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