EM, p. 2). The SLAID Act introduced three new warrant powers for the AFP and the ACIC:
- data disruption warrants which provide for the disruption of criminal activity facilitated or conducted online to frustrate the commission of serious offences
- network activity warrants which enable the collection of intelligence that relates to criminal networks operating online and
- account takeover warrants which enable agencies to take control of an online account and deprive the account holder of access to that account for the purposes of gathering evidence about criminal activity.
Sunsetting
The SLAID Act implemented sunsetting provisions for data disruption warrants (SD Act section 27KAA), network activity warrants (SD Act section 27KKA) and account takeover warrants (Crimes Act section 3ZZUMA), with each due to cease on 4 September 2026.
Provisions allowing emergency authorisations for disruption of data (subsections 28(1C) and 28(1D) of the SD Act) and emergency authorisations for account takeovers (section 3ZZUX of the Crimes Act) are also due to cease effect on 4 September 2026 (SD Act section 27KU and Crimes Act section 3ZZUMA).
Review of Surveillance Legislation Amendment (Identify and Disrupt) Act 2021
In accordance with subsection 6(1E) of the Independent National Security Legislation Monitor Act 2010 (INSLM Act) the Independent National Security Legislation Monitor (INSLM) reviewed the operation, effectiveness and implications of the amendments made by Schedules 1, 2 and 3 of the SLAID Act, which introduced data disruption warrants, network activity warrants and account takeover warrants.
The INSLM report of the review identified that in the first three years of operation of the SLAID Act fewer than 50 of these warrants (including extensions) were sought (p. 20). Most of these warrants were issued to the AFP (Table 1, p. 21). The ACIC did not seek any data disruption warrants or account takeover warrants (Table 2, p. 21).
Considering evidence from private and public hearings and through the review of classified reports provided to Ministers, the report determined that the SLAID Act warrants ‘have been effective in understanding criminal networks and combating serious crimes’ and had been ‘used in situations where other types of warrants would have likely been ineffective’ (p. 29).
The INSLM was satisfied that there was an ongoing need for some form of the SLAID Act powers as part of the government’s response to the ‘ever changing cyber threat landscape’ (p. 33). However, the report recommended that ACIC should not retain the ability to use data disruption warrants, as this power was considered to go beyond ACIC’s intelligence functions (pp. 34-36). It also considered that ACIC’s use of account takeover warrants should be for ‘intelligence rather than evidence collection purposes’ (pp 39-40).
The INSLM report supported the retention of access to the warrants by the AFP and ACIC (other than the exceptions for the ACIC discussed above) subject to certain recommendations. These included:
- warrant issuing authorities should be retired or current judges (recommendation 6)
- Public Interest Monitors should be introduced (recommendation 7)
- other improvements to the issuing system, including a mechanism for independent technical advice and a statutory duty of candour requiring disclosure of all matters of which the applicant is aware, both favourable and adverse (recommendation 8).
The INSLM report stated that if the changes in recommendations 6-8 to the warrant issuing system were not implemented, then the provisions for data disruption warrants, network activity warrants and account takeover warrants ‘should be allowed to sunset’ (pp 36, 37 and 40).
In February 2026, the Government tabled its response to the INSLM report. In relation to the INSLM report’s recommendations 6-8 the response stated (p. 2):
The Government will extend the sunsetting date, which is currently 4 September 2026, in the first instance, to allow recommendations 6-8 to be further considered as part of comprehensive reforms to the electronic surveillance framework recommended by the Comprehensive Review (electronic surveillance reforms). This will ensure that the recommendations relating to how warrants are issued can be considered in the context of the framework as a whole, before any decision is made on making the powers a permanent part of the statutory framework.
In relation to the reform of the electronic surveillance framework, the Department of Home Affairs website states the Government will ‘continue to consult with stakeholders as part of the development of the reforms and while it prepares the draft legislation’.
The INSLM submission to the Senate Committee inquiry into the Bill expressed disappointment that ‘consideration of holistic electronic surveillance reforms has taken so long’ and concern that ‘it is considered necessary to extend the current sunset to late 2029 to await those reforms’ (p. 2). The Law Council of Australia submission’s recommendations included that ‘the proposed extension of sunset dates… should not progress without substantive implementation’ of the INSLM’s recommendations (p. 6).
Division 1 - Account takeover warrants
Account Takeover Warrants
The purpose of account takeover warrants is to allow the AFP and the ACIC to take control of a person’s online account for the purpose of gathering evidence about serious offences (EM, p. 6). Online accounts may include social media accounts, online banking accounts and accounts associated with online forums.
An account takeover warrant authorises taking control of an online account, which means taking steps that result in the person having exclusive access to the account (section 3ZZUL of the Crimes Act). To take control of an account officers can use a computer or other electronic equipment, access account-based data, and add, copy, alter or delete credentials or other data (section 3ZZUR of the Crimes Act). Reasonable steps must be taken to restore access to a lawful account to the account holder when the warrant expires or control of the account is no longer required (section 3ZZUV of the Crimes Act).
In an emergency situation an account takeover warrant may be issued internally and be subsequently authorised by a magistrate where there is an imminent risk of serious violence to a person, or imminent risk of substantial damage to property (sections 3ZZUX and 3ZZVA of the Crimes Act).
An account takeover warrant may also permit the officer to seek an assistance order from a magistrate requiring a person with knowledge of a computer or a computer system to provide reasonable and necessary assistance to help in carrying out the warrant (section 3ZZVG of the Crimes Act).
A law enforcement officer may apply to a magistrate for the issue of an account takeover warrant if they suspect on reasonable grounds that (section 3ZZUN of the Crimes Act):
- an offence has been, is being, is about to be or is likely to be committed and
- an investigation into the offence is being, will be, or is likely to be conducted and
- taking control of one or more online accounts is necessary in the course of that investigation to obtain evidence of the commission of those offences.
The offence must be a Commonwealth offence, or a state or territory offence with a federal aspect, that carries a maximum term of imprisonment of three years or more.
To issue an account takeover warrant a magistrate must be satisfied that there are reasonable grounds for the suspicion founding the application (section 3ZZUP of the Crimes Act).
Information collected under an account takeover warrant can be used as evidence in a proceeding. However, it is an offence to use or disclose information collected under the warrant except in limited circumstances. These may include for the purposes of the investigation of an offence, the making of a decision about whether or not to bring a prosecution, or the prevention of serious harm.
Emergency Authorisations
The Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 (TOLA Act) and the SLAID Act introduced emergency authorisation provisions for access to data held in a computer and the disruption of data held in a computer (SD Act, subsections 28(1A) and 28(1C)). A law enforcement officer may apply for an emergency authorisation for access to data held in a computer where (SLAID Act EM, p. 24):
A law enforcement officer may apply for an emergency authorisation for disruption of data held in a computer where there is an imminent risk of serious violence to a person or substantial damage to property (subsection 28(1C)).
The SLAID Act also introduced emergency authorisation provisions for an account takeover (Crimes Act, section 3ZZUX)). A law enforcement officer may apply for an emergency authorisation for taking control of an online account if the law enforcement officer suspects there is an imminent risk of serious violence to a person or substantial damage to property (Crimes Act, section 3ZZUX)).
Amendments
Items 13 and 14 amend sections 3ZZUMA and 3ZZUWA of the Crimes Act to extend the sunsetting date for account takeover warrants and emergency authorisations for account takeovers by 3 years, until 4 September 2029.
Division 2 – Application, transitional and savings provisions
Item 16 clarifies how account takeover warrants that are in force (or pending) and emergency authorisations will cease in relation to the sunsetting provisions and what powers and protections will remain in place. Warrants in force will cease to be in force at sunsetting, pending applications will be taken to have not been made and emergency authorisations will cease to be in force. The operation of subsections 3ZZUR(6) and 3ZZUR(7) regarding the concealment of access will continue to apply in relation to warrants that were issued prior to sunsetting.
Item 17 clarifies that following the sunsetting of the provisions the same use and disclosure provisions remain in effect for protected information obtained under account takeover warrants. Protected information is broadly defined in section 3ZZUK of the Crimes Act to cover information relating to or obtained under an account takeover warrant or emergency authorisation (item 15).
Division 3 - Data disruption warrants and network activity warrants
Data Disruption Warrants
The purpose of a data disruption warrant is to allow the AFP and the ACIC to disrupt criminal activity that is being facilitated or conducted online by using computer access techniques (SLAID Act EM, p. 3). The data disruption warrant allows the AFP and the ACIC ‘to add, copy, delete or alter data to allow access to and disruption of relevant data in the course of an investigation for the purposes of frustrating the commission of an offence’ (SLAID Act EM, p. 3). To assist the disruption, a warrant may authorise other facilitative activities under section 27KE of the SD Act, which may include:
- entering specified premises (subparagraph 27KE(2)(a) and 27KE(2)(b))
- using electronic equipment to obtain access to data (subparagraph 27KE(2)(c))
- removing a computer from a premises (subparagraph 27KE(2)(f))
- copying data that has been obtained (subparagraph 27KE(2)(g)) and
- concealing access and activities (subsection 27KE(9)).
A law enforcement officer of the AFP or the ACIC may apply for a data disruption warrant if they suspect on reasonable grounds that (section 27KA):
- an offence has been, is being, is about to be, or is likely to be committed and
- those offences involve, or are likely to involve, data held in a computer and
- the disruption of data held in the computer is likely to substantially assist in frustrating the commission of the offence that involves, or is likely to involve, data held in the computer.
The offence must be a Commonwealth offence, or a state or territory offence with a federal aspect, that carries a maximum term of imprisonment of three years or more.
To issue a data disruption warrant an eligible Judge or nominated member of the Administrative Review Tribunal (ART) must be satisfied that there are reasonable grounds for the suspicion founding the application and that the disruption of data is reasonably necessary and proportionate (section 27KC).
The information collected under a data disruption warrant is subject to protections. It is an offence to use or disclose the information collected except in limited circumstances, for instance:
- for the purposes of the investigation of a relevant offence
- the making of a decision about whether or not to bring a prosecution or
- the prevention of serious harm.
Information collected under a data disruption warrant can be used in evidence in a proceeding.
Network Activity Warrants
The purpose of network activity warrants is to ‘allow the AFP and the ACIC to collect intelligence on criminal networks operating online by permitting access to the devices and networks used to facilitate criminal activity’ (SLAID Act EM, p. 4). Network activity warrants seek to allow agencies to target the activities of criminal networks to discover the scope of criminal offending and the identities of persons involved (SLAID Act EM, p. 4).
Network activity warrants authorise access to devices used by members of the criminal network over the life of the warrant, which is no more than 90 days (subsection 27KN(2)). The warrant also authorises adding, copying, deleting or altering data to obtain access to data for the purpose of collecting intelligence on criminal networks operating online (subsection 27KP(2)). Actions may be taken to conceal the computer access to allow the warrant to be executed covertly (subsection 27KP(8)).
The chief officer of the AFP or the ACIC may apply for network activity warrant if they suspect on reasonable grounds that (section 27KK):
- a group of individuals is a criminal network of individuals and
- access to data held in a computer that is used or is likely to be used by any individuals in the group will substantially assist in the collection of intelligence that relates to the group or individuals in the group and is relevant to the prevention, detection or frustration of one or more kinds of relevant offences.
The offence must be a Commonwealth offence, or a state or territory offence with a federal aspect, that carries a maximum term of imprisonment of three years or more.
To issue a network activity warrant an eligible Judge or nominated ART member must be satisfied that there are reasonable grounds for the suspicion founding the application and that the disruption of data is reasonably necessary and proportionate (section 27KM).
Information that is obtained under a network activity warrant is for intelligence purposes only and is not permitted to be used as evidence in a criminal proceeding. However, the information obtained may be used to support an application for other warrants which may be used to collect evidence.
Amendments
Amendments in Division 3 remove references to the ACIC in the SD Act in accordance with the INSLM’s recommendation that ACIC’s access to data disruption warrants be removed. For example, item 18 amends paragraph 3(aab) to remove the reference to the ACIC obtaining warrants and emergency authorisations that authorise the disruption of data held in computers.
In particular, item 20 amends subsection 27KA(1) to remove the ability of the ACIC to apply for a data disruption warrant and item 21 repeals section 27KBB as it relates to the issuing of data disruption warrants to the ACIC. Item 25 amends subsection 28(1C) of the SD Act to remove reference to the ACIC so that the ACIC does not retain the ability to apply for an emergency authorisation for the disruption of data held in a computer. Item 27 amends subsection 64B(1) to remove ACIC’s ability to apply for assistance orders in relation to data disruption warrants or emergency authorisations.
Other key amendments extend sunsetting dates by 3 years to 4 September 2029. Item 19 amends section 27KAA of the SD Act to extend the sunsetting date for data disruption warrants. Item 22 amends section 27KKA to extend the sunsetting date for network activity warrants and item 23 amends subsection 27KU(1) to extend the sunsetting date for emergency authorisations for the disruption of data held in a computer.
Division 4 – Application, transitional and savings provisions
Item 30 provides for the transitional arrangements for the removal of the ACIC’s power to access data disruption warrants. Applications for a data disruption warrants that are pending at commencement are to be treated as if they were never made. Data disruption warrants or emergency authorisations that are active at commencement cease to be in force at commencement. Applications for emergency authorisation for the disruption of data held in a computer that are pending are to be treated as if they were never made.
It also provides that the provisions regarding the protection of information still apply to information obtained by the ACIC prior to commencement and preserves the operation of provisions in relation to concealment of access and statutory conditions regarding loss or damage to data (subsection 27KE(9) to (12)).
Item 31 provides for transitional arrangements regarding the AFP’s access to data disruption warrants at sunsetting (4 September 2029). Data disruption warrants in force immediately before sunsetting cease to be in force at sunsetting. An application for a data disruption warrant, or an application for an extension or variation of such a warrant, which is pending at sunsetting is taken to have never been made. The operation of subsections 27KE(9) to (12) in relation to concealment of access and statutory conditions on the data disruption warrant in relation to loss or damage to data would be preserved.
Item 32 provides for the transitional arrangements in relation to the AFP’s access to emergency authorisations for the disruption of data at sunsetting (4 September 2029). An emergency authorisation in force immediately before sunsetting for the disruption of data held in a computer would cease to be in force at sunsetting. An application for an emergency authorisation that is pending at sunsetting is taken to have never been made.
Item 33 provides for transitional arrangements in relation to network activity warrants at sunsetting (4 September 2029). A network activity warrant in force immediately before sunsetting ceases to be in force at sunsetting. An application for a network activity warrant, or an application for an extension or variation of such a warrant, which is pending at sunsetting is taken to have never been made. The operation of subsections 27KP(8) to (10) in relation to concealment of access would be preserved.
Item 34 preserves the operation of the provisions of the SD Act in relation to the use and disclosure of protected information obtained through these warrants after sunsetting.
Senate Standing Committee for the Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of Bills (Scrutiny Committee) raised concerns in relation to items 13, 14, 19, 22 and 23 of Schedule 1 to the Bill which defer the sunsetting of account takeover warrants, data disruption warrants and network activity warrants (p. 2). The Scrutiny Committee ‘noted the limited justification in the explanatory memorandum for the proposed deferral of sunsetting in the context of coercive powers and regarding applicable safeguards for the ongoing use of concealment powers’.
The Scrutiny Committee also requested ‘the minister’s advice as to why it is appropriate for the concealment of access powers under subsections 3ZZUR(6)–(8) of the Crimes Act 1914, and subsections 27KE(9)–(12) and 27KP(8)–(10) of the Surveillance Devices Act 2004, to not be subject to sunsetting after 4 September 2029, having regard to applicable safeguards’ (p. 20).
At the time of writing, the Attorney-General’s response had been received but not published by the Scrutiny Committee.
Senate Legal and Constitutional Affairs Legislation Committee
The Senate Legal and Constitutional Affairs Legislation Committee (LCA Committee) recommended that the Senate pass the Bill, stating that they were ‘satisfied that the Bill will ensure Commonwealth Law enforcement and related agencies remain effective and efficient in performing their critical functions, while also preserving established safeguards and accountability mechanisms’ (p. 19).
However, the LCA Committee did identify concerns raised in relation to the extension of search warrant application and intelligence gathering powers (p. 10). The INSLM in their review of the SLAID Act recommended that the powers under the Act should only be retained with the introduction of stronger safeguards (p. 11). Consequently, the Law Council of Australia and the NSW Council for Civil Liberties (NSWCCL) criticised the failure to include such safeguards within the Bill (p. 11).
In their additional comments Coalition Senators stated that they did not oppose the extension of warrant powers under Part 3 of the Bill, rather they criticised that they were not part of a single, modernised electronic surveillance Act as was promised and committed to by the Albanese Government in 2022 (p. 21-2). Additionally, they criticised the removal of the ACIC’s power to access data disruption warrants without introducing a replacement framework (p. 23).
Part 4 - Commonwealth Pre-Charge Detention and Investigation Scheme
The Crimes (Investigation of Commonwealth Offences) Amendment Act 1991 introduced pre‑charge detention periods for a person under arrest in relation to a Commonwealth offence as set out under Part IC of the Crimes Act (EM, p. 2).
Section 23C allows a person who is lawfully arrested for a non-terrorist Commonwealth offence to be detained for an ‘investigation period’. This must not extend beyond a ‘reasonable’ time of a maximum of 2 hours for a person who is or appears to be under 18 years or is an Aboriginal or Torres Strait Islander person (subparagraph 23C(4)(a)). All other persons may be detained for a maximum of 4 hours (subparagraph 23C(4)(b)). For a serious Commonwealth offences, application can be made to a magistrate for an extension to the investigation period ‘for a period not exceeding 8 hours’ (section 23D).
Item 10 of Schedule 4 of the Measures to Combat Serious and Organised Crime Act 2001(MCSOC Act), if proclaimed, would repeal subsection 23A(6) of the Crimes Act. This provision allows the Australian Capital Territory (ACT) Policing to access the Commonwealth pre-charge detention and investigation scheme contained in Part IC of the Crimes Act where the offence is against a law of the ACT and is punishable by imprisonment for a period exceeding 12 months and an investigating official is a member of the AFP (Crimes Act, subsection 23A(6) and EM, p. 6).
Item 10 was introduced as the ACT Government intended to enact its own scheme to replace the Commonwealth scheme (EM, p. 6). At the time the MCSOC Act was enacted the ACT had not determined its pre-charge detention and investigation scheme (EM to the MCSOC Bill, p. 43). Consequently, Item 10 was to commence on a date to be fixed by Proclamation to ensure that the ACT provisions had commenced prior to the repeal of subsection 23A(6) (EM to the MCSOC Bill, p. 43). However, the ACT Government has since determined that it is not necessary to establish its own scheme and that it remains appropriate to rely on the Commonwealth scheme (EM, p. 6).
Items 35 and 36 of the Bill repeal subsection 2(4) and Item 10 of Schedule 4 of the MCSOC Act to allow the Australian Capital Territory Policing to continue to access the Commonwealth pre-charge detention and investigation scheme contained in Part IC of the Crimes Act where the offence is against a law of the ACT and is punishable by imprisonment for a period exceeding 12 months and an investigating official is a member of the AFP.
Key issues and provisions: Schedule 2 – Amendment of the Criminal Code
Part 1 – Evidentiary certificates for serious drug offences
Item 1 inserts definitions of issuing officer, law enforcement officer and lawyer into section 300.2 of the Criminal Code. Section 300.2 defines terms for the purpose of Part 9.1 of the Criminal Code Act which relates to serious drug offences.
Item 2 inserts proposed sections 300.7 to 300.9 into the Criminal Code to allow for the issue of evidentiary certificates that are to be received in proceedings for an offence in Part 9.1 ‘as prima facie evidence of the acts or things specified in the certificate’ (proposed subsection 300.7(7)).
Proposed section 300.7 sets out who may issue an evidentiary certificate and what acts and things are permitted to be specified in an evidentiary certificate. An evidentiary certificate may specify one or more of the following in relation to a substance or an object containing a substance (proposed subsection 300.7(2)):
- any detail or description relating to the seizure or detention of the substance or object
- a label or other means used to identify the substance or object
- any detail relating to a seal that is used to secure the substance or object
- any detail relating to the transfer of custody of the substance or object
- any detail relating to the storage of the substance or object
- anything done in connection with the substance or object by a law enforcement officer or a person assisting or providing technical expertise to a law enforcement officer or agency or
- any other act or thing specified by legislative instrument by the AFP Minister.
Proposed section 300.8 enables state and territory certificates which specify an act or thing mentioned in proposed subsection 300.7(2) to be used as prima facie evidence in proceedings for an offence against Part 9.1.
Proposed section 300.9 sets out procedural matters in relation to evidentiary certificates. Evidentiary certificates must not be admitted in evidence unless the person charged with the offence (or their lawyer) has been given a copy of the certificate and notice of the intention to use it in evidence (at least 42 days prior the introduction of the certificate).
Where an evidentiary certificate is admitted into evidence in a proceeding, the defendant may require the person who issued the certificate or anyone named in the certificate to be called as a witness for the prosecution and cross-examined as if the person had given evidence of the acts or things specified in the certificate. However, the defendant may only exercise these rights where the prosecutor has been given 28 days’ notice and ‘the court, by order, allows the defendant to require the person to be so called or cross-examined’.
Item 3 provides that evidentiary certificates may be issued in relation to an act or thing done in connection with a substance or object before, on or after the commencement of Part 1 and to a proceeding initiated before, on or after the commencement of Part 1.
Issues with evidentiary certifications
The EM states that the introduction of evidentiary certificates will ‘enhance the effective administration of prosecutions for serious drug offences by alleviating the significant resourcing burden currently placed on law enforcement and legal practitioners associated with preparing for potential continuity challenges that rarely occur’ (p. 14). The Attorney-General’s Department and Home Affairs Department submission to the Senate Committee inquiry into the Bill argued that despite advances in modern recording methods ‘existing evidentiary requirements can still necessitate extensive continuity evidence to formally establish each step in the handling of exhibits’. It characterised this process as ‘increasingly resource-intensive’ and a ‘significant and often unnecessary burden’ (p. 6). It noted:
Importantly, the measure would not alter the prosecution’s obligation to prove all elements of an offence beyond reasonable doubt, nor would it reverse or weaken the burden of proof. Evidentiary certificates would provide rebuttable (prima facie) evidence only – defendants would still be able to challenge the evidence contained in a certificate (p. 7).
However, the Scrutiny Committee raised concerns regarding the proposed use of evidentiary certificates as prima facie evidence in proceedings for serious drug offences (p. 2). The Scrutiny Committee requested ‘further information about the necessity and appropriateness of these measures, noting that the use of evidentiary certificates effectively reverses the evidential burden of proof and may interfere with the common law presumption of innocence’ (p. 3).
The Law Council’s submission also outlined a number of issues with the proposed evidentiary certificate framework and recommended it ‘… should not proceed in its current form’ (p. 9). In particular, it noted that proposed subsections 300.7(2) and (4) may allow the AFP Minister to extend the subject-matter of acts or things that can be specified in a certificate beyond evidence handling (p. 9). Similarly, National Legal Aid (NLA) recommended a number of changes to the proposed evidentiary certificate framework as well as an alternative model requiring pre-trial defence disclosure of whether continuity of custody is in issue (used in NSW) (p. 10).
The LCA Committee, while supporting the passage of the Bill, identified that several submitters had expressed concern that the new evidentiary certificate framework ‘raised significant justice and procedural issues’ (p. 13). They noted the above concerns raised by the Law Council and NLA (p. 13).
Part 2 – Mixtures containing prohibited substances
Background
Serious drug offences are established under Part 9.1 of the Criminal Code. The four main categories of serious drug prosecutions are trafficking, selling and cultivation, manufacturing, importing and exporting and possession. The penalty imposed for serious drug offences generally depends on the quantity of the illicit substance involved in the offence.
Part 3 Division 1 of the Criminal Code Regulations 2019 sets out the drug threshold quantities for serious drugs and precursors for offences under the Criminal Code. Currently, the purity based method is used under section 312.1 of the Criminal Code to determine drug threshold quantities for criminal offences (EM, p. 3).
Section 312.1 was introduced by the Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005. It introduced the purity-based method currently used, requiring that quantities of controlled drugs and border controlled drugs be specified as a pure quantity, dilute quantity, or both (EM to the 2005 Bill, p. 98). A pure quantity means the amount of the pure drug that is involved in the commission of an offence, whether or not that pure quantity is contained in a mixture including other substances (EM to the 2005 legislation, p. 98).
Alternatively, the mixture-weight approach for determining drug threshold quantities allows the quantity of drugs to be established by reference to the total weight of any substance containing a prohibited drug or precursor (EM, p. 3). This method removes the need for purity testing as the threshold quantity is determined by the total weight of a substance as opposed to the pure drug content of a substance (EM, p. 3).
Amendments
Item 4 repeals section 312.1 and substitutes a new provision for the determination of quantities of prohibited substances in mixtures. The new provision provides that for the purpose of proving the quantity of a prohibited substance the entire mixture is to be treated as consisting entirely of the prohibited substance. A prohibited substance for the purpose of the provision is a controlled drug, a border controlled drug, a controlled precursor (other than a growing plant) or a border controlled precursor (other than a growing plant).
The effect of this item is to repeal the current purity-based method and replace it with a mixture weight method for the determination of drug quantities. Proposed subparagraph 312.1(3)(a) provides that a single mixture must not be used for the purpose of proving the quantity or more than one prohibited substance.
Issues in change from purity testing
The EM notes purity testing requires AFP forensic examiners to use a sampling and purity-testing process that is ‘hazardous, resource-intensive and contributes to investigative and prosecution delays’. It argues the purity-only model is out of step with the states and territories, which operate mixture-based or dual systems. The EM also states that the current approach ‘fails to reflect market reality: illicit drugs are typically imported and trafficked in mixed form, and purchase price and distribution quantities are determined by the whole weight of the mixture, not the pure drug content’ (EM, p. 48). Similarly, the AFP’s submission to the Senate Committee inquiry into the Bill emphasised the potential dangers to forensic analysts - noting ‘the high potency of synthetic opioids means that exposure to very small amounts can be life threatening’ (p. 4).
However, NLA considered purity testing should be retained. It argued that drugs imported into Australia were often mixed with other substances, and the drafting meant it was unclear whether the testing ‘would include the entire weight of the concealment method’ (p. 11). It stated that ‘[t]he most significant practical impact of the admixture provisions will fall on lower-level participants in drug supply chains, including mules, runners and others at the bottom of the criminal enterprise, who are more likely to handle substances of lower purity… ’ (p. 13). It was aware of ‘outlier cases’ where there was ‘no rational relationship between the gross weight and the drug itself’ (p. 13).
Furthermore, the NLA argued that if a mixture-quantity model is adopted there should be ‘a review of thresholds and the explicit preservation of purity as a mitigating factor to protect fair trial rights, ensure accurate sentencing, and avoid disproportionate punishment without demonstrable deterrent benefit’ (p. 5).
The Law Council questioned a number of the justifications made in the EM for the change from the purity-based testing approach and recommended it ‘… should not proceed’ (p. 18). It argued the change would risk ‘the introduction of arbitrariness into the serious drug offence framework where offences and penalties are currently calibrated to the nature and quantity [of] proscribed substances’ (p. 13) and if introduced ‘consideration needs to be given to introducing a fault element to quantity elements or shifting these elements to strict liability elements (p. 16).
Key issues and provisions: Schedule 3 – Director of Public Prosecutions
Part 1 - Director of Public Prosecutions
Item 1 inserts proposed sections 31A and 31B into the DPP Act to establish a mechanism to allow the Attorney-General to authorise a person to exercise the powers or functions of the Commonwealth Director of Public Prosecutions (CDPP) (other than a power of delegation under section 31) where there is a conflict of interest, potential conflict of interest or perceived conflict of interest.
The EM states (p. 52):
Currently, in every matter, or class of matters, where a conflict of interest arises, the Director must take a leave of absence from their duties entirely to allow an Acting Director to be appointed to then perform or exercise the functions or powers. The request for leave must be approved by the Attorney-General. This is administratively burdensome and inefficient…
Proposed subsection 31A(2) provides that the Attorney-General may authorise in writing a person who is:
- a member of the staff of the Office of the CDPP and
- an APS employee that is classified, or acting, as an SES Band 2 equivalent or higher and
- a legal practitioner
to perform a function or exercise a power of the CDPP. They may be authorised to act in relation to specified proceedings, in relation to specified acts or omissions, or in specified circumstances.
Proposed subsection 31B provides for the variation or revocation of an authorisation and clarifies that functions and powers exercised by an authorised person are taken to have been performed or exercised by the CDPP.
Part 2 – Deputy Director of Public Prosecutions
Items 3 and 4 repeal the definition of Associate Director and insert the definitions of Deputy Director and paid work. These amendments reflect the proposed change of title from ‘Associate Director of Public Prosecutions’ to ‘Deputy Director of Public Prosecutions’. The definition of paid work is intended to replace the phrase ‘paid employment’ throughout the DPP Act.
Other amendments in Part 2 clarify or modernise the language of provisions relating to the Director and Deputy Director but leave the substantive operation of provisions unchanged or make minor changes. For example, item 17 replaces section 25 to expand the persons who may administer the oath or affirmation of office to include the Attorney-General or a person authorised by the Attorney-General.
Key issues and provisions: Schedule 4 – Extradition
Part 1 – Imprisonment until surrender post-waiver
Extradition is a process by which one country apprehends and surrenders a person to another country for the purposes of criminal prosecution or to serve a sentence of imprisonment. Australia’s extradition regime is established under the Extradition Act 1988.
Under the Extradition Act once a person is remanded in custody or on bail they may elect to waive the extradition process. Waiver of the extradition process may reduce the time that a person spends in custody in Australia as the waiver will mean that not all stages in the extradition process will need to be completed. An application for waiver is made under section 15A of the Extradition Act.
The person wishing to waive the extradition process must inform a magistrate or judge that they wish to waive extradition in relation to the extradition offence or offences (p. 1). The magistrate or judge must inform the person of certain matters and be satisfied that the person has been legally represented and has voluntarily asked to waive the extradition process (section 15A(5)).
Items 1 and 2 amend section 15A of the Extradition Act to clarify that a person who has waived their right to contest extradition is to remain in custody until they are surrendered under a surrender warrant or temporary surrender warrant or until they are released pursuant to an order made by the Attorney-General under subsection 15B(4) of the Extradition Act.
Part 2 – Extradition warrant powers of entry
Police Powers
The Extradition Act authorises the arrest of a person who is the subject of an extradition arrest warrant, and search and seizure upon arrest, but does not grant police the power to enter premises to execute an extradition arrest warrant (sections 12 and 13). Furthermore, the Act does not grant the power to use reasonable force in executing a search warrant.
This is contrary to the powers granted to police under other legislation in relation to arrest warrants. The AFP submission to the Senate Committee inquiry into the Bill stated that the lack of powers of entry to premises or use of reasonable force for the purposes of arrest ‘has resulted in difficulties for AFP members executing extradition arrest warrants’ (p. 5).
Amendments
Item 3 inserts proposed section 12A into the Extradition Act to provide for new powers of entry for the purpose of arresting a person who is the subject of an extradition arrest warrant. The provision will apply where a police officer has the power to arrest a person under an extradition arrest warrant, and the officer believes on reasonable grounds that the person is on any premises. Proposed section 12A broadly mirrors section 3ZB and section 3ZS of the Crimes Act.
Proposed subsection 12A(2) provides that a police officer may enter premises at any time of day or night using force that is necessary and reasonable in the circumstances for the purpose of searching the premises for the person or arresting the person. However, proposed subsection 12A(3) provides that a police officer must not enter a dwelling house between the hours of 9pm and 6am unless the police officer believes on reasonable grounds that:
- it is not practicable to arrest the person at the dwelling house or elsewhere at another time
- it is necessary to enter the premises within that time frame to prevent the concealment, loss or destruction of property that may be material as evidence in proving any offence in relation to which the warrant was issued, or has been acquired by the person as a result of such an offence.
Dwelling house is defined at proposed subsection 12A(7) to include a conveyance (which includes an aircraft, vehicle or vessel) or a room in accommodation, in which people ordinarily retire for the night.
Proposed subsection 12A(4) provides that a police officer may stop and detain, and enter and search a conveyance, for the purpose of executing an extradition search warrant.
Proposed subsection 12A(5) provides that prior to entering premises the police officer must announce that they are authorised to enter the premises and provide the person at the premises an opportunity to allow entry. However, the police officer will not be required to comply with those requirements where they believe on reasonable grounds that immediate entry to the premises is required to ensure the safety of a person (including a police officer) or to ensure that the effective execution of the arrest warrant is not frustrated (proposed subsection 12(6)).
Item 4 inserts proposed section 29A into the Extradition Act to provide for the power to enter premises in relation to indorsed New Zealand warrants and provisional arrest warrants. An indorsed New Zealand warrant is a warrant which has been indorsed under section 28 by a magistrate or Judge, authorising the execution of a New Zealand warrant in Australia by any police officer. A provisional arrest warrant is a warrant issued under section 29 by an Australian magistrate or judge where an application has been made on behalf of New Zealand, a New Zealand warrant has been issued in relation to the person, no application has been made under section 28 and the magistrate or judge considers the issue of a warrant in relation to the person is justified in all the circumstances.
Proposed section 29A will apply where a police officer has the power to arrest a person under an indorsed New Zealand arrest warrant or provisional arrest warrant and they believe on reasonable grounds that the person is on any premises. The remainder of the provision mirrors proposed section 12A in relation to the power to enter premises, the power to stop and detain conveyances, and the requirement to announce prior to entry.
Item 5 inserts proposed section 47A into the Extradition Act to regulate the use of force in making an arrest under an extradition arrest warrant, a provisional arrest warrant or an indorsed New Zealand warrant. It provides that a police officer must not use more force or subject the other person to greater indignity than is necessary and reasonable to make the arrest or prevent the escape of a person after an arrest.
Without limiting the above, a police officer is prohibited from the following in the course of the arrest:
- doing anything that is likely to cause the death of or grievous bodily harm to the person unless the police officer has reasonable grounds to believe that doing that thing is necessary to protect life and prevent serious injury to another person (including the police officer)
- do such a thing where the person is attempting to escape arrest unless:
- the police officer believes on reasonable grounds that doing that thing is necessary to protect life or prevent serious injury to a person and
- if practicable the person has been called on to surrender and the police officer believes on reasonable grounds that the person cannot be apprehended in any other manner.
Proposed section 47A broadly mirrors section 3ZC of the Crimes Act in relation to the use of force in making an arrest.
Item 5 also inserts proposed section 47B into the Extradition Act to require a police officer to inform the person at the time of the arrest under an extradition arrest warrant, a provisional arrest warrant or an indorsed New Zealand warrant the reason for which the person is being arrested. It is sufficient that the officer informs the person of the substance of the reason.
A police officer will not be required to inform the person of the grounds for the arrest where, in the circumstances, the person should know the substance of the reason for which they are being arrested or where the person’s actions make it impracticable for the police officer to inform the person of the reason for which they are being arrested.
Proposed section 47B broadly mirrors section 3ZD of the Crimes Act.
Item 6 provides that the amendments made by Schedule 4, Part 2 apply in relation to an entry to premises in accordance with a warrant that occurs on or after commencement. This includes where the warrant is issued prior to commencement but is executed after commencement.
Issues with extradition arrest warrant powers
While considering it appropriate for Australian police officers to have the powers necessary to execute search warrants, as well as the desirability of consistency between the Crimes Act and the Extradition Act, in the LCA Committee Report Coalition Senators stated that they consider it (p. 24):
,,, prudent that the operation of these expanded arrest powers be subject to a post implementation review by the Senate Legal and Constitutional Affairs Legislation Committee. The review should commence within two years after this Bill is enacted and examine any unforeseen consequences of the amendments in Schedule 4.
Such a review should also examine the operational effect of restricting the execution of arrest warrants under both the Extradition Act and the Crimes Act to certain hours, while search warrants may be approved to be executed at any time.
Key issues and provisions: Schedule 5 – Telecommunications
The TIA Act regulates the interception of and access to communications by a range of agencies and authorities including state integrity bodies. The Bill reflects amendments to the Integrity Oversight Victoria Act 2011which changed the name of the ‘Victorian Inspectorate’ to the ‘Integrity Oversight Victoria’.
Items 4 and 11 repeal the definitions of Inspector of the Victorian Inspectorate, Victorian Inspectorate, Victorian Inspectorate Act and Victorian Inspectorate officer from subsection 5(1) of the TIA Act.
Items 1 and 5 insert the definitions of Chief Integrity Inspector, Integrity Oversight Victoria, Integrity Oversight Victoria Act (Vic) and Integrity Oversight Victoria Officer into subsection 5(1) of the TIA Act.
The remaining items within the Schedule make further minor amendments to reflect the agency’s name change.