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2022-2023
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
CRIMES AND OTHER LEGISLATION AMENDMENT (OMNIBUS) BILL 2023
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be moved on behalf of the Government
(Circulated by authority of the
Attorney-General, the Hon Mark Dreyfus KC MP)
AMENDMENTS TO THE CRIMES AND OTHER
LEGISLATION AMENDMENT (OMNIBUS) BILL 2023
GENERAL OUTLINE
1. The purpose of the Crimes and Other Legislation Amendment (Omnibus) Bill 2023 (the
Bill) is to make minor and technical amendments to crime-related legislation. The
amendments are intended to update, improve and clarify the intended operation of key
provisions administered by the Attorney-General's portfolio.
Overview of Schedule 9 - Witness Protection
2. The measures in Schedule 9 of the Bill would amend the Witness Protection Act 1994
(Witness Protection Act) to ensure the Act is robust, efficient, contemporary and
provides effective assistance for participants under the National Witness Protection
Program (NWPP). These measures would:
a. clarify beyond doubt that all participants of previous Australian Federal Police
(AFP)-run witness protection programs are included under the
Witness Protection Act. Currently, there is ambiguity about the extent to which
the AFP can provide protection and assistance to past participants, which may
have consequences for the individual in maintaining their identity.
b. introduce a new provision to enable the AFP to temporarily suspend the
provision of protection and assistance under the NWPP in situations where a
participant's actions, or intended actions, may limit the AFP's ability to provide
protection and assistance. Protection and assistance may be suspended at the
request of the participant or at the discretion of the AFP.
c. modernise and streamline certain parts of the Witness Protection Act to ensure
consistency in delegations and to reflect current security standards, which will
reduce administrative burden on the AFP.
Overview of amendments to Schedule 9
3. The amendments to Schedule 9 of the Bill are intended to strengthen the operation of
clauses relating to powers that enable the AFP to temporarily suspend the provision of
protection and assistance to a participant in the (NWPP).
4. Firstly, the amendments to the Bill would insert a definition of
'Assistant Commissioner' into the Witness Protection Act, to clarify that
'Assistant Commissioner' is taken to mean an Assistant Commissioner of the AFP.
This is consistent with the definitions for 'Commissioner' and 'Deputy Commissioner'
in the Witness Protection Act.
5. The amendments would also ensure all decisions to suspend the provision of protection
and assistance under new section 17B of the Witness Protection Act are reviewable.
Currently, the Bill provides that suspension decisions made personally by the
Commissioner under new subsection 17B(1) are not reviewable.
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FINANCIAL IMPACT
6. Nil.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Crimes and Other Legislation Amendment (Omnibus) Bill 2023
1. The amendments to the Crimes and Other Legislation Amendment (Omnibus) Bill 2023
(the Bill) are compatible with the human rights and freedoms recognised or declared in
the international instruments listed in section 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011.
Overview of Schedule 9 - Witness Protection
2. The measures in Schedule 9 of the Bill would amend the Witness Protection Act 1994
(Witness Protection Act) to ensure the Act is robust, efficient, contemporary and
provides effective assistance for participants under the NWPP. These measures would:
a. clarify beyond doubt that all participants of previous AFP-run witness
protection programs are included under the Witness Protection Act. Currently,
there is ambiguity about the extent to which the AFP can provide protection and
assistance to past participants, which may have consequences for the individual
in maintaining their identity.
b. introduce a new provision to enable the AFP to temporarily suspend the
provision of protection and assistance under the NWPP in situations where a
participant's actions, or intended actions, may limit the AFP's ability to provide
protection and assistance. Protection and assistance may be suspended at the
request of the participant or at the discretion of the AFP.
c. modernise and streamline certain parts of the Witness Protection Act to ensure
consistency in delegations and to reflect current security standards, which will
reduce administrative burden on the AFP.
Overview of amendments to Schedule 9
7. The amendments to Schedule 9 of the Bill are intended to strengthen the operation of
clauses relating to powers that enable the AFP to temporarily suspend the provision of
protection and assistance to a participant in the (NWPP).
8. Firstly, the amendments to the Bill would insert a definition of
'Assistant Commissioner' into the Witness Protection Act, to clarify that
'Assistant Commissioner' is taken to mean an Assistant Commissioner of the AFP.
This is consistent with the definitions for 'Commissioner' and 'Deputy Commissioner'
in the Witness Protection Act.
9. The amendments would also ensure all decisions to suspend the provision of protection
and assistance under new section 17B of the Witness Protection Act are reviewable.
Currently, the Bill provides that suspension decisions made personally by the
Commissioner under new subsection 17B(1) are not reviewable.
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Human rights implications
10. The amendments to the Bill promote procedural fairness and the right to security of the
person.
The right to security of the person and freedom from arbitrary detention
11. The amendments to Schedule 9 of the Bill positively engage a person's right to security
under subarticle 9(1) of the International Covenant on Civil and Political Rights
(ICCPR), as the amendments ensure all decisions to suspend the provision of protection
and assistance to a participant under new section 17B--where the decision has been
made as a result of the participant's actions or intended actions--are reviewable.
12. Decisions to suspend protection and assistance under new section 17A--at the request
of the participant--remain exempt from review, as decisions made at the request of the
participant are not likely to have an adverse effect on the participant.
13. Amending the Bill to ensure all decisions under subsection 17B(1) are reviewable
would afford a participant procedural fairness in circumstances where they did not
request that their protection and assistance be suspended.
Conclusion
14. The Bill is compatible with Australia's human rights obligations because it promotes
rights, and to the extent that it may limit human rights, those limitations are reasonable,
necessary and proportionate.
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NOTES ON AMENDMENTS
CRIMES AND OTHER LEGISLATION AMENDMENT (OMNIBUS) BILL 2023
Schedule 9 - Witness Protection
Part 2 - Suspension of Protection and Assistance
Amendment 1 New clause 3A, page 24 (before line 3)
1. This amendment inserts new clause 3A into the Crimes and Other Legislation Amendment
(Omnibus) Bill 2023 (the Bill), which inserts a definition of 'Assistant Commissioner' into
section 3 of the Witness Protection Act 1994 (Witness Protection Act). The insertion of this
definition clarifies that references to 'Assistant Commissioner' throughout the Witness
Protection Act are taken to mean an Assistant Commissioner of the Australian Federal
Police (AFP).
Amendment 2 Clause 4, page 27 (after line 3)
2. This amendment updates clause 4 of the Bill by inserting new subsection 17B(9). This new
subsection clarifies that a suspension decision under new subsection 17B(1) may only be
made by a delegate or a sub-delegate of the Commissioner. This applies to all decisions
under new subsection 17B(1), other than a decision made as a result of a review under new
section 17C.
3. New subsection 17B(9) operates despite paragraph 34AB(1)(d) of the Acts Interpretation
Act 1901, which provides that a delegation by an authority does not prevent the
performance or exercise of a function, duty or power by the authority. This is appropriate to
ensure procedural fairness to individuals who may wish to seek review of a decision under
new subsection 17B(1) to suspend their protection or assistance under the NWPP.
Requiring these decisions to be made by a delegate of the Commissioner prevents situations
where the Commissioner personally makes a decision that could then not be reviewed by a
more senior officer.
4. The Bill vests the power to suspend protection and assistance under new section 17B in the
AFP Commissioner (the Commissioner). New subsections 25(4)-(6) specify the
Commissioner's powers under section 17B may be delegated to an
Assistant Commissioner, with the Assistant Commissioner able to sub-delegate these
powers to a Commander or Superintendent. A Commander or Superintendent may only
exercise powers under new section 17B in serious and urgent circumstances. By requiring
decisions under new subsection 17B(1) to be exercised by a delegate or sub-delegate, the
amendment ensures there is always a more senior officer available to review the decisions
made under subsection 17B(1).
5. This amendment reflects the operational reality that circumstances are likely to arise where
decisions on whether to suspend the provision of protection and assistance must be made
quickly. In these scenarios, it may be impractical to seek a decision from a senior decision-
maker. This amendment is consistent with the broader intention of the Bill to ensure that
these decisions can be made quickly by officers who are sufficiently proximate to the
operational circumstances.
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Amendment 3 Clause 4, page 27 (lines 5 to 12)
6. This amendment updates new subsection 17C(1) in clause 4 of the Bill to remove the
condition in new paragraph 17C(1)(b) that suspension decisions made personally by the
Commissioner under new subsection 17B(1) are not reviewable.
7. This amendment reflects the requirement in new subsection 17B(9) that requires decisions
under new subsection 17B(1) to suspend the provision of protection and assistance to be
made by a delegate or sub-delegate.
Amendments 4-5 Clause 4, page 27 (lines 15-17)
8. Amendment 4 provides that a person may apply to the Commissioner, rather than a Deputy
Commissioner (as currently provided for in the Bill) for a review of a suspension decision
made under new subsection 17B(1). This amendment reflects new subsection 17B(9),
which requires decisions under new subsection 17B(1) to suspend the provision of
protection and assistance to be made by a delegate or sub-delegate. The effect of this is to
ensure all decisions made under new subsection 17B(1) are reviewable.
9. Amendment 5 omits the reference to 'person to whom the application is made' in
subsection 17C(3) in clause 4 of the Bill and replaces it with 'Commissioner'. This
amendment specifies that if a review application is made under new subsection 17C(2), it is
the Commissioner who must have regard to the requirements in paragraphs 17C(3)(a) to
17C(3)(c) of the Bill.
10. The Commissioner may delegate the review powers in new section 17C in line with the
new delegation requirements in Amendment 6 below, which introduces new subsections
25(7) and 25(8)). A delegate exercising the review power in new section 17C must also
have regard to the requirements in paragraphs 17(3)(a) to 17(3)(c) of the Bill.
Amendment 6 Clause 5, page 27 (after line 33)
11. This amendment inserts new subsections 25(7) and 25(8) into clause 5 of the Bill.
12. New subsection 25(7) provides that the Commissioner's review powers under new section
17C may only be delegated to a member of the AFP who holds or occupies a designated
position. This allows the Commissioner to delegate the power to review decisions under
new subsection 17B(1) to the appropriate officers. For example, the Commissioner may
delegate the powers under new section 17C to a Deputy Commissioner, which would allow
them to review decisions made under new subsection 17B(1) made by an Assistant
Commissioner.
13. This new subsection also provides that the review powers may only be exercised by a
delegate who is of a higher rank than the official who made the decision that is being
reviewed. This ensures that a decision made by an officer of a higher rank (such as an
Assistant Commissioner) is not reviewed by an officer of a lower rank (such as a
Commander).
14. New subsection 25(8) clarifies that, where a sub-delegate makes a suspension decision
under new subsection 17B(1) by a sub-delegate, sections 34AA, 34AB and 34A of the Acts
Interpretation Act 1901 apply in the same way in which they would apply had the
suspension decision have been made by a delegate.
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