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 (International Crime Cooperation and Other Measures) Bill 2018

59. 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. To the extent that the measures in the Bill may limit those rights and freedoms, such limitations are reasonable, necessary and proportionate in achieving the intended outcomes of the Bill.

Overview of the Bill

60. This Bill amends the following Acts:

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Anti-Money Laundering and Counter-Terrorism Financing Act 2006

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AusCheck Act 2007

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Australian Crime Commission Act 2002

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Australian Federal Police Act 1979

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Crimes Act 1914

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Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Act 2013

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Criminal Code Act 1995

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Extradition Act 1988

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Foreign Evidence Act 1994

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International Criminal Court Act 2002

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International War Crimes Tribunals Act 1995

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Mutual Assistance in Criminal Matters Act 1987

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Surveillance Devices Act 2004

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Telecommunications Act 1997

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Telecommunications (Interception and Access) Act 1979, and

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War Crimes Act 1945.

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

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ensure Australia can effectively respond to requests from the International Criminal Court and international war crimes tribunals

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enhance the provisions on proceeds of crime search warrants, clarify which foreign proceeds of crime orders can be registered in Australia and clarify the roles of judicial officers in domestic proceedings to produce documents or articles for a foreign country, and others of a minor or technical nature

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ensure magistrates, judges and relevant courts have sufficient powers to make orders necessary for the conduct of extradition proceedings

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ensure foreign evidence can be appropriately certified and extend the application of foreign evidence rules to proceedings in the external territories and the Jervis Bay Territory

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enhance the vulnerable witness protections in the Crimes Act

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clarify and strengthen the operation of the human trafficking, slavery and slavery-like offences in the Criminal Code

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streamline the reporting arrangements under the War Crimes Act 1945

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ensure the Australian Federal Police's alcohol and drug testing program and integrity framework is applied efficiently and effectively to the entire workforce and that all persons directly affected will have access to the relevant alcohol and drug testing standards

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clarify and enhance processes for resignation in cases of serious misconduct or corruption

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provide additional flexibility regarding the method and timing of reports about outgoing movements of physical currency, allowing travellers departing Australia to report cross-border movements of physical currency electronically

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include the Australian Charities and Not-for-profits Commission (ACNC) in the existing list of designated agencies which have direct access to financial intelligence collected and analysed by AUSTRAC (known as 'AUSTRAC information'), enabling it to access AUSTRAC information

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clarify use of the Australian Crime Commission's prescribed alternative name, and

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permit the AusCheck scheme to provide for the conduct and coordination of background checks in relation to major national events.

62. Further details regarding the measures in the Bill and their human rights implications are set out below.

Schedule 1-Assistance to international courts and tribunals

Outline of amendments

63. The Bill will amend the International Criminal Court Act 2002 (ICC Act), the International War Crimes Tribunal Act 1995 (IWCT Act), the Crimes Act 1914 (Crimes Act), the Telecommunications (Interception and Access) Act 1979 (TIA Act), the Telecommunications Act 1997 (Telecommunications Act) and the Surveillance Devices Act 2004 (SD Act).

64. The ICC Act implements Australia's obligations under the Rome Statute of the International Criminal Court (ICC). In particular, it contains procedures enabling Australia to comply with requests for assistance from the ICC. The IWCT Act enables Australia to provide assistance to certain international war crimes tribunals (IWCTs) in performing their functions, including obtaining evidence, documents or other articles and arranging for a person to give evidence or assist an investigation.

65. Australia's ability to provide assistance in criminal matters to the ICC and IWCTs is presently more limited than our ability to assist foreign countries under the Mutual Assistance in Criminal Matters Act 1987 (MA Act). This Bill will ensure that both the formal and informal assistance which Australia can currently provide to foreign countries, can also be provided to the ICC and IWCTs. These amendments will be confined to providing assistance to the ICC and IWCTs for investigating and prosecuting offences within their jurisdiction. Further, the assistance would be subject to the same processes as currently apply to the assistance provided to foreign countries under the MA Act and on an agency-to-agency basis and to similar safeguards as apply to the use of these powers for foreign and domestic law enforcement purposes.

Human rights implications

66. This Bill engages the following rights:

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Prohibition on torture and cruel, inhuman or degrading treatment or punishment (Article 7 of the International Covenant on Civil and Political Rights (ICCPR) and Article 16 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT))

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Privacy and reputation (Article 17 of the ICCPR), and

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Prohibition on retrospective criminal laws (Article 15 of the ICCPR).

Prohibition on torture and cruel, inhuman or degrading treatment or punishment

67. Article 7 of the ICCPR and Article 16 of the CAT prohibit conduct which may be considered cruel, inhuman or degrading treatment or punishment ('ill treatment') and can be either physical or mental. The United Nations bodies responsible for overseeing the implementation of these treaties have provided guidance on the sort of treatment that is prohibited. Examples of ill treatment include forced medical procedures. These rights are absolute and cannot be limited in any way. The proposed amendments are compatible with the ICCPR and the CAT and will not engage with these rights in any way that constitutes ill treatment.

68. Under the amendments proposed in the Bill, the ICC or an IWCT may request the compulsory carrying out of a forensic procedure on a person to assist in relation to an ICC or IWCT investigation or proceeding. To ensure these powers are utilised only where necessary, the forensic procedure measures in the Bill are supported by safeguards that align with those that apply when Australia assists foreign countries and when these powers are used for domestic law enforcement purposes. These safeguards include that the Attorney-General must be satisfied of certain criteria prior to authorising a constable to apply to a magistrate for an order for the carrying out of the forensic procedure. Further, before a magistrate can order the procedure be undertaken, the magistrate must determine whether the procedure is justified in all the circumstances by balancing the public interest in providing the relevant assistance against the public interest in upholding the physical integrity of the suspect, among other relevant considerations.

69. There are further safeguards protecting the rights of the individual in Division 6 of Part ID of the Crimes Act. This Division regulates the carrying out of forensic procedures on suspects, serious offenders and volunteers and specifies who may carry out different forensic procedures, and provides procedural safeguards including the provision of reasonable privacy; videotaping the procedure; the presence of an interview friend for certain vulnerable persons; prohibiting ill treatment; and providing the subject of the procedure with part of the sample for his or her own analysis.

Right to protection against arbitrary and unlawful interferences with privacy

70. The Bill engages Article 17 of the ICCPR, which states that no one shall be subjected to arbitrary or unlawful interference with their privacy, family, home or correspondence. The use of the term 'arbitrary' means that any interference with privacy must be in accordance with the provision's particular circumstances. In order for an interference with the right to privacy to be permissible, the aims and objectives of the ICCPR and should be reasonable in that 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.

71. The amendments in this Bill will align Australia's powers to assist the ICC and the IWCTs covered in the IWCT Act with Australia's powers to share information with foreign countries. The assistance would be subject to similar safeguards as those that apply to accessing such information for domestic use and for sharing with foreign countries. These amendments are all consistent with Article 17 of the ICCPR and do not arbitrarily interfere with a person's right to privacy. The amendments are further outlined below.

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Permit provision of lawfully obtained material to the ICC or an IWCT: amendments in this Bill will permit provision of lawfully obtained material to the ICC or an IWCT in line with the current process under the MA Act. This process is an expeditious procedure that enables lawfully obtained material to be provided to the ICC or an IWCT after authorisation by the Attorney-General, rather than requiring the material to be produced before a magistrate.

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Enable the ICC and IWCTs to request and receive stored communications: the amendments in this Bill will enable the ICC and IWCTs to request and receive stored communications subject to Attorney-General authorisation and the normal process for applying for a stored communication warrant for domestic purposes under the TIA Act. Currently, Australian agencies may apply for a warrant to covertly access stored communications to assist in the investigation of domestic offences or an investigation in a foreign country. These amendments will provide a mechanism to enable a stored communications warrant to be obtained to assist with an ICC or IWCT investigation.

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Allow the Australian Federal Police to provide historical telecommunications data to the ICC and IWCTs on an agency-to-agency basis: the amendments in this Bill will enable historical telecommunications assistance to be provided to the investigative organs within the ICC and IWCTs on an agency-to-agency basis, in the same way as it is currently provided to foreign countries.

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Enable the collection and provision of prospective telecommunications data for international law enforcement purposes: the amendments in this Bill to the ICC, IWCT and the TIA Acts will enable the collection of prospective telecommunications data for foreign and international law enforcement purposes, following a formal request from the ICC or IWCT and the Attorney-General's approval. Prospective telecommunications data is data that comes into existence during the period in which an authorisation is in force.

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Enable the provision of surveillance assistance to the ICC and IWCTs: The amendments in this Bill will amend the SD Act, the ICC Act and the IWCT Act to enable Australia to receive and respond to requests relating to the use of surveillance devices in respect of an ICC or IWCT request. This will mirror the assistance that is currently available to foreign countries.

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Enable the provision of forensic assistance to the ICC and IWCTs: the amendments in this Bill will amend the ICC Act, IWCT Act and the Crimes Act to enable the AFP, or a state or territory police officer, to carry out a forensic procedure on a suspect in relation to a foreign serious offence, either with informed consent or compulsorily, at the request of the ICC or an IWCT. The amendments would also clarify the procedures for obtaining forensic material from a volunteer on an informal basis on behalf of a request by a person investigating an offence within the jurisdiction of the ICC or a war crimes tribunal offence. The amendments extend the current regime for storage and disclosure of personal information to also apply to requests from the ICC and an IWCT.

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Proceeds of crime: the amendments in this Bill will amend the proceeds of crime provisions in the ICC and IWCT Acts. This includes streamlining the authorisation process for proceeds of crime tools (monitoring orders, production orders and search warrants) and ensuring a range of investigative and restraint tools available for domestic purposes (or to assist in relation to an investigation or prosecution in a foreign country) are also available in respect of an investigation or prosecution at the ICC or an IWCT and apply appropriately in the particular foreign context. It also includes amending both Acts to enhance the processes for seeking restraining orders and giving effect to forfeiture orders.

72. These amendments will ensure Australia can provide the fullest assistance to the ICC and IWCT in investigating and prosecuting the most serious of crimes and taking proceeds of crime action. Lawful access to these tools will be subject to existing safeguards governing the use of this material for domestic purposes and to foreign countries, to ensure the exercise of powers by the Attorney-General will not be arbitrary within the meaning of Article 17.

73. The amendments will give the Attorney-General the discretion to authorise the provision of material lawfully obtained in Australia where the ICC or an IWCT have requested the material, provided the request relates to an investigation being conducted by the Prosecutor or a proceeding before the ICC and the material was lawfully obtained in Australia by, and is lawfully in the possession of, a law enforcement agency. The definition of 'lawfully obtained in Australia' will define material lawfully obtained in Australia as including both material obtained from individuals or entities by consent and material obtained pursuant to the exercise of a court's coercive powers.

74. Lawfully intercepted information or interception warrant information can only be authorised if the investigation or proceeding relates to an offence punishable by a maximum penalty of imprisonment for 7 years or more, or life imprisonment. The Attorney-General will also be able to specify in the authorisation the uses to which the material can be put by the court or tribunal, and give a direction to a law enforcement officer regarding how the relevant material is to be provided to the court or tribunal.

75. Provision of stored communications information would be subject to the same processes that currently apply to providing such material to assist foreign countries, and would be subject to the same safeguards as apply to accessing such information for domestic use. That is, the provision of the information would be subject to the conditions set out in section 142A of the TIA Act (which will be amended to cover provision of stored communications information to the ICC and an IWCT).

76. The process of disclosing historical telecommunications data would also be subject to the same safeguards as those that apply to provision of this assistance to foreign countries. The TIA Act would be amended to enable disclosure where reasonably necessary for an investigation or prosecution of a crime within the jurisdiction of the ICC or an investigation or prosecution of a War Crimes Tribunal offence, in addition to disclosure to a foreign country. An authorised officer would have to have regard to how much the privacy of any person or persons would be likely to be interfered with by the disclosure, amongst other factors.

77. Approval to collect and provide prospective telecommunications data will reflect the current process applying to foreign countries under the MA Act, and will be subject to the same safeguards. New sections 78B(1) and 34B(1) of the ICC and IWCT Acts respectively will set out what the Attorney-General must consider before authorising the disclosure of prospective telecommunications data.

78. Section 180B of the TIA Act allows an authorised officer in the Australian Federal Police to authorise the disclosure of prospective telecommunications data, if the Attorney-General has authorised an authorisation to be made. This section will be amended to allow the authorised officer to authorise disclosure to the ICC or an IWCT, subject to certain safeguards, including that the authorised officer is satisfied that the disclosure is reasonably necessary for an investigation or proceeding relating to a crime within the jurisdiction of the ICC or a War Crimes Tribunal offence, and the authorised officer is satisfied that the disclosure is appropriate in all the circumstances.

79. The amendments will enable the Attorney-General to authorise an eligible law enforcement officer to apply for a surveillance device warrant under section 14 of the SD Act if, amongst other things, the Attorney-General is satisfied that appropriate undertakings have been given in relation to the use and destruction of information obtained as a result of the use of the surveillance device, as well as any other matter the Attorney-General considers relevant. This provision and accompanying safeguards will mirror the equivalent provision in the MA Act, section 15CA, which governs the provision of surveillance device assistance to foreign countries. The decision to issue a surveillance device warrant is a decision for an eligible judge or a nominated AAT member. The extent to which the privacy of any person is likely to be affected is one of the factors the judge or AAT member must have regard to in determining whether a surveillance device warrant should be issued.

80. The provision of forensic assistance to the ICC or an IWCT, either through informed consent or compulsorily, will be subject to the same conditions as those that currently apply to forensic procedures domestically and the provision to forensic assistance to foreign countries. These ensure that suspects are fully informed about the use and retention of the forensic information being obtained before consenting to a forensic procedure, and that relevant considerations are taken into account before coercive powers are used to order the carrying out of a forensic procedure. For example, if consent is not provided and the ICC or an IWCT makes a request to the Attorney-General for the procedure to be carried out, the Attorney-General may authorise a constable to apply under Part ID of the Crimes Act for an order for the carrying out of a forensic procedure if the Attorney-General is satisfied, amongst other things, that the ICC or an IWCT have given appropriate undertakings about the retention, use and destruction of forensic material, or information obtained from analysing that material.

81. The amendments in this Bill will also enable information stored on the National Criminal Investigation DNA Database (NCIDD) to be disclosed for the purpose of assisting the ICC or IWCTs to decide whether to make a request. As with the current practice in place for foreign countries, the information to be disclosed under this paragraph is preliminary advice in the form of a 'yes' or 'no'. If a match is made, this item will enable the AFP to notify the ICC or IWCT of such a match to assist the ICC or IWCT to decide whether to make a formal request for the provision of further information about the DNA profile, including information about the person to whom the profile relates.

82. The Bill makes amendments to improve the operation of proceeds of crime provisions (including investigative and restraint tools) in the ICC and IWCT Acts. Some of these proceeds of crime tools (such as search warrants and monitoring orders) necessarily interfere with a person's right to privacy and home. However, the investigation and detection of serious crime is a legitimate purpose for which an individual's right to privacy and home might be impinged upon. The amendments are modelled on the tools contained in the MA Act regarding assistance that can be provided to foreign countries, but are appropriately modified for the context of the ICC and IWCTs.

83. The right to privacy as it applies to some proceeds of crime tools has also been addressed in the discussion below under Schedule 2.

84. To the extent that the right to privacy is affected, the interference corresponds to the need for law enforcement agencies to effectively investigate and prosecute crimes of the most serious nature and to take proceeds of crime action. The limitation is proportionate because the measures are directly linked to this aim.

Prohibition on retrospective criminal laws

85. Article 15 of the ICCPR prohibits the retrospective operation of criminal laws, including the imposition of a heavier penalty than was applicable at the time when a criminal offence was committed. The prohibition does not generally extend to retrospective changes to other measures, such as procedure, provided that they do not affect the punishment to which an offender is liable.

86. Items 11, 60, 70, 79, 100, 139, 200 and 212 of the Bill contain application provisions for the amendments in Parts 1-8. These amendments would amend the procedural provisions of the ICC and IWCT Acts that relate to the provision of lawfully obtained material, the production of documents, access to stored communications, historical communications data, prospective telecommunications data, the use of surveillance devices, forensic procedures and proceeds of crime tools. The amendments will align the assistance Australia can provide to the ICC and IWCTs with the assistance that Australia can currently provide to foreign countries.

87. The application provisions would apply to:

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conduct, offences or crimes that took place

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property, information or documents acquired

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material requested

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stored communications, or

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documents required to be produced prior to the commencement of the Bill. The effect of these application provisions is that they would apply to requests, authorisations or applications made prior to the commencement of the Bill.

88. The provisions in Parts 1-8 of Schedule 1 would not criminalise or penalise conduct which was otherwise lawful prior to the amendments, as the provisions in these Parts are entirely procedural in nature. The commencement provisions in the Bill would not therefore engage the prohibition on retrospective criminal laws.

Conclusion

89. While some of the amendments to Schedule 1 engage with human rights, they do so in a reasonable and proportionate way and do not operate to limit or restrict those rights. As such, this Schedule is compatible with human rights.

Schedule 2-Amendments relating to mutual assistance in criminal matters

Outline of amendments

90. The MA Act provides the legislative basis for mutual assistance in Australia. Mutual assistance is the process by which countries provide formal government to government assistance in the investigation and prosecution of criminal offences, and related proceedings. Mutual assistance is a key tool in international crime cooperation and is used where evidence or information relating to a criminal investigation, prosecution or related proceeding is located in a foreign country.

91. These amendments to the MA Act in Schedule 2 will ensure that the provisions for the proceeds of crime investigative tools in the MA Act align with, and are consistent with, the Proceeds of Crime Act 2002 (POC Act) provisions to which they refer, or are modified appropriately for the foreign context. The amendments will also clarify the types of foreign proceeds of crime orders to which the MA Act applies and confirm that the MA Act applies to interim foreign proceeds of crime orders that are issued by non-judicial government bodies. They will also make other minor or technical changes to the MA Act to facilitate its operation.

Human rights implications

92. This Bill engages the following rights:

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privacy and reputation (Article 17 of the ICCPR)

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presumption of innocence (Article 14 of the ICCPR)

93. This Bill does not engage the following rights for the reasons explained below:

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prohibition on retrospective criminal laws (Article 15 of the ICCPR)

Privacy and reputation

94. The Bill engages the right to protection against arbitrary and unlawful interferences with privacy in Article 17 of the ICCPR as some of the amendments to the MA Act relate to search warrants. Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with their privacy, family, home or correspondence. Part 1 of Schedule 2 of the Bill provides that the proceeds of crime search warrants in the MA Act align with and are consistent with the POC Act provisions to which they refer. The amendments also ensure that the MA Act appropriately adopts or modifies the POC Act provisions in a way that is suitable for the foreign context.

95. 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.

96. In this Bill, the legitimate end is ensuring Australia can provide the fullest assistance to foreign countries to investigate and take proceeds of crime action in relation to the most serious of crimes. Lawful access to these tools will be subject to existing safeguards governing the use of this material for domestic purposes as well as requiring the approval of the Attorney-General in the majority of cases.

97. To the extent that the right to privacy is impinged, the interference must correspond to a 'pressing social need', that is, the need for law enforcement agencies to effectively investigate and take proceeds of crime action in relation to crimes of the most serious nature. The limitation is proportionate because the measures are directly linked to the legitimate aim being pursued.

98. Search warrants that authorise the entry and search of peoples' homes without their knowledge necessarily interfere with the right to privacy and home. However, the investigation and detection of serious crime is a legitimate purpose for which an individual's right to privacy and home might be impinged upon. The amendments in the Bill that relate to search warrants are minor and technical in nature and are consistent with the right to privacy contained in Article 17 of the ICCPR. The amendments seek to align terms with the POC Act and to provide clarity to existing terms used, appropriately for the foreign context.

Presumption of innocence

99. Article 14 of the ICCPR provides that a person has the right to be presumed innocent until found guilty according to law. The MA Act permits the Attorney-General to authorise a proceeds of crime authority to apply to register foreign restraining orders. A person's property may be restrained, frozen, seized or taken into official custody or control before a finding of guilt has been made, however these amendments will not limit or restrict a person's right to a presumption of innocence.

100. The amendments in the Bill do not change the way proceeds of crime orders currently operate, they will just confirm that the MA Act applies to foreign restraining orders made by non-judicial bodies. Currently, the MA Act does not specify whether these foreign restraining orders should be issued by judicial or non-judicial bodies. In some countries, restraining orders may be issued by bodies other than courts, such as investigative or prosecutorial agencies.

101. This will include action in relation to non-conviction based proceeds of crime orders; such orders are efficient and effective tools for restraining and forfeiting the proceeds of crime, especially where the identity of the person to whom the goods belong is unknown, the person has fled the jurisdiction, or where a prosecution is likely to be lengthy and that could prevent the timely forfeiture of criminal assets.

102. The Attorney-General's decision to assist a foreign country with registering a foreign restraining order will be subject to the safeguards in the MA Act, including all of the mandatory and discretionary grounds for refusal in section 8 of MA Act. The Attorney-General will maintain the general discretion to refuse a request to register an order where it is appropriate in all the circumstances to do so (paragraph 8(2)(g)). The Attorney-General will also have the ability to impose conditions on the provision of the assistance to the foreign country (section 9). In addition, the courts will retain the discretion to refuse to register the order if it is satisfied that it would be contrary to the interests of justice to do so (section 34A).

103. The amendments will make it clear that final proceeds of crime orders (foreign forfeiture orders and foreign pecuniary penalty orders) must be made by a court or other judicial authority.

Prohibition on retrospective criminal laws

104. Article 15 of the ICCPR prohibits the retrospective operation of criminal laws, including the imposition of a heavier penalty than was applicable at the time when a criminal offence was committed. The prohibition does not generally extend to retrospective changes to other measures, such as procedure, provided that they do not affect the punishment to which an offender is liable.

105. Items 23 and 28 of the Bill contain application provisions for the amendments in Part 1 and 2. These amendments would align procedural provisions of the MA Act relating to POC Act search warrants with those in the POC Act, amend procedural provisions of the MA Act relating to POC Act search warrants to provide clarity and amend procedural provisions of the MA Act relating to the production of documents or articles. The effect of these application provisions is that they would apply to property acquired, documents required to be produced or conduct that occurred prior to the commencement of the Bill. It would also apply to authorisations or applications for search warrant made prior to the commencement of the Bill.

106. Item 40 of the Bill contains application provisions for items 30 to 34 of Part 3. Part 3 would amend provisions in the MA Act to align them with the POC Act. This includes increasing the penalty provision for failure to comply with a notice given to a financial institution. Part 3 would also make amendments to provisions of the MA Act to provide clarity.

107. The effect of the application provisions in item 40 is that the amendments in Part 3 which relate to foreign forfeiture orders, foreign pecuniary penalty orders or foreign restraining orders would apply to orders made before the commencement of the Bill. Item 40 specifically notes that new subsection 34W(2), which inserts a defence to the offence of failing to comply with a notice given to a financial institution, applies in relation to a notice given on or after the commencement.

108. The provisions in Part 1 and 2 would not criminalise or penalise conduct which was otherwise lawful prior to the amendments, as the provisions in both Parts are entirely procedural in nature. The commencement provisions in the Bill would not therefore engage the prohibition on retrospective criminal laws. The provisions in Part 3 are similarly procedural, with the exception that item 40 would insert a defence to the offence of failing to comply with a notice given to a financial institution; however that item would not operate retrospectively. These amendments therefore would not engage the prohibition on retrospective criminal laws.

Conclusion

109. While the amendments to Schedule 2 engage with some human rights, they do so in a reasonable and proportionate way and do not operate to limit or restrict those rights. As such, Schedule 2 is compatible with human rights.

Schedule 3-Amendment of the Extradition Act 1988

Outline of amendments

110. Extradition is a key international crime cooperation tool. It is the process by which one country sends a person to another country to face criminal charges or serve a sentence. The Extradition Act 1988 (Extradition Act) provides the legislative basis for extradition in Australia. Under the Extradition Act, Australia can only accept extradition requests from countries that have been declared by regulation to be 'extradition countries' for the purpose of the Extradition Act.

111. The amendments contained in the Bill make amendments to sections 26 and 35 of the Extradition Act. Section 26 relates to the execution of a surrender warrant for extradition of a person from Australia to an extradition country and section 35 relates to the review of a magistrate's or judge's order in relation to extradition from Australia to New Zealand. The amendments to these sections clarify that where a surrender warrant has been issued for the extradition of a person on bail, the magistrate, judge or relevant court has the power to remand the person in custody to await their transfer.

Human rights implications

112. This Bill engages the following rights:

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the right to humane treatment in detention (Article 7 of the ICCPR)

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the right to freedom of movement (Article 12 of the ICCPR)

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the right to the security of the person and freedom from arbitrary detention (Article 9 of the ICCPR)

113. This Bill does not engage the following rights for the reasons explained below:

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expulsion of aliens (Article 13 of the ICCPR)

Right to humane treatment in detention

114. The amendments to the Extradition Act contained in the Bill positively promote the right to humane treatment in detention in article 7 of the ICCPR. Currently, where a person has been released on bail and a surrender or temporary surrender warrant is subsequently issued, magistrates, judges or relevant courts have the power to discharge the bail recognisances and detain the person in the custody of a police officer to await surrender. This amendment provides clarification that where a person is on bail and a surrender warrant is issued the magistrate, judge or relevant court has the power to remand the person to prison to await surrender.

115. Currently, where a surrender warrant is issued to a person on bail, paragraph 26(1)(ca) authorises a person to be taken into custody and before a magistrate, judge or relevant court for the discharge of bail recognisances. However, the Extradition Act does not expressly provide for a person to be committed to prison following discharge of those recognisances. It is appropriate that a person be committed to prison to await surrender, as the Extradition Act provides that the extradition country has two months from the issue of the surrender warrant to effect surrender. Correctional facilities are the only viable option for periods of custody of this duration.

116. Without the power for a magistrate to remand a person to prison while they await their transfer, the police may need to place the person in a remand centre in the custody of a police officer. Placing a person in a remand centre for a period of up to two months is not appropriate and could interfere with a person's right to humane treatment in detention, as remand centres do not have adequate facilities to hold a person for longer than a few days.

117. The amendments will ensure that where a person is held in custody following the issue of a surrender warrant they are able to be held in an appropriate prison facility.

Right to freedom of movement and the right to the security of the person and freedom from arbitrary detention

118. Given the amendments concern the power of a magistrate to remand a person following a surrender warrant, the right to freedom of movement (article 12 ICCPR) and the right to freedom from arbitrary detention (article 9 ICCPR) are engaged.

119. The limitation on these rights is reasonable and necessary given the serious flight risk posed in extradition matters and Australia's international obligations to secure the return of alleged offenders to face justice. Reporting and other bail conditions are not always sufficient to prevent individuals who wish to evade extradition by absconding. In extradition cases there is often an increased risk of persons absconding before they can be surrendered to the requesting foreign country. If a person who has been remanded on bail absconds during extradition proceedings, it jeopardises Australia's ability to extradite the person which in turn would impede Australia's treaty obligations to return a person to the requesting country. Ultimately, it can also lead to a state of impunity where a person can disappear and continue to evade law enforcement authorities. The validity of Australia's process of remanding a person during extradition proceedings has been confirmed by the High Court in Vasiljkovic v Commonwealth [2006] HCA 40.

120. The Extradition Act makes bail available, where there are special circumstances, to persons who have consented to extradition, have been determined eligible for surrender by a magistrate or are seeking review of the decision to surrender the person. This ensures that where circumstances justifying bail exist, the person will not be kept in prison during the extradition process. This is consistent with accepted international practice for a person to be held in administrative detention pending extradition proceedings. The Extradition Act provides that when a surrender warrant is issued, Australia has two months from the date of the warrant to transfer the person to the foreign country. This timeframe ensures that a person will not be held in custody indefinitely while awaiting transfer.

Expulsion of aliens

121. Although the amendments concern the arrangements surrounding the surrender of a person to a foreign country, Article 13 of the ICCPR regarding the expulsion of aliens is not engaged as the amendments comply with that article. The article states:

An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.

122. Where a person is subject to the extradition process and a surrender warrant is issued in relation to the person, section 21 of the Extradition Act provides that the person may apply for a review of that order. The amendments in the Bill do not alter the ability of a person to seek a review of a decision to extradite them to a foreign country.

Conclusion

123. While the amendments in schedule 3 engage with some human rights, they do so in a reasonable and proportionate way and do not operate to limit or restrict those rights. As such, Schedule 3 is compatible with human rights.

Schedule 4-Amendments relating to foreign evidence

Outline of amendments

124. Part 3 of the Foreign Evidence Act 1994 (FE Act) provides for the use of foreign evidence in Australian criminal proceedings and related civil proceedings. For example, the FE Act allows for testimony obtained in a foreign country to be adduced in Australian proceedings without the witness needing to be called in certain circumstances. Part 3 of the FE Act also establishes a process for certifying that the material adduced in court was received from a foreign country in response to a mutual assistance request.

125. The amendments in this Bill will extend the certification process to terrorism-related proceedings under Part 3A of the FE Act to provide consistency throughout the FE Act.

126. The amendments will also modify who can issue certificates under Part 3 of the FE Act (Use of Foreign Material in Criminal and Related Civil Proceedings). Subsection 26(3) of the FE Act currently provides that the Attorney-General may delegate the issue of certificates to a Senior Executive Service employee of the Attorney-General's Department. The amendments to section 26 will allow the delegation to go to a person with an appropriate level of seniority, not below the executive level, who has a close involvement in the matters to be certified. The issue of these certificates is routine and administrative in nature. This change to the delegation power will allow for reliability, flexibility and promptness while maintaining sufficient oversight.

127. Part 4 of the FE Act covers the use of foreign material and records of foreign business authorities in certain civil proceedings. Amendments to section 35 will ensure the certification requirements in Part 4 are consistent with the requirements throughout the FE Act. These amendments will clarify that the Chairperson or Deputy Chairperson of the Australian Securities and Investments Commission does not need to be satisfied that the foreign material is testimony. Rather, the task of determining whether material is testimony will be a matter for the court to consider.

128. Due to the particular drafting of section 20 of Part 3 of the FE Act, foreign evidence cannot currently be adduced in proceedings in all Australian non-self-governing territories. This is an unintended consequence arising from the drafting of section 20. The FE Act will be amended to extend the application of Part 3 of the FE Act to certain criminal and related civil proceedings in the external territories and the Jervis Bay Territory.

Human rights implications

129. This Bill engages the following rights:

•

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

Right to a fair trial and a fair hearing

130. The amendments to the FE Act contained in the Bill positively promote the right to a fair trial. Article 14 of the ICCPR protects the right to a fair trial by providing that everyone shall be entitled to a fair trial by a competent, independent and impartial tribunal established by law.

131. Extending the application of Part 3 to the external territories and the Jervis Bay Territory will allow foreign evidence that meets the criteria in Part 3 to be adduced in criminal and related civil proceedings in those territories. This amendment will ensure consistent application of these laws throughout Australia and its territories and to give parties to proceedings the opportunity to have a fair hearing. This amendment will guarantee that a party to a proceeding will not be prejudiced by not having an opportunity to adduce evidence from a foreign country.

132. The foreign evidence will be adduced in accordance with the safeguards in the FE Act. For example, section 25 provides the court with the discretion to direct that foreign material not be adduced in criminal and related civil proceedings notwithstanding that the material may otherwise meet all rules of evidence relating to the adducing of evidence if justice would be better served if the foreign material were not adduced as evidence.

133. Article 14 of the ICCPR also provides for the presumption of innocence and sets out minimum guarantees in criminal proceedings, including, at paragraph 3(e), that a person charged with a criminal offence shall have the right to examine, or have examined, the witnesses against him or her, and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her.

134. The proposed new sections 26, 27AA, and 35 of the FE Act engage an individual's right to a fair trial by enabling the use of evidentiary certificates. Evidentiary certificates may be provided under these proposed new sections to establish prima facie evidence that material adduced in proceedings was received as the result of a request made by the Attorney-General (or his or her delegate) to a foreign government or by ASIC to a foreign business authority. Such evidentiary certificates would be signed either by the Attorney-General (or his or her delegate) or the Chairperson of ASIC or the Deputy Chairperson of ASIC.

135. Evidentiary certificates under these proposed new sections will establish prima facie evidence, rather than conclusive evidence, of the matters contained within them. As such, the certificates will create a rebuttable presumption which the defendant may challenge during the court proceedings. In this way, the defendant's right to be presumed innocent and to test evidence against them is preserved. Furthermore, the certificates will be certifying routine procedural matters that go to administrative processes. The use of these certificates will also protect the public interest by not requiring confidential correspondence in criminal matters between foreign governments to be tendered in court.

Conclusion

136. The amendments in Schedule 4 are compatible with human rights as they positively engage with human rights issues.

Schedule 5-Protecting vulnerable persons

Outline of amendments

137. Schedule 5 will improve the protections in place to support vulnerable witnesses and victims in Commonwealth criminal proceedings, by clarifying existing provisions in the Crimes Act and amending the application of the Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Act 2013 (Vulnerable Witness Act).

138. Schedule 5 will amend section 15YR of the Crimes Act to ensure that the offence of publishing any matter without leave of the court that identifies, or is likely to identify, a child witness or vulnerable adult complainant also extends to child complainants. A child complainant may or may not be involved as a witness in the proceedings, and as such may not be protected by the current reference to a child witness. Child complainants were previously protected under section 15YR prior to the 2013 commencement of the Vulnerable Witness Act, which extended the offence to protect vulnerable adult complainants. The omission of child complainants from section 15YR was a drafting error in the Vulnerable Witness Act, and Schedule 5 of this Bill will restore the protection of child complainants' identities.

139. Schedule 5 will also amend the Vulnerable Witness Act to extend the application of the supports and protections in Schedule 2 of that Act to proceedings commenced after the commencement of Schedule 5 of this Bill. Currently, the supports and protections available under the Vulnerable Witness Act apply only to proceedings for alleged offences committed after the commencement of that Act. To avoid an overly complex and potentially inequitable system in which some victims and witnesses have access to certain supports and protections while some do not, this amendment will ensure that the full suite of supports and protections apply to all future proceedings, regardless of when the alleged offences were committed. While these amendments will mean that relevant supports and protections may apply in proceedings for acts committed prior to the entry into force of these amendments, the provisions are procedural in nature and do not affect the elements or penalties of any offence.

Human rights implications

140. Schedule 5 engages the following rights:

•

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

•

prohibition on retrospective criminal laws (Article 15 of the ICCPR), and

•

the right to privacy and reputation (Article 17 of the ICCPR).

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

141. 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. Schedule 5 engages the right to a fair trial by limiting the public availability of certain information relating to Commonwealth criminal proceedings involving child complainants.

142. Schedule 5 will extend the existing offence for the unauthorised publication of victim or witness names or identifying characteristics to child complainants, who may be victims of Commonwealth criminal offences relating to sexual exploitation, human trafficking, slavery or slavery-like practices such as forced marriage. As such, these amendments limit the right to public hearing in that they will restrict the ability of the press to publish, without judicial approval, identifying details of vulnerable victims or witnesses.

143. However, Article 14(1) of the ICCPR provides that the press and the public may be excluded from all or part of a trial for reasons of morals, public order or national security in a democratic society, or when the interest 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.

144. 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. Given the particular vulnerabilities of child complainants, to ensure the protection of the interests of the private lives of the victims, it is appropriate that the court be empowered to suppress evidence that identifies, or is likely to identify, a child complainant.

145. On this basis, Schedule 5 of the Bill serves the legitimate objective of protecting the privacy and reputation of child complainants and any limitation on a public hearing is reasonable, necessary and proportionate to achieving this objective.

Prohibition on retrospective criminal laws-Article 15 of the ICCPR

146. Article 15 of the ICCPR prohibits the retrospective operation of criminal laws. This prohibition does not generally extend to retrospective changes to other measures, such as procedure, provided they do not affect the punishment to which the offender is liable.

147. Schedule 5, Item 4 is an application provision which proposes the existing non-publication offence contained in section 15YR of the Crimes Act apply in relation to proceedings instituted after the commencement of Schedule 5, regardless of when the offences committed, or alleged to have been committed, occurred.

148. While this will mean the protections may apply in proceedings for conduct committed prior to the commencement of Schedule 5, the provision does not affect the elements or penalties of any offence, nor does it criminalise or penalise conduct which was otherwise lawful prior to the commencement of Schedule 5. Therefore, Schedule 5, Item 4 does not engage the prohibition on retrospective criminal laws.

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

149. Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with their privacy, family, home and correspondence, and prohibits unlawful attacks on a person's reputation. This right may be subject to permissible limitations, provided they are authorised by law and 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 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.

150. Schedule 5 promotes this right by ensuring the offence for the unauthorised publication of victim or witness names or identifying characteristics extends to child complainants, who may be victims of Commonwealth criminal offences relating to sexual exploitation, human trafficking, slavery or slavery-like practices such as forced marriage. This offence seeks to minimise the risk to child complainants of intimidation, additional trauma, fear for their personal safety or undue public embarrassment. On this basis, it is consistent with this right because it promotes the right to privacy and reputation of children who have allegedly been the victims of Commonwealth criminal offences.

Conclusion

151. Schedule 5 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 6-Slavery-like offences and relevant evidence

Outline of amendments

152. Schedule 6 will amend the Criminal Code Act 1995 (Criminal Code) to address ambiguity and inconsistencies in the offences relating to slavery and slavery-like practices, as well as clarify and expand the operation of existing provisions in Divisions 270 and 271.

153. Schedule 6 will expand the definition of debt bondage to specifically cover the condition of a person whose personal services are pledged by another person, as security for the other person's debt. Under the existing definition a person who pledges the services of another person under his or her control can be considered to be in a condition of debt bondage, but the person whose services are pledged cannot. The amendments will address this inconsistency.

154. Schedule 6 will also move the debt bondage offence from Division 271 of the Criminal Code to Division 270. This will allow debt bondage to be recognised as one the slavery-like offences criminalised under Division 270, ensuring it is properly conceptualised as one of the most significant practices by which offenders attempt to exercise the powers of ownership over their victims.

155. Schedule 6 will also expand the application of the existing relevant evidence provision in Division 270 to ensure a trier of fact can take into account relevant evidence (such as personal circumstances) in determining whether a person was incapable of understanding the nature and effect of a marriage ceremony, and whether a person was significantly deprived of personal freedom. This will allow an alleged victim's particular vulnerabilities to be considered in determining the elements of a broader range of slavery-like offences.

Human rights implications

156. Article 8 of the ICCPR provides that no one shall be held in slavery, servitude or forced labour. Schedule 6 includes a range of minor amendments to Divisions 270 and 271 of the Criminal Code which will ensure the effective operation of slavery and slavery-like offences, including servitude and forced labour. The amendments will clarify existing offences and procedural provisions and ensure Divisions 270 and 271 operate as intended, improving the Commonwealth's capacity to prosecute slavery and slavery-like offences. As such, Schedule 6 promotes the right to freedom from slavery, servitude and forced labour.

Conclusion

157. Schedule 6 is compatible with human rights because it promotes the protection of human rights and ensures clarity in the operation of serious criminal offences.

Schedule 7-Amendment of the War Crimes Act 1945

Outline of amendments

158. Schedule 7 will streamline the existing reporting requirements set out in the War Crimes Act 1945 (War Crimes Act) so that the Attorney-General is only required to report to the Parliament on the operation of the Act if an investigation or prosecution is commenced or carried out in the preceding financial year.

Human rights implications

159. The amendments in Schedule 7 do not specifically engage human rights. Schedule 7 does not affect the substantive provisions of the War Crimes Act, which specifically enables the prosecution of Australian citizens or residents who are known to have committed war crimes in Europe during the Second World War. The amendments will preserve the requirement to report on the operation of the War Crimes Act, which ensures Parliament will maintain oversight of investigations or proceedings commenced or carried on.

Conclusion

160. Schedule 7 is compatible with human rights.

Schedule 8-Amendment of the Australian Federal Police Act 1979

Outline of amendments

161. Schedule 8 amends the AFP Act to ensure the AFP internal alcohol and drug testing regime applies to the entire AFP workforce and that all persons directly affected will have access to the relevant alcohol and drug testing standards. Schedule 8 also amends the AFP Act to clarify and enhance processes for resignation in cases of serious misconduct or corruption.

Human rights implications

162. The amendments in Schedule 8 engage the right to work and rights in work. The right to work and rights in work is contained in articles 6(1), 7 and 8(1)(a) of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

163. Article 7 of the ICESCR recognises the right of everyone to just and favourable conditions of work.

164. The amendments extend the AFP internal alcohol and drug testing regime to the entire workforce and change the length of time the AFP Commissioner is authorised to extend an employee's date of resignation in certain cases, including where there is an ongoing investigation into the employee's conduct.

165. Schedule 8 extends the alcohol and drug testing provisions to the entire AFP workforce, including categories of personnel that are not currently required to comply with the legislative regime.

166. Currently, AFP appointees who are not covered by the existing regime are generally subject to alcohol and drug testing under contract.

167. It is appropriate to extend this regime to the entire workforce as testing for alcohol and drug use is a vital part of detecting and deterring illicit drug use, enforcing a zero tolerance policy and maintaining the integrity of the AFP.

168. For these reasons it is reasonable that all AFP appointees are subject to statutory requirements for drug and alcohol testing that apply consistently across the workforce within this legislation.

169. Schedule 8 also extends the length of time that the AFP Commissioner is authorised to postpone an employee's date of resignation in certain cases, including where there is an ongoing investigation into the employee's conduct.

170. The power to extend an employee's date of resignation already exists in the AFP Act. The amendments extend the length of time from 90 to 150 days.

171. It is appropriate to extend the length of time available to the Commissioner to ensure that the AFP Professional Standards is able to finalise internal investigations before an employee resigns. If an employee is able to resign before an internal investigation has been finalised by the AFP Professional Standards or the Commissioner has made a decision about termination, their record will not reflect the findings of the investigation.

172. Appropriate safeguards exist for this power. The Commissioner's power can only be used in the most serious cases of alleged and determined breaches-for example, cases involving serious misconduct, breach of criminal law, serious neglect of duty or allegations of corruption.

173. To support this, a decision to extend an employee's date of resignation will be made at a sufficiently senior level. Only the AFP Commission or his/her delegate will be authorised to postpone resignation.

174. Further, after the initial deferral of resignation for 90 days, the Commissioner will be authorised to approve an extension of up to 30 days, up to two times. This ensures that extensions beyond the initial 90 days are only sought in cases where the Commissioner is satisfied it is justified.

175. The resignation provisions will also be reviewed 5 years after the commencement to ensure they are operating as intended and only being used in appropriate circumstances.

176. This is an appropriate and reasonable extension to better support the AFP's integrity framework. Information about termination of employment for serious misconduct is critical to mitigate integrity and security risks, particularly given the breadth of government agencies that are involved in combating crime. The amendment also contributes to broader public sector resilience to the 'insider threat'.

Conclusion

177. Schedule 8 is compatible with human rights.

Schedule 9-Amendment of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006

Outline of amendments

178. Item 1 of Schedule 9 inserts a new subsection 53(9) of the AML/CTF Act to allow travellers departing from Australia to electronically report outgoing cross-border movements of physical currency. Travellers will continue to be able to complete a paper-form CBM-PC Report. The AML/CTF Rules will prescribe the relevant electronic system for giving outgoing currency reports. This amendment will also require persons carrying physical currency out of Australia on consignment, who wish to lodge an electronic report, do so via the system prescribed in the AML/CTF Rules.

179. Item 2 of Schedule 9 inserts a new subsection 54(1)(aa) of the AML/CTF Act to establish a rule-making power for prescribing the timing for lodging CBM-PCs electronically. This power will allow the AUSTRAC CEO to make a rule specifying the period during which a CBM-PC can be lodged electronically. Subsection 54(1)(aa) also stipulates a statutory limit for lodging an electronic CBM-PC, which is the time worked out under section 54(3). However, persons carrying physical currency out of Australia on consignment will continue to be subject to the relevant timing rule contained in subsection 54(1)(c).

180. Item 3 of Schedule 9 amends subsection 54(1)(b) to ensure that the applicable timing rule for lodging electronic outgoing currency reports is determined using the process described in the new subsection 54(1)(aa).

181. Item 4 of Schedule 9 amends subsection 54(3) to ensure that the prescribed period for lodging an electronic outgoing CBM-PC report is no later than that required to lodge a paper-form CBM-PC Report.

182. Item 5 of Schedule 9 clarifies that the amendments made by Schedule 9 in relation to cross-border movements of physical currency apply in relation to a movement of physical currency out of Australia after the commencement of the Schedule.

183. Item 6 of Schedule 9 inserts a new subsection 5(gf) of the AML/CTF Act to include the ACNC in the existing list of designated agencies, enabling it to access AUSTRAC information.

184. Item 7(1) of Schedule 9 clarifies that the amendment allows officers of the ACNC to disclose and access AUSTRAC information in accordance with the obligations of a designated agency after commencement of the Schedule, regardless of whether the information was obtained before, on or after commencement. Item 7(2) also notes that if AUSTRAC information is disclosed under the Act to an official of the ACNC before the amendment commences, the information is taken to have been disclosed to an official of a designated agency.

Human rights implications

185. Schedule 9 of the Bill engages the right to privacy and reputation under Article 17 of the ICCPR. Article 17 of the ICCPR prohibits unlawful and arbitrary interference with a person's privacy, family, correspondence or home. It also prohibits arbitrary attacks on a person's reputation.

186. Collecting, using, storing, disclosing or publishing personal information without a person's consent amounts to an interference with privacy. However, the right to privacy may be subject to permissible limitations which are provided by law and are not arbitrary. In order for limitations not to be arbitrary, they must seek to achieve a legitimate objective and be reasonable, necessary and proportionate to achieving that objective.

187. To the extent that the measures in Schedule 9 of the Bill limit the rights protected under Article 17 of the ICCPR, these limitations are not arbitrary, and are reasonable, necessary and proportionate to the achievement of legitimate objectives by strengthening Australia's anti-money laundering and counter-terrorism financing framework.

188. Schedule 9 of the Bill interacts with the right to privacy and reputation in a number of ways, each of which are considered in further detail below.

Electronic reporting of cross-border movements of physical currency

189. Currently, all travellers departing from Australia must provide a CBM-PC report in-person when carrying $10,000 or more in cash or foreign currency equivalent out of Australia. The AML/CTF Rules stipulate that the traveller's CBM-PC report should contain a range of personal information such as their residential address, date of birth and country or countries of citizenship.

190. While the CBM-PC report collects personal information and therefore engages the right to Article 17 of the ICCPR, this requirements accords with Australia's international obligations to combat money laundering and terrorism financing activity via the cross-border movement of physical currency. A number of countries, including the United States and the United Kingdom, collect this information from travellers.

191. The electronic form will collect the same amount of personal information as the paper-form CBM-PC report, while providing a more convenient method for travellers to meet their existing statutory obligation. Presently, if the movement of the physical currency is to be effected on an aircraft or ship, a report must be lodged at the time at which a traveller, before embarking, goes to the place at which Australian Border Force officers examine passports. The new electronic form will provide travellers with the opportunity to declare movements of physical currency before arriving at this point. However, travellers will continue to have the option of lodging a CBM-PC report in-person at the time they cross the border.

192. To the extent that this measure limits the rights protected under Article 17 of the ICCPR, these limitations are not arbitrary, and are reasonable, necessary and proportionate to the achievement of legitimate objectives in fulfilling Australia's international obligations to combat money laundering and the financing of terrorism. All information collected via the new electronic form will be subject to existing safeguards and properly protected by AUSTRAC and other enforcement agencies.

ACNC as a designated agency

193. Including the ACNC as a designated agency in the AML/CTF Act will enable it to access AUSTRAC information.

194. While AUSTRAC information might pertain to sensitive personal financial information and therefore engages the right to privacy under Article 17 of the ICCPR, adding the ACNC as a designated agency in section 5 of the AML/CTF Act will enable it to better protect and enhance public confidence in the Australian charity and NFP sector.

195. As a designated agency, the ACNC will be able to make timely and comprehensive assessments in relation to the money laundering and terrorism financing risks associated with charities when they register with the ACNC, be able to better detect, monitor and halt money laundering, terrorism financing and other criminal activities involving ACNC registered entities and monitor ongoing compliance with regulatory requirements.

196. This objective accords with Australia's international obligations to combat money laundering and terrorism financing activity through the appropriate and effective sharing of financial intelligence. To the extent that this measure limits the rights protected under Article 17 of the ICCPR, these limitations are not arbitrary, and are reasonable, necessary and proportionate to the achievement of legitimate objectives in fulfilling Australia's international obligations to combat money laundering and terrorism financing.

197. Although the amendments will result in the disclosure of AUSTRAC information to ACNC officials, Part 11 of the AML/CTF Act will continue to provide strict limitations on the use and disclosure of AUSTRAC information. In essence, the AML/CTF Act prohibits the disclosure of AUSTRAC information, regardless of the type or format, unless a specified exception applies.

198. Further, all financial intelligence collected, used, stored, disclosed or shared with the ACNC will be subject to existing safeguards for the use of personal information and properly protected by the ACNC, AUSTRAC and other enforcement agencies. In addition, under the AML/CTF Act, the ACNC can only be given access to AUSTRAC information if it undertakes to comply with the Australian Privacy Principles (APP) under the Privacy Act 1988.

Conclusion

199. Schedule 9 of the Bill is compatible with the human rights and freedoms. To the extent that these measures may limit those rights and freedoms, such limitations are reasonable, necessary and proportionate.

Schedule 10-Amendment of the Australian Crime Commission Act 2002

Outline of amendments

200. Schedule 10 will amend the Australian Crime Commission Act 2002 (ACC Act) to clarify use of the alternative names and acronyms for the Australian Crime Commission (ACC) (specified in the Australian Crime Commission Regulations 2002 (ACC Regulations)).

Human rights implications

201. The amendments in Schedule 10 do not specifically engage human rights. Schedule 10 does not affect the substantive provisions of the ACC Act (which already enable the ACC to be known by a name specified in the ACC Regulations). The amendments will clarify that the ACC's prescribed alternative names (or acronyms) can also be used in place of the term 'ACC' in other relevant expressions in the ACC Act, for example references to the ACC's functions, its staff and its Board.

Conclusion

202. Schedule 10 is compatible with human rights.

Schedule 11-Amendment of the AusCheck Act 2007

Outline of amendments

203. Schedule 11 to the Bill will make amendments to Parts 1 and 2 of the AusCheck Act 2007 (AusCheck Act) to enable background checks to be conducted for major national events.

204. AusCheck undertakes background checking activities within a legislative framework comprising the AusCheck Act and the AusCheck Regulations 2007 (AusCheck Regulations). Under the legislative framework, AusCheck currently only provides national security background checking services for the Aviation Security Identification Card (ASIC), Maritime Security Identification Card (MSIC), and National Health Security (NHS) check regimes.

205. The amendments to the AusCheck Act will enable AusCheck to undertake background checks on individuals in connection with major national events. The Bill authorises the Minister to declare an event a major national event if satisfied that it is in the national interest that the Commonwealth be involved in the conduct and coordination of background checks in connection with the accreditation of individuals in relation to the event.

206. The amendments would ensure that national security assessments can be facilitated through established mechanisms (the AusCheck scheme) which are well supported by technical channels. The proposed amendments will, where required, also enable Criminal History Information (CHI) to be obtained and assessed using well established protocols and procedures. This will help to mitigate certain risks arising out of large scale events of a national character by helping to identify individuals who pose serious risks, such as individuals of national security concern, and preventing their involvement in major national events.

207. The AusCheck scheme contains strong protections within the AusCheck Act for the management of personal information and in relation to information sharing practices. AusCheck is required to adhere to obligations under the Privacy Act 1988 (the Privacy Act). Section 13 of the AusCheck Act provides that the collection, use or disclosure of personal information is taken to be authorised by the AusCheck Act for the purposes of the Privacy Act if it relates to background checks under the AusCheck scheme. Section 14 of the AusCheck Act provides for the retention and subsequent use and disclosure of information in an AusCheck database, and the purposes for which information in the database may be used or disclosed.

208. The disclosure of information will continue to be protected by robust safeguards, including:

•

the privacy protections in the Privacy Act

•

criminal offences in section 15 of the AusCheck Act for the unlawful disclosure of AusCheck scheme personal information

•

the accreditation process for agencies seeking access to information and requirements relating to disclosure under the AusCheck Guidelines, and

•

memoranda of understanding with relevant authorities, and public reporting of disclosures of personal information from the AusCheck database to accredited agencies.

209. Information provided by AusCheck to other agencies will also be protected by these agencies' own privacy or secrecy obligations.

Human rights implications

The right to privacy-Article 17 of the ICCPR

210. Schedule 11 engages the right to privacy under article 17 of the ICCPR.

211. Article 17 of the ICCPR accords everyone the right to protection against arbitrary or unlawful interference with their privacy, family, home or correspondence. Accordingly, interferences with the right to privacy will be permitted provided they are not arbitrary and are authorised by law. In order for an interference with the right to privacy not to be 'arbitrary', the interference must be for a reason consistent with the ICCPR and be reasonable in the particular circumstances. Reasonableness in this context incorporates notions of proportionality, appropriateness and necessity. In essence, this will require that:

•

limitations serve a legitimate objective

•

limitations adopt a means that is rationally connected to that objective, and

•

the means adopted are not more restrictive than they need to be to achieve that objective.

212. The amendments in Schedule 11 will interact with the right to privacy in that they will require AusCheck to collect individuals' personal information in order to facilitate background checks of those individuals in connection with a major national event.

213. This information will fall within the definition of AusCheck scheme personal information under subsection 4(1) of the AusCheck Act. AusCheck scheme personal information can be disclosed to Commonwealth, state and territory agencies for specific purposes under the AusCheck Act. This interaction with the right to privacy is justified by the objective of the amendments. Further, there are robust legislative safeguards in place that will protect information that will be collected as a result of these amendments. These safeguards are consistent with the right to privacy.

214. The objective of the amendments is to address serious risks, such as national security and safety risks, related to large scale events of a national character. The objective of the amendments will be met by ensuring that persons who pose serious risks, such as persons of national security concern, are not able to work or volunteer at major national events. The collection of personal information in order to conduct a background check for an individual in these circumstances is reasonable and proportionate, given the potential risks. For example, if allowed to work or volunteer at a large event such as the Invictus Games, individuals of national security concern could increase the risk of a serious threat to security. Such an incident could pose serious risks to a very large number of attendees. Background checks on individuals seeking to be accredited to work or volunteer at the Invictus Games would help to mitigate this risk. The amendments would also help the Commonwealth to address risks relating to a significant event relating to trade, such as the G20.

215. The amendments are proportionate to addressing the serious risks that can arise at a major national event. Appropriate legislative safeguards are in place to protect the use and disclosure of AusCheck scheme personal information under the AusCheck Act. AusCheck scheme personal information is also subject to the privacy protections in the Privacy Act, including the Australian Privacy Principles.

216. AusCheck scheme personal information can only be shared for limited purposes in sections 14 and 14A of the AusCheck Act. Specifically, AusCheck can only share information with Commonwealth, state or territory authorities which perform law enforcement and national security functions. Section 15 of the AusCheck Act provides that it is an offence for a person to disclose information relating to the AusCheck scheme, including AusCheck scheme personal information. Section 15 of the AusCheck Act makes it a criminal offence to unlawfully disclose AusCheck scheme personal information. An offence under this section is punishable by up to two years imprisonment.

217. Information sharing arrangements are also governed by memorandums of understanding with relevant authorities.

218. Information provided by AusCheck to Commonwealth, state and territory agencies will also be protected by these agencies' own privacy or secrecy obligations.

219. The safeguards provide a robust framework that appropriately protects the disclosure of AusCheck scheme personal information.

The right to an effective remedy-Article 2(3) of the ICCPR

220. Schedule 11 engages the right to an effective remedy under article 2(3) of the ICCPR. The right to an effective remedy is an essential component of all the rights in the ICCPR. Both the UN Human Rights Committee and the Committee on the Elimination of Racial Discrimination have 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.

221. Individuals who receive an unfavourable outcome for a background check in relation to a major national event will have the right to appeal the decision in order for it to be reviewed. The review rights of an individual will depend on the how the background check is undertaken.

222. If the background check for the major national event comprises only of a national security assessment (which is conducted by ASIO), then the individual may apply to the security division of the Administrative Appeals Tribunal, in accordance with section 54(1) of the Australian Security Intelligence Organisation Act 1979 and section 27AA of the Administrative Appeals Tribunal Act 1975.

223. If the background check for the major national event also includes a criminal history assessment, and the individual wishes to apply for a review in that respect, then he/she can apply to the Administrative Appeals Tribunal for a review of the decision under regulation 12 of the AusCheck Regulations.

224. These review rights provide an effective remedy for individuals who are required to undergo a background check in connection with their accreditation in relation to a major national event.

Conclusion

225. Schedule 11 is compatible with human rights. To the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate in achieving the intended outcome to address risks relating to security and safety that may arise at major national events and to contribute to the national security and safety of Australia.