Explanatory Memorandum
(Circulated by authority of the Minister for Justice and Customs Senator the Honourable Chris Ellison)Schedule 5 - Amendment of Other Acts
Schedule 5 of the Bill amends a number of law and justice Acts. Those amendments clarify the operation of part of the Customs Act 1901 , make some minor amendments to the Crimes (Aviation) Act 1991 , correct a misdescription in the Cybercrime Act 2001 and make procedural amendments to the Mutual Assistance in Criminal Matters Act 1987 .
Item 1 Subsection 3(1) (subparagraph (a)(i) of the definition of Division 2 aircraft)
This item repeals and substitutes part of the definition of 'Division 2 aircraft' in subparagraph 3(1)(a)(i). This amendment has the effect of excluding intrastate flights from the definition, given that intrastate flights fall outside the Commonwealth's legislative powers under the Constitution.
Item 2 subparagraph 15(1)(b)(ii)
This item inserts a reference to the Prostitution Act 1992 (ACT) in subparagraph 15(1)(b)(ii). This insertion means that it is an offence to engage in child prostitution whilst on board an Australian-registered aircraft outside of Australia. This offence ensures that the application of Australia's criminal laws on board aircraft complies with Australia's international obligations under the Optional Protocol to the Convention of the Rights of the Child on the sale of children, child prostitution and child pornography.
At present it is not an offence to engage in child prostitution whilst on board an Australian-registered aircraft outside of Australia. A crime is committed only where it would be an offence against a law of the Commonwealth or the Crimes Act 1900 (ACT) in their application to the Jervis Bay Territory. No provision is made for prostitution offences under these applicable laws. The proposed amendment seeks to rectify this shortfall by inserting that an offence against the Prostitution Act 1992 (ACT) would also constitute an offence on board an Australian registered aircraft outside of Australia.
The proposed amendments in the Customs Act 1901 (Customs Act) are directed to clarify the operation of these serious drug offences when read in light of Chapter 2 of the Criminal Code . The clarification is necessary in response to the decision in R v Ismail (26 May 2003, District Court of New South Wales).
In R v Ismail the court decided that the section 233B(1)(b) offence consisted of a physical element of conduct but without an accompanying element of circumstance. The court held that the prosecution was required to prove that an accused intentionally imported into Australia a prohibited import, where the fault element of intention attached to both the conduct of importation and the circumstance element that the thing was in fact a prohibited import. This is in contrast to the long term understanding that the offences operated to require the prosecution to prove:
- (a)
- that an accused intentionally imported into Australia a substance or thing,
- (b)
- reckless as to whether that substance or thing was a prohibited import.
If the prosecution was required to prove the person had intention about the substance or thing being a prohibited import - the effect of the Ismail ruling - many prosecutions of drug traffickers would be significantly more difficult. An accused could assert that because he or she did not know that the package an associate gave them for importation into Australia contained heroin, they could not have intentionally (ie. deliberately) imported heroin.
The Ismail ruling also appears to be inconsistent with the status of the Customs Act offences under common law prior to the harmonisation of those offences with Chapter 2 of the Criminal Code . The common law concept of intention in the context of those offences was taken to be wider than the operative version in section 5.2 of the Code , being more analogous to the concept of recklessness in section 5.4 of the Code .
As well as the importation offence, there are consequences for the exporting, bringing into Australia and possession offences contained in section 233B.
Item 3 replaces existing subsection 233B(1) with a new provision (proposed subsection 233B(1)). The proposed subsection makes it clear that the various offences set out in that provision are comprised of two physical elements: the possession, bringing etc in paragraph 233B(1)(a), to which intention applies; and the circumstance that the goods are a prohibited import to which the section applies. Recklessness attaches to that circumstance by operation of subsection 5.6(2) of the Criminal Code , which provides that where an offence does not specify a fault element for the physical element of circumstance within that offence, the fault element of recklessness will apply. All of the offences except those about exporting goods are contained in proposed subsection 233B(1). The export offences have been separated out into proposed subsection 233B(1AAC) for the sake of clarity; again, they do not operate any differently to existing subsection 233B(1).
Many of the existing offences in subsection 233B(1) incorporate a defence of reasonable excuse. The provisions in proposed subsection 233B(1) do not contain such a provision, as it is more appropriate that defences be separated out from offence provisions. Proposed subsection 233B(1AAB) is a new provision, setting out a separate defence, which applies to the same provisions and on the same terms as that in existing subsection 233B(1).
Item 4 amends subsection 233B(1AA) by updating a cross-reference in that subsection. The cross-reference, to one of the subparagraphs in proposed subsection 233B(1), is consequential on the amendments made by Item 3.
Item 5 amends subsection 233B(1AB) by updating a cross-reference in that subsection. The cross-reference, to one of the subparagraphs in proposed subsection 233B(1), is consequential on the amendments made by Item 3.
Item 6 amends subsection 233B(1AC) by updating a cross-reference in that subsection. The cross-reference, to one of the subparagraphs in proposed subsection 233B(1), is consequential on the amendments made by Item 3.
Item 7 amends subsection 233B(1A) by updating a cross-reference in that subsection. The cross-reference, to one of the subparagraphs in proposed subsection 233B(1), is consequential on the amendments made by Item 3.
Item 8 amends subsection 233B(1B) by updating a cross-reference in that subsection. The cross-reference, to one of the subparagraphs in proposed subsection 233B(1), is consequential on the amendments made by Item 3.
Item 9 Schedule 1 (heading relating to the Telecommunications (Interception) Act 1997)
Item 9 amends the Cybercrime Act 2001 to correct a misdescription contained in Item 6 of Schedule 1 to that Act.
Item 6 of Schedule 1 refers to the Telecommunications (Interception) Act 1997 . However, the correct title of that legislation is the Telecommunications (Interception) Act 1979 .
Accordingly, Item 10 substitutes '1979' for '1997'.
Mutual Assistance in Criminal Matters Act 1987
In conjunction with Item 11, this item amends section 15 of the Mutual Assistance in Criminal Matters Act 1987 (MA Act) to simplify the process for obtaining evidential material for use in proceedings in a foreign country.
When seeking mutual assistance in a criminal matter, foreign countries usually do not know when a search warrant would be required to obtain evidential material under Australian law. Currently, a foreign country must explicitly request that material be obtained by search warrant before the Attorney-General can authorise the issue of a search warrant. These amendments remove the need for the foreign country to specifically request that a search warrant be obtained: the foreign country need now only ask for the Attorney-General to arrange for the evidential material to be obtained. The Attorney-General may then exercise his or her own discretion to determine whether a search warrant is the appropriate means by which the material should be obtained.
The amendment in Item 10 removes the requirement in paragraph 15(1)(c) for a foreign country to explicitly request that material be obtained by search warrant. This amendment will benefit those cases where a request from a foreign country to Australia for mutual assistance in a criminal matter seeks material that can only be obtained by exercising a coercive power, but the request does not specifically ask that a search warrant be issued to obtain the requested material. This material commonly includes bank records and company records held at company premises.
At present, when a foreign country requests material which can only be obtained by coercive means, the Attorney-General's Department must obtain express confirmation of the foreign country that it requests Australian authorities to obtain the material by search warrant before the Attorney-General can authorise the issue of a search warrant.
The current process can cause delays of up to several months in Australia providing mutual assistance to foreign countries in criminal matters, while confirmation is sought from the foreign country. Such a delay would be of concern in a case involving time sensitive or politically sensitive proceedings, particularly those involving terrorism or money laundering.
Foreign countries usually are not aware of this requirement under Australian law. It is more appropriate and efficient for the foreign country to identify the documents or material it requires and for the Attorney-General to determine the most appropriate procedure to obtain the material requested, without the need for the foreign country to specifically ask for a search warrant to be issued.
The amendments to section 15 will remove these unnecessary delays and inefficiencies. At the same time, section 15 will retain the protections currently contained in section 15:
- (a)
- the foreign country must have commenced a proceeding or investigation involving a serious offence
- (b)
- there must be reasonable grounds to believe that evidential material relating to the investigation or proceeding is located in Australia, and
- (c)
- the foreign country must request the Attorney-General to arrange for the evidential material to be obtained.
The current requirement that a foreign country must explicitly request that material be obtained by search warrant provides no additional protection. It is an unnecessary additional administrative step.
This amendment removes the requirement in paragraph 15(1) for a foreign country to explicitly request that material be obtained by search warrant, before the Attorney-General can authorise the issue of a search warrant.
In conjunction with Items 13-16, Item 12 amends section 38ZA of the MA Act to simplify what a police officer does with material seized in response to a mutual assistance request from a foreign country. The amendments repeal the requirement for the police officer to deliver the seized material into the custody and control of the Commissioner of the Australian Federal Police (AFP). Instead, under proposed subsection 38ZA(1) a police officer who has seized material in response to a mutual assistance request from a foreign country will now need to:
- (a)
- inform the Attorney-General's Department that the thing has been seized
- (b)
- retain the thing pending the Attorney-General's direction under subsection 38ZA(4) about how to deal with the thing, and
- (c)
- comply with any such direction that the Attorney-General gives.
Under existing provisions, the MA Act does not specify that the Commissioner is required to perform a decision-making function in the section 38ZA process. Section 38ZA merely requires that the Commissioner retain the material seized pending a direction from the Attorney-General about how to deal with the thing. The police officer who has seized the material is equally capable of performing this function and, in practice, it is he or she who will actually deal with the seized material as directed by the Attorney-General.
The act of delivering the material to the Commissioner adds nothing to the process and can be logistically difficult. Often, a substantial amount of material is gathered by the police officer in response to a mutual assistance request from a foreign country. The material can include both documentary and physical evidence.
The Commissioner has no powers of delegation under the MA Act, so is not able to delegate his or her functions under section 38ZA.
The proposed amendments would therefore remove an unnecessary obligation from the Commissioner and streamline the process for dealing with seized material.
This amendment repeals subsection 38ZA(3) to remove the need for the police officer who has seized material in response to a mutual assistance request from a foreign country to deliver the seized material into the custody and control of the Commissioner of the AFP.
This amendment provides that where material has been seized in response to a mutual assistance request from a foreign country, the Attorney-General may provide directions to the police officer about how to deal with the seized material. Previously, any such direction from the Attorney-General could only be made to the Commissioner of the AFP.
This amendment provides that where a police officer has seized material in response to a mutual assistance request from a foreign country, the Attorney-General may direct the police officer to send the seized material to a foreign country. Previously, any such direction from the Attorney-General could only be made to the Commissioner of the AFP.
This subsection does not limit the directions that the Attorney-General may give.
This amendment provides that where police officer has seized material in response to a mutual assistance request from a foreign country, the Attorney-General must direct the police officer to return the seized material if:
- (a)
- the reason for seizing the material no longer exists, or
- (b)
- it is decided that the seized material is not to be used in evidence in a foreign country or in a criminal proceeding in Australia.
The Attorney-General must not direct the police officer to return the seized material if it is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership.
Previously, any such direction from the Attorney-General could only be made to the Commissioner of the AFP.
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