Senate

Revised Explanatory Memorandum

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

General Outline

1. This Bill amends the Australian Federal Police Act 1979, Crimes Act 1914, and the Criminal Code Act 1995.

2. The Bill contains a range of measures to improve and clarify Commonwealth criminal justice arrangements, including amendments to:

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clarify the functions of the Australian Federal Police to enable cooperation with international organisations, and non-government organisations

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clarify the custody notification obligations of investigating officials when they intend to question an Aboriginal person or Torres Strait Islander

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create separate offence regimes for 'insiders' and 'outsiders' for the disclosure of information relating to controlled operations in the Crimes Act 1914

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increase the maximum applicable penalties for breach of the general dishonesty offences in the Criminal Code Act 1995

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remove an obsolete reference to the death penalty in the Crimes Act 1914

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strengthen protections for vulnerable witnesses and complainants in Commonwealth criminal proceedings in the Crimes Act 1914

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authorise collection, use and disclosure of information for the purposes of preventing, detecting, investigating, or dealing with fraud or corruption against the Commonwealth and establish safeguards to ensure these measures do not unduly interfere with privacy, and

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permit the New South Wales Law Enforcement Conduct Commission to use and disclose spent conviction information under the Commonwealth spent convictions scheme.

3. The Bill contains eight schedules.

4. Schedule 1 will make amendments to the Australian Federal Police Act 1979. The amendments clarify the functions of the Australian Federal Police under section 8 to enable them to provide assistance and cooperation to international organisations and non-government organisations in relation to the provision of police services or police support services. The amendments also provide a definition of international organisation.

5. Schedule 2 amends Part IC of the Crimes Act 1914 to clarify the timing of the requirement in subsection 23H(1) that an investigating official notify an Aboriginal legal assistance organisation when they intend to question someone they reasonably suspect to be an Aboriginal person or Torres Strait Islander. The amendments clarify that an investigating official must notify an Aboriginal legal assistance organisation prior to commencing their questioning. Schedule 2 makes similar amendments to Part ID, consequential to the amendments to Part IC.

6. The amendments also confirm that the obligation to notify an Aboriginal legal assistance organisation applies even where a person to be questioned expressly and voluntarily waives their right to an interview friend under paragraph 23H(2)(d).

7. The amendments also amend subsection 23B(1) (definition of an "Aboriginal legal aid organisation") and repeal section 23J to remove the requirement that the Minister maintain lists of interview friends, interpreters and Aboriginal legal assistance organisations.

8. Schedule 3 will reduce restrictions placed on ordinary citizens, increasing the threshold required for conduct in connection with disclosing information relating to controlled operations to constitute an offence. The amendments provide that disclosure of information relating to controlled operations made by members of the community, except those who received the relevant information in their capacity as "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 (for the basic offence), or the person intends or knows that such a result will occur (for the aggravated offence). The amendments will also introduce a defence of prior publication available to persons who did not receive the relevant information in their capacity as an entrusted person.

9. Schedule 4 will increase the maximum penalty for breaches of the general dishonesty offences contained in section 135.1 of the Criminal Code from five years imprisonment to ten years imprisonment. The current five year maximum penalty for each of the general dishonesty offences in section 135.1 is inconsistent with penalties for offences covering similar types of conduct, and has proved an insufficient penalty for a range of conduct that is most appropriately prosecuted under the section. Increasing the maximum penalty will provide a sentencing judge with adequate scope to address the full range of offending that can be captured and prosecuted under section 135.1.

10. Schedule 5 will remove an obsolete reference to the death penalty in the Crimes Act by repealing subsection 20C(2). The Death Penalty Abolition Act 1973 abolished the death penalty for offences under the laws of the Commonwealth and Territories. In March 2010, the Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Act 2010 amended the Death Penalty Abolition Act 1973 to extend the Commonwealth prohibition on the death penalty to all States and Territories.

11. Schedule 6 will amend section 15YR of the Crimes Act to strengthen procedural requirements relating to protections of the identity of a vulnerable witness or complainant in a criminal proceeding.

12. 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, while maintaining appropriate safeguards to protect the privacy of individuals.

13. Schedule 8 will amend the Crimes Act 1914 to allow the New South Wales Law Enforcement Conduct Commission to use and disclose spent convictions information as a "law enforcement agency" under Part VIIC of the Crimes Act. As a "law enforcement agency", the New South Wales Law Enforcement Conduct Commission will be able to use and disclose spent convictions information in vetting potential employees and investigating serious misconduct and corruption.

Financial Impact

14. The measures in Schedule 7 of the Bill will assist Commonwealth entities and wholly- owned companies to prevent, investigate and deal with fraud against the Commonwealth which is likely to have a positive financial impact. For example, from 2012 to 2015 the Australian Institute of Criminology estimated there was over $1.2 billion in reported fraud, but only $50 million was recovered during that period. The Bill reduces the complexity of investigating or otherwise controlling fraud against the Commonwealth to help increase recoveries and prevent fraud occurring.

ACRONYMS

Statement of Compatibility with Human Rights

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

Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017

15. This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

16. This Bill amends the following Acts:

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Australian Federal Police Act 1979

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Crimes Act 1914, and

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Criminal Code Act 1995.

17. The Bill contains a range of measures to improve Commonwealth criminal justice arrangements, including amendments to:

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Clarify the ability of the Australian Federal Police (AFP) to cooperate with international organisations and non-government organisations (NGOs), in relation to the provision of police services and police support services by amending the functions of the AFP and provide a definition of international organisation

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Clarify the custody notification obligations of investigating officials when they intend to question an Aboriginal person or Torres Strait Islander

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Create separate disclosure offence regimes for 'insiders' and 'outsiders' in the Crimes Act 1914 with respect to information relating to controlled operations

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Increase the maximum applicable penalties for breach of the general dishonesty offence in the Criminal Code Act 1995

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Remove an obsolete reference to the death penalty in the Crimes Act 1914

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Strengthen protections for vulnerable witnesses and complainants in Commonwealth criminal proceedings in the Crimes Act 1914

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Clarify the ability of Commonwealth entities and wholly-owned companies to collect, use, and disclose information for the purposes of preventing, detecting, or investigating fraud or corruption-related misconduct against the Commonwealth, and

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Permit the New South Wales Law Enforcement Conduct Commission to use and disclose spent conviction information under the Commonwealth spent convictions scheme.

Schedule 1-Amendment of the Australian Federal Police Act 1979

18. Schedule 1 will amend the Australian Federal Police Act 1979 (AFP Act) to clarify the AFP's ability to cooperate with international organisations and non-government organisations (NGOs), in relation to the provisions of police services and police support services by amending the functions of the AFP provided in section 8. The amendments also provide for a definition of international organisation.

Human rights implications

19. The amendments in Schedule 1 ensure that the functions of the AFP clearly encompass AFP's cooperation with international organisations such as the United Nations and its organs, Interpol, international judicial bodies, the International Committee of the Red Cross and, in certain respects, NGOs.

Right to privacy

20. This Schedule may engage the right to protection against arbitrary and unlawful interferences with privacy in Article 17 of the International Covenant on Civil and Political Rights (ICCPR), as the amendments to the AFP Act provide for information sharing with international organisations, including international judicial bodies. Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with their privacy, family, home or correspondence.

21. The use of the term 'arbitrary' in Article 17 of the ICCPR means that any interference with privacy must be in accordance with the provisions, aims and objectives of the ICCPR and should be reasonable in the particular circumstances. In order for an interference with the right to privacy to be permissible, the interference must be authorised by law, be for a reason consistent with the ICCPR and be reasonable in the particular circumstances. Any interference with privacy must be proportionate to a legitimate end and be necessary in the circumstances of any given case.

22. In this Schedule, the legitimate end is ensuring the AFP can engage fully with international organisations, including judicial bodies, and NGOs, in relation to the provision of police services and police support services. The disclosure of information to these bodies will be subject to existing safeguards governing the AFP's use of this material including:

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the privacy protections in the Privacy Act 1988 (Privacy Act), and

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criminal offences in section 60A of the AFP Act for the unlawful disclosure of information obtained by the AFP, including personal information.

23. The amendments in Schedule 1 do not override the Privacy Act. To the extent that any new function will enable the disclosure of personal information with international organisations and non-government organisations, the Privacy Act, the AFP Act and AFP policy provide effective and adequate safeguards to protect the right to privacy.

24. The AFP is bound by the Australian Privacy Principles (APPs) which are contained in Schedule 1 of the Privacy Act. The APPs govern the way the AFP collects, uses, discloses and stores personal information. The APPs apply irrespective of whether the AFP is cooperating with a domestic or international body.

25. The APPs contain some exceptions allowing the use and disclosure of personal information for a purpose other than the primary purpose for which it was collected. One such exception is where the use or disclosure of personal information is reasonably necessary for enforcement related activity conducted by, or on behalf of, an enforcement body. 'Enforcement related activity' is defined broadly and includes prevention, detection, investigation, prosecution or punishment of criminal offences. 'Enforcement body' includes the AFP together with a number of other domestic agencies.

26. The use or disclosure of personal information pursuant to the amendments in Schedule 1 may, in some circumstances, qualify under this exception. That is, where the use or disclosure of personal information with respect to the international organisation or non-government organisation is reasonably necessary for enforcement related activity conducted by, or on behalf of, an enforcement body as defined by the Privacy Act. In most cases, however, the provision of information will not involve personal information or relate to any particular investigation.

27. In all cases involving the use or disclosure of personal information, AFP appointees must consider whether the Privacy Act permits use or disclosure of the personal information. In relation to information disclosure, AFP appointees are also bound by the secrecy provision in section 60A of the AFP Act and must consider whether the release of information is consistent with AFP functions. Each disclosure must be considered on a case-by-case basis.

28. The AFP's National Guideline on Privacy also outlines AFP appointees' obligations under the Privacy Act and all AFP appointees are required to be familiar with and comply with the Guideline.

Right to life and prohibition on torture, cruel, inhuman and degrading treatment or punishment

29. Information and intelligence sharing with international organisations and non-government organisations for the purposes of the amendments contained in Schedule 1 will often not relate to any particular individual under investigation, and therefore will not raise death penalty or torture, cruel, inhuman or degrading treatment or punishment (TCIDTP) implications.

30. Where information provided to an international organisation or a non-government organisation has potential death penalty or TCIDTP implications, the AFP will apply the National Guideline on Death Penalty or the National Guideline on TCIDTP. For example, this might arise when providing information to a law enforcement agency in a country that has not abolished the death penalty or where TCIDTP concerns exist. The AFP regularly reviews these guidelines to ensure they are appropriate and fit for purpose.

31. The AFP applies the National Guideline on Death Penalty and the National Guideline on TCIDTP to relevant information disclosures it makes to international organisations. The AFP will continue to treat any disclosures of information that may involve the death penalty or TCIDTP implications with the same process as it would for the exchange of information under its existing functions.

National Guideline on Death Penalty

32. All AFP appointees are required to comply with the National Guideline on Death Penalty. Inappropriate departures from the National Guideline may constitute a breach of AFP professional standards and be dealt with under Part V of the AFP Act.

33. Under the National Guideline on Death Penalty, the AFP is required to consider relevant factors before providing information to foreign law enforcement agencies if it is aware the provision of information is likely to result in the prosecution of an identified person for an offence carrying the death penalty. Ministerial approval is required for any case in which a person has been arrested or detained for, charged with, or convicted of an offence which carries the death penalty.

National Guideline on TCIDTP

34. The National Guideline on TCIDTP outlines the obligations for AFP appointees where a person is in danger of being subjected to TCIDTP. All AFP appointees are required to comply with the National Guideline on TCIDTP. Inappropriate departures may constitute a breach of AFP professional standards and be dealt with under Part V of the AFP Act.

35. The National Guideline on TCIDTP provides a list of mandatory considerations before information can be disclosed to foreign authorities in situations where there are substantial grounds for believing a person that is detained would be in danger of being subjected to TCIDTP. It also sets out a formal approval process for the release of such information. The information, if provided, must include a caveat to protect against unintended use of the information, and on-disclosure to third parties.

Conclusion

36. Schedule 1 is compatible with human rights.

Schedule 2-Obligations of investigating officials

37. Schedule 2 amends Part IC of the Crimes Act to clarify the timing of the requirement in subsection 23H(1) that an investigating official notify an Aboriginal legal assistance organisation when they intend to question someone they reasonably suspect to be an Aboriginal or Torres Strait Islander. The amendments clarify that an investigating official must notify an Aboriginal legal assistance organisation prior to commencing questioning of an arrestee.. The amendments also confirm that the obligation to notify an Aboriginal legal assistance organisation applies even where a person to be questioned expressly and voluntarily waives their right to an interview friend under paragraph 23H(2)(d). The amendments also amend subsection 23B(1) (definition of an "Aboriginal legal aid organisation") and remove section 23J to remove the requirement that the Minister maintain lists of interview friends, interpreters, and Aboriginal legal assistance organisations. Schedule 2 makes consequential amendments to Part ID of the Crimes Act regarding the obligations of investigating officials when requesting the consent of an Aboriginal person or Torres Strait Islander to forensic procedures.

38. The amendments to clarify the timing and discrete nature of the obligation to notify an Aboriginal legal assistance organisation provide legislative certainty following the case of R v CK [2013] ACTSC 251 (R v CK). In that case, the court found that the wording of subsection 23H(1) did not require an investigating official to notify an Aboriginal legal assistance organisation prior to commencing questioning. This finding is contrary to the intention of subsection 23H(1), which is to implement safeguards for Aboriginals and Torres Strait Islanders arrested or taken into custody, giving effect to recommendation 224 of the report by the Royal Commission into Aboriginal Deaths in Custody (RCIADIC). This recommended that governments take steps (in jurisdictions where such arrangements were not already in place) to make it mandatory for an Aboriginal legal assistance organisation to be notified upon the arrest or detention of any Aboriginal or Torres Strait Islander. The amendments to section 23H clarify that an investigating official must notify an Aboriginal legal assistance organisation prior to commencing questioning of a suspect.

39. The amendments also respond to the court's finding that the notification obligation in subsection 23H(1) is a step in the process toward ensuring that an interview friend is present (pursuant to paragraph 23H(2)(c)), unless the person expressly waives their right to an interview friend (under paragraph 23H(2)(d)).

40. Schedule 2 also amends subsection 23B(1) (definition of an "Aboriginal legal aid organisation") and removes section 23J to remove the requirement that the Minister maintain lists of interview friends, interpreters and Aboriginal legal assistance organisations. These amendments also reflect updated terminology for the purposes of referring to legal assistance organisations (replacing the term "Aboriginal legal aid organisation" with "Aboriginal legal assistance organisation").

Human rights implications

Clarifying the timing and discrete nature of the custody notification obligation

41. These amendments engage the following human rights:

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the rights of equality and non-discrimination under Articles 2, 16, and 26 of the ICCPR and Articles 1, 2, 4, and 5 of the Convention on the Elimination of All Forms of Racial Discrimination (CERD) (noting the same rights are also contained in a number of other international human rights conventions), and

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the protection from arbitrary interference with privacy under Article 17 of the ICCPR.

42. The rights of equality and non-discrimination are engaged by section 23H generally, as it imposes additional obligations on investigating officials when they intend to question an Aboriginal or Torres Strait Islander, as compared to a non-Aboriginal or Torres Strait Islander.

43. The above-cited articles of the ICCPR and CERD in relation to the rights of equality and non-discrimination provide that all people should be treated equally. This means that laws should not be discriminatory, and that public authorities should not apply or enforce laws that are discriminatory or arbitrary in nature.

44. The ICCPR and CERD recognise that it is sometimes necessary to take special measures that assist or recognise the interests of particular racial groups in the community for the purpose of achieving the equal enjoyment and exercise of rights and freedoms of that group. The amendments are necessary to assist Aboriginals and Torres Strait Islanders to realise their rights in custody or during questioning by investigating officials, by putting special protections in place to mitigate the well-established disproportionate effect that interaction with the criminal justice system can have on Aboriginals and Torres Strait Islanders in Australia. The rights protected include the right to the highest standard of health, freedom from arbitrary detention, and the right to a fair trial. By requiring an Aboriginal legal assistance organisation to be notified when an Aboriginal or Torres Strait Islander is intended to be questioned, the amendments ensure that persons legally qualified and culturally trained can attend to assist the person being questioned, advocate for their welfare and ensure that they are treated lawfully during questioning (depending on the capacity in which they attend). The measure helps to ensure access to culturally sensitive legal advice at the earliest opportunity to prevent persons from acquiescing to police demands in a manner that could jeopardise any further investigation or court proceedings. They also aim to ensure there is the opportunity to speak to someone with appropriate training who may be able to help reassure and calm the person prior to and during questioning.

45. Section 23H was inserted into the Crimes Act by the Crimes (Investigation of Commonwealth Offences) Amendment Act 1991. When it was inserted, it was justified as a special measure under Article 1(4) of the CERD and section 8(1) of the Racial Discrimination Act 1975 (RDA).^[1] The intention of the section, based on the Interim Report of the RCIADIC, was to provide protections for Aboriginals and Torres Strait Islanders arrested, taken into custody, or intended to be questioned by investigating officials. That report highlighted the risks associated with the initial period in custody for Aboriginals and Torres Strait Islanders, including because of inadequate physical and mental health screening, language barriers, and critically, lack of access to competent and culturally appropriate legal advice (both of which increase the risk that an Aboriginal or Torres Strait Islander is unfairly convicted or imprisoned, for example because they confess to a crime they did not commit). The final report recommended that governments take steps (in jurisdictions where such arrangements were not already in place) to make it mandatory for an Aboriginal legal assistance organisation to be notified upon the arrest or detention of any Aboriginal or Torres Strait Islander (recommendation 224).

46. The amendments to section 23H in Schedule 2 reaffirm the original intention of the provision by clarifying that an Aboriginal legal assistance organisation must be contacted prior to commencing questioning-to leave the provision open to a contrary interpretation would defeat the intention behind the provision. As such, the amendments are consistent with the continuing characterisation of section 23H as a special measure under the CERD and RDA.

47. The amendments reinforce the Government's recognition that Aboriginal and Torres Strait Islanders face significant disadvantage if they come into contact with the criminal justice system, and that it is necessary to provide targeted, culturally appropriate support to promote the equal enjoyment and exercise of rights and freedoms within that system.

48. The custody notification obligation in section 23H, and the fact that it must be discharged prior to commencing questioning by contacting an Aboriginal legal assistance organisation, is a reasonable and necessary measure to ensure the legal and other rights of Aboriginals and Torres Strait Islanders are realised during questioning. It requires investigating officials to ensure that an Aboriginal legal assistance organisation has the opportunity to provide advice, reassurance and any other means of support to an Aboriginal or Torres Strait Islander who is in custody or intended to be questioned. Subsection 23H(8) provides an exception to this obligation, where an investigating official "believes on reasonable grounds that, having regard to the person's level of education and understanding, the person is not at a disadvantage in respect of the questioning referred to in that subsection in comparison with members of the Australian community generally". Section 23H gives effect to recommendation 224 of the report by the RCIADIC:

That pending the negotiation of protocols referred to in Recommendation 223, in jurisdictions where legislation, standing orders or instructions do not already so provide, appropriate steps be taken to make it mandatory for Aboriginal Legal Services to be notified upon the arrest or detention of any Aboriginal person other than such arrests or detentions for which it is agreed between the Aboriginal Legal Services and the Police Services that notification is not required.

49. The obligation in subsection 23H(1) is aimed at the legitimate purpose of ensuring the rights of Aboriginals and Torres Strait Islanders can be fully realised within the criminal justice system and that special protections are in place to mitigate the well-established disproportionate effect that interaction with the criminal justice system can have on Aboriginals and Torres Strait Islanders in Australia.

50. The amendments, along with section 23H generally, also engage the protection from arbitrary interference with privacy under Articles 17 of the ICCPR by requiring an Aboriginal legal assistance organisation to be notified when an Aboriginal or Torres Strait Islander is to be questioned by an investigating official. This obligation exists regardless of whether the person objects to the notification, or waives their right to have an interview friend present (except in circumstances where subsection 23H(8) applies). This interference with privacy is necessary to ensure that persons who are to be questioned are legally represented and their rights and welfare are taken into account. It is a reasonable means of achieving the realisation of Aboriginals' and Torres Strait Islanders' rights and welfare in custody, particularly as it is based on recommendation 224 of the RCIADIC report. The interference is proportionate to achieving the realisation of Aboriginals' and Torres Strait Islanders' rights, as it exists only to achieve the notification of an Aboriginal legal assistance organisation, and is waived in the particular circumstances of subsection 23H(8).

Removal of obligation to maintain lists

51. The amendments to the definition of an "Aboriginal legal aid organisation" in subsection 23B(1) and the removal of section 23J mean the Minister no longer has to maintain lists, as the lists quickly become outdated and are not generally relied upon by jurisdictions. The amendments also reflect updated terminology for the purposes of referring to legal assistance organisations (replacing the term "Aboriginal legal aid organisation" with "Aboriginal legal assistance organisation").

52. These amendments do not engage any human rights. The lists do not add any value to the custody notification systems already in place in jurisdictions, as police forces are aware of the relevant organisations and persons to contact in their regions. Individual jurisdictions are much better placed to maintain contacts for the relevant organisations in their regions, which change frequently over time.

Conclusion

53. Schedule 2 is compatible with human rights because it clarifies and strengthens the protections in the Crimes Act that are aimed at ensuring the rights of Aboriginals and Torres Strait Islanders are fully realised, and at mitigating the disproportionate impact that interaction with the criminal justice system has on Aboriginals and Torres Strait Islanders.

Schedule 3-Controlled operation disclosure offence

54. Schedule 3 of the Bill amends sections 15HK and 15HL of the Crimes Act 1914 (Crimes Act) to introduce new offences for the disclosure of information relating to controlled operations.

55. The amendments reduce restrictions placed on ordinary citizens, providing that disclosure of information relating to controlled operations made by members of the community (except those who received the relevant information in their capacity as "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). Under the current provisions, which are applicable to all persons, the disclosure of information relating to controlled operations constitutes an offence irrespective of any consequence arising from that disclosure.

56. The amendments will also introduce a defence of prior publication available to persons who did not receive the relevant information in their capacity as an entrusted person.

Human rights implications

Right to freedom from arbitrary detention, right to freedom of movement and right to a fair trial

57. Amendments to the controlled operation disclosure offence provisions in Part IAB of the Crimes Act engage the right to freedom from arbitrary detention under Article 9 of the ICCPR, the right to freedom of movement under Article 12 of the ICCPR, and the right to a fair trial under Article 14(1) of the ICCPR.

58. Article 9 of the ICCPR provides that that no one shall be subjected to arbitrary arrest or detention or deprived of their liberty, except on such grounds and in accordance with such procedure as are established by law. The United Nations Human Rights Committee (UNHRC) has stated that 'arbitrariness' includes elements of inappropriateness, injustice and a lack of predictability. An arrest or detention must be reasonable and necessary in all circumstances with reference to the recurrence of crime, interference with evidence, or the prevention of flight.

59. Article 12 of the ICCPR provides that everyone lawfully within the territory of a State shall, within the territory, have the right to liberty of movement. This right can be permissibly limited if the limitations are provided by law, are necessary to protect national security or the rights and freedoms of others and is consistent with the other rights in the ICCPR.

60. Article 14(1) of the ICCPR provides that in the determination of obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

61. The amendments engage the rights mentioned above because they will introduce new offences into section 15HK of the Crimes Act (to replace the existing offences contained in sections 15HK and 15HL) with maximum penalties of imprisonment for two years and ten years.

62. Although the Bill contains four new offences to replace the two existing offences in sections 15HK and 15HL of the Crimes Act, its effect is to increase the burden on the prosecution in relation to disclosure offences committed by persons without insider knowledge of a controlled operation.

63. The Bill retains the existing offences for entrusted persons or 'insiders', and introduces additional elements that must be proven before an 'outsider' can be convicted of a disclosure offence. This ensures that arrest, detention, or deprivation of liberty is not arbitrarily imposed.

64. Existing sections 15HK and 15HLof the Crimes Act contain two offences for the unauthorised disclosure of information relating to a controlled operation, which apply regardless of whether or not a person obtained the relevant information in their capacity as an entrusted person. The basic offence in existing section 15HK applies when the person is reckless as to whether the information disclosed relates to a controlled operation. The aggravated offence in existing section 15HL applies when the person also intends to endanger the health or safety of any person or prejudice the effective conduct of a controlled operation, or the disclosure will endanger the health or safety of any person or prejudice the effective conduct of a controlled operation.

65. The amendments will create two separate disclosure offence regimes, one for 'insiders', or persons who came to the knowledge of information about a controlled operation in their capacity as an "entrusted person", and a separate regime for everyone else (or 'outsiders').

66. While this will result in an increased number of offences, in practice, it means that 'outsiders' will become subject to a separate, less onerous disclosure offence regime, and will no longer be held to the same standard as "entrusted persons".

67. The elements of the new "entrusted person" offences are identical to those in existing sections 15HK and 15HL of the Crimes Act. The basic offence contains no harm requirement, and the aggravated offence applies where a person intends to cause harm, or the disclosure will in fact cause harm.

68. For the new 'outsider' offences, the basic offence will contain an additional harm requirement - that the disclosure will endanger a person's health or safety, or prejudice the effective conduct of a controlled operation. The new aggravated 'outsider' offence will require either knowledge or intention in relation to the harm.

69. Including these additional requirements for prosecuting an 'outsider' of a disclosure offence reflects the higher standard of conduct that insiders should be held to in relation to their use, handling, and disclosure of sensitive information.

70. Requiring a lower threshold for prosecuting "entrusted persons" (which in effect amounts to no change from the current provisions) is appropriate in these circumstances as participants involved in a controlled operation, and employees or affiliates of law enforcement agencies, are entrusted with sensitive information on explicit and strict conditions. Those persons are also potentially subject to greater risks should information pertaining to a controlled operation be disclosed.

71. Penalties of two and ten years imprisonment are not so significant that they would constitute arbitrary detention, or an unlawful restriction on freedom of movement. The offences are necessary for protecting the safety of participants in controlled operations and for the protection of sensitive law enforcement information.

72. The maximum penalty of two years imprisonment applying to each basic offence and the maximum penalty of ten years imprisonment for each aggravated offence implement a gradation consistent with established principles of Commonwealth criminal law policy, documented in the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. The Guide provides that a heavier maximum penalty is appropriate where the consequences of an offence are particularly dangerous or damaging.

73. The penalty of up to two years imprisonment applying to the basic offences is consistent with other basic disclosure offence penalties contained in the Crimes Act, for example, disclosing information about a delayed notification search warrant under Part IAAA.

74. The penalty of up to ten years imprisonment applying to the aggravated offences maintains parity with the penalties applying to other aggravated offences of unauthorised disclosure of information in the Crimes Act. The heavier penalty is appropriate considering the greater level of harm, with the aggravated offence requiring either the intention to jeopardise a person's safety or prejudice the effective conduct of a controlled operation, or the actual compromise of a person's safety or prejudice to the controlled operation.

Right to the presumption of innocence

75. This Schedule engages Article 14(2) of the ICCPR, which states that everyone charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to law. The right to presumption of innocence is also a fundamental common law principle.

76. This right is engaged because strict liability attaches to elements of the new "entrusted person" basic and aggravated offences - that a person is or has been an entrusted person. When 'strict liability' applies to an element of an offence, the prosecution is only required to prove the physical element in relation to that element. They are not required to prove a fault element for the defendant to be found guilty.

77. Strict liability is used in circumstances where it can reasonably be expected that the person was aware of his or her duties and obligations. The application of strict liability for a single element of the 'entrusted person' offences is necessary for the legitimate objective of preventing disclosure of sensitive law enforcement information by those with ready access to that information. Strict liability only attaches to an element of the new disclosure offences applying to "entrusted persons" who can be expected to be aware of their legal obligations in relation to sensitive law enforcement information. 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 the 'entrusted person' offences.

Freedom of expression - Article 19 of ICCPR

78. This Schedule also engages Article 19(2) of the ICCPR, which provides that everyone has the right to freedom of expression, including the freedom to impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media.

79. Article 19(3) provides that this right may be limited on grounds including national security. However, any limitations must be prescribed by legislation and be reasonable, necessary, and proportionate to achieve the desired purpose.

80. The Bill engages the right to freedom of expression by making it an offence to disclose information relating to a controlled operation. This is critical as the very nature of a controlled operation is covert. Communicating sensitive information can place the health and safety of participants at risk.

81. Disclosure of information negates the integrity of such operations in general and affects the conduct of the particular operation in question, hindering the relevant agency's ability to counter criminal threats. The limitation on this right is necessary for both the protection of law enforcement operations and the health and safety of participants.

82. The offences only limit the right to freedom of expression to a reasonable extent as they distinguish between "entrusted persons" and 'outsiders', provide appropriate defences, and retain important safeguards, facilitating the operation of oversight and accountability bodies.

83. The offences in new subsections 15HK(1) and (1B) apply a higher standard to persons who receive information in their capacity as an "entrusted person", which reflects the greater culpability and existence of a duty of confidence that applies to those who receive information relating to a controlled operation in their official capacity.

84. The offences applying to 'outsiders' in new sections 15HK(1D) and (1E) include a harm requirement, so that other third parties who report on information that will not endanger the health or safety of a person or prejudice the conduct of a controlled operation (and do not otherwise intend or know such a result would occur) would not be guilty of an offence. The offences in new section 15HK reflect a reasonable limitation on the right to freedom of expression, adjusted according to whether the person is an entrusted person or an outsider.

85. A new defence will also be included to cover disclosure of information that has previously been published. New subsection 15HK(4) provides a defence, only available to individuals who did not receive the relevant information in their capacity as an entrusted person, where the relevant information has already been made publicly available. This provides an exception to the offence and demonstrates that the offence limits the freedom of expression no more than is reasonable and necessary.

86. Controlled operations remain subject to oversight and accountability mechanisms, which are maintained in other Commonwealth legislation. For example, the offence would not apply in accordance with section 10 of the Public Interest Disclosure Act 2013 (PID Act), if information was dealt with for the purpose of making a public interest disclosure in accordance with the PID Act as it applies to the relevant agencies in these amendments.

Conclusion

87. Schedule 3 of this Bill is compatible with human rights because to the extent that it may limit human rights, those limitations are reasonable, necessary, and proportionate in the circumstances.

Schedule 4-Increasing maximum penalties for general dishonesty offences

88. Schedule 4 increases the maximum penalty for breach of the general dishonesty offences in subsections 135.1(1), (3), (5) and (7) of the Criminal Code from five years imprisonment to ten years imprisonment.

89. This amendment will address inconsistencies between penalties for similar types of conduct in the Criminal Code and provide judges with the scope to address the full range of criminality that is most appropriately prosecuted under the general dishonesty offence.

Human rights implications

90. Schedule 4 is compatible with human rights because it promotes the protection of human rights, and, to the extent that it may limit human rights, those limitations are reasonable, necessary, and proportionate.

Schedule 5-Removing obsolete reference to the death penalty

91. Schedule 5 removes subsection 20C(2) of the Crimes Act, 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.

92. Since the abolition of the death penalty in Australia, there is no remaining utility in retaining subsection 20C(2).

93. The Death Penalty Abolition Act 1973 abolished the death penalty for offences under the law of the Commonwealth and Territories. The Act was amended by the Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Act 2010 to extend the Commonwealth prohibition on the death penalty to all States and Territories, foreclosing the possibility of any individual State jurisdiction reintroducing the death penalty.

Human rights implications

Inherent right to life

94. The amendments in Schedule 5 of this Bill engage the inherent right to life under Article 6 of the ICCPR.

95. Article 6 of the ICCPR provides that every human being has the inherent right to life and that this right shall be protected by law. Paragraph 5 of Article 6 prohibits the death penalty being imposed for crimes committed by persons below eighteen years of age.

96. Removing subsection 20C(2) of the Crimes Act will not restrict the right to life or limit the protection for children against the death penalty. The subsection is an archaic provision that was inserted before Australia abolished the death penalty for all persons.

97. Pursuant to sections 3, 4, and 6 of the Death Penalty Abolition Act 1973, no person can be liable to the death penalty for offences under the laws of the Commonwealth, States or Territories.

The rights of the child

98. The amendments in Schedule 5 of this Bill engage the rights of the child under Article 37 of the Convention on the Rights of the Child (CRC).

99. Article 37 of the CRC provides that capital punishment shall not be imposed for offences committed by persons below eighteen years of age.

Conclusion

100. Removing subsection 20C(2) of the Crimes Act will not limit the protection for children against the death penalty. Under the Death Penalty Abolition Act 1973, Australia has protections for all persons against the death penalty.

Schedule 6-Protecting vulnerable persons

101. Schedule 6 will strengthen the protections in Part IAD of the Crimes Act for vulnerable persons-including child witnesses and vulnerable adult complainants-giving evidence in particular criminal proceedings, including for Commonwealth child sex offences and human trafficking and slavery offences.

102. Under the existing section 15YR, it is an offence for a person to publish any matter without leave of the court that identifies, or is likely to identify, a vulnerable person in relation to a criminal proceeding (the 'non-publication offence'). Subsection 15YR(3) provides that the court may give leave to publish such matter. In deciding whether to give leave, the court must consider such submissions and evidence as it thinks necessary, and have regard to any trauma or reputational damage the vulnerable person may experience as a result of the publication (subsection 15YR(4)).

103. The application for leave may be made at any time, including after the proceedings have concluded, and need not be heard by the same judicial officers as for the original proceeding (subsection 15YR(5)). There is currently no requirement for the parties to the original proceedings, including the vulnerable person, to be notified when an application has been made or of the court's subsequent decision. As such, there is a risk that parties, including the vulnerable person, are not afforded the opportunity to provide submissions and evidence to the court on the impact of such a decision. This is particularly the case where applications are made several years after the original proceedings concluded.

104. To address this procedural gap, Schedule 6 will repeal subsection 15YR(6) of the Crimes Act and introduce more stringent requirements for applications for leave. These include that applicants must take reasonable steps to provide written notice of the application and a copy of the application itself to the defendant, prosecution, and the vulnerable person to the original proceeding. This notice must be provided at least three business days prior to the application being heard by the court. Before determining an application, the court must now also be satisfied that the applicant has taken reasonable steps to give notice to the parties in the prescribed manner.

105. Schedule 6 will promote procedural fairness and better protect vulnerable persons in criminal proceedings. It will help to ensure that parties have the opportunity to make submissions on a section 15YR application that may significantly affect their privacy and other interests. These amendments will also give the court confidence that they are making decisions with full regard to the trauma and reputational damage that may result from publication, and other relevant evidence.

Human rights implications

106. Schedule 6 engages the following rights:

•

The right to a fair trial (Article 14 of the ICCPR), and

•

Privacy and reputation (Article 17 of the ICCPR).

The right to a fair trial - Article 14 of the ICCPR

107. Article 14 of the ICCPR provides that, in the determination of any criminal charge against a person, that person shall be entitled to a fair and public hearing by a competent, independent, and impartial tribunal established by law.

108. Schedule 6 engages the right to a fair trial by limiting the public availability of information in relation to a criminal proceeding. In enhancing the protections relating to the identity of vulnerable persons in Commonwealth criminal proceedings, Schedule 6 limits the right to a public hearing to the extent that it restricts the ability of any person, including in the media, to publish, without judicial approval, identifying details of those vulnerable persons in a proceeding.

109. However, Article 14(1) of the ICCPR provides that the press and the public may be excluded from all or part of the trial for reasons of morals, public order, or national security in a democratic society, or when the interests of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. Such limitations are permissible where they seek to achieve a legitimate objective, and are reasonable, necessary and proportionate to that objective.

110. While the principle of open justice is fundamental, it is well established that the right of the public to open justice must be balanced against the right of participants in the criminal justice system to safety and protection from undue distress or public embarrassment.

111. Given the vulnerabilities of child witnesses and vulnerable adult complainants in particular criminal proceedings, such as human trafficking and slavery-related offences, it is appropriate to prohibit the publication of information that identifies, or is likely to identify, that vulnerable person, unless leave is granted by the court. These protections ensure the protection of the interests of the private lives of particularly vulnerable classes of victims and witnesses.

112. On this basis, Schedule 6 of the Bill serves the legitimate objective of protecting the privacy and reputation of child witnesses and vulnerable adult complainants. Any limitation on a public hearing is reasonable, necessary and proportionate to achieving this objective.

The right to privacy and reputation - Article 17 of the ICCPR

113. Article 17 of the ICCPR prohibits unlawful or arbitrary interferences with a person's privacy, family, home and correspondence. It also prohibits unlawful attacks on a person's reputation. It provides that persons have the right to the protection of the law against such interference or attacks.

114. The right to privacy articulated in Article 17 of the ICCPR may be subject to permissible limitations, provided they are authorised by law and not arbitrary. In order for an interference with this right to be permissible, it must be authorised by law, be for a reason consistent with the provisions, aims and objectives of the ICCPR and be reasonable in the particular circumstances. The UNHRC 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.

115. Schedule 6 promotes this right by introducing additional protections in relation to the non-publication offence in section 15YR of the Crimes Act. The new procedural requirements introduced by Schedule 6 will ensure that parties to the original proceeding are, where possible, notified that an order is being sought to publish any matter which may identify the vulnerable person to the proceedings and affect their interests. Consistent with the principles of procedural fairness, the parties will then have the opportunity to make a submission to the court on the impact of the decision, including on privacy considerations.

116. These amendments will help to ensure the identity of a vulnerable person is not published in circumstances where it would be detrimental to do so. In this way, Schedule 6 promotes the right to privacy and protection from reputational damage of vulnerable persons in Commonwealth criminal proceedings.

Conclusion

117. Schedule 6 is compatible with human rights because it promotes the protection of human rights, and, to the extent that it may limit human rights, those limitations are reasonable, necessary, and proportionate.

Schedule 7-Personal information that may be relevant for integrity purposes

118. 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.

119. A Privacy Impact Assessment has been conducted measuring the privacy impacts of Schedule 7 and ensuring that privacy risks have been considered and mitigated.

Human rights implications

The right to privacy and reputation - Article 17 of the ICCPR

120. Article 17 of the ICCPR prohibits unlawful or arbitrary interferences with a person's privacy, family, home, and correspondence. It also prohibits unlawful attacks on a person's reputation. It provides that persons have the right to the protection of the law against such interference or attacks.

121. The right to privacy articulated in Article 17 of the ICCPR may be subject to permissible limitations, provided they are authorised by law and not arbitrary. In order for an interference with this right to be permissible, it must be authorised by law, be for a reason consistent with the provisions, aims and objectives of the ICCPR and be reasonable in the particular circumstances. The UNHRC 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.

122. The measures in Schedule 7 are designed to achieve the legitimate objective of strengthening the Commonwealth's ability to counter fraud and corruption. The Commonwealth Fraud Control Framework devolves management of fraud matters to each Commonwealth entity to manage. However, the Privacy Act 1988 (Privacy Act) generally restricts sharing personal information about criminal matters to law enforcement agencies. The measures seek to address this limitation and reflect the reality that most fraud and corruption matters are dealt with by the agency where they occur.

123. The measures are not arbitrary and are necessary within the meaning of Article 17. Fraud and corruption against the Commonwealth significantly affects public revenue, government integrity, the provision of government services and public safety. While Schedule 7 allows for sharing of personal information in certain circumstances, the public interest in enacting the proposed provisions outweighs the potential privacy impacts on affected individuals. Commonwealth entities and wholly-owned companies need to be able to collect, use and disclose personal information to prevent, detect, investigate or respond to fraud or corruption against the Commonwealth.

124. The narrow purposes for which information may be shared and additional safeguards ensure the amendments are a proportionate response to the risk of fraud and corruption. The measures minimise the impact on privacy by merely facilitating information sharing rather than compelling disclosure of personal information. The measures also do not override or impact on other laws controlling or authorising the collection, use or disclosure of personal information.

125. Schedule 7 limits the bodies that may collect, use and receive personal information for integrity purposes to defined parts of the Commonwealth that are regulated under the Public Governance, Performance and Accountability Act 2013 (PGPA Act) and the Privacy Act. Schedule 7 will also require transfers of information by Commonwealth entities and wholly-owned companies to occur only through authorised officials. These safeguards ensure that only the narrowest possible categories of bodies and individuals have access to personal information in order to counter fraud and corruption. The provisions in Schedule 7 also ensure that officials who misuse personal information can be held to account through existing regulatory schemes.

126. Schedule 7 also enables publication of guidelines, independently approved by the Information Commissioner, to assist entities to specify the way in which information sharing is intended to occur under these amendments in a manner that does not unduly interfere with the right to personal privacy.

127. This Schedule does not unduly interfere with the right to personal privacy. While this Schedule allows for sharing of personal information in certain circumstances, the public interest in enacting the proposed provisions outweighs the potential privacy impacts on affected individuals. In addition, the narrow purposes for which information may be shared and additional safeguards ensure the amendments are a proportionate response to the risk of fraud and corruption. The safeguards include:

•

limiting the bodies that may collect, use and receive personal information for integrity purposes to defined parts of the Commonwealth that are regulated under the PGPA Act and Privacy Act

•

requiring transfers of information by Commonwealth entities and wholly- owned companies to occur through authorised officials

•

ensuring that the amendments do not override or impact on other laws controlling or authorising the collection, use or disclosure of personal information, and

•

enabling publication of guidelines, approved by the Information Commissioner, to assist entities to specify the way in which information sharing is intended to occur under these amendments.

128. These amendments work with the Privacy Act to appropriately limit the intrusion into privacy while better supporting prevention, detection and investigation of fraud or corruption. They authorise collection, use, and disclosure of personal information in specified circumstances only for the purposes of preventing, detecting, investigating, or dealing with fraud or corruption against the Commonwealth. Limitations on use and disclosure ensure the extent of intrusion is proportionate to the objective of combatting fraud and corruption.

Conclusion

129. Schedule 7 is compatible with human rights and, to the extent that it may limit human rights, those limitations are not arbitrary, are proportionate, and are necessary to achieve the legitimate objective of countering fraud and corruption without unduly interfering with the right to personal privacy.

Schedule 8-Exemptions to spent convictions scheme

130. Schedule 8 amends section 85ZL of the Crimes Act to define the New South Wales Law Enforcement Conduct Commission (LECC) as a "law enforcement agency" for the purposes of the Commonwealth spent convictions scheme under Part VIIC of the Crimes Act. This allows the LECC to use and disclose spent convictions pursuant to sections 85ZZH and 85ZZJ of the Act.

Human rights implications

The right to privacy and reputation - Article 17 of the ICCPR

131. 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.

132. 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 UNHRC 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.

133. The measures in Schedule 8 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.

134. The purpose of the Commonwealth's spent convictions regime under Part VIIC of the Crimes Act is to assist individuals who have committed minor offences to rehabilitate by ensuring that previous convictions are not disclosed once particular criteria have been met.

135. Should a conviction qualify as a spent conviction under the Act, a person will not be required to disclose the fact that they have been charged with or convicted of the offence. In addition, anyone else who knows, or could reasonably be expected to know, that the person is not required to disclose the conviction cannot disclose this conviction without consent, nor can the conviction be taken into account by a decision maker.

136. Schedule 8 would define the LECC as a "law enforcement agency" in section 85ZL of the Crimes Act. Sections 85ZZH and 85ZZJ of the Act allow a "law enforcement agency" to take spent convictions information into account in relation to assessing prospective employees or consultants, disclosing spent convictions information to other law enforcement agencies, filing spent convictions information and using this information to investigate or prevent crimes where this is within their functions.

137. These measures are not arbitrary and are necessary within the meaning of Article 17, as the LECC requires access to spent convictions information to comprehensively vet their employees and enhance their ability to investigate possible corruption.

138. A primary function of the LECC under the Law Enforcement Conduct Commission Act 2016 (NSW) is to identify and investigate serious misconduct and corruption by law enforcement officers and maladministration by law enforcement agencies.

139. LECC officers will have access to highly sensitive police and crime commission information and intelligence, including telecommunications interception material, surveillance device material, and controlled operations information. Additionally, the LECC will be able to deploy its own telecommunications interceptions and surveillance devices for investigations when a relevant warrant is granted. Some LECC officers will also be required to carry firearms. Comprehensive vetting is therefore essential in maintaining the integrity of the LECC and NSW law enforcement agencies.

140. Accessing spent conviction information will also assist the LECC in carrying out their functions, as the LECC will need to be aware of any link between the subject of their investigation and organised crime groups, which may be revealed via spent convictions information.

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

142. Should the LECC deny a person employment on the basis of a spent conviction, this may constitute discrimination under the Australian Human Rights Commission Act 1986 unless the conviction goes to the 'inherent requirements' of the job. The Human Rights Commission has the power to investigate and attempt to conciliate any complaint of discrimination.

143. The LECC Act contains certain protections to prevent arbitrary access to, and improper use of, certain personal information. Under section 189 of the Law Enforcement Conduct Commission Act 2016, the LECC requires the consent of an applicant for employment before requesting their "vetting information", which includes criminal history information.

144. Part 14 of the Law Enforcement Conduct Commission Act 2016 also imposes strict secrecy and privacy obligations on all staff. This ensures that any information acquired by a person in the course of exercising any functions of the LECC is not improperly disclosed. This would include spent conviction information. Unauthorised disclosure of information held by the LECC carries a term of imprisonment of 12 months or a fine of $5,500.

Conclusion

145. Schedule 8 is compatible with human rights because, to the extent that it may limit human rights, those limitations are not arbitrary, are proportionate and are necessary to achieve the legitimate objective of countering corruption and combating serious and organised crime.

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]