Senate

Revised Explanatory Memorandum

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

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:

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

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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

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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.