The committee received 16 submissions, which primarily focused on the
proposed amendments in Schedules 1, 4, 5, 6, 9 and 10 of the Bill. A discussion
of the various issues raised by submitters with respect to each of these schedules
is set out below.
Schedule 1—Serious drug offences
As discussed in chapter 1, the proposed amendments in Schedule 1 of the
Bill would substantially alter the operation of the serious drug and precursor
offences in Part 9.1 of the Criminal Code.
Submitters to the inquiry expressed concerns about the introduction of
these amendments. The Australian Drug Law Reform Initiative (ADLaRI) argued
that the introduction of recklessness as the fault element for import/export
offences 'represents a significant departure from traditional criminal law
While the ADLaRI acknowledge that the current provisions have resulted
in some disparities, especially in situations where law enforcement authorities
have substituted the prohibited substance with a fake substance, it took the
view that these inconsistencies do not warrant changing the fault element of
the offence to recklessness.
At the public hearing, Ms Courtney Young explained the significance behind the
fault element being either intention or knowledge:
Typically an attempt charge...proceeds because for some reason,
either police intervention or otherwise, the physical actions to make up that
crime have not been completed and therefore on that basis, because the physical
acts have not been completed, the law has traditionally required that there be
a high level or a full mens rea to compensate for the fact that the
person has not committed all the necessary acts. We refer to the Stonehouse case—there
are many cases going back a long time to demonstrate that if you are going to
move away from the principal that a person is not guilty until they commit all
the acts with the corresponding mental state for those acts, then there need to
be some protections in place, so requiring a full mens rea of intention
is that protection for the attempt defence. It really is important in any
circumstance where that is going to be watered down that we need to consider
whether there is a justifiable reason for it.
The Law Council of Australia (LCA) shared a similar view:
...it is not justifiable to convict a person of
"attempt" where the item was in fact not an illicit drug and he or
she did not believe it was an illicit drug, even if aware that...it might be.
These are very serious offences with very heavy penalties and the general rules
of criminal liability under both common law and the Griffith Codes should
continue to apply.
The ADLaRI also argued that the proposal to remove the intent to manufacture
element from border‑controlled precursor offences, combined with the
proposed amendments in Schedule 5 of the Bill, would 'widen the expanse of
liability too far'.
Liberty Victoria submitted 'that if a person is to be charged with
importation of a precursor...it is reasonable for the prosecution to have to
prove that the accused person intended that the precursor would be used to
manufacture a controlled drug'.
They noted that these changes may result in individuals being exposed to
serious penalties for comparatively low‑level criminal conduct:
You have things like ephedrine being included, and
undoubtedly some of these substances get used in all sorts of weird and
wonderful contexts such as the racing field. Sometimes they are used in
horseracing, for example. That is serious but perhaps not of the same level of
seriousness as manufacturing drugs like amphetamine, or ice. Given how severe
the penalties are, with penalties up to 25 years for commercial quantities and so
on, it is important that in order to be captured within that penalty regime
they should be part of the illegal trafficking and importation field relating
to drugs of dependence for human consumption.
The LCA proposed that the Criminal Code instead be amended to allow for
the CDPP 'to rely on the presumption in section 307.14 for the offences in
sections 307.11 to 307.13 where there is an extension of criminal liability
under Part 2.4 of the Criminal Code'.
Alternatively, the LCA suggested that the fault elements in sections 307.11 to
307.13 be broadened.
Liberty Victoria agreed with these proposals, noting that to go any further
would be unnecessary.
The Commonwealth Director of Public Prosecutions (CDPP) assured the
committee that these amendments, as well as the proposed amendments in Schedule
5 of the Bill, are required to better target Australia's illicit drug market:
...our stance is that if those proposals were adopted it would
make a significant difference to law enforcement resourcing and outcomes, with
a particular impact on organised criminal activity, in particular within the
serious ice problem confronting our community. Our view is
that it will do so without any loss of fairness or any other adverse, in the
sense of being unfair, outcomes.
The Explanatory Memorandum explained:
...in prosecutions for attempted offences against Part 9.1, it
has been very difficult to show that a person had actual knowledge that his or
her actions involved a controlled or border controlled substance, unless the
person has made a direct admission. These difficulties are particularly
pronounced where individuals are part of a larger operation and who
deliberately operate with limited knowledge about how their actions fit into
the broader criminal enterprise. This has meant that offenders who are involved
in the trafficking and importation of illicit drugs and their precursors have
been able to escape liability for attempted offences against Part 9.1, rather
than facing penalties commensurate with the gravity of their conduct.
Prosecutions for serious drug and precursor offences may also
be affected by the use of specific law enforcement methodologies. For example,
the use of a controlled operation in an investigation may make it impossible to
charge the person with a primary offence against Part 9.1 on the basis that the
person cannot technically complete the offence. The person must therefore be
charged with an attempt to commit an offence against Part 9.1, and the
prosecution must prove the person’s knowledge or intention, rather than the
fact that he or she was reckless.
At the public hearing, the CDPP clarified the need for the introduction
of recklessness as the fault element, by stating:
this amendment...is directed to the longstanding reality that
the AFP avoid risk to the community by making 100 per cent substitution of
drugs before allowing the consignment to continue as though that had not
occurred. In the past, at least, some of the drugs remained—sometimes all of
the drugs—which was discontinued by the AFP because of that risk. Because of
that police intervention, the subsequent dealing with the consignment will not
constitute a substantive offence because there are no longer any drugs there.
This has resulted in an anomalous and unfair situation whereby the courier
caught with the drugs has a fault element for the offending of
"recklessness" as to what the substance is, while the recipient of
the substituted consignment—be it obtained from a courier, from a shipping
container or from a post office—who must be charged with "attempt to
possess", solely because of the substitution, has the much higher fault
element of "intention" or "knowledge". There is no material
difference between a person bringing drugs into the country and a person
collecting drugs at the next stage.
The CDPP also provided justification for the removal of the intent to
manufacture element, noting that the rationale for retaining this amendment is
no longer justified due to the marked increase in border controlled precursors
and the organised nature of these importations using technology.
The Explanatory Memorandum observed that these provisions have not
functioned as intended:
Even with the presumption, the CDPP has faced formidable
difficulties in prosecuting offenders for importing precursor chemicals. These
difficulties are particularly pronounced where individuals are part of a larger
operation and who deliberately operate with limited knowledge about how their
actions fit into the broader criminal enterprise. In these circumstances, it is
very difficult to prove the intention or belief of the persons involved in
undertaking discrete parts of the importation, even where each person knew or
believed they were involved in some form of illicit activity.
Schedule 4—Forced marriage
Submitters to the inquiry were overwhelmingly supportive of the proposed
amendments to strengthen the forced marriage offences in the Criminal Code.
The Australian Human Rights Commission (AHRC) expressed its support for
the proposed amendment to expand the definition of forced marriage, noting that:
The commission agrees that the amendments would increase the
protection against forced marriage for children and persons with disabilities
who do not have the capacity to provide a free and full consent to marriage.
There were reports earlier this week that the Australian Federal Police is
currently investigating 34 cases where allegations of forced marriage have been
raised. Twenty-nine of these cases involve people under the age of 18—and that
underpins why we think this is an important amendment.
The LCA was also very supportive of the change to the definition of
forced marriage though noted that some of its constituent bodies had raised
concerns about the increase in penalties for individuals convicted of forced
Dr David Neal SC, on behalf of the LCA, provided some suggestions as to how the
amendments could be improved:
We support the amendments, but there were two things that we
suggested in addition. One was education, in relation to these things, and the
other was the one that you mentioned: the review of related underage sex
offences to make sure that all of these line up. On a first reading it does
appear to me that the reverse onus of proof in this legislation is aligned
with, for instance, the similar underage sex provisions in the Victorian
legislation and I think in the other states. It was just that we thought there
ought to be a check to make sure that for these offences, which are analogous
in many ways with underage sex offences and may involve prosecutions both for
this offence and for those offences, there is a level of consistency across
that suite of offences.
In its submission, the LCA expanded on what such a review would
...non-consensual sexual intercourse and other related offences
may accompany an offence of forced marriage in many cases...it may be prudent to
give consideration to any potential amendments that may be needed in regards to
the framing of non-consensual sex and other offences that may accompany forced
The LCA also proposed 'that consideration be given to criminalising the
procuring of an underage marriage, which would not need to rely on a
presumption that a person under the age of 16 has been unable to consent to a
Liberty Victoria, while supportive of the proposed change to the
definition of forced marriage, raised concerns about the creation of a reverse
burden of proof.
They noted that the reverse onus provisions may give rise to a number of
Liberty Victoria maintains concerns about reverse onus
provisions, in particular, that the right to silence cuts away at the
requirement for the prosecution to prove guilt by an effect of casting an onus
on the accused and forcing the accused into the witness box or to give evidence
in circumstances where they have a right to silence. That
may be problematic if it is a joint trial where there are other charges as
well, because if they have to go into the witness box to give their defence
about the circumstances of the marriage and there are a number of other charges
as well then they might have to be severed because of the potential unfairness
of the reverse onus provision.
In addition, there is the problem that they may need to
perhaps call the child or other members of the child's family to produce the
relevant evidence and, in doing so, create more problems than it solves.
The minister has previously provided detailed justification for the
introduction of these amendments:
The importance of these amendments is illustrated by a recent
matter investigated by the Australian Federal Police and referred to the
Commonwealth Director of Public Prosecutions...for consideration. The matter
involved a 12 year old girl who swore on oath that she fully consented to her
marriage to a 26 year old man, which had been arranged by her family. The girl
presented as articulate, confident and well-educated, and was adamant that she
entered into the marriage of her own volition notwithstanding her age. The [CDPP]
was unable to find anyone from within the girl's family or community prepared to
attest to the ceremony, and ultimately determined not to prosecute the matter
for forced marriage offences as there were no reasonable prospects of success.
With a presumption that conferred only an evidential burden,
in this case example the girl's 'husband' and relatives could have easily
pointed to evidence of her apparent maturity. With the evidential burden
discharged and without a witness that knew the girl, it would be extremely
difficult for the COPP to prove beyond reasonable doubt that she was not
capable of understanding the nature and effect of a marriage ceremony.
The Explanatory Memorandum argues that these amendments are necessary to
'align the forced marriage offences with the most serious slavery-related
facilitation offence of deceptive recruiting for labour or services'.
The Attorney-General's Department (department) noted the suggestions put
forward by submitters regarding the need to increase community awareness in the
area of forced marriage.
The department advised the committee about a number of education and awareness
raising initiatives the government has undertaken. These have included the
launch of the Forced Marriage Community Pack; workshops on forced marriage
issues for front-line workers in both government and non-government
organisations; and programs developed by Anti-slavery Australia, the Australian
Muslim Women's Centre for Human Rights and the Australian Catholic Religious
Against Trafficking in Humans.
The department also informed the committee that since 2013 'there have
been 42 referrals of forced marriage to the Australian Federal Police, of which
they have investigated 34, with the youngest girl aged 12'.
Schedule 5—Knowingly concerned
Submitters were most concerned with the provisions in Schedule 5 which,
if passed, would insert knowingly concerned as a secondary form of criminal
liability into section 11.2 of the Criminal Code. As discussed in chapter 1,
section 11.2 already lists aids, abets, counsels and procures as grounds of
The LCA strongly opposed the proposed amendments on a number of grounds.
It noted that while the concept of knowingly concerned was originally included
in the previous Crimes Act, it has since been rejected:
...the proposal to introduce the concept of 'knowingly concerned'
was considered by the Gibbs committee in the late 1980s and in some detail by
the Model Criminal Code Committee. With very few exceptions, none of the
jurisdictions which presently have the provisions already found in chapter
2—namely that the test of the liability for these cases is whether that person
has aided, abetted, counselled or procured an offence—was the test that was
settled on. The concept of 'knowingly concerned' was rejected on the basis that
it was too vague.
The LCA submitted that the Model Criminal Code Officer's Committee
(MCCOC) also rejected proposals to include knowingly concerned in 2008 and
again in 2012.
The LCA compared the extensive consultation process that was undertaken by the
MCCOC with the lack of consultation that has occurred on the proposed
The LCA noted that the concept of knowingly concerned currently only
exists in the Australian Capital Territory and that its introduction into the Criminal
Code may lead to confusion for a jury where an accused has been charged with
both federal and state offences:
...the ambition to have uniform criminal laws across the
country is a very valuable one for reasons of principle—the same standards of
liability should extend across the nation—but it also introduces complexities
into trials that involve both state offences and Commonwealth offences, where
there are different tests of liability for the same offences. If the test for
aiding and abetting operates in a trial for some state offences and we have
knowingly concerned for other states, the complexity that that introduces to
trials involving lay members of the jury is a very significant problem in the
administration of justice—both for the judges who direct the juries and for the
juries themselves, who have to cope with fairly complex concepts in an already
The LCA also raised concerns about how the proposed amendments have been
drafted, arguing that the proposed physical and fault elements could not fit
well within Chapter 2 of the Code.
The LCA noted that the physical element for the offence of knowingly
concerned would not actually require the accused to be knowingly concerned in
an offence committed by another person, as suggested by the Bill.
As 'knowingly' is a mental state as opposed to a physical act, the physical
element would actually involve being 'concerned' in an offence committed by
The LCA submitted that the term 'concerned' was vague and uncertain and that
'there is nothing to explain why or what it adds to a simple term like
The LCA also raised concerns with how the Bill has defined the fault
element for the offence of knowingly concerned:
There is also a conceptual problem. Under paragraph
11.2(3)(a) the prosecution would have to prove that the defendant intended to
be knowingly concerned. While an intent to aid, abet, counsel or procure some
offence has some sensible meaning, an intent to be "knowingly
concerned" in it introduces a confusion between the concepts of
"intention" and "knowledge" which are separate concepts
under the Criminal Code and in common usage. Paragraph 11.2(3)(a) would require
the prosecution to prove that the defendant "intended" that his or
her conduct would result in the person (i.e. the defendant him or herself)
being knowingly concerned in the commission of an offence. This does not appear
to make sense. The general principles of criminal liability are difficult
enough—for lawyers and juries alike—without additional confusions.
At the public hearing, Dr Neal SC, appearing on behalf of the LCA,
discussed 'the dangers of framing offences in very nebulous terms'.
He referred to:
...the case of a defendant who was convicted under section
101.6 on the basis of making a phone call to seek a ruling whether a proposed
attack was permissible under Islamic law—wanting and expecting that the answer
would be that it was impermissible (which was the ruling)—amounted to an act of
preparation. He was sentenced to 18 years imprisonment.
The LCA later submitted that:
...this offence was designed to capture lone wolf offenders
where a conspiracy charge would not be available. But in this case, the
defendants were charged with a conspiracy to do an act of preparation for a
terrorist act. The trial lasted six months and the judge's charge to the jury
ran to 500 pages and was delivered over nine days. The proposed amendment would
allow a person to be charged with being knowingly concerned in an act of
preparation for a terrorist act. The potential for vaguely-defined, complex offences
to cause injustice is very real.
Finally, the LCA reasoned that the department had failed to justify the
need to extend criminal liability for all offences in the Code:
The case for this reform has particularly identified drug and
drug importation offences, insider trading drug offences, and competition law
offences. However, the offences specific to these areas already address the
issues identified as supporting change.
The LCA recommended that, where there is a need to extend criminal
complicity, the proposed amendments should be specific to that offence only.
The AHRC took a similar view, noting that knowingly concerned has been
included in other Commonwealth legislation only where the need arose:
As described by the Commonwealth Director of Public
Prosecutions in evidence given to the Committee, the concept of being "knowingly
concerned" is currently part of a number of Commonwealth Acts dealing with
both civil contraventions and criminal offences (one example of a current
criminal provision at the Commonwealth level is s 79 of the Competition and
Consumer Act 2010 (Cth) which deals with criminal liability for cartel
conduct, although the Commission understands that there have not been any
prosecutions under this section to date).
The AHRC stated that 'it is difficult to anticipate the impact of
extending this form of liability to all offences'.
Liberty Victoria discussed a number of examples that may lead to a
person being considered to be knowingly concerned, including: a journalist
going undercover; family members present when someone commits euthanasia;
parents of a child engaging in terrorism offences; watching an online video or
a YouTube clip of a particular thing as it is happening; or downloading
information from the internet.
At the public hearing, Ms Jane Dixon QC, on behalf of Liberty Victoria,
discussed how the introduction of knowingly concerned, combined with the
amendments proposed in Schedule 6 of the Bill, might have a particularly harsh
...for example, if a husband and wife are travelling together
and the husband is a mad keen sporting shooter and he is taking his guns over
to New Zealand, for example—stupidly, but perhaps not with any really dangerous
plans—and his wife fills out the card. She is perhaps knowingly concerned: even
though she is only very peripherally involved in what he does, she could end
up, because of the extension of 'knowingly concerned' and the further potential
provision of mandatory sentencing, in prison for a substantial period of time.
This is the problem: there is a double whammy there, and that is why we oppose
what we say are unnecessary changes when the current code is quite
Ms Dixon also argued that these amendments may result in members of the
public not coming forward with information regarding potential threats:
...with some offences—for example, people being suspicious that
a member of their family or a housemate might be in contact with someone from
ISIS overseas, and you are not exactly sure; you might want to go and sneak
into their bedroom and start looking at some material on their computer, and
then perhaps you might intend to question them about it, find out a bit more
about it and what is actually going on. Now parents, family members, and
housemates might feel very reluctant to go into the bedroom and attempt that
kind of search or investigation—because of the risk of being knowingly
concerned by that preliminary inquiry. So it is easier to take a blind-eye
approach, "I will just turn away from it, not get involved, be
The CDPP addressed a number of these concerns in its submission. It
submitted that the concept of knowingly concerned was included in the Crimes
Act when it was first enacted in 1914:
It was a clear and well understood concept from the perspective
of prosecutors, defence practitioners, the judiciary, juries and, most
importantly, persons charged with criminal offences and their lawyers. The
concept required proving that the acts shown to have been done by the defendant
"in truth implicate or involve him in the offence, whether it does show a
practical connexion between him and the offence". To prove objective
involvement in or connection to an offence, the prosecution needed to prove
that an accused intentionally concerned themselves with the essential elements
or facts of a criminal offence. Mere knowledge or concern about the offence, by
contrast, was insufficient to make out a charge of knowingly concerned.
The CDPP argued that the concept of knowingly concerned was not at all
vague and in some ways more straight‑forward than other forms of
This concept was well understood and did not lend itself to
highly technical legal arguments, but rather encouraged a focus on the facts
and evidence and on precisely what individuals had themselves done in relation
to the commission of an offence by others. It had little or none of the
vagueness or archaic language of the retained concepts of "aid, abet,
counsel or procure", nor some of the more problematical aspects of conspiracy
or attempt charges.
At the public hearing, the CDPP informed the committee that the absence
of a provision dealing with knowingly concerned has resulted in 'real and
substantial gaps in federal criminal law':
The first gap is for persons who are not hands on for
offending and were only involved by being in fact knowingly concerned in the
offence committed by others. This gap is notable in drug importing but also for
fraud and commercial offences such as insider trading. It has significant
potential application to organised child exploitation rings and would greatly
assist also with organised commercial online sexual offending where the person
sought to be prosecuted is not the person actually directly dealing with, for
example, the child pornography but is knowingly concerned in that dealing.
"Knowingly concerned" catches arm's length financiers and organisers
who cannot be shown to have committed the principal offence and are not caught
at all or are poorly caught by the concepts of "aid, abet, counsel or procure".
So that is one broad category.
The second category—and it is probably numerically the
greater category—is what I would call the next-in-line offences such as those
who collect drugs or receive delivery of drugs immediately after importation.
That is a category that is very common and one that is often not captured by
"aid, abet, counsel or procure". They have not committed the before
offence of aiding or abetting the principal offence—that is the counselling or
procuring the principal offence. They have not committed the counselling or
procuring, nor have they committed the...offence of aiding or abetting. They are
next in line. They are the recipients after, particularly, the importation has
taken place. They cannot be shown—or at least it is very difficult to show but
often not all—to have helped or encouraged or induced the principal offender to
commit the offence, which is what the language of the High Court in Giorgianni
deals with in terms of aid, abet, counsel or procure. But they are involved in
acts that implicate or involve them in the offence committed by others. There
is the practical connection. Mere knowledge is not enough and the full test in Tannous
The CDPP advised that currently the only way to address these gaps is to
pursue conspiracy charges, which he described as a 'most undesirable'
It is harder and much more expensive to investigate and it is
harder and much more expensive to prosecute, because the focus must necessarily
be on the entire group and the entirety of the criminal enterprise. You have to
show the existence of the agreement, which constitutes the conspiracy, and you
have to show participation in it before the co-conspirators rule can work.
Importantly, conspiracy is also harsher on the individual
defendant, because they are fixed with responsibility for what the entire group
has done rather than for what they alone have done, including on sentence, and
sentences in those circumstances can be harsher.
The CDPP submitted that these types of charges are detrimental to the
justice system more generally, as they 'require complex, technical instructions
to a jury and frequently result in more complex, lengthy and costly trials,
often resulting in accused persons being less likely to plead guilty...'.
The CDPP also informed the committee of a number of other Commonwealth
Acts that have already introduced the concept of knowingly concerned, either as
a criminal offence or a civil penalty provision:
There is section 79 of the Competition and Consumer Act,
which was the Trade Practices Act; section 48 of the Building and
Construction Industry Improvement Act 2005, which I think has now been
renamed as the Fair Work (Building Industry) Act 2012; section 45 of the
Criminal Code 2002 in the ACT; section 79 of the Corporations Act
2001, which deals with civil matters not criminal matters; section 484 of the Environment Protection and
Biodiversity Conservation Act 1999; section 94X of the Income Tax
Assessment Act 1936; section 126‑264 of the Income Tax Assessment
Act 1997; and three different sections of the Migration Act 1958—140ZC,
140ZF and 255AO. There was a string of other acts that also had it, but they
seem to be the core ones that were worth raising for the committee's knowledge
The department rejected concerns raised by submitters over whether the
amendments would result in confusion in matters involving both state and
The reality of the model code process is that,
notwithstanding that it was a long-running process, only the Commonwealth, the
Northern Territory and the ACT have adopted the model code, and even chapters 1
and 2 of the model code, which set out the general principles of criminal
responsibility that were endorsed by Standing Council of Attorneys-General more
than a decade ago, have not been enacted by the majority of jurisdictions. In
the meantime, the reality is that the Commonwealth and operational agencies
including the DPP need to be able to respond to the day-to-day challenges that
the director has outlined.
Schedule 6—Penalties for firearm trafficking offences
Generally, submitters were opposed to the introduction of these
While acknowledging the 'potential for serious social harms associated
with firearms trafficking' and the safeguards included in the Bill, the LCA
submitted that it 'unconditionally opposes mandatory sentencing as a penalty
for any criminal offence'.
The LCA cited a number of grounds, including:
restrictions on judicial discretion and inconsistency with rule
of law principles;
the potential for disproportionate sentences;
the inability of the judge to take into account the particular
circumstances of the case;
potentially increasing the likelihood of reoffending;
undermining the community's confidence in the judiciary and the
criminal justice system as a whole; and
potentially unjust outcomes for vulnerable groups.
The AHRC raised similar concerns, noting that mandatory sentencing laws
'run counter to the fundamental principle that punishment should fit the
The AHRC also argued that the department has failed to justify the need for
mandatory minimum penalties for firearm trafficking offences:
The Attorney-General's Department has confirmed that it is
not aware of any cases where sentences for firearms trafficking have been
insufficient as a matter of fact or as a matter of their observation. There
does not seem to be any demonstrated need for mandatory minimums.
The AHRC included in its submission examples of where Canadian courts
'have found mandatory minimum sentences for certain firearm offences to be
unconstitutional because they have the potential to produce grossly
Along with recommending that the government not introduce a minimum head
sentence, the AHRC also recommended that the government repeal mandatory
minimum sentences for those convicted of people smuggling offences noting that this
is the only other offence 'in Commonwealth law that sets a mandatory minimum
The AHRC argued that these penalties had originally been applied
unjustly to a boat crew, who had limited culpability for the offence:
everybody charged with people-smuggling offences were charged with an
aggravated form of the offence. And that aggravated form of the offence applied
to circumstances where there were more than five people on a boat coming to
Australia. There was a basic offence that applied to bringing a person to
Australia who did not have a lawful right to come. It was an aggravated form of
the offence if there were five or more people on the boat. And the offence
applied both to people who organised the venture and to people who facilitated
Almost all of the people charged with that offence were
facilitators. There were very few organisers charged. People charged with
facilitating were typically crew members on a boat who had been paid a
relatively small amount of money to steer the boat to Australia.
The AHRC informed the committee that in 2012 the then Attorney-General
issued a directive to the CDPP, pursuant to section 8 of the Director of
Public Prosecutions Act 1983, 'not to prosecute first time offender, lower
culpability crew under s 233C of the Migration Act and to consider prosecution
under a lesser offence that does not attract a mandatory minimum penalty'.
The Law Society of New South Wales submitted that the safeguards
included in the Bill do not go far enough:
The committee notes the suggestion in the Explanatory
Memorandum that the mandatory minimum sentencing provisions are human rights
compatible as the provisions do not apply to children, and that judicial
discretion is preserved because there is no minimum non-parole period proposed
[119–124]. However...a mandatory minimum sentence by definition fetters judicial
The Explanatory Memorandum explains the need for these amendments:
There are clear and serious social and systemic harms
associated with firearms trafficking, and the introduction of a mandatory
minimum penalty of five years' imprisonment for offences under Division 360 and
the new Division 361 reflect the gravity of supplying firearms and firearm
parts to the illicit market. The entry of even a small number of illegal
firearms into the Australian community can have a significant impact on the
size of the illicit market, and, due to the imperishable nature of firearms, a
firearm can remain within that market for many years. This provides a growing
pool of firearms which can be accessed by groups who would use them to commit serious
and violent crimes, such as murder. For example, in 2012, firearms were
identified as being the type of weapon used in 25% of homicides in Australia
(Australian crime: Facts and figures 2013, Australian Institute of
Criminology). Failure to enforce harsh penalties on trafficking offenders could
lead to increasing numbers of illegal firearms coming into the possession of
organised crime groups who would use them to assist in the commission of
The department informed the committee that 'there is strong support
within law enforcement for stronger laws in relation to dealing with firearms
due to the size of the illicit market and the concerns they have'.
The department noted that the introduction of mandatory minimum penalties would
act as 'a strong deterrent against the illegal trafficking of firearms'.
In respect of safeguards, the Explanatory Memorandum states that 'the
mandatory minimum term of imprisonment will only apply if a person is convicted
of an offence as a result of a fair trial in accordance with such procedures as
are established by law'.
The Explanatory Memorandum clarifies that the amendments do not apply mandatory
minimums to persons under the age of 18 and do not impose a minimum non-parole
period on offenders.
These safeguards help preserve the court's discretion in sentencing and ensure
that sentences imposed by the courts are proportionate.
Schedule 9—Information sharing arrangements
The amendments proposed in Schedule 9 of the Bill were not of concern to
most submitters. However both the New South Wales Director of Public
Prosecutions (NSW DPP) and the Victorian Director of Public Prosecutions
(Victorian DPP) provided submissions raising concerns about the breadth of the
The Victorian DPP noted that:
The information likely to be sought under the amendments
potentially raises conflict with state law on questions of privacy and
legislative restrictions on the sharing or reporting of certain types of
information, especially in relation to victims of crime. Any potential conflict
of laws could have an adverse effect decision making by the DPP or OPP.
The Victorian DPP also argued that 'the DPP and OPP would not be the
primary sources of the types of information likely to be sought in relation to
the functions of the Attorney-General'.
The NSW DPP stated that it remains to be seen how the provisions would
operate in practice:
It appears to me that in practice...any exchange of information
between this agency and the Commonwealth, that each request should be
considered on its merits and that the form and content of the information
should be negotiable, not least of which to preserve orders made to protect an
individual's safety or uphold legitimate claims of privilege.
The NSW DPP also observed that the Explanatory Memorandum remains silent
on the potential conflicts of laws when such a request for information would
'preclude a claim of legal professional privilege and compliance with non‑publication
The department reassured the committee that the Bill contains sufficient
safeguards to protect personal privacy and legal professional privilege:
...I am satisfied that the bill as drafted does provide
necessary protections and that, in the end, these decisions are about giving
natural justice to offenders and ensuring that the decision makers have all of
the necessary information in front of them so that there is no detriment to any
of the decisions of parole boards in the case of the states or in the case of
the Attorney-General's Department in making a decision.
The department also informed the committee that every case would be
considered on its merits:
As you would appreciate, every federal offender has a
completely different case to each other. Often the kind of information that we
are after may be medical information—psychiatric reports et cetera—and it would
be important for us to seek that information. But that is not just a blanket
approach that we have; for other offenders, we are more interested in finding
out the nature of their offence, the nature of the parole that they are
actually considering and suchlike. Certainly, privacy is paramount in any of
our dealings with our state and territory counterparts, so, without doubt, we
do consider every case on its merits. With regard to the idea that a notice may
be issued and may override legal professional privilege, we would consider that
an order would only ever be issued where it has been put to us that, under the
provisions, it is not possible to pass information over. In those cases it
would be very unlikely that legal professional privileged information would
need to be provided, unless of course there is a case where a prisoner
themselves has concerns about their legal practitioner and they want that
information passed over to us. Every case would be considered on its merits.
Schedule 10—Anti-money‑laundering and counter-terrorism financing
Both the LCA and the AHRC raised concerns about the proposed amendments
in Schedule 10 of the Bill. In particular, they were concerned with the
proposed amendment to paragraphs 169(2)(c) and (d) of the Anti-Money-Laundering
and Counter-Terrorism Financing Act 2006 (AML/CTF Act) which would 'widen
the circumstances in which the protection of the privilege against self‑incrimination
In its submission, the AHRC explained how the privilege against self‑incrimination
In its current form in Australia, the right to claim the
privilege against self-incrimination in criminal law and against self-exposure
to penalties in civil and administrative law is a "basic and substantive
common law right" and entitles a natural person to refuse to answer any
questions or produce any document if it would tend to incriminate them.
The AHRC noted that while this privilege might be abrogated by statute,
this could only occur where there was a legitimate aim and the abrogation
proposed would be reasonable or proportionate to this aim.
The AHRC, while not having 'a particularly defined and clear view' about the
requested that the department provide further information about why there is a
need for these amendments:
The proposed amendments in the bill mean that a person could
be required by AUSTRAC to give information and produce documents, and the
privilege to self-incrimination would not apply in relation to civil
proceedings instituted for any offence under the acts, or criminal proceedings
for any offence under the act or any offence against the Criminal Code that
relates to that act. So it is a significant extension of the current position
that applies in relation to the Australian Crime Commission, ASIC and the ACCC.
That, at least, needs to be explained we suggest. There is no explanation in
the memorandum as to why the reduction of the privilege against self-incrimination
is necessary and proportionate.
The LCA agreed that the proposed amendment 'significantly further
abrogates the common law privilege against self-incrimination', noting that the
department had provided 'little or no justification or reasoning...to substantiate
any need for the proposed amendment'.
The LCA also submitted that 'having regard [to] the very serious consequences
for liability, insufficient consultation has been conducted'.
At the public hearing, the LCA noted that the AML/CTF legislation was
currently being reviewed and that the introduction of the proposed amendments
seemed 'a very odd way to proceed':
It would seem to us that a far better process...if there is
going to be a specific review of that legislation, then changes as sweeping as
these should be considered in the context of that legislation, and it should be
fully articulated why this is necessary at this time. We see nothing of that in
the explanatory material accompanying this bill.
The department confirmed that a review of the AML/CTF Act was indeed
being conducted by the department, in close cooperation with AUSTRAC.
The department advised that while there was no set time for the report to be
delivered, it expected that it may be finalised by the middle of the year.
The department explained to the committee the need for these amendments
to be passed ahead of the review being finalised. AUSTRAC has two compulsory
notice powers, one under section 169 of the AML/CTF Act (the subject of the
proposed amendments) and one under section 202 of the AML/CTF Act.
Mr Jim Heard, on behalf of AUSTRAC, explained how these powers currently
The general intent of the amendment is to align the permitted
use of material obtained under a 167 notice with the permitted use of material obtained
under a section 202 notice. At present, there is an anomaly between the two.
Section 202 can be used to obtain extensive information relating to
transactions undertaken by a business that is regulated by AUSTRAC, which are
known as reporting entities. However, section 167 can be used to obtain
information that relates to the entity's compliance with mandatory requirements
under the anti-money laundering and counter‑terrorism financing regime.
Mr Heard gave a case example of where this anomaly between the two
notices has had a direct impact on AUSTRAC's supervision and regulatory
There was a large reporting entity. Intelligence and
transaction information suggested that there was a considerable amount of
illicit funds being transacted through this reporting entity. The clear
difficulty for AUSTRAC was that it suggested that the reporting entity's
anti-money laundering and counter-terrorism financing programs, policies,
procedures and practices were deficient and were failing to detect and deal
with this apparent illicit activity. The scale of the activity suggested that
there may be a considerable problem there. AUSTRAC utilised a section 202
notice to obtain further information about the transactions that were regarded
as suspicious. But the real questions from the regulatory perspective were what
were the entity's internal systems, what was their staff training, why was it
that they were failing to detect this sort of activity and why were they
failing to deal with it? In order to find out those matters, we really needed
to ask the entity to provide further documents and to answer questions. The
only feasible method to do that was to issue a 167 notice. However, the
restrictions that exist in section 169 prevent that material from being used in
any civil proceedings under the Anti-Money Laundering and Counter-Terrorism
Financing Act 2006.
Due to the impediment caused by this anomaly, AUSTRAC therefore sought
the proposed amendment in order 'to bring the usability of the material of the
two notices into line'.
The committee is grateful for the number of detailed submissions it
received, noting the length and complexity of the Bill. It has considered the
concerns raised by submitters, particularly relating to Schedules 1, 5 and 6 of
the Bill. While the committee understands that some of these provisions may
have some impact on an individual's freedoms and liberties, the committee
acknowledges that the government's first priority is to keep our nation safe.
Recent events, such the Martin Place siege, have deeply affected the community
and demonstrate that stronger laws to protect the community are needed.
The committee also notes the findings of the Australian Crime Commission
in its Organised Crime in Australia 2015 report which demonstrate that
'organised criminal gangs represent an ongoing threat to this country' and are
relying on new technologies to escape prosecution.
The law must keep pace with modern technology and the way in which criminals
operate. The committee notes that the majority of provisions contained in the
Bill have been drafted at the request of the CDPP. The committee agrees that
the passage of the Bill would remove impediments currently faced by the CDPP
when prosecuting offenders for serious crimes. The proposed amendments would
ensure that offenders are no longer being charged with offences that do not
reflect their true level of criminality. The committee is of the view that
overall both the minister and the department have provided sufficient justification
for these measures. The committee therefore recommends that the Bill be passed.
Subject to the following recommendation, the committee recommends that
the Senate pass the Bill.
With regard to the proposed amendments to strengthen forced marriage
offences, the committee agrees that these amendments would result in additional
protection for children and persons with a disability who do not have the
capacity to consent to marriage. The committee is persuaded by the evidence of
the LCA that it would be beneficial for the government to conduct a review of
other underage sex offences that may accompany a forced marriage offence.
This would ensure that where the prosecution brings charges for forced marriage
and underage sex offences, the same onus of proof would apply to all charges.
The committee recommends that the Commonwealth and state and territory governments
consider reviewing underage sex offences to ensure there is consistency with
the federal offences of forced marriage.
In relation to the evidence provided regarding mandatory
minimum sentences, the committee, while noting concerns raised by
submitters, believes that the government has introduced sufficient safeguards
to ensure that no injustices result. Further, as identified by the AHRC,
there is a safeguard afforded by section 8 of the Director of Public
Prosecutions Act 1983 which empowers the Attorney-General to issue
directions or guidelines to the CDPP which 'relate to the circumstances in
which the Director should institute or carry on prosecutions for offences'.
The committee is aware that past Attorney-Generals have issued section 8 directives
in relation to the application of mandatory minimum sentencing.
The committee is concerned about the apparent lack of consultation
between the government and stakeholders prior to the drafting of this Bill. The
committee is of the view that, due to the technical nature of the amendments
proposed in the Bill and the number of schedules, it would have been beneficial
had the government engaged in a consultation process with stakeholders and state
and territory DPPs. For example, evidence from the Attorney-General's Department
that the amendments would be welcomed by its state and territory counterparts
was at odds with submissions from both the NSW DPP and Victorian DPP raising
concerns over the amendments in schedule 9 of the Bill. The LCA also advised
the committee that, whilst it had met with the department, it had not been
consulted on the explicit amendments in the Bill.
The LCA noted that:
...the size and the complexity of [the Bill] itself gives rise
to a concern about whether certain aspects of the Bill have been properly
considered or can be properly considered in the context of such a large Bill'.
The committee believes there is value in the government consulting with
relevant stakeholders during the development of proposed legislation. This is
particularly so with technical amendments such as those in the Bill where the
considerable expertise and practical experience of legal practitioners and
specialist legal bodies could have assisted with identifying and resolving potential
issues prior to the Bill's introduction and passage. The committee therefore welcomes
the suggestion of the LCA that, in future, such consultation could be
undertaken by the relevant department or the Law, Crime and Community Safety
Senator the Hon
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