House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Home Affairs, the Hon Peter Dutton MP)

Attachment A Statement of Compatibility with Human Rights

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

CRIMES LEGISLATION AMENDMENT (ECONOMIC DISRUPTION) BILL 2020

1. This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

2. The purpose of the Crimes Legislation Amendment (Economic Disruption) Bill 2020 (the Bill) is to enhance Commonwealth agencies' ability to undermine the business model of transnational, serious and organised criminal groups. These groups are profit-motivated, and employ a range of new technologies and methodologies to manage, move and disguise the origin of funds. Driven by the possibility of commercial benefit, organised crime groups no longer adhere to particular associations or crime-types, and instead fluidly adjust their activities to maximise their illicit gains and avoid law enforcement detection.

3. The Bill amends the Crimes Act 1914 (the Crimes Act), the Criminal Code Act 1995 (the Criminal Code), the COAG Reform Fund Act 2008 and the Proceeds of Crime Act 2002 (the POC Act).

4. Schedule 1 updates Commonwealth money laundering offences to address modern money laundering networks and remove unnecessary obstacles to securing convictions and appropriate sentencing outcomes. Money laundering networks are typically led by 'controllers' who issue directions to others to deal with particular money or other property, intentionally keeping these individuals ignorant of its criminal origins while operating at an arms-length to avoid criminal liability.

5. The amendments target these networks by:

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extending money laundering offences to persons who cause a criminal dealing with money or other property to occur, capturing the 'controllers' of these networks who do not typically deal with money or other property directly

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preserving current money laundering offences that require the prosecution to prove a link between money or other property and a class of indictable offence (as outlined in Lin v the Queen [2015] NSWCCA 204) while establishing new criminal offences requiring a link to only be established to 'proceeds of general crime'

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providing that, for the offence of attempting to commit a money laundering offence that requires a person to be reckless or negligent as to whether property is 'proceeds of general crime' or 'proceeds of indictable crime', recklessness will be the relevant fault element in relation to this circumstance

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introducing a new offence of dealing with money and/or other property valued at $1,000,000 or more where it is reasonable to suspect that the money and/or other property was 'proceeds of indictable crime'

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adding another tier of offences relating to money and/or other property valued at $10,000,000, and

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addressing a vulnerability in the mistake of fact exemption at section 400.10 of the Criminal Code as created by the Victorian Court of Appeal in Singh v the Queen [2016] VSCA 163.

6. Schedule 2 amends the Crimes Act to clarify that the obligations imposed on investigating officials under Part IC, including the requirement under section 23F, to caution a person who is under arrest or who is a protected suspect before starting to question the person, do not apply to undercover operatives. This also includes those obligations listed in Division 2, in their capacity as undercover operatives. The requirements imposed upon investigating officials in Division 2 relate to the arrest and detention of persons and would only be exercised by officers acting overtly. The purpose of this Schedule is to ensure that any evidence gained by undercover operatives is admissible (subject to the court's ultimate discretion regarding admissibility of any evidence). Further, this Schedule brings the definition of the term 'investigating official' under the Crimes Act into line with the Evidence Act 1995 (Evidence Act).

7. Schedule 3 amends the POC Act to ensure that criminal entities are not afforded an opportunity to buy back forfeited property and that, if this opportunity is made available to a person, the forfeited property is not bought back with illicit funds or unexplained wealth. This Schedule also grants law enforcement appropriate information-gathering powers to achieve these objectives and makes procedural changes to ensure that a person cannot use buy-back applications to unnecessarily delay proceedings.

8. Schedule 4 clarifies the definition of the term 'benefit' under the POC Act, explicitly providing that 'benefit' includes the avoidance, deferral or reduction of a debt, loss or liability. This could include, for example, the criminal evasion of import duties, excises or taxation. This amendment reflects the existing operation of the POC Act, which allows pecuniary penalty orders and literary proceeds orders to be made in relation to both a benefit gained and loss avoided through criminal conduct.

9. Schedule 5 clarifies that orders made by a court with proceeds jurisdiction under the POC Act can be made in respect of property located overseas. This reflects the existing operation of the POC Act, in conjunction with the operation of international asset recovery mechanisms and domestic legislation such as the Mutual Assistance in Criminal Matters Act 1987 (the MACMA), which extends the reach of the POC Act to property located overseas.

10. Schedule 6 strengthens information-gathering powers under the POC Act by increasing penalties for non-compliance and clarifying the circumstances in which information gathered under these powers can be disclosed and used. The Schedule also allows enhanced restraint and confiscation action to be taken where a person commits a non-compliance offence under section 195, 196 or 197A of the POC Act in relation to an examination notice.

11. Schedule 7 expands the Official Trustee in Bankruptcy's powers to deal with property, gather information and recover costs under the POC Act to allow the Official Trustee to discharge its functions in a more cost-effective manner.

12. In particular, Schedule 7 ensures the Official Trustee can use its powers to gather information and deal with property in relation to property forfeited under the POC Act or subject to a direction under existing sections 282 and 282A, allowing this property to be located and preserved during appeal periods. Amendments have also been made to allow the Official Trustee to tailor its written notices to obtain information in a more precise fashion and to clarify notice requirements when disposing of property by consent.

13. To assist the Official Trustee in meeting its cost-recovery obligations, Schedule 7 also makes amendments to allow the Official Trustee to recover its remuneration, expenses and costs directly from the Confiscated Assets Account, including those incurred under relevant provisions of the Mutual Assistance in Criminal Matters Act 1987, the Crimes Act and the Customs Act 1901. Minor amendments are also made to assist the Official Trustee in meeting its obligations under the A New Tax System (Goods and Services Tax) Act 1999.

14. Schedule 7 also transfers purely administrative tasks that are currently the responsibility of the Minister under the POC Act, including transferring property to a person under court order, to the Official Trustee. The Minister will be able to decide whether to transfer forfeited interests to a person where this is contested by a person who had this interest before forfeiture, and will be able to authorise a senior Departmental officer to exercise this power.

15. Schedule 7 also allows the Minister for Home Affairs to make payments from the Confiscated Assets Account to the States and Territories through the COAG Reform Fund, while maintaining the existing ability to provide direct grants to the States and Territories or other organisations such as local councils and community organisations.

Human rights implications

16. This Bill engages the following human rights:

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the right to life in Article 6 of the International Covenant on Civil and Political Rights (ICCPR)

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the right to freedom of movement in Article 12(1) of the ICCPR

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the right to the presumption of innocence in Article 14 of the ICCPR and Article 40 of the Convention on the Rights of the Child (CRC), the right to a fair trial and fair hearing in Article 14 of the ICCPR, and the right to minimum guarantees in criminal proceedings contained in Article 14(3) of the ICCPR

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the prohibition against retrospective punishment in Article 15 of the ICCPR, and

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the right to privacy in Article 17 of the ICCPR.

Right to life

17. Article 6 of the ICCPR provides that 'every human being has the inherent right to life' and that '[t]his right shall be protected by law.'

Schedule 6 - Information

18. Item 9 of Schedule 6 to the Bill may engage the right to life, as it amends the POC Act to allow information obtained through information-gathering powers to be disclosed to the 'Mutual Assistance Department' designated under the MACMA or an authority of a foreign country with functions corresponding to the functions of the 'Mutual Assistance Department' to assist in the prevention, investigation or prosecution of offences as well as assisting in the identification, location, tracing, investigation or confiscation of proceeds or instruments of crime.

19. Where the corresponding foreign authority is located in a foreign country that has not abolished the death penalty, there exists potential for the right to life to be engaged by the disclosure of information to the corresponding foreign authority as a result of the amendments in item 9.

20. However, the risk of the right to life being engaged by these amendments is mitigated by existing legislative requirements in the MACMA which prevent the provision of assistance to a foreign country where the death penalty may be imposed on the person subject to subsections 8(1A) and 8(1B) of the MACMA.

21. The MACMA expressly provides that a request by a foreign country for assistance must be refused if it relates to the investigation, prosecution or punishment of a person who has been arrested, detained, charged with, or convicted of, an offence in respect of which the death penalty may be imposed by the foreign country, unless the Attorney-General is of the opinion, having regard to the special circumstances of the case, that the assistance request should be granted. In addition, a request by a foreign country for assistance may be refused if the Attorney-General believes that the provision of the assistance may result in the death penalty being imposed on a person and, after taking into consideration the interests of international criminal cooperation, is of the opinion that in the circumstances of the case the request should not be granted.

22. The Explanatory Memorandum to Mutual Assistance in Criminal Matters Legislation Amendment Act 1996 provides that special circumstances of the case may include where the information would assist the defence, or where the foreign country undertakes not to impose or carry out the death penalty.

23. Item 9 of Schedule 6 is compatible with the right to life under Article 6 of the ICCPR as insofar as the disclosure of information to the Mutual Assistance Department, or the foreign equivalent, may potentially engage the right to life, existing legislative frameworks prohibit the provision of assistance to a foreign country where that assistance may result in the imposition of the death penalty.

Right to freedom of movement

24. Article 12(1) of the ICCPR provides that 'everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence'. Article 12(2) of the ICCPR states that 'everyone shall be free to leave any country, including his own'.

25. Pursuant to Article 12(3), these rights can be restricted by laws consistent with other rights in the ICCPR where this is necessary to protect national security, public order, public health or morals or the rights and freedoms of others.

(a) Schedule 3 - Buy-backs

26. Buy-back orders under the POC Act give a person an exclusive right to buy back property confiscated by the Commonwealth before it is disposed of by the Commonwealth, often by public auction.

27. Item 6 of Schedule 3 to the Bill may engage the right to freedom of movement, as it amends the POC Act to allow a court to make an examination order in relation to a person's application to buy back property under the POC Act. An approved examiner may issue an examination notice to a person subject to an examination order under section 183 of the POC Act, requiring the person to physically attend an examination at the time and place specified in the examination notice pursuant to subsection 186(1).

28. However, to the extent this item places a limitation on the right to freedom of movement, the limitation is necessary to protect public order by ensuring that illicit funds are not used to acquire forfeited property.

29. Currently, law enforcement does not have access to adequate information-gathering powers to properly investigate applicants for buy-back orders. As a result, there is a risk that criminal entities could buy back property through proxies or using illicit funds or unexplained wealth, perpetuating the laundering of illicit finances and unfairly denying other potential buyers an opportunity to purchase the property. Applying examination orders to buy-back applications will allow a responsible authority to test a person's claim that they are purchasing the property legitimately.

30. These reforms serve the legitimate objective of ensuring that criminal entities or their proxies do not illegitimately buy back forfeited property. The requirement to attend an examination is reasonable, necessary and proportionate in achieving the legitimate objective and is the least restrictive means of achieving the desired result.

31. In addition, there are less restrictive options for examination currently available under the POC Act. Under section 190, an approved examiner may direct that a person be examined by video link or by telephone in appropriate circumstances. This section ensures that physical attendance may not be required where it would cause unreasonable expense or inconvenience to a person and it is in the interests of justice that a person be examined through alternative means.

32. Item 6 of Schedule 3 is therefore compatible with the right to freedom of movement under Article 12 of the ICCPR as, to the extent that right is limited, it does so in a manner which is reasonable and proportionate to achieving the legitimate objective of protecting public order.

(b) Schedule 7 - Official Trustee

33. Item 26 of Schedule 7 promotes the right to freedom of movement by amending section 270 to allow a person to give evidence via video link or telephone to the Official Trustee, or a person authorised in writing to the Official Trustee, and by removing the requirement that a person attend the Official Trustee in person to produce books in their possession.

34. This gives the Official Trustee greater flexibility in using its powers under paragraph 270(1)(b) which, in its current form, require a person to give evidence or produce books by attending in person before the Official Trustee. This requirement has meant that persons subject to this power have needed to travel great distances to produce material that could have been conferred through electronic or other means.

Presumption of Innocence

35. Article 14(2) of the ICCPR states that those charged with criminal offences have the right to be presumed innocent until proved guilty. The presumption of innocence imposes on the prosecution the burden of proving the charge and guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt. Article 40 of the Convention on the Rights of the Child (CRC) also provides that a child should have the right to be presumed innocent unless proven guilty. To the extent that a minor is charged with any of the relevant offences, Article 40 of the CRC may also be engaged.

(a) Schedule 1 - Money laundering

36. Schedule 1 to the Bill engages these rights by creating new offences which engage the existing presumptions that particular elements of offences are satisfied in particular circumstances, and requiring the defendant to rely on exemptions to establish an absence of criminal liability.

37. The new offence provisions in this Schedule rely on the following existing presumptions and exemptions:

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Existing subsection 400.9(2) - This subsection contains statutory presumptions that determine the circumstances in which, under the new offences created by item 62 in Schedule 1, it will be reasonable to suspect that money or other property is proceeds of an indictable offence. Absolute liability also applies to this element of the offence under item 67.

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Existing subsection 400.9(5) - This subsection contains an exception which will apply to the offences at item 62 in Schedule 1, applicable where the defendant discharges a legal burden that he or she had no reasonable grounds for suspecting that the money or other property was derived or realised, directly or indirectly, from some form of unlawful activity.

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Existing section 400.10 (as amended by items 68-72 of the Bill) - This is the existing exemption of reasonable mistake of fact as to the value of money or other property, which applies to all offence provisions included in Schedule 1. Absolute liability applies to the physical element relating to the value of money or other property for each offence.

38. These rebuttable presumptions and exemptions are reasonable and necessary to target money laundering networks, which are structured to deliberately keep participants at an arms-length from relevant information to avoid criminal liability. This problem is compounded as, even where these structures are not adopted, money laundering is usually conducted separately from the predicate offence and by persons other than the perpetrators of the predicate offence. In this context, members of money laundering networks may only have a reasonable suspicion that money or other property was derived from crime, and may not be able to come to this conclusion with any greater certainty or particularity, but nonetheless, in the circumstances, it was reasonable that they should have suspected that the money or the property they were dealing with was the proceeds of crime.

39. In this context, the Australian Law Reform Commission's review 'Confiscation that Counts: A Review of the Proceeds of Crime Act 1987', at recommendation 28, recommended that rebuttable presumptions as to when it is reasonable to suspect that property is proceeds of crime be included in relevant offence provisions. This approach was subsequently adopted in subsection 400.9(2) and in applying absolute liability to the element that it is reasonable to suspect that money or other property is proceeds of crime.

40. The new offence provisions will engage existing exceptions. The existing exceptions at subsection 400.9(5) and section 400.10 are justified on the basis that a person's purpose for dealing with money or other property, or causing a dealing to occur, and the extent of their subjective awareness as to its tainted nature or value, are matters peculiarly within the person's knowledge, and the person ought to lead evidence of these facts rather than the prosecution. Requiring the prosecution to establish these subjective matters beyond reasonable doubt is often impossible to achieve in practice, and severely undermines law enforcement's ability to target organised crime networks.

41. The exception at subsection 400.9(5) must be proven to a legal standard of proof. This is appropriate given the knowledge and information the defendant has regarding the nature of their own dealing with money or other property, or the situation in which they caused this dealing to occur, and the difficulty that law enforcement has in obtaining or proving the existence of this information.

42. These presumptions and exceptions maintain the rights of the accused by providing that they are not criminally liable in appropriate cases.

43. The effect of the new offences created by item 62 of Schedule 1 is that a defendant will not be criminally liable for an offence where they were subjectively unaware of any facts that would raise a reasonable suspicion that money or other property was derived or realised, directly or indirectly, from some form of unlawful activity. These facts may objectively exist but, if the defendant is unaware of these facts, it is not appropriate that they be found criminally liable for dealing with this money or other property under section 400.9 of the Criminal Code. This ensures that these offences are reasonable and proportionate, as they allow for a person's subjective knowledge to be taken into account, allowing a person to avoid criminal liability where they were unaware of circumstances which indicated that money or property was derived from unlawful activity.

44. The effect of the exception at section 400.10 is that, where the person is less culpable about the element of the offence concerning the value of money or other property, then he or she should be subject to a lower maximum penalty for dealing with this money or other property or causing a dealing to occur. This exception, as amended, will not mean that the person is not criminally liable where they simply refuse to consider the value of the money or other property, or where their erroneous belief as to its value is discharged while they are dealing with the property. This addresses the typical behaviour of money laundering networks, wherein individuals are often kept wilfully blind as to the value of money or property, and may only discover its true value when dealing with it.

Conclusion

45. Schedule 1 therefore engages the presumption of innocence. To the extent that the right is limited, the limitation is reasonable, necessary and proportionate to the legitimate aim of protecting public order and ensuring that the multiple layers of organised crime networks from money mules to kingpins can be brought to justice.

Right to a fair trial and fair hearing, and minimum guarantees in criminal proceedings

46. Article 14 of the ICCPR provides two separate sets of obligations. Article 14(1) provides for the right to 'a fair and public hearing by a competent, independent and impartial tribunal established by law', both in the cases of a 'criminal charge' and the determination of one's rights and obligations in 'a suit at law'. The fair trial rights provided for in Article 14(1) include the privilege against self-incrimination.

47. Articles 14(2) to (7) then provide the minimum guarantees which apply to criminal proceedings only. Article 14(3)(g) of the ICCPR provides that, in the determination of any criminal charges against him, everyone shall be entitled not to testify against himself or confess guilt. The prohibition against self-incrimination, together with the right to be presumed innocent, also provides for a right to silence during investigations or in pre-trial questioning as well as at trial.

Schedule 2 - Investigation of Commonwealth offences

48. Schedule 2 of the Bill amends the definition of 'investigating official' in Part IC of the Crimes Act to clarify that undercover operatives are exempt from the obligations imposed on investigating officials under this Part, including the requirement under section 23F, to caution a person who is under arrest or a protected suspect before starting to question the person. The Schedule engages the right to a fair trial and fair hearing in criminal proceedings under Article 14 of the ICCPR and Article 40(1) of the CRC, and the minimum guarantees in criminal proceedings contained in Article 14(3) of the ICCPR and Article 40(2) of the CRC.

49. The Evidence Act includes an express exemption in the definition of 'investigating official' from the obligation to caution for investigating officials who are engaged in covert investigations under the orders of a superior. This exemption however, does not override Part IC of the Crimes Act to excuse an undercover operative's breach of that law, and therefore highlights a key inconsistency between the two Acts.

50. Further, Schedule 2 provides an exemption for undercover operatives from the broader requirements under Division 3, such as those in relation to the right to communicate with a friend, relative and legal practitioner (section 23G), questioning Aboriginal persons and Torres Strait Islanders (section 23H), questioning persons under the age of 18 (section 23K) and the right to an interpreter (section 23N). For example, section 23K provides that 'investigating officials' must not question a person under the age of 18 unless an interview friend is present while the person is being questioned and, before the start of the questioning, the official has allowed the person to communicate with the interview friend in circumstances in which, as far as practicable, the communication will not be overheard. The court also continues to have discretion to consider whether or not to admit evidence obtained by an undercover operative, on fairness or other public policy grounds.

51. Schedule 2 serves the legitimate objective of maintaining public order, by ensuring that any evidence gained by undercover operatives is not considered to have been obtained unlawfully, by reason of the fact that an undercover officer did not comply with the Part IC procedures, improving the Commonwealth's capacity to prosecute serious criminal offences. The amendments are necessary, since requiring compliance with the obligations contained in Part IC, including under sections 23F, 23G, 23H, 23K and 23N, would directly undermine any undercover activity undertaken by law enforcement officers. The amendments are reasonable and proportionate, as the court retains its discretion to consider whether or not to admit any evidence obtained in this way, on fairness or other grounds. The amendments made by Schedule 2 also bring the definition of the term 'investigating official' under the Crimes Act into line with the Evidence Act.

52. To the extent that this Schedule may limit the right to a fair trial and to minimum guarantees in the criminal proceedings, the limitations are reasonable, necessary and proportionate in achieving the legitimate objective.

Schedule 3 - Buy-backs

53. Sections 57A and 104A in Schedule 3 make changes to the procedures for applying for a buy-back order under the POC Act to encourage people to make an application prior to the forfeiture of property. The measure is aimed at the legitimate objective of assisting in the timely administration of the Act, aligning the procedure for buy-back orders with existing procedures for exclusion and compensation orders under existing sections 74, 78 and 94A, allowing a court to consider all these orders in the context of the forfeiture proceedings.

54. These sections may engage the right to a fair hearing in civil proceedings under Article 14(1) but do not engage the guarantees in criminal proceedings conferred by Article 14(2) to (7). Proceedings under the POC Act are characterised as civil proceedings under section 315 of the Act, and are heard by state and territory courts in accordance with relevant procedures of those courts. Neither the information-gathering powers nor subsequent civil proceedings under the Act involve determinations being made as to a person's guilt or innocence or the conferral of criminal liability.

55. While sections 57A and 104A may engage the right to a fair hearing, to the extent that they limit the right by requiring a person to make an application for a buy-back prior to the forfeiture of property, the measures are proportionate, as a person is still afforded the right to bring an application to buy back property in appropriate circumstances. Under subsections 57A(2)-(4) and 104A(2)-(4) a court can give leave for a person to bring an application after forfeiture if a person has not had a reasonable opportunity to exercise their claim prior to forfeiture, the person has new evidence that was relevant to their application that was not available before forfeiture, the person had a good reason for not making an application before forfeiture or if there are special grounds for granting the leave.

56. These protections ensure that to the extent that sections 57A and 104A engage the right to a fair hearing in civil proceedings, the limitation is reasonable, necessary and proportionate.

Schedule 6 - Information

57. Item 9 of Schedule 6 to the Bill provides that a person may disclose information obtained under the coercive information-gathering powers in the POC Act to particular authorities to assist in the prevention, investigation or prosecution of offences relating to non-compliance with obligations or requirements under the POC Act.

58. Items 4 and 13-17 of Schedule 6 also remove limitations on admitting information and documents obtained under production orders, examination orders and the Official Trustee's information-gathering powers in Division 2 of Part 4-1 of the POC Act in proceedings for offences of non-compliance with these information-gathering powers.

59. These items may engage the right to a fair trial in criminal proceedings, as they allow information and documents obtained under existing information-gathering powers to be used against the person who produced them to prove criminal non-compliance with these powers.

60. Any limitation these items place on the right to a fair trial in criminal proceedings, however, is clearly prescribed by law, and is necessary to achieve the legitimate objective of ensuring public order by enhancing the effectiveness of information-gathering powers, and subsequent civil restraint and confiscation action, against serious and organised criminal entities under the POC Act.

61. These amendments are necessary as, in most cases, the only evidence of non-compliance with information-gathering powers will be that provided in response (or in failing to respond) to the exercise of these powers. If this evidence could not be used in criminal proceedings, relevant non-compliance offences would be unenforceable. There would then be no effective deterrent to prevent persons from simply failing to abide by these powers which would defeat the purpose of having information-gathering powers.

62. For example, if a person is asked a question in an examination, and states that they are refusing to answer that question, the only available information to substantiate an offence of failing to answer the question under section 196 of the POC Act would be the person's response to the question, which is not currently expressly admissible under section 198. This would effectively allow the person to escape criminal liability, undermining the efficacy of examination notices.

63. These amendments are also proportionate in achieving the legitimate aim of ensuring the effectiveness of the information-gathering provisions. Under the proposed amendments, information or documents given in response to an information-gathering power under the POC Act can be used in criminal proceedings relating to non-compliance with the information-gathering power used (along with other uses in criminal proceedings already permitted under the POC Act).

64. Using the above example, if the person in the above examination admits to committing a foreign bribery offence in response to a question from an approved examiner, this answer is not admissible in criminal proceedings against the person for this admitted offending.

65. Any limitation that items 4, 9 and 13-17 of Schedule 6 place on the right to a fair trial in criminal proceedings is therefore permissible, as these limitations are prescribed by law and are necessary and proportionate in achieving the legitimate objective of ensuring the effectiveness of information-gathering powers under the POC Act.

Prohibition against retrospective punishment

66. Part 2 of Schedule 4 and Part 2 of Schedule 5 provide that particular amendments to the POC Act apply retrospectively.

67. 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.

68. This prohibition, however, does not extend to civil proceedings, such as the determination of a person's rights in non-conviction based asset recovery proceedings under the POC Act. The prohibition also does not extend to retrospective changes to procedure, practice or rules that do not affect the criminality of conduct or punishment to which an offender is liable.

69. The retrospectively-applied amendments referred to above relate to POC Act proceedings, and the treatment of information obtained pursuant to information-gathering powers under the POC Act. These amendments do not change any criminal offences or penalties imposed under these offences, and do not make any act or omission retrospectively criminal or retrospectively change penalties for criminal behaviour.

70. The retrospective application of amendments to the POC Act in the Bill therefore do not engage the prohibition on retrospective operation of criminal laws under Article 15 of the ICCPR.

Prohibition on arbitrary or unlawful interference with privacy

71. Article 17 of the ICCPR accords everyone the right to protection against arbitrary or unlawful interference with their privacy, family, home or correspondence. This includes the right to protection from interferences with a person's personal information and property, particularly where it is a family home. Interferences are permissible so long as they are authorised by law and are not arbitrary.

72. The term 'unlawful' in Article 17 means no interference can take place except in cases authorised by law. What is 'arbitrary' will be determined by circumstances of each case. In order for an interference with the right to privacy to not 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 these limitations serve a legitimate objective, adopt a means that is rationally connected to that objective and that are no more restrictive then they need to be to achieve this objective.

Schedule 3 - Buy-backs

73. Items 6-12 of Schedule 3 to the Bill may engage the protection against interference with a person's personal information under Article 17 of the ICCPR, as these items amend the POC Act to allow a court to make an examination order in relation to a person's application to buy back property under the Act, and a production order to determine if a person will buy back property with property derived from, or used or intended to be used in connection with, unlawful activity. Under these information-gathering powers, a person may be required to disclose personal information.

74. To the extent these amendments engage the protection against interference with privacy, they are not unlawful as they are authorised by law. They are also not arbitrary, as these amendments are necessary to ensure that forfeited property is not re-acquired by criminal elements acting either directly, or by proxy.

75. The amendments at Schedule 3 are necessary to achieve this objective as law enforcement currently does not have access to adequate information-gathering powers to properly investigate applicants for buy-back orders. As a result, there is a risk that criminal entities could buy back property through proxies or by using illicit funds or unexplained wealth, unfairly denying other potential buyers an opportunity to purchase the property and potentially perpetuating the cycle of laundering illicit funds through seemingly legitimate purchases.

76. The amendments are rationally connected to this aim as ensuring that examination orders and production orders can be used in relation to buy-back applications will allow a responsible authority to test a person's claim that they are purchasing the property legitimately and were unaware of, and played no role in, the criminal offending giving rise to forfeiture.

77. Production orders and examination orders must be made by magistrates in their personal capacity and the courts respectively, which will retain the discretion not to make these orders for any reason under proposed sections 181A and 181B and existing section 202 of the POC Act. Production orders can also only be obtained to gather a narrow range of documents, namely those that are in the possession, or under the control, of a corporation or are used, or intended to be used, in the carrying on of a business.

78. Information obtained under these information-gathering powers can be disclosed to specific authorities where a person believes on reasonable grounds that the disclosure will serve a purpose provided under subsection 266A(2) of the POC Act. Disclosure can be made, for example, to the Australian Taxation Office for the purpose of protecting public revenue.

79. Under section 266A, as amended by Schedule 6 to the Bill, information can be disclosed to an investigative or prosecutorial body for the purpose of investigating or prosecuting a crime punishable by at least 3 years imprisonment, or a non-compliance offence relating to the POC Act. The evidence given by a person in response to a production order or examination notice will also not be admissible in criminal proceedings against the person, unless these proceedings relate to non-compliance with the relevant information-gathering power used under the POC Act or are otherwise specified under the POC Act.

Schedule 6 - Information

80. Items 4 and 7-18 of Schedule 6 to the Bill may also engage the protection against interference with a person's personal information under Article 17 of the ICCPR as they expand the circumstances in which information or documents obtained using information-gathering powers under the POC Act can be disclosed and used. Information or documents could include personal information.

81. These amendments, however, are necessary to protect public order by ensuring that information-gathering powers under the POC Act remain effective in targeting serious and organised crime, and are rationally connected to this objective.

82. The amendments at item 8 are necessary as information gathered by the Official Trustee under Division 2 of Part 4-1 of the POC Act is currently not included within the permissible disclosure framework of current section 266A, raising doubts as to whether this information can be disclosed to relevant authorities, and for the vital purposes, outlined in this section. Item 8 addresses this issue by bringing information obtained under Division 2 of Part 4-1 into the framework of section 266A, clarifying that the Official Trustee can disclose this information to specific authorities for specific purposes, including to further POC Act investigations or enforce non-compliance offences relating to the POC Act.

83. The amendments at item 9 are necessary as there are currently doubts as to whether information gathered under sworn statements under an order made under paragraphs 39(1)(ca), (d) or (da), or under a power in Chapter 3 of the POC Act, can be disclosed to authorities for purposes that are vital to maintaining the effectiveness of the POC Act. The item addresses this issue by allowing information to be disclosed to:

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Commonwealth, State or Territory investigatory and prosecutorial authorities for the purposes of investigating an offence of non-compliance with the Act

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the authority responsible for the Extradition Act 1988, the Foreign Evidence Act 1994 and the MACMA to facilitate the performance of its functions under these Acts, and

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authorities of a foreign country with functions corresponding to the above Acts to prevent, investigate or prosecute an offence that would also be an offence if committed in Australia, punishable by at least 3 years or for life, or assisting with a proceeds investigation.

84. The amendment at item 10 is necessary to allow information obtained under the POC Act to be disclosed to professional disciplinary bodies to enable or assist the body to perform their functions. This ensures that evidence of a serious breach of professional standards can be passed on to these bodies, assisting them in investigating professional facilitators of serious and organised crime. Item 10 is also necessary to ensure that information obtained under the POC Act can be disclosed to the International Criminal Court and the International War Crimes Tribunal to perform their respective functions.

85. The amendments at items 4 and 13-17 remove limitations on admitting information and documents obtained under production orders, examination orders and the Official Trustee's information-gathering powers in Division 2 of Part 4-1 of the POC Act in proceedings for offences of non-compliance with these information-gathering powers.

86. These amendments are necessary as, in most cases, the only evidence of non-compliance with information-gathering powers will be that provided in response to the exercise of these powers. If this evidence could not be used in criminal proceedings, relevant non-compliance offences would be unenforceable, and there would be no effective deterrent to prevent persons from simply failing to abide by these powers.

87. For example, if a person is asked a question in an examination, and states that they are refusing to answer that question, the only available information to substantiate an offence of failing to answer the question under section 196 of the POC Act would be the person's response to the question, which is not currently admissible under section 198.

88. The amendments are also no more restrictive than they need to be to achieve this objective.

89. Information-gathering powers under the POC Act can only be exercised if appropriate approvals are given. Information-gathering powers under paragraphs 39(1)(ca), (d) or (da) and Chapter 3 of the POC Act (with the exception of Part 3-3) may only be exercised under a judicial order, and it remains open to the judiciary not to issue such an order should they see fit.

90. Notices to financial institutions under Part 3-3 may only be issued by senior officers under subsection 213(3) if the officer reasonably believes that giving the notice is required to determine whether to take action under the POC Act or in relation to POC Act proceedings. The Official Trustee's information-gathering powers under Division 2 of Part 4-1 may only be exercised in relation to the Official Trustee's duties or powers under the Act, which are limited to administering the Confiscated Assets Account, and only apply to restrained property placed under their custody and control, forfeited property or property subject to a confiscation direction under section 282 or 282A of the POC Act.

91. A person may disclose information obtained under these powers to the authorities in subsection 266A(2) if they believe on reasonable grounds that it will serve a purpose outlined in this subsection. It remains open to a court to prohibit the disclosure of information to particular authorities for particular purposes.

92. The evidence obtained under a production order or examination notice, however, will not be able to be used against the person, and will not be admissible in criminal proceedings against the person, unless these proceedings relate to non-compliance with the relevant information-gathering power used under the POC Act or other proceedings listed in the relevant provisions.

93. In so far as Schedule 6 to the Bill interferes with the right to privacy, this interference is therefore lawful and not arbitrary, and is reasonable, necessary and proportionate in achieving the legitimate objective of maintaining public order.

Schedule 7 - Official Trustee

94. Currently, the Official Trustee's powers to obtain information and deal with property under Divisions 2 and 3 of Part 4-1 can only be exercised in relation to 'controlled property', defined as restrained property that is subject to a custody and control order under section 38 of the POC Act.

95. Schedule 7 to the Bill expands these powers to allow the Official Trustee to also exercise them in relation to property that is subject to a forfeiture order, property forfeited under section 92 of the POC Act, or property subject to a direction under sections 282 and 282A of the POC Act. This expansion engages the protection against arbitrary or unlawful interference with a person's personal information or their family home under Article 17 of the ICCPR, as it allows the Official Trustee to gather information about property, and exercise powers to deal with the property, including by disposing of or destroying it, including while appeal periods are ongoing.

96. Any interference with this protection by the Official Trustee is expressly authorised by law.

97. Any interference is also not arbitrary, as the amendments in Schedule 7 to the Bill are necessary to allow the Official Trustee to gather information and discharge its obligations under the POC Act to preserve the value of property that has vested in the Commonwealth during appeal periods.

98. Once property is confiscated by the Commonwealth and all relevant appeal periods have ended, the Official Trustee is generally under an obligation to dispose of the property and credit the proceeds to the Confiscated Assets Account (see sections 70, 100 and 284). Once property is forfeited to the Commonwealth, however, the Official Trustee can no longer exercise its information-gathering powers and power to preserve property, leaving the Official Trustee unable to properly exercise its powers or discharge its functions during appeal periods, despite, in the case of property subject to a forfeiture order or property forfeited under section 92, the property having vested absolutely in the Commonwealth.

99. This is problematic as appeal periods in complex matters can stretch over years and, without the ability to exercise its statutory powers, the Official Trustee has previously been unable to locate confiscated property or preserve its value. This can occur, for example, where property has been sent offshore in breach of a restraining order and its location is no longer known. This impacts negatively on both the Commonwealth and others with a legitimate interest in the property, as the value of this interest either cannot be realised or may depreciate.

100. The amendments are also no more restrictive than they need to be to achieve this objective.

101. The Official Trustee's powers and duties in dealing with forfeited property or property subject to a direction under section 282 or 282A under the POC Act is limited, and is primarily confined to taking custody and control of this property and preserving its value.

102. The Official Trustee can only exercise its information-gathering powers under Division 2 of Part 4-1 in relation to its limited role. If a person gives information or a document to the Official Trustee under these information-gathering powers, the information or the giving of the document is not admissible in evidence in criminal proceedings against the person, except for offences of non-compliance with these information-gathering powers and other specific criminal proceedings listed in the POC Act. Information obtained using these powers may be disclosed to specific authorities for specific purposes under section 266A (as amended by Schedule 6 to the Bill).

103. Similarly, the Official Trustee may only dispose of or destroy property using its powers in Division 3 of Part 4-1 in limited circumstances. Property may be destroyed only if it is in the public interest to do so or it is required for the health or safety of the public. Property may only be disposed of with the agreement of all parties with an interest in the property; if the property is likely to lose value in the opinion of the Official Trustee; if, in the opinion of the Official Trustee, the costs of controlling the property are likely to exceed or be a significant proportion of the value of the property when it is finally dealt with; or if the disposal is necessary to pay a legal aid commission's costs.

104. The Official Trustee must notify any person it believes may have an interest in the property under section 279 and, if a notified person objects in writing within 14 days of receiving the notice, the Official Trustee must apply for a court order under section 280 if it wishes to proceed with the proposed destruction or disposal. The court has broad discretion under section 280 to decline to make such an order.

105. If property is sold, the proceeds of this sale will be taken to be covered by the restraining order or forfeiture order that covered the property under section 281. This ensures that, if a forfeiture order, a conviction resulting in automatic forfeiture of property under section 92 or a direction under section 282 or 282A is overturned on appeal and ceases to have effect, an amount equal to the value of the person's interests in the property will be returned to them. The Official Trustee will not be permitted to credit the sale proceeds to the Confiscated Assets Account until all relevant appeal periods have ended.

106. In so far as Schedule 7 to the Bill interferes with the right to privacy, this interference is therefore lawful and not arbitrary, and is reasonable, necessary and proportionate to the legitimate objectives.

Conclusion

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