Explanatory Memorandum
(Circulated by authority of the Minister for Justice and Customs, Senator the Honourable Chris Ellison)Schedule 4 - Australian Federal Police Act
Australian Federal Police Act 1979
The Bill will insert two specific functions in the Australian Federal Police Act 1979 (AFP Act) to clarify the scope of the Australian Federal Police's (AFP's) assistance and cooperation with other law enforcement agencies, government regulatory agencies, and intelligence and security agencies both at the domestic and international level, and its participation in peace and stability operations in other countries. The Bill will also create an exception to the secrecy provision in the AFP Act to confirm that the AFP can disclose personal information with the person's consent.
The specific and incidental functions of the AFP mean that it has responsibility for a range of activities including investigating and enforcing breaches of Commonwealth legislation, overseas crimes with a national impact (eg terrorism), and trans-national criminal activity (eg people trafficking). The AFP's international responsibilities are significant. They include the deployment of Australian police overseas for the purposes of international peace and stability operations, as well as multilateral and bilateral law enforcement capacity-building. They also include providing assistance in major disaster situations such as in the aftermath of the Boxing Day tsunami.
AFP cooperation at the international level is vital for the continued effective operation of the AFP. Such activities are not expressly covered by any of the specific functions in section 8 of the AFP Act, but generally fall within the incidental category of the provision of police services in relation to the laws of the Commonwealth and the safeguarding of Commonwealth interests. With increasing globalisation of criminal and law enforcement activities, it is clearly appropriate to reflect the AFP's operational responsibilities on the face of the legislation. The amendments will confirm the AFP's ability to provide police services for the purposes of:
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- assisting and cooperating with law enforcement organisations and government regulatory and intelligence bodies, both domestic and foreign, and
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- establishing, developing and monitoring peace, stability and security in other countries.
In performing its functions, it is often necessary for the AFP to disclose personal information. The amendments will also clarify that, in the exercise of these functions, the Privacy Act 1988 (Privacy Act) does not prevent the AFP from disclosing personal information.
Proposed Item 1 amends subsection 4(1) of the AFP Act by inserting a new definition of intelligence or security agency . This definition is inserted to assist with interpreting the specific functions inserted in the Act by proposed item 5.
Proposed Item 2 amends subsection 4(1) of the AFP Act by inserting a new definition of law enforcement agency . This definition is inserted to assist with interpreting the specific functions inserted in the Act by proposed item 5.
Proposed Item 3 amends subsection 4(1) of the AFP Act by inserting a new definition of police support services . This definition is inserted to assist with interpreting the specific functions inserted in the Act by proposed item 5.
Proposed Item 4 amends subsection 4(1) of the AFP Act by inserting a new definition of regulatory agency . This definition is inserted to assist with interpreting the specific functions inserted in the Act by proposed item 5.
Proposed Item 5 inserts two specific functions in subsection 8(1) of the Act to clarify the AFP's operational responsibilities in an environment of increasing globalisation of criminal and law enforcement activities and its continuing contribution to regional restoration of law and order assistance missions such as Regional Assistance Mission Solomon Islands (RAMSI), delivering capacity-building programs under the Law Enforcement Cooperation Program (LECP) and ongoing contributions to United Nations peace operations.
Proposed paragraph 8(1)(bf) provides that the AFP's functions include the provision of police services and police support services to assist and cooperate with law enforcement agencies, intelligence or security agencies and government regulatory agencies, both in Australia and overseas.
Proposed paragraph 8(1)(bg) provides that the AFP's functions include the provision of police services and police support services required to establish, develop and monitor peace, stability and security in foreign countries.
Subsection 4(1) of the Act defines police services to include 'services by way of the prevention of crime and the protection of persons from injury or death, and property from damage, whether arising from criminal acts or otherwise'. This term should be construed widely because of the range and unpredictability of the services the AFP can be required to provide.
The term police support services inserted by Proposed item 3 will mean services that are related to the police services provided by another Australian or foreign law enforcement agency, or services provided by an Australian or foreign intelligence or security agency or services provided by an Australian or foreign regulatory agency. This will ensure that the AFP can undertake activities that do not have an immediate, apparent nexus to traditional "police services". For example, educational activities such as instructing the police force of another country in the techniques of forensic investigation to build that country's expertise in that area.
Proposed Item 6 repeals existing subsection 60A(2A) and replaces it with a new subsection 60A(2A). This amendment will provide that the secrecy provision in section 60A does not apply to a disclosure of prescribed information where that disclosure is authorised by the Commissioner under proposed subsection 60A(2B) or to a disclosure of personal information that is authorised by the Commissioner under proposed subsection 60A(2C). Proposed paragraph 60A(2A)(a) will replicate the exception to the secrecy provision under existing subsection 60A(2A). Proposed paragraph 60A(2A)(b) will create a new exception to the secrecy provision through the operation of proposed subsection 60A(2C) inserted by Proposed item 7.
Proposed Item 7 inserts new subsections 60A(2C) and 60A(2D). Proposed subsection 60A(2C) will enable the Commissioner to authorise the disclosure of a person's personal information in circumstances where that person requests, or gives consent to, that disclosure. Examples include character and criminal history checks for pre-employment security assessments.
The amendment will put beyond doubt the AFP's ability to disclose criminal history checks and other personal information to a range of entities with the consent of the subject of the information. The disclosure of personal information with the consent of the person to whom it relates is consistent with Information Privacy Principle (IPP) 11.1(b) in the Privacy Act.
Proposed subsection 60A(2D) provides that proposed subsection 60A(2C) does not require the Commissioner to authorise a disclosure of personal information that is otherwise required or authorised under the AFP Act. For example, existing subsection 60A(2) allows a member of the AFP to disclose prescribed information, including personal information, where that disclosure is reasonably necessary in the course of providing police services for one of the functions set out in section 8 of the Act. Such a disclosure would not need to be authorised by the Commissioner.
Proposed Item 8 inserts a definition of personal information in existing subsection 60A(3) for the purposes of section 60A. Personal information has the same meaning as in the Privacy Act, that is, 'information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion'. This will ensure consistency across Commonwealth legislation.
Proposed Item 9 inserts a note at the end of existing subsection 60A(3) which refers to the application of Privacy Act provisions about the use and disclosure of information under the AFP Act.