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Mutual Assistance in Criminal Matters (Cybercrime) Regulation 2013

FRLI: F2013L00205

Portfolio: Attorney-General

Summary of committee view

2.156         The committee seeks clarification as to whether the Mutual Assistance in Criminal Matters Act 1987 is compatible with human rights, in particular: the right to life; the prohibition against cruel, inhuman and degrading treatment or punishment; the right not be tried or punished again for an offence for which the person has already been convicted or acquitted; the right to equality; and the right to privacy.

Overview

1.157         This instrument seeks to provide that the Mutual Assistance in Criminal Matters Act 1987 (Mutual Assistance Act) applies to a foreign country that is a party to the Council of Europe Convention on Cybercrime, subject to that Convention.

Compatibility with human rights

1.158         The instrument is accompanied by a self-contained statement of compatibility that states that it 'does not engage any of the applicable rights or freedoms', and goes on:

Australia's mutual assistance regime contains a number of human rights safeguards that strike an appropriate balance between Australia's need to comply with our international obligations while ensuring that the rights of individuals are protected.

...

The Regulation ensures that requests received by Australia under the Convention can be actioned, in compliance with both the MA Act and the relevant terms of the Convention ... The Regulation does not alter any of the human rights safeguards that are already contained in the Act.

While Australia's mutual assistance regime engages with some human rights it does so in a reasonable and proportionate way and does not operate to limit or restrict those rights. As such, the Regulation is compatible with human rights.[1]

1.159         However, despite the broad statement that the Mutual Assistance Act does not operate to limit or restrict human rights, the committee has a number of concerns with the operation of the Act, which is relevant to the scrutiny of this instrument which extends the operation of the Act.

1.160         The committee needs to be satisfied that the Mutual Assistance Act itself is compatible with human rights in order to be satisfied that the instrument is compatible. The committee has a number of preliminary concerns with the operation of the Act as set out below, however, a thorough review of the Act to consider its compatibility with human rights appears to be necessary.

Right to life

1.161         The Mutual Assistance Act allows the Australian government to give assistance to any foreign country to help it investigate an offence or gather evidence in order to prosecute. The person against whom the information is sought may be in Australia's jurisdiction or may already be in the custody of the country seeking assistance. The Act provides that a request by a foreign country for assistance under the Act must be refused if the offence is one in respect of which the death penalty may be imposed. However, the Act qualifies this by saying that this prohibition will not apply if 'the Attorney-General is of the opinion, having regard to the special circumstances of the case, that the assistance requested should be granted.'[2] In addition, the Act also provides that assistance may be refused if the Attorney-General believes that the provision of assistance may result in the death penalty being imposed and 'after taking into consideration the interests of international criminal co-operation' is of the opinion that 'in the circumstances of the case' the request should not be granted.[3]

1.162         Article 6 of the International Covenant on Civil and Political Rights (ICCPR) provides: 'Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life'.[4] This does not include qualifications where 'special circumstances' or 'the interests of international criminal co-operation' may apply.

1.163        The committee intends to write to the Attorney-General to ask how the Mutual Assistance Act is compatible with the Australia's obligations with respect to the right to life under the ICCPR and the Second Optional Protocol to the ICCPR.

Prohibition against torture, cruel, inhuman and degrading treatment or punishment

1.164         The Mutual Assistance Act provides that a request by a foreign country for assistance shall be refused if the Attorney-General is of the opinion that 'there are substantial grounds for believing that, if the request were granted, the person would be in danger of being subjected to torture'.[5] This wording is consistent with the wording in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), but may not be consistent with the prohibition on torture in article 7 of the ICCPR, which relevantly provides:

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

1.165         Article 7 of the ICCPR is broader as it not only prohibits torture but also prohibits 'cruel, inhuman or degrading treatment or punishment'.

1.166        The committee intends to write to the Attorney-General to ask if the Mutual Assistance Act is compatible with the prohibition against cruel, inhuman and degrading treatment or punishment.

Double jeopardy

1.167         The Mutual Assistance Act provides that a request by a foreign country for assistance may be refused if the Attorney-General is of the opinion the request relates to the investigation, prosecution or punishment of a person for an offence where the person has already been acquitted or pardoned or has undergone punishment in respect of that offence or act or conduct.[6] The committee notes that this allows a discretion to give assistance to a foreign country even where a person has been acquitted or already punished. Article 14(7) of the ICCPR provides:

No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

1.168        The committee intends to write to the Attorney-General to ask if the Mutual Assistance Act is compatible with the right not be tried or punished again for an offence for which the person has already been convicted or acquitted.

Right to equality

1.169         Article 26 of the ICCPR provides:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

In addition, the Convention on the Rights of Persons with Disabilities provides for equality of persons with disabilities.

1.170         The Mutual Assistance Act provides that a request by a foreign country for assistance shall be refused if the Attorney-General is of the opinion there are substantial grounds for believing that the request was made for the purpose of investigating, prosecuting, punishing or otherwise prejudicing someone  on account of their 'race, sex, sexual orientation, religion, nationality or political opinions'. This is an important safeguard, however, this list does not include all the grounds for discrimination as set out in the international conventions, including disability, language, opinions (other than political opinions), or social origin.

1.171        The committee intends to write to the Attorney-General to ask why a more expansive list of grounds for discrimination is not included in the Mutual Assistance Act.

Right to privacy and the prohibition on inhuman and degrading treatment

1.172         The type of assistance that might be sought, and given, under the Mutual Assistance Act is very broad, ranging from search and seizure, surveillance, forensic procedures, restraining orders relating to foreign criminal proceedings, notices to financial institutions and arrests. Many of the provisions in the Act appear to engage the right to privacy under article 17 of the ICCPR.

1.173         Of particular concern are provisions that provide that Australia may request that a foreign country authorise the use of a surveillance device 'in accordance with the law of that country' and arrange for information obtained to be sent to Australia.[7] It is unclear to the committee how Australia could ensure that information obtained via this process would be able to guarantee a person's right to privacy.

1.174         Australia may also request a foreign court to authorise the carrying out of a forensic procedure on a person for the purpose of giving assistance in relation to a proceeding relating to a criminal matter that has commenced in Australia.[8] The Mutual Assistance Act specifically states that, to avoid doubt, 'Australia may request that a foreign procedure be carried out in the foreign country even if, under Australian law, the forensic procedure could not have been carried out by using processes similar to those used in the foreign country'.[9] A 'forensic procedure' has the same meaning as in the Crimes Act 1914,[10] and includes:

• an external examination of a part of the body, including the genital or anal area, the buttocks or, in the case of a female or a transgender person who identifies as a female, the breasts;
• the taking of a sample of blood, by a finger prick or other method;
• the taking of a sample of hair, including pubic hair;
• the taking of a sample from a nail or under a nail;
• the taking of a sample of saliva, or a sample by buccal swab;
• the taking of a sample by swab or washing from any external part of the body, including the external genital or anal area, the buttocks or, in the case of a female or a transgender person who identifies as a female, the breasts;
• the taking of a sample by vacuum suction, by scraping or by lifting by tape from any external part of the body, including the external genital or anal area, the buttocks or, in the case of a female or a transgender person who identifies as a female, the breasts;
• the taking of a dental impression;
• the taking of a hand print, finger print, foot print or toe print;
• the taking of a photograph or video recording of, or an impression or cast of a wound from, any part of the body, including the genital or anal area, the buttocks or, in the case of a female or a transgender person who identifies as a female, the breasts.

This does not include any intrusion into a person’s body cavities except the mouth or the taking of any sample for the sole purpose of establishing the identity of the person from whom the sample is taken.

1.175         The Mutual Assistance Act specifically states that Australia can make such a request – and use any information obtained – regardless of whether the foreign country carries out the procedure using the same standards recognised by Australian law. It is clear from the definition that a forensic procedure can be a highly personal and sensitive procedure, involving the taking of blood samples (which contains extremely personal information), and allow genetic material to be taken from sensitive and private parts of a person's body. As the request can be made to any foreign country, it is quite conceivable that another country's procedure in relation to this may show limited respect for the right to privacy, and, depending on how such a procedure is carried out on a person, may in fact amount to inhuman and degrading treatment. It is unclear to the committee how Australia could ensure that information obtained via this process would be able to guarantee a person's right to privacy and would satisfy the prohibition on inhuman and degrading treatment.

1.176        The committee intends to write to the Attorney-General to ask how the provisions of the Mutual Assistance Act are consistent with the right to privacy and the prohibition on inhuman and degrading treatment, particularly insofar as it allows information obtained from a foreign country (including sensitive personal information) to be used regardless of how that information was obtained.

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