Senate

Revised Explanatory Memorandum

(Circulated by authority of the Minister for Justice, the Hon Michael Keenan MP)

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Law Enforcement Legislation Amendment (State Bodies and Other Measures) Bill 2016

17. The Bill is compatible with the human rights and freedoms recognised or declared in the international instructions listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act. To the extent that the measures in the Bill may limit those rights and freedoms, such limitations are reasonable, necessary and proportionate in achieving the intended outcomes of the Bill.

Overview of the Bill

18. The Bill amends the following Commonwealth Acts:

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Anti-Money Laundering and Counter-Terrorism Financing Act 2006

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Australian Postal Corporation Act 1989

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Crimes Act 1914

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Criminal Code Act 1995

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Privacy Act 1988

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Proceeds of Crime Act 2002

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Radiocommunications Act 1992

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Surveillance Devices Act 2004

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Taxation Administration Act 1953

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Telecommunications (Interception and Access) Act 1979

State anti-corruption bodies

19. The Bill contains a range of measures to support the law enforcement functions of two state anti-corruption bodies.

NSW Law Enforcement Conduct Commission

20. The Bill replaces references to the PIC with references to the LECC in Commonwealth legislation.

21. The PIC is a statutory law enforcement body responsible for detecting, investigating and preventing police misconduct. The creation of the LECC will establish a single law enforcement body responsible for the oversight of NSW Police Force and NSW Crime Commission complaint investigations, as well as investigating matters relating to misconduct and maladministration in law enforcement.

22. The amendments will:

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allow the LECC to be declared as an interception agency under the TIA Act and include it in the definition of criminal law-enforcement agency for the purposes of section 110A of the TIA Act. A declaration as an interception agency and inclusion as a criminal law-enforcement agency will enable officers of the LECC to:

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apply for interception warrants to assist in the investigation of serious offences, generally defined as offences punishable by at least seven years' imprisonment

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issue preservation notices in order to preserve communications where a stored communications warrant will be sought

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apply for stored communications warrants to assist in the investigation of serious contraventions, generally defined as offences punishable by at least three years' imprisonment, and

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seek access to telecommunications data where reasonably necessary for the enforcement of the criminal law, a law imposing a pecuniary penalty or for the protection of the public revenue

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allow the LECC to apply for Commonwealth surveillance device warrants through the SD Act for investigations into offences punishable by a maximum term of imprisonment of at least three years

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replace the PIC with the LECC as a State or Territory law enforcement agency under subsection 3ZQU(7) of the Crimes Act so that it may receive information or documents produced to or seized by a constable or Commonwealth officer under Part IAA of that Act. Part IAA relates to the search, information gathering and arrest powers of the police under the Crimes Act

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replace the PIC with the LECC as a State or Territory law enforcement agency under section 3ZZAC of the Crimes Act so an eligible officer of an eligible agency or a Commonwealth officer is permitted to make a thing seized under Part IAAA of the Act available to the LECC (Part IAAA relates to delayed notification search warrants undertaken by the Australian Federal Police)

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replace the PIC's legislation with the LECC's legislation in the definition of relevant person under section 20BZ of the Crimes Act to enable the LECC to give, receive or disclose relevant information regarding federal offenders

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replace relevant positions within the PIC with relevant positions within the LECC as law enforcement officers under section 473.1 of the Criminal Code so that LECC officers may utilise protections relating to the use of telecommunications facilities

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replace the PIC with the LECC in the definition of designated agency at section 5 of the AML-CTF Act so that it can continue to access AUSTRAC information to support its role in fulfilling the former functions of the PIC as the independent body responsible for detecting, investigating and exposing misconduct and maladministration within the NSW Police Force and NSW Crime Commission

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replace the PIC with the LECC in the definition of enforcement body under section 6 of the Privacy Act so that it may receive information in compliance with the Australian Privacy Principles

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replace the PIC with the LECC as a body under subsection 27(1) of the Radiocommunications Act 1992 in relation to which an exemption from parts of that Act may be determined from any or all of the requirements for the possession and operation of radiocommunications devices to be authorised by a licence, from standards and other technical regulation applying to a broader range of devices and from offences relating to radio emissions, and

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replace the PIC with the LECC as an law enforcement agency under sections 355-70(4) of the Taxation Administration Act 1953 so that it may receive information under that Act as a law enforcement agency.

Victorian Independent Broad-based Anti-corruption Commission

23. The Bill will provide officers of the IBAC the ability to apply for Commonwealth surveillance device warrants and ensure they are able to lawfully receive information from Australia Post employees for the purposes of their investigations.

24. The amendments will also allow officers of the IBAC who act in good faith and in the course of their duties to have access to protections relating to the use of telecommunications facilities.

25. The powers provided to the LECC and the IBAC are consistent with powers available to other state anti-corruption bodies under Commonwealth legislation. These powers will grant the LECC and IBAC access to the information and protections necessary for the performance of their functions, enabling them to effectively investigate corruption and misconduct, handle inquiries into state law enforcement bodies, and (in the case of the IBAC) public bodies.

Personal property

26. The Bill will also amend the POC Act to clarify that property or wealth will only be considered 'lawfully acquired' under section 336A where property (if any) used to discharge a security or liability with respect to this property or wealth has also been 'lawfully acquired'.

27. Further detail about the measures in the Bill and their human rights implications are provided below.

Human rights implications

28. The human rights engaged by the Bill are those set out in Articles 2(3), 14(2)-(7), 15 and 17 of the ICCPR. The Bill engages the following human rights:

Article 2(3) - Right to an effective remedy

29. Article 2(3) of the ICCPR protects the right to an effective remedy for any violation of rights or freedoms recognised by the ICCPR, including the right to have such a remedy determined by competent judicial, administrative or legislative authorities or by any other competent authority provided for by the legal system of the state. The right to an effective remedy applies notwithstanding that a violation has been committed by persons acting in an official capacity.

State anti-corruption bodies

30. The right to an effective remedy applies in relation to violations of other ICCPR rights and freedoms. By allowing the LECC to obtain:

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interception warrants

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stored communications warrants, and

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authorise the disclosure of telecommunications data

and both the LECC and the IBAC to obtain:

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Commonwealth surveillance device warrants

the Bill indirectly creates a risk that a person's right to protection against arbitrary and unlawful interferences with privacy under Article 17 of the ICCPR may be violated where information is obtained under a warrant or authorisation in a manner that is unlawful.

31. The Bill engages the right to an effective remedy by providing that:

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the LECC remains subject to the existing oversight mechanisms and remedial avenues afforded under the TIA Act, such as the civil remedies under Parts 2-10 and 3-7; and

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the LECC and the IBAC are afforded criminal and civil immunity for conduct that could otherwise found a criminal charge.

32. The SD Act protects this right by ensuring the Commonwealth Ombudsman has robust oversight powers enabling it to compel authorised agencies and individuals to answer questions and provide information. A person may face imprisonment of up to two years if they use, record, communicate or publish protected information outside the purposes permitted in the SD Act.

33. Criminal and civil immunity is limited to conduct under section 20 of the SD Act where any act done in the proper execution of the warrant before an officer is made aware of a revocation. Not providing this immunity would impair LECC and IBAC willingness and effectiveness in the performance of their statutory functions and their capabilities.

Articles 14(2)-(7) and 15 - Minimum guarantees in criminal proceedings

34. Articles 14(2) to (7) and Article 15 of the ICCPR provide minimum guarantees which apply to criminal proceedings only.

Prohibition against retrospective punishment

35. Article 15 of the ICCPR prohibits the retrospective operation of criminal laws. Under Item 2 of Schedule 3 of the Bill, amendments to the definition of 'lawfully acquired' apply in relation to property acquired before or after the commencement of Schedule 3. As the orders under the POC Act are civil in character, the amendments in the Bill do not engage the prohibition against retrospective punishment.

Article 17 - Privacy

36. Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with their privacy, family, home or correspondence, nor to unlawful attacks on their honour or reputation, and that everyone has the right to the protection of the law against such interference or attacks. Privacy may be subject to permissible limitations, where the limitations are authorised by law and are not arbitrary.

37. The term 'unlawful' means no interference can take place except in cases authorised by law. What is 'arbitrary' will be determined by circumstances of each case. In order for an interference with the right to privacy not to be arbitrary, the interference must be for a reason consistent with the provisions, aims and objectives of the ICCPR and be reasonable in particular circumstances. The United Nations Human Rights Committee has interpreted reasonableness in this context to imply that any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case.

38. The measures in the Bill are designed to achieve the legitimate objective of providing effective frameworks to identify, investigate and punish corruption and to protect public order through enforcing the law.

Law Enforcement Conduct Commission

Replacement of eligible authorities

39. The Bill would replace the PIC and Inspector of the PIC with the LECC and the Inspector of the LECC as eligible authorities under the TIA Act and therefore allow them to receive existing telecommunications interception information. The Attorney-General may then declare the LECC to be an interception agency, subject to meeting requirements outlined in section 35 of the TIA Act. Once declared as an interception agency, the LECC would be eligible to apply for warrants to intercept a person's private communications in certain circumstances. However, such interception will not be unlawful as it will be authorised by law under the TIA Act. Consistent with powers for other state oversight bodies the Inspector of the LECC will not be declared an interception agency.

40. The Bill would also make the LECC a criminal law-enforcement agency under the TIA Act, allowing it to apply for a warrant to issue preservation notices to assist in accessing stored communication and authorise the disclosure of telecommunications data subject to meeting the thresholds contained within the TIA Act.

41. The exercise of powers by the LECC under the TIA Act will not be arbitrary within the meaning of Article 17. Interception of telecommunications and access to stored communications may only occur subject to a warrant issued by a nominated independent issuing authority, namely a Judge or member of the Administrative Appeals Tribunal. Similarly, authorisations for telecommunications data must be consistent with an authorised officer's responsibilities under the TIA Act.

42. Before an issuing authority may issue a warrant they must be satisfied that, amongst other things:

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the application for an interception warrant is to assist in the investigation of a serious offence in the case of interception warrants, or a serious contravention in the case of stored communication warrants, and

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the interception of or access to a person's communications is appropriate in the circumstances.

43. Authorised officers must be satisfied that the disclosure of telecommunications data is reasonably necessary for the enforcement of the criminal law, protection of the public revenue or for the enforcement of a law imposing a pecuniary penalty and that any interference with the privacy of any person is justifiable and proportionate.

44. When deciding whether a warrant should be issued the issuing authority must have regard to several factors, including:

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the privacy impacts of the interception

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the gravity of the offence, and

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the likely usefulness of the information to the relevant investigation.

45. Authorised officers are required to consider these same factors before making an authorisation.

46. Accordingly, the measures adopted will serve the legitimate purpose of the investigation and prosecution of serious misconduct and corruption. The measures will be proportionate and reasonable to this end.

47. A primary function of the LECC under the LECC Act is to identify and investigate misconduct, corruption and maladministration in law enforcement. The measures in the Bill are necessary to grant LECC powers and protections under Commonwealth law to perform its functions under NSW legislation, in a manner consistent with other state anti-corruption bodies in Australia. The LECC will be able to access information under Commonwealth law relevant to its investigative functions, including:

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taxpayer information from the Australian Taxation Office

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information obtained by constables or Commonwealth officers under the Crimes Act 1914 which may be relevant to preventing, investigating or prosecuting an offence against a law of a state or territory, and

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information obtained through surveillance device warrants issued under the SD Act.

48. The LECC will be also able to rely on defences under Commonwealth law for necessary conduct committed in accordance with a lawful investigation, in particular the LECC will be included as:

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a law enforcement body under section 473.1 of the Criminal Code to ensure that officers of the LECC do not commit telecommunications offences under the Criminal Code when performing functions ancillary to conduct under an interception warrant or when utilising telecommunications facilities in accordance with their functions

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an exempted law enforcement body for the use of unlicensed radio telecommunications devices, certain standards for these devices and offences relating to radio emissions, and

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an enforcement body within the Privacy Act so that it may receive information in compliance with the Australian Privacy Principles.

49. By giving the LECC access to information in the exercise of its statutory function, the measures will enable effective investigation of allegations of corruption, misconduct or maladministration in the NSW Police Force and NSW Crime Commission and accordingly assist in enforcement of the law.

Use and communication of information

50. The LECC's access to personal information will be restricted to investigations involving misconduct and maladministration by law enforcement personnel consistent with its role under NSW legislation. The LECC's legislation provides safeguards to ensure that information it obtains is only used in the course of administering its duties. The LECC Act provides that information acquired by relevant persons in connection with the LECC's functions is confidential and can only be used in accordance with that person's duties under the legislation. Unauthorised disclosure of information held by the LECC carries a term of imprisonment of 12 months or a fine of $5,500.

51. The TIA Act prohibits the use and disclosure of information obtained under a warrant, subject to certain exceptions. The Bill would allow the LECC and the Inspector of the LECC to use and communicate information obtained under telecommunications interception warrants to support their investigations and prosecutions. The Bill would also allow the LECC and its Inspector to communicate intercepted information to another interception agency for the investigation of a relevant offence or other limited purposes.

52. Similar restrictions exist for the use and disclosure of information obtained under the SD Act. The lifecycle of protected information is strictly controlled under the Act and the unlawful use, recording, communication or publication of protected information carries a penalty of up to 2 years imprisonment.

53. Use and communication of information obtained by the LECC will not be arbitrary, as it will serve the legitimate purpose of the investigation of corruption, misconduct and maladministration in NSW law enforcement and is subject to detailed provisions in the TIA Act and SD Act.

54. The activities of the LECC will be subject to oversight by the Inspector of the LECC which, as an eligible authority, will be able to deal with intercepted information under the TIA Act to assist in its oversight functions (although subject to similar restrictions on use and disclosure).

Record-keeping and Reporting

55. The LECC will be subject to the existing record-keeping and reporting obligations as section 35 of the TIA Act requires that these obligations be satisfied prior to a declaration by the Attorney-General that an eligible authority be an interception agency. These include requiring regular inspection of records to ensure compliance with the TIA Act as well as regular reporting to the responsible Minister. Agencies must also report annually to the Attorney-General on the effectiveness of warrants.

Independent Broad-based Anti-corruption Commission

56. Allowing the IBAC to access information from Australia Post and to apply for surveillance device warrants engages the right to privacy as the IBAC will be able to access personal information (for example, via a surveillance device warrant, which can authorise the use of an optical surveillance or listening device) for the purposes of an investigation.

57. The measures are necessary to grant the IBAC powers and protections under Commonwealth law to perform its statutory functions in a manner consistent with other State anti-corruption bodies in Australia. The amendments will enable the IBAC to:

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access information or documents from current and former employees of Australia Post

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apply to an independent issuing authority for surveillance device warrants under the SD Act to investigate state offences with a federal aspect attracting a maximum penalty of at least three year s, and

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ensure that officers of the IBAC do not commit telecommunications offences under the Criminal Code when performing functions ancillary to conduct under an interception warrant or when utilising telecommunications facilities in accordance with their functions.

58. The Independent Broad-based Anti-corruption Commission Act 2011 (Vic) states that the IBAC's statutory functions include investigating corrupt conduct and educating the community about the adverse effects of corruption on proper administration and public order. The IBAC will only be able to access a person's information for the purpose of investigating serious corruption and misconduct in public administration consistent with its statutory functions.

59. The IBAC's legislation provides safeguards to ensure that information it obtains is only used in the course of administering its duties. Specifically, section 40 of the Independent Broad-based Anti-corruption Commission Act 2011 (Vic) provides that any information disclosed to the IBAC is confidential and can be only be used in the course of its duties. Unauthorised disclosure of information held by the IBAC carries a maximum penalty of $18,650 (as of September 2016) or 12 months imprisonment, or both.

60. In addition, any conduct occurring under a surveillance device warrant is subject to the independent oversight of the Commonwealth Ombudsman. The Ombudsman will be responsible for inspecting the records of the IBAC to ensure compliance with the statutory requirements of the SD Act. Any report of the Commonwealth Ombudsman is tabled in Parliament.

Interference with personal property

61. The Bill makes amendments to the POC Act to remedy deficiencies which could permit property purchased with a legal mortgage, and later discharged using funds that were not 'lawfully acquired', to be excluded from a forfeiture order (section 94) or subject to a transfer order (section 102). These amendments will also clarify that a proceeds of crime authority may obtain a preliminary unexplained wealth order (section 179B) or an unexplained wealth restraining order (section 20A) over wealth or property that is obtained by funnelling unlawfully obtained funds through seemingly legitimate legal structures, such as loans or securities.

62. These amendments therefore interact broadly with the right to protection from interference with a person's property. However, these amendments are necessary to ensure that criminals are not able to maintain ownership over property or wealth that is obtained, either directly or indirectly, using proceeds of crime. These amendments are necessary to clarify that a court should explore the origins of the funds used to obtain property or wealth in determining whether this property or wealth is 'lawfully acquired' for the purposes of the Act.

63. The Act also contains a range of safeguards and procedures to ensure that these measures are no more onerous than necessary in achieving this objective.

64. Where property is restrained under an unexplained wealth restraining order, courts have a general discretion under sections 24 and 24A to allow the following to be met out of property covered by a restraining order:

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reasonable living expenses of any of the dependants of a person whose property is the subject of a restraining order

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reasonable living expenses of the person whose property is restrained

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reasonable business expenses of that person, and

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specified debts incurred in good faith by that person.

65. Courts also have a general discretion to order that a specified amount be paid to a person's dependants, if satisfied that an order would cause hardship to these dependants.

66. Where an innocent third party's property is subject to orders affected by the amendments in the Bill, the right to protection from interference with personal property will be engaged but not limited, as the Act does not preclude the third party from seeking compensation for the loss of their property. A third party with interest in property may also seek to have this property excluded from the scope of an unexplained wealth restraining order.

67. The Bill interacts broadly with the right to privacy but, to the extent that it engages this human right obligation, it is reasonable, necessary, proportionate and not arbitrary or unlawful in achieving its objectives.

Conclusion

68. The amendments are reasonable, necessary and proportionate measures to achieve the legitimate objectives of countering corruption and combating serious and organised crime.

Conclusion

69. The Bill is compatible with human rights because it promotes a number of human rights and to the extent that it may also limit human rights, those limitations are reasonable, necessary and proportionate in promoting accountability in law enforcement, identifying, investigating and punishing corruption, serious criminal behaviour and protecting public order through enforcing the law, as well as in combating serious and organised crime by undermining the profitability of criminal enterprises.