Senate

Revised Explanatory Memorandum

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

Statement of compatibility with human rights

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

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

Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014

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.

An overview of measures in the Bill and their human rights implications is below.

Schedule 1 - New Psychoactive Substances

Overview

Schedule 1 of the Bill amends the Criminal Code (the Code) and the Customs Act 1901 (the Customs Act) to ban the importation of substances:

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which mimic the psychoactive effects of illicit drugs but whose chemical structures fall outside existing controls (also known as 'new psychoactive substances' or NPS), and

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the presentation of which includes an express or implied representation that the substance is an alternative to an illicit drug.

This statement will refer to 'new psychoactive substances' as 'NPS' when the term is used generally to describe the policy issue this legislation seeks to address. When examining how specific provisions in the legislation work, this Statement will refer to the first banned category of substances as 'prohibited psychoactive substances' and the second banned category of substances as 'prohibited serious drug alternatives'.

The aim of the measure is to fill the regulatory gap between when NPS first appear on the market and when they are listed and banned under the Criminal Code or Customs (Prohibited Imports) Regulations 1956 (Prohibited Imports Regulations). The measure is intended to work in parallel with, and not replace, any of the existing schemes which ban the importation of illicit drugs and regulate the importation of substances with a legitimate use.

The Bill will allow officers of the Australian Customs and Border Protection Service (ACBPS) to exercise appropriate powers to search for, detain, seize and destroy prohibited psychoactive substances without a warrant. These powers are substantially similar to, or an extension of, the powers that ACBPS officers currently exercise in relation to special forfeited goods (a category of banned goods which includes illicit drugs). These powers are set out in Parts XII and XIII of the Customs Act.

ACBPS officers require these powers given the ACBPS's role as the primary agency maintaining the integrity of the Australian border. The powers will only be used in narrow circumstances and will be subject to a number of safeguards to ensure that the Bill balances the legitimate interests of the Commonwealth in preventing serious and organised crime against the need for governments to protect human rights.

Human rights implications

The measure to ban the importation of prohibited psychoactive substances and prohibited serious drug alternatives engages the following human rights:

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the right to life under article 3 of the Universal Declaration on Human Rights, article 6(1) of the International Covenant on Civil and Political Rights (ICCPR) and article 6(1) of the Convention on the Rights of the Child (CRC)

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the protection of children from the illicit use of drugs under article 33 of the CRC

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the presumption of innocence under 14(2) of the ICCPR.

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the right to privacy under article 17 of the ICCPR, and

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freedom of expression under 19(2) of the ICCPR.

Right to life

Article 3 of the Universal Declaration on Human Rights and Article 6(1) of both the ICCPR and the CRC preserve the inherent right to life. The right to life includes protection from arbitrary deprivation of life and imposes on states parties an obligation to protect this right by law. The United Nations Human Rights Committee has commented that States parties should take measures to prevent and punish deprivation of life by criminal acts. ^[1] Article 6(2) of the CRC also requires states parties to take measures to ensure the survival and development of children, to the greatest extent possible.

Schedule 1 of the Bill promotes the right to life by banning the importation into Australia of untested and potentially dangerous substances that are intended to mimic the effects of illicit drugs. The ban will strengthen the current border controls on NPS by preventing importers from tweaking the chemical structure of illicit drugs to evade those controls. NPS have been connected to a number of serious health incidents and deaths across Australia. They are made more dangerous in that they are unknown chemical compounds which are marketed as 'legal highs' or legal analogues of illicit drugs. This marketing can encourage individuals to believe that these substances have been assessed as being safe for consumption or are less harmful than other drugs when, in fact, they are untested and their short and long term health effects are unknown. ^[2]

As there are no known domestic manufacturers of the active ingredients in these substances, banning their importation is an important step in reducing their supply. This measure will also provide ACBPS officers with appropriate powers to search for, seize and destroy prohibited psychoactive substances and prohibited serious drug alternatives when they locate them in imports.

The importation ban will assist in reducing individuals' access to untested substances, the consumption of which has been connected to a number of deaths in Australia and across the world. This law is an important tool in reducing the harms and fatalities associated with NPS and in preserving individuals' right to life.

Protection of children from the illicit use of drugs

Article 33 of the CRC specifically requires states parties to take appropriate measures to protect children (up to the age of 18) from the illicit use of narcotic drugs and psychotropic substances. Although prohibited psychoactive substances are not specifically listed in the relevant international treaties banning narcotic drugs and psychotropic substances, ^[3] the Committee on the Rights of the Child has recognised that article 33 has a broad application and may impose obligations on states parties to protect children from the use of substances that are not listed in the Conventions, such as alcohol and tobacco. ^[4] Moreover, the Commentary on the CRC suggests that the way the article is framed permits the inclusion of new treaties as the scope of international drug control changes. ^[5] The import ban on prohibited psychoactive substances will promote the protection of children from the illicit use of drugs by strengthening import controls on these substances and reducing the potential for them to fall into the hands of children.

NPS pose a particular risk to children. The variability in concentration and toxicity of the active ingredients in NPS increases the risk that children who consume these drugs may overdose or suffer severe adverse effects, particularly as their ability to metabolise drugs is not fully developed.

Further, the internet plays a significant role in the marketing and supply of NPS. ^[6] Internet sales involve limited visibility over the identity and age of the person conducting the transaction, resulting in a heightened possibility that NPS may fall into the hands of children who purchase these substances online.

The import ban on prohibited psychoactive substances and prohibited serious drug alternatives is therefore an important tool for promoting children's rights to be protected from the illicit use of drugs. By prohibiting the importation of untested and potentially dangerous substances, this measure will authorise the seizure of prohibited psychoactive substances and and prohibited serious drug alternatives, which will assist in preventing their supply to children.

Presumption of innocence

Article 14(2) of the ICCPR provides that persons charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to law. It imposes on the prosecution the burden of proving a criminal charge and guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt. This right may be permissibly limited provided that the prosecution remains primarily responsible for proving the accused is guilty. ^[7]

Schedule 1 of the Bill contains a provision imposing an evidential burden on the defendant in criminal proceedings.

A defendant charged with importing a prohibited psychoactive substance contrary to new sections 320.2 or a prohibited serious drug alternative contrary to new section 320.3 of the Code will bear the evidential burden in establishing that the imported substance is exempt from the relevant offence, in accordance with subsections 320.2(2) and 320.3(3). These subsections do not contain essential elements of the offences. Rather, the exemptions listed in subsections 320.2(2) and 320.3(3) primarily relate to the intended use of the substance, which will be a matter peculiarly within the knowledge of the owner of the goods. The provision relies on subsection 13.3(3) of the Criminal Code, which provides that a defendant who wishes to rely on any exception provided by the law creating an offence bears an evidential burden in relation to that matter.

Exceptions to the offence of importing a prohibited psychoactive substance and the offence of importing a prohibited serious drug alternative are necessary because there are a number of substances that have important social or economic uses-whether as foods, medicines or industrial, agricultural or veterinary chemicals-but which may also have a psychoactive effect when consumed by a person. These exceptions ensure that the ban will not interfere with trade in substances with these uses and with substances that are already regulated by existing schemes.

Placing the evidential burden on a defendant in court proceedings to demonstrate the intended use of a substance is necessary to assist in protecting public health. Requiring the importer to identify these matters will prevent the importation of unknown, unassessed and potentially dangerous substances which are intended for human consumption.

It is incumbent upon an importer to be aware of the purpose for which he or she is importing a substance and to obtain all relevant authorisations and permissions for that importation. It will be within an importer's knowledge whether a substance fits within one of the existing regulatory schemes and, therefore, one of the exemptions to the offence. Similarly, evidence about the intended use of a substance is peculiarly within the knowledge of the importer. It will be readily available from their business or personal records.

If the onus was on the prosecution to prove intended use, it would have to prove beyond reasonable doubt that the imported substance did not fit within each of the eleven excluded categories before a charge could be made out. Under the Bill, the defendant only bears the evidential burden to show that the imported substance fell into one of the categories of exempt goods. If, as the defendant alleges, the importation is legitimate, the defendant would have ready knowledge of the relevant facts required to discharge the evidential burden in relation to an exemption. In these circumstances, placing the evidential burden on the defendant is both a reasonable and proportionate way of preventing people from importing prohibited psychoactive substances and protecting public health.

Similarly, where a defendant is charged with importing a prohibited psychoactive substance contrary to new section 320.2 of the Criminal Code, subsection 320.2(4) clarifies that, in a prosecution for an offence against new subsection 320.2(1), the prosecution need only prove that the defendant knew, or was reckless as to whether, the substance he or she imported was a psychoactive substance. This provision does not place an evidential burden on the defendant in court proceedings. It is based on section 300.5 in Part 9.1 of the Criminal Code.

This subsection is important as importers, sellers and users of NPS frequently do not know their precise chemical structure and their exact effects.

The ingredients in NPS are frequently misdescribed and can produce effects not anticipated by suppliers or users. ^[8] It is appropriate for the offence to prevent people from importing a psychoactive substance, even if it is not the precise substance they intended to import, or if it does not have the precise effects they anticipated.

Where a defendant is charged with importing a prohibited serious drug alternative under the new section 320.3, subsection 320.3(4) clarifies that, in a proceeding for an offence against subsection 320.3(1), it is enough that the representation related to the substance being an alternative to any serious drug (whether because of its effects or purported lawfulness).

Paragraph 320.3(4)(b) clarifies that, in a proceeding for an offence against subsection 320.3(1), the prosecution does not need to show that the defendant intended for people to understand that the relevant representation related to a particular serious drug. It will be enough for the prosecution to prove that the representation was that the substance was an alternative to any serious drug (whether because of its effects or purported lawfulness), and that the defendant knew, or was reckless as to, that fact.

Paragraph 320.3(4)(c) clarifies that the prosecution does not need to prove that the defendant knew, or was reckless as to, the precise identity of the substance or its precise effects. As noted above, in any case, it is not necessary for the prosecution to prove that the substance had a psychoactive effect at all as the offence in subsection 320.3(1) depends only on the physical presentation of the substance.

These paragraphs are necessary to effect the aim of the offence, which is to prevent the importation of substances presented as alternatives, lawful or otherwise, to listed illicit drugs. The representation of psychoactive substances in this manner is not appropriate. Representing a substance as a 'legal' alternative to illicit drugs may encourage a person to use these drugs on the assumption that they have been tested and assessed as safe when compared to more established illicit drugs. This is incorrect-these substances are typically untested, of varying concentration and toxicity and carry unknown or unpredictable side effects.

These paragraphs are also necessary because manufacturers, importers, sellers and users frequently do not know the precise chemical structure and exact effects of substances they import. The ingredients in psychoactive substances are frequently misdescribed and can produce effects not anticipated by suppliers or users.

In these circumstances, it should not matter whether the person importing the substance intends to present it as being the same as, substantially similar to, or a lawful alternative to, a particular serious drug. It is enough that the person knows, or is reckless as to, the fact that the representation is about any serious drug.

None of the matters covered by subsections 320.2(4) and 320.3(4) amount to essential elements of the offence. Indeed, the prosecution will still be required to prove all other components of the offence beyond reasonable doubt. As such, subsections 320.2(4) and 320.3(4) are consistent with article 14(2) and the structure of the new offences in sections 320.2 and 320.3 when read as a whole will guarantee that an individual will not be presumed guilty until the charge has been proved beyond reasonable doubt.

Prohibition on interference with privacy

Article 17 of the ICCPR accords everyone the right to protection against arbitrary or unlawful interference with their privacy. Lawful interferences with the right to privacy will be permitted, provided they are reasonable in the particular circumstances. The UN Human Rights Committee has interpreted 'reasonableness' in this context to imply that 'any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case'. ^[9]

Schedule 1 of the Bill engages the right to privacy by extending the ACBPS's existing powers to search for and seize special forfeited goods to cover prohibited psychoactive substances. Under the Customs Act, an ACBPS officer may, without a warrant, search a container in a Customs place where he or she has a reasonable suspicion that it contains special forfeited goods. An ACBPS officer may also use these powers to search a person where the officer believes the person has special forfeited goods in his or her immediate possession. Schedule1 of the Bill simply extends the range of substances over which this power can be exercised to include prohibited psychoactive substances.

In exercising these powers, ACBPS officers may seek additional information from importers about the intended use of suspicious goods. The ACBPS will use this information to investigate the importation and determine whether the goods should be dealt with under an existing regulatory scheme (for example as a therapeutic good, food or industrial chemical) or as a suspected prohibited psychoactive substance.

Schedule 1 of the Bill does not change the nature of ACBPS's existing powers. These powers are provided by law, the grounds for their exercise are precisely expressed and they are accompanied by safeguards to ensure that they are not arbitrarily exercised. The power in section 203B of the Customs Act to search a container or person without a warrant in section 203B of the Customs Act may only be exercised by an authorised person if certain conditions are met. One of these conditions is that an ACBPS officer suspects on reasonable grounds that there are special forfeited goods (such as prohibited psychoactive substances) in the container or in the person's immediate possession. This ensures that any decision by the ACBPS to interfere with a person's right to privacy will be based on evidence and made on a case-by-case basis. This power is also subject to a number of safeguards, including that containers in the immediate physical possession of a person can only be searched in the person's presence (subsection 203B(2B)), and that officers can only forcibly remove or open a container if the person in possession has been given a reasonable opportunity to facilitate the search (section 203D).

The expansion of the ACBPS's existing powers is necessary to achieve the legitimate aims of protecting public health and prohibiting the importation of dangerous and potentially fatal substances into Australia. The ACBPS is the primary agency maintaining the integrity of the Australian border. As such, ACBPS officers require powers to search, detain and seize prohibited psychoactive substances at the border.

The powers are also reasonable in the circumstances and proportional to the aims of the Bill. They only allow authorities to call for such information relating to an individual's private life that is necessary in the interests of protecting society from dangerous and potentially fatal substances.

For example, an ACBPS officer may only use the expanded power to search for and seize a substance without a warrant under section 203B of the Customs Act where he or she reasonably suspects it is a prohibited psychoactive substance. An ACBPS officer may also use the expanded power to seize a thing that he or she believes on reasonable grounds is evidential material relating to an offence committed in respect of a prohibited psychoactive substance. The safeguards outlined above demonstrate that the powers are reasonable and proportional. In the circumstances, the Bill creates permissible limitations on the right to privacy.

Freedom of expression

Article 19(2) of the ICCPR preserves the right to freedom of expression, which includes the right to receive and impart information and ideas of all kinds in writing or in print and using any media. Article 19(3) explicitly states that this right may be subject to certain restrictions provided that the restrictions are provided by law and are for the protection of (among other things) public order and public health.

The offence in new section 320.3 of the Criminal Code engages the right to freedom of expression. This section prohibits a person from importing a substance the presentation of which includes an express or implied representation that the substance is a legal alternative to an illicit drug. This will prevent an individual from displaying information on, or receiving information about a substance's psychoactive effects or about how the substance is an alternative to a more established illicit drug.

These restrictions on a person's freedom of expression are justified. The offence of importing a substance the presentation of which includes an express or implied representation that the substance is a legal alternative to an illicit drug (whether because it is presented as having substantially similar psychoactive effects to a serious drug or as being a lawful alternative to such a drug) is provided by law.

The offence is necessary for protecting public health. As noted above, prohibited psychoactive substances are frequently sold or marketed with the representation that they are 'legal' alternatives to illicit drugs. This may encourage individuals to use these drugs on the assumption that they have been tested and assessed as safe when compared to more established illicit drugs. This is incorrect. Prohibited psychoactive substances are typically untested, of varying concentration and toxicity and carry unknown or unpredictable side effects. While the States and Territories are responsible for controlling the sale, supply and advertising of prohibited psychoactive substances, banning the importation of goods packaged in such a way is necessary to assist in ensuring that they are not marketed or sold in a manner that could encourage a person to believe they are a safe or legal alternative to more established illicit drugs.

The offence is a reasonable and proportionate way of achieving the aim of protecting public health from the effects of untested and unknown chemical compounds. It limits only a person's ability to make representations or receive information about a substance's psychoactive effects or about how the substance is an alternative to a more established illicit drug. The offence will not affect representations about foods or therapeutic goods that comply with relevant regulatory standards and the presentation of which may make similar representations.

Conclusion

Schedule 1 of the Bill is compatible with human rights because it promotes some human rights and to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.

Schedule 2 - Firearms Trafficking Offences

Overview

Schedule 2 of the Bill will amend the Code and the Customs Act. It contains measures to implement election commitments made in the Government's Policy to Tackle Crime (the Policy), released in August 2013.

Schedule 2 of the Bill will:

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create new international firearms offences of trafficking prohibited firearms and firearm parts into and out of Australia (new Division 361 of the Code)

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extend the existing offences of cross-border disposal or acquisition of a firearm and taking or sending a firearm across borders within Australia in Division 360 of the Code to include firearm parts as well as firearms, and

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introduce a mandatory minimum five year term of imprisonment for the new offences in Division 361 and existing offences in Division 360.

The expansion of the existing offences in Division 360 to include firearm parts, and the inclusion of firearm parts in the new international trafficking offences, is necessary to ensure that criminals cannot evade trafficking offences and penalties by breaking firearms down and trafficking their constituent parts.

Human rights implications

Schedule 2 of the Bill engages the following rights:

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the right to freedom from arbitrary detention under article 9(1) of the ICCPR, and

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the right to be presumed innocent until proved guilty according to law under article 14(2) of the ICCPR.

Arbitrary detention

Article 9(1) of the ICCPR states that:

Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

The prohibition on arbitrary detention under article 9(1) requires that in all circumstances, the detention of the particular individual must be justified as reasonable, necessary and proportionate to the end that is sought. This right is engaged by the application of mandatory minimum penalties for trafficking offences under Division 360 and the proposed international firearms trafficking offences in the new Division 361 of the Code.

The inclusion of a mandatory minimum penalty of five years' imprisonment for trafficking offences under Division 360 and Division 361 of the Code is aimed at the legitimate objective of ensuring offenders receive sentences that reflect the seriousness of their offending.

There are clear and serious social and systemic harms associated with firearms trafficking, and the introduction of a mandatory minimum penalty of five years imprisonment for offences under Division 360 and the new Division 361 reflect the gravity of supplying firearms and firearm parts to the illicit market. The entry of even a small number of illegal firearms into the Australian community can have a significant impact on the size of the illicit market, and, due to the imperishable nature of firearms, a firearm can remain within that market for many years. This provides a growing pool of firearms which can be accessed by groups who would use them to commit serious and violent crimes, such as murder. For example, in 2012, firearms were identified as being the type of weapon used in 25% of homicides in Australia (Australian crime: Facts and figures 2013, Australian Institute of Criminology). Failure to enforce harsh penalties on trafficking offenders could lead to increasing numbers of illegal firearms coming into the possession of organised crime groups who would use them to assist in the commission of serious crimes.

The amendments do not apply mandatory minimum penalties to children (those under the age of 18). This promotes freedom from arbitrary detention through encouraging proportionate sentencing by preserving judicial discretion in sentencing to take into account minors' particular circumstances. In this way, any risk that the sentencing of lower culpability offenders could amount to arbitrary detention is removed.

Moreover, the penalties do not impose a minimum non-parole period on offenders. This will preserve a court's discretion in sentencing, and will help ensure that custodial sentences imposed by courts are proportionate and able to take into account the particular circumstances of the offence and the offender. Specifically, the mandatory minimum sentence is not intended as a guide to the non-parole period, which in some cases may differ significantly from the head sentence.

Most importantly, the mandatory minimum term of imprisonment will only apply if a person is convicted of an offence as a result of a fair trial in accordance with such procedures as are established by law.

Presumption of innocence

Article 14(2) of the ICCPR states that:

Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

The presumption of innocence imposes on the prosecution the burden of proving charges, and guarantees that no guilt can be presumed until charges have been proved beyond reasonable doubt. In general, consistency with the presumption of innocence requires the prosecution to prove each element of a criminal offence beyond reasonable doubt. This right is engaged by the application of absolute liability and strict liability to elements of the new offences of international firearms trafficking introduced under new Division 361 of the Code, and by the inclusion of a new defence (applicable to the new offences) of reasonable belief that the conduct is justified or excused by or under law.

Absolute liability

The application of absolute liability engages the presumption of innocence because it allows for a physical element of an offence to be proven without the need to prove fault.

The new offences criminalise trafficking firearms or firearm parts into or out of Australia where importing or exporting the firearm or part was prohibited under the Customs Act 1901 absolutely, or prohibited under the Act unless certain requirements were met.

The amendments apply absolute liability to the element of the offences that importing or exporting the item was prohibited under the Act.

The absolute liability elements for the new offences in the Code are set out below:

Absolute liability is set out in section 6.2 of the Code. The effect of applying absolute liability to an element of an offence means that no fault element needs to be proved and that the defence of mistake of fact under section 9.2 of the Code is not available. Accordingly, the prosecution will not be required to prove that the defendant knew or was reckless to the fact that the importation or exportation of the firearm or part was prohibited or, alternatively, that the importation, exportation or entry for exportation of the firearm or firearm part was prohibited unless the requirements for import or export had not been met.

Absolute liability is appropriate and required for the element of the offence that the importation or exportation of the firearm or firearm part was prohibited or prohibited unless the requirements for import or export had been met. This is a precondition to the act of import or export and the state of mind of the defendant with respect to that condition is not relevant, as the defendant's state of mind is relevant to the intent to traffic element of the offence

If absolute liability were not imposed, a defendant could attempt to avoid criminal liability for the offence by claiming they were unaware that there were import and export requirements which had to be met. In such cases, the prosecution would then have to prove beyond reasonable doubt that a person knew or was reckless as to whether importing or exporting the article was prohibited or needed to meet certain requirements in order to be lawful. Given the difficulty in doing so, it is reasonable and proportionate to apply absolute liability in these cases. Further, it is reasonable to expect that, given the history of firearm regulation in Australia, the community and, in particular, people involved in the movement of firearms, know that there are controls on importing firearms and firearm parts or at least know enough to make enquiries.

Strict liability

Similarly, the application of strict liability engages the presumption of innocence because it allows for a physical element of an offence to be proven without the need to prove fault.

The amendments apply strict liability to the proposed new offences of trafficking firearms or firearm parts in to or out of Australia (or entering those articles for export) where doing so was prohibited absolutely under the Customs Act 1901 unless certain requirements were met with respect of the element of the offences that the person failed to meet such requirements.

The strict liability elements for the new offences in the Code are set out below:

Strict liability is set out in section 6.1 of the Code. The effect of applying strict liability to an element of an offence means that no fault element needs to be proven and the defence of mistake of fact is available. The fault element that the person intended to traffic will still have to be proven by the prosecution, as will the physical element that import or export requirements had not been met at the time of import or export.

Applying strict liability to the element of the offence that import or export requirements had not been met is appropriate. As above, it is reasonable to expect that those involved in the movement of firearms are aware that there are controls on importing firearms and firearm parts, or at least know enough to make enquiries Given that the defendant would be aware whether or not they had met the requirements for import or export, requiring the prosecution to prove beyond reasonable doubt that a person knew approval had not been obtained, or was reckless as to whether or not the requirements had been met, would be overly onerous and could undermine deterrence if suspects could avoid conviction by arguing they were unaware of the requirements.

However, the application of strict, rather than absolute, liability to this element of the offence will make available the general defence of mistake of fact. Therefore, if a person mistakenly believed that he or she had met the requirements for import or export of a firearm or firearm part, they would be able to rely on this defence. For instance, if a person received a state or territory permit to acquire and was told that that document was the only requirement for import, and other relevant requirements were therefore not met, the defence would be available to them.

Defences

The Bill introduces a defence of reasonable belief that the conduct is justified or excused by or under law. This engages the presumption of innocence by placing an evidential burden of proof on the defendant that at the time of the conduct constituting the offence, the person was under a mistaken but reasonable belief that the conduct was justified or excused by or under the law of the Commonwealth or of a State or Territory, and, had the conduct been so justified or excused, the conduct would not have constituted the offence.

Under international human rights law, a reverse onus provision will not violate the presumption of innocence if the law is reasonable in the circumstances and maintains the rights of the accused. Such a provision may be justified if the nature of the offence makes it very difficult for the prosecution to prove each element, or if it is clearly more practical for the accused to prove a fact than for the prosecution to disprove it. The purpose of this section is to ensure that administrative errors or misunderstandings occurring in the course of legitimate business do not result in convictions for offences that are intended only to target those involved in the illegal firearms trade.

For example, it will be more practical for the accused to prove that they had received incorrect advice about import requirements than the defence to disprove. The burden of proving the defence is an evidential burden in which the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist. If the defendant discharges an evidential burden, the prosecution must disprove those matters beyond reasonable doubt (see sections 13.1 and 13.3 of the Code for further information on evidential burdens).

Conclusion

The firearms trafficking measures in schedule 2 of the Bill are compatible with the human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. To the extent that these measures may limit those rights and freedoms, such limitations are reasonable, necessary and proportionate to achieving reductions in gun-related crime.

Schedule 3 - International Transfer of Prisoners

Overview

Australia's ITP scheme is governed by the International Transfer of Prisoners Act 1997 (ITP Act). The scheme aims to promote the successful rehabilitation and reintegration into society of a prisoner, while preserving the sentence imposed by the sentencing country as far as possible. This is a voluntary scheme, which requires the formal consent of the prisoner, Australia's Attorney-General, the relevant foreign country, and, where applicable, the relevant Australian state or territory to or from which the prisoner wishes to transfer.

The ITP measures in Schedule 3 of this Bill streamline the existing ITP process and clarify or simplify some legislative requirements that need to be met before a prisoner may be transferred into or out of Australia.

Human rights implications

Schedule 3 of the Bill engages the following human rights:

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the right to humane treatment in detention under article 10 of the ICCPR

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equality before the law under article 12 of the Convention on the Rights of Persons with Disabilities (CRPD) and articles 12 and 40 of the CRC, and

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the right to a fair hearing under article 14(1) of the ICCPR.

Humane treatment in detention

Article 10(1) of the ICCPR requires that all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. Article 10(3) also requires State parties to ensure that prison systems have as their essential aim the reformation and social rehabilitation of prisoners. The ITP scheme upholds these rights by promoting the successful rehabilitation and reintegration into society of a prisoner, while preserving the sentence imposed by the sentencing country as far as possible.

The proposed amendments permit consideration of transfers of prisoners in a wider array of situations including where the prisoner is serving a suspended sentence, and where the prisoner is unable to consent and requires a representative to act on their behalf (for example, where the prisoner is a child or has a mental impairment). To the extent that these amendments broaden and clarify the situations in which the ITP scheme may apply, the amendments promote rights relating to humane treatment in detention in article 10 of the ICCPR.

Equality before the law

Article 12 of the CRPD relates to equal recognition of persons with disabilities before the law. Article 12 of the Convention on the CRC provides that children should have their opinions taken into account when decisions are made that affect them. Article 40 of the CRC provides that children who are accused of breaking the law should receive legal help. To the extent that the amendments will broaden the persons who can consent to a transfer on behalf of a prisoner (including a person with a disability or a child), such as, in the absence of a parent, a grandparent, the amendments promote equal rights before the law of people with a disability as contained in article 12 of the CRPD and articles 12 and 40 of the CRC.

Fair hearing

The right to a fair hearing is protected in article 14(1) of the ICCPR. Legislation or policy that alters the jurisdiction of courts or tribunals engages this human right, including where legislation or policy restricts the rights of courts or tribunals to review administrative decisions.

Removal of the Attorney-General's decision in unviable applications

The amendments would insert a provision in the ITP Act that declares all unviable applications (i.e. applications that cannot proceed because eligibility is not met or consent has been refused by one of the relevant parties) to be closed. The prisoner will be informed of the outcome of his or her matter under section 52 of the ITP Act.

This would resolve the current situation where the Attorney-General is required to make a decision on applications where the only possible option is to decline because one or more of the requirements under section 10 of the ITP Act have not been fulfilled (including where the prisoner is not a citizen of the country to which they wish to transfer, or where any of the other parties - the foreign country or the relevant state or territory Minister - have refused consent). While this measure removes a decision that is technically reviewable under the ADJR Act, in effect the limitation confers no disadvantage and facilitates faster resolution for the prisoner.

Clarification that the Attorney-General's power to seek a variation of terms from a transfer country is discretionary rather than mandatory

This measure will modify section 20 of the ITP Act to limit administrative reviews to applications where the Attorney-General chooses to exercise his or her discretion. This reflects the original Parliamentary intention behind the provision - and the existing policy approach - that seeking variation of terms proposed by the transfer country is at the discretion of the Attorney-General. ^[10]

Clarifying that the Attorney-General's decision is discretionary rather than mandatory removes the requirement to notify transfer countries where such notification is futile (i.e. the transfer country could not agree to amended terms under their domestic law). The flexibility remains for the Attorney-General to seek variation of terms where such a variation is able to be considered by the other country. This measure is similarly aimed at facilitating quicker resolution of applications where the conclusion is foregone, and does not otherwise limit ministerial consideration of applications where there is a possibility a variation to the terms originally proposed may be acceptable to the other country.

Imposing a discretionary one-year limit on reapplications

Currently, the ITP Act does not place a restriction on when or how often a prisoner may reapply for transfer when their application has been refused or withdrawn. New applications are often received within months of the prisoner being notified that his or her application has been refused. Prisoners have also reapplied a short time after withdrawing their existing applications.

The current policy position is to treat each reapplication as a new application. However, this is time consuming, particularly as few, if any, reapplications in such a short timeframe would include new information or indicate special circumstances to justify reconsideration of the prisoner's transfer.

This measure is designed to address reapplications where there is no substantive change in circumstances, and does not preclude the Attorney-General from exercising his or her discretion to consider applications within the year where special circumstances or new information does manifest, notwithstanding the one-year timeframe.

This will assist in managing the expectations of prisoners and allowing feasible applications to be progressed in a more timely manner and reduce unnecessary burdens on the resources required to process ITP applications. Further, this amendment does not impact on the ability of a prisoner to reapply any time after the one year period had elapsed.

Conclusion

The ITP measures are compatible with human rights because they advance the protection of human rights and, to the extent that they limit human rights, those limitations are reasonable, necessary and proportionate.

Schedule 4 - Slavery Offences: Jurisdiction

Overview

Schedule 4 of the Bill makes an amendment to the jurisdiction of slavery offences under section 270.3 of the Code by providing that section 15.4 of the Criminal Code, 'Extended geographical jurisdiction category D', applies to those offences, thereby making explicit that the offences have universal jurisdiction. The amendment will also make explicit that the Attorney-General's permission to prosecute would be required where a slavery offence takes place wholly outside Australian territory.

Under the existing section 270.3, the jurisdiction of the slavery offences is not specified. Where jurisdiction is not explicit in the Code, standard geographical jurisdiction (limited to conduct occurring wholly or partly in Australia) applies under section 14.1 unless a contrary intention appears.

The Explanatory Memorandum to the Criminal Code Amendment (Slavery and Sexual Servitude) Act 1999, indicated that the slavery offences apply 'whether the conduct occurs inside or outside Australia and whether or not the offender is an Australian national', suggesting an intention that the slavery offences have universal jurisdiction. Universal Jurisdiction would be in line with Australia's recognition of universal jurisdiction as a well-established principle of international law, which extends to slavery, alongside piracy, genocide, war crimes, torture and other crimes against humanity.

This amendment will empower Australian law enforcement agencies to effectively investigate and prosecute instances of slavery even where the offence was not committed wholly within Australian territory and reflects Australia's recognition of slavery as a heinous crime.

Human rights implications

Schedule 4 of the Bill engages the following rights:

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right to freedom from slavery contained in article 8 of the ICCPR and article 27(2) of the CRPD, and

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the right to an effective remedy contained in article 2(3) of the ICCPR.

Right to freedom from slavery

The right to freedom from slavery contained in article 8 of the ICCPR and article 27(2) of the CRPD prohibits slavery and the slave trade in all of their forms. The prohibition of slavery is a jus cogens norm of customary international law, and is also expressly prohibited by a number of other treaties to which Australia is a party, including the CRPD, the International Covenant to Suppress the Slave Trade and Slavery 1926 and the Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery 1956. The prohibition of slavery in international law is absolute and non-derogable, applying at all times and in all circumstances.

By making it explicit that universal jurisdiction applies to the slavery offences under section 270.3 of the Code, Australia is promoting the right to freedom from slavery by ensuring that all persons are free from slavery and that perpetrators of slavery offences cannot escape justice by invoking the doctrines of sovereign immunity or by leaving the jurisdiction in which the offence was committed.

Right to an effective remedy

The right to an effective remedy in article 2(3) of the ICCPR imposes an obligation on countries to provide remedies and reparation for the victims of human rights violations.

The United Nations Human Rights Committee has stated that the right to an effective remedy encompasses an obligation to bring to justice perpetrators of human rights abuses, including discrimination, and also to provide appropriate reparation to victims.

The amendment to the jurisdiction of the slavery offences under section 270.3 would empower investigators and prosecutors to bring perpetrators to justice even when an offence was not committed wholly within Australian territory, and thus promotes the right of victims to an effective remedy.

Conclusion

Schedule 4 of the Bill is compatible with human rights and freedoms as it promotes and does not limit human rights and freedoms.

Schedule 5 - Validating Airport Investigations

Overview

Schedule 5 ensures that members of the Australian Federal Police (AFP), and special members, had the appropriate range of Commonwealth powers to conduct investigations of applied State offences committed at designated State airports from the 19 March 2014 to 16 May 2014. This covers the period between the repeal of the Commonwealth Places (Application of Laws) Regulations 1998 (1998 Regulation) and the commencement of the Commonwealth Places (Application of Laws) Regulation 2014 (2014 Regulation).

The Commonwealth Places (Application of Laws) Act 1970 (the COPAL Act) has the effect of applying the provisions of the laws of a State as Commonwealth laws in Commonwealth places.

A Commonwealth place is defined in the COPAL Act as meaning a place with respect to which the Commonwealth Government has exclusive power to make laws for the peace, order, and good government of the Commonwealth by virtue of s 52 of the Constitution.

In relation to policing, the COPAL Act renders some of the standard Commonwealth arrest and search powers contained in the Crimes Act 1914 (Cth) (the Crimes Act) inapplicable to applied State offences committed in Commonwealth places (with the exception of Tasmania). These offences can only be dealt with using the relevant applied State police powers (i.e. State powers of arrest and search).

Prior to 2011, the AFP and State police worked together as part of a 'hybrid policing model' in airports that are Commonwealth places. In 2011, following the 2009 Federal Audit of Police Capabilities, this model was replaced with an 'all-in policing and security model', under which the AFP took responsibility for the policing and security of Australia's eleven major airports.

An exception was subsequently added to the COPAL Act (through the Aviation Crimes and Policing Legislation Amendment Act 2011) to enable the otherwise inapplicable Commonwealth police powers in the Crimes Act to be used by the AFP in relation to the applied State offences at designated State airports.

As a result, subsection 5(3A) of the COPAL Act now allows police to access certain standard investigatory powers set out in the Crimes Act within designated state airport s, namely:

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Part IAA (dealing with search, information gathering, arrest and related powers)

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Section 9 (which provides for the seizure and condemnation of forfeitable goods)

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Section 13 (allowing the institution of proceedings in respect of offences)

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Section 15 (dealing with remand of defendants), and

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Part ID (dealing with forensic procedures).

At this time, the 1998 Regulations were updated to prescribe the list of airports that fall within the definition of a 'designated state airport' for the purposes of subsection 5(3A) of the COPAL Act, namely Adelaide Airport, Brisbane Airport, Coolangatta (Gold Coast) Airport, Hobart Airport, Melbourne (Tullamarine) Airport, Perth Airport, and Sydney (Kingsford Smith) Airport. The 2014 Regulation, which came into effect on 17 May 2014, preserved this list of designated state airports.

During the approximately eight week period between the repeal of the 1998 Regulations and the introduction of the 2014 Regulation, AFP members were required to rely exclusively on State powers contained in State legislation to investigate applied State offences. Schedule 5 retrospectively validates the exercise of relevant Commonwealth powers in designated State airports from the repeal of the 1998 Regulations until the introduction of the 2014 Regulation. This will ensure that the AFP members, and special members, had the full range of Commonwealth investigatory powers for applied State offences committed at designated State airports.

Human rights implications

Schedule 5 of the Bill engages the following human rights:

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the right to protection against arbitrary or unlawful interference with privacy under article 17 of the ICCPR

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the right to life and prohibition on torture and cruel, inhuman or degrading treatment or punishment under article 6 and 7 of the ICCPR

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the right to liberty and security of person and freedom from arbitrary detention under article 9 of the ICCPR,

•

the prohibition against retrospective criminal behaviour under article 15 of the ICCPR,

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the right to an effective remedy under article 2 of the ICCPR, and

•

the right to a fair trial and fair hearing rights under article 14 of the ICCPR.

Right to protection against arbitrary or unlawful interference with privacy

Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with their privacy. This right may be subject to permissible limitations, where the limitations are authorised by law and are not arbitrary.

The term 'unlawful' means no interference can take place except in cases authorised by law. What is 'arbitrary' will be determined by the circumstances of each particular 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 the particular circumstances.

The United Nations Human Rights Committee has interpreted 'reasonableness' in this context to imply that any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case.

Schedule 5 limits the right to privacy under article 17 of the ICCPR by retrospectively validating the use of the search and information gathering powers in Part IAA of the Crimes Act. These powers are to be exercised responsibly and there are a number of safeguards intended to ensure that a police officer conducting any search has regard to a searched person's right to privacy and maintenance of dignity throughout a search. In particular, there are rules for conduct of a strip search including that the search must be conducted in a private area (s 3ZI(1)(a) of the Crimes Act) and conducted by an officer of the same sex (s 3ZI(1)(b) of the Crimes Act). There are also additional requirements that must be met if in relation to children (s 3ZI(1)(e) and s 3ZI(F) of the Crimes Act). Similarly, the search and seizure powers available under section 9 of the Crimes Act are restricted to circumstances where there are 'reasonable grounds' (s 9(1) of the Crimes Act) to support the use of the powers.

The forensic procedures, including the retention of data from those procedures, set out in Part ID of the Crimes Act also limit the right to privacy under article 17 of the ICCPR. Part ID allows for the collection and use of DNA material for law enforcement purposes and establishes a scheme for the matching and inter-jurisdictional exchange of DNA profiles between Commonwealth, State and Territory law enforcement agencies. Information collected under Part ID is included within the National Criminal Investigation DNA Database (NCIDD) as a 'DNA profile.'

Importantly, the NCIDD does not contain any personal information that would identify a person to whom a particular DNA profile relates, protecting the personal privacy of the individual.

There is an offence in section 23YO of unauthorised disclosure of any information stored in the NCIDD or any other information revealed by a forensic procedure carried out under Part ID. Part ID also ensures that any forensic procedure must be carried out in accordance with certain rules and procedures, for example ensuring that the procedure is conducted in circumstances affording reasonable privacy to the suspect (s 23XI of the Crimes Act).

Although this Schedule will, to some extent, limit the right to privacy under article 17 of the ICCPR, this is necessary to achieve legitimate law enforcement aims and a number of safeguards apply which will ensure it is a reasonable and proportionate means of achieving these aims.

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

Article 6(1) of the ICCPR guarantees every human being the inherent right to life, stating that no one shall be arbitrarily deprived of his or her life. Article 7 of the ICCPR guarantees that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Schedule 5 engages this right by retrospectively validating the use of the arrest powers set out in Part IAA of the Crimes Act, which includes provision for the use of force. However, the use of force when conducting arrests is limited to 'as necessary and reasonable in the circumstances' as specified in section 3ZC(1) of the Crimes Act. Furthermore, in the course of arresting a person for an offence the officer is not able to do anything that is likely to cause death, or grievous bodily harm, unless the officer believes on reasonable grounds that doing that thing is necessary to protect life or to prevent serious injury to another person (s 3ZC(2) of the Crimes Act).

AFP members who use arrest powers are trained and authorised to do so under the Australian Federal Police Act 1979 or equivalent State legislation.

In addition, the Crimes Act contains a number of safeguards to ensure that these powers cannot be used arbitrarily, including the requirement in section 3ZD of the Crimes Act for persons to be informed of the grounds of arrest. This will ensure that arrest powers are used effectively and in a manner that does not endanger the officer, those subject to arrest or the public.

Accordingly, any potential limitation on article 6 or 7 of the ICCPR imposed as a result of the Schedule is reasonable, necessary and proportionate. Right to security of the person and freedom from arbitrary detention

Article 9(1) of the ICCPR guarantees the right to liberty and security of person and enshrines that no person shall be subjected to arbitrary arrest or detention. This right requires that persons not be subject to arrest and detention except as provided for by law, and provided that the law itself and the manner of its execution are not arbitrary.

Schedule 5 limits this right by retrospectively validating the use of arrest powers in Part IAA and the remand of a defendant set out in section 15 of the Crimes Act. This limitation of article 9 is necessary to ensure that there is adequate security and policing in airports. This serves the purpose of ensuring the legislative framework surrounding Australia's aviation regime is sufficient and appropriate.

These limitations are proportionate in that they are appropriately circumscribed. There is a clear threshold that must be met before an arrest can occur, namely 'the constable believes on reasonable grounds that the person has committed or is committing the offence' (s 3W(1)(a) of the Crimes Act). In addition, when exercising the right to arrest specified in Part IAA of the Crimes Ac t, an officer must comply with a range of basic safeguards. For example, the right in article 9(2) to be informed, at the time arrest, of the reasons for arrest and to be promptly informed of any charges is provided for in section 3ZD of the Crimes Act. Prohibition on retrospective criminal laws

Article 15 of the ICCPR prohibits retrospective criminal laws and provides that no-one can be found guilty of an offence that was not a crime at the time it was committed. This prohibition supports the long recognised criminal law principle that there can be no crime or punishment without a prior provision by law. The scope of the prohibition in article 15 of the ICCPR also includes that laws must not impose greater punishments than those which would have been available at the time the acts were done.

Schedule 5 does not give retrospective effect to a criminal offence which did not constitute an offence at the time that it was committed. The application of the substantive Commonwealth and applied State offences at designated state airports was unaffected by the repeal of the 1998 Regulations and the introduction of the 2014 Regulation. This Schedule does not interfere with the sentence set by a court, nor is it imposing a harsher penalty. The Schedule may, however, indirectly affect liability for a criminal offence given that it validates Commonwealth powers available to members of the AFP during the investigation of a State offence. This possibility is limited as during the period between the repeal of the 1998 Regulations and the introduction of the 2014 Regulation, AFP members were, for the most part, able to access alternative State powers to investigate applied State offences. Right to an effective remedy and right to a fair trial and fair hearing rights

Article 2(3) of the ICCPR guarantees that a person whose rights or freedoms have been recognised as violated shall have an effective remedy. Article 14 of the ICCPR provides that all persons shall be entitled to a fair trial and fair hearing rights in the determination of a criminal charge against them.

While Schedule 5, item 2 of the Bill may technically limit these rights in potential circumstances, alternative powers were available during the relevant time, including applied state police powers arising under section 9 of the Australian Federal Police Act 1979.

To the extent that Schedule 2, Item 5, limits these rights, those limitations are reasonable, necessary and proportionate for the achievement of a legitimate objective. As outlined above, retrospective validation of conduct to cover this limited time period is a reasonable and proportionate measure to ensure consistent application of appropriate security and policing at Commonwealth airports. The relevant Crimes Act powers would not be unknown to individuals or the Australian public. The measure would avoid the potential for inequitable outcomes, based on whether a person was arrested within the eight week period when the investigative powers used by the AFP were not in force.

Schedule 5 does not alter existing criminal processes which apply in relation to a person charged with an offence, nor does it alter civil claim processes. Schedule 5, Item 2 is specified to apply to thing done to the extent that the doing of the thing would, apart from the item, be invalid or ineffective because the Commonwealth place was not a designated State airport. This does not remove a person's ability to question whether powers exercised under the Crimes Act 1914 were used correctly in their circumstances in the course of any future prosecution or claim.

Conclusion

Schedule 5 is compatible with human rights because to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.

Schedule 6 - Minor amendments

Overview

Schedule 6 makes minor amendments to strengthen the Commonwealth anti-money laundering and counter-terrorism financing (AML/CTF) legislative framework.

Specifically, the proposed amendments will:

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clarify the ability of the Australian Taxation Office (ATO) to disclose certain information obtained under section 49 of the Anti-Money Laundering and Counter Terrorism Financing Act 2006 (AML/CTF Act), in particular information relating to international funds transfer instructions, enabling the ATO to catch tax cheats and raise taxation revenue,

•

enable the Victorian Independent Broad-Based Anti-Corruption Commission to access AUSTRAC information, enhancing its ability to investigate corruption,

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change the name of the Crime and Misconduct Commission of Queensland in the list of designated agencies to the Crime and Corruption Commission of Queensland, and

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simplify the Financial Transaction Reports Act 1988 (FTR Act) to give permanent effect to an exemption granted by the AUSTRAC CEO from an obligation on cash dealers to block accounts in certain circumstances.

In addition, Schedule 6 of this Bill will amend Division 301.11 of the Code to correct an error in the definition of a minimum marketable quantity in respect of a drug analogue of 1 or more listed border controlled drugs. This error occurred when Division 301.11 was inserted into the Code in November 2012 by the Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Act 2012. Schedule 6 will also amend sections 312.1 and 312.2 of the Code to update references to the border controlled drugs list and the controlled drugs list for the purposes of working out commercial, marketable or trafficable quantities of drugs and precursors in mixtures, or where different kinds of drugs, plants or precursors are involved.

Finally, Schedule 6 corrects minor grammatical errors in subsection 205E(2) of the Customs Act.

Human rights implications

Schedule 6 of the Bill engages the following rights:

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right to a fair trial, including to know the nature of the charge against oneself under article 14(3)(a) of the ICCPR, and

•

protection against unlawful and arbitrary interference with privacy under article 17 of the ICCPR.

The amendments to Division 301.11 and to sections 312.1 and 312.2 of the Code and the amendments to section 205E of the Customs Act are minor amendments and do not engage any of the applicable rights or freedoms.

Right to a fair trial

Article 14(3)(a) of the ICCPR provides that everyone charged with a criminal offence shall have the right to be informed promptly and in detail in a language which they understand the nature and cause of the charge against them. The measures promote the right in article 14(3) of the ICCPR.

The amendments clarify that the ATO can disclose certain information obtained under section 49 of the AML/CTF Act, enabling the ATO to disclose details about transactions obtained from businesses regulated under the AML/CTF Act with the taxpayer about whom the information relates.

This amendment will enhance the right conferred under article 14(3)(a) of the ICCPR by enabling the taxpayer to better know, understand, and respond to the charge against them. For example, when an individual sends money out of Australia, or has money sent to them from outside Australia, businesses regulated under the AML/CTF Act are required to report this transaction to AUSTRAC. The ATO is able to access this information, and can use it to match international funds transfers with taxpayers. When it appears that a taxpayer has received income that has not been declared to the ATO, the ATO can use this information to raise compliance assessments. This amendment provides clarity to ensure that the ATO is able to disclose information about the international funds transfer to the taxpayer who made or received the transfer, in order that he or she has full knowledge of the matter in responding to the compliance assessment.

Protection against unlawful and arbitrary interference with privacy

Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with their privacy. Collecting, using, storing, disclosing or publishing personal information without a person's consent amounts to an interference with privacy.

The measures in the Bill engage the protection against unlawful and arbitrary interference with privacy. To the extent that the measures may limit article 17 of the ICCPR, those limitations are reasonable, not arbitrary and accord with the objectives of the ICCPR.

The Bill clarifies that the ATO can disclose certain information obtained under the AML/CTF Act and amends the definition of 'designated agency' in the AML/CTF Act to include the Victorian Independent Broad-Based Anti-Corruption Commission.

The amendments clarify that the ATO can disclose certain information obtained under the AML/CTF Act to enable the ATO to share information received from regulated businesses about funds transfers with the taxpayer from whom, or to whom, the transfer was made. The ATO is already capable of accessing such information; this amendment simply provides clarity about the ATO's ability to disclose such information. While such a disclosure will involve personal information, engaging the right to privacy, this amendment will not limit the right, as disclosures will be made to the person about whom the personal information relates.

The amendment adding the Victorian Independent Broad-Based Anti-Corruption Commission as a designated agency will allow it to access AUSTRAC information, which may include personal information. The collection, disclosure, storage or use of personal information without a person's consent will engage, and limit, the protection from arbitrary and unlawful interference with privacy in article 17 of the ICCPR.

The right in article 17 may be subject to permissible limitations, where the limitations are lawful and are not arbitrary. 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. The United Nations Human Rights Committee has interpreted the requirement of 'reasonableness' to imply that any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case.

In this case, the limitations on article 17 are reasonable, necessary and proportionate as they will enable criminal justice and corruption matters to be investigated. Enabling the Victorian Independent Broad-Based Anti-Corruption Commission to access AUSTRAC information will enhance the Commission's investigative abilities, in line with those of similar agencies in other jurisdictions.

Conclusion

Schedule 6 of the Bill is compatible with human rights because it advances the right for individuals to know the nature and cause of any charge put against them. To the extent that it may limit the protection against unlawful and arbitrary interference with privacy, those limitations are reasonable, necessary and proportionate.

The Hon Michael Keenan MP, Minister for Justice