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Crimes Legislation Amendment (Law Enforcement
Integrity, Vulnerable Witness Protection and Other Measures) Bill 2013
Introduced into the House of
Representatives on 29 May 2013
Portfolio:
Attorney-General
Summary of
committee view
1.1
The
committee thanks the Attorney-General for providing a comprehensive and
well-reasoned statement of compatibility, which has greatly assisted the
committee in undertaking its scrutiny role.
1.2
The
committee seeks further information as to what protections are in place to
ensure an unrepresented person is able to fully test the evidence against them
if they are prohibited from cross-examining certain witnesses against them,
including whether additional provision for legal assistance will be made
available in these circumstances.
1.3
The
committee seeks further information as to why it is necessary to reverse the
burden of proof with the creation of an exception to an existing offence.
Overview
1.4
This
bill seeks to amend a number of Acts with the intention of improving and
clarifying aspects of Commonwealth criminal law. In particular, the bill
proposes amendments:
- to
expand the jurisdiction of the Australian Commission for Law Enforcement
Integrity to enable the Integrity Commissioner to investigate corruption issues
within the Australian Transaction Reports and Analysis Centre (AUSTRAC)
(Schedule 1);
- to
expand protections available for vulnerable witnesses in Commonwealth criminal
proceedings (particularly victims of slavery and human-trafficking offences)
and for the use of victim impact statements in the sentencing of federal
offenders (Schedule 2);
- relating
to investigating, prosecuting and sentencing for people smuggling offences,
including removing the use of wrist x-rays as a prescribed age determination
process; requiring the prosecution to prove age; ensuring time spent in
immigration detention or on remand is recognised in sentencing; and enabling
the use of evidentiary certificates to establish prima facie evidence of facts
relating to the interception of people smuggling vessels (Schedule 3);
- to
strengthen the anti-money laundering and counter-terrorism financing
legislative framework, by providing greater privacy protections; giving access
to AUSTRAC data to two new agencies; enabling AUSTRAC to conduct internal
reviews (in addition to existing external review); and strengthening certain
offences (Schedule 4).
- to
facilitate assistance to the United Nations Mechanism for International
Criminal Tribunals (which was established in 2010 to complete the work of the
international criminal tribunals for the Former Yugoslavia and Rwanda)
(Schedule 5);
- to
the Australian Federal Police Act 1979 to reflect current governance
arrangements and to the Telecommunications (Interception and Access) Act
1979 to update cross-references to Victorian legislation (Schedule 6).
Compatibility
with human rights
1.5
The
bill is accompanied by a lengthy and detailed statement of compatibility that
identifies that the bill engages, promotes and limits a number of human rights,
including the right to privacy, the presumption of innocence, the right to a
fair hearing and the right to be treated with dignity when deprived of liberty.
The committee notes that the statement sets out in helpful detail how each
right is engaged, and where it limits a right it explains what the objective
being sought is and how such a limitation may be seen to be proportionate to
that objective.
1.6
The
committee thanks the Attorney-General for providing such a comprehensive and
well-reasoned statement of compatibility, which has greatly assisted the
committee in undertaking its scrutiny role.
1.7
The
committee considers that, except in relation to those issues set out below, any
limitations in the bill have been adequately explained in the statement of
compatibility and as such do not appear to raise human rights concerns.
Right to examine witnesses
1.8
Article
14(3)(e) of the International Covenant on Civil and Political Rights (ICCPR)
provides that everyone charged with a criminal offence has the right to
examine, or have examined, the witnesses against them. Schedule 2 of the bill
proposes restricting unrepresented defendants from cross-examining vulnerable
persons (such as victims of slavery or trafficking or witnesses recognised by
the court to be 'special witnesses').[4]
The committee appreciates that this is intended to protect vulnerable witnesses
and does not limit the ability of the defendant's legal representative from
testing evidence. However, the committee is concerned that if a person is not
legally represented this provision may limit the defendant's ability to
effectively examine the witnesses against them.[5]
1.9
The
committee intends to write to the Attorney-General to ask what protections are
in place to ensure an unrepresented person is able to fully test the evidence
against them if they are prohibited from cross-examining certain witnesses against
them, including whether additional provision for legal assistance will be made
available in these circumstances.
Presumption of innocence
1.10
New
item 24 of Schedule 4 of the bill creates an exception to an existing offence
to ensure a regulated business does not commit an offence by providing a
designated service to an individual using a false identity 'if the customer's
use of that name is justified, or excused, by or under a law'. The defendant
bears an evidential burden in relation to this exception. The statement of
compatibility recognises that offences which reverse the burden of proof may
limit the right to the presumption of innocence contained in article 14(2) of
the ICCPR. However, the statement does not go on to explain why there is a need
for the evidential burden to be reversed in this instance.
1.11
The
committee intends to write to the Attorney-General to ask why it is necessary
to reverse the burden of proof with the creation of the exception to an
existing offence in item 24 of Schedule 4.
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