Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2013-2014
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
CRIMES LEGISLATION AMENDMENT (PSYCHOACTIVE SUBSTANCES AND
OTHER MEASURES) BILL
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments and New Clauses
to be Moved on Behalf of the Government
(Circulated by authority of the
Minster for Justice, the Hon Michael Keenan MP)
AMENDMENTS TO THE CRIMES LEGISLATION AMENDMENT
(PSYCHOACTIVE SUBSTANCES AND OTHER MEASURES) BILL 2014
GENERAL OUTLINE
The Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill
2014 contains a range of measures to improve Commonwealth criminal justice arrangements.
The proposed Government amendments to the Bill will:
implement the recommendation of the Senate Legal and Constitutional Affairs
Legislation Committee that the Bill exempt plants and their extracts from the ban on
the importation of new psychoactive substances in Schedule 1, and
amend the Anti-Money Laundering and Counter-Terrorism Financing Act 2006
(AML/CTF Act) to clarify the ability of the Australian Tax Office (ATO) to disclose
certain information obtained under section 49 of the AML/CTF Act and to add the
Independent Broad-Based Anti-Corruption Commission of Victoria (IBAC) as a
designated agency.
The Government amendments to Schedule 1 will clarify that the ban on importing
psychoactive substances in proposed section 320.2 of the Code will not affect plants, fungi
and their extracts that have a psychoactive effect when consumed by a person.
The Government amendments to Schedule 6 will amend the AML/CTF Act to strengthen the
Commonwealth anti-money laundering and counter-terrorism financing (AML/CTF)
legislative framework. In summary, these amendments will:
clarify that information obtained under section 49 of the AML/CTF Act is able to be
shared by the ATO, in particular with the taxpayer about whom the information
relates,
add the Victorian IBAC to the list of designated agencies that are authorised to access
AUSTRAC data, and
change the name of the Crime and Misconduct Commission of Queensland in the list
of designated agencies to the Crime and Corruption Commission of Queensland.
The Government amendments will enable AUSTRAC to share financial intelligence
information with IBAC, improving information sharing and enhancing IBAC's ability to
perform its functions. Enabling IBAC to access AUSTRAC information will enhance
IBAC's investigative abilities, in line with those of similar agencies in other jurisdictions.
FINANCIAL IMPACT
The exclusion of plants from the ban on the importation of psychoactive substances will have
no financial impact.
AUSTRAC will meet the ongoing costs of administering the AML/CTF measures within
existing resources.
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REGULATION IMPACT STATEMENT
The Office of Best Practice Regulation has advised that a Regulation Impact Statement (RIS)
is not required for either measure. As the Government amendments to the ban on the
importation of psychoactive substances were the result of parliamentary negotiation, they are
covered by the RIS attached to the Explanatory Memorandum for the Bill.
ACRONYMS
ACBPS Australian Customs and Border Protection Service
AML/CTF Anti-money laundering and counter-terrorism financing
AML/CTF Act Anti-Money Laundering and Counter-Terrorism Financing Act
2006
AUSTRAC Australian Transaction Reports and Analysis Centre
IBAC Independent Broad-Based Anti-Corruption Commission of
Victoria
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill
2014
The Government amendments 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.
Schedule 1 - Exclusion of plants and fungi from the import ban on new psychoactive
substances
Proposed subsection 320.2(1) of the Criminal Code creates an offence of importing a
substance that has a psychoactive effect. Subsection 320.2(2) sets out a range of exclusions
to that offence, including where the substance is regulated by another scheme or where its
importation is otherwise prohibited.
The Government amendments to Schedule 1 will add plants, fungi and their extracts as an
additional category of substances to which the offence in subsection 320.2(1) does not apply.
These amendments are made in response to the recommendation 1 of the Senate Legal and
Constitutional Affairs Legislation Committee's report on its inquiry into the Crimes
Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014 (Bill).
As these amendments only add an additional category of substances that are excluded from
the offence in subsection 320.2(1), they do not engage any human rights in addition to those
addressed in the Explanatory Memorandum to the Bill.
Schedule 6 - Amendments to the Anti-Money Laundering and Counter-Terrorism
Financing Act 2006
The objective of these amendments is to strengthen the Commonwealth anti-money
laundering and counter-terrorism financing (AML/CTF) legislative framework.
Specifically, the proposed amendments will:
(i) clarify the ability of the Australian Tax Office (ATO) to disclose certain information
obtained under section 49 of the Anti-Money Laundering and Counter-Terrorism
Financing Act 2006 (AML/CTF Act), in particular information relating to
international funds transfer instructions, enabling the ATO to catch tax cheats and
raise taxation revenue
(ii) enable the Independent Broad-Based Anti-Corruption Commission of Victoria
(IBAC) to access AUSTRAC information, enhancing its ability to investigate
corruption, and
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(iii)amend the list of designated agencies to reflect the name change by the Crime and
Misconduct Commission of Queensland, now the Crime and Corruption Commission
of Queensland.
Human rights implications
The amendments engage the following rights:
right to a fair trial, including to know the nature of the charge against oneself -
Article 14(3)(a) of the International Covenant on Civil and Political Rights (ICCPR)
protection against unlawful and arbitrary interference with privacy - Article 17 of the
ICCPR
The amendment to section 5 (paragraph (t) of the definition of designated agency) of the
AML/CTF Act is a minor amendment and does not engage any of the applicable rights or
freedoms.
Right to a fair trial - Article 14(3)(a) of the ICCPR
Article 14(3)(a) of the ICCPR provides that everyone charged with a criminal offence shall
have the right to be informed promptly and in detail in a language which they understand of
the nature and cause of the charge against them. The measures promote the right in Article
14(3) of the ICCPR.
The amendments clarify that the ATO can disclose certain information obtained under section
49 of the AML/CTF Act, enabling the ATO to disclose details about transactions obtained
from businesses regulated under the AML/CTF Act with the taxpayer about whom the
information relates.
The amendments will enhance the right conferred under Article 14(3)(a) of the ICCPR by
enabling the taxpayer to better know, understand and respond to the charge against them. For
example, when an individual sends money outside of Australia, or has money sent to them
from outside Australia, businesses regulated under the AML/CTF Act are required to report
this transaction to AUSTRAC. The ATO is able to access this information, and can use it to
match international funds transfers with taxpayers. When it appears that a taxpayer has
received income that has not been declared to the ATO, the ATO can use this information to
raise compliance assessments. This amendment provides clarity to ensure that the ATO is
able to disclose information about the international funds transfer to the taxpayer who made
or received the transfer, in order that he or she has full knowledge of the matter in responding
to the compliance assessment.
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Protection against unlawful and arbitrary interference with privacy - Article 17 of the
ICCPR
Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful
interference with their privacy. Collecting, using, storing, disclosing or publishing personal
information without a person's consent amounts to an interference with privacy.
The amendments engage the protection against unlawful and arbitrary interference with
privacy. To the extent that the measures may limit Article 17 of the ICCPR, those limitations
are reasonable, not arbitrary and accord with the objectives of the ICCPR.
The amendments clarify that the ATO can disclose certain information obtained under the
AML/CTF Act and amends the definition of `designated agency' in the AML/CTF Act to
include IBAC.
The amendments clarify that the ATO can disclose certain information obtained under the
AML/CTF Act to enable the ATO to share information received from regulated businesses
about funds transfers with the taxpayer from whom, or to whom, the transfer was made. The
ATO is already capable of accessing such information; this amendment simply provides
clarity about the ATO's ability to disclose such information. While such a disclosure will
involve personal information, engaging the right to privacy, this amendment will not limit the
right, as disclosures will be made to the person about whom the personal information relates.
The amendment adding IBAC as a designated agency will allow it to access AUSTRAC
information, which may include personal information. The collection, disclosure, storage or
use of personal information without a person's consent will engage, and limit, the protection
from arbitrary and unlawful interference with privacy in Article 17 of the ICCPR.
The right in Article 17 may be subject to permissible limitations, where the limitations are
lawful and are 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
ICCPR and be reasonable in the particular circumstances. The United Nations Human Rights
Committee has interpreted the requirement of `reasonableness' to imply that any interference
with privacy must be proportional to the end sought and be necessary in the circumstances of
any given case.
In this case, the limitations on Article 17 are reasonable, necessary and proportional as they
will enable criminal justice and corruption matters to be investigated. Enabling IBAC to
access AUSTRAC information will enhance the Commission's investigative abilities, in line
with those of similar agencies in other jurisdictions.
Conclusion
The Government amendments are compatible with human rights because they advance the
right for individuals to know the nature and cause of any charge against them. To the extent
that it may limit the protection against unlawful and arbitrary interference with privacy, those
limitations are reasonable, necessary and proportionate.
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NOTES ON ITEMS
Schedule 1, item 1 - Subsection 320.2(2)(ia) (after paragraph (i))
Subsection 320.2(2) sets out a range of categories of substances which may be psychoactive,
but which also have a legitimate use or their importation is controlled by another regime.
This subsection excludes these substances from the offence of importing a psychoactive
substance in subsection 320.2(1) with the effect that their importation will be dealt with under
the most appropriate regime.
Paragraph 320.2(2)(ia) excludes plants and fungi and their extracts from the offence in
subsection 320.2(1).
The offence in subsection 320.2(1) was not intended to capture plants, fungi and their extracts
that are imported for legitimate horticultural, botanical or agricultural purposes. Paragraph
320.2(2)(ia) is intended to provide importers of plants and fungi that may also have a
psychoactive effect when consumed by a person with certainty that their conduct is not in
breach of subsection 320.2(1).
For example, Sarah would not commit an offence against section 320.2 if she imported an
ornamental cactus that contains a substance that has a psychoactive effect when consumed by
a person. However, there may be other controls applying to the importation of the cactus,
such as quarantine requirements, the Criminal Code (where the cactus or the psychoactive
substance in it is listed as a controlled or border controlled plant) or the Customs (Prohibited
Imports) Regulations 1956 (where the cactus or the psychoactive substance in it as a
prohibited import).
Subsection 320.2(3) will continue to apply to plants, fungi and their extracts that would
otherwise be excluded from the offence in subsection 320.2(1). If a psychoactive substance
(other than one excluded by paragraphs 320.2(2)(a)-(l)) has been added to a plant, fungus or
extract, the offence in subsection 320.2(1) would capture the importation of that plant, fungus
or extract.
It is not necessary to exclude plants, fungi or their extracts from the offence in subsection
320.3(1) as this offence relates the presentation of the substance. Plants, fungi and their
extracts should not be presented in such a way that they are represented as having the same
psychoactive effects as an illicit drug or are a legal alternative to such a drug.
The exclusion of plants, fungi and their extracts from the offence in subsection 320.2(1) also
means that those substances are not `prohibited psychoactive substances', within the meaning
of subsection 183UA(1) of the Customs Act 1901.
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Schedule 6, item 2 - Section 5 (after paragraph (s) of the definition of designated
agency)
The definition of `designated agency' in section 5 of the AML/CTF Act lists certain federal,
state and territory agencies which have access to AUSTRAC information under Part 11 of the
Act.
This item adds IBAC to the definition of designated agency. Enabling IBAC to access
AUSTRAC information will enhance IBAC's ability to investigate corruption, in line with
the abilities of similar agencies in other jurisdictions.
Schedule 6, Item 2 - Section 5 (paragraph (t) of the definition of designated agency)
This item reflects the name change the Crime and Misconduct Commission of Queensland
underwent on 1 July 2014 to become the Crime and Corruption Commission of Queensland.
Item 3 - After paragraph 122(3)(g)
This item explicitly gives the Commissioner of Taxation and taxation officers power to
disclose information obtained under section 49 relating to reports of threshold transactions
and international funds transfer instructions for the purposes of, or in connection with, the
performance of the official's duties.
While taxation officers have a range of powers under the AML/CTF Act to disclose
information obtained under the AML/CTF Act (see in particular section 125) there was
previously some uncertainty about whether information obtained under section 49 was
capable of disclosure, due to the interaction between section 122 and other parts of the
AML/CTF Act (in particular section 125). This amendment makes clear that disclosures of
information obtained under section 49 relating to reports of threshold transactions and
international funds transfer instructions are capable of disclosure for the purposes of the
official's duties.
This item provides clarity and certainty to the ATO when disclosing such information,
enabling the ATO to disclose such information to individuals, in particular the taxpayers
about whom such information relates, with legislative certainty about the permissibility of
that disclosure.
Item 4 - After subsection 122(3)
This item makes clear that disclosures mentioned in subsection 355-50(2) of Schedule 1 to
the Taxation Administration Act 1953 would be considered disclosures that meet the criteria
of new subparagraph 122(3)(ga)(ii) (see item 3).
Item 5
This item ensures that the amendments made by items 3 and 4 apply to disclosures of section
49 information, regardless of whether that information was given under section 49 before, or
after, those items commenced.
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