Revised Explanatory Memorandum
(Circulated by authority of the Minister for Justice the Honourable Brendan O'Connor MP)SCHEDULE 4 - CONTINGENT TECHNICAL AMENDMENTS
GENERAL OUTLINE
4.1 The Bill contains amendments which are contingent upon the commencement of amendments in other Bills currently before Parliament.
4.2 This Schedule contains a range of technical amendments which will, when combined with the commencement table in clause 2 of the Bill, ensure that the amendments are made regardless of whether the other Bills before Parliament have already commenced prior to the commencement of this Bill.
MIGRATION ACT 1958
ITEM 1 - SUBSECTION 5(1)(PARAGRAPH (B) OF THE DEFINITION OF NON-POLITICAL OFFENCE)
4.3 Item 35 of Schedule 2 of this Bill will amend subsection 91T(3) of the Migration Act as a result of the amendment being made to the definition of 'political offence' in the Extradition Act. However, this item will only commence if item 20 of Schedule 1 to the Migration Amendment (Complementary Protection) Bill has not yet commenced .
4.4 Item 20 of Schedule 1 of the Migration Amendment (Complementary Protection) Bill 2011 , which is currently before Parliament, will repeal subsection 91T(3) of the Migration Act and item 4 of Schedule 1 of that Bill will insert a definition of 'non-political crime' in subsection 5(1) of the Migration Act which will refer to the definition of 'political offence' in the Extradition Act..
4.5 Item 1 of Schedule 4 of this Bill will amend paragraph (b) of the definition on 'non-political crime in subsection 5(1) of the Migration Act (which will be inserted by the Migration Amendment (Complementary Protection) Bill 2011) as a result of the amendment being made to the definition of 'political offence' in the Extradition Act.
4.6 This item will commence on the later of
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- a single day to be fixed by proclamation or at the end of the six month period beginning on the day this Bill receives Royal Assent, whichever is earlier, or
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- immediately after the commencement of item 20 of the Migration Amendment (Complementary Protection) Bill
4.7 Therefore, if this Bill commences first:
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- item 35 of Schedule 2 will amend subsection 91T(3) of the Migration Act, then
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- when the Migration Amendment (Complementary Protection) Bill 2011 commences item 20 of Schedule 1 of that Bill will repeal subsection 91T(3) of the Migration Act and item 4 of Schedule 1 of that Bill will insert the reference to the definition of 'political offence' in paragraph (b) of subsection 5(1) of the Migration Act, and then
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- this item will commence immediately after the commencement of the Migration Amendment (Complementary Protection) Bill 2011 and will amend paragraph (b) of the definition on 'non-political crime' in subsection 5(1) of the Migration Act.
4.8 If the Migration Amendment (Complementary Protection) Bill 2011 commences before item 35 of Schedule 2 of this Bill, that item will never commence and:
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- item 20 of Schedule 1 of that Bill will repeal subsection 91T(3) of the Migration Act and item 4 of Schedule 1 of that Bill will insert the reference to the definition of 'political offence' in paragraph (b) of subsection 5(1) of the Migration Act, and then
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- this item will commence immediately after the commencement of the Migration Amendment (Complementary Protection) Bill 2011 and will amend paragraph (b) of the definition on 'non-political crime' in subsection 5(1) of the Migration Act.
MUTUAL ASSISTANCE IN CRIMINAL MATTERS ACT 1987
ITEMS 2 TO 4
4.9 Items 50 (which will insert Part IIIC governing assistance in relation to surveillance devices in the MA Act) and 53 (which will insert a definition of 'mutual assistance authorisation' in subsection 6(1) of the SD Act) of Schedule 3 rely on provisions in the Cybercrime Bill having commenced before they commence.
4.10 The provisions of the Cybercrime Bill which are being relied upon are the definition of 'investigative proceeding' which will be inserted by item 2 of Schedule 2 and new sections 15B and 15D of the MA Act which will be inserted by items 4 and 27 of Schedule 2 respectively.
4.11 Items 2, 3 and 4 in Schedule 4 will commence instead of items 50 and 53 in Schedule 3 if this Bill commences before the Cybercrime Bill.
ITEM 2 - AFTER PART IIIB
4.12 This item will insert Part IIIBA into the MA Act. Part IIIBA will govern assistance in relation to surveillance devices. Part IIIBA will contain two sections; the first will deal with requests made by Australia and the second will deal with requests made by foreign countries.
4.13 This item will only commence on a single day to be fixed by proclamation or at the end of the six month period beginning on the day this Bill receives Royal Assent, whichever is earlier. However, if item 2 of Schedule 2 to the Cybercrime Bill commences before that time, this item will never commence.
SECTION 15C - REQUESTS BY AUSTRALIA FOR SURVEILLANCE DEVICES
4.14 New section 15C will enable Australia to request an appropriate authority of a foreign country to authorise the use of a surveillance device in that country and arrange for information obtained through the use of that device to be sent to Australia.
4.15 The threshold test for requesting such assistance will be:
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- if the use of a surveillance device is reasonably necessary to obtain information relevant to the commission of an Australian offence punishable by three or more years imprisonment, or
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- if the use of a surveillance device is reasonably necessary to obtain information relevant to the identity or location of the offenders.
4.16 If the foreign country obtained the requested information lawfully, but by a means other than using a surveillance device, that information would not be inadmissible as evidence in Australia, or precluded from use in an Australian investigation, because it was obtained otherwise than in accordance with the request.
4.17 This is appropriate because as long as the foreign country obtained the evidence in accordance with their domestic requirements, it should not matter that the evidence was not obtained in the way requested originally by Australia.
SECTION 15CA - REQUESTS BY FOREIGN COUNTRIES FOR SURVEILLANCE DEVICES
4.18 New section 15CA will establish the means by which Australia may respond to a foreign country's request for a surveillance device. It will enable the Attorney-General to authorise an eligible law enforcement officer to apply for a surveillance device warrant under section 14 of the SD Act, if satisfied of the following matters:
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- a request has been received from the foreign country
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- an investigation or investigative proceeding relating to a criminal matter has commenced in the requesting country
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- the offence the subject of the investigation or investigative proceeding is punishable by a maximum penalty of three or more years imprisonment, life imprisonment or death, and
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- the requesting country has given appropriate undertakings in relation to the use and destruction of information obtained as a result of the use of the surveillance device and any other matter the Attorney-General considers relevant.
4.19 The threshold of a maximum penalty of three or more years' imprisonment, life imprisonment or death mirrors the threshold that applies to whether a surveillance device can be sought for the investigation of domestic offences. This will ensure that surveillance devices will only be able to be used to investigate foreign offences of a similar level of seriousness as would be required to obtain a surveillance device for the purposes of a domestic investigation.
4.20 Although this amendment will allow assistance to be provided in relation to an offence that carries the death penalty, section 8 of the MA Act provides that where a mutual assistance request relates to a death penalty offence, assistance must be refused unless 'special circumstances' exist. Special circumstances could include material that provides exculpatory evidence, or where the requesting country has provided an undertaking that the death penalty will not be sought, or if imposed, will not be carried out.
4.21 'Eligible law enforcement officer' will be defined in this section by reference to paragraphs (a) and (c) of the definition of 'law enforcement officer' in subsection 6(1) of the SD Act. As such, the following persons will be able to be authorised by the Attorney-General to apply for a surveillance device warrant in response to a mutual assistance request:
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- the Commissioner or Deputy Commissioner of the AFP
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- any AFP employee
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- any special member or person seconded to the AFP, or
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- an officer (however described) of the police force of a State or Territory, or any person who is seconded to that police force.
4.22 'Investigative proceeding' will be defined in this section by reference to paragraphs (a) and (b) of the existing definition of 'proceeding' in the MA Act:
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- gathering evidential material that may lead to the laying of a criminal charge (paragraph (a)), or
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- assessing evidential material in support of the laying of a criminal charge (paragraph (b)).
ITEM 3
4.23 Item 2 of this Schedule will insert a new section 15CA in the MA Act. This new section will, in subsection 15CA(2), contain a definition of 'investigative proceeding'.
4.24 However, item 2 of Schedule 2 of the Cybercrime Bill (which is currently before Parliament) will also insert a definition of 'investigative proceeding' in the MA Act.
4.25 As item 2 of Schedule 4 of this Bill will insert a definition of investigative proceeding, that definition will need to be repealed if the Cybercrime Bill commences.
4.26 As such, this item will commence immediately after the commencement of item 2 of Schedule 2 to the Cybercrime Bill to repeal the definition. However, if item 2 of Schedule 2 of the Cybercrime Legislation Amendment Act 2011 does not commence, this item will never commence.
SURVEILLANCE DEVICES ACT 2004
ITEM 4
4.27 Item 53 of Schedule 3 of this Bill will insert a definition of 'mutual assistance authorisation' in subsection 6(1) of the SD Act which will be defined as an authorisation under subsection 15F(1) of the MA Act (which will be inserted by item 53 of Schedule 3 of this Bill). Item 53 of Schedule 3 of this Bill will only commence on proclamation if item 2 of Schedule 2 of the Cybercrime Bill has commenced before that time.
4.28 Therefore, if item 2 of Schedule 2 of the Cybercrime Bill has not commenced prior to proclamation, item 53 of Schedule 3 of this Bill will never commence. As such, item 4 of Schedule 4 will instead insert a definition of 'mutual assistance authorisation' in the SD Act to mean an authorisation under subsection 15CA(1) of the MA Act. Subsection 15CA(1) of the MA Act will be inserted by item 2 of this Schedule.
4.29 This item will commence on a single day to be fixed by proclamation or at the end of the six month period beginning on the day this Bill receives Royal Assent, whichever is earlier. However, if item 2 of Schedule 2 to the Cybercrime Bill commences before that time, this item will never commence.