BILLS DIGEST NO. 94, 2016–17              8 May 2017

Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017

Christina Raymond
Law and Bills Digest Section 

Date introduced:  30 March 2017

House:  House of Representatives

Portfolio:  Justice

Commencement: The day after Royal Assent

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at May 2017.

Purpose of the Bill

The Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017 (the Bill) is a type of Bill commonly referred to as an ‘omnibus Bill’.[1] It proposes to amend three Acts administered by the Justice portfolio—the Australian Federal Police Act 1979 (AFP Act), the Crimes Act 1914, and the Criminal Code Act 1995 (Criminal Code).

The proposed amendments variously extend the scope of investigative powers, amend the elements of and maximum penalties applying to certain offences, and amend other procedural provisions relating to the investigation and enforcement of Commonwealth offences, and information-sharing arrangements. Some proposed amendments are minor and technical in nature. Others will have a substantive effect on the rights, liberties, duties and liabilities of persons to whom they apply.

In his second reading speech on the Bill, the Minister for Justice, Michael Keenan, indicated that the Bill reflects the progressive outcomes of the Government’s ongoing review of the criminal justice framework to ensure its continuous improvement, stating:

Australia's criminal justice framework is both fair and strong. But it never serves to be complacent. Where opportunities arise to fine-tune aspects of our regime, we take these up. This omnibus bill, which does a variety of separate things, is a very good example of us continuing to improve our legal framework.[2]

Structure and outline of the Bill

The Bill comprises eight schedules, which propose to make the following amendments:

•       amendments to the AFP Act to extend the functions of the AFP to include the provision of assistance to, and cooperation with, international governmental organisations and non-governmental organisations in relation to the provision of police services or police support services (Schedule 1)

•       amendments to the investigative questioning provisions in Part IC of the Crimes Act, to expressly require an investigating official to notify an Aboriginal legal assistance organisation prior to commencing questioning of a person who is reasonably suspected to be an Aboriginal or Torres Strait Islander person, and other procedural amendments, primarily with respect to the maintenance of lists of legal assistance organisations (Schedule 2)

•       amendments to the provisions of Part IAB of the Crimes Act governing controlled operations (covert operations by law enforcement agencies for the purpose of investigating a criminal offence) to amend the offences for the unauthorised disclosure of information relating to controlled operations (Schedule 3). The proposed amendments will create separate offences, with different elements and penalties, for disclosures by ‘entrusted persons’ who are involved in the conduct of a controlled operation, and for disclosures by other persons who are not so involved. The amendments will replicate recent amendments to section 35P of the Australian Security Intelligence Organisation Act 1979 (ASIO Act) in relation to disclosure offences applying to ‘special intelligence operations’ conducted by ASIO. The disclosure offences in the ASIO Act were modelled on those in Part IAB of the Crimes Act, and were the subject of recommended amendments by the former Independent National Security Legislation Monitor (INSLM) in 2015, which were implemented in 2016[3]

•       amendments to certain general dishonesty offences in Division 135 of Part 7.3 of the Criminal Code to increase their maximum penalty from five years’ imprisonment to 10 years’ imprisonment (Schedule 4)

•       amendments to section 20C of the Crimes Act relating to offences by children and young persons to remove an obsolete reference to offences punishable by the death penalty (Schedule 5)

•       amendments to section 15YR of the Crimes Act, which protects the identity of vulnerable witnesses and complainants in criminal proceedings by prohibiting the publication of identifying information unless the court grants leave to do so. The proposed amendments relate to the process by which a person must apply for leave (Schedule 6)

•       amendments to the Crimes Act to insert a new Part VIID authorising Commonwealth entities to collect, use and disclose personal information for the purposes of preventing, detecting, investigating or dealing with serious misconduct by employees, fraud, or other offences against the proper administration of government (Schedule 7). The proposed amendments implement the Government’s response to a recommendation of the Independent Review of Whole-of-Government Internal Regulation in 2015[4]

•       amendments to the spent convictions regime in Part VIIC of the Crimes Act to extend the law enforcement agencies with which information about spent convictions may be shared, to include the Law Enforcement Conduct Commission of New South Wales (a police integrity and oversight body responsible for detecting and investigating serious police misconduct and corruption, and overseeing complaints handling)[5] and similar police integrity bodies established under a law of another State (Schedule 8).

Committee consideration

At the time of writing this Bills Digest, the Senate Standing Committee for the Scrutiny of Bills and the Parliamentary Joint Committee on Human Rights had not reported on their respective consideration of the Bill, which was introduced after these committees had tabled their final reports for the Autumn 2017 sitting period.

On 30 March 2017, the Senate Standing Committee for the Selection of Bills reported that it had deferred its consideration of the Bill to its next meeting.[6]

Position of non-government parties/independents

At the time of writing this Bills Digest, non-government parties and independent members of Parliament do not appear to have commented publicly on the Bill.

Liberal Democrats Senator for New South Wales David Leyonhjelm has previously expressed his support for the measures now contained in Schedule 3 to the Bill, which will amend disclosure offences in the Crimes Act with respect to controlled operations conducted by law enforcement agencies, to align these offences with recent amendments to similar disclosure offence provisions in the ASIO Act. Senator Leyonhjelm reportedly suggested these amendments in the context of negotiations with the Government in relation to the Australian Building and Construction Commission. In February 2017, Senator Leyonhjelm was reported to have stated:

While no firm undertaking was given as to the outcome, the government did agree to consider the issue. I then wrote to the Attorney-General to formally request this legislation be amended along similar lines as the ASIO Act. The Attorney-General has agreed to my call.[7]

Position of major interest groups

At the time of writing, there has been limited public comment on the Bill by major interest groups. The Media, Entertainment and Arts Alliance (MEAA) commented on the proposed amendments to disclosure offences for controlled operations in Schedule 3 to the Bill in its Annual Report into the State of Press Freedom in Australia 2017. The MEAA commented that the proposal to align the controlled operations disclosure offences with certain disclosure offences in the ASIO Act is ‘unhelpful in that it merely further extends the ability of the government to criminalise public interest journalism in relation to not one but two government agencies’.[8] The MEAA appears to support the exemption of journalists from the disclosure offences, stating that ‘[i]t is simply unacceptable that any journalist be threatened with imprisonment for publishing something in the public interest — especially in Australia where the right to inform and be informed is a cornerstone of our democracy’.[9] The issue of a possible offence-specific defence for disclosures made in the public interest, which could include journalism, is discussed subsequently.

Financial implications

The Explanatory Memorandum states that the proposed fraud investigation measures in Schedule 7 to the Bill are anticipated to have a positive financial impact by helping to prevent the occurrence of fraud against the Commonwealth and help increase recoveries.[10] It does not provide a projected figure in relation to an estimated increase in the amounts recovered from fraud offences or an estimated reduction in fraud-related losses, or explain how the financial impact of the proposed measures will be measured, evaluated and reported.

The Explanatory Memorandum does not comment on the financial implications of Schedules 1–6 and 8.

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011, 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. The Government considers that the Bill is compatible.[11]

Key issues and provisions

AFP cooperation with international and non-governmental organisations (Schedule 1)

Schedule 1 proposes to amend section 8 of the AFP Act to extend the statutory functions of the AFP with respect to the provision of assistance to or cooperation with international organisations, and non-governmental organisations in relation to acts, omissions or things outside Australia.

Existing statutory functions of the AFP

Currently, the AFP’s functions under section 8 of the AFP Act relate primarily to the following matters:

•       the provision of police services in relation to Commonwealth laws, places and property and the safeguarding of Commonwealth interests, and the investigation of State offences that have a federal aspect[12]

•       the provision of policing services to the ACT[13] and Jervis Bay Territory[14] and other external territories pursuant to Ministerial arrangements[15]

•       the performance of functions under other legislation including the Witness Protection Act 1994 and the Proceeds of Crime Act 2002[16]

•       the provision of protective and custodial functions pursuant to Ministerial direction[17] and

•       the provision of police services and police support services:

–      for the purpose of assisting or cooperating with an Australian or foreign law enforcement, intelligence or security or government or regulatory agency[18] or

–      in relation to establishing, developing and monitoring peace, stability and security in foreign countries.[19]

The component terms ‘police services’ and ‘police support services’ are also defined in section 4.[20]

Outline of proposed amendments

Item 2 of Schedule 1 proposes to insert new paragraph 8(1)(bh) which provides that the AFP’s functions include to assist or cooperate with ‘an international organisation’ or ‘a non-governmental organisation, in relation to acts, omissions or things outside Australia’. The assistance or cooperation provided by the AFP must be ‘in relation to the provision of police services or police support services’. According to the Minister for Justice:

The amendments will ensure that the AFP is able to share information with a range of organisations, depending on the types of investigations on foot and the changing criminal threat environment. International partnerships allow the AFP to meet operational challenges and threats and progress Australia's national interests.[21]

Item 1 of Schedule 1 proposes to insert a definition of the term ‘international organisation’ in subsection 4(1) of the AFP Act, which covers two types of bodies:

•       a ‘public international organisation’ as defined in section 70.1 of the Criminal Code—being, in broad terms:

–  an organisation of which two of more countries (or the governments of two or more countries) are members, or that is constituted by persons representing two or more countries or their governments or

–  an organisation that is established by an organisation of the above kind or

–  an organ, office, commission, council, committee, subcommittee or other body of an organisation of the kind described above or

•       a body, including an international judicial body:

–  established by or under an international agreement or arrangement, or otherwise under international law

–  established by a body of the above kind or

–  on which functions are conferred by or under an international agreement.

Policy justification

The Explanatory Memorandum states that the proposed amendments are required to reflect the importance of international cooperation in relation to the AFP’s core work across all crime types, due to the increasingly global nature of the crimes within its investigative and enforcement responsibilities.[22] It also comments that the organisations with which the AFP shares information ‘change regularly’ depending on the types of particular investigations and criminal threat environment, including because some bodies are established on an ad hoc basis to deal with specific investigations or threats.[23]

The Explanatory Memorandum further states that the AFP’s existing statutory functions with respect to international cooperation in paragraphs 8(1)(bf) and 8(1)(bg) ‘do not clearly encompass the AFP’s cooperation with international organisations or bodies made up of multiple member countries, for example, the International Criminal Court, ad hoc international war crimes tribunals, Interpol, Europol and United Nations Bodies, and the International Committee of the Red Cross and NGOs’.[24]

A contemporary example of an ad hoc international body in relation to which the new function might be exercised is the independent mechanism to assist in the investigation and prosecution of war crimes or crimes against humanity in Syria, established under United Nations General Assembly Resolution 71/248 of 19 December 2016.[25] The terms of reference for the independent mechanism, which were set by the UN Secretary General under the General Assembly Resolution, call on states to support the independent mechanism including through the provision of information relevant to its investigations and other assistance as required.[26]

Comment—safeguards with respect to international cooperation

Scope of application of the proposed new function

The Explanatory Memorandum identifies a general need for increased international cooperation and flexibility in relation to the international organisations with which the AFP may cooperate. It identifies several established bodies of an international judicial, governmental, policing or humanitarian character, in respect of which the new function would enable the AFP to provide assistance and cooperation, to the extent that such assistance and cooperation may not be covered by existing paragraphs 8(1)(bf) and 8(1)(bg).

However, the proposed definition of the term ‘international organisation’ in item 1 of Schedule 1 to the Bill extends significantly beyond organisations of the above kind, whose standing, functions and activities are generally recognised in the international community as being compatible with international law standards, particularly international human rights law.

Absence of information about applicable safeguards

The proposed amendments do not impose specific safeguards to ensure the new international cooperation and assistance functions are not exercised in a way that undermines Australia’s human rights obligations.

For example, the Bill does not contain, and the Explanatory Memorandum does not identify, any relevant safeguards against the AFP rendering assistance to, or cooperating with, an organisation that may engage in, or may be complicit in, human rights violations; or an organisation that may be affiliated with, or provide information or other assistance to, other organisations or foreign governments that do so.[27]

Apparently limited application of existing National Guidelines made under Part V of the AFP Act

The AFP Commissioner has made National Guidelines, which are part of the AFP’s professional standards framework under Part V of the AFP Act, in relation to various functions and activities of the AFP. While not all of the National Guidelines are publicly available, two publicly available National Guidelines that deal with the risk of human rights violations of a kind that could arise in relation to the proposed new function relate to:

•       offshore situations involving potential torture or cruel, inhuman or degrading treatment or punishment (TCIDTP)[28] and

•       international police-to-police assistance in relation to death penalty situations.[29]

However, these existing guidelines may not provide adequate safeguards in relation to the proposed international assistance and cooperation functions in new paragraph 8(1)(bh). In particular, the National Guideline on TCIDTP is limited in its application to dealing with ‘foreign authorities’ (defined as law enforcement, foreign security and intelligence agencies and agents of foreign governments).[30] The National Guideline on International Police-to-Police Assistance in Death Penalty Situations is limited in its application to international police-to-police situations.[31] Neither set of guidelines appears to extend to include cooperation with, or the provision of assistance to, international organisations as defined in the Bill (that is, multilateral international organisations or non-governmental organisations).

The safeguards provided by the National Guideline on International Police-to-Police Assistance in Death Penalty Situations have also been criticised by some commentators (generally human rights and civil liberties organisations and members of the legal profession) because the guideline does not prohibit the sharing of information in death-penalty situations. Rather, it requires the AFP’s senior management to consider relevant factors in making a decision before a person is detained, arrested, charged or convicted in relation to an offence that is punishable by the death penalty. It also requires Ministerial approval in relation to the provision of police-to-police assistance in post-detention, arrest, charge or conviction situations.[32]

Possible safeguards

In considering the proposed measures in Schedule 1 to the Bill, Members of the Parliament may wish to consider seeking information from the Government about whether a new National Guideline will be made in respect of the proposed function in new paragraph 8(1)(bh). (Some Parliamentarians might also wish to consider seeking an assurance from the Government that such a National Guideline will be made if the Bill is passed.)

Further consideration might be given to whether a new National Guideline would, in any event, provide an adequate or optimal safeguard. A stronger safeguard may be a statutory provision authorising the Minister to issue directions in relation to the types of organisations to which the AFP may provide assistance, or with which it may cooperate; and perhaps specify the types of organisations to which the AFP must not provide assistance or with which it must not cooperate. The prohibition might be either absolute, or conditional upon obtaining the Minister’s prior approval (or perhaps that of a senior AFP member under an authorisation or delegation).

The AFP has previously given evidence to the Human Rights Sub-Committee of the Joint Standing Committee on Foreign Affairs, Defence and Trade to the effect that a general Ministerial authorisation requirement in relation to police-to-police assistance in death penalty situations would impose an unduly onerous operational burden, as it would prevent the AFP from exchanging real-time information with foreign law enforcement partners.[33] A similar position might conceivably be adopted in relation to a proposal to subject the proposed function in new paragraph 8(1)(bh) to a Ministerial direction or authorisation requirement.

However, it might be questioned whether a Ministerial power along the lines outlined above (being a discretionary Ministerial direction power, as distinct to a mandatory, case-by-case approval requirement) could be designed to preserve an adequate degree of flexibility, while also providing a robust safeguard. Australia’s intelligence agencies are, under their respective governing legislation, required to act in accordance with any existing Ministerial directions (or in some cases prior authorisations or approvals) before cooperating with authorities of other countries, or other domestic or foreign bodies.[34] Greater alignment in this respect might be regarded as desirable.

Investigative questioning of Aboriginal and Torres Strait Islander persons (Schedule 2)

Schedule 2 proposes to amend the provisions of Part IC of the Crimes Act governing the questioning of persons for the purpose of investigating Commonwealth offences. In particular, it proposes to amend the obligations imposed upon investigating officials in section 23H in relation to the questioning of Aboriginal persons and Torres Strait Islanders who are under arrest, or who are being dealt with as ‘protected suspects’.[35]

The key proposed amendments would expressly require the investigating officer to notify an Aboriginal legal assistance organisation prior to the questioning of an Aboriginal or Torres Strait Islander person. The Explanatory Memorandum indicates that these measures are introduced in response to a 2013 decision of the ACT Supreme Court[36] in which it was held that existing subsection 23H(1) did not require an investigating official to notify an Aboriginal legal assistance organisation of the person’s presence in custody prior to commencing questioning.[37] The Explanatory Memorandum states that ‘this finding is contrary to the policy intention of subsection 23H(1), which is to implement safeguards for Aboriginals and Torres Strait Islanders arrested or taken into custody, giving effect to recommendation 224 of the report by the Royal Commission into Aboriginal Deaths in Custody’.[38]

Outline of existing obligations under section 23H

Currently, subsection 23H(1) imposes certain notification obligations on an investigating official in charge of investigating a Commonwealth offence, if that official believes on reasonable grounds that a person who is under arrest, or who is a protected suspect, is an Aboriginal person or a Torres Strait Islander.

Notification of an Aboriginal legal aid organisation of the person’s presence in custody

If the investigating official intends to question the arrestee or protected suspect in relation to the offence, then he or she must immediately inform the person that a representative of an Aboriginal legal aid organisation will be notified that the person is under arrest or is a protected suspect (as applicable) and notify such a representative accordingly. These obligations do not apply, however, if the investigating official is aware that the person has arranged for a legal practitioner to be present during the questioning.[39]

The term ‘Aboriginal legal aid organisation’ is defined in section 23B to mean ‘an organisation that provides legal assistance to Aboriginal persons and Torres Strait Islanders, being an organisation identified in the regulations for the purposes of this definition’.[40]

Conduct of questioning in the presence of an interview friend

In addition, if an investigating official believes, on reasonable grounds, that a suspect for a Commonwealth offence, or an arrestee or a protected suspect, is an Aboriginal person or a Torres Strait Islander, the investigating official must not question that person unless certain requirements are complied with.

In particular, the investigating official must not question the person unless an ‘interview friend’ is present during questioning and, before the start of the questioning, the official has allowed the person to communicate with the interview friend. The investigating official must ensure that, so far as practicable, the person’s communications with his or her interview friend cannot be overheard.[41]

The term ‘interview friend’ is defined as a relative or another person chosen by the person, the person's lawyer, a representative of an Aboriginal legal aid organisation, or another person whose name is included in a list maintained under subsection 23J(1).[42] (The latter provision imposes an obligation on the Minister to establish and update periodically a list of persons who are suitable and willing to help Aboriginal persons and Torres Strait Islanders who are under arrest and under investigation for Commonwealth offences.)[43]

A person generally has the right to choose his or her own interview friend. If the person does not do so, the investigating official must choose a representative of an Aboriginal legal aid organisation or a person on a list maintained under subsection 23J(1) to be the person’s interview friend.[44] Other provisions of the Crimes Act make provision for the use of interview friends in other circumstances (in relation to interviewing or performing forensic procedures on vulnerable persons, by reason of age or incapacity) and include specific provisions for interview friends for Aboriginal persons and Torres Strait Islanders in these circumstances.[45]

Proposed amendments

The proposed amendments in Schedule 2 make various changes to the procedures in section 23H and related provisions. Some of the key amendments are directed to the following purposes:

•       updating certain terminology, including amendments to replace the existing term ‘Aboriginal legal aid organisation’ with the term ‘Aboriginal legal assistance organisation’ to reflect modern usage. Schedule 2 also proposes to amend the substantive definition of the updated term ‘Aboriginal legal assistance organisation’ to remove the requirement that the Regulations must individually prescribe such organisations. Rather, the updated term will be defined to mean any organisation that is funded by the Commonwealth or a state or territory to provide legal assistance to Aboriginal persons or Torres Strait Islanders[46]

•       removing the obligations upon the Minister to maintain lists of interview friends and interpreters. Rather, if a person does not choose an interview friend, an investigating official must choose a representative of an Aboriginal legal assistance organisation in the relevant jurisdiction to be the person's interview friend[47]

•       amending subsection 23H(1) to require the investigating official to notify an Aboriginal legal assistance organisation that a person has been arrested or is being dealt with as a protected suspect before starting to question the person.[48] Other proposed amendments in relation to the obligation in subsection 23H(1) also:

–      provide greater details with respect to the existing requirement that an investigating official must notify an arrestee or a protected suspect that a representative of an Aboriginal legal assistance organisation will be notified. The investigating official will be required to specifically inform the person that all reasonable steps will be taken to notify an Aboriginal legal assistance organisation in the state or territory in which the person is located that the person is under arrest or a protected suspect (as the case requires)[49] and

–      provide that the investigating official must not question a person until that person has either had the opportunity to communicate with an Aboriginal legal assistance organisation, or a two-hour period has elapsed since the organisation was notified (thereby providing the organisation with an opportunity to respond if an initial attempt to make contact did not result in direct communication—for example, if a voicemail message was left).[50]

Other than the statement that certain proposed amendments to subsection 23H(1) have been introduced to respond to case law on the interpretation of that provision, the Explanatory Memorandum does not appear to identify a specific impetus for many of the proposed amendments in Schedule 2. Nor does it identify whether Aboriginal and Torres Strait Islander legal assistance providers or other relevant stakeholders were consulted in relation to the proposed amendments.

While the proposed amendments appear to be directed to enhancing procedural protections provided to Aboriginal persons and Torres Strait Islanders who are arrested or dealt with as protected suspects under Commonwealth law, Members of the Parliament may wish to consider seeking the views of relevant stakeholders, potentially via the referral of the Bill to a Committee for inquiry and report. This may help ensure that Aboriginal and Torres Strait Islander persons and their advocates have an opportunity to provide their views on the proposed measures, and may help to avoid potential unintended consequences.[51]

Disclosure offences applying to controlled operations (Schedule 3)

The proposed amendments in Schedule 3 relate to the offences in sections 15HK and 15HL of the Crimes Act with respect to the unauthorised disclosure of information relating to a controlled operation authorised or carried out under Part 1AB.

The controlled operations scheme

In broad terms, a controlled operation is a type of covert investigative method. Authorised law enforcement personnel and other authorised participants (including civilians, such as informers) conceal their identities in order to associate with persons who are suspected of being involved in serious criminal activities, for the purpose of gathering evidence that may lead to the prosecution of a person for a serious offence. In particular, authorised participants in controlled operations may take an active part in, or may otherwise be involved in, the commission of an offence or conduct that may result in civil liability, for the purpose of obtaining the relevant evidence.[52] The controlled operations scheme in Part IAB of the Crimes Act provides participants in authorised operations with a limited protection from legal liability in respect of authorised actions.[53] The scheme also provides that evidence adduced in a legal proceeding is not to be ruled inadmissible merely because it was obtained as a result of conduct that would, but for its authorisation as part of a controlled operation, constitute a criminal offence.[54]

The controlled operations scheme was established in its present form in 2010, as part of the implementation of model national legislation in individual Australian jurisdictions, which was designed to facilitate cross-border and multi-agency operations as part of a suite of measures to combat serious and organised crime.[55] Prior to the development and enactment of model national legislation, various jurisdictions had individually enacted legislative frameworks in relation to controlled operations carried out within their territorial jurisdiction.[56]

A significant catalyst for the establishment of legislative frameworks for the authorisation and conduct of controlled operations, and the use of evidence obtained in such operations, was the 1995 decision of the High Court in the case of Ridgeway v the Queen.[57] In that case, the court ruled inadmissible certain evidence obtained as part of a controlled operation that was conducted in the absence of a statutory scheme, in which AFP officers facilitated the controlled importation of an illicit drug by an informer for the purpose of apprehending and prosecuting the person who procured the importation. A majority of the High Court held that the balance of competing public interest considerations in securing the conviction of wrongdoers, and in discouraging unlawful conduct by law enforcement agencies, favoured the exclusion of the relevant evidence in that case. Accordingly, the court quashed the conviction of the person who procured the importation.[58]

Part IAB of the Crimes Act prescribes the requirements for the making and approval of applications for authorisations of operations,[59] the conduct of operations including conditions and limitations on the statutory protections from legal liability,[60] and record-keeping, reporting and oversight requirements.[61] It also contains offences for the unauthorised disclosure of information relating to a controlled operation.[62] These offences are outlined below.

The existing disclosure offences—sections 15HK and 15HL

Part IAB of the Crimes Act contains two offences in respect of persons who engage in unauthorised disclosures of information relating to controlled operations, which implement the model national law.[63]

Basic offence—section 15HK

Existing section 15HK creates a “basic offence” in relation to a person who intentionally[64] discloses information that relates to a controlled operation, reckless[65] as to the circumstance that the information relates to a controlled operation. It is punishable by a maximum penalty of two years’ imprisonment.

Aggravated offence—section 15HL

Existing section 15HL creates an “aggravated offence” that is punishable by a maximum penalty of 10 years’ imprisonment. It applies the elements of the basic offence summarised above, and the following elements of aggravation:

•       the person intends to endanger the health or safety of any person or prejudice the effective conduct of a controlled operation or

•       the disclosure will cause the above endangerment or prejudice, and the person is reckless in relation to this circumstance.[66]

Exceptions

Both offences are subject to exceptions in relation to disclosures of the following kinds:

•       disclosures in connection with the administration or execution of the controlled operations scheme in Part IAB

•       disclosures for the purposes of any legal proceedings arising out of or otherwise related to Part IAB, or any report of any such proceeding[67]

•       disclosures for the purpose of obtaining legal advice in relation to the controlled operation

•       disclosures in accordance with any requirement imposed by law

•       disclosures in connection with the performance of functions or duties, or the exercise of powers, of a law enforcement agency

•       certain disclosures in connection with a controlled operation conducted in connection with law enforcement integrity testing carried out by the Australian Commission for Law Enforcement Integrity (ACLEI)[68] and

•       good faith disclosures to the Commonwealth Ombudsman or the ACLEI in relation to alleged or suspected corruption or misconduct in relation to a controlled operation.[69]

A defendant bears an evidential burden in relation to establishing these exemptions, meaning that he or she must adduce or point to evidence suggesting a reasonable possibility that an exemption exists. If a defendant discharges his or her evidential burden, the prosecution must then discharge its legal burden to disprove the relevant matters beyond reasonable doubt.[70]

Rationale for the use of specific disclosure offences in relation to controlled operations

Broadly, the rationale for the above offences is to protect the integrity of controlled operations and the safety of participants by creating a disincentive to unauthorised disclosures of information relating to such operations.[71] Unauthorised disclosures of information concerning the existence or conduct of an extant operation may frustrate its effective conduct and may preclude subsequent prosecutions that might have relied upon evidence obtained in the operation. Persons who are the target of the investigation may alter their behaviour or conceal their activities or interfere with evidence to avoid detection upon becoming aware of the operation. Further, unauthorised disclosures of information about either an extant operation or a concluded operation could potentially jeopardise the lives or safety of participants and their families or associates, who may be the target of recriminations by persons subject to investigation or their associates.

Impetus for the proposed amendments

As mentioned above, it has been reported that the introduction of the proposed amendments in Schedule 3 reflects an agreement reached between Liberal Democrats Senator David Leyonhjelm and the Government to introduce corresponding amendments to sections 15HK and 15HL to those recently made to similar disclosure offences in section 35P of the ASIO Act.[72]

Section 35P of the ASIO Act contains similar disclosure offences in relation to a covert intelligence collection scheme established under the ASIO Act in 2014 (special intelligence operations) that was modelled broadly on the provisions of the controlled operations regime. The disclosure offences proved controversial due to their apprehended impact on freedom of speech, particularly the potential that they may expose journalists to criminal liability, should they seek to report on instances of serious wrongdoing in connection with a special intelligence operation. The Government ultimately referred the offences to the Independent National Security Legislation Monitor (INSLM) to review their potential impact on journalists.[73]

The INSLM recommended that secrecy offences should continue to apply to the special intelligence operations regime, subject to some amendments. In particular, the INSLM recommended the enactment of discrete offences for so-called ‘insiders’ who are involved in the conduct of a special intelligence operation, and so-called ‘outsiders’ who are not. It was recommended that the ‘outsiders’ offence should require proof that the person knows or is reckless that the disclosure would cause harm, or intended to cause harm in making the disclosure. The INSLM also recommended that the ‘outsiders’ offence should be subject to an offence-specific defence of ‘prior publication’ in relation to the disclosure of information that is already in the public domain, provided that the defendant was not involved (directly or indirectly) in the prior publication; and that the defendant has reason to believe that the subsequent disclosure was not damaging.[74]

Outline of proposed amendments

The proposed amendments repeal existing sections 15HK and 15HL and insert new section 15HK containing four new offences in total (comprising a basic offence and an aggravated offence applying to so-called ‘insiders’ and ‘outsiders’) and a defence of prior publication in relation to the ‘outsiders’ offences.[75] The proposed amendments retain the existing maximum penalties of two years’ imprisonment for the basic offences, and 10 years’ imprisonment for the aggravated offences.

The ‘insiders’ offences (entrusted persons)

New subsections 15HK(1) and 15HK(1B) (item 2) contain the new offences for so-called insiders, who are referred to in the provisions as ‘entrusted persons’.

Entrusted persons

The term ‘entrusted person’ is proposed to be defined in section 15GC (item 1) as a participant in a controlled operation, or a range of other persons who are in some way connected with a controlled operation. They include, in summary: members of the AFP and state and territory police forces; officers or employees of other government agencies and integrity agencies; officers of the Commonwealth Ombudsman; and persons who have entered into a contract, agreement or arrangement with a law enforcement agency, a government or integrity agency or the Commonwealth Ombudsman.

The Explanatory Memorandum indicates that this definition is intended to capture all those persons who might come into the knowledge or possession of information relating to a controlled operation, because of their relationship with or position in an agency that is able to authorise, conduct or review a controlled operation.[76]

Elements of the offences

The basic offence in new subsection 15HK(1) applies if:

•       the person is, or has been an entrusted person[77]

•       the information came to the knowledge or into the possession of the person in the person’s capacity as an entrusted person (and the person is reckless in relation to this circumstance)

•       the person intentionally discloses the information and

•       the information relates to a controlled operation (and the person is reckless in relation to this circumstance).

The aggravated offence in new subsection 15HK(1B) applies if either or both of the following elements of aggravation apply, in addition to the elements comprising the basic offence:

•       the person intends to endanger the health or safety of any person, or prejudice the effective conduct of a controlled operation

•       the disclosure will endanger the health or safety of any person or prejudice the effective conduct of a controlled operation (and the person is reckless in relation to this circumstance).

The ‘outsiders’ offences (other disclosures)

Elements of the offences

The basic offence applicable to persons who are not entrusted persons receiving information in that capacity (for example, journalists) requires proof of harmful effects of the disclosure. New subsection 15HK(1D) contains the following elements:

•       the person intentionally discloses information

•       the information relates to a controlled operation (and the person is reckless in relation to this circumstance)

•       the disclosure will endanger the health or safety of any person or prejudice the effective conduct of a controlled operation (and the person is reckless in relation to this circumstance).

The aggravated offence applicable to persons who are not entrusted persons receiving information in that capacity in new subsection 15HK(1E) contains the first two elements in the basic offence above (the disclosure of information that relates to a controlled operation) and either or both of the following elements of aggravation:

•       the person intends to endanger the health or safety of any person or prejudice the effective conduct of a controlled operation

•       the person knows that the disclosure will endanger the health or safety of any person or prejudice the effective conduct of a controlled operation.

This means that a person who is not subject to the offences in relation to entrusted persons will not be culpable if he or she does not have the requisite fault in relation to any consequent harm arising from disclosure (including because there is no discernible harm or risk of harm in relation to a disclosure).

Prior publication defence

New subsection 15HK(4) contains a prior publication defence to the offences in new subsections 15HK(1D) and 15HK(1E). It applies if:

•       the information has already been communicated or made available to the public (the prior publication)

•       the defendant was not involved in the prior publication, whether directly or indirectly

•       at the time of the disclosure, the defendant believes that the disclosure:

–      will not endanger the health or safety of any person and

–      will not prejudice the effective conduct of a controlled operation

•       having regard to the nature, extent and place of the prior publication, the person has reasonable grounds for that belief.

Consistent with the general principles of criminal responsibility set down in subsection 13.3(3) of the Criminal Code, a defendant who seeks to rely upon this defence bears the evidential onus.[78]

Comment

Alignment of disclosure offences in relation to controlled operations and special intelligence operations

While there are some significant differences between the controlled operations and special intelligence operations schemes, these differences do not necessarily tend against the alignment of their respective disclosure offences. Given that the offences shared a common structure when they were originally enacted, alignment seems to be a logical course of action.

A further factor tending in favour of alignment of the structure of the offences is the possibility that some controlled operations may be conducted in relation to similar subject matter to a special intelligence operation. For example, a controlled operation might be conducted for the purpose of investigating offences against the security of the Commonwealth under Chapter 5 of the Criminal Code, which may mean that they cover subject matter that also falls within the definition of ‘security’ under the ASIO Act and could be the subject of a special intelligence operation. As such, it is legally possible that a major controlled operation carried out by the AFP under Part IAB of the Crimes Act, and a special intelligence operation carried out by ASIO under Division 4 of Part III of the ASIO Act, might target the same entities of security concern. For example, both types of operations might be used to infiltrate a terrorist organisation. (Although it is acknowledged that the respective operations would be conducted for the separate purposes of law enforcement and intelligence collection, and the particular information or matter obtained as evidence or intelligence may be different in relation to each operation.)[79]

One outstanding question, however, is whether the approach taken to the framing of the offences in section 35P of the ASIO Act should provide the basis for alignment of the disclosure offences applying to special intelligence operations and controlled operations, or whether another model may be preferable as a matter of policy.[80]

Technical and legal policy issues in the design of the new offences

The Library’s Bills Digest on the legislation amending section 35P of the ASIO Act identified a number of technical and legal policy issues in relation to the design of the new offences in that Act.[81] Several of these issues are also relevant to the proposed amendments to the disclosure offences in relation to controlled operations, including:

•       the question of whether the disclosure offences should be accompanied by a public interest defence, noting that many stakeholders and some Parliamentarians have supported such a defence

•       the potential that the prior publication defence may have limited, if any, practical utility (as opposed to a largely symbolic effect) because the conduct to which it would apply does not appear to be captured by the substantive elements of the relevant offences

•       the potential that the application of strict liability in relation to certain elements of the offences applying to ‘entrusted persons’ may have limited utility, due to some potentially overlapping requirements of proof in relation to other elements of the offences that do not apply strict liability and

•       whether there is a need to place the current Ministerial direction requiring the Attorney-General’s consent to the commencement of prosecutions in certain circumstances on a legislative foundation.

Additionally, the proposed amendments raise several issues of national consistency and interaction in relation to disclosure offences under Commonwealth, state and territory controlled operations legislation. In particular:

•       the proposed amendments may fail to achieve their objectives because the disclosure offences under state and territory legislation implementing the model national controlled operations law apply, on their face, to unauthorised disclosures of information relating to Commonwealth controlled operations and

•       the unilateral amendment of the Commonwealth offences may call into question the overall effectiveness of the model national legislation in facilitating cross-border law enforcement activities in respect of serious and organised crime.

Should there be a public interest defence?

Several stakeholders participating in parliamentary and independent inquiries into the comparable disclosure offence in section 35P of the ASIO Act expressed support for a ‘public interest’ defence. Their position may apply equally to the disclosure offences in relation to controlled operations.[82]

The INSLM considered that the case for enacting a public interest defence in relation to section 35P of the ASIO Act ‘is not sufficient if section 35P is amended as recommended’ (that is, by inserting harm elements in the basic offence applying to outsiders and creating a prior publication defence).[83] However, stakeholders and commentators have noted that the proposed amendments would fail to address their major concern that section 35P of the ASIO Act (and, by extension, the offences in sections 15HK and 15HL of the Crimes Act) do not provide adequate scope for journalists (and others) to disclose information in the public interest. For example, a person who makes a disclosure of allegations of serious wrongdoing, such as unauthorised conduct or corruption, in the course of a controlled operation might intend to prejudice the conduct of that operation, by causing it to be terminated or altered significantly to eradicate the unauthorised conduct.[84] Accordingly, the need for, or desirability of, a public interest defence appears to be a policy issue in respect of which reasonable minds may differ. The various policy considerations tending in favour of, and against, a public interest defence appear to be delicately balanced, and the balance may shift over time. The evident diversity of opinions about the existence and framing of the disclosure offences and defences suggests that the task of reconciling or prioritising different interests may rest, to a significant extent, upon a normative or value-based judgment about the appropriate balance between interests in freedom of expression and interests in law enforcement or security, rather than a largely technical exercise in legal analysis.

The issue may benefit from ongoing parliamentary and public deliberation to ensure that the ultimate policy position takes into account contemporary community standards and other relevant circumstances, and is reached in a transparent and participatory manner.

Potential limitations in the utility of the prior publication defence

It is difficult to see how the prior publication defence in new subsection 15HK(4) will, in practical terms, add significant additional protection to the requirements of proof in relation to the harm-related elements of the ‘outsider’ offences in new paragraphs 15HK(1D)(c) and 15HK(1E)(c).

That is, the effect of the proposed defence in new subsection 15HK(4) is that the ‘outsider’ offences in new subsections 15HK(1D) and 15HK(1E) do not apply to a person who believes,[85] on reasonable grounds,[86] that a disclosure of previously published information will not cause the harm or damage of the kind specified in new paragraphs 15HK(1D)(c) and 15HK(1E)(c).[87]

Yet the ‘outsider’ offences in new paragraphs 15HK(1D)(c) and 15HK(1E)(c) apply to persons who (respectively) are reckless that their disclosure will cause harm of the same kind as that specified in new subparagraph 15HK(4)(c)(i) or subparagraph 15HK(4)(c)(ii); or who know or intend that their disclosure will cause such harm.

In other words, if a person discloses information that he or she believes on reasonable grounds will not endanger health or safety, or will not prejudice the effective conduct of a controlled operation, then it is difficult to envisage how he or she might credibly be at risk of prosecution in the first place and therefore have need to rely upon the proposed prior publication defence.[88]

It is also worth noting that the MEAA was critical of the prior publication defence in section 35P of the ASIO Act in relation to journalists. The MEAA described the defence as creating ‘a game of chicken for journalists’ in that ‘any journalist seeking to be the first to publish a legitimate news story would face prosecution while any subsequent story written after that point would be defensible’ provided that the elements of the defence were satisfied.[89]

Potential limitations in the utility of strict liability in relation to ‘entrusted persons’ offences

As mentioned above, the offences in new subsections 15HK(1) and 15HK(1B) apply strict liability to the circumstance of a person’s status as an entrusted person in paragraph (a) of each provision. Strict liability relieves the prosecution of the requirement to prove fault in relation to this physical element. The applicable fault element under section 5.6 of the Criminal Code would have been recklessness.

However, it is questionable whether the application of strict liability to paragraphs 15HK(1)(a) and 15HK(1B)(a) will ultimately be effective in relieving the prosecution of the requirement to prove that a person was reckless as to his or her status as an entrusted person. This is because strict liability does not apply to the physical elements in paragraphs 15HK(1)(b) and 15HK(1B)(b). These elements require proof of the circumstance that the relevant information came into the person’s knowledge or possession in his or her capacity as an entrusted person, and proof of the attendant fault element that the person was reckless in relation to this circumstance.

Arguably, the task of proving that a person was aware of a substantial risk that information came into his or her knowledge or possession in a specific capacity or by reason of a specific status (namely, as an ‘entrusted person’) will necessarily require proof that the person adverted to the possibility that he or she possessed that capacity or held that status. If this proposition is accepted, the application of a fault element to the physical elements in paragraphs 15HK(1)(b) and 15HK(1B)(b) would seem to neutralise the potential benefit in applying strict liability to paragraphs 15HK(1)(a) and 15HK(1B)(a). Consideration might therefore be given to adopting a consistent approach in relation to the application (or otherwise) of fault elements to paragraphs (a) and (b) of new subsections 15HK(1) and 15HK(1B).

A possible statutory prosecutorial consent requirement

The Attorney-General issued a direction to the Commonwealth Director of Public Prosecutions (CDPP) on 30 October 2014 under section 8 of the Director of Public Prosecutions Act 1983. This direction relevantly requires the CDPP to obtain the Attorney-General’s consent to proceed with a proposed prosecution of a person for an alleged offence against section 15HK or 15HL (among other disclosure offences) ‘where the person is a journalist and the facts constituting the alleged offence relate to the work of the person in a professional capacity as a journalist’.[90]

As a minimum, if the Bill is passed, this direction will require consequential amendment to delete the reference to section 15HL, which will become obsolete. Consideration might also be given to whether the prosecutorial consent requirement in the direction should be given a statutory basis, which is the usual way in which such consent requirements are given effect. A legislative consent requirement may strengthen the value of Ministerial consent to prosecutions as a legal safeguard against the aberrant use of the offences, since legislation (unlike Ministerial directions) cannot be revoked or amended unilaterally by the executive.[91]

Further consideration might be given to whether the Ministerial consent requirement should be expanded to cover the proposed prosecutions of all persons, or prosecutions of additional categories of persons to journalists. This might alleviate difficulties in defining a journalist for the purpose of the consent requirement.[92] It could also prevent arbitrariness in excluding from the consent requirement other persons who may seek to disclose matters for the purpose of contributing to analysis and debate of public interest matters (such as academics and researchers).[93]

National consistency issues

The offences in existing sections 15HK and 15HL adopt provisions of the model national law developed in 2003. Other than South Australia, all Australian states and territories have enacted corresponding offence provisions in their respective controlled operations legislation.[94] Unilateral amendment of the Commonwealth offences means that prospective defendants would be subject to different legal standards in relation to disclosures of information relating to a controlled operation, depending on whether the operation was established under a Commonwealth or state or territory law. Accordingly, the Commonwealth’s proposed departure from the provisions of the model national law may undermine the intent of the model national law, particularly in relation to multi-jurisdictional responses to serious and organised crime.

Exposure to prosecution under state or territory offences for disclosures about Commonwealth operations

A further issue is that several state and territory disclosure offences apply to the disclosure of information that relates to a controlled operation authorised under the relevant state or territory law, or a controlled operation authorised under a corresponding law of another Australian jurisdiction. Hence, a person might be exposed to prosecution under a state or territory offence in respect of a disclosure of information that relates to a Commonwealth controlled operation.

This raises the question of how the proposed ‘outsider’ offences in new subsections 15HK(1D) and (1E) might interact with the basic and aggravated offences under state and territory controlled operations laws. (Noting that the state and territory offences implement the provisions of the model national law. The basic offences do not require proof of a person’s fault in relation to the harmful effects of disclosure, and the aggravated offences apply to persons who are reckless about the harmful effects of disclosure.)

In particular, two questions arise. First, might it be legally possible that a person could be exposed to prosecution for a basic offence under a state or territory law for a disclosure of information that relates to a Commonwealth controlled operation, in the absence of proof of his or her fault in relation to harm? Secondly, might it be legally possible that a person who discloses information that relates to a Commonwealth controlled operation, and is reckless as to its harmful effects, could be exposed to prosecution for an aggravated offence under a state or territory law, and therefore subject to a higher maximum penalty of 10 years’ imprisonment?

It is arguable that sections 109 and 122 of the Constitution would operate to prevent the above outcomes. It is arguable that the basic and aggravated disclosure offences under state and territory laws are inconsistent with the ‘outsider’ offences in new subsections 15HK(1D) and (1E) for the purposes of section 109 of the Constitution (state laws) and section 122 of the Constitution (territory laws) to the extent they would otherwise apply to disclosures of information about Commonwealth controlled operations. If an inconsistency was held to exist for the purposes of sections 109 and 122 of the Constitution, the Commonwealth offences would prevail to the extent of the inconsistency.

A basis for inconsistency may be that the state and territory basic disclosure offences would criminalise conduct that is deliberately left untouched by the Commonwealth basic offence for ‘outsiders’. (Namely, the Commonwealth offence deliberately does not criminalise the disclosure of information about a Commonwealth controlled operation by an ‘outsider’ who is not reckless in relation to the circumstance that the disclosure would prejudice the conduct of the controlled operation or endanger the safety of another person.)[95] A further basis for inconsistency may be that the aggravated disclosure offences under state and territory laws treat an element of the proposed basic ‘outsider’ offence under Commonwealth law as an element of aggravation, and therefore a more serious form of offending that exposes a person to a higher maximum penalty.[96]

However, the existence of either or both forms of constitutional inconsistency is not certain. Much may depend on the construction of the scope and purpose of the individual provisions. There may be scope for argument about different interpretations, which may reflect differences in the weight given to various legislative features. This may ultimately lead to litigation involving collateral challenges to prosecutions or appeals against convictions.[97] Further, the mere possibility of exposure to criminal liability under state or territory laws might deter persons from making disclosures of information relating to Commonwealth controlled operations, even though they would not contravene the basic ‘outsider’ offence in new subsection 15HK(1D).

It would be open to the Parliament to seek to provide a greater degree of certainty by enacting a provision in Part IAB of the Crimes Act that deals expressly with the intended interaction of the disclosure offences under Commonwealth and state and territory controlled operations laws. Such a provision might state that it is the intention of the Parliament that the disclosure offences applying to ‘outsiders’ in new subsections 15HK(1D) and (1E) should operate to the exclusion of the disclosure offences under state and territory controlled operations laws, to the extent that the state and territory offences apply to disclosures of information relating to Commonwealth controlled operations.[98] Importantly, a provision of this kind could qualify or clarify the application of the general statement of Parliament’s intention in existing section 15GB of the Crimes Act that the Commonwealth controlled operations scheme in Part IAB of the Crimes Act should operate concurrently with state and territory laws, to the extent that the laws are capable of concurrent operation.[99]

An express statement of the Parliament’s intention to exclude the concurrent operation of state and territory disclosure offences may also have practical benefits. It may provide a degree of assurance to the community about the intended approach to the enforcement of the disclosure offences forming part of the national scheme of controlled operations laws. This could limit the potential deterrent or “chilling effect” that could arise from possible exposure to liability under state or territory laws, and help to ensure that the objectives of the proposed amendments are realised.

Inconsistencies in Commonwealth, state and territory offence provisions may have a chilling effect on journalism

Inconsistencies in the framing of disclosure offence provisions under Commonwealth, state and territory controlled operations legislation may present additional practical difficulties for journalists seeking to report on law enforcement activities that might potentially be controlled operations, but the applicable jurisdiction’s laws may not be apparent to an outsider. (For example, it might appear from a journalist’s observations of operational activity that there are multiple police forces involved in a potential controlled operation, and it may not be evident to the journalist which jurisdiction’s controlled operations laws would apply.)

Even if a journalist made inquiries of police media units in an attempt to obtain clarification of the applicable laws, it is possible that he or she may not receive a definitive response. For example, the response may decline to confirm or deny the existence of a controlled operation. It is conceivable that a journalist in such a scenario may take the more cautious approach of assuming that the controlled operation (if it exists) is governed by the laws of the state or territory in which he or she has observed the operational activity, with the result that the broader basic disclosure offences apply, which do not require proof of fault in relation to the harmful effects of a disclosure. This may create a disincentive to the journalist pursuing a story, or to his or her employer publishing it.

Possible leadership role for the Commonwealth in promoting harmonisation

While the provisions of state and territory laws are, of course, a matter for individual state and territory legislatures, it remains to be seen whether the Commonwealth is playing, or could play, a leadership role in promoting the harmonisation of Commonwealth, state and territory offence provisions in relation to controlled operations. Members of the Parliament may wish to raise this matter with the Government in the course of scrutinising or debating the Bill.

Maximum penalties for dishonesty offences (Schedule 4)

Schedule 4 proposes to increase the maximum penalties applying to certain offences in Division 135 of Part 7.3 of the Criminal Code in respect of general dishonesty in relation to a person’s dealings with a Commonwealth entity or a Commonwealth public official.

In particular, section 135.1 contains offences in respect of persons who engage in acts or omissions with the intention of dishonestly obtaining a gain from, or causing a loss or risk of loss to, a Commonwealth entity.[100] A further offence applies to persons who engage in acts or omissions with the intention of dishonestly influencing a Commonwealth public official in the exercise of the public official’s duties as a Commonwealth public official.[101] These offences are currently punishable by a maximum penalty of five years’ imprisonment.

Item 1 proposes to double the maximum penalty for the above offences in subsections 131.5(1), 131.5(3) and 131.5(5) to 10 years’ imprisonment.

Item 2 provides for the prospective commencement of the proposed amendments in item 1. (That is, they will apply to conduct engaged in on or after the commencement of Schedule 4, being the day after Royal Assent.)

Rationale for the proposed amendments—parity with penalties for deception offences in Division 134

The Explanatory Memorandum indicates that the proposed amendments are intended to align the maximum penalties for the general dishonesty offences in section 135.1 with those applying to other offences in relation to serious fraud in Division 134 of Part 7.3 of the Criminal Code. (Namely, offences for obtaining by deception property belonging to a Commonwealth entity, contrary to section 134.1; and obtaining by deception a financial advantage from a Commonwealth entity, contrary to section 134.2.)[102]

The Explanatory Memorandum states that the need for the proposed amendments was identified through the operational experience of the CDPP in prosecuting general dishonesty offences under section 135.1 (or considering such matters for prosecution). The Explanatory Memorandum refers to observations attributed to the CDPP that, in some cases, conduct alleged to constitute a general dishonesty offence against section 135.1 has been equally serious to, or more serious than, conduct constituting the deception offences in sections 134.1 and 134.2. However, the lower maximum penalty for offences against section 135.1 (five years’ imprisonment) as opposed to the penalties for offences against sections 134.1 and 134.2 (10 years’ imprisonment) limits the ability of courts to impose a sentence that reflects the objective gravity of the offending. The Explanatory Memorandum therefore suggests that parity of maximum penalties would desirably invest sentencing courts with discretion to impose comparable sentences for conduct involving comparable levels of culpability.[103]

It was noted that creating parity of maximum penalties may be important in relation to the prosecution’s choice of charges in particular circumstances. Namely, in cases that involve a continuum of behavior by a prospective defendant that could potentially be prosecuted as a large number of counts in relation to the deception offences in sections 134.1 or 134.2; or as a single count under the general dishonesty offences in section 131.5 (for example, on the basis that a series of individual actions comprised a single criminal enterprise between specified dates; or formed part of an ongoing course of conduct).[104] Currently, in such cases, the prosecution may face a choice between one of the following approaches:

•       prosecuting ‘representative charges’ in relation to a selection of counts under sections 134.1 or 134.2.[105]
This course may be necessary to avoid overloading the indictment, since the inclusion of a count for each and every alleged criminal action may result in a very large number of counts (potentially into the hundreds) or

•       prosecuting a single count in relation to section 135.1 as a ‘between dates’ charge[106] or perhaps as an ongoing course of conduct by the defendant.[107]

There is a risk that, in some instances, neither option may enable a court to impose a sentence that adequately reflects the defendant’s culpability. It is possible that representative charges in relation to the deception offences in sections 134.1 and 134.2 may not reflect the full extent of the defendant’s criminal conduct. Accordingly, if the defendant is convicted, it might not be open to a court to impose a sentence that reflects offending at the upper end of the spectrum in relation to the representative charges. However, the lesser maximum penalty of five years’ imprisonment in relation to the general dishonesty offence under section 135.1 (as constituted by the defendant’s course of conduct, or a ‘between dates’ charge) might not provide a court with an adequate basis upon which to impose a sentence that would reflect the gravity of the wrongdoing.

The Explanatory Memorandum suggests that aligning the maximum penalties, as proposed by item 1 of Schedule 4 to the Bill, would ensure that sentencing courts are invested with flexibility to impose higher penalties for conduct constituting a higher level of offending, while also retaining discretion to impose lower penalties for less serious conduct.[108]

Comment—determining the appropriate ‘gradation’ of penalties as between Divisions 134 and 135

The proposed amendments appear to depart somewhat from the original policy intention underlying the demarcation of the general dishonesty offences in section 135.1 from the more specific deception-related offences in sections 134.1 and 134.2 of the Criminal Code, and the application of different maximum penalties to each category of offence. An issue the Parliament may wish to consider is whether there is an adequate case, as a matter of policy, to revise the gradation of penalties as between these categories of offences. Some potentially relevant considerations are discussed below.

Original policy justification—demarcation of deception and dishonesty offences, and gradation of penalties

The Explanatory Memorandum to the originating Bill, the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Bill 2000 (the 2000 Bill),[109] indicates that the offences in Divisions 134 and 135 were intended to replace an “umbrella offence” then contained in section 29D of the Crimes Act, which covered most forms of fraud against the Commonwealth and was considered to be unacceptably broad.[110] It was intended that the deception offences in Division 134 should target ‘more serious’ conduct than that covered by the general dishonesty offences in Division 135 and therefore attract a higher maximum penalty of 10 years’ imprisonment, as opposed to five years’ imprisonment for the general dishonesty offences. The higher maximum penalty for the offences in Division 134 was said to recognise the higher degree of culpability arising from a person’s engagement in deception in addition to dishonesty, whereas the general dishonesty offences in Division 135 did not require proof of deception.[111]

The Explanatory Memorandum to the 2000 Bill stated that the distinction between the two categories of offences and their maximum penalties ‘merely reflects the reality of how courts are likely to sentence under [the previous offence in] section 29D [of the Crimes Act]. Where deception is not proven, the sentence will invariably be lower’.[112]

Is there a need to revisit the original policy justification for the gradation of penalties?

It may be timely for the Parliament to consider whether the policy position advanced in 2000 remains appropriate in contemporary circumstances. That is, should offences that require proof of dishonesty, but not deception, necessarily or invariably attract a lesser sentence than offences that require proof of both, and therefore merit a lesser maximum penalty? The information provided in the Explanatory Memorandum to the present Bill tends to suggest that the original policy justification adopted in 2000 may have proven problematic in relation to the enforcement of offences that are constituted by a continuing course of conduct or involve a ‘between dates’ charge. The result appears to be that some criminal conduct has effectively “fallen between the two stools” of the categories of offences in Divisions 134 (deception) and 135 (general dishonesty) in terms of what can be sentenced.[113]

Further, the gradation of penalties as between the deception offences in Division 134 (initially conceptualised as ‘more serious’) and the general dishonesty offences in Division 135 (initially conceptualised as ‘less serious’) is not absolute. For example, section 135.4 contains the offences of conspiracy to dishonestly obtain a gain from, or cause a loss or risk of loss to, a Commonwealth entity;[114] and the offence of conspiracy to dishonestly influence a Commonwealth public official in the exercise of the public official’s duties as a Commonwealth public official.[115] These offences are punishable by a maximum penalty of 10 years’ imprisonment. They were inserted by the 2000 Bill. It was said that, although the offences did not require proof of deception, the fact that they involved an agreement between one or more persons meant that a maximum penalty of 10 years’ imprisonment was considered appropriate as a matter of policy.[116]

Potential unintended or unacknowledged consequences—sentencing of ‘lower level’ offending

However, an issue that may merit further consideration is whether the proposed increase in maximum penalties for the general dishonesty offences in section 135.1 may have unintended consequences for the sentencing of persons who are convicted of such offences, in respect of lower-level offending (being offending that is at the less serious end of the spectrum of criminality).

The High Court has held that an increase in the maximum penalty for an offence is an indication to sentencing courts that sentences for that offence should be increased.[117] A significant increase in the maximum penalty for a particular offence may be taken as conveying the view of the Parliament in relation to community standards about the seriousness of the offence, and courts are required to give effect to that view.[118]

The proposed doubling of the maximum penalty in relation to the general dishonesty offences in section 135.1 appears to be intended to facilitate the imposition of higher sentences in relation to conduct that is considered to be ‘high level’ offending (being conduct at the upper end of the spectrum of criminality). However, the offences in section 135.1 appear to have a significant breadth of application, both in terms of the diverse range of subject-matter to which they may apply, and the potentially significant variations in the relative gravity of the offending behavior that is capable of being prosecuted.[119] The extrinsic materials to the Bill refer only to the policy intention in relation to the sentencing of so-called ‘high level’ offending. They do not acknowledge or provide justification for the potential impacts of the Bill on the sentencing of lower-level offending (having regard to the principles outlined above that the maximum penalty for an offence is an indication of its relative seriousness, and may therefore be interpreted by sentencing courts as a signal that they should apply increased penalties across the board to give effect to the legislative intent).

It may be that such an outcome in relation to the sentencing of lower-level offending is appropriate as a matter of policy. However, the lack of information addressing this issue in the extrinsic materials to the Bill precludes an analysis of any position and supporting reasoning the Government may have adopted. If there is a view that the existing maximum penalty of five years’ imprisonment enables courts to impose adequate sentences upon persons convicted of lower-level offending, it might be questioned whether it would be preferable to give effect to the policy intent to apply stronger penalties to ‘high level offending’ in another way. For example, the policy intent could be given effect by enacting a new offence in Division 135, which contains specific elements that target the particular forms of so-called ‘high level’ offending sought to be covered by the proposed doubling of the maximum penalties for the offences in section 135.1. The conspiracy offence in section 135.4 appears to provide a precedent for an approach of this kind, involving the enactment of a discrete offence in Division 135 with a higher maximum penalty than the penalties for the offences in section 135.1.[120]

Removal of obsolete references to the death penalty (Schedule 5)

Schedule 5 proposes to amend three provisions of the Crimes Act that contain obsolete references to the death penalty. Item 2 removes an obsolete reference in subsection 20C(2), which provides that a person under 18 years convicted of a Commonwealth offence cannot be sentenced to death, where the maximum penalty is the death penalty. Items 1 and 3 contain consequential amendments to provision numbering and cross-references.

The Explanatory Memorandum to the Bill notes that the death penalty was abolished for offences against the laws of the Commonwealth and the territories by the Death Penalty Abolition Act 1973, and the prohibition was extended to offences under the laws of all states and territories by the Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Act 2010. Accordingly, it states that the protection provided by subsection 20C(2) is unnecessary because the above legislation has foreclosed the possibility of any individual in Australia receiving the death penalty.[121]

Protections for vulnerable witnesses or complainants (Schedule 6)

Schedule 6 proposes to amend section 15YR of the Crimes Act, which contains some protections in relation to the identity of child witnesses[122] or vulnerable adult complainants[123] in criminal proceedings. In particular, subsection 15YR(1) creates an offence for the publication of any matter identifying (or likely to lead to the identification of) a child witness or vulnerable adult complainant, without the leave of the court.[124]

Subsections 15YR(3)–(6) collectively establish the arrangements by which a person may apply to the court for leave in relation to a proposed publication, and prescribes various matters governing the judicial consideration and determination of applications for leave.[125] Subsection 15YR(6) provides that an application for leave must be in writing, and must not be determined before the court has considered such submissions and such evidence as it thinks necessary for determining the application.

Item 1 proposes to repeal subsection 15YR(6) and substitute new subsections 15YR(6)-15YR(10), which prescribe more detailed requirements for the application process. Item 2 provides for the prospective commencement of the measures in item 1 (that is, applications made on or after commencement).

Key amendments proposed to be made by item 1 include a requirement that the applicant must take reasonable steps to provide written notice of the application to the prosecutor, each defendant, and the child witness or vulnerable adult complainant (or parent, guardian or legal representative).[126] The written notice must be given no later than three business days before the application is to be heard, and must be accompanied by a copy of the application.[127] The court must not determine the application unless it is satisfied that the applicant has complied with the reasonable steps requirement, and has considered such submissions and other evidence as it thinks necessary for determining the application.[128]

The Explanatory Memorandum states that these measures are intended to ‘better promote procedural fairness’ although it does not identify a specific practical or policy related impetus for the proposals, beyond the general rationale of continuous improvement in relation to all of the proposed measures in the Bill.[129] The proposed amendments appear to be reasonable measures to promote consistency and certainty in the making of applications for leave to publish identifying information, and to ensure that all parties are given advance notice of an imminent application, and are afforded an opportunity to make submissions if desired.[130]

Commonwealth fraud prevention and investigation arrangements (Schedule 7)

Schedule 7 proposes to insert a new Part VIID in the Crimes Act, which creates a scheme authorising the collection, use and disclosure of personal information by Commonwealth entities, for the purposes of preventing, detecting, investigating or dealing with fraud or corruption against the Commonwealth.

Impetus for the proposed amendments—independent review recommendation

The proposed amendments purport to implement a recommendation of the Independent Review of Whole-of-Government Internal Regulation, which was undertaken by former senior public servant, Barbara Belcher, on the referral of the Australian Public Service (APS) Secretaries Board in 2015.[131]

The Review examined the Commonwealth fraud control framework, under which fraud control arrangements are the responsibility of individual agencies, including the initial investigation of alleged or suspected fraud.[132] The Review received evidence suggesting that ‘entities have different positions or are unsure how they may use and disclose personal information to investigate fraud and meet certain compliance functions and legal obligations under the Commonwealth fraud control framework’ which ‘creates duplication of effort by entities and law enforcement agencies’.[133] The review recommended that the Attorney-General’s Department coordinate work with relevant stakeholders to identify and address issues associated with entities’ authority to seek and disclose personal information relevant to a fraud investigation.[134]

The Review further noted that the Office of the Australian Information Commissioner (OAIC) had advised the Attorney-General’s Department that a privacy impact assessment should be undertaken, to consider the extent to which sharing information in response to a fraud investigation is already permitted by the Australian Privacy Principles (APPs) under the Privacy Act 1988.[135]

The Review noted the OAIC’s suggestion that, where information-sharing is not permitted, the privacy impact assessment should consider whether the sharing of that personal information is reasonable, proportional and necessary to investigate and deal with fraud; and if so, the assessment should also consider options for permitting information sharing under the APPs. The Review also noted the OAIC’s proposal that the Fraud Rule, contained in section 10 of the Public Governance, Performance and Accountability Rule 2014 could be amended to include a specific provision authorising the sharing of personal information between entities when investigating or otherwise dealing with fraud incidents.[136]

Approach to implementation

The Explanatory Memorandum to the Bill states that the Crimes Act was identified as the appropriate legislation to establish the scheme due to ‘the complex interaction of provisions between the PGPA Act, the Privacy Act, the legal relationship between law enforcement and non-law enforcement agencies, and other relevant laws’.[137]

The Explanatory Memorandum also states that ‘a Privacy Impact Assessment has been conducted measuring the privacy impacts of Schedule 7 and ensuring that privacy risks have been considered and mitigated’.[138] However, it does not appear that either the privacy impact assessment itself, or a summary of its findings in relation to key privacy risks and an analysis of options for their treatment, have been made publicly available.

Key aspects of the proposed scheme

The key proposed amendments are made by item 3 of Schedule 7, which inserts new Part VIID.[139] Core features of the scheme are outlined below. On balance, the new scheme appears to be proportionate to the purpose to which it is directed, and contains safeguards to protect privacy and limitations on the scope of disclosures.

In broad terms, new Part VIID will authorise a ‘target entity’ to collect and use personal information[140] for specified ‘integrity purposes’ relating to that entity.[141]

The term ‘target entity’ is defined as a ‘Privacy Act agency’ or a ‘wholly owned Commonwealth company’.[142]

An ‘integrity purpose’ is defined to mean the purpose of preventing, detecting, investigating or dealing with:

•       misconduct of a serious nature[143] by an official, employee, agent or officer or

•       conduct that may have the purpose or effect of inducing misconduct or

•       fraud[144] that may have a substantial adverse effect[145] on the target entity or

•       an offence against Chapter 7 of the Criminal Code (relating to the proper administration of government, such as theft and other property offences, fraudulent conduct, false or misleading statements, unwarranted demands, bribery and forgery).[146]

New Part VIID also makes provision for the disclosure of personal information to a target entity, and for target entities to share personal information with each other, for integrity purposes. In particular, it provides an authorisation for the purpose of other Commonwealth, state or territory laws that limit the disclosure of personal information, unless the relevant disclosure is authorised by a law of the Commonwealth (for example, privacy and secrecy laws). This enables any person, body or authority to disclose personal information to a target entity, if the person, body or authority reasonably believes that the personal information is related to one or more of the target entity's functions or activities.[147] The disclosing person or entity may be a Commonwealth, state or territory agency, or an individual. However, for a target entity to avail itself of the abovementioned authorisation, the relevant disclosure must be made for the target entity, by a person who has been authorised by the head of the target entity to make disclosures for integrity purposes.[148] However, this requirement expressly excludes the AFP. The Explanatory Memorandum states that this is intended to ‘preserve existing mechanisms on information sharing already in place under the AFP Act and further underpinned by extensive internal policy’.[149]

The proposed amendments further provide that the Secretary of the Attorney-General’s Department may publish guidelines approved by the Information Commissioner on the operation of new Part VIID.[150] The Explanatory Memorandum states that the guidelines are intended to ‘provide greater clarity regarding the operation of [Part VIID]’ and ‘help to ensure entities understand the interaction between the new Part and their obligations under the Privacy Act’.[151]

Information-sharing with respect to spent convictions (Schedule 8)

Schedule 8 makes minor amendments to the information-sharing provisions in Part VIIC of the Crimes Act with respect to spent convictions for Commonwealth and certain state or territory offences.[152]

Currently, Subdivision B of Division 6 of Part VIIC permits the use and disclosure of information relating to spent convictions by ‘law enforcement agencies’ for the purpose of those bodies performing their respective functions. The term ‘law enforcement agency’ is defined in section 85ZL to include various Commonwealth, state and territory agencies, including police forces, public prosecutions agencies, and agencies with specialised anti-corruption and organised crime functions.[153]

Item 1 of Schedule 8 proposes to insert new paragraph (bc) in the definition of ‘law enforcement agency’ in section 85ZL, to include the Law Enforcement Conduct Commission of New South Wales (NSW LECC). This reflects the recent establishment of NSW LECC in 2016, to replace the former Police Integrity Commission and the Police Division of the Office of the Ombudsman.[154]

Item 1 also proposes to amend the definition of a ‘law enforcement agency’ to include ‘a similar body [to the NSW LECC] established under a law of another State’. This will ensure that information about spent convictions can be disclosed to and by police integrity commissions established in all jurisdictions, to the extent that their police integrity bodies may be separate to their police forces and general anti-corruption agencies.

The Explanatory Memorandum notes that the proposed amendments bring the Commonwealth spent convictions scheme into line with that in New South Wales, which was recently amended to define the NSW LECC as a law enforcement agency for the purpose of the State spent convictions scheme.[155] Hence, this amendment appears to be largely technical to reflect the creation of a new State agency. While the Explanatory Memorandum does not comment specifically on the expansion of the definition to include the police integrity bodies of other states and territories, the inclusion of this provision is consistent with the treatment of state and territory anti-corruption commissions or commissioners in section 85ZL. (Paragraphs 85ZL(f) and 85ZL(fa) apply to the New South Wales Independent Commission Against Corruption and the South Australian Independent Commissioner Against Corruption, and similar agencies or office-holders in other states.)

Concluding comments

The Bill contains an assortment of proposed measures directed to the continuous improvement of the legislative framework supporting the Commonwealth criminal justice system.

Several measures appear to be relatively minor, technical or otherwise uncontroversial in nature, such as the proposed amendments in Schedule 5 (repealing obsolete references to the death penalty); Schedule 7 (sharing of personal information between Commonwealth agencies with respect to fraud investigations); and Schedule 8 (sharing of information about spent convictions with State police integrity bodies).

Some measures appear to enhance the rights or protections afforded to vulnerable persons in their engagement with the criminal justice system, such as the proposed measures in Schedule 2 (notification of an Aboriginal legal assistance organisation prior to the investigative questioning of an Indigenous person) and Schedule 6 (protection of the identity of vulnerable witnesses and complainants in Commonwealth criminal proceedings).

Other proposed measures will have, or may potentially have, a limiting effect on individual rights and liberties, or may increase a person’s exposure to criminal penalties or human rights violations. These measures may merit further scrutiny so that members of the Parliament may be satisfied of the case for enacting them, and the adequacy of safeguards attending their operation. In particular, the following issues may merit detailed scrutiny:

•       safeguards in relation to the AFP’s performance of its new function in Schedule 1 to provide assistance to, or cooperate with, international organisations and non-governmental organisations to ensure that such cooperation or assistance does not violate Australia’s international law obligations. A particular issue is the availability of legal safeguards against the risk that the AFP may cooperate with or assist entities that may be involved in, or associated with, human rights violations—especially in circumstances in which the relevant cooperation or assistance could contribute to specific human rights violations, or might in a more general sense strengthen the capacity of the relevant organisation or associates to engage in human rights violations

•       the design of the proposed new offences in Schedule 3 for the disclosure of information relating to a controlled operation and in particular: whether the offences should be subject to a defence for disclosures in the public interest; whether there is a need for a Ministerial consent requirement to proposed prosecutions; and the potential that exposure to liability under state or territory offences for the disclosure of information relating to a Commonwealth controlled operation may undermine the effectiveness of the amendments to the Commonwealth offences[156]

•       the proposed doubling of the maximum penalties for the general dishonesty offences in Schedule 4 and, in particular, whether there is a policy case for aligning the maximum penalties with those applying to deception offences, and whether the proposed increase may have unintended or unacknowledged consequences for the sentencing of lower-level offenders.

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[1].              The term ‘omnibus Bill’ refers to a Bill containing proposed amendments to a range of Acts administered by a single portfolio, or related legislation administered by multiple portfolios. An omnibus Bill is considered suitable for minor and relatively non-controversial amendments, including non-urgent amendments of an ‘administrative or housekeeping nature’. Such amendments can be stockpiled until a convenient opportunity arises to consolidate them in an omnibus Bill. See: Department of the Prime Minister and Cabinet (PM&C), Legislation handbook, PM&C, Canberra, February 2017, pp. 21–22. Omnibus legislation to amend various criminal and related procedural laws is introduced and enacted periodically. See, for example, Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015; Crimes Legislation Amendment (Powers and Offences) Act 2012; and Crimes Legislation Amendment (Miscellaneous Matters) Act 2008.

[2].              M Keenan, Minister for Justice, ‘Second reading speech: Crimes Legislation Amendment (Powers, Offences and Other Measures Act) 2017’, House of Representatives, Debates, 30 March 2017, p. 3803.

[3].              R Gyles, Report on the impact of journalists of section 35P of the ASIO Act, Independent National Security Legislation Monitor, Canberra, October 2015. See also: G Brandis (Attorney-General), Government response to INSLM report on the impact of journalists of section 35P of the ASIO Act, media release, 2 February 2016; and Counter-Terrorism Legislation Amendment Act (No 1) 2016, Schedule 18. The amendments to section 35P of the ASIO Act made by the latter Act commenced on 30 November 2016.

[4].               B Belcher, Independent review of whole-of-government internal regulation: report to the secretaries committee on transformation: volume 1: recommendations, (Belcher Red Tape Review), Department of Finance, Canberra, August 2015.

[5].               Law Enforcement Conduct Commission Act 2016 (NSW) (LECC Act). See further: T Grant (Deputy Premier and Minister for Justice, NSW), New law enforcement watchdog for NSW, media release, 26 November 2015; and T Grant (Minister for Police and Emergency Services, NSW), Justice Michael Adams appointed chief commissioner of new police watchdog, media release, 3 February 2017. (The new body replaces the Police Integrity Commission and the Police Division of the Office of the Ombudsman.)

[6].               Senate Selection of Bills Committee, Report, 4, 2017, The Senate, Canberra, 30 March 2017, p. 4.

[7].               S Benson ‘Security law changes to protect journalists’, The Australian, 16 February 2017, p. 8.

[8].              MEAA, The chilling effect: report into the state of press freedom in Australia in 2017, May 2017, p. 20.

[9].              Ibid.

[10].               Explanatory Memorandum, Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017, p. 4.

[11].               The Statement of Compatibility with Human Rights can be found at page 6 of the Explanatory Memorandum to the Bill.

[12].               Paragraphs 8(1)(b) and 8(1)(baa), subsection 8(2) and section 4AA of the AFP Act.

[13].               Paragraph 8(1)(a) and subsection 8(1A).

[14].               Paragraph 8(1)(aa).

[15].               Paragraph 8(1)(ba) and subsections 8(1C) and 8(1D).

[16].               Paragraphs 8(1)(bb)–8(1)(bd).

[17].               Paragraph 8(1)(be).

[18].               Paragraph 8(1)(bf).

[19].               Paragraph 8(1)(bg).

[20].               Subsection 4(1) provides an inclusive definition of police services, which includes ‘services by way of the prevention of crime and the protection of persons from injury or death, and property from damage, whether arising from criminal acts or otherwise’. Subsection 4(1) defines police support services to mean ‘(a) the provision of police services by an Australian or foreign law enforcement agency; or (b) the provision of services by a Australian or foreign intelligence or security agency; or (c) the provision of services by an Australian or foreign regulatory agency’.

[21].              Keenan, op. cit., p. 12.

[22].               Explanatory Memorandum, Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017, p. 27.

[23].               Ibid., p. 26.

[24].               Ibid., p. 27.

[25].               International, Impartial and Independent Mechanism to assist in the Investigation and Prosecution of those Responsible for the Most Serious Crimes under International Law committed in the Syrian Arab Republic since March 2011, A/RES/71/248, 21 December 2016.

[26].               United Nations Secretary General, ‘Note to correspondents: international, impartial and independent mechanism to assist in the investigation and prosecution of those responsible for the most serious crimes under international law committed in the Syrian Arab Republic since March 2011’, United Nations website, 26 January 2017. See also: J Bishop (Minister for Foreign Affairs) and C Fierrevanti-Wells (Minister for International Development and the Pacific), Australia supports UN investigations into violations of international law and human rights abuses in Syria, joint media release, 28 February 2017 (announcing Australia’s contribution of $150,000 in start-up funding for the mechanism).

[27].               The Statement of Compatibility (at p. 8) is limited to an examination of the privacy impacts of the proposed measures. The commentary in the Notes on Clauses section (at pp. 25–27) is silent in relation to safeguards.

[28].              AFP, National guideline on offshore situations involving potential torture or cruel, inhuman or degrading treatment or punishment, n.d., (National Guideline on TCIDTP). Note that this guideline has been published under the AFP’s Information Publication Scheme under the Freedom of Information Act 1982 and may not be the current version.

[29].              AFP, National guideline on international police-to-police assistance in death penalty situations, n.d. This guideline does not appear to have been made available under the AFP’s Information Publication Scheme under the Freedom of Information Act 1982. However, the AFP appended a copy of this National Guideline to its submission to the Human Rights Committee of the Joint Standing Committee on Foreign Affairs, Defence and Trade inquiry into Australia’s advocacy for the abolition of the death penalty in September 2015. (See Attachment A, p. 13.) This may not be the current version of the guideline. The AFP gave evidence to the above inquiry in January 2016 that it intended to review the guideline: Joint Standing Committee on Foreign Affairs, Defence and Trade, A world without the death penalty: Australia’s advocacy for the abolition of the death penalty, May 2016, p. 62.

[30].              AFP, National guideline on TCIDTP, p. 2, section 3 (definition of ‘foreign authorities’).

[31].              AFP, National guideline on international police-to-police assistance in death penalty situations, op. cit., especially at section 6 (‘this guideline applies only to the provision of assistance, including the sharing of information, which can be provided on a police-to-police basis’) and section 7 (policy for cooperation with foreign law enforcement agencies).

[32]               See, for example, the summary of stakeholder views in: Joint Standing Committee on Foreign Affairs, Defence and Trade, Human Rights Subcommittee, op. cit., Chapter 4 (law enforcement and the death penalty) especially at pp. 53–60. See further: M Whitbourn, ‘Bid to tighten AFP policy to stop death penalty’, Sydney Morning Herald, 3 February 2017, p. 10.

[33].              Joint Standing Committee on Foreign Affairs, Defence and Trade, op. cit., p. 57 at [4.38].

[34].              See, for example, ASIO Act subsection 19(1) (ASIO may, subject to any arrangements made or directions given by the Minister cooperate with various entities, including authorities of other countries approved by the Minister, and any other person or body within Australia). See also: Intelligence Services Act 2001, subsection 13(1) (the Australian Secret Intelligence Service, the Australian Signals Directorate and the Australian Geospatial Intelligence Organisation may, subject to any arrangements made or directions given by the responsible Minister for each agency, cooperate with various other entities, including authorities of other countries approved by the Minister).

[35].              Subsection 23B(2) defines the term ‘protected suspect’. In effect, this term applies to a person who is in the company of an investigating official and has not been charged with, nor arrested for, an offence, but who is not free to leave, or perceives that he or she is not free to leave. (The concept of ‘protected suspect’ in the Crimes Act replaces that of ‘deemed arrest’). As such, many of the procedural provisions in Part 1C are applied to protected suspects, with a view to conferring safeguards and protections.

[36].              R v CK (2013) 281 FLR 309, [2013] ACTSC 251 (13 December 2013) at [23] (per Burns J).

[37].              Explanatory Memorandum, Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017, p. 9.

[38].              Ibid. (Recommendation 224 is ‘that pending the negotiation of protocols referred to in Recommendation 223 [regarding the procedures and rules governing areas of interaction between police and Aboriginal people] in jurisdictions where legislation, standing orders or instructions do not already so provide, appropriate steps be taken to make it mandatory for Aboriginal Legal Services to be notified upon the arrest or detention of any Aboriginal person other than such arrests or detentions for which it is agreed between the Aboriginal Legal Services and the Police Services that notification is not required’: Royal Commission into Aboriginal Deaths in Custody, National report volume 4: protocols, Australian Government Publishing Service (AGPS), Canberra, April 1991 at [29.4.3]–[29.4.6]. See also: Royal Commission into Aboriginal Deaths in Custody, National report volume 2, AGPS, Canberra, April 1991, at Chapter 13.)

[39].              Subsection 23H(1). Some further exceptions apply under section 23L, including if the investigating officer believes on reasonable grounds that compliance with the requirement is likely to result in an accomplice of the person taking steps to avoid apprehension; or the interference with evidence or witnesses.

[40].              See further: Crimes Regulations 1990, regulation 6A and Schedule 3A.

[41].              Subsection 23H(2). However, the person may expressly and voluntarily waive his or her right to an interview friend: paragraph 23H(2)(d).

[42].              Subsection 23H(9).

[43].              Subsection 23J(3) also imposes an obligation on the Minister to maintain a similar list in relation to interpreters.

[44].              Subsections 23H(2A) and 23H(2B).

[45].              See, for example, section 23K (interviewing of persons less than 18 years of age) and section 23WB (forensic procedures in relation to suspects, offenders or volunteers who are children or incapable persons).

[46].              Items 1 and 2. See also: Explanatory Memorandum, Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017, p. 27.

[47].              Item 9 (see also items 6, 7, 8, 10, 13 and 14). The Explanatory Memorandum notes that the repeal of the requirement to maintain a list of interview friends and interpreters reflects that these lists quickly become outdated and are generally not utilised in practice: Explanatory Memorandum, Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017, pp. 29–30.

[48].              Item 3. See also: Explanatory Memorandum, Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017, p. 9 and pp. 27–28. (See further item 15, which makes similar amendments to item 4, in relation to subsection 23WG(4), concerning the performance of forensic procedures in relation to Aboriginal persons and Torres Strait Islanders who are suspects.)

[49].              Item 4. See also: Explanatory Memorandum, Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017, p. 28.

[50].              Item 5. See also: Explanatory Memorandum, Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017, pp. 28–29.

[51].              For example, in the case of the proposed amendments made by item 5, it might be open to question whether additional safeguards are needed where the proposed two-hour period applies under new paragraph 23H(1AB)(b) after the investigating officer notifies an Aboriginal legal assistance organisation, in order to ensure the person’s health, safety and wellbeing during this period of ‘down-time’. It might also be questioned whether a similar safeguard to that in new subsection 23H(1AB) is needed in relation to consent to forensic procedures under subsection 23WG(4) as amended by item 15. These issues, and the proposed amendments as a whole, could benefit from the views of persons or organisations outside government with experience in supporting Aboriginal persons and Torres Strait Islanders in their interactions with the criminal justice system.

[52].              See especially section 15GD (meaning of controlled operation) and subsection 15GI(2) (authorisation criteria for controlled operations).

[53].              Sections 15HA (protection from criminal responsibility), 15HB (indemnification against civil liability) and 15HE (protection from criminal responsibility for ancillary conduct).

[54].              Section 15GA.

[55].              Standing Committee of Attorneys-General and the Australasian Police Ministers Council Working Group on National Investigation Powers, Cross-border investigative powers for law enforcement, Report, November 2003, Parts 1–5 (model law on controlled operations). See also: Crimes Legislation Amendment (Serious and Organised Crime) Act 2010, Schedule 3 (which enacted the model controlled operations legislation in Part 1AB of the Crimes Act). See further: Explanatory Memorandum, Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009, pp. 51–53 and pp. 56–94 (commentary on the provisions of the originating Bill to enact Part IAB of the Crimes Act).

[56].              Standing Committee of Attorneys-General and the Australasian Police Ministers Council Working Group on National Investigation Powers, op. cit., pp. 2–3.

[57].              Ridgeway v R (1995) 184 CLR 19, [1995] HCA 66 (Mason CJ, Deane, Dawson, Brennan, Toohey and Gaudron JJ; McHugh J dissenting).

[58].              Ibid., per Mason CJ, Deane and Dawson JJ at [36]–[38]; Brennan J at [15]–[17]; Toohey J at [30]; and Gaudron J at [38]–[42]. See also: McHugh J in dissent at [34]–[37] (citations refer to paragraph numbers of judgments in the medium neutral judgment as hyperlinked).

[59].              Part IAB, Division 2 (especially Subdivision A).

[60].              Part IAB, Division 3.

[61].              Part IAB, Division 4.

[62].              Sections 15HK and 15HL.

[63].              Standing Committee of Attorneys-General and the Australasian Police Ministers Council Working Group on National Investigation Powers, op. cit., pp. 111–113. See further: Explanatory Memorandum, Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009, pp. 85–86.

[64].              Subsection 5.6(1) of the Criminal Code provides that, if an offence does not specify a fault element, intention is the fault element for a physical element of an offence that is conduct (in this case, disclosure). Subsection 5.2(1) of the Criminal Code provides that a person has intention with respect to conduct if he or she means to engage in that conduct (for example, if the person means to engage in the conduct constituting a disclosure such as sending an email or verbally communicating information).

[65].              Subsection 5.6(2) of the Criminal Code provides that, if an offence does not specify a fault element, recklessness is the fault element for a physical element of an offence that is a circumstance in which conduct occurs (in this case, that the information disclosed relates to a controlled operation). Subsection 5.4(1) of the Criminal Code provides that a person is reckless in relation to a circumstance if he or she is aware of a substantial risk that the circumstance exists, and having regard to the circumstances known to him or her at the material time, it is unjustifiable to take the risk. (In this case, the defendant was aware of a substantial risk that the information he or she disclosed related to a controlled operation, and having regard to the circumstances known to the defendant, he or she acted unjustifiably in making the disclosure).

[66].              The fault element of recklessness applies to this physical element by reason of subsection 5.6(2) of the Criminal Code (summarised above). Recklessness can also be satisfied by proof of a person’s knowledge of the relevant circumstance.

[67].              This may include, for example, prosecutions of the offences under investigation in the controlled operation and media reports of such proceedings (subject to any suppression or non-publication orders a court may make in relation to certain evidence).

[68].              See further, Crimes Act, Part IABA (integrity testing).

[69].              Subsections 15HK(2)–(3) and 15HL(2)–(3).

[70].              Criminal Code, subsection 13.3(3).

[71].              Standing Committee of Attorneys-General and the Australasian Police Ministers Council Working Group on National Investigation Powers, op. cit., p. 111.

[72].              Benson, op. cit.

[73].              The legislative history and post-enactment review of section 35P is summarised in: Gyles, op. cit., Appendix B, pp. 33–55; and C Barker and C Raymond, Counter-Terrorism Legislation Amendment Bill (No 1) 2016, Bills digest, 20, 2016–17, Parliamentary Library, Canberra, 10 October 2016, pp. 49–52.

[74].              Gyles, op. cit., pp. 3–4.

[75].              Item 2 (new subsections 15HK(1) to (1E) containing the four offences), item 4 (new subsection 15HK(4) containing the prior publication defence) and item 1 (definition of ‘entrusted person’ in section 15GC for the purpose of the ‘insiders’ offences). Items 3, 5 and 6 make consequential amendments.

[76].              Explanatory Memorandum, Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017, p. 32.

[77].              Note that new subsection 15HK(1A) provides that strict liability applies to this physical element. Under section 6.1 of the Criminal Code the key effect of strict liability is that the prosecution is not required to prove the defendant’s fault in relation to this element (which would otherwise have been that the defendant was reckless as to his or her status as an entrusted person). The Explanatory Memorandum states at p. 35 that strict liability is considered to be justified in these circumstances, as it is the person's access to sensitive information by reason of his or her status as an entrusted person (and not his or her subjective understanding as to his or her status) that is the relevant factor.

[78].              See further the policy justification provided in Explanatory Memorandum, Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017, p. 37 (noting that the relevant matters are peculiarly within the knowledge of the defendant on the basis that they relate to his or her subjective awareness of a prior publication, and state of mind as to the effects of the disclosure).

[79].              For example, the controlled operation may be conducted to obtain admissible evidence in relation to a prosecution for a terrorist organisation offence in Division 102 of the Criminal Code; whereas a special intelligence operation in relation to the same organisation may be conducted to enable ASIO to gain close access to the organisation in order to collect intelligence that enables ASIO build a detailed understanding of the organisation, for the purpose of performing its statutory functions in relation to security.

[80].              See also, MEAA, The chilling effect: the report into the state of press freedom in Australia in 2017, op. cit., p. 23. (The MEAA argues that replicating the approach taken to section 35P of the ASIO Act extends the practice of criminalising public interest journalism.)

[81].              Barker and Raymond, op. cit., pp. 52–63.

[82].              Major stakeholders included media organisations, human rights and civil liberties organisations, and members of the legal profession including legal academics. For a summary of views, see: Gyles, op. cit., Appendix E, pp. 66–77. See also: MEAA, The chilling effect: the report into the state of press freedom in Australia in 2017, op. cit., p. 23.

[83].              Ibid., p. 27.

[84].              K Hardy, ‘Despite changes, terror law will still curb freedom’, The Conversation, 5 February 2016. See also, MEAA, Journalists still face jail under ASIO Act changes, media release, 3 February 2016; and MEAA, The chilling effect: the report into the state of press freedom in Australia in 2017, op. cit., p. 23.

[85].              New paragraph 15HK(4)(c) (belief that the disclosure will not cause harm).

[86].              New paragraph 15HK(4)(d) (reasonable grounds for belief).

[87].              That is, endangerment of the health or safety of any person or prejudicing the effective conduct of a controlled operation. These forms of harm are prescribed in new subparagraphs 15HK(4)(c)(i) and (ii) for the purpose of the prior publication defence.

[88].              A similar point was made in 1991 in the independent review of Commonwealth criminal laws chaired by the former Chief Justice of the High Court of Australia, Sir Harry Gibbs (Gibbs Review). This review noted that ‘in relation to the categories of information, disclosure of which would … attract criminal sanctions only on proof of harm, there would appear to be little requirement for a specific defence of prior publication’. The Gibbs Review ultimately recommended the enactment of a defence of prior publication, to take account of ‘the limited categories of information as to which this Report proposes no requirement for proof of harm’. See: Review of Commonwealth Criminal Law (Australia), Review of Commonwealth criminal law: final report, (chair: H Gibbs), AGPS, Canberra, 1991, at [31.33] and [31.34].

[89].              MEAA, Journalists still face jail under ASIO Act changes, op. cit. See also: MEAA, The chilling effect: the report into the state of press freedom in Australia in 2017, op. cit., p. 18.

[90].              Ministerial Direction (Commonwealth Director of Public Prosecutions), 30 October 2014, GN Gazette C2014G02068, 15 December 2014. The direction applies to other disclosure offences in section 35P of the ASIO Act (special intelligence operations) and section 3ZZHA of the Crimes Act (delayed notification search warrants). The CDPP has also issued a National Legal Direction requiring prosecutors to obtain the consent of the Director to any proposed prosecutions for the disclosure offences listed in the Attorney-General's direction, in advance of seeking the Attorney-General's consent. See: CDPP, Prosecuting offences for the unauthorised disclosure of information relating to controlled operations, special intelligence operations or delayed notification search warrants, National Legal Direction, 1 December 2014.

[91].              The Attorney-General’s Department (AGD) and ASIO made a joint submission to the Independent National Security Legislation Monitor (INSLM) in January 2015 supporting a statutory consent requirement in relation to the similar disclosure offence provision in section 35P of the ASIO Act, which cited similar reasons to those outlined above: AGD and ASIO, Joint submission to the Acting INSLM, Inquiry into section 35P Australian Security Intelligence Organisation Act 1979: disclosure offences relating to special intelligence operations, submission no. 8, January 2015, p. 29.

[92].              Such difficulties might have adverse impacts on prosecutions. For example, there may be a risk that a defendant might seek to collaterally challenge a prosecution on the basis that he or she was a journalist but Ministerial consent was not sought or obtained in respect of the prosecution, because the prosecution took a different view of the meaning of the term ‘journalist’ and therefore determined that the Ministerial consent requirement did not apply to the particular prosecution.

[93].              The National Tertiary Education Union (NTEU) has called for the prosecutorial consent requirement in relation to section 35P of the ASIO Act to be extended to academics and researchers, and has referred to its correspondence with the Office of the Attorney General in March 2015, in which the Office indicated the Government’s intention to consider this matter: JT Kwok (NTEU), ‘Attorney-General to consider further protections for academics from s 35P’, NTEU website, 30 March 2015. (The relevant correspondence is published on this website.)

[94].              Law Enforcement (Controlled Operations) Act 1997 (NSW), section 20R; Crimes (Controlled Operations) Act 2004 (Vic), section 36; Police Powers and Responsibilities Act 2000 (Qld), section 266; Criminal Investigation (Covert Powers) Act 2012 (WA), section 35; Police Powers (Controlled Operations) Act 2006 (Tas), section 26; and Police (Special Investigative and Other Powers) Act 2015 (NT), section 28. Note that South Australia did not implement the model national law and its legislation, the Criminal Investigation (Covert Operations) Act 2009 (SA) (Part 2), does not contain a comparable disclosure offence. Further, the ACT has implemented the disclosure offences in the model national law with some variations—namely, to limit its application to so-called 'insiders'—and implements different penalties for the type of harm caused by the disclosure, being two years' imprisonment for prejudice to the effective conduct of an operation, and 10 years' imprisonment for endangering the health and safety of any person: Crimes (Controlled Operations) Act 2008 (ACT), section 26.

[95].              Dickson v R (2010) 241 CLR 491, [2010] HCA 30 (22 September 2010) especially at [15]–[22] (per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ). The High Court unanimously held that the offence of conspiracy to steal property in the Crimes Act 1958 (Vic) was inconsistent with the offence of conspiracy to commit theft of Commonwealth property in the Criminal Code Act 1995 (Cth) and accordingly quashed the appellant’s conviction under the state law. The court held, at [22], that there was a direct inconsistency between the offences because the state offence provision ‘renders criminal conduct not caught by, and indeed deliberately excluded from, the conduct rendered criminal by ... the Commonwealth Criminal Code ... The state legislation, in its application to the presentment upon which the appellant was convicted, would undermine and, to a significant extent, negate the criteria for the existence and adjudication of criminal liability adopted by the federal law’.

[96].              There may be some uncertainty as to whether this could amount to a ground of inconsistency (direct or indirect). In broad terms, the High Court has reached different conclusions about whether differences in maximum penalties applied to Commonwealth and state offences that cover the same subject matter amount to an inconsistency under section 109. See, for example, Momcilovic v The Queen (2011) 245 CLR 1, [2011] HCA 34 (8 September 2011); R v Loewenthal; Ex parte Blacklock (1974) 131 CLR 338, [1974] HCA 36 (25 September 1974); and Hume v Palmer (1926) 38 CLR 441, [1926] HCA 50 (6 December 1926). See also: Re Grace Bros Pty Limited v Magistrates of the Local Courts of New South Wales (1988) 84 ALR 492, [1988] FCA 389 (8 November 1988).

[97].              For example, in Momcilovic v The Queen, op. cit. the High Court was divided in relation to whether drug trafficking offences under Victorian law were inconsistent with Commonwealth offences covering the same subject matter. The majority held that there was no inconsistency because the relevant Commonwealth offence was not an exclusive or exhaustive prescription of criminal responsibility in relation to the subject matter. However, Hayne J, in dissent, found that there was inconsistency, placing weight on different features of the legislation to the majority—namely, differences in maximum penalties, sentencing principles and requirements of criminal procedure at trial (particularly requirements for jury unanimity).

[98].              While such a provision would not be determinative, it may be relevant to the construction of the Commonwealth provisions: R v Credit Tribunal; Ex parte General Motors Acceptance Corporation (1977) 137 CLR 545, [1977] HCA 34 (22 June 1977) at [28] (per Mason J). Alternatively, a statement of intention could be included in the Explanatory Memorandum, which would be relevant to the interpretation of new section 15HK of the Crimes Act by reason of section 15AB of the Acts Interpretation Act 1901.

[99].              The High Court has held that provisions expressing Parliament’s intention that Commonwealth and state and territory laws should operate concurrently are not determinative of this matter, but create ‘a greater likelihood of a concurrent operation of the two laws in question’. See, for example, Momcilovic v The Queen, op. cit, at [272] (per Gummow J). Hence, it is possible that the general statement of intent in section 15GB of the Crimes Act could be construed as a factor tending in favour of the concurrent operation of the disclosure offences. Accordingly, the enactment of an express provision dealing specifically with the intended exclusive operation of the Commonwealth disclosure offences, in the circumstances proposed above, could limit this risk.

[100].              Criminal Code, subsections 131.5(1), 135.1(3) and 131.1(5).

[101].              Criminal Code, subsection 135.1(7).

[102].              Explanatory Memorandum, Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017, p. 38.

[103].              Ibid., pp. 38–39. (For an example of the circumstances in which an offence against section 135.1 may be of equal or greater seriousness to an offence against section 134.1 or 134.2, see: CDPP, Dishonesty offences under the Criminal Code, Practice Group Instructions: Commercial, Financial and Corruption, instruction no. 3, July 2014, p. 2, paragraph [6]. This instruction refers to the example of a fraudulent scheme that consists of numerous instances of a person obtaining property by deception, contrary to s 134.1. Each instance, when taken individually, may be relatively minor. However, when added together (for example, when construed as part of a single enterprise or a continuing course of conduct) their combined effect may amount to serious fraud. The continuing course of conduct or single criminal enterprise may constitute an offence against section 135.1. Yet there is presently a disparity in the maximum penalties applying to the respective deception offences in sections 134.1 and 134.2, and the general dishonesty offences in section 135.1.)

[104].              Explanatory Memorandum, Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017, pp. 38–39. The Explanatory Memorandum (at p. 39) refers to evidence of a representative of the CDPP to the Senate Standing Committee on Economics inquiry into civil, criminal and administrative penalties for white collar crime in December 2016, which identified (among other issues) inconsistent statutory penalties including in relation to section 135.1 of the Criminal Code. See: S Kirne (Practice Group Leader, Commercial, Financial and Corruption, CDPP), Evidence to Senate Economics References Committee, Inquiry into criminal, civil and administrative penalties for white-collar crime, 6 December 2016, pp. 52–53; and Senate Economics References Committee, ‘Lifting the fear and suppressing the greed’: penalties for white-collar crime and corporate and financial misconduct in Australia, The Senate, Canberra, March 2017, p. 26 at [2.43]. See also: CDPP, Dishonesty offences under the Criminal Code, op. cit.

[105].              Representative charges are used where a court sentences an offender for a limited or representative number of offences, on the basis that those offences are part of a wider course of conduct involving similar behaviour. A useful summary of representative charges in relation to Commonwealth offences is provided in: Australian Law Reform Commission (ALRC), Same crime, same time: sentencing of federal offenders, ALRC Report 103, April 2006 at [6.59]–[6.66].

[106].              ‘Between dates’ charges can be brought for alleged offences where the individual transactions or actions to which a charge relates form part of a single criminal enterprise and therefore constitute a single offence. The following example is provided in the CDPP's Revenue and Benefits Fraud Practice Group Instruction Number 5 (issued December 2014) in relation to charging social security fraud at paragraph [1]: ‘if a person makes a false statement and as a result obtains a financial advantage, it is one offence so long as that false statement results in that consequence. If one false statement results in continuously obtaining a benefit over a number of weeks, months or years, it is still one offence’.

[107].              Whether a particular offence can be charged as an ongoing or a continuing course of conduct (with evidence of separate acts of dishonesty to be led in support of a single, continuous criminal enterprise) depends on the construction of the particular offence provision: Walsh v Tattersall (1996) 188 CLR 77, [1996] HCA 26. Intermediate courts have held that offences against section 135.1 (among other Chapter 7 offences) are capable of being charged as an ongoing course of conduct. See, for example, Grenfell v R (2009) 196 A Crim R 145, [2009] NSWCCA 162. The CDPP has issued an instruction providing guidance in relation to this matter in the context of prosecutions for social security fraud (including prosecutions for offences against section 135.1 of the Criminal Code): CDPP, Charging social security fraud; number of charges, Practice Group Instructions: Commercial, Financial and Corruption, instruction no. 5, December 2014.

[108].              Explanatory Memorandum, Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017, p. 39.

[109].              The Bill was originally introduced in 1999, but was debated and passed in 2000 (hence the reference to the year in its short title changed). The 2000 Bill was enacted as the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 (2000 Act).

[110].              Explanatory Memorandum, Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Bill 2000, p. 57 at [160]. Note that section 29D of the Crimes Act was repealed by the 2000 Act (Schedule 2, item 149). The repeal of this provision was in line with the view of the Model Criminal Code Officers’ Committee (MCCOC) of the Standing Committee of Attorneys-General in relation to the theft, fraud, bribery and related offences in the Model Criminal Code. However, the MCCOC did not support a general dishonesty offence in the nature of that in section 135.1 of the Commonwealth Criminal Code: MCCOC, Theft, fraud, bribery and related offences, Chapter 3, final report, December 1995, pp. 141–157.

[111].              Explanatory Memorandum, Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Bill 2000, p. 57 at [160]. See further: House of Representatives Standing Committee on Legal and Constitutional Affairs, Advisory Report on the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Bill 1999, June 2000, p. 7 at [2.12] and footnote 10, which stated: ‘The rationale that the Attorney-General’s Department gave for reducing the penalty for general dishonesty in the Bill [as compared to the penalty applicable to the former offence in section 29D of the Crimes Act] is that the offence of obtaining by deception in the Bill has a maximum penalty of 10 years. On this basis, they argued that general dishonesty should have a lesser maximum penalty, as it is easier to make out a case of general dishonesty than fraud. General dishonesty, for instance, does not require the proof of a deception. The DPP did not agree with this reasoning, however, as a basis for reducing the maximum penalty’.

[112].              Ibid.

[113].              It is also worth noting that the CDPP, in its evidence to the House of Representatives Standing Committee on Legal and Constitutional Affairs inquiry into the provisions of the 2000 Bill, reportedly supported the maintenance of a maximum penalty of 10 years’ imprisonment for the general dishonesty offences in section 135.1: House of Representatives Standing Committee on Legal and Constitutional Affairs, op. cit., p. 7 at [2.12] and footnote 10. (The Senate Standing Committee on Economics did not make recommendations about this issue in its recent report on its inquiry into penalties for white-collar crime and corporate and financial misconduct in Australia. However, it noted the evidence of the CDPP to that inquiry in relation to section 135.1, and made a general comment that the penalty framework as a whole (not limited to the offences in Chapter 7 of the Criminal Code) appears to contain ‘serious inadequacies and inconsistencies’: Senate Standing Committee on Economics, op. cit., p. 26 at [2.43] and p. 27 at [2.47].

[114].              Subsections 135.4(1), 135.4(3) and 135.4(5).

[115].              Subsection 135.4(7).

[116].              Explanatory Memorandum, Criminal Cosde Amendment (Theft, Fraud, Bribery and Related Offences) Bill 2000, pp. 6 and 68 at [196]. See further: Kirne (CDPP), ‘Economics References Committee’, op. cit., p. 53.

[117].              Muldrock v The Queen (2011) 244 CLR 120, [2011] HCA 39 at [31] ‘The maximum penalty for a statutory offence serves as an indication of the relative seriousness of the offence. An increase in the maximum penalty for an offence is an indication that sentences for that offence should be increased’ (per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ, citations omitted).

[118].              R v Slattery (1996) 90 A Crim R 519 at 524, [1996] NSWSC 638: ‘The action of the Legislature in almost tripling the maximum sentence for a particular type of offence must be taken by the courts as reflecting community standards in relation to the seriousness of that offence, and the courts are required to give effect to the obvious intention of the Legislature that the existing sentencing patterns are to move in a sharply upward manner’ (per Hunt CJ, Studdert and Simpson JJ concurring).

[119].              For example, the offences in section 135.1 might apply to dishonesty in relation to any number of Commonwealth activities, programs or services, such as social security, taxation, Medicare, Comcover, defence, customs, postal services and immigration.(See further: CDPP, ‘General fraud’, CDPP website, n.d.) The offences are capable of applying to financial advantages or other gains obtained (or losses caused) of significant value, and of moderate to lower value. The offences are equally capable of applying to pre-meditated and highly organised offending in the nature of 'white-collar' crime, and to opportunistic offending, potentially arising from an individual offender’s circumstances of desperation.

[120].              In other words, the (unspecified) matters that the Government may have in contemplation as constituting aggravating factors on sentencing, if the maximum penalty for offences against section 135.1 was increased to 10 years’ imprisonment, might instead be prescribed as elements of aggravation in a new and separate offence in Division 135.

[121].               Explanatory Memorandum, Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017, p. 17.

[122].              The term ‘child witness’ for the purpose of section 15YR of the Crimes Act is defined in section 15YA as a child (including a child complainant) who is a witness in a proceeding in relation to a criminal offence of a kind specified in subsection 15Y(1). The offences specified in the latter provision include a range of child sex offences and offences with respect to slavery and slavery-like conditions, trafficking in persons and debt bondage (including ancillary and inchoate offences such as attempt, conspiracy and incitement).

[123].              The term ‘vulnerable adult complainant’ is defined in section 15YAA of the Crimes Act as being a person who is alleged to be a victim of an offence of a kind referred to in subsection 15Y(2), where the relevant criminal proceedings relate to that offence. The offences in subsection 15Y(2) cover offences with respect to slavery and slavery like conditions, trafficking in persons and debt bondage (including ancillary and inchoate offences such as attempt, conspiracy and incitement). Subsection 15YAA(2) further provides that a person may elect not to be treated as a vulnerable adult complainant by informing the court of this preference.

[124].              Subsection 15YR(1) provides that the offence is punishable by a maximum penalty of 12 months’ imprisonment or 60 penalty units, or both. Subsection 15YR(2) contains offence-specific defences for certain publications made in connection with legal proceedings—namely, an official publication in the course of and for the purpose of the proceeding; or a document prepared for use in particular legal proceedings.

[125].              In particular, subsection 15YR(4) provides that the court must have regard to various factors in making a decision, including potential trauma and reputational damage to the vulnerable person, and whether the publication is for a specified purpose (namely, supplying transcripts of the proceedings to persons with a genuine interest in them, or for genuine research purposes). Subsection 15YR(5) also provides that the court may grant leave after the proceedings have finished, and that the judicial officer granting leave need not be the same judicial officer who constituted the court in the substantive proceedings.

[126].              New subsections 15YR(7) and 15YR(8). New subsection 15YR(6) also preserves the existing requirement that applications must be in writing.

[127].              New subsection 15YR(9).

[128].              New subsection 15YR(10). (This is additional to the requirement in existing subsection 15YR(4) that the court must consider the impact of the proposed publication on the vulnerable person, and the purpose of the publication.)

[129].              Explanatory Memorandum, Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017, p. 40.

[130].              It is also worth noting that another Bill presently before the Parliament at the time of writing this Bills Digest, the Crimes Legislation Amendment (International Crime Cooperation and Other Measures) Bill 2017, proposes to make some minor and technical amendments to the offence in subsection 15YR(1) and to the related provisions in section 15Y dealing with the proceedings to which the vulnerable witness protections apply. These include amendments to rectify an unintended omission of child complainants from one of the physical elements in the offence (Schedule 5); and to make consequential amendments to the criminal proceedings to which the vulnerable witness protections apply, as a result of other proposed amendments in that Bill to the title of Divisions 270 and 271 of the Criminal Code (Schedule 6).

[131].               Belcher Red Tape Review, op. cit. (Note that the APS Secretaries Board is established under section 64 of the Public Service Act 1999. It is chaired by the Secretary of the Department of the Prime Minister and Cabinet, and its membership includes the Secretary of each Department and the APS Commissioner. Its functions include to take responsibility for the stewardship of the APS and for developing and implementing strategies to improve the APS; the identification of strategic priorities; setting an annual work program; drawing together advice from senior leaders in government, business and the community; and working collaboratively and modelling leadership behaviours.)

[132].              Ibid., at Part 19.5 (p. 130 and recommendation 19.6). For further information about the Commonwealth Fraud Control Framework, see: Attorney-General's Department (AGD), ‘Fraud control framework’, AGD website, n.d. See also: Public Governance, Performance and Accountability Rule 2014 (PGPA Rule), section 10 (the Fraud Rule) made under the Public Governance, Performance and Accountability Act 2013 (PGPA Act). In broad terms, the Fraud Rule establishes a minimum standard for ‘accountable authorities’ (heads) of Commonwealth entities for managing the risk of fraud, and fraud incidents. It requires the accountable authority of each Commonwealth entity to take all reasonable measures to prevent, detect and deal with fraud relating to the entity. This includes: conducting regular risk assessments; developing and implementing a fraud control plan; and implementing fraud prevention, detection, investigation, recording and reporting mechanisms.

[133].              Belcher Red Tape Review, op. cit., p. 130.

[134].              Ibid., p. 130 and recommendation 19.6.

[135].              Ibid., p 130. (A privacy impact assessment is a systematic assessment of a project that identifies the impact that the project might have on the privacy of individuals, and sets out recommendations for managing, minimising or eliminating that impact. Generally, privacy impact assessments are undertaken on a voluntary basis, however, section 33D of the Privacy Act gives the Privacy Commissioner a power to direct an agency to provide a privacy impact assessment in certain circumstances. See further: OAIC, ‘Guide to undertaking privacy impact assessments’, May 2014.)

[136].              Belcher Red Tape Review, op. cit., p. 130.

[137].              Explanatory Memorandum, Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017, p. 41.

[138].              Ibid., p. 20.

[139].              Item 1 proposes to enact defined terms in subsection 3(1) for the purpose of new Part VIID. Item 2 makes a consequential amendment. Item 4 provides for the prospective application of the proposed scheme, but permits the use and disclosure of personal information collected before, on or after its commencement.

[140].              Item 1 proposes to amend subsection 3(1) to define ‘personal information’ by reference to its meaning in section 6 of the Privacy Act (namely information or opinion about an identified individual, or an individual who is reasonably identifiable, whether or not the information is true, and whether or not the information is recorded in a material form).

[141].              New sections 86C and 86D. Note that new section 86C proposes to authorise a target entity to collect ‘sensitive information’ for an integrity purpose, provided that the collection is necessary or reasonably necessary for the purpose of the entity performing one or more of its functions or activities (or in the case of a ‘Privacy Act agency’, if the collection is directly related to one or more of the agency’s functions or activities). Item 1 inserts a definition of ‘sensitive information’ in subsection 3(1) by reference to the meaning of that term in section 6 of the Privacy Act, which is a sub-set of personal information. It includes information about a person's racial or ethnic origin, political associations, religious beliefs or affiliations, memberships of various associations including professional or trade associations or trade unions, sexual orientation or practices, criminal records; and health, genetic and biometric information. The Explanatory Memorandum states that sensitive information may be necessary for fraud investigations in some circumstances—for example, ‘investigating a Commonwealth official falsely claiming personal leave may involve collection of health information. Investigating a person performing work for the Commonwealth who falsely claimed a professional qualification may involve collecting information about that person’s membership of a professional trade or association: Explanatory Memorandum, Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017, p. 44.

[142].              Item 1 proposes to amend subsection 3(1) to insert a definition of the term ‘target entity’ and its component terms. The term ‘agency’ is defined by reference to its meaning in section 6 of the Privacy Act, which is an ‘agency’ (in short, a governmental entity to which the APPs apply under the Privacy Act).The term ‘wholly owned Commonwealth company’ is defined by reference to the meaning of that term in section 90 of the PGPA Act (namely, ‘a Commonwealth company, other than a company any of the shares in which are beneficially owned by a person other than the Commonwealth’.)

[143].              Item 1 proposes to amend subsection 3(1) to insert a definition of ‘misconduct’ within the term ‘integrity purpose’ by reference to its meaning in section 6 of the Privacy Act (namely, including fraud, negligence, default, breach of trust, breach of duty, breach of discipline or any other misconduct in the course of duty). The Explanatory Memorandum also notes that reference to misconduct of a serious nature is intended to exclude trivial matters, although it notes that it is up to each Commonwealth entity to determine its own thresholds for trivial misconduct. It provides some general examples, such as an officer incorrectly claiming five additional minutes of attendance on a timesheet. Explanatory Memorandum, Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017, p. 42.

[144].              The Explanatory Memorandum states that the term  ‘fraud’ as a component element of the term ‘integrity purpose’ in new Part VIID is undefined and takes its common law meaning, as informed by the Commonwealth Fraud Control Guidelines (‘dishonestly obtaining a benefit or causing a loss by deception or other means’ noting that the relevant benefit or loss need not be financial in nature): Explanatory Memorandum, Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017, p. 43.

[145].              The term ‘substantial adverse effect’ is defined in existing subsection 15YV(3) as ‘an effect that is adverse and not insubstantial, insignificant or trivial’. Item 2 will make a consequential amendment to re-locate this definition to the general definitions section in subsection 3(1). The Explanatory Memorandum further notes that the use of this term in new Part VIID is intended to exclude ‘trivial matters’ consistent with the Commonwealth Fraud Control Framework. While it is up to each target entity to determine their own threshold for trivial behaviour, the Explanatory Memorandum provides some general guidance in assessing substantial effect—noting that this can include matters where there is no direct loss to the Commonwealth, and may include actual or potential effects: Explanatory Memorandum, Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017, p. 43.

[146].              Item 1 inserts a definition of the term ‘integrity purpose’ containing the listed elements in subsection 3(1).

[147].              New subsections 86E(1) and 86E(2). As the Explanatory Memorandum notes, the authorisation does not override explicit secrecy provisions, and nor does it compel disclosure. Rather, it only applies to those secrecy (or other non-disclosure) provisions that contain a general exception for sharing information when authorised by a law of the Commonwealth: Explanatory Memorandum, Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017, p. 45. (Note also that new section 86F preserves the application of secrecy and other non-disclosure provisions, by providing that new Part VIID does not impliedly limit other laws, whether written or unwritten, that authorise collection, use or disclosure of personal information.)

[148].              New subsection 86E(3). See further: Explanatory Memorandum, Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017, pp. 45–46.

[149].              Explanatory Memorandum, Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017, p. 46.

[150].              New section 86G.

[151].              Explanatory Memorandum, Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017, p. 46.

[152].               Under subsection 85ZM(2) of the Crimes Act, a person’s conviction is deemed to be ‘spent’ if he or she is granted a pardon, or if the person was not sentenced to imprisonment, or if the person was sentenced to imprisonment for 30 months or less and the relevant ‘waiting period’ for the offence has ended. (The term ‘waiting period’ is defined in section 85ZL to mean, for minors, the period of five years from the day on which the person was convicted; or, for adults, 10 years from the day on which the person was convicted.) Under section 85ZV, the effect of a spent conviction is that a person is not required to disclose to any state, territory or foreign authority, for any purpose, that he or she has been charged or convicted of the offence to which the spent conviction relates (unless a provision of Division 6 of Part VIIC of the Crimes Act provides otherwise). Section 85ZW further provides that it is lawful for a person to claim, under oath or otherwise, that he or she was not charged with or convicted of the offence to which the spent conviction relates; and it is unlawful for others to disclose that the person was charged with or convicted of that offence, or take account of the fact of that charge or conviction, without the relevant person’s consent.

[153].               In particular, the definition of a ‘law enforcement agency’ in section 85ZL covers: the AFP and state and territory police forces; the Department of Immigration and Border Protection; the Australian Commission for Law Enforcement Integrity; the Australian Crime Commission (now known as the Australian Criminal Intelligence Commission); state and territory anti-corruption and organised crime commissions; Directors of Public Prosecutions and their offices and staff; and officers or members of Commonwealth, state and territory Attorney-Generals’ Departments, for the purposes of those officers or members performing functions with respect to the institution or conduct of proceedings for state offences.

[154].              LECC Act (NSW). See further: Grant, New law enforcement watchdog for NSW, op. cit.; and Grant Justice Michael Adams appointed chief commissioner of new police watchdog, op. cit.

[155].              Explanatory Memorandum, Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017, p. 47, citing amendments to the Criminal Records Act 1991 (NSW) made by the LECC Act (NSW), Schedule 6, item 6.13.

[156].              It has been suggested earlier in this Bills Digest that the Bill could be amended to include a provision expressing Parliament’s intention that the disclosure offences applying to ‘outsiders’ in new subsections 15HK(1D) and (1E) operate to the exclusion of the basic disclosure offences under state and territory controlled operations laws, to the extent that the state and territory offences apply to disclosures of information relating to a Commonwealth controlled operation. This statement of intent may be relevant to the application of sections 109 and 122 of the Constitution, which would render the state and territory provisions invalid to the extent of their inconsistent operation with the Commonwealth provision. Alternatively, a statement of intention could be included in the Explanatory Memorandum. It has also been suggested that the Commonwealth could play a leadership role in encouraging states and territories to harmonise their disclosure offences with those of the Commonwealth, if the Bill is passed.