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1998-1999-2000-2001
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
MEASURES TO COMBAT SERIOUS AND ORGANISED CRIME BILL 2001
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be Moved on Behalf of the Government
(Circulated by authority of the Minister for Justice and Customs,
Senator the Honourable Chris Ellison)
OUTLINE
The Measures to Combat Serious and Organised Crime Bill 2001, as
introduced into the Senate, amends the Crimes Act 1914, Australian
Federal Police Act 1979 (AFP Act), Customs Act 1901 and Financial
Transaction Reports Act 1988 (FTR Act) to:
• extend the scope of
the controlled operations provisions to enable operations against a broader
range of criminal activity subject to appropriate limitations and accountability
measures;
• provide a framework for intelligence and law enforcement
agencies to obtain and use evidence of identity for the purpose of creating
assumed identities for use in the performance of their functions, subject to
authorisation and audit mechanisms;
• provide protection for child
victims and witnesses appearing in Commonwealth sex offence
proceedings;
• make minor and technical amendments including amendments
to the provisions dealing with the investigation and prosecution of Commonwealth
offences;
• permit a warrant authorising the use of a listening device
in relation to a particular item to be sought;
• clarify that
financial transaction intelligence provided to AUSTRAC by comparable foreign
agencies is FTR information and give AUSTRAC a power to inspect the record
keeping systems of cash carriers; and
• prescribe CrimTrac for the
purposes of the Part VIIC (pardons, quashed convictions and spent convictions).
The proposed Government amendments to the Bill respond to the recommendations of the Senate Legal and Constitutional Legislation Committee (‘the SLCL Committee’) in its report on the Bill, and address a number of minor and technical issues that have arisen or have been identified, since the introduction of the Bill into Parliament.
The amendments that respond to recommendations of the SLCL Committee would:
• limit the range of offences in respect of which a controlled
operation may be authorised to more serious offences, as specified (item 3;
recommendation 1);
• enhance accountability for assumed identities
(items 9 and 10; recommendation 4);
• clarify the terminology in Part
1C of the Crimes Act and a cross-reference in the Fisheries Management Act
1991, to refer to ‘protected suspects’ rather than ‘deemed
arrest’ (items 29-32, 33, 34-37, 39-46, 48-61; recommendation
6);
• ensure that the needs of hearing impaired and disabled people are
taken into account in explaining their rights to them under Part 1C (items 33
and 47; recommendation 7).
The amendments that address other minor and technical issues
would:
• clarify the test for entrapment (items 1, 2 and
4);
• correct the headings to proposed sections 15PA, 15XU and 23P
(items 5, 8 and 56);
• allow the NSW Police Integrity Commission to use
assumed identities under the proposed Part 1AC (item 6);
• employ the
term ‘child complainant’ in place of ‘child victim’
(items 11-22 and 24-28);
• amend the warnings to juries provisions to
refer to children as a class of witnesses (item 23);
• rectify
omissions from the list of Service and Execution of Process Act 1992
provisions under which remand does not terminate the application of Part 1C
of the Crimes Act (item 38);
• rectify a minor error in the amendments
concerning listening device warrants (item 62); and
• clarify the
operation of the offences in section 15 of the FTR Act (item
63).
Financial Impact
The amendments will have no financial
impact.
NOTES ON ITEMS
This item would amend item 17 of schedule 1 to the Bill as introduced, to rectify a misdescription of the entrapment test in proposed paragraph 15IB(1)(d). A person is subject to entrapment (and hence the conduct by law enforcement is unauthorised) if the person is induced to commit an offence of a different kind to the offence that he or she did intend to commit. The wording of the entrapment test in the Bill as introduced does not have this effect. In the existing paragraph in the Bill, the words ‘an offence of that kind’ appear to refer to any Commonwealth, State and Territory offence that the person under investigation did not intend to commit, whereas those words should refer to an offence of the same kind that person under investigation did intend to commit. The proposed amendment would clarify the operation of the test by making a minor change to the structure of the paragraph.
Item 2
This item would amend item 17 of schedule 1 to the Bill as introduced, to rectify a misdescription of the entrapment test in proposed paragraph 15IB(2)(e) in the same manner and for the same reasons as the amendment contained in item 1 of the Government amendments.
Item 3
This item would amend item 17 of schedule 1 to the Bill as introduced, to
limit the range of offences in respect of which a controlled operation may be
authorised to serious offences, as specified. This involves an amendment to
proposed subsection 15J(2) of the Crimes Act. The amendment is a response
recommendation 1 in the report of the SLCL Committee.
The Australian
Federal Police would be able to authorise controlled operations for the
investigation of all Commonwealth offences that are punishable by 3 or more
years imprisonment.
The National Crime Authority would be able to
authorise controlled operations for the investigation of all Commonwealth
offences that are within the definition of ‘relevant offence’ in
section 4 of the National Crime Authority Act 1984. One of the
requirements within this definition is that the offence be punishable by 3 years
or more imprisonment.
The Australian Customs Service would be able to authorise controlled operations to investigate the serious prohibited goods import/export offences under sections 233BAA and 233BAB of the Customs Act 1901.
• The section 233BAA offence carries a maximum penalties of 5 years
imprisonment and/or a $100,000 fine and applies to the unlawful import and
export of specified performance enhancing drugs; specified non-narcotic drugs;
and other specified goods.
• The section 233BAB offence carries a
maximum penalties of 10 years imprisonment and/or a $250,000 fine and applies to
the unlawful import and export of specified firearms, munitions and military
warfare items of any kind including combat vests and body armour; specified
knives, daggers and other like goods; specified chemical compounds; specified
anti-personnel sprays and gases; specified fissionable or radioactive
substances; specified human body tissue and fluids; items of child pornography
or of child abuse material; counterfeit credit, debit and charge cards; and
other specified goods.
Item 4
This item would amend item 20 of schedule 1 to the Bill as introduced, to rectify a misdescription of the entrapment test in proposed paragraph 15M(c) in the same manner and for the same reasons as the amendment contained in item 1 of the Government amendments.
Item 5
This item would amend the heading to proposed section 15PA in item 31 of schedule 1 to the Bill as introduced. This is a technical amendment only. The substantive provision allows for an indemnity/immunity to continue in certain circumstances where a person is unaware that the authorisation certificate has been varied, surrendered, terminated or has expired. The heading to the section as introduced does not refer to expiry, an oversight that this amendment rectifies.
Item 6
This item would amend the definition of ‘Commonwealth participating agency’ in item 1 of Schedule 2 to the Bill as introduced, to omit the references to the Defence Signals Directorate (DSD) and the Defence Intelligence Organisation (DIO). DSD and DIO have advised that they do not need to use assumed identities. Removing them from the definition of “Commonwealth participating agency’ would mean that they are not able to authorise the acquisition and use of assumed identities.
Item 7
This item would amend proposed subsection 15XA(1) in item 1 of schedule 2 to the Bill as introduced, to allow the NSW Police Integrity Commission to obtain and use assumed identities as a ‘participating agency’ for the purposes of Part 1AC. Although additional participating agencies can be prescribed by regulation, the Police Integrity Commission is squarely within the categories of agency intended to be able to use the scheme.
Item 8
This item would amend the heading to proposed section 15XU in item 1 of schedule 2 to the Bill as introduced. This is a technical amendment only. The substantive provision provides for the keeping and auditing of records of assumed identities. The heading to the section as introduced omits reference to ‘auditing’, an oversight that this amendment rectifies.
Item 9
This Item would insert a new subsection 15XU(1A) in item 1 of schedule 2 to the Bill as introduced. The proposed subsection 15XU(1A) would provide that audits of assumed identities records are not to be conducted by a person responsible for issuing, varying or revoking, or who was covered by, one of the identities to be audited. This will guard against conflict of interest by providing that auditing of assumed identities must be at arms length from their use and decisions concerning their use.
This amendment, along with the amendment in item 10, responds to concerns about the auditing process in the Bill as introduced, reflected in recommendation 4 of the SLCL Committee report.
Item 10
This item would insert proposed new section 15XUA in item 1 of schedule 2 to the Bill as introduced. Proposed section 15XUA would require Commonwealth participating agencies (ie, agencies that may authorise the use of assumed identities under proposed Part 1AC) to report at the end of each financial year on:
(a) the number of authorisations to use an assumed identity issued during that financial year;
(b) a general description of the activities undertaken pursuant to those identities; and
(c) a statement as to whether the audit of those identities revealed any fraud or unlawful activity.
The Australian Intelligence Security Organisation and Australian Secret Intelligence Service would be required to report to the Inspector-General of Intelligence and Security. The remaining Commonwealth participating agencies would be required to report to the Minister responsible for the agency, who would be required to table the report in Parliament within 15 sitting days.
Under proposed subsection 15XUA(2), the report is not to include information that the head of the agency views as likely to endanger a person’s safety, prejudice an investigation or prosecution or compromise the operational activities or methodologies of the agency, if published. This caveat is necessitated by the sensitivity of the information involved. For example, a person who has used an identity may be at risk of reprisals from a criminal group that has been infiltrated.
This amendment, along with the amendment in item 9, responds to concerns about the auditing process in the Bill as introduced, reflected in recommendation 4 of the SLCL Committee report. It is designed to enhance the transparency of the assumed identities framework.
Items 11-22
These items would amend proposed sections 15YA, 15YB, 15YC, 15YF, 15YG and 15YH in item 1 to schedule 3 to the Bill as introduced. The amendments replace the term ‘victim’ with ‘complainant’ and the term ‘victim’s’ with ‘complainant’s’.
Schedule 3 would insert Part 1AD in the Crimes Act, conferring certain protections and safeguards in respect of child witnesses in proceedings for Commonwealth sex offences. There are some additional protections and safeguards for alleged victims, reflecting the particular trauma that they may suffer in court. However, use of the term ‘victim’ sets up an inappropriate implication that it is known the alleged offence occurred, which may be a contested matter in a criminal proceeding. The amendments therefore introduce instead the term ‘complainant’, which contains no presumption that an offence has occurred or that the alleged victim is indeed the victim.
These amendments in no way alter the substantive protections and safeguards that apply or the circumstances in which they apply.
Item 23
This item would amend proposed section15YQ in item 1 of schedule 3 to the Bill as introduced. Section 15YQ prohibits a judge from suggesting to a jury that certain categories of evidence are unreliable. The existing paragraph 15YQ(a) in the Bill as introduced provides that a judge is not to suggest that the law regards ‘children as unreliable witnesses’. This could be read as precluding a judge from suggesting that a particular child is an unreliable witness, a matter that is properly within a judge’s discretion.
The proposed amendment to paragraph 15YQ(a) will more clearly reflect the original intention by providing that a judge is not to suggest that children are an unreliable ‘class’ of witness.
Items 24-28
These items would amend proposed section 15YR in item 1 of schedule 3 to the Bill as introduced, to replace the term ‘victim’ with ‘complainant’ and the term ‘victims’ with ‘complainants’. The nature and purpose of these amendments is the same as for items 11-22.
Items 29-32
These items would amend the following sections currently in the Crimes Act or
proposed under this Bill - sections 23, 23AA and 23B. It would do so by
amending items 9, 10 and 12 of schedule 4 to the Bill as introduced to insert
references to a ‘protected suspect’.
These amendments respond
to concerns reflected in recommendation 6 of the report of the report of the
SLCL Committee on the Bill. These concerns related to the lack of clarity in
the use of the term ‘arrest’ to mean two mean different things
(lawful arrest and deemed arrest) in Part 1C of the Crimes Act. The reason for
the two concepts is that actual arrest gives rise to a detention power and
safeguards for suspects, whereas deemed arrest gives rise only to safeguards for
suspects.
The proposed amendments respond to the Committee’s
criticism of the use of the word ‘arrest’ to mean two different
things by replacing the ‘deemed arrest’ label with the phrase
‘protected suspect’. In other words, persons who are currently
deemed to be ‘under arrest’ would instead be termed ‘protected
suspects’. This will make it clear that in the absence of ‘lawful
arrest’, there is no other power of arrest or detention created by the
fact that a person is in the company of an investigating official. Rather, the
extended operation of many of the provisions of Part 1C (previously referred to
as ‘deemed arrest’) is purely directed to conferring safeguards and
protections, a fact that will be reflected in the new term ‘protected
suspect’. The amendments employ a clearer label only, and have no
substantive impact on the powers or rights conferred by Part 1C of the Crimes
Act. The definition of ‘protected suspect’ is contained in item 36
of the government amendments.
Item 33
This item would amend the definition of
‘inform’ in proposed section 23B(1) by amending item 13 of the Bill
as introduced. The amendment would require an investigating official to notify
a person of his or her rights under Part 1C in a manner in which the official
reasonably believes the person can understand having regard to any apparent
disability. For example, in administering a caution to an intellectually
disabled person an official would be required to speak slowly and use simple,
clear language if that would assist the person’s understanding.
The proposed amendment would also insert a reference to ‘protected
suspect’ for the reasons outlined in relation to items
29-32.
Items 34-37
These items would amend section 23B of
the Crimes Act by inserting items 14A and 15A, amending item 15 and omitting
items 16-19 of the Bill as introduced. Item 36 contains a proposed definition
of protected suspect, to be inserted in subsection 23B(2) of the Crimes Act.
The remaining items insert references to ‘protected suspect’. The
reasons for the amendments are outlined in relation to items 29-32.
In
keeping with the circumstances that currently constitute ‘deemed
arrest’, the definition of ‘protected suspect’ will apply to a
person who is in the company of an investigating official for the purpose of
being questioned, if:
• the official believes that there is sufficient evidence to establish that the person has committed a Commonwealth offence that is to be the subject of the questioning; or
• the official would not allow the person to leave if the person wished to do so; or
• the official has given the person reasonable grounds for believing
that the person would not be allowed to leave if he or she wished to do
so.
Current exceptions to this definition (as amended by the Bill), would
remain, namely where:
• the official is performing functions in relation to persons or goods entering or leaving Australia and the official does not believe that the person has committed a Commonwealth offence; or
• the official is exercising detention, search, information gathering or questioning power under a law of the Commonwealth.
The safeguards that arise in circumstances of deemed arrest (and that would
therefore arise where a person is a ‘protected suspect’)
include:
• to communicate with a friend or relative and legal
practitioner (section 23G);
• in the case of an Aboriginal person or
Torres Strait Islander or person under 18 - to have an interview friend present
during questioning (section 23H);
• in appropriate cases - to an
interpreter (section 23N);
• in the case of a foreign national or
stateless person - to communicate with the appropriate consular office (section
23P).
Item 38
This item would amend proposed subsection 23B(3) in item 20 of schedule 4 to
the Bill. The amendment would provide that remand under additional provisions
of the Service and Execution of Process Act 1992 (‘SEP Act’)
to those previously specified, does not terminate the application of Part 1C of
the Crimes Act to that person.
The general rule in both the version of
subsection 23B(3) in the Bill as introduced and in the Government amendments, is
that once a person who has been arrested for a Commonwealth offence has been
remanded by a magistrate in respect of that offence, the person ceases to be
treated as being under arrest (or as the subject of questioning safeguards) for
that offence for the purposes of Part 1C.
In the usual situation remand
terminates the initial phase in which a person may be arrested, detained and
questioned, with the person then being held by correctional authorities or
released on bail prior to trial. The phase to which Part 1C applies is over,
hence remand (in effect) terminates the application of Part 1C.
The
reason for exempting specified provisions of the SEP Act from this general rule
is that ‘remand’ has different consequences where the SEP Act is
involved. The SEP Act comes into play in circumstances where an arrestee is to
be transferred from one state or territory to another. Remand operates as an
interim step in the process of transfer, and arrest, detention and questioning
may continue after the transfer has occurred. Accordingly, it is not
appropriate that Part 1C cease to apply.
The existing amendment in the
Bill as introduced does not extend to the full range of SEP Act provisions under
which this situation may arise and therefore the proposed new subsection 23B(3)
in the Government amendments adds references to paragraph 83(8)(a), subsection
83(12), paragraph 83(14)(a) and subparagraphs 84(4)(a)(ii) and 84(6)(a)(i) of
the SEP Act.
Items 39-46
These items would amend sections 23B, 23C, 23D, 23E and 23F in Part 1C of the Crimes Act as amended by the Bill and the headings to Division 2 and 3, by inserting items 20A, 21A and 40A in schedule 4 to the Bill and amending items 21, 25, 30, 36 and 40. The proposed amendments would replace the deemed arrest label with the clear term ‘protected suspect’, for the reasons outlined in relation to items 29-32.
Item 47
This item would amend section 23F of the Crimes Act, as proposed to be amended by item 41 of schedule 4 to the Bill as introduced. The amendment clarifies that although a caution may be given in writing to a person suffering a hearing impairment, the caution does not have to be given in writing unless this is the most appropriate means of communication.
The amendment responds to recommendation 7 in the report of the SLCL Committee on the report.
Items 48-55
These items would amend sections 23G, 23H, 23J, 23K, 23M and 23N in Part 1C of the Crimes Act as amended by the Bill as introduced, by inserting items 41A, 41B, 42A, 43A, 43B, 44A, 46A, 47A, 47B, 47C, 48A and 51A in schedule 4 to the Bill as introduced. The proposed amendments would replace the deemed arrest label with the clear term ‘protected suspect’, for the reasons outlined in relation to items 29-32.
Item 56
This item would amend the proposed new heading to section 23P in item 52 of schedule 4 to the Bill as introduced. This is a technical amendment only. The substantive provision would confer rights on both foreign nationals and stateless persons to communicate with a consular office. The heading to the section in the Bill as introduced refers only to foreign nationals, omitting reference to stateless persons, a limitation the new heading removes.
Items 57-60
These items would amend sections 23P, 23Q and 23U as amended by the Bill, by amending item 52 and inserting items 52A, 53A and 53B in schedule 4 to the Bill as introduced. The proposed amendments would replace the deemed arrest label with the clear term ‘protected suspect’, for the reasons outlined in relation to items 29-32.
Item 61
This item would amend paragraph 84A(2)(a) of the
Fisheries Management Act 1991, by inserting item 70 in schedule 4 to the
Bill. Section 84A of the Fisheries Management Act regulates the detention of
persons suspected of committing certain offences against that Act. The
detention power arises only where the officer has reasonable grounds to believe
that the person: is not an Australian citizen or an Australian resident, and was
on a foreign boat when it was used in the commission of such an offence
(paragraph 84(1)(ia)).
The safeguards generally applicable to persons questioned as suspects under Part 1C of the Crimes Act are expressed to apply to detainees under this Fisheries Management Act power, pursuant to subsection 84A(2) of the Fisheries Management Act. As no formal arrest is involved, the detention is treated as deemed arrest for the purposes of the application of Part 1C safeguards. The reference to the person being treated ‘as if’ he or she was ‘under arrest’ will be changed to a reference to the person being ‘a protected suspect’ within the meaning of Part 1C, for the reasons outlined in relation to items 29-32.
Item 62
This item would amend paragraph 12G(7)(a) of the AFP Act by inserting item 5A in schedule 5 of the Bill as introduced. Under subsection 12G(7) of the AFP Act, a Judge or nominated AAT member is to have regard to certain matters before issuing a listening device. These matters include the impact on a person’s privacy in relation to the ‘the person or premises’ in respect of which the use of the device would be authorised. Although a listening device could previously only be issued in respect of a person or premises, the amendments proposed in schedule 5 to the Bill would allow a listening device to be issued in respect of an ‘item’. The proposed amendment to the Bill clarifies that privacy considerations are to be taken into account where the issuing of a listening device warrant is in respect of an item, as they are in respect of persons and premises.
Item 63
This item would amend subsections 15(1) and 15(5) of the FTR Act, by inserting items 3A to 3F in schedule 6 to the Bill as introduced. Subsection 15(1) and 15(5) create offences relating to a failure to report a specified currency transfer. The amendment would clarify a matter not addressed in the Criminal Code harmonisation process, namely that strict liability applies to the elements of the offences relating to requirement to report.