Senate

Revised Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Hon Christian Porter MP)

Notes on Clauses

Preliminary

Clause 1 - Short title

146. This clause provides for the short title of the Act to be the Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2017.

Clause 2 - Commencement

147. This clause provides for the commencement of each provision in the Bill, as set out in the table. Item 1 in the table provides the whole of the Act will commence on the day on which the Bill receives Royal Assent.

Clause 3 - Schedules

Schedule 1-Amendment of the Australian Federal Police Act 1979

148. Section 4 of the AFP Act sets out definitions that are relevant to the operation of the Act. Item 1 of Schedule 1 inserts a new definition relevant to the amendments to the AFP functions that will be made by this Schedule.

Australian Federal Police Act 1979

Item 1 - Subsection 4(1)

149. Item 1 of Schedule 1 inserts a new definition of "international organisation". This term is defined in part (in paragraph (a)) to include "public international organisations" as defined in section 70.1 of the Criminal Code. That definition of "public international organisation" includes organisations of which two or more countries, governments, or persons representing countries or governments are members, organisations established or constituted by other such organisations, and any organ, office, commission, council, committee, or subcommittee of such an organisation.

150. This part of the definition covers all organisations of which at least two countries are members, irrespective of whether entities other than countries and government agencies are also members and irrespective of whether the organisation is established by international agreement. The definition also covers organisations of which government agencies, such as the AFP, are members. In some instances, international organisations covered by this definition may be hosted in Australia. Examples of organisations covered by paragraph (a) of the definition would include the United Nations and its organs, the Pacific Islands Forum, the International Organization for Migration, and Interpol.

151. Paragraph (b) of the new definition of "international organisation" encapsulates bodies, including international judicial bodies, that are:

•

established by or under an international agreement, international arrangement, or otherwise under international law

•

established by a body that is itself established by or under an international agreement, international arrangement, or otherwise under international law, and

•

a body on which functions are conferred by or under an international agreement.

152. This part of the definition covers all bodies that are established by or under a legally binding international agreement, a non-binding international arrangement or otherwise under international law, and bodies that are established by other such bodies. It is not necessary that countries be members of these bodies.

153. Examples of such bodies include: international courts and tribunals, whether they are established under international agreement (such as the International Court of Justice, the International Criminal Court and ad hoc arbitral tribunals) or otherwise under international law (such as the International Criminal Tribunal for the Former Yugoslavia, which is established under a Resolution of the United Nations Security Council); and international treaty bodies, irrespective of whether countries are technically 'members' of such bodies (such as the Committee Against Torture or the Secretariat of a body created by international agreement).

154. This part of the definition also covers bodies that are conferred functions under a legally binding international agreement, even where it is not itself established by such an agreement. A key example of this type of body is the International Committee of the Red Cross.

155. The organisations that the AFP shares information with change regularly, depending on the types of investigations on foot and the changing criminal threat environment. Some of the bodies are also created on an ad hoc basis to deal with particular issues or events relating to law enforcement, national security, and intelligence.

156. The effect of this amendment is that any of these bodies will be considered for the purposes of the AFP Act to be an international organisation. This definition is relevant to the new function proposed in Item 2 of Schedule 1 (new paragraph 8(1)(bg) of the AFP Act).

Item 2 - Paragraph 8(1)(bg)

157. Item 2 of Schedule 1 amends the AFP's functions to clarify that it is able to assist or cooperate with international organisations, as defined by Item 1. It also clarifies that the AFP is able to assist or cooperate with NGOs in relation to acts, omissions, matters or things outside of Australia.

158. The terms "police services" and "police support services" are defined in sub- section 4(1) of the AFP Act.

159. Paragraph 8(1)(bf) already provides that a function of the AFP is:

(bf) the provision of police services and police support services for the purposes of assisting, or cooperating with, an Australian or foreign:

(i)

law enforcement agency; or

(ii)

intelligence or security agency; or

(iii)

government regulatory agency.

160. This function does not clearly encompass AFP's cooperation with international organisations or bodies made up of multiple member countries, for example, the International Criminal Court, ad hoc international war crimes tribunals, Interpol, Europol and United Nations bodies, the International Committee of the Red Cross and NGOs.

161. International partnerships allow the AFP to meet operational challenges and threats, and progress Australia's national interests. The AFP's core work across all crime types is becoming increasing global and, as a result, international cooperation is becoming more and more important to the AFP's operations.

162. The new paragraph 8(1)(bg) is an important mechanism to facilitate the AFP's engagement with international organisations and NGOs, for the purposes of sharing information, and intelligence policy development, or otherwise facilitating the provision of police services.

Schedule 2-Obligations of investigating officials

Crimes Act 1914

Items 1 - Subsection 23B(1) (definition of Aboriginal legal aid organisation )

163. This Item repeals the definition of an "Aboriginal legal aid organisation" in subsection 23B(1) in light of the new definition inserted by Item 2.

164. Section 23B lists definitions for the purposes of Part IC of the Crimes Act, relating to the investigation of Commonwealth offences.

Item 2 - Subsection 23B(1)

165. This Item inserts a new definition of "Aboriginal legal assistance organisation", replacing the existing definition of an "Aboriginal legal aid organisation" (repealed by Item 1). The new definition prescribes the term as referring to those organisations that are funded by the Commonwealth, or the States or Territories, to provide legal assistance to Aboriginal persons and Torres Strait Islanders. The term "legal assistance organisation" (as compared with "legal aid organisation") also reflects current terminology.

166. The intention of prescribing the definition in this way is to ensure that, in the absence of a list maintained by the Minister under section 23J, investigating officials consult an organisation that can provide culturally sensitive and appropriate services to Aboriginal persons and Torres Strait Islanders.

Item 3 - Subsection 23H(1)

167. This Item inserts the words ", before starting to question the person" after "must" in subsection 23H(1). This amendment is designed to clarify that an investigating official must both notify an Aboriginal person or Torres Strait Islander that the investigating official will contact an Aboriginal legal assistance organisation and then notify such an organisation, before starting to question the person. This clarification of the timing of the notification obligation complements the amendments made by Item 4 to paragraphs 23H(1)(a) and (b), which will no longer contain the words "immediately" and "accordingly" (respectively). This is intended to clarify that both obligations in subsection 23H(1) must be discharged prior to commencing questioning to remove any uncertainty arising from the wording of the existing provisions.

Item 4 - Paragraphs 23H(1)(a) and (b)

168. Item 4 has the effect of removing the words "immediately" from paragraph 23H(1)(a) and "accordingly" from paragraph 23H(1)(b), given the amendments contained in Item 3 that clarify that both of the obligations applicable to an investigating official (that is, to inform an Aboriginal person or Torres Strait Islander that an Aboriginal legal assistance organisation will be notified, and then notify such an organisation), must occur before starting to question the person. The amendments in Item 3 render the terms "immediately" and "accordingly" unnecessary.

169. Paragraph 23H(1)(a), by outlining what information an investigating official must give a person they intend to question, clarifies that an investigating official must notify an Aboriginal legal assistance organisation within the State or Territory where the person it is intended to question is located. This is intended to ensure that an organisation in the relevant jurisdiction is notified.

Item 4 also inserts into paragraph 23H(1)(b) the same wording from paragraph 23H(1)(a) about notifying an Aboriginal legal assistance organisation that a person is under arrest or a protected suspect (as the case requires) in order to clarify that the obligation is to notify such an organisation of that fact and not to notify them generally, for example.

Item 5 - After subsection 23H(1)

170. This Item inserts two new subsections into section 23H.

171. New subsection 23H(1A) clarifies that the obligations in subsection 23H(1), that is the obligation to notify a person that a representative of an Aboriginal legal assistance organisation in the relevant jurisdiction will be notified, and the obligation to then actually notify such a representative, are distinct from the obligations in the remaining subsections of section 23H. This is intended to clarify that, for example, the obligation under subsection 23H(2) to ensure an interview friend is present during questioning is a distinct and separate obligation from the obligation in subsection 23H(1) to notify an Aboriginal legal assistance organisation representative.

172. New subsection 23H(1AB) clarifies that an investigating official must not question a person until that person has either had the opportunity to communicate with an Aboriginal legal assistance organisation (paragraph 23H(1AB)(a)) or a two hour period has elapsed since an attempt to notify (paragraph 23H(1AB)(b)). This will ensure that where an investigating official has not made actual contact with a representative, and has for example left a message (or messages) in lieu of this, a period of two hours is given for the representative to respond to the investigating official and communicate with the person who is to be questioned. This is intended to give full effect to the obligation to notify an Aboriginal legal assistance organisation in subsection 23H(1). To permit questioning to commence as soon as an investigating official has left a telephone message, for example, would defeat the purpose of the subsection, which is to ensure Aboriginal persons and Torres Strait Islanders whom an investigating official intends to question are provided with an opportunity to communicate with a culturally sensitive and appropriate legal assistance service.

173. The time spent waiting for a representative of an Aboriginal legal assistance organisation to respond to an investigating official's notification will be considered 'down time' (that is, time not to be taken into consideration for the purposes of determining the time period for which someone can be detained for investigation under section 23C) under paragraphs 23C(7)(b) and 23C(7)(c), as relevant. Under 23C(4)(a), the investigation period for Aboriginal persons or Torres Strait Islanders is not to exceed two hours.

Item 6 - Subsection 23H(2B)

174. This Item repeals existing subsection 23H(2B) and replaces it with a new subsection 23H(2B) to reflect the fact that the Minister will no longer maintain a list of interview friends and interpreters under section 23J. Under new subsection 23H(2B), if a person does not choose an interview friend under subsection 23H(2A), an investigating official must choose a representative of an Aboriginal legal assistance organisation in the relevant jurisdiction to be the person's interview friend.

Item 7 - Subsection 23H(9) (paragraph (c) of the definition of interview friend )

175. This Item repeals existing paragraph 23H(9)(c), which outlines one limb of the definition of an interview friend for the purposes of section 23H, and replaces it with new paragraph 23H(9)(c) that reflects the amendments made to the definition of an Aboriginal legal assistance organisation in subsection 23B(1) and the requirement that an investigating official notify an organisation in the relevant jurisdiction in subsection 23H(1). New paragraph 23H(9)(c) clarifies that an interview friend can mean a representative of an Aboriginal legal aid organisation in the relevant jurisdiction (amongst the other limbs of the definition of an interview friend).

Item 8 - Subsection 23H(9) (paragraph (d) of the definition of interview friend )

176. This Item repeals paragraph 23H(9)(d), which outlines another limb of the definition of an interview friend for the purposes of section 23H, reflecting the fact that the Minister will no longer maintain a list of interview friends and interpreters under section 23J, as the lists quickly become outdated and are not generally relied upon by jurisdictions.

Item 9 - Section 23J

177. This Item repeals section 23J, which requires the Minister to establish and maintain a list of interview friends, being persons suitable and willing to help Aboriginal persons or Torres Strait Islanders under arrest or investigation, and a list of persons able and willing to act as interpreters for Aboriginal persons or Torres Strait Islanders.

Item 10 - Subsection 23K(3) (paragraph (c) of the definition of interview friend )

178. This Item amends paragraph 23K(3)(c), which outlines a limb of the definition of an "interview friend" for the purposes of section 23K, to reflect the fact that the Minister will no longer maintain a list of interview friends and interpreters under section 23J.

179. Section 23K applies where an investigating official intends to interview a person they believe on reasonable grounds to be less than 18 years of age, and prohibits the investigating official from questioning the person until an interview friend is present and the person has had an opportunity to communicate with the interview friend. Paragraph 23K(3)(c) applies where the person to be questioned is also an Aboriginal person or Torres Strait Islander and none of the persons listed in paragraphs 23K(3)(a) or (b) are available to be the person's interview friend. Amended paragraph 23K(3)(c) will clarify that an interview friend in those circumstances means a representative of an Aboriginal legal assistance organisation in the relevant jurisdiction.

Item 11 - Subsection 23WA(1) (definition of Aboriginal legal aid organisation )

180. This Item repeals the definition of an "Aboriginal legal aid organisation" in subsection 23WA(1) in light of the new definition inserted by Item 12.

181. Section 23WA lists definitions for the purposes of Part ID of the Crimes Act, relating to forensic procedures.

Item 12 - Subsection 23WA(1)

182. This Item inserts a new definition of "Aboriginal legal assistance organisation" that refers to the definition of the same term in Part IC of the Crimes Act (that is, the new definition inserted into subsection 23B(1) by Item 2).

183. This will ensure the same definition in Part IC applies to the obligations upon investigating officials in Part ID to do with forensic procedures.

Item 13 - Paragraph 23WB(2)(c)

184. This Item amends paragraph 23WB(2)(c) to reflect the fact that the Minister will no longer maintain a list of interview friends and interpreters under section 23J.

185. Subsection 23WB(2) lists the persons who can act as interview friends for suspects, offenders or volunteers for the purposes of Part ID that are children or incapable persons. Paragraph 23WB(2)(c) applies to Aboriginal persons or Torres Strait Islanders to whom subsection 23WB(2) applies and where none of the persons under paragraphs 23WB(2)(a) or 23WB(2)(b) are available. Amended paragraph 23WB(2)(c) outlines that an interview friend in these circumstances is a representative of an Aboriginal legal assistance organisation in the relevant jurisdiction chosen by, or acceptable to, the suspect, offender or volunteer.

Item 14 - Paragraph 23WB(3)(c)

186. This Item amends paragraph 23WB(3)(c) to reflect the fact that the Minister will no longer maintain a list of interview friends and interpreters under section 23J.

187. Paragraph 23WB(3)(c) lists the persons who can act as interview friends for suspects, offenders or volunteers that are Aboriginal persons or Torres Strait Islanders and not covered by subsection 23WB(2). Amended paragraph 23WB(3)(c) outlines that an interview friend in these circumstances is a representative of an Aboriginal legal assistance organisation in the relevant jurisdiction.

Item 15 - Paragraphs 23WG(4)(a) and (b)

188. This Item repeals existing paragraphs 23WG(4)(a) and 23WG(4)(b) and inserts replacement paragraphs that reflect the amendments made by Item 4. This item has the effect of removing the word "accordingly" from paragraph 23WG(4)(b).

189. This will ensure that the obligation for investigating officials to advise an Aboriginal person or Torres Strait Islander whom they intend to ask for consent to a forensic procedure that they (the investigating official) will notify a representative of an Aboriginal legal assistance organisation that the suspect is to be asked to consent to the procedure and then notify such a representative is expressed in the same language as the obligation in subsection 23H(1). Existing subsection 23WG(4) makes it clear that an investigating official must do so before asking for their consent.

190. Item 15 also inserts into paragraph 23WG(4)(b) the same wording from paragraph 23WG(4)(a) about notifying an Aboriginal legal assistance organisation that a person is to be asked to consent to a forensic procedure in order to clarify that the obligation is to notify such an organisation of that fact and not to notify them generally, for example.

191. Schedule 2 does not introduce into section 23WG an equivalent subsection to new subsection 23H(1AB).

Schedule 3-Amendments to the controlled operation disclosure offence provisions in the Crimes Act 1914

Overview

192. This Schedule amends sections 15HK and 15HL, of Part IAB of the Crimes Act. Those sections prescribe the basic and aggravated offences for disclosing information relating to a controlled operation authorised and conducted under Part IAB of the Crimes Act.

193. A controlled operation is a law enforcement operation in which a person is authorised to engage in conduct that would otherwise be unlawful to obtain evidence of a serious criminal offence. Controlled operations are a valuable tool for investigating organised criminal activity and corruption as they enable law enforcement officers to infiltrate criminal organisations and to target those in the higher echelons of those organisations, and target serious and systemic corruption.

194. The amendments to sections 15HK and 15HL of the Crimes Act will create two separate offence regimes for the unauthorised disclosure of information relating to a controlled operation. One offence regime will apply to "entrusted persons" or persons who came to the knowledge or into the possession of information about a controlled operation in their capacity as an entrusted person. A separate offence regime will apply to all other persons, or 'outsiders'.

195. There will be four offences in total under the new controlled operation disclosure offence regime: a basic offence and an aggravated offence for "entrusted persons", and a basic offence and an aggravated offence for other persons. All four offences will be inserted into new section 15HK. Existing section 15HL will be repealed.

196. The purpose of the amendments is to reduce restrictions placed on members of the community by requiring that disclosures of information relating to a controlled operation made by persons, except those who are entrusted persons, will only constitute an offence if the information will endanger the health or safety of a person or prejudice the effective conduct of a controlled operation (basic offence), or the person intends or knows that such a result will occur (aggravated offence).

197. The amendments will add a new definition of "entrusted person" for the purposes of Part IAB of the Crimes Act to cover all those persons who, because of their relationship with one of the agencies able to authorise, conduct, or review information relating to controlled operations, or otherwise participate in a controlled operation, come to the knowledge or into the possession of relevant information relating to a controlled operation. The offences applicable to entrusted persons, which require a lower threshold for prosecution, will only apply where information became known to a person in their capacity as an entrusted person. That is, a person will not be subject to this stricter offence in all circumstances just because they come within the definition of an entrusted person.

198. The amendments will also include a defence based on prior publication, available only to outsiders.

199. The amendments will mirror amendments made to section 35P of the ASIO Act as part of the Counter-Terrorism Legislation Amendment Act (No. 1) 2016. Those amendments implemented recommendations made by the Independent National Security Legislation Monitor (INSLM) in his Report on the impact on journalists of section 35P of the ASIO Act.

Crimes Act 1914

Item 1 - Section 15GC

200. This Item inserts a new definition of "entrusted person" into section 15GC of the Crimes Act, which defines terms used throughout, and for the purposes of, Part IAB of the Crimes Act.

201. Controlled operations are able to be authorised, conducted, or reviewed by a number of agencies, both at the Commonwealth and State and Territory level. The new definition of "entrusted person" in section 15GC will be inserted to capture all those persons who, because of their relationship with or position in one of those agencies, or who otherwise participate in a controlled operation, might come to the knowledge or into the possession of relevant information relating to a controlled operation.

202. A person who receives information in his or her capacity as an "entrusted person" will be subject to the entrusted person offences in new subsections 15HK(1) and (1B).

Subparagraph 1(a)

203. Subparagraph 1(a) defines an "entrusted person" to mean a participant in a controlled operation, within the meaning of that definition in section 15GC of the Crimes Act.

204. This is a person who is authorised, under Division 2 of Part IAB, to engage in "controlled conduct" for the purposes of a controlled operation. This will include both law enforcement and civilian participants (including informants).

Subparagraph 1(b)

205. Subparagraph 1(b) defines an "entrusted person" to mean employees within those law enforcement agencies able to authorise or conduct controlled operations.

206. Controlled operations can be authorised by certain senior employees in three Commonwealth law enforcement agencies ("authorising agencies" under section 15GC of the Crimes Act). These agencies are the AFP, the Australian Crime Commission (ACC) (also known as the Australian Criminal Intelligence Commission or ACIC), and the Australian Commission for Law Enforcement Integrity (ACLEI).

207. Officers from an additional two categories of law enforcement agencies - State and Territory law enforcement agencies and the Department of Immigration and Border Protection - are able to apply to authorising agencies to conduct controlled operations under the Crimes Act. The full list of law enforcement agencies is also prescribed in section 15GC of the Crimes Act.

Subparagraph 1(c)

208. Subparagraph 1(c) defines an "entrusted person" to mean officers or staff members of a government agency, or an integrity agency for a State or Territory, with which the Integrity Commissioner is jointly investigating a corruption issue under subsection 26(2) of the Law Enforcement Integrity Commissioner Act 2006 (LEIC Act), if a controlled operation relates to that investigation.

209. Under the LEIC Act, ACLEI is able to investigate corruption issues jointly, and conduct controlled operations as part of those investigations, with certain other government agencies, such as the Department of Agriculture and Water Resources. ACLEI is also able to conduct investigations with State and Territory integrity agencies, defined in subsection 5(1) of the LEIC Act and prescribed for the purposes of that definition in regulations.

210. Subparagraph 1(c) is intended to capture officers or staff members from the agencies mentioned above who, because of their agency's involvement in a joint investigatory team with ACLEI in connection with the conduct of a controlled operation, is able to gain access to relevant information about a controlled operation.

Subparagraph 1(d)

211. Subparagraph 1(d) defines an "entrusted person" to mean an officer of the Commonwealth Ombudsman's office, within the meaning of that definition in section 35 of the Ombudsman Act 1976.

212. Under Division 4 of Part IAB of the Crimes Act, employees of the Ombudsman's Office are able to access full details about controlled operations for reporting purposes. Those officers will be captured for the purposes of the new "entrusted person" definition.

Subparagraph 1(e)

213. Subparagraph 1(e) defines an "entrusted person" to mean a person who has entered into a contract, agreement, or arrangement with a law enforcement agency (under section 15GC of the Crimes Act); or a government agency or integrity agency (under the LEIC Act); or the Commonwealth Ombudsman.

214. Subparagraph 1(e) is intended to capture all those persons who, because of their official relationship with one of the agencies mentioned in subparagraphs 1(b) to 1(d), came to the knowledge or into the possession of relevant information relating to a controlled operation, but who are not otherwise captured in the definitions prescribed in those subsections.

215. For example, this subparagraph will cover contractors or consultants who enter into a contract, agreement, or arrangement with any of those agencies mentioned in subparagraphs 1(b) to 1(d), whether verbally, in writing, or in some other form.

Item 2 - Subsection 15HK(1)

216. Existing subsection 15HK(1) sets out the basic offence of disclosing information relating to a controlled operation. This Item repeals existing subsection 15HK(1) and replaces it with new subsections 15HK(1), (1A), (1B), (1C), (1D) and (1E).

217. The new subsections create four new offences - a basic offence and an aggravated offence applicable only to disclosure of information about a controlled operation by entrusted persons (who received the relevant information in their capacity as an entrusted person), and a basic offence and an aggravated offence for other persons.

218. As with the existing offence provisions currently contained in sections 15HK and 15HL, the term "disclose" is intended to take its ordinary meaning for the purpose of new section 15HK. It is intended to include making information available to others by any means. It is not intended to require, as a rule, proof that the information was received by another person, or proof that another person read, heard, or viewed the information. The term is also not intended to require proof that a person provided or intended to provide information to a particular person or group of persons.

219. For each of the offences in subsections 15HK(1), (1B), (1D) and (1E), the fault element in relation to whether the information disclosed relates to a controlled operation is recklessness. A person is reckless with respect to whether the information disclosed relates to a controlled operation if he or she is aware of a substantial risk that the information relates to a controlled operation and, having regard to the circumstances known to him or her, it is unjustifiable to take that risk.

220. The new offences under section 15HK apply only to disclosure of details relating to a controlled operation authorised and conducted under the Crimes Act (a Commonwealth controlled operation). The offences do not capture disclosure of details relating to a controlled operation authorised and conducted under state and territory legislation - this includes both a 'cross-border controlled operation' (that is, a controlled operation that traverses state and territory boundaries) and a 'local controlled operation' (that is, a controlled operation conducted solely within the border of one state or territory). Disclosure of details relating to state and territory controlled operations (both cross-border and local) will remain subject to the disclosure offences within relevant state or territory legislation.

221. Similarly, the new offences under section 15HK are intended to be the only offences applicable to the disclosure of information relating to a Commonwealth controlled operation. It is not intended that a person would be able to be prosecuted under a state or territory offence for disclosure of information that relates to a Commonwealth controlled operation.

222. To this end, new section 15HK is intended to cover the field, and to operate to the exclusion of any state and territory laws that might purport to capture, within relevant offence provisions, disclosure of details relating to a Commonwealth controlled operation in circumstances where the conduct would not be unlawful under Commonwealth law. It is considered that such a state or territory law would be inconsistent with section 15HK by virtue of section 109, or section 122, of the Constitution, and would be incapable of operating concurrently with the Commonwealth provision. Such a law would therefore be outside of the scope of section 15GB of the Crimes Act, which provides that Part IAB is not intended to apply to the exclusion of a state or territory law that is capable of operating concurrently.

223. For example, should a disclosure offence contained in state or territory legislation purport to capture the conduct of an 'outsider' who would otherwise be protected under the Crimes Act by virtue of the new offence regimes under section 15HK, that law would be inconsistent with section 15HK and its concurrent operation would therefore be excluded by virtue of section 109, or section 122, of the Constitution.

Disclosures by entrusted persons

224. New subsection 15HK(1) establishes the basic offence for disclosure of information relating to a controlled operation by an entrusted person. New subsection 15HK(1B) establishes the aggravated offence for disclosure of details relating to a controlled operation by entrusted persons.

225. Strict liability attaches to the element of the offences in new paragraphs 15HK(1)(a) and (1B)(a)-that the person is or has been an entrusted person. For example, if a person has entered into a contract, agreement or arrangement with a law enforcement agency, proof of the existence of that contract, agreement, or arrangement is sufficient to establish this element of the offence.

226. Strict liability is justified in these circumstances as it is the objective status of a person as an "entrusted person" that provides them with access to the relevant sensitive information, the disclosure of which is targeted by this offence. It is this access to sensitive information, not a person's subjective understanding of whether they are an "entrusted person", that is the relevant factor. On this basis, there would be legitimate grounds for penalising persons lacking 'fault' in respect of this element.

227. These offences will only apply where information became known to a person in his or her capacity as an entrusted person. That is, persons will not be subject to this stricter offence in all circumstances just because they come within the definition of an "entrusted person".

228. The basic offence retains the elements found in existing subsection 15HK(1), but will now only apply to a person who received the information in his or her capacity as an entrusted person.

229. A person will be guilty of this offence if:

a.

he or she is, or has been, an entrusted person, and

b.

the relevant information came to the person's knowledge or possession within his or her capacity as an entrusted person, and

c.

he or she discloses any relevant information about a controlled operation, and

d.

he or she knows that, or is reckless as to whether, the information relates to an authorised controlled operation.

230. The maximum penalty for this offence will remain imprisonment for 2 years.

231. The aggravated offence retains the same elements as existing subsection 15HL(1) and, as in new subsection 15HK(1), applies to a person who received the relevant information in his or her capacity as an entrusted person.

232. The aggravated offence is distinguished from the basic offence by the existence of one or both of the following elements:

a.

the person intends to endanger the health or safety of any person or prejudice the effective conduct of a controlled operation

b.

the disclosure will endanger the health or safety of any person or prejudice the effective conduct of a controlled operation.

233. The maximum penalty for this offence will remain imprisonment for 10 years.

Other disclosures

234. The new offences in subsections 15HK(1D) and (1E) apply, on their face, to all persons. However, in light of the stricter offences applicable to entrusted persons, these provisions are intended to apply specifically where the relevant information came to the knowledge or into the possession of a person other than in the person's capacity as an "entrusted person".

235. New subsection 15HK(1D) establishes a basic offence applicable to 'outsiders'. It has the same elements as existing subsection 15HK(1), but includes an additional harm requirement.

236. New subsection 15HK(1D)(c) establishes a requirement that the disclosure of the information will endanger the health or safety of a person or prejudice the effective conduct of a controlled operation. The fault requirement for this element of the offence is recklessness. A person is reckless as to whether the disclosure of information will endanger the health or safety of any person or will prejudice the effective conduct of a controlled operation if he or she is aware of a substantial risk that such a circumstance exists or will exist, and having regard to that circumstance known to him or her, it is unjustifiable to take that risk.

237. The maximum penalty for this offence is imprisonment for 2 years.

238. New subsection 15HK(1E) establishes the corresponding aggravated offence applicable to outsiders. This offence contains the same elements as existing subsection 15HL(1) and new subsection 15HK(1B). However, there are higher fault elements of knowledge and intention, rather than recklessness, in relation to whether the disclosure will endanger the health or safety of any person or prejudice the effective conduct of a controlled operation.

239. The maximum penalty for this offence is imprisonment for 10 years.

Item 3 - Subsections 15HK(2), (2A), and (3)

240. This Item makes a consequential amendment to reflect the inclusion of the new subsections in 15HK.

241. The exceptions to the offences currently set out in subsections 15HK(2), (2A), and (3) will not be amended and will be available to both entrusted persons and outsiders.

Item 4 - At the end of section 15HK

242. This Item introduces a defence of prior publication relating to information that is already in the public domain. The defence will only apply to the offences under subsections 15HK(1D) and (1E) (i.e. outsider offences). Therefore, the defence will not be available in respect of disclosures made by persons who received the relevant information in their capacity as an entrusted person, to the extent that such conduct is prosecuted under new subsections 15HK(1) or 15KH(1B).

243. The new exception established under subsection 15HK(4) provides that the disclosure offences under subsections 15HK(1D) and (1E) do not apply if the information a person discloses has already been communicated or made available to the public (prior publication), the person was not involved, directly or indirectly, in the prior publication, and the person believes, on reasonable grounds, that the disclosure will not endanger the health or safety of any person and will not prejudice the effective conduct of a controlled operation.

244. The defendant will bear the evidential burden and must produce or point to evidence that proves each element of this defence. To discharge an evidential burden, the defendant must adduce, or point to, evidence that suggests a reasonable possibility that the matter exists or does not exist (pursuant to subsection 13.3(6) of the Criminal Code 1995). If this is done, the prosecution must refute the defence beyond reasonable doubt.

245. Placing the evidential burden on the defendant may be appropriate where a matter is peculiarly within the knowledge of the defendant, or it is significantly more difficult for the prosecution to disprove that matter than for the defendant to establish it.

246. Placing the evidential burden on the defendant in this situation is reasonable in the circumstances as the defendant would be in a better position to point to the evidence of prior publication he or she relied on under new paragraphs 15HK(4)(a) and (b) when making the subsequent disclosure. It would be extremely difficult and expensive for the prosecution to prove that the defendant did not rely on evidence of a prior publication in making a disclosure, while the defendant could readily and cheaply provide evidence of this prior publication to support his or her case.

247. Paragraphs 15 HK(4)(c) and (d) require a reasonable possibility that the defendant believed, on reasonable grounds, that the disclosure would not endanger the health or safety of any person or prejudice the effective conduct of a controlled operation. Whether a belief is on reasonable grounds will depend, to an extent, on the nature, extent, and place of the prior publication. The facts in relation to these elements of the exception would be peculiarly within the knowledge of the defendant. It would be appropriate to place the evidential burden on the defendant as only the defendant would be in a position to adduce or point to evidence of his or her belief at the time of making the disclosure and on the grounds he or she relied to determine that that belief was reasonable.

248. The defence available under subsection 15HK(4) seeks to strike a balance between freedom of expression on the one hand, and recognition that further dissemination of harmful information could cause additional harm on the other hand.

249. Before disclosing information that has already been published, a person must form a reasonable view that the subsequent disclosure will not cause additional harm. In some cases, even where information has been published and is in the public domain, subsequent disclosure might still result in harm, and this must be considered. This could be the case, for example, where subsequent disclosure of that information is likely to bring that information to the attention of a much greater number of people than the original disclosure. On that basis, the subsequent disclosure could result in considerable new or additional harm.

Item 5 - Section 15HL

250. This Item repeals section 15HL of the Crimes Act. Existing subsection 15HL(1) sets out the aggravated offence of disclosing information relating to a controlled operation. Existing subsections 15HL(2), (2A), and (3) set out equivalent exception provisions to subsections 15HK(2), (2A), and (3) in connection with that aggravated offence.

251. New section 15HK deals with all four offences relating to disclosure of information about a controlled operation, rendering section 15HL of the Crimes Act obsolete.

Item 6 - Subsections 15HV(2), (3), and (4)

252. This Item makes consequential amendments to remove references to section 15HL from subsections 15HV(2), (3), and (4) of the Crimes Act, to reflect the repeal of that section.

Schedule 4-Increasing maximum penalties for general dishonesty offences

Criminal Code Act 1995

Item 1 - subsections 135.1(1), (3), (5), and (7) of the Criminal Code (penalty)

253. This Item will omit "5 years" and substitute "10 years", increasing the maximum penalty for the general dishonesty offences in section 135.1 from 5 years imprisonment to 10 years imprisonment.

254. A maximum penalty of 10 years imprisonment aligns the offences under section 135.1 with other serious fraud offences in the Criminal Code, such as obtaining property by deception under section 134.1 and obtaining financial advantage by deception under section 134.2. The Commonwealth Director of Public Prosecutions (CDPP) has found that some cases involving charges under section 135.1 of the Criminal Code have been as serious as, or more serious than, cases involving charges under section 134.1 or 134.2 of the Criminal Code.

240. It may be more appropriate in some circumstances for the CDPP to charge an accused with a general dishonesty offence in section 135.1 than a more specific offence, but such a charge currently limits the penalty a sentencing judge can impose to five years imprisonment. For example, a fraudulent scheme may consist of numerous instances of obtaining property by deception each of which, when taken individually, may be relatively minor but when added together may amount to a serious fraud. In such cases it may not be possible to proceed, if the matter is to be defended in court (that is, where the accused pleads not guilty and the matter proceeds to a contested hearing), on charges which fully reflect the criminality disclosed by the evidence. This is because to do so may overload the indictment with multiple specific charges reflecting the accused's conduct, and courts have frequently cautioned against overloading an indictment with multiple charges to protect the accused from unfairness and to avoid lengthy, complex trials.

241. If, to avoid overloading the indictment, the prosecution were to proceed only on representative charges under section 134.1 or 134.2 (that is, sample charges or specimen charges), the full criminality of the accused's conduct may not be adequately reflected because the conduct captured by the representative charge is only part of the accused's full conduct.

242. The CDPP's evidence to the Senate Economics References Committee as a part of that Committee's inquiry into criminal, civil, and administrative penalties for white collar crime outlines this common scenario; that is, where there is a continuum of behaviour that involves multiple breaches of the more specific sections 134.1 and/or 134.2, which would be best reflected by a charge under section 135.1 but for the lesser penalty available under that section. ^[2]

243. Increasing the maximum penalty for the general dishonesty offences in section 135.1 will allow judges to address high level offending, while retaining the discretion to impose lesser penalties for less serious conduct.

Item 2 - application of amendments

244. This Item specifies the application of the amendments in Schedule 4, clarifying that they will apply in relation to conduct engaged in on or after the commencement of the Schedule. This ensures that the increase in penalty for the general dishonesty offences in section 135.1 will not apply retrospectively.

Schedule 5-Removing obsolete reference to the death penalty

Crimes Act 1914

Item 1 - subsection 20C(1)

245. This Item will omit the number "(1)" before subsection 20C(1). After repealing subsection 20C(2), there is no need for section 20C to have numbered subsections.

Item 2 - subsection 20C(2)

246. This Item will repeal subsection 20C(2), which contains an obsolete reference to the death penalty. The subsection provides that: "Where a person under the age of 18 years is convicted of an offence against a law of the Commonwealth that is punishable by death, he or she shall not be sentenced to death but the court shall impose such other punishment as the court thinks fit." Since the abolition of the death penalty in Australia, there is no remaining utility in subsection 20C(2).

Item 3 - paragraph 23WA(8)(e)

247. Section 23WA contains definitions relating to forensic procedures. Under paragraph 23WA(8)(e), the reference to subsection "20C(1)" will be omitted and substituted for a reference to "section 20C". This reflects the fact there will no longer be numbered subsections in 20C.

Schedule 6-Vulnerable witness protections

Crimes Act 1914

Item 1 - Subsection 15YR(6)

248. This Item repeals the existing subsection 15YR(6), which sets out the procedural requirements for a person seeking leave from the court to publish any matter which identifies, or is likely to identify, a vulnerable person in particular criminal proceedings, and substitutes new requirements that will better promote procedural fairness.

249. Under the new subsections 15YR(6), 15YR(7) and 15YR(9), an applicant seeking leave from the court will be required to take reasonable steps to give written notice of the application to parties to the original proceeding (including the defendant, the prosecutor and a vulnerable person to the proceeding) at least three business days prior to hearing by the court. If the vulnerable person is a child at the time the application is made, the applicant will be required under subsection 15YR(8) to notify the parent, guardian or legal representative of that child.

250. To promote compliance with the procedural requirements in subsections 15YR(7), 15YR(8) and 15YR(9), new subsection 15YR(10) sets out additional considerations for the court in determining an application for leave. Under subsection 15YR(10), the court must not determine an application for leave unless it is satisfied that the applicant has taken reasonable steps to give notice of the application and complied with other requirements set out in subsections 15YR(7), 15YR(8) and 15YR(9). This allows the court to accommodate situations where an applicant cannot contact a party for various reasons, including because their identity or location is unknown.

251. Consistent with the existing subsection 15YR(6), the court must also consider any submissions and other evidence it thinks necessary to determine an application, including with regard to the trauma and reputational damage that may result from publication as required under existing subsection 15YR(4).

252. The requirements set out in new subsections 15YR(6), 15YR(7), 15YR(8), 15YR(9) and 15YR(10) will enhance procedural fairness in relation to these applications and provide the opportunity for parties to a criminal proceeding to make submissions to the court on the impact of publication of any matter that may identify them. These amendments will help to ensure that courts can make decisions with full regard to the personal distress and privacy implications that may result from publishing such matter, particularly for vulnerable victims and witnesses.

Item 2 - Application of amendment

253. This Item is an application provision which provides that the amendments to section 15YR will apply in relation to applications made on or after the commencement of this Item.

Schedule 7-Fraud and corruption information sharing

Crimes Act 1914

254. Schedule 7 amends the Crimes Act 1914 to permit the collection, use and disclosure of personal information for the purposes of preventing, detecting, investigating or dealing with fraud or corruption against the Commonwealth.

255. Under the PGPA Act, Commonwealth entities are responsible for their own fraud control arrangements. As a result, the vast majority of Commonwealth fraud incidents are investigated by the entity where the fraud occurred rather than by a law enforcement agency. Privacy laws restrict disclosure of personal information to non-law enforcement Commonwealth agencies. This hinders the Commonwealth's ability to prevent and deal with fraud and corruption. For example, when Commonwealth Agency A is investigating a fraud by Person X against it and seeks personal information of Person X from Entity B, Entity B cannot pass the information to Commonwealth Agency A as the fraud does not relate to the activities or function of Entity B. Consequently, many instances of fraud or corruption against the Commonwealth are not fully investigated or resolved, leading to a significant financial cost to the Commonwealth. Fraud and corruption have an impact beyond financial loss, including on service delivery, government integrity, and public safety.

256. Schedule 7 authorises information sharing within the Commonwealth, while maintaining appropriate safeguards to protect the privacy of individuals. The amendments only authorise sharing personal information to prevent, detect, investigate, or otherwise deal with fraud or corruption affecting the Commonwealth. They do not enable personal information to be shared for fraud or corruption affecting States or Territories or the private sector. Schedule 7 does not narrow the scope of or displace existing secrecy provisions or authorisations to collect, use, or disclose information. However, where a secrecy provision allows for the disclosure of information when authorised by a law of the Commonwealth, the amendments provide the necessary legal basis for information to be provided. Disclosure of information cannot be compelled but is facilitated under these amendments. Information sharing will remain subject to existing safeguards, including penalties under the Privacy Act 1988 (Privacy Act), the PGPA Act, the Defence Force Discipline Act 1982, the Public Service Act 1999 framework and other relevant statutory provisions.

257. The amendments in Schedule 7 respond to a recommendation of the Independent Review of Whole-of-Government Internal Regulation of 2015 by Ms Barbara Belcher to address issues associated with entities' authority to seek and disclose personal information relevant to a fraud investigation. The Crimes Act was identified as the appropriate place for including these provisions due to the complex interaction of provisions between the PGPA Act, the Privacy Act, the legal relationship between law enforcement and non-law enforcement agencies, and other relevant laws.

Item 1 - Subsection 3(1)

258. Subsection 3(1) of the Crimes Act establishes definitions for interpretation of the Act. This Item inserts new definitions required to support the operation of new Part VIID.

259. A new term "Commonwealth entity" is included to specify the bodies the amendments apply to corporate Commonwealth entities and non-corporate Commonwealth entities. This definition adopts that specified in the PGPA Act and ensures that the types of entities receiving information are regulated by the Commonwealth.

Definition of "integrity purpose"

260. The new definition "integrity purpose" identifies the purposes for which information may be shared under this Part. The use of the terms preventing, detecting, investigating and dealing is consistent with section 10 of the Public Governance, Performance and Accountability Rule 2014 (Fraud Rule). Dealing with a matter can include direct and incidental responses through criminal, civil, or administrative means, and reporting and resolving matters. This definition limits the use of information to fraud and corruption matters affecting the Commonwealth.

261. An integrity purpose under paragraph (1)(a) can include "misconduct" as defined under the Privacy Act, which has an inclusive rather than exhaustive definition. It includes fraud, negligence, default, breach of trust, breach of duty, breach of discipline or any other misconduct in the course of duty. This definition of misconduct is limited to this Part of the Crimes Act as a different definition of misconduct applies elsewhere in the Act. The inclusive definition for this Part covers serious misconduct, which is intended to address behaviour involving corruption, rather than conduct amounting to breaches of privacy. The reference to 'misconduct of a serious nature' (a phrase used elsewhere in the Privacy Act) narrows the type of relevant misconduct to safeguard against sharing of personal information for trivial misconduct. Examples of trivial misconduct may include an official claiming five minutes extra time worked on a timesheet. It is up to each Commonwealth entity to determine their thresholds for trivial misconduct. As noted below, the secretary of the department administering the Crimes Act will have the authority to develop guidelines to provide advice and clarity about the operation of these provisions.

262. This paragraph combines concepts under the PGPA Act to limit the type of officials to whose misconduct this Part relates. For example, it includes officials and officers, as well as contractors to Commonwealth entities and wholly-owned Commonwealth companies. The intention is to reflect the coverage of the PGPA Act. The PGPA Act applies to Commonwealth entities and wholly-owned Commonwealth companies. This coverage was considered appropriate to ensure that the Commonwealth as a whole, regardless of its form, would be able to utilise the amendments. However, the amendments do not extend to officials in Commonwealth controlled companies or subsidiaries to avoid giving any competitive advantage to companies that are partially or wholly-owned by the private sector.

263. The misconduct definition also applies concepts from the Privacy Act. Sub-paragraphs (ii) and (iii) are based on paragraphs 8(1)(a) and (b) of the Privacy Act respectively. The term "Privacy Act agency" under the Privacy Act covers certain unique arrangements in agencies that are not covered by the definition of a "Commonwealth entity", such as specific statutory officers and councils within a Commonwealth entity.

264. The definition of integrity purpose extends to prevention, detection, investigation or dealing with misconduct by classes of persons employed or otherwise engaged by a "target entity". A target entity is a Privacy Act agency or wholly-owned Commonwealth company. As set out below, the term "target entity" is a new concept introduced to define the relevant parts of the Commonwealth able to collect, use and disclose information under this Part. Utilising these existing definitions from the PGPA Act and Privacy Act ensures target entities receiving information relating to serious misconduct are regulated under the Privacy Act and/or the PGPA Act.

265. The term "officer" in relation to a wholly-owned Commonwealth company is given the same meaning as an officer under the Corporations Act 2001.

266. Paragraph (b) of the definition of integrity purpose covers anyone attempting to induce a Commonwealth official to engage in misconduct of a serious nature.

267. Paragraph (c) of the definition of integrity purpose covers fraud that has or may have a substantial adverse effect on the Commonwealth or target entity. It refers to "fraud that has or may have a substantial adverse effect". This excludes trivial matters, consistent with the Commonwealth Fraud Control Framework. Examples of trivial fraud include taking a pencil or a cup of coffee from a workplace. It is up to each target entity to determine their thresholds for trivial behaviour. A fraud with a substantial effect on the Commonwealth can include matters where there is no direct loss to the Commonwealth. An example could be fraud where funds have been provided to an organisation by the Commonwealth and those funds are defrauded. While the funds would no longer be Commonwealth money, the fraud would still have an adverse effect on the Commonwealth. A substantial adverse effect may be actual or potential.

268. Fraud is not specifically defined in the amendments, which is consistent with the Crimes Act, the Criminal Code and other legislation. Common law fraud is an act of dishonesty calculated for advantage. Consistent with this definition, the Commonwealth Fraud Control Policy refers to fraud as 'dishonestly obtaining a benefit or causing a loss by deception or other means.' The benefit or loss does not need to be financial in nature.

269. Paragraph (d) refers to all offences in Chapter 7 of the Criminal Code. It ensures all types of fraudulent and corrupt conduct affecting the Commonwealth are covered, including offences where a benefit or loss might not have occurred, such as forgery and falsification of documents.

Definition of "target entity"

270. "Target entity" defines what entities can collect, use and receive personal information for integrity purposes. This definition ensures only the relevant parts of the Commonwealth can receive information for combatting fraud or corruption. The term "Privacy Act agency" is used as it encompasses certain arrangements in agencies that are not covered by the definition of a Commonwealth entity under the PGPA Act, such as specific statutory officers and councils within a Commonwealth entity.

Other new definitions

271. The Bill also incorporates definitions of "personal information", "Privacy Act agency" and "sensitive information", and adopts the definitions included in the Privacy Act.

272. The definition of "substantial adverse effect" has been moved to general definitions as it now applies across multiple parts of the Crimes Act.

Item 2 - Subsection 15YV(3)

273. Item 2 repeals the definition of "substantial adverse effect" from subsection 15YV(3) of the Crimes Act as it is now included in subsection 3(1).

Item 3 - After Part VIIC

274. Item 3 inserts new Part VIID.

Section 86B

275. New section 86B sets out a simplified outline of this Part which authorises collection, use and disclosure of personal information for preventing, detecting, investigating, or dealing with fraud and corruption.

Section 86C

276. New section 86C enables a target entity to collect sensitive information where it is reasonably necessary for an integrity purpose.

277. Collection of sensitive information under this Part is authorised when it is "reasonably necessary" for an integrity purpose relating to one or more of the entity's functions or activities. The "reasonably necessary" element of the section is modelled on Australian Privacy Principle 3 (APP 3) to ensure that the power is appropriately limited. APP 3 will continue to apply in situations where the threshold in this section is not met.

278. The collection power in this section is necessary for technical reasons and adds to the collection of personal and sensitive information permitted under APP 3. APP 3 authorises the collection of personal information for specified purposes (3.1 and 3.2). Stricter rules apply to collect sensitive information. Under the APPs, an agency may require consent (APP 3.3), the existence of a relevant authorisation or requirement in another law (APP 3.4(a)), or a 'general permitted situation' to apply (APP 3.4(b)).

279. For example, if Person X defrauds a program administered by Commonwealth Agency A, this section authorises Commonwealth Agency A to collect sensitive information on Person X for the purposes of investigating that fraud. However, if Person X defrauds a program administered by Commonwealth Agency B that does not relate to the functions of Commonwealth Agency A, this section would not authorise Agency A to collect sensitive information about Person X. If Commonwealth Agency A sought to collect sensitive information on Person X for one of its activities but it was not for an integrity purpose, Commonwealth Agency A would not be able to use this Part to collect the sensitive information.

280. Sensitive information can be required for fraud or corruption investigations. For example, investigating a Commonwealth official falsely claiming personal leave may involve collection of health information. Investigating a person performing work for the Commonwealth who falsely claimed a professional qualification may involve collecting information about that person's membership of a professional trade or association.

Section 86D

281. New section 86D permits a target entity to use personal information specifically for an integrity purpose relating to the entity. The Privacy Act generally allows an agency to collect and use personal information to investigate fraud within the agency. This section allows target entities to use personal information in relation to fraud or corruption external to the entity that still affects the entity. It also covers situations where a statutory officer within an entity is legally separate to the entity, but is performing duties or functions for that entity under Commonwealth law. This avoids the situation where the only person who can use the personal information to investigate a fraud by a statutory officer is that officer.

Section 86E

282. New section 86E enables personal information to be disclosed to a target entity for an integrity purpose relating to that entity. The provision establishes the authorisation, threshold and content for disclosure, and sets out other safeguards. It does not affect the operation of, or override any other laws.

283. Subsection (1) applies to persons, bodies or authorities, including those external to the Commonwealth that are currently restricted from disclosing some or all personal information under any law unless otherwise authorised by a law of the Commonwealth. Laws restricting disclosure include the Privacy Act and State and Territory privacy legislation. This subsection operates only where a law includes a general exception for sharing information when authorised by a law of the Commonwealth. It does not override explicit secrecy provisions without such an exception.

284. Subsection (2) provides authority to disclose personal information. The provision authorises, but does not compel, disclosure of personal information to a target entity for integrity purposes. Personal information can be disclosed only where the discloser reasonably believes the information is related to one or more of the target entity's functions or activities. An example of a "reasonable belief" may be where one agency requests personal information held by another agency where there are compelling indications of an actual or suspected fraud. This threshold is consistent with the threshold applied for a related permitted general situation under section 16A of the Privacy Act.

285. The new section enables target entities to share fraud-related information with each other where one agency has a reasonable belief that such information might be relevant to another agency. For example, if Person X, an employee of Commonwealth Agency A, is investigated for committing fraud against Agency A, but then moves to work at Commonwealth Agency B before that investigation is completed, Agency A would be able to share information about Person X's suspected fraud with Agency B. The information from Agency A may be critical to Agency B taking action to prevent or respond to Person X's future fraudulent conduct.

286. The new section would also authorise private sector APP entities and State and Territory government entities to share information with the Commonwealth. For example, if Commonwealth Agency A is investigating fraud against it committed by Person X and needs to obtain the address of Person X from State Agency B, State Agency B can now pass that information to Commonwealth Agency A. This may be essential to enable investigative action, prosecution or other responses to occur.

287. Subsection (3) limits the authority to disclose personal information to ensure disclosure by a target entity occurs only by a person authorised to make a disclosure for an integrity purpose. This provision ensures information is shared by officials in an entity who need to share it as part of their duties. The provision is not intended to interfere with Carltona authorisations. Carltona authorisations are implied authorisations for the exercise of certain powers on behalf of a person vested with statutory power. This is to avoid creating internal red tape which may hinder effective information sharing, while ensuring that information is shared appropriately. It would also give entities flexibility to structure fraud control arrangements in their entity to address their unique fraud risks.

288. This provision expressly excludes the AFP from these arrangements to preserve existing mechanisms on information sharing already in place under the AFP Act and further underpinned by extensive internal policy. This reflects the intent of the amendments to not affect existing arrangements of the AFP, which already has clear investigative functions and abilities.

289. Paragraph 3(c) refers to a single director of a wholly-owned Commonwealth company authorising information sharing for the purposes of this Part rather than all directors or a board of directors to provide operational flexibility. It is open to a wholly-owned Commonwealth company to develop internal policy to require more than one director if appropriate for its operational requirements.

Section 86F

290. New section 86F clarifies that none of the provisions in this Part limit other laws that authorise collection, use or disclosure of personal information. This Part does not apply to most secrecy provisions as they do not include a general exception to disclose personal information when authorised by a law of the Commonwealth. This section ensures that mechanisms relied on in existing Commonwealth legislation specifically limiting collection, use or disclosure of personal information, particularly secrecy laws, are not affected. Existing laws continue to operate in the same way. For example, an agency head's ability to disclose information under regulations 9.2(1) and 9.2(2) of the Public Service Regulations 1999 is not affected. Implied lawful authorisations, such as authorisations under the Carltona principle are not affected by this Part. The exclusion of the AFP from subsection 86(3) is to preserve existing mechanisms on information sharing already in place under the AFP Act.

Section 86G

291. New section 86G enables the secretary of the department administering the Crimes Act to develop guidelines to provide greater clarity regarding the operation of this Part. The guidelines are intended to assist entities understand the application of this Part and are not intended to prescribe new criteria or obligations to those set out in the Act. Any guidelines must be approved by the Information Commissioner. The guidelines will help to ensure entities understand the interaction between the new Part and their obligations under the Privacy Act.

292. Subsection (2) is included to assist readers, as guidelines are not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act 2003. It is intended to be declaratory of the law and does not represent an exemption from the test for legislative character provided under subsection 8(4) of the Legislation Act.

Item 4 - Application

293. Item 4 specifies the application of the amendments, which allow information already held by an entity to be passed to a relevant Commonwealth entity after the commencement of the provisions. Collection, use and disclosure under this Part is only authorised after its commencement.

Schedule 8-Spent convictions

Crimes Act 1914

Item 1 - Section 85ZL (after paragraph (bb) of the definition of law enforcement agency)

294. Item 1 inserts new paragraph 85ZL(bc) and provides that the Law Enforcement Conduct Commission of New South Wales, or a similar body established under a law of another State, is a "law enforcement agency" under the Commonwealth spent convictions scheme at Part VIIC of the Crimes Act.

295. This Item brings the Commonwealth spent conviction scheme in line with the NSW scheme under the Criminal Records Act 1991, which was recently amended to define the LECC as a "law enforcement agency". ^[3]