Revised Explanatory Memorandum
(Circulated by authority of the Minister for Justice and Customs, Senator the Honourable Chris Ellison)Schedule 2 - Consequential Amendments
This item amends section 15Y of the Crimes Act 1914 so that it lists the offences in proposed Division 271 as relevant offences for Part 1AD of the Crimes Act 1914. This is important because in prosecuting offences of trafficking in children, it may be necessary to use child witnesses. Part 1AD of the Crimes Act 1914 contains a protective regime for children in proceedings for sexual offences. This protective regime should apply to trafficking prosecutions.
These are consequential amendments to item 1.
Telecommunications (Interception) Act 1979
This item amends the Telecommunications (Interception) Act 1979 (the Telecommunications Interception Act), to ensure that law enforcement agencies, including the Australian Crime Commission and the Australian Federal Police can seek telecommunications interception warrants in connection with the investigation of all the trafficking in persons in a manner consistent with the current interception regime.
Under the Telecommunications Interception Act, there are two classes of offences for which telecommunications interception warrants can be obtained. Prior to issuing a telecommunications interception warrant to an agency, an issuing authority must be satisfied of a range of matters, including that there are reasonable grounds for suspecting that a person is using or is likely to use the telecommunications service, and that information that would be likely to assist in the investigation of a class 1 or class 2 offence could be obtained by interception of that service.
Class 1 offences are the most serious Commonwealth offences, and include crimes such as murder and certain terrorism offences. Class 2 offences are also serious offences, and must be punishable by at least 7 years imprisonment. All class 1 offences for the purposes of the Telecommunications Interception Act are listed in section 5D of the Act.
For class 2 warrants, the issuing authority must consider a number of additional factors, namely the privacy of the person of interest and the gravity of the alleged conduct constituting the offence.
The existing offences against section 73.2 of the Criminal Code (people smuggling aggravated by exploitation) and all the offences in Division 270 (slavery, sexual servitude and deceptive recruiting) are included as 'class 2' offences.
This item amends section 5D of the Telecommunications Interception Act to ensure the new trafficking in persons offences in Division 271 of the Criminal Code (except for the debt bondage offences) and all of the offences in Division 73 of the Criminal Code are included as 'class 2' offences. The penalty and seriousness of these offences makes them appropriate to be included in the 'class 2' category of offences to which telecommunications interception warrants should be available under the Telecommunications Interception Act. The classification of the new trafficking offences as class 2 offences will contribute to the effective enforcement of those offences.