Revised Explanatory Memorandum
(Circulated by authority of the Minister for Justice the Honourable Brendan O'Connor MP)SCHEDULE 1 - GENERAL AMENDMENTS RELATING TO EXTRADITION AND MUTUAL ASSISTANCE IN CRIMINAL MATTERS
GENERAL OUTLINE
1.1 Schedule 1 contains general amendments which relate to both extradition and mutual assistance. Part 1 of Schedule 1 contains amendments to enable Federal Magistrates to perform functions under the Extradition Act and the MA Act, in addition to State and Territory magistrates. These amendments are designed to reduce delays in valuable court time by increasing the number of judicial officers available to conduct proceedings under the Acts.
1.2 Part 2 of Schedule 1 contains amendments to clarify privacy and information disclosure provisions relating to extradition and mutual assistance processes. It will insert new provisions in the Extradition Act and the MA Act to clarify that the collection, use or disclosure of personal information is authorised by law for the purposes of the Privacy Act 1988 where it is reasonably necessary for the purposes of the extradition of a person to or from Australia, or providing or obtaining international assistance in criminal matters. Part 2 of Schedule 1 will also contain amendments to the Migration Act to ensure that the disclosure of identifying information for the purposes of extradition or mutual assistance is not an offence under that Act.
PART 1 - AMENDMENTS RELATING TO FEDERAL MAGISTRATES
EXTRADITION ACT 1988
ITEM 1 - SECTION 5
1.3 This item will insert a definition of 'Federal Magistrate' in section 5 of the Extradition Act (which provides for the interpretation of terms). 'Federal Magistrate' will mean a Federal Magistrate acting persona designata pursuant to new sections 45A and 45B. This will clarify that any reference to 'Federal Magistrate' in the Act (other than in new section 45A which will be inserted by item 5) will be a reference to a Federal Magistrate acting in his or her personal capacity. This is because all functions assigned to magistrates under the Act are administrative as opposed to judicial in nature.
ITEM 2 - SECTION 5
1.4 This item will expand the definition of 'magistrate' in section 5 of the Extradition Act to include Federal Magistrates. This will enable Federal Magistrates to exercise all functions currently conferred on State and Territory magistrates under the Extradition Act. These functions include the power to hear consent matters under section 18 of the Act, the power to determine eligibility for surrender under section 19, the power to issue an arrest warrant under section 12 and the power to order the remand of a person under section 15. This amendment is designed to increase the availability of judicial officers to conduct extradition proceedings.
ITEMS 3 AND 4 - SUBSECTION 21(1) AND SUBSECTION 35(1)
1.5 Part 1 of Schedule 2 of the Bill will make a range of amendments to remove the jurisdiction of State and Territory Supreme Courts to hear appeals under the Extradition Act and limit this jurisdiction to federal courts. Currently, a review of a magistrate's determination of eligibility for surrender under section 19 or 34 of the Act can be sought in either the Federal Court of Australia, or the relevant State or Territory Supreme Court under sections 21 and 35 respectively. Items 1 and 7 of Schedule 2 will remove the ability to seek review of a decision under these sections in the Supreme Court of the State or Territory in which the order was originally made.
1.6 These items will remove 'of a State or Territory' after the word 'magistrate' from subsections 21(1) and 35(1). This will recognise that it will not matter which State or Territory the magistrate made the original order in as the only avenue for appeal is to the Federal Court.
ITEM 5 - AFTER SECTION 45
1.7 This item will insert new sections 45A and 45B. New section 45A will enable the Attorney-General to nominate a Federal Magistrate to be a magistrate for the purposes of the Extradition Act, and enable the Federal Magistrate to consent to the nomination. The nomination procedure will be required as a Federal Magistrate will exercise administrative functions under the Act, which must be performed in his or her personal capacity.
1.8 The nomination and consent must be made in writing, but the written document will not be a legislative instrument for the purposes of the Legislative Instruments Act 2003 . A 'legislative instrument' is defined at section 5 of the Legislative Instruments Act. In general terms, a legislative instrument is a written document that is of a legislative character and that is made in the exercise of a power designated by Parliament. Requirements relating to registering, tabling, scrutinising and sun-setting all Commonwealth legislative instruments are imposed under the Legislative Instruments Act. Subsection 45A(3) will clarify that these requirements do not apply to nominations and consents to nomination pursuant to new section 45A.
1.9 New section 45B will clarify that magistrates exercising functions or powers under the Extradition Act perform these functions or exercise these powers in a personal capacity and not as a court or a member of the court. This reflects the doctrine of persona designata , which holds that Parliament may confer a non-judicial function on a justice of a court constituted under Chapter III of the Constitution if the function is conferred on the justice as an individual rather than a member of the court. Due to the separation of powers doctrine, functions or powers are conferred on a voluntary basis and need not be accepted by the magistrate.
1.10 New subsection 45B(2) differentiates between a magistrate and Federal Magistrate in this regard because a Federal Magistrate will be defined as a person who has already consented to being nominated by the Attorney-General to exercise the relevant functions or powers under the Act (which will be inserted by item 1 of this Schedule).
1.11 New subsection 45B(3) will also make clear that magistrates acting persona designata are still entitled to the judicial immunity afforded to them as if they were exercising functions or powers as a court or a member of a court.
ITEM 6 - SUBPARAGRAPH 55(C)(VII)
1.12 This item will remove 'of magistrates' from subparagraph 55(c)(vii). This will remove the ability of the Governor-General to make regulations prescribing the protection and immunity of magistrates. This provision is not necessary as a consequence of the legislative provision for the immunity of magistrates in new subsection 45B(3) (see Item 5 of Schedule 1 to this Bill).
MUTUAL ASSISTANCE IN CRIMINAL MATTERS ACT 1987
ITEM 7 - SUBSECTION 3(1)
1.13 This item will insert a definition of 'Federal Magistrate' in section 3 of the MA Act (which provides for the interpretation of terms). 'Federal Magistrate' will mean a Federal Magistrate acting persona designata pursuant to new sections 38ZC and 38ZD. This will clarify that any reference to 'Federal Magistrate' in the MA Act (other than in new section 38ZC) will be a reference to a Federal Magistrate acting in his or her personal capacity. This is because all functions assigned to magistrates under the MA Act are administrative as opposed to judicial.
ITEM 8 - SUBSECTION 3(1) (BEFORE PARAGRAPH (A) OF THE DEFINITION OF MAGISTRATE)
1.14 This item will expand the definition of 'magistrate' in section 3 of the MA Act to include Federal Magistrates, except for references to 'magistrate' in Division 2 of Part VI. This will enable Federal Magistrates to exercise all functions currently conferred on State and Territory magistrates under the MA Act, except for the functions conferred in Division 2 of Part VI relating to proceeds of crime proceedings. Under the POC Act, these proceedings can only be heard before State and Territory magistrates. It is therefore appropriate that these functions continue to be limited to State and Territory magistrates in the mutual assistance context.
1.15 Federal Magistrates will be able to exercise a range of other functions under the MA Act, including the conduct of 'take evidence' and production of document proceedings under section 13, and the issue of search warrants under section 38C.
ITEM 9 - AT THE END OF SECTION 38C
1.16 This item will insert a new subsection 38C(8) to clarify that subsections 38C(6) and (7) do not apply if the magistrate is a Federal Magistrate. Subsection 38C(6) provides that a New South Wales or Australian Capital Territory magistrate may issue a warrant in relation to premises or a person in the Jervis Bay Territory. Subsection 38C(7) generally provides for State or Territory magistrates to issue warrants in relation to persons and premises in that State or Territory. These provisions do not apply to Federal Magistrates as they are Commonwealth, rather than State or Territory, judicial officers.
ITEM 10 - BEFORE SECTION 39
1.17 This item will insert new sections 38ZC and 38ZD. New section 38ZC will enable the Attorney-General to nominate a Federal Magistrate to be a magistrate for the purposes of the MA Act, and enable the Federal Magistrate to consent to the nomination. The nomination procedure will be required as a Federal Magistrate will exercise administrative functions under the MA Act, which must be performed in his or her personal capacity.
1.18 The nomination and consent must be made in writing, but the written document would not be a legislative instrument for the purposes of the Legislative Instruments Act 2003 . A 'legislative instrument' is defined at section 5 of the Legislative Instruments Act. In general terms, a legislative instrument is a written document that is of a legislative character and that is made in the exercise of a power designated by Parliament. Requirements relating to registering, tabling, scrutinising and sun-setting all Commonwealth legislative instruments are imposed under the Legislative Instruments Act. Subsection 38ZC(3) will clarify that these requirements do not apply to nominations pursuant to new section 38ZC.
1.19 New section 38ZD will clarify that magistrates exercising functions or powers under the MA Act perform these functions or exercise these powers in a personal capacity and not as a court or a member of the court. This reflects the doctrine of persona designata , which holds that Parliament may confer a non-judicial function on a justice of a court constituted under Chapter III of the Constitution if the function is conferred on the justice as an individual rather than a member of the court. Due to the separation of powers doctrine, functions or powers are conferred on a voluntary basis and need not be accepted by the magistrate.
1.20 New subsection 38ZD(2) differentiates between a magistrate and Federal Magistrate in this regard because a Federal Magistrate will be defined as a person who has already consented to being nominated by the Attorney-General to exercise the relevant functions or powers under the MA Act (which will be inserted by item 7 of this Schedule).
1.21 New subsection 38ZD(3) will also make clear that magistrates acting persona designata are still entitled to the judicial immunity afforded to them as if they were exercising functions or powers as a court or a member of a court.
ITEM 11 - PARAGRAPH 44(C)
1.22 This item will remove 'of magistrates' from subsection 44(c). This will remove the ability of the Governor-General to make regulations prescribing the protection and immunity of magistrates. This provision is not necessary as a consequence of the legislative provision for the immunity of magistrates in new subsection 38ZD(3) (which will be inserted by item 10 of this Schedule).
PART 2 - AMENDMENTS RELATING TO INFORMATION SHARING
EXTRADITION ACT 1988
ITEM 12 - AFTER SECTION 54
1.23 This item will insert a new section 54A in the Extradition Act. New section 54A will provide that the collection, use or disclosure of personal information is authorised by law for the purposes of the Privacy Act 1988 where it is reasonably necessary for the purposes of the extradition of a person to or from Australia. This new section clarifies the application of the Privacy Act 1988 to the extradition process.
MIGRATION ACT 1958
ITEM 13 - AFTER PARAGRAPH 336E(2)(GA)
1.24 This item will insert new paragraphs 336E(2)(gb) and (gc) in the Migration Act. Subsection 336E(1) of the Act makes it an offence to disclose identifying information if the disclosure is not a 'permitted disclosure'. The new paragraphs will expand the definition of 'permitted disclosure' in subsection 336E(2) to include a disclosure that is for the purposes of the extradition of a person either to or from Australia, or the provision or obtaining of international assistance in criminal matters by the Attorney-General or an officer of his or her Department.
MUTUAL ASSISTANCE IN CRIMINAL MATTERS ACT 1987
ITEM 14 - AFTER SECTION 43C
1.25 This item will insert a new section 43D. New section 43D will provide that the collection, use or disclosure of personal information that is reasonably necessary for the purposes of providing or obtaining international assistance in criminal matters by the Attorney-General or an officer of his or her Department is authorised by law for the purposes of the Privacy Act 1988 .
1.26 This encompasses both international assistance which is authorised by the Attorney-General under the MA Act and assistance that can be provided outside the scope of the MA Act, such as voluntarily obtained witness statements, the provision of which may be facilitated by the Attorney-General's Department.
1.27 This new section does not impact on exchanges of information between other law enforcement agencies, such as police to police assistance provided or obtained by the AFP.