

Law Enforcement Integrity Commissioner Act 2006

Contempt

Item 29 inserts  proposed sections 96A to 96F that provide new arrangement to deal with contempt.

Proposed section 96A sets out when a person is in contempt of the ACLEI and includes amongst other things: when failing to attend a hearing as required in a summons, giving false or misleading evidence, using insulting language during a ACLEI hearing, obstructing or hindering the Integrity Commissioner in the performance of his/her functions.

Proposed section 96B provides that where the Integrity Commissioner is of the view that a person is in contempt of ACLEI, he/she may refer the matter to either the Federal Court or the Supreme Court of the relevant State or Territory, to be dealt with as if the person were in contempt of that court.

If proposing to make a contempt application to one of these courts, the Integrity Commissioner may during the hearing concerned have the person detained (proposed section 96D). Proposed subsections 96D(2) to (4) set out the conditions that can be imposed by the Court following an application for contempt.

ACLEI can withdraw an allegation of contempt at any time (proposed section 96E). To avoid double jeopardy, people can only be prosecuted in relation to contempt under the LEIC Act or another law (proposed section 96F).

Comment

The purpose of a contempt referral power is to speed up the management of any non-compliance with the Integrity Commissioner’s coercive powers.[69] Currently there is no immediate threat of detention for failing to answer a question or failing to produce required documents. ACLEI investigations can be compromised by the delay in commencement of court proceedings and witnesses may not cooperate with ACLEI, knowing that no penalty will be imposed for 12–18 months. This will also give ACLEI similar powers to the Australian Crime Commission and ACLEI state counterparts. [70]

In ACLEI’s view, the proposed provisions are consistent with the purpose for which the Integrity Commissioner’s coercive information-gathering powers were originally granted and comprise a necessary deterrent to allow the effective use of these powers.[71]

Notices to produce

Sections 75 of the LEIC Act provides the Integrity Commissioner with the power to request information, documents or things from staff members of law enforcement agencies. Section 76 provides the Commissioner with a similar power in relation to other persons.

Item 8 would repeal and replace sections 75 and 76 with the effect that there would no longer be any difference between notices to produce issued to staff of law enforcement agencies and notices to produce issued to other persons. Proposed subsection 75(1) would empower the Integrity Commissioner to issue a notice to produce to any person, requiring him or her to give information and/or produce documents or things specified in the notice.  In order to issue the notice, the Integrity Commissioner must have reasonable grounds to suspect that the information, documents or things will be relevant to the investigation.

Non-disclosure of information about notices to produce

Item 10 inserts proposed sections 77A to 77B which consist of a new Subdivision entitled ‘Prohibitions against disclosing information about notices’.

Proposed subsection 77A(2) provides that the Integrity Commissioner may include a notation in a ‘notice to produce’ to the effect that disclosure of information about the notice or official matters concerned with the notice are prohibited.

In particular, under proposed subsection 77A(3) the Integrity Commissioner must prohibit disclosure where it would be reasonably expected to prejudice a person’s safety or reputation, or prejudice the fair trial of a person or the investigation of corruption or any action taken as a result of the investigation.

Additionally, the Integrity Commissioner may prohibit disclosure where it would be contrary to the public interest or might prejudice a person’s safety or reputation, the fair trial of a person or the investigation of corruption or any action taken as a result of the investigation (proposed subsection 77A(4)).

Such notifications would be accompanied by a statement setting out the rights and obligations conferred or imposed on the person served with the notice (proposed subsection 77A(6)).

Proposed section 77B is an offence provision relating to section 77A. Proposed subsection 77B(1) provides that it would be an offence to disclose the existence of the notice or any official connected matter within five years of serving the notice. The penalty for the offence would be a maximum of 12 months imprisonment.

Proposed subsection 77B(2) sets out the defences to this offence. For instance, disclosure would be permitted to the person’s lawyer or if the person is a body corporate, to an officer or agent of the body corporate to ensure compliance. The lawyer or officer/agent could not disclose the notification, with the same time limit and penalty applying (proposed subsection 77B(3)).

Existing section 78 makes it an offence for a person to fail to comply with a notice to produce. Item 11 repeals and replaces this section. The  new provisions differs from the old in also including an offence for failing to comply with the notice within the time specified in the notice or the extended time allowed by the Integrity Commission.

Privilege

Schedule 4 also makes amendments relating to privilege against self-incrimination.

Under existing subsection 80(2) a person is required to expressly claim that giving information or producing a document or thing might tend to incriminate them or expose them to a penalty before that information or object will be inadmissible in evidence against the person in criminal proceedings. This must be claimed before the giving of any information or production of every document or thing which may incriminate the person. Item 16 repeals subsection 80(2). Its effect is that people will automatically be protected and do not have to make an express claim of privilege before immunity applies.

Item 26 repeals and replaces subsection 95(5), the purpose being to clarify the application of legal professional privilege to information and documents provided to ACLEI in the public interest. This clarification should help to encourage production of documents to ACLEI on the grounds that such documents or communications are protected, to the extent possible, from onward disclosure to third parties.[72]

Item 27 repeals subsection 96(2). Its effect is to simplify a witness’ ability to utilise the privilege against self-incrimination by removing the requirement to claim a ‘direct use indemnity’ before responding to individual questions at a coercive information-gathering hearing.

Comment

ACLEI considers that, as a package, the amendments proposed in this Schedule are useful and appropriate improvements to the operation of the LEIC Act and would strengthen ACLEI’s ability to investigate corrupt conduct.[73]

The HR Committee inquiry also commented that no significant issues had been raised in regard to Schedule 4. It their view the amendments achieved an appropriate balance between protecting individual rights and providing the ACLEI with the right tools to effectively and efficiently carry out their functions.[74]

Schedule 5—Drugs, plants and precursors

Background[75]

Part 9.1 of the Criminal Code Act 1995 contains the Commonwealth’s serious drug offences.

Domestic offences involve ‘border controlled’ substances.[76] Import/export offences involve ‘border controlled’ substances. The quantity of the substance determines the level of seriousness of the crime. The most serious is ‘commercial’ quantity, followed by ‘marketable’ and ‘trafficable’ quantities.

Key provisions

Criminal Code Act 1995

Items 1–5 insert certain drugs on the ‘controlled’ list and specify threshold quantities for prosecution. Respectively the drugs are Benzylpiperazine, Ketamine, Methcathinone, 4-Methylmethcathinone and Phenylpropanolamine.

Items 6, 7 and 11 insert certain drugs on the ‘border controlled’ list and specify threshold quantities for prosecution. Item 6 relates to Benzylpiperazine, item 7 to Ketamine and item 11 to 4-MMC.

Item 9 inserts threshold quantities for Methcathinone which is already a ‘border controlled’ substance. Item 12 inserts threshold quantities for phenylpropanolamine which is already a ‘border controlled’ substance.

These amendments will replicate the regulations that were enacted on 9 April 2011 through the Criminal Code Amendment Regulations 2011 (No 1). The purpose of these amendments will ensure that substances and quantities that are temporarily prescribed in the Criminal Code Regulations 2002 will remain subject to Commonwealth serious drug offences in the longer term.[77]

Customs Act 1901

Items 13 inserts a definition of ‘border controlled precursor’, to align it with the equivalent definition in the Criminal Code. Item 14 repeals and replaces the definition of ‘special forfeited goods’.

The purpose of these amendments is to overcome a legislative anomaly which currently exists in relation to the Australian Customs and Border Protection Service ability to seize illicit substances without a warrant.

Schedule 6—Proceeds of crime amendments

The Explanatory Memorandum explains that the amendments in this Schedule relate to the multi-agency Criminal Assets Confiscation Taskforce. The Taskforce, launched by the Government in 2011, is led by the AFP also includes the Commonwealth Director of Public Prosecutions (DPP), Australian Crime Commission and Australian Tax Office.

Following legislative amendment in 2011[78], the Commissioner of the AFP can also conduct proceeds of crime litigation. Previously, only the DPP could do so. This Bill will make several further amendments to facilitate the work of the Taskforce.

Following legislative amendment in 2011, the Commissioner of the AFP can also conduct proceeds of crime litigation. Previously, only the DPP could do so.[79]

Schedule 6 make several further amendments to facilitate the work being done on behalf of the Taskforce.

Item 9 inserts proposed section 28A into the Proceeds of Crime Act 2002 giving a court the power to restrict or prohibit the publication of certain matters contained in affidavits where either Commissioner of the AFP or the DPP has applied for a restraining order and the court considers it to be necessary to make the order to prevent prejudice to the administration of justice.

Item 1 is a consequential amendment repealing a similar provision from the Director of Public Prosecutions Act 1983.

Item 10 repeals paragraph (a) of the definition of ‘authorised officer’ contained in section 338 of the Proceeds of Crime Act 2002 and replaces it with an amended and expanded definition. The effect will mean that the definition of authorised officer will also include authorised employees or secondees to the AFP who are part of the Taskforce.

Schedule 7—Releasing federal offenders from prison

Background

Schedule 7 relates to releasing federal offenders from prison and seeks to implement some of the recommendations of the Australian Law Reform Commission’s (ALRC) 2006 report, Same Crime, Same Time: Sentencing of Federal Offenders.[80]

Sentencing of federal offenders is largely governed by Part IB of the Crimes Act. When a court sentences a federal offender to a term, or terms of imprisonment that, in total exceeds three years, it may fix a non-parole period or make a recognizance release order (section 19AB).  Non-parole period is the minimum time that the offender must serve in prison.[81]

The Crimes Act provides that decisions on parole are to be made by the Attorney-General or delegate.[82]

Currently section 19AL of the Crimes Act sets out different arrangements for the release on parole of federal offenders serving a term of imprisonment, depending on the length of the offender’s sentence.

Where a federal offender is sentenced to a term of imprisonment of 10 years or more, for which a non-parole period has been fixed, the Attorney-General may determine whether or not the prisoner should be released on parole at the expiry of his or her non-parole period.

For federal offenders serving sentences of imprisonment of less than 10 years, for which a non-parole period has been fixed by the court, the Attorney-General must make a parole order directing that the person be released either at the end of the non-parole period, or on a day not earlier than 30 days before the end of the non-parole period. In other words there is no discretion to refuse to release the prisoner on parole.

This type of release of a federal offender is referred to as ‘automatic parole’.[83]

A person released on parole may be subject to supervision during their parole or licence period. Supervision refers to oversight and management of the offender by the relevant State or Territory parole service. Apart from life sentences, the maximum length of the supervision period is three years.

Schedule 7 repeals the provisions in the Crimes Act granting automatic parole for sentences of less than 10 years. It also effectively repeals the three year limit on supervision during parole.

The Explanatory Memorandum gives reasons why automatic parole can be problematic and argues the rationale for the proposed amendments is to facilitate the use of parole for purposes such as community protection and rehabilitation of offenders.

Key provisions

Crimes Act 1914

Item 6 will repeal the existing sections 19AL and 19AM of the Crimes Act and insert proposed sections 19AL, 19AM and 19AMA.

Proposed section 19AL will provide that all parole decisions are discretionary.

Proposed subsection 19AL(1) requires the Attorney-General, before the end of a federal offender’s non-parole period, to either make, or refuse to make, a parole order directing that the person be released from prison on parole.

Proposed subsection 19AL(2) provides that if the Attorney-General refuses to make a parole order, the Attorney-General must give written notice to the offender within 14 days after the refusal that:

•       informs the offender of the refusal

•       includes a statement of reasons for the refusal, and

•       explains that the Attorney-General must reconsider making a parole order for the offender and either make, or refuse to make, such an order within 12 months after the refusal.

The requirement to reconsider a prisoner’s release on parole within 12 months of refusing to make a parole order is set out at proposed paragraph 19AL(2)(b).

Proposed subsection 19AL(3) provides that a parole order must:

•       be in writing 

•       specify whether or not the person is to be released subject to supervision

•       if supervision is to end before the end of the person’s parole period, the parole order must specify the date. ‘Supervision’ refers to oversight and management of the parolee by the relevant State or Territory parole service.[84]

This is in contrast to the current arrangements where, the maximum parole supervision period for federal sentences is three years. The rationale for allowing for the extension of the supervision period to the end of the offender’s parole period, is to provide ongoing assistance to those offenders who may require it. It is suggested that such supervision may be required, for example, ‘if the offender is engaging in ongoing drug use, or is displaying other worrying behaviour’.[85]

Proposed subsection 19AL(4) will set out the arrangements that apply to federal offenders who are eligible for release on federal parole, but will still be serving a State or Territory custodial sentence when their federal non-parole period expires. This provision is not new and is basically replicating the effect of current section 19AM.

Proposed section 19AM sets out when a federal offender is to be released from prison under a parole order. Different arrangements will apply according to whether the person is being released on a parole order made before the end of his or her non-parole period, or made after the end of the non-parole period.

Proposed section 19AMA sets out when a federal offender’s parole period starts and ends. For the start date, different arrangements apply according to whether the person is serving a State or Territory sentence at the time the parole order is made.  For the end date, for a person not serving a life sentence, the parole period ends on the last day of their sentence. In contrast, under existing arrangements the parole period cannot exceed five years (subsection 16(1), the definition of supervision period is to be repealed and replaced by item 5).[86]

Item 12 deals with application of the amendments and amongst other things provides that the amendments providing for discretionary parole and for the potential extension of supervision during parole will apply not just to federal offenders sentenced on after the commencement of Schedule 7 but also to offenders sentenced before the commencement of the schedule. However the amendments will not apply to federal offenders for whom parole orders have been made prior to the commencement of the schedule.

Comment

The Law Council in their supplementary submission to the HR Committee inquiry made two substantial comments about the amendments in Schedule 7.

Their first comment relates to the ALRC report recommendations on federal sentencing. While the ALRC had recommended the repeal of the federal sentencing legislation granting ‘automatic parole’ to federal offenders, the Law Council noted that this was only one of eleven recommendations concerning release on parole or licence. Three other recommendations relating to commencement and expiry of parole periods, conditions of parole and periods of supervision are also implemented to some extent in the Bill. However as the Law Council submission notes, the ALRC also recommended the establishment of a federal parole authority rather than the current situation where the Attorney-General makes decisions about parole. This basis for this recommendation was that parole decisions should be made by a body independent of the political arm of government. [87] As has been noted, federal offenders are unique in Australia in having their parole decisions determined by a ministerial delegate within a government department rather than by an independent authority with broad-based expert and community membership.

While the Law Council understands that further consultations relating to federal sentencing may be undertaken by the Attorney-General’s Department during 2012, the submission concludes that the Law Council is disappointed that the Bill does not address the ALRC’s recommendations more holistically.[88]

The other comment in the Law Council submission is more specific. It focuses on the retrospective application of the proposed changes as set out in item 12 and described above.

The Law Council submission argues that legislative provisions which create criminal penalties should not be retrospective in their operation. The submission states:

The Law Council submits that the failure to release an offender automatically on parole after completion of the non-parole period when that offender had a legitimate expectation that this would occur is in the nature of a criminal penalty. Similarly, imposing supervision conditions for longer than the offender would have expected is also in the nature of a criminal penalty.

The Law Council notes that the discussion in the ALRC report did not suggest that federal sentencing legislation repealing ‘automatic parole’ should apply retrospectively. Nor did the discussion in the ALRC report suggest that effectively repealing the three year limit on supervision should apply retrospectively. [89]

The Law Council suggests that an alternative solution which could still facilitate the use of parole for purposes such as community protection and rehabilitation of offenders would be to carefully tailor the conditions in parole orders. For example, rather than using the threat of not granting parole to create incentives for offenders to participate in relevant programs, including sex offender programs, such participation could be made a condition of the parole order itself. Proceeding in this manner in relation to offenders who have been sentenced prior to the commencement of the schedule would mean that the principle against retrospectivity is not breached but the purposes of parole are still facilitated.[90]

The HR Committee inquiry report supports the Law Council’s view of Schedule 7. The report recommends removing the retrospective application in item 12 to ensure that the amendments abolishing automatic parole would only apply to persons sentenced after commencement.[91] Similarly, the Scrutiny of Bills Committee draws attention to these provisions and poses the following question:

In light of the likely potential detriment to some federal offenders, the Committee requests the Minister’s advice as to the justification for applying the provisions to persons who were sentenced before the schedule commences.[92]

The HR Report also expresses ‘grave concern’  over parole discretions residing with the Attorney-General and  therefore recommends that the Australian Government give further consideration to establishing a Federal parole board.[93]

On this final point, it is of note that the provisions in the Bill which remove automatic parole and the three year limit on supervision during parole do increase the Executive power and discretion. It would seem therefore that that the ALRC’s recommendation for the establishment of a Federal parole board becomes even more important and urgent.

Schedule 8—Enforcement of fines

Background

Commonwealth criminal jurisdiction is a complex matter. Most prosecutions for Commonwealth offences are conducted in State and Territory courts using the practices and procedures of the particular State or Territory. Sentencing of Commonwealth offenders is largely covered by Part 1B of the Crimes Act 1914 with exceptions where State or Territory law applies. In relation to the enforcement of fines, the laws of the States and Territories apply as a result of section 15A of the Crimes Act. Currently, section 15A of the Crimes Act limits the actions that States and Territories can take on behalf of the Commonwealth. In particular, State and Territory fine enforcement agencies cannot take certain types of enforcement action for fine default unless they first obtain a court order.[94] The purpose of the amendments in Schedule 8 is to remove this need to obtain a court order for fine enforcement.

Key provisions

Crimes Act 1914

Item 4 inserts proposed subsection 15A(1ACB) into the Crimes Act. It is a clarifying provision and states that if a court makes an order imposing a penalty for failure to pay a fine, whether or not that penalty is described in subsection 15A(1AB), then a person or authority other than a court may take action to enforce the penalty without making a further application to a court under paragraph 15A(1AA)(a). The penalties listed in section 15A(1AB) as amended by item 3 are community service orders, detention, imprisonment, penalties which are similar to those just described and penalties prescribed by regulation.

The Minister’s Second Reading Speech states that the effect of these amendments is to ‘empower State and Territory fine enforcement agencies to enforce Commonwealth fines through non-judicial enforcement actions (for example: garnishment of a debt, wage or salary; a charge or caveat on property; seizure or forfeiture of property; and voluntary community service orders) without first obtaining a court order.[95] However, State and Territory fine enforcement agencies would still be required to apply to a court of summary jurisdiction for an order imposing a judicial penalty (for example, compulsory community service, detention or imprisonment) on a person who has failed to pay a Commonwealth fine.[96]

Item 5 provides that the amendment made by item 4 will apply to a court order, which imposes a penalty for failure to pay a fine, irrespective of whether the order was made before, on or after the commencement of the amendments.

The Explanatory Memorandum justifies this retrospective application on the basis that it is considered necessary because amendment made by item 4 merely clarifies the operation of the existing law, and does not modify any person’s accrued rights under the law.[97]

Related to this, item 7 confers retrospective authority on persons who previously enforced Commonwealth fines through non-judicial enforcement actions without a court order. The scope of this amendment is limited to ‘a bare conferral of authority for the actions taken, and does not extend to treating an invalid action as a valid action’.[98]

Comment

The Senate Scrutiny of Bills Committee draws attention to these retrospective application provisions as they may be considered to ‘trespass unduly on personal rights and liberties, in breach of principle 1(a(i) of the Committee’s terms of reference’. However the Committee, noting the Explanatory Memorandum’s stated rationale for the retrospective application, leaves to the consideration of the Senate as a whole the question of whether the retrospective approach proposed in these items is appropriate.[99]

Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2438.

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ISSN 1328-8091

[1].               House of Representatives Standing Committee on Social Policy and Legal Affairs, Advisory report: Crimes Legislation Amendment (Powers and Offences) Bill 2011, Commonwealth of Australia, 2012, viewed 29 February 2012 http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=spla/bill crime legislation/report.htm

[2].               Explanatory Memorandum, Crimes Legislation Amendment (Powers and Offences) Bill 2011, p. 2.

[3].               Page 4 of the Explanatory Memorandum erroneously notes section 23YUD as the section prescribing review of Part 1D of the Crimes Act.

[4].               The Report can be found at http://www.ema.gov.au/www/agd/agd.nsf/Page/Consultations_reforms_and_reviewsReview_of_Part_1D_of_the_Crimes_Act_1914

[5].               Explanatory Memorandum, p. 5.

[6].               Explanatory Memorandum, p. 5.

[7].               DNA Forensic Procedures: Further Independent Review of Part 1D of the Crimes Act 1914, Canberra, 2010, p. 28.

[8].               House of Representatives Standing Committee on Social Policy and Legal Affairs, Advisory report: Crimes Legislation Amendment (Powers and Offences) Bill 2011, Commonwealth of Australia, 2012, viewed 29 February 2012, p. 7. http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=spla/bill crime legislation/report.htm

[9].               Civil Liberties Australia, Submission to the House of Representatives Standing Committee on Social Policy and Legal Affairs, ‘Advisory Report: Crimes Legislation Amendment (Powers and Offences) Bill 2001, February 2012, viewed 16 February 2012, http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=spla/bill crime legislation/subs.htm,  p. 2.

[10].               Civil Liberties Australia, Submission op. cit., p. 2.

[11].               The Crimes Act 1914 provides, under section 4AA, that one penalty unit is currently equal to $110.

[12].               Explanatory Memorandum, p. 19.

[13].               The word buccal refers to a person’s cheek. A buccal swab will rub the inside of the mouth in the cheek area to collect loose cells for analysis. The collection device, or swab, generally looks like a large cotton tip. A buccal swab is a common method for collecting DNA for analysis and determining paternity or other biological relationships: http://www.gtldna.com.au/glossary/buccal-swab.html viewed 8 March 2012.

[14].               Explanatory Memorandum, p. 21

[15].               The Explanatory Memorandum, at page 14, erroneously notes that another justification is required for ensuring the appearance of the offender, other than necessity.

[16].               It is not clear if the constable is required to be a senior constable or investigating constable (both are defined terms in this Part). Item 8 replaces the term ‘senior constable’ with ‘senior police officer’ and consequently the remaining terminology in this item and others is confusing.

[17].               Explanatory Memorandum, p. 28.

[18].               ibid, p. 29.

[19].               Law Council of Australia, Crimes Legislation Amendment (Powers and Offences) Bill 2011, Submission to the House of Representatives Standing Committee on Social Policy and Legal Affairs, January 2012, viewed 10 January 2012, http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=spla/bill crime legislation/subs.htm p. 5. This background draws heavily on the Law Council submission.

[20].               Ibid.

[21].               Australian Crime Commission, Crimes Legislation Amendment (Powers and Offences) Bill 2011, Supplementary submission to the House of Representatives Standing Committee on Social Policy and Legal Affairs, http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=spla/bill crime legislation/subs.htm February 2012, p. 2.

[22].               Law Council of Australia, Submission op. cit., p. 6.

[23].               Ibid.

[24].               J Lawler (CEO ACC), House of Representatives Standing Committee on Social Policy and Legal Affairs, Crimes Legislation Amendment (Powers and Offences) Bill 2011, Hansard, 10 February 2012, p. 1.

[25].               Ibid.

[26].               The power can be delegated to any SES level staff of the ACC under the general delegation power in section 59A of the ACC Act.

[27].               ACC information is defined as information that is in the ACC’s possession (item 17, subsection 4(1)).

[28].               A ‘body’ is defined broadly in subsection 59AA(3) to include a law enforcement agency, a department, ‘a body (whether incorporated or not) established for a public purpose by or under a law of the Commonwealth, a State or a Territory’ and ‘a body however described’.

[29].              The Explanatory Memorandum outlines examples for each of these purposes. See pp. 51-53 for this further detail.

[30].               Explanatory Memorandum, Crimes Legislation Amendment (Powers and Offences) Bill 2011, p. 54.

[31].               See footnote 25 above for definition.

[32].               Law Council, Submission, op. cit., p. 12.

[33].               Ibid.

[34].               Ibid., pp.9–10.

[35].               Ibid.

[36].               Explanatory Memorandum, p. 57.

[37].               Ibid, p. 58.

[38].               Ibid, p. 57.

[39].               Ibid.

[40].               Note that in contrast to the disclosure of government information the information must be ‘necessary for’ a permissible purpose rather than ‘relevant to’ one.

[41].               Section 4AA of the Crimes Act.1914 (Cth)

[42].               Subsection 4B(3) of the Crimes Act 1914 (Cth)

[43].               J Lawler, op cit, p. 2.

[44].               Ibid, p. 2.

[45].               Law Council of Australia, op. cit., p. 13.

[46].               Ibid, p. 14.

[47].               Senate Standing Committee for the Scrutiny of Bills, Alert Digest, no. 1, 2012, p. 16, viewed 6 March 2012, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=scrutiny/alerts/2012/index.htm

[48].               Ibid.

[49].               L Smyth (MP) House of Representatives Standing Committee on Social Policy and Legal Affairs, Crimes Legislation Amendment (Powers and Offences) Bill 2011, Hansard, 10 February 2012, p. 7.

[50].               P De Veau (National Manager, Legal Services, ACC), House of Representatives Standing Committee on Social Policy and Legal Affairs, Crimes Legislation Amendment (Powers and Offences) Bill 2011, Hansard, 10 February 2012, p. 7.

[51].               D Oakes, ‘New crime commission powers under attack’, Sydney Morning Herald, 27 February 2012, viewed 6 March 2012, http://www.smh.com.au/national/new-crime-commission-powers-under-attack-20120226-1twl7.html#ixzz1oICuOZ3W

[52].               Rule of Law Institute, Crimes Legislation Amendment (Powers and Offences) Bill 2011, Submission to the House of Representatives Standing Committee on Social Policy and Legal Affairs, http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=spla/bill crime legislation/subs.htm , viewed 27 January 2012, pp. 2-3.

[53].               R Speed (CEO, Rule of Law Institute), House of Representatives Standing Committee on Social Policy and Legal Affairs, Crimes Legislation Amendment (Powers and Offences) Bill 2011, Hansard, 10 February 2012, p. 25, quoted in House of Representatives Standing Committee on Social Policy and Legal Affairs, Advisory report: op cit, p. 15.

[54].               House of Representatives Standing Committee on Social Policy and Legal Affairs, Advisory report: op cit, p. 16.

[55].               See the following page for a description of this provision.

[56].               House of Representatives Standing Committee on Social Policy and Legal Affairs, Advisory report: op cit, p. 17.

[57].               Ibid.

[58].               Note that this non-publication direction section applies to information derived from coercive examinations. It does not apply to information held by the ACC that is derived from more conventional investigative activities. Although this type of information may be subject to a security classification if its disclosure could prejudice an ongoing operation or the safety of informants or undercover investigators.

[59].               Explanatory Memorandum, p. 64.

[60].               Explanatory Memorandum, p. 66.

[61].               Ibid, p. 69.

[62].               Section 29 provides examiners with the power to require persons to produce a document or thing to a specified person.

[63].               A constable means a member or special member of the Australian Federal Police or a member of the police force or police service of a State (section 4).

[64].               ‘Commonwealth officer’ in the ACC Act will have the same meaning as ‘Commonwealth officer’ in the Crimes Act and includes members of staff of the ACC (item 1, subsection 4(1)). The Crimes Act defines Commonwealth officer as a person holding office under, or employed by, the Commonwealth (including Commonwealth public servants). The Explanatory Memorandum states that the rationale for including members of staff of the ACC in the definition is to ensure that all persons who work for the ACC are subject to the same statutory regime governing the way in which they deal with documents and other things seized or produced under the ACC Act.

[65].               Amongst other things these purposes include: - preventing, investigating or prosecuting Commonwealth offences and State offences with a federal aspect; proceedings under proceeds of crime legislation; proceedings for the forfeiture of the thing under a law of the Commonwealth; proceedings, applications and requests relating to control orders and preventative detention orders under Part 5.3 of the Criminal Code; investigating or resolving a complaint or an allegation of misconduct relating to an exercise of a power or the performance of a function or duty various Commonwealth Acts.

[66].               This description of the provisions in Schedule 3 draws on the outline in the Law Council submission, op cit, p. 16.

[67].               Civil Liberties Australia, Crimes Legislation Amendment (Powers and Offences) Bill 2011, Submission to the House of Representatives Standing Committee on Social Policy and Legal Affairs, January 2012, http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=spla/bill crime legislation/subs.htm  viewed January 2012, p. 7.

[68].               Australian Commission for Law Enforcement Integrity, Crimes Legislation Amendment (Powers and Offences) Bill 2011, Submission to the House of Representatives Standing Committee on Social Policy and Legal Affairs, http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=spla/bill crime legislation/subs.htm viewed January 2012, p. 2.

[69].               Ibid. p. 8.

[70].               House of Representatives Standing Committee on Social Policy and Legal Affairs, Advisory report: op cit, p. 26.

[71].               Australian Commission for Law Enforcement Integrity, op. cit., p. 7.

[72].               Explanatory Memorandum, p. 93.

[73].               Australian Commission for Law Enforcement Integrity, op. cit., p. 9.

[74].               House of Representatives Standing Committee on Social Policy and Legal Affairs, Advisory report: op cit. pp. 28-29.

[75].               This section relies on the House of Representatives Standing Committee on Social Policy and Legal Affairs, Advisory report: op cit, chapter 5.

[76].               The term ‘substances’ includes drugs, plants and precursors.

[77].               Explanatory Memorandum, p. 109.

[78].               Crimes Legislation Amendment Act (No. 2) 2011.

[79].               Explanatory Memorandum, p. 117.

[80].               The ALRC report is available at http://www.austlii.edu.au/au/other/alrc/publications/reports/103/

[81].               Explanatory Memorandum, p. 122.

[82].               In contrast, at State and Territory level parole is dealt with differently with judges rather than the relevant Attorney-General having the discretion to determine the non-parole period within the confines of the jurisdiction’s parole legislation.

[83].               Explanatory Memorandum, p.122.

[84].               Explanatory Memorandum, p. 124.

[85].               B O’Connor, ‘Second reading speech: Crimes Legislation Amendment (Powers and Offences) Bill 2011, House of Representatives, Debates, 23 November 2011, p. 13549, viewed 6 March 2012, http://parlinfo.aph.gov.au/parlInfo/genpdf/chamber/hansardr/14965034-cdb8-4a26-98aa-26c862a1cd0e/0038/hansard_frag.pdf;fileType=application%2Fpdf

[86].               Note that for both the existing and proposed provisions, the parole period for a federal offender serving a life sentence must be at least five years in duration from the date of release on parole.

[87].               Law Council of Australia, Crimes Legislation Amendment (Powers and Offences) Bill 2011, Supplementary submission to the House of Representatives Standing Committee on Social Policy and Legal Affairs, p. 2.

[88].               Ibid.

[89].               Ibid.

[90].               Ibid., p. 3.

[91].               House of Representatives Standing Committee on Social Policy and Legal Affairs, Advisory report: op cit, p. 50.

[92].               Senate Standing Committee for the Scrutiny of Bills, Alert Digest, no. 2, 2012, pp. 11-12..

[93].               Ibid.

[94].               Explanatory Memorandum, p. 152.

[95].               B O’Connor, op. cit., p. 13549.

[96].               Note that the amendments proposed by items 2 and 3 would have this effect.

[97].               Explanatory Memorandum, p. 154.

[98].               Ibid, p. 155.

[99].               Senate Standing Committee for the Scrutiny of Bills, op cit, p. 19.