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2010 - 2011
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
Extradition and Mutual Assistance in Criminal Matters Legislation Amendment
Bill 2011
REVISED EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Justice
the Honourable Brendan O'Connor MP)
THIS MEMORANDUM TAKES ACCOUNT OF AMENDMENTS
MADE BY THE HOUSE OF REPRESENTATIVES
TO THE BILL AS INTRODUCED
Extradition and Mutual Assistance in Criminal Matters Legislation Amendment
Bill 2011
GENERAL OUTLINE
This Bill will amend the Crimes Act 1914, the Extradition Act 1988, the
Mutual Assistance in Criminal Matters Act 1987, the Migration Act 1958, the
Proceeds of Crime Act 2002, the Surveillance Devices Act 2004 and the
Telecommunications (Interception and Access) Act 1979.
Extradition and mutual assistance are key international crime cooperation
tools. Extradition 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 provides the legislative basis for extradition in
Australia.
Mutual assistance is the formal Government to Government process countries
use to assist one another in the investigation and prosecution of criminal
offences. Mutual assistance can also be used to locate and recover the
proceeds of crime. The Mutual Assistance in Criminal Matters Act 1987
provides the legislative basis for mutual assistance in Australia.
Scope of the reforms
Extradition and mutual assistance, as formal Government to Government
processes, are complemented by less formal relationships between Australian
law enforcement agencies and their international counterparts. The reforms
in this Bill are focused on Government to Government assistance and, with
some minor exceptions, do not affect forms of agency to agency assistance.
PURPOSE
The Bill comprises four schedules.
Schedule 1 contains general amendments which relate to both extradition and
mutual assistance. The purpose of the amendments in this Schedule is to:
. enable Federal Magistrates to perform functions under the Extradition
Act and the Mutual Assistance Act, and
. clarify privacy and information disclosure provisions relating to
extradition and mutual assistance processes.
Schedule 2 contains amendments relating to extradition. The purpose of the
amendments in this Schedule is to:
. reduce delays in extradition processes by streamlining the early
stages of the extradition process
. extend the availability of bail in extradition proceedings
. allow a person to waive the extradition process, subject to certain
safeguards
. extend the circumstances in which persons may be prosecuted in
Australia as an alternative to extradition
. allow a person to consent to being surrendered for a wider range of
offences
. modify the definition of 'political offence' to clarify this ground of
refusal does not extend to specified crimes such as terrorism, and
. require Australia to refuse to extradite a person if he or she may be
prejudiced by reason of his or her sex or sexual orientation following
surrender.
Schedule 3 contains amendments relating to mutual assistance. The purpose
of the amendments in this Schedule is to:
. increase the range of law enforcement tools available to assist other
countries with their investigations and prosecutions, subject to
appropriate safeguards
. streamline existing processes for providing certain forms of
assistance to other countries
. strengthen protections against providing assistance where there are
death penalty or torture concerns in the requesting country
. amend other grounds on which Australia can refuse to provide mutual
assistance to other countries, and
. streamline the process for authorising proceeds of crime action, and
allow registration and enforcement of foreign non-conviction based
proceeds of crime orders from any country.
Schedule 4 contains technical contingent amendments. This is because the
Bill contains amendments which are contingent upon the commencement of
amendments in other Bills currently before Parliament.
FINANCIAL IMPACT STATEMENT
The amendments in this Bill have no financial impact on Government revenue.
ACRONYMS
AAT Administrative Appeals Tribunal
AFP Australian Federal Police
Crimes Act Crimes Act 1914
Cybercrime Bill Cybercrime Legislation Amendment Bill 2011
DPP Director of Public Prosecutions
Extradition Act Extradition Act 1988
MA Act Mutual Assistance in Criminal Matters Act 1987
Migration Act Migration Act 1958
POC Act Proceeds of Crime Act 2002
SD Act Surveillance Devices Act 2004
TIA Act Telecommunications (Interception and Access) Act 1979
UNCAT United Nations Convention against Torture and other Cruel, Inhuman or
Degrading Treatment or Punishment
NOTES ON CLAUSES
Clause 1: Short Title
This clause provides that when the Bill is enacted, it is to be cited as
the Extradition and Mutual Assistance in Criminal Matters Legislation
Amendment Act 2011.
Clause 2: Commencement
This clause sets out when the various parts of the Act are to commence.
Sections 1 to 3 of the Act will commence the day after this Act receives
the Royal Assent.
Schedule 1, Schedule 2, items 1 to 34, Schedule 2, items 36 to 139,
Schedule 3, items 1 to 49, Schedule 3, items 51 and 52 and Schedule 3,
items 54 to 168 will all commence on a single day to be fixed by
proclamation. However, if proclamation does not occur within the period of
six months beginning on the day this Act receives Royal Assent, these
provisions will commence on the day after the end of that period.
The commencement of the remainder of the provisions in the Bill is
contingent on other Bills before Parliament. The commencement of these
provisions is briefly set out below but is explained in further detail in
the discussion of Schedule 4 of this Bill.
Schedule 2, item 35 and Schedule 4, item 1 are both contingent on the
Migration Amendment (Complementary Protection) Act 2011. Schedule 2, item
35 will commence on a single day to be fixed by proclamation. However, if
item 20 of Schedule 1 to the Migration Amendment (Complementary Protection)
Act 2011 commences before that time, this provision will not commence at
all.
Schedule 4, item 1 will commence on the later of the two following dates:
i) a single day to be fixed by proclamation, and
ii) immediately after the commencement of item 20 of Schedule 1 to the
Migration Amendment (Complementary Protection) Act 2011.
However, this provision will not commence at all if the event mentioned in
(ii) does not occur.
The commencement of Schedule 3, items 50 and 53 and Schedule 4, items 2 to
4 depend on whether the Cybercrime Legislation Amendment Act 2011 has
commenced.
Schedule 3, items 50 and 53 will commence on a single day to be fixed by
proclamation. However, if item 2 of Schedule 2 to the Cybercrime
Legislation Amendment Act 2011 has not commenced before that time, these
provisions do not commence at all.
Schedule 4, items 2 and 4 will also commence on a single day to be fixed by
proclamation. However, if item 2 of Schedule 2 to the Cybercrime
Legislation Amendment Act 2011 commences before that time, these provision
do not commence at all.
Schedule 4, item 3 will commence immediately after the commencement of item
2 of Schedule 2 to the Cybercrime Legislation Amendment Act 2011. However,
if item 2 of Schedule 2 to the Cybercrime Legislation Amendment Act 2011
does not commence, this provision does not commence at all.
Clause 3: Schedule(s)
This is a formal clause that enables the Schedules to amend Acts by
including amendments under the title of the relevant Act.
SCHEDULE 1 - GENERAL AMENDMENTS RELATING TO EXTRADITION AND MUTUAL
ASSISTANCE IN CRIMINAL MATTERS
GENERAL OUTLINE
Schedule 1 contains general amendments which relate to both extradition and
mutual assistance. Part 1 of Schedule 1 contains amendments to enable
Federal Magistrates to perform functions under the Extradition Act and the
MA Act, in addition to State and Territory magistrates. These amendments
are designed to reduce delays in valuable court time by increasing the
number of judicial officers available to conduct proceedings under the
Acts.
Part 2 of Schedule 1 contains amendments to clarify privacy and information
disclosure provisions relating to extradition and mutual assistance
processes. It will insert new provisions in the Extradition Act and the
MA Act to clarify that the collection, use or disclosure of personal
information is authorised by law for the purposes of the Privacy Act 1988
where it is reasonably necessary for the purposes of the extradition of a
person to or from Australia, or providing or obtaining international
assistance in criminal matters. Part 2 of Schedule 1 will also contain
amendments to the Migration Act to ensure that the disclosure of
identifying information for the purposes of extradition or mutual
assistance is not an offence under that Act.
PART 1-AMENDMENTS RELATING TO FEDERAL MAGISTRATES
Extradition Act 1988
Item 1 - Section 5
This item will insert a definition of 'Federal Magistrate' in section 5 of
the Extradition Act (which provides for the interpretation of terms).
'Federal Magistrate' will mean a Federal Magistrate acting persona
designata pursuant to new sections 45A and 45B. This will clarify that any
reference to 'Federal Magistrate' in the Act (other than in new section 45A
which will be inserted by item 5) will be a reference to a Federal
Magistrate acting in his or her personal capacity. This is because all
functions assigned to magistrates under the Act are administrative as
opposed to judicial in nature.
Item 2 - Section 5
This item will expand the definition of 'magistrate' in section 5 of the
Extradition Act to include Federal Magistrates. This will enable Federal
Magistrates to exercise all functions currently conferred on State and
Territory magistrates under the Extradition Act. These functions include
the power to hear consent matters under section 18 of the Act, the power to
determine eligibility for surrender under section 19, the power to issue an
arrest warrant under section 12 and the power to order the remand of a
person under section 15. This amendment is designed to increase the
availability of judicial officers to conduct extradition proceedings.
Items 3 and 4 - Subsection 21(1) and subsection 35(1)
Part 1 of Schedule 2 of the Bill will make a range of amendments to remove
the jurisdiction of State and Territory Supreme Courts to hear appeals
under the Extradition Act and limit this jurisdiction to federal courts.
Currently, a review of a magistrate's determination of eligibility for
surrender under section 19 or 34 of the Act can be sought in either the
Federal Court of Australia, or the relevant State or Territory Supreme
Court under sections 21 and 35 respectively. Items 1 and 7 of Schedule 2
will remove the ability to seek review of a decision under these sections
in the Supreme Court of the State or Territory in which the order was
originally made.
These items will remove 'of a State or Territory' after the word
'magistrate' from subsections 21(1) and 35(1). This will recognise that it
will not matter which State or Territory the magistrate made the original
order in as the only avenue for appeal is to the Federal Court.
Item 5 - After section 45
This item will insert new sections 45A and 45B. New section 45A will
enable the Attorney-General to nominate a Federal Magistrate to be a
magistrate for the purposes of the Extradition Act, and enable the Federal
Magistrate to consent to the nomination. The nomination procedure will be
required as a Federal Magistrate will exercise administrative functions
under the Act, which must be performed in his or her personal capacity.
The nomination and consent must be made in writing, but the written
document will not be a legislative instrument for the purposes of the
Legislative Instruments Act 2003. A 'legislative instrument' is defined at
section 5 of the Legislative Instruments Act. In general terms, a
legislative instrument is a written document that is of a legislative
character and that is made in the exercise of a power designated by
Parliament. Requirements relating to registering, tabling, scrutinising
and sun-setting all Commonwealth legislative instruments are imposed under
the Legislative Instruments Act. Subsection 45A(3) will clarify that these
requirements do not apply to nominations and consents to nomination
pursuant to new section 45A.
New section 45B will clarify that magistrates exercising functions or
powers under the Extradition Act perform these functions or exercise these
powers in a personal capacity and not as a court or a member of the court.
This reflects the doctrine of persona designata, which holds that
Parliament may confer a non-judicial function on a justice of a court
constituted under Chapter III of the Constitution if the function is
conferred on the justice as an individual rather than a member of the
court. Due to the separation of powers doctrine, functions or powers are
conferred on a voluntary basis and need not be accepted by the magistrate.
New subsection 45B(2) differentiates between a magistrate and Federal
Magistrate in this regard because a Federal Magistrate will be defined as a
person who has already consented to being nominated by the Attorney-General
to exercise the relevant functions or powers under the Act (which will be
inserted by item 1 of this Schedule).
New subsection 45B(3) will also make clear that magistrates acting persona
designata are still entitled to the judicial immunity afforded to them as
if they were exercising functions or powers as a court or a member of a
court.
Item 6 - Subparagraph 55(c)(vii)
This item will remove 'of magistrates' from subparagraph 55(c)(vii). This
will remove the ability of the Governor-General to make regulations
prescribing the protection and immunity of magistrates. This provision is
not necessary as a consequence of the legislative provision for the
immunity of magistrates in new subsection 45B(3) (see Item 5 of Schedule 1
to this Bill).
Mutual Assistance in Criminal Matters Act 1987
Item 7 - Subsection 3(1)
This item will insert a definition of 'Federal Magistrate' in section 3 of
the MA Act (which provides for the interpretation of terms). 'Federal
Magistrate' will mean a Federal Magistrate acting persona designata
pursuant to new sections 38ZC and 38ZD. This will clarify that any
reference to 'Federal Magistrate' in the MA Act (other than in new
section 38ZC) will be a reference to a Federal Magistrate acting in his or
her personal capacity. This is because all functions assigned to
magistrates under the MA Act are administrative as opposed to judicial.
Item 8 - Subsection 3(1) (before paragraph (a) of the definition of
magistrate)
This item will expand the definition of 'magistrate' in section 3 of the
MA Act to include Federal Magistrates, except for references to
'magistrate' in Division 2 of Part VI. This will enable Federal
Magistrates to exercise all functions currently conferred on State and
Territory magistrates under the MA Act, except for the functions conferred
in Division 2 of Part VI relating to proceeds of crime proceedings. Under
the POC Act, these proceedings can only be heard before State and Territory
magistrates. It is therefore appropriate that these functions continue to
be limited to State and Territory magistrates in the mutual assistance
context.
Federal Magistrates will be able to exercise a range of other functions
under the MA Act, including the conduct of 'take evidence' and production
of document proceedings under section 13, and the issue of search warrants
under section 38C.
Item 9 - At the end of section 38C
This item will insert a new subsection 38C(8) to clarify that subsections
38C(6) and (7) do not apply if the magistrate is a Federal Magistrate.
Subsection 38C(6) provides that a New South Wales or Australian Capital
Territory magistrate may issue a warrant in relation to premises or a
person in the Jervis Bay Territory. Subsection 38C(7) generally provides
for State or Territory magistrates to issue warrants in relation to persons
and premises in that State or Territory. These provisions do not apply to
Federal Magistrates as they are Commonwealth, rather than State or
Territory, judicial officers.
Item 10 - Before section 39
This item will insert new sections 38ZC and 38ZD. New section 38ZC will
enable the Attorney-General to nominate a Federal Magistrate to be a
magistrate for the purposes of the MA Act, and enable the Federal
Magistrate to consent to the nomination. The nomination procedure will be
required as a Federal Magistrate will exercise administrative functions
under the MA Act, which must be performed in his or her personal capacity.
The nomination and consent must be made in writing, but the written
document would not be a legislative instrument for the purposes of the
Legislative Instruments Act 2003. A 'legislative instrument' is defined at
section 5 of the Legislative Instruments Act. In general terms, a
legislative instrument is a written document that is of a legislative
character and that is made in the exercise of a power designated by
Parliament. Requirements relating to registering, tabling, scrutinising
and sun-setting all Commonwealth legislative instruments are imposed under
the Legislative Instruments Act. Subsection 38ZC(3) will clarify that
these requirements do not apply to nominations pursuant to new section
38ZC.
New section 38ZD will clarify that magistrates exercising functions or
powers under the MA Act perform these functions or exercise these powers in
a personal capacity and not as a court or a member of the court. This
reflects the doctrine of persona designata, which holds that Parliament may
confer a non-judicial function on a justice of a court constituted under
Chapter III of the Constitution if the function is conferred on the justice
as an individual rather than a member of the court. Due to the separation
of powers doctrine, functions or powers are conferred on a voluntary basis
and need not be accepted by the magistrate.
New subsection 38ZD(2) differentiates between a magistrate and Federal
Magistrate in this regard because a Federal Magistrate will be defined as a
person who has already consented to being nominated by the Attorney-General
to exercise the relevant functions or powers under the MA Act (which will
be inserted by item 7 of this Schedule).
New subsection 38ZD(3) will also make clear that magistrates acting persona
designata are still entitled to the judicial immunity afforded to them as
if they were exercising functions or powers as a court or a member of a
court.
Item 11 - Paragraph 44(c)
This item will remove 'of magistrates' from subsection 44(c). This will
remove the ability of the Governor-General to make regulations prescribing
the protection and immunity of magistrates. This provision is not
necessary as a consequence of the legislative provision for the immunity of
magistrates in new subsection 38ZD(3) (which will be inserted by item 10 of
this Schedule).
PART 2-AMENDMENTS RELATING TO INFORMATION SHARING
Extradition Act 1988
Item 12 - After section 54
This item will insert a new section 54A in the Extradition Act. New
section 54A will provide that the collection, use or disclosure of personal
information is authorised by law for the purposes of the Privacy Act 1988
where it is reasonably necessary for the purposes of the extradition of a
person to or from Australia. This new section clarifies the application of
the Privacy Act 1988 to the extradition process.
Migration Act 1958
Item 13 - After paragraph 336E(2)(ga)
This item will insert new paragraphs 336E(2)(gb) and (gc) in the Migration
Act. Subsection 336E(1) of the Act makes it an offence to disclose
identifying information if the disclosure is not a 'permitted disclosure'.
The new paragraphs will expand the definition of 'permitted disclosure' in
subsection 336E(2) to include a disclosure that is for the purposes of the
extradition of a person either to or from Australia, or the provision or
obtaining of international assistance in criminal matters by the Attorney-
General or an officer of his or her Department.
Mutual Assistance in Criminal Matters Act 1987
Item 14 - After section 43C
This item will insert a new section 43D. New section 43D will provide that
the collection, use or disclosure of personal information that is
reasonably necessary for the purposes of providing or obtaining
international assistance in criminal matters by the Attorney-General or an
officer of his or her Department is authorised by law for the purposes of
the Privacy Act 1988.
This encompasses both international assistance which is authorised by the
Attorney-General under the MA Act and assistance that can be provided
outside the scope of the MA Act, such as voluntarily obtained witness
statements, the provision of which may be facilitated by the Attorney-
General's Department.
This new section does not impact on exchanges of information between other
law enforcement agencies, such as police to police assistance provided or
obtained by the AFP.
SCHEDULE 2 - AMENDMENTS RELATING TO EXTRADITION
GENERAL OUTLINE
Schedule 2 contains amendments to the Extradition Act. Part 1 of Schedule
2 will remove the jurisdiction of State and Territory Supreme Courts to
hear appeals under the Extradition Act and limit this jurisdiction to
federal courts. Proceedings in the extradition context, such as
applications for judicial review of decisions made by the Attorney-General,
are generally brought in the Federal Court of Australia. This amendment
seeks to overcome the jurisdictional complexities that can arise where
proceedings in the same matter are brought in both State and federal
courts. This amendment will also build on the federal courts' existing
expertise in extradition matters.
Part 2 of Schedule 2 will allow a person to waive the extradition process,
subject to certain safeguards. Currently, a person may only consent to
extradition once he or she is before a magistrate following the issue of
the Minister's notice accepting the extradition request. This can take
some time, particularly if the person was arrested under a provisional
arrest warrant. The amendments in Part 2 of Schedule 2 will allow a
person, once arrested following an extradition request or a provisional
arrest request, to immediately elect to remove him or herself from the
extradition process and be surrendered to the foreign country. Persons who
elect to use the waiver of extradition process could reduce the time they
spend in Australian custody pending surrender as not all stages of the
extradition process would be required to be completed.
Part 3 of Schedule 2 contains other amendments to the Extradition Act.
Division 1 of Part 3 of Schedule 2 will streamline the 'political offence'
definition by ensuring that exceptions to the definition are generally
contained in regulations, rather than in the Act. This will ensure the
extradition regime can be kept up-to-date with Australia's international
obligations without requiring frequent amendments to the Extradition Act.
It is intended that the regulations would clarify that this ground of
refusal does not extend to specified crimes such as terrorism.
Division 2 of Part 3 of Schedule 2 will require Australia to refuse to
extradite a person if he or she may be punished, or discriminated against
upon surrender, on the basis of his or her sex or sexual orientation.
Division 3 of Part 3 of Schedule 2 will streamline the early stages of the
extradition process by removing the current duplication in the factors
required to be considered. Dual criminality and extradition objections
would continue to be considered by a magistrate when conducting extradition
proceedings. However, the Attorney-General will not be required to
consider these factors before issuing a notice under section 16 of the
Extradition Act conferring jurisdiction on a magistrate to conduct
extradition proceedings.
Division 4 of Part 3 of Schedule 2 will allow a person to consent to being
surrendered for a wider range of offences. Currently, a person can consent
to being surrendered for 'extradition offences' (i.e. offences that are
punishable by imprisonment for over 12 months), which are listed in the
Attorney-General's notice under section 16 of the Extradition Act
conferring jurisdiction on a magistrate to conduct extradition proceedings.
A person can also consent to being surrendered for offences which are not
'extradition offences' and therefore not offences which are listed in the
Attorney-General's notice under section 16. Division 4 will allow a person
to consent to being surrendered for offences which are 'extradition
offences' but are not listed in the Attorney-General's notice under section
16.
Division 5 of Part 3 of Schedule 2 will enable the Attorney-General to give
a legally enforceable undertaking to a country as to the maximum sentence
that could be imposed on a person, before the person is extradited to
Australia. This will facilitate the return to Australia, for prosecution,
of persons from countries which are prohibited under their own laws from
surrendering a person to Australia unless an undertaking is provided about
the maximum sentence that may be imposed on the person.
Division 6 of Part 3 of Schedule 2 will extend the circumstances in which
persons may be prosecuted in Australia as an alternative to extradition.
Currently, a person can only be prosecuted in Australia in lieu of
extradition where the extradition has been refused on the basis that the
person is an Australian citizen. The amendments in this division will
enable a person to be prosecuted in any circumstances where Australia has
refused extradition.
Division 7 of Part 3 of Schedule 2 will make various minor and technical
amendments to the provisions in the Extradition Act which provide for the
Attorney-General to give notices. For example, it will allow the Attorney-
General to amend notices that he or she has issued under section 16 of the
Extradition Act.
Division 8 of Part 3 of Schedule 2 will extend the availability of bail in
extradition proceedings. Currently, a person may be remanded on bail
during the early stages of the extradition process if special circumstances
exist. However, once a person is determined by a magistrate to be eligible
for surrender, he or she must be committed to prison. Division 8 of Part 3
of Schedule 2 will extend the availability of bail to persons who have
consented to extradition or been determined eligible for surrender by a
magistrate. Division 9 of Part 3 of Schedule 2 will make a series of minor
and technical amendments to the Extradition Act. A number of these
amendments will simplify the language of the Extradition Act and rectify
technical drafting issues.
PART 1-STATUTORY APPEAL OF EXTRADITION DECISIONS
Division 1-Amendments
Overview
Part 1 of Schedule 2 of the Bill will limit the jurisdiction to review
extradition decisions to the Federal Court of Australia. This will assist
in removing judicial complexities where proceedings are brought in both
State and Federal courts. This will also build on the federal courts'
existing expertise in extradition matters.
Extradition Act 1988
Item 1 - Subsection 21(1)
This item will remove the phrase ', or to the Supreme Court of the State or
Territory' from subsection 21(1) of the Extradition Act. Currently, a
magistrate of a State or Territory conducts proceedings under section 19 of
the Act to determine whether a person is eligible for surrender to an
extradition country. Under section 21 of the Act, the person whose
extradition is sought or the extradition country can seek a review of the
magistrate's order that a person is eligible for surrender either in the
Federal Court or in the Supreme Court of the State or Territory. This
amendment will limit jurisdiction for reviews carried out under section 21
to the Federal Court. Further, item 3 of Schedule 1 will remove 'of a
State or Territory' after the word 'magistrate' from subsection 21(1).
This will recognise that it will not matter which State or Territory the
magistrate made the original order in as the only avenue for appeal will be
to the Federal Court.
Item 2 - Subsection 21(2)
This item is consequential to the changes that will be made by item 1 of
this Schedule, and will insert 'Federal' before 'Court' in subsection 21(2)
of the Extradition Act. This item will provide that the Federal Court will
be the only court which may make orders under subsection 21(2), on review
of a magistrate's determination of a person's eligibility for surrender.
Item 3 - Subsections 21(3) and (4)
This item will remove the phrase 'or the Supreme Court' from
subsections 21(3) and 21(4) of the Extradition Act as a consequence of the
removal of the jurisdiction of the Supreme Courts to carry out reviews
under section 21 (which will be made by item 1 of this Schedule). Existing
subsection 21(3) allows for appeals from the Federal Court or a State or
Territory Supreme Court to the Full Court of the Federal Court. Existing
subsection 21(4) provides for this appeal to be filed or lodged within 15
days of the order being made by the Federal Court or the State or Territory
Supreme Court.
Item 4 - At the end of paragraph 21(6)(a)
This item will add 'or' to the end of paragraph 21(6)(a) to correct a
previous stylistic oversight.
Item 5 - Paragraph 26(5)(c)
This item will omit 'or the Supreme Court of the State or Territory in
which the person is in custody' from paragraph 26(5)(c) of the Extradition
Act. Existing subsection 26(5) provides that where a surrender warrant or
temporary surrender warrant has been issued in relation to a person and the
person is in custody under the warrant for more than two months, the person
may apply to the Federal Court or the Supreme Court of the State or
Territory in which the person is in custody for release from custody.
This item will limit this jurisdiction to the Federal Court. This will
mean that a person can only apply to the Federal Court for release from
custody, and not the Supreme Court of the State or Territory in which he or
she is in custody.
Item 6 - Subsections 26(5) and (6)
This item will omit 'the Court' and substitute 'the Federal Court' in
subsections 26(5) and 26(6) of the Extradition Act. This is consequential
to the changes that will be made by item 5, which limit the jurisdiction
for applications made under subsection 26(5) of the Extradition Act to the
Federal Court.
Item 7 - Subsection 35(1)
This item will omit ', or to the Supreme Court of the State or Territory'
from subsection 35(1) of the Extradition Act. Currently, a magistrate of a
State or Territory conducts proceedings under section 34 of the Act to
determine whether the person is eligible for surrender to New Zealand.
Where a person is found eligible for surrender, the magistrate makes an
order under section 34 of the Extradition Act. Section 35 provides for
judicial review of the magistrate's order in either the Federal Court or
the Supreme Court of the State or Territory. This item will limit the
jurisdiction for reviews carried out under section 35 of the Extradition
Act to the Federal Court. Further, item 4 of Schedule 1 will remove 'of a
State or Territory' after the word 'magistrate' from subsection 35(1).
This will recognise that it will not matter which State or Territory the
magistrate made the original order in as the only avenue for appeal will be
to the Federal Court.
Item 8 - Subsection 35(2)
This item will insert 'Federal' before 'Court' in subsection 35(2) of the
Extradition Act. This amendment is consequential to the changes that will
be made by item 7 and will make it clear that the Federal Court will be the
only court which may make orders under subsection 35(2).
Item 9 - Subsections 35(3) and (4)
This item will omit 'or the Supreme Court' from subsections 35(3) and 35(4)
of the Extradition Act. This item is consequential to the changes that
will be made by item 7. Existing subsection 35(3) provides for an appeal
to the Full Federal Court from an order of the Federal Court or an order of
a Supreme Court of a State or Territory. Subsection 35(4) provides for
this appeal to be lodged within 15 days of the order being made.
Item 10 - Paragraph 38(7)(c)
This item will omit 'or the Supreme Court of the State or Territory in
which the person is in custody' from paragraph 38(7)(c) of the Extradition
Act. Currently, where a surrender warrant or temporary surrender warrant
has been issued in relation to a person and the person is in custody under
the warrant for more than one month, the person may apply to the Federal
Court, or to the Supreme Court of the State or Territory in which the
person is in custody for release from custody.
This item will limit the jurisdiction for applications made under
subsection 38(7) to the Federal Court. This will mean that a person can
only apply to the Federal Court for release from custody, and not the
Supreme Court of the State or Territory in which he or she is in custody.
Item 11 - Subsection 38(7) and (8)
Currently, where a surrender warrant or temporary surrender warrant has
been issued in relation to a person and the person is in custody under the
warrant for more than one month, the person may apply to the Federal Court,
or to the Supreme Court of the State or Territory in which the person is in
custody, for release from custody. Item 10 will limit the jurisdiction for
applications made under subsection 38(7) of the Extradition Act to the
Federal Court. This will mean that a person can only apply to the Federal
Court for release from custody, and not the Supreme Court of the State or
Territory in which he or she is in custody.
This item will remove the references to 'the Court' wherever occurring in
subsections 38(7) and 38(8) and substitute them with 'the Federal Court' as
a consequence of the changes that will be made by item 10.
Item 12 - Subsection 51(1)
This item will repeal subsection 51(1) and replace the heading to section
51 with 'Application of section 38 of the Judiciary Act 1903'. Existing
subsection 51(1) provides that the jurisdiction of the Supreme Court of a
State or Territory in matters arising under section 21 or 35 of the
Extradition Act may be exercised by a single Judge of the Court. As a
consequence of the amendments that will be made by Part 1 of this Schedule,
jurisdiction in matters arising under sections 21 or 35 may only be
exercised by the Federal Court and will no longer be exercised by the
Supreme Court of a State or Territory. Consequently, this subsection is no
longer required.
Item 13 - Subsection 51(2)
This item will remove the numbering of subsection 51(2), and is
consequential to the changes that will be made by item 12, which will
repeal subsection 51(1). As subsection 51(1) will be repealed, '(2)' will
no longer be required as section 51 will no longer be subdivided.
Division 2 - Application and transitional provisions
Item 14 - Application of amendments made by items 1, 3 and 12
This item will stipulate the application of the amendments which will be
made by items 1, 3 and 12. The amendments will apply such that any order
made under subsections 19(9) or (10) of the Extradition Act after the date
of commencement of this item cannot be considered by a State or Territory
Supreme Court pursuant to section 21 of the Extradition Act. Any order
made under subsections 19(9) or (10) before the date of commencement of
this item may still be considered by a State or Territory Supreme Court.
This item will commence on Proclamation.
Item 15 - Application of amendment made by item 5
This item will stipulate the application of amendments which will be made
by item 5. The amendments will apply such that applications for release
from custody made under paragraph 26(5)(c) of the Extradition Act in
respect of surrender warrants or temporary surrender warrants issued after
the commencement of this item may only be made to the Federal Court.
Applications which relate to surrender warrants or temporary surrender
warrants issued prior to the commencement of this item may still be
considered by a State or Territory Supreme Court. This item will commence
on Proclamation.
Item 16 - Application of amendments made by items 7, 9 and 12
This item will stipulate the application of amendments which will be made
by items 7, 9 and 12. The amendments will apply such that any order made
under section 34 of the Extradition Act after the date of commencement of
this item cannot be considered by a State or Territory Supreme Court
pursuant to section 35 of the Act. Any order made under section 34 before
the date of commencement of this item may still be considered by a State or
Territory Supreme Court. This item will commence on Proclamation.
Item 17 - Application of amendment made by item 10
This item will stipulate the application of the amendment which will be
made by item 10. The amendment will apply such that applications for
release from custody made under section 38 of the Extradition Act which
relate to surrender warrants or temporary surrender warrants issued after
the commencement of this item may only be made to the Federal Court.
Applications which relate to surrender warrants or temporary surrender
warrants issued prior to the commencement of this item may still be
considered by a State or Territory Supreme Court. This item will commence
on Proclamation.
PART 2-WAIVER OF EXTRADITION
Extradition Act 1988
Items 18 and 19 - Section 5 (definition of surrender offence and paragraph
(b) of the definition of surrender offence)
These items will amend the definition of 'surrender offence' in section 5
of the Extradition Act. Currently, 'surrender offence' is defined as an
extradition offence in relation to which the Attorney-General has
determined that a person should be surrendered in accordance with
subsection 22(2) of the Extradition Act, or any offences in respect of
which a person has consented to being surrendered in accordance with
subsection 20(2) of the Extradition Act.
These items will amend the definition of 'surrender offence' to include
extradition offences in relation to which the Attorney-General has
determined that a person should be surrendered in accordance with new
subsection 15B(2) of the Extradition Act. These amendments are
consequential to item 24, which will insert new section 15B. New
section 15B will enable the Attorney-General to make a separate
determination in relation to surrender where a person elects to waive
extradition.
Item 20 - Section 5 (at the end of subparagraph (b)(i) of the definition of
surrender warrant)
This item will insert 'or' at the end of subparagraph (b)(i) of the
definition of 'surrender warrant'. Each subparagraph in the definition of
'surrender warrant' has an 'or' at the end of the subparagraph. The
omission at the end of subparagraph (b)(i) is a previous stylistic
oversight.
Items 21, 22 and 23 - Subsections 15(2), 15(4) and 15(5)
These items will insert references to new section 15A in section 15 of the
Extradition Act. This is consequential to item 24, which will insert new
section 15A.
Section 15 enables a person who is arrested under an extradition arrest
warrant to be held on remand. New section 15A will enable a person who is
on remand to waive extradition prior to the Attorney-General issuing a
notice under section 16 of the Act. Subsections 15(2) and 15(4) will be
amended to insert references to section 15A, to reflect that persons held
on remand under section 15 will be able to elect to waive extradition.
Subsection 15(5) will be amended to insert a reference to section 15A, to
reflect that a person on remand who is transferred, either in custody or on
bail, to a specified State or Territory will be able to elect to waive
extradition.
Item 24 - After section 15
This item will insert new sections 15A and 15B after section 15 of the
Extradition Act. Currently, a person who consents to being extradited by
Australia to a foreign country can spend up to six months in custody in
Australia. This delay is largely due to the multiple stages in the current
consent process. Sections 15A and 15B will enable a person to waive
extradition. This will provide persons with the option to either waive
extradition or use the existing consent process. A person who elects to
use the waiver of extradition process should reduce the overall time they
spend in custody in Australia.
New section 15A
New section 15A will set out the process for a person to elect to waive
extradition. New subsections 15A(1) and (2) will establish the categories
of persons who may elect to waive extradition. New subsection 15A(1) will
apply to a person who is on remand but the Attorney-General has not made a
decision whether or not to give a notice in relation to him or her under
subsection 16(1). This will cover the situation where a person has been
provisionally arrested before the extradition country has made a full
formal extradition request to Australia.
New subsection 15A(2) will apply to a person who is on remand under section
15 if the Attorney-General has given a notice under section 16 but the
magistrate has not yet advised the Attorney-General that the person has
consented to being surrendered under subparagraph 18(2)(b)(ii), or
determined that the person is eligible for surrender under
subsection 19(1). This will cover the situation where the extradition
country has made an extradition request and the Attorney-General has issued
a notice stating that the request has been received.
New subsection 15A(3) will provide that a person may inform a magistrate
that he or she wishes to waive extradition in relation to:
. the extradition offence or all of the offences specified in the
extradition arrest warrant (if an extradition request has not been
made) or
. the extradition offence or all of the offences for which surrender is
sought (if an extradition request has been made).
It will not be possible to waive extradition with regard to only some of
the extradition offences listed on the extradition warrant.
New subsection 15A(4) will require a magistrate, if satisfied of the
matters listed in new paragraphs 15A(5)(a), (c) and (d), and if the person
has been informed as mentioned in new paragraph 15A(5)(b), to order that
the person be committed to prison pending a determination by the Attorney-
General about surrender under new subsection 15B(2), and to advise the
Attorney-General in writing that the person wishes to waive extradition for
the relevant offences.
New paragraph 15A(5)(a) will require the magistrate to be satisfied, before
ordering a person to be committed to prison pursuant to subsection 15A(4),
that the person's election to waive extradition was voluntary. New
paragraph 15A(5)(b) will also require the magistrate to inform the person
that:
. once the order that they be committed to prison is made, they cannot
apply to have the order revoked
. the country to which they will be extradited may not have given, and
will not be required to give, a speciality assurance to the effect
that that they will not be tried or punished for an offence committed
before their surrender other than an offence for which extradition was
sought
. certain requirements in the Extradition Act that would otherwise apply
to him or her (such as requirements relating to extradition
objections) will not apply, and
. if the Attorney-General determines that he or she should be
surrendered in accordance with new section 15B, they will be so
surrendered.
While this new provision will have result in the foreign country not being
required to give a speciality assurance, this will not impact on a person's
rights. This is because although in most circumstances a speciality
assurance would not have been given, new subsection 15B(2) (which requires
the Attorney-General to have regard to all the circumstances when deciding
whether to surrender a person who has waived extradition), in conjunction
with the requirements of new subsection 15B(3) (refuse to surrender where
there are torture or death penalty concerns) would still require the
Attorney-General to consider the risk of the person being tried for
offences other than those included in the extradition request and the
possibility of a person being subject to the death penalty or torture as a
result. Further, the rule of speciality is a standard provision
incorporated into the majority of Australia's bilateral extradition
treaties.
Therefore, if the Attorney-General has substantial concerns that the person
would be in danger of being subjected to torture, or if the Attorney-
General is satisfied that there is a real risk that the death penalty will
be carried out, the Attorney-General will not be able to surrender the
person.
Having informed the person as mentioned in paragraph 15A(5)(b), the
magistrate will be required to be satisfied that the person has confirmed
that he or she wishes to waive extradition, and that the person is legally
represented or was given adequate opportunity to be legally represented.
This will ensure that the person is fully informed of all the consequences
of waiving extradition.
New subsection 15A(6) will provide that if a person informs a magistrate
that he or she wishes to waive extradition, no further steps in the
extradition process are to be taken during the time at which the magistrate
is determining whether to make an order under subsection 15A(4). This
means that if a person, who has been provisionally arrested, elects to
waive extradition, the Attorney-General may not give a notice under
subsection 16(1). It also means that if a person, in relation to whom a
notice under subsection 16(1) has already been given, elects to waive
extradition, sections 18 and 19 (which relate to consent to surrender and
determination of eligibility for surrender) do not apply, and any related
proceedings are stayed.
New subsection 15A(7) will provide that if the magistrate is not satisfied
of the matters listed in paragraphs 15A(5)(a), (c) and (d), the magistrate
must advise the Attorney-General in writing that he or she has decided not
to make an order under paragraph 15A(4)(a) committing the person to prison
pending a surrender determination by the Attorney-General. This will mean
the person is then subject to the ordinary extradition process.
New section 15B
New section 15B will set out the process for the Attorney-General to
determine if a person should be surrendered, having been notified by a
magistrate that the person has elected to waive extradition.
New subsection 15B(2) will provide that the Attorney-General must, as soon
as reasonably practicable, having regard to all the circumstances,
determine whether or not the person should be surrendered. New subsection
15B(3) will provide that the Attorney-General may only determine the person
be surrendered if he or she:
. does not have substantial grounds for believing that, if the person
were surrendered, the person would be in danger of being subjected to
torture, and
. is satisfied that on surrender, there is no risk the death penalty
will be carried out upon the person in relation to any offence.
This provides safeguards to ensure a person who waives his or her
extradition is not at risk of being subject to the death penalty or torture
on return to the requesting country.
New subsection 15B(4) will provide that if the Attorney-General determines
that the person is not to be surrendered, the Attorney-General must, by
notice in writing in the statutory form, direct a magistrate to order the
release of the person from custody.
Item 25 - At the end of section 17
This item will add new subsections 17(4) and (5) at the end of section 17
of the Extradition Act. Section 17 sets out the circumstances in which a
person may be released from remand. Subsection 17(2) enables a magistrate
to order a person's release from custody where he or she has been held on
remand for over 45 days (or another length of time stipulated in the
relevant Regulations) and a section 16 notice has not been given.
New subsections 17(4) and 17(5) will provide that subsection 17(2) will not
apply to a person who has elected to waive extradition, unless and until
the magistrate decides not to accept the person's election to waive. This
is appropriate as new paragraph 15A(6)(a) will prevent the Attorney-General
from issuing a section 16 notice while the issue of waiver is under
consideration. The 45 day time period would resume on the day after the
Attorney-General receives the magistrate's advice that the person's
election to waive extradition has not been accepted.
Item 26 - Section 23
This item will insert the words '15B(2) or' after 'subsection' in section
23 of the Extradition Act. This amendment is consequential to new section
15B which will be inserted by item 24.
Existing section 23 provides that where the Attorney-General has determined
under subsection 22(2) that a person is to be surrendered to an extradition
country, the Attorney-General must issue a warrant for the surrender of the
person, unless the Attorney-General issues a temporary surrender warrant.
This item will amend this provision to ensure it applies to circumstances
in which the Attorney-General has made a determination that a person is to
be surrendered under the new subsection 15B(2) (i.e. surrender following
waiver of extradition).
Item 27 - Paragraph 24(1)(a)
This item will insert the words '15B(2) or' after 'subsection' in
paragraph 24(1)(a) of the Extradition Act. This amendment is consequential
to the inclusion of new section 15B by item 24.
Section 24 currently provides that where the Attorney-General has
determined under subsection 22(2) that a person is to be surrendered to an
extradition country, the Attorney-General may issue a temporary surrender
warrant. This item will amend this provision to ensure it applies to
circumstances in which the Attorney-General has made a determination that a
person is to be surrendered under new subsection 15B(2) (i.e. surrender
following waiver of extradition).
Item 28 - Subsection 25(2)
This item will amend subsection 25(2) of the Extradition Act so that the
conditions for the issue of a section 25 surrender warrant under that
subsection only apply to surrender warrants issued after a temporary
surrender warrant was previously issued following a subsection 22(2)
determination. A subsection 22(2) determination is one which results from
the usual extradition process being carried out (as distinct from surrender
which results from a person electing to waive the extradition process).
This amendment has the effect that the conditions for issuing a section 25
surrender warrant under subsection 25(2) do not apply to surrender warrants
issued after a temporary surrender warrant was previously issued following
a subsection 15B(2) determination (waiver of extradition). In this
situation, the more limited conditions provided by new subsection 25(3)
apply (which will be inserted by Item 30).
Item 29 - After paragraph 25(2)(a)
This item will insert a new paragraph 25(2)(ba) after existing paragraph
25(2)(a). New paragraph 25(2)(ba) will set out an additional condition for
the issue of a section 25 surrender warrant after a temporary surrender
warrant was previously issued following a subsection 22(2) determination of
surrender. This additional condition is that the Attorney-General does not
have substantial grounds for believing that, if the person were
surrendered, the person would be in danger of being subjected to torture.
This will ensure that the issue of potential torture of a person following
surrender is considered in every determination of surrender, including in
the determination of section 25 surrenders.
Item 30 - At the end of section 25
This item will insert a new subsection 25(3) at the end of existing section
25. New subsection 25(3) will set out the relevant grounds of refusal for
surrender if the Attorney-General determines that a person is to be
surrendered under section 25, after a temporary surrender warrant has
previously been issued following a determination that a person is to be
surrendered under new subsection 15B(2).
The Attorney-General may only issue a surrender warrant under subsection
25(1) if the Attorney-General:
. does not have substantial grounds for believing that, if the person
were surrendered, the person would be in danger of being subjected to
torture, and
. is satisfied that on surrender, there is no risk the death penalty
will be carried out upon the person in relation to any offence.
These grounds of refusal are consistent with the grounds of refusal that
would have applied when the person waived the extradition process (see new
section 15B which will be inserted by item 24).
Item 31 - Paragraph 45(4)(b)
This item will amend paragraph 45(4)(b) of the Extradition Act to insert
the words '15B or' after 'section'. This amendment is consequential to new
section 15B which will be inserted by item 24. This amendment has the
effect that the Attorney-General may give consent for the prosecution,
instead of extradition, of certain Australian citizens, but only if a
determination not to surrender under sections 22 or 15B has been made.
Item 32 - Application of amendments made by this Part
This item will provide that the amendments in Part 2 of Schedule 2 which
relate to waiver of extradition apply to a person who, on or after the
commencement of this item, is on remand under section 15 of the Extradition
Act.
PART 3-OTHER AMENDMENTS
Division 1-Amendments relating to political offences
Extradition Act 1988
Item 33 - Section 5 (paragraphs (a) to (d) of the definition of political
offence)
By virtue of section 7 of the Extradition Act, a person cannot be
extradited from Australia for a political offence. A political offence is
defined in section 5 of the Extradition Act as an offence against the law
of the foreign country that is of a political character. The definition in
section 5 of the Act provides that certain offences are not 'political
offences'. The Bill will amend section 5 to expressly exclude the
following from the political offence definition:
. an offence that involves an act of violence against a person's life or
liberty
. an offence prescribed by regulations for the purposes of paragraph
5(b) to be an extraditable offence in relation to the country or all
countries, and
. an offence prescribed by regulations for the purposes of paragraph
5(c) not to be a political offence in relation to the country or all
countries.
These amendments will streamline the 'political offence' definition by
ensuring that exceptions to the definition are generally contained in
regulations, rather than in the Act. The amendments are consistent with
the United Nations Model Extradition Treaty, which states that countries
may wish to exclude from the definition of 'political offence' certain
conduct, for example, serious offences involving an act of violence against
the life, physical integrity or liberty of a person.
Australia is party to a large number of bilateral and multilateral
treaties, many of which require parties to ensure that certain offences are
extraditable offences, or are not to be considered political offences for
the purposes of extradition. Australia implements its obligations under
these treaties by providing that such offences are excluded from the
definition of political offence in the Extradition Act. Exemptions are
currently set out in both the Extradition Act and the Regulations.
Providing for exceptions to the political offence definition to be set out
in Regulations, rather than the Extradition Act, will ensure the
extradition regime can be kept up-to-date with Australia's international
obligations without requiring frequent amendments to the Extradition Act.
It is intended that the Regulations will also expressly exclude from the
definition of political offence other conduct which, if the conduct
occurred in Australia, would constitute a terrorism, genocide or war crimes
offence or a crime against humanity. The Regulations will also make clear
that an offence constituted by the murder, kidnapping or other attack on a
head of state or head of government, or his or her family, is not
considered a political offence for the purposes of Australia's extradition
law.
Item 34 - At the end of paragraphs 7(a), (b) and (c)
This item will make a technical correction by adding 'or' to the end of
paragraphs 7(a), (b) and (c). This will correct a previous stylistic
oversight.
Migration Act 1958
Item 35 - Subsection 91T(3)
This item will amend subsection 91T(3) of the Migration Act, which refers
to the definition of 'political offence' in the Extradition Act. This
amendment is consequential to the amendment that will be made by item 33 of
this Schedule.
Item 36 - Application
This item sets out the application of the amendments made by Division 1 of
Part 3 of Schedule 2 of the Bill. The amendments in this Division will
apply in respect of extradition requests made by a foreign country on or
after the commencement of this item. This item will commence on
Proclamation.
Division 2-Extradition objection on the grounds of sex and sexual
orientation
Extradition Act 1988
Item 37 - Paragraphs 7(b) and (c)
Currently, a person cannot be extradited where there is an 'extradition
objection' as defined in section 7 of the Extradition Act. This includes
where surrender is sought for the purpose of punishing the person on
account of his or her race, religion, nationality, political opinions or
for a political offence (paragraph 7(b)), or where the person may be
prejudiced on surrender on the basis of any of these factors (paragraph
7(c)).
This item will insert the words 'sex, sexual orientation,' after the
reference to 'race' in paragraphs 7(b) and (c). This will ensure that
extradition must be refused if the surrender of the person is sought for
the purpose of prosecuting or punishing the person on account of his or her
sex or sexual orientation, or where the person may be discriminated against
upon surrender on the basis of his or her sex or sexual orientation.
Although Australia does not have an obligation under international law to
refuse extradition where a person may be subject to discrimination on the
basis of their sex or sexual orientation, these amendments will demonstrate
Australia's firm position against this type of discrimination. It will
also bring Australia's legislation in line with that of comparable
jurisdictions, such as New Zealand, the United Kingdom and Canada. A
similar amendment to the MA Act will be made by Part 1 of Schedule 3.
Item 38 - Application of amendment made by item 37
This item will set out the application of the amendments made by item 37.
The amendments will apply in relation to an extradition request from an
extradition country that is made on or after the commencement of item 37.
Item 37 will commence on a date to be set by Proclamation.
Division 3-Notice of receipt of extradition request
Overview
Division 3 of Part 3 of Schedule 2 of the Bill will limit the factors the
Attorney-General is statutorily required to consider before giving a notice
under section 16 of the Extradition Act accepting an extradition request.
The issue of a notice accepting an extradition request is a precondition to
the conduct of extradition proceedings by a magistrate.
Limiting the factors the Attorney-General is statutorily required to
consider before giving a notice will streamline the early stages of the
extradition process and facilitate consideration of eligibility for
surrender by a magistrate more quickly. This may reduce the overall time
spent in custody.
Extradition Act 1988
Item 39 - Subsection 10(3)
This item will omit 'subparagraph 16(2)(a)(ii) or paragraph' and substitute
'or' in subsection 10(3). This amendment is consequential to the removal
of subparagraph 16(2)(a)(ii) which will be done by item 41.
Item 40 - Subparagraph 12(3)(c)(i)
This item will omit 'issue' and substitute 'give' in subparagraph
12(3)(c)(i). This amendment will make the current reference to the
Attorney-General's 'issue' of a notice under subparagraph 12(3)(c)(i)
consistent with the wording of subsection 16(1), which is that the Attorney-
General decides to 'give' a notice.
Item 41 - Subsection 16(2)
Under existing section 16 of the Extradition Act, the Attorney-General must
not give a notice accepting an extradition request:
. unless he or she is satisfied that:
o the person is an extraditable person in relation to the
extradition country (subparagraph 16(2)(a)(i)), and
o the criminal conduct alleged against the person sought for
extradition would be an offence in Australia (subparagraph
16(2)(a)(ii)); or
. if the Attorney-General is of the opinion that there is an extradition
objection in relation to the extradition offence (paragraph 16(2)(b)).
This item will repeal existing subsection 16(2) and insert new subsection
16(2), which will provide that the Attorney-General is only required to
consider whether a person is an 'extraditable person' in relation to the
extradition country, in determining whether to exercise his or her
discretion to give a notice accepting the extradition request. An
'extraditable person' is defined in section 6 of the Extradition Act.
The factors in current subparagraph 16(2)(a)(ii) and paragraph 16(2)(b)
will continue to be assessed by a magistrate in determining whether a
person is eligible for surrender to the extradition country (under
paragraphs 19(2)(c) and 19(2)(d)) while the factor in paragraph 16(2)(b)
will also be assessed by the Attorney-General in making a final surrender
determination under section 22 of the Extradition Act.
This amendment is intended to remove the existing overlap in consideration
of the same factors by both the Attorney-General at the section 16 stage
and a magistrate, and thereby streamline the extradition process.
Item 42 - Subsection 16(3)
This item will omit 'issued' and substitute 'given' in subsection 16(3) of
the Extradition Act. This amendment will make the current reference to the
Attorney-General's 'issue' of a notice under subsection 16(3) consistent
with the wording of subsection 16(1), which is that the Attorney-General
decides to 'give' a notice.
Item 43 - Application of amendments made by this Division
This item will set out the application of the amendments made by Division 3
of Part 3 of Schedule 2 of the Bill. The amendments apply in relation to
an extradition request from an extradition country that is made on or after
the commencement of this item. This item will commence upon Proclamation.
Division 4-Consent to accessory extradition
Overview
The amendments in Division 4 of Part 3 of Schedule 2 of the Bill will
provide persons with an opportunity to consent to being extradited for a
wider range of offences. Currently, section 18 of the Extradition Act
allows a person to consent to surrender for 'extradition offences' in
respect of which the Attorney-General has given a notice under subsection
16(1). 'Extradition offence' is defined in section 5 of the Extradition
Act, and means an offence punishable by at least 12 months imprisonment.
Section 20 of the Extradition Act allows a person who has either consented
to his or her surrender (under section 18) or been found eligible for
surrender by a magistrate in respect of 'extradition offences' to consent
to also being surrendered for offences that are not 'extradition offences'
(known as 'consent to accessory extradition'). This enables a person to
have all outstanding charges dealt with upon their return to the foreign
country.
A person may wish to consent to surrender for an offence, even though
Australia could not extradite the person for that offence under the
Extradition Act (for example because the foreign country has not yet issued
a warrant in respect of that offence). This may be because a person may
wish to have all outstanding charges dealt with in one process on return to
the country so as to serve any resulting sentences concurrently.
The amendments in Division 4 of Part 3 of Schedule 2 of the Bill will
clarify that a person can consent to accessory extradition for offences
punishable by more than 12 months imprisonment that are listed in the
extradition request but which are not listed in the notice accepting the
extradition request. This will ensure that persons facing extradition have
the option to face all charges in the foreign country simultaneously.
The amendments will require a magistrate to be satisfied that there is no
extradition objection in relation to any of the additional extradition
offences before asking the person whether he or she consents to being
surrendered in respect of those offences.
Extradition Act 1988
Item 44 - After section 19
This item will insert new section 19A after section 19 of the Extradition
Act. New subsection 19A(1) will set out when section 19A applies. It will
provide that section 19A applies if:
. a notice under subsection 16(1) has been given in relation to a person
who is the subject of an extradition request from an extradition
country, and
. in proceedings under section 18, the person consents to being
surrendered to the extradition country in relation to the extradition
offence or all the extradition offences to which the notice relates,
or
. in proceedings under subsection 19(1), a magistrate determines the
person is eligible for surrender to the extradition country in
relation to one or more of the extradition offences to which the
notice relates, and
. the extradition country had requested in the extradition request that
the person be surrendered for one or more extradition offences
(additional extradition offences) that are not specified in the
notice.
New subsection 19A(2) will require the magistrate, in proceedings under
section 18 or subsection 19(1), to ask the person whether he or she
consents to accessory extradition if the magistrate is satisfied that there
is no 'extradition objection' in relation to any of the additional
extradition offences. 'Extradition objections' are set out in section 7 of
the Extradition Act. Subsection 19A(2) will ensure that human rights
safeguards which currently apply where a person consents to extradition,
also apply where a person consents to accessory extradition.
New subsection 19A(3) will contain safeguards designed to ensure the person
is fully informed, and protect the person from consenting to accessory
extradition without being aware of the implications of that consent. New
subsection 19A(3) will require that before asking the person if he or she
consents to surrender in respect of the additional extradition offences,
the magistrate must first:
. be satisfied that the person is legally represented or give the person
an adequate opportunity to be legally represented
. inform the person that if the person consents to surrender for any
additional extradition offences he or she may be tried and sentenced
in the extradition country for any of those additional extradition
offences, and
. inform the person that he or she may be tried and sentenced in the
extradition country even though, had the conduct of the person
constituting the additional extradition offences, or equivalent
conduct, taken place in Australia at the time the extradition request
was received, that conduct may not have constituted an extradition
offence in relation to Australia.
New subsection 19A(4) will provide that where a person has given his or her
consent to being surrendered in accordance with section 19A, the magistrate
must, unless he or she considers the consent was not given voluntarily,
advise the Attorney-General in writing of the additional extradition
offences in respect of which the person has consented. This will ensure
that the Attorney-General is informed of all offences relevant to his or
her surrender determination under section 22 of the Extradition Act. Under
section 22, if a magistrate has determined a person is 'eligible for
surrender', or if a person has consented to extradition (including
accessory extradition), the Attorney-General must decide whether or not to
surrender the person.
Item 45 - Subsection 22(1) (definition of qualifying extradition offence)
This item will repeal the definition of qualifying extradition offence in
subsection 22(1) of the Extradition Act. This definition enables the
Attorney-General to make a surrender determination under section 22 for
extradition offences in relation to which the person consented to surrender
(under section 18) or a magistrate has determined eligibility for surrender
(under section 19), or a court, on appeal, has confirmed the magistrate's
determination of eligibility for surrender (under section 21). The
Attorney-General cannot make a surrender determination under section 22 for
offences that are not 'extradition offences' in relation to which a person
consents to surrender (under section 20).
The amendment will include a new definition of qualifying extradition
offence which will include:
. any extradition offence in relation to which the person consented in
accordance with section 18
. any extradition offence in relation to which a magistrate, or a court
conducting final review proceedings under section 21, determines that
the person is eligible for surrender within the meaning of subsection
19(2), or
. in any case, any extradition offence in relation to which the person
has consented in accordance with section 19A.
The new definition will ensure that any additional extradition offences for
which the person consents to being surrendered will be included in the
definition of qualifying extradition offence, enabling the Attorney-General
to make a surrender determination under section 22 for the additional
extradition offences.
Division 5-Extradition to Australia from other countries
Overview
Division 5 of Part 3 of Schedule 2 of the Bill will enable the Attorney-
General to give a legally enforceable undertaking to the requested country
as to the maximum sentence that could be imposed on a person, before the
person is extradited to Australia. This undertaking could either state
that life imprisonment will not be imposed on the person or specify the
maximum period of imprisonment that may be imposed on the person.
Some countries are prohibited under their laws from surrendering a person
to other countries unless an undertaking is provided about the maximum
sentence that may be imposed on the person. For example, a country's
Constitution may prohibit extradition if the person may be subject to life
imprisonment on surrender. This can cause considerable difficulty in cases
where the offender may technically be liable to a life sentence, but there
is no likelihood of such a sentence being imposed given the circumstances
of the offence. In such cases, unless Australia is able to provide a
sufficient undertaking, extradition will be refused and the person could be
released.
This amendment will enable Australia to provide legally enforceable
undertakings, in appropriate circumstances, which will allow the person to
be surrendered to Australia to face charges. For an offence that is to be
prosecuted in a State or Territory, the Commonwealth Attorney-General will
be required to consult with the Attorney-General of the State or Territory
before giving an undertaking.
Item 46 - At the end of Part IV
This item will insert new section 44A into the Extradition Act. New
subsection 44A(1) will set out when the new section will apply and the
circumstances in which the Attorney-General may give an undertaking.
Subsection 44(1) will enable the Attorney-General, before a person is
surrendered to Australia, to give an undertaking:
. that life imprisonment will not be imposed on the person if he or she
is found guilty in Australia, or
. specifying the maximum period of imprisonment that may be imposed on
the person if he or she is found guilty in Australia.
New subsection 44A(2) will ensure that Australian courts give effect to the
Attorney-General's undertaking by providing that a person must not, under a
law of the Commonwealth, a State or Territory, be sentenced to life
imprisonment (where subparagraph 44A(1)(b)(i) applies) or a period of
imprisonment that is more than the period specified in the Attorney-
General's undertaking (where subparagraph 44A(1)(b)(ii) applies).
New subsection 44A(3) requires the Attorney-General to consult with the
Attorney-General of the State or Territory where the offence is to be
prosecuted before giving an undertaking under section 44A. This is because
there may be circumstances where the undertaking could not be upheld, for
example because the offence is subject to a mandatory sentence in that
State or Territory. An undertaking would not be entered into where it
would be in breach of domestic laws.
New subsection 44A(4) will provide that where an undertaking in subsection
44A(1) is given in writing, the undertaking is not a legislative instrument
within the meaning of section 5 of the Acts Interpretation Act 1901.
New subsection 44A(5) is intended to make clear that the Attorney-General
cannot give an undertaking under subsection 44A(1) as to the maximum
sentence that may be imposed on a person which is greater than (a) the
maximum sentence that applies to the offence, or (b) in the case of
multiple offences, the total of each maximum period of imprisonment that
applies to each offence.
Division 6-Prosecution in lieu of extradition
Overview
Currently, a person can only be prosecuted in Australia in lieu of
extradition under section 45 of the Extradition Act in limited
circumstances where the extradition has been refused on the basis that the
person is an Australian citizen. Division 6 will amend section 45 of the
Extradition Act to enable a person to be prosecuted in any circumstances
where Australia has refused extradition.
This amendment will assist in preventing Australia from becoming an
attractive safe haven for fugitives from countries whose criminal justice
systems might give rise to grounds for refusal under the Extradition Act.
Item 47 - Subsections 45(1), (2) and (3)
Section 45 currently enables the Attorney-General to consent to Australian
citizens being prosecuted for an extradition offence (or extradition
offences) in Australia instead of being surrendered to an extradition
country. This item will repeal existing subsections 45(1), 45(2) and 45(3)
of the Act, and replace them with new subsections 45(1), 45(2), 45(3),
45(3A), 45(3B), 45(3C) and 45(3D). The amendments will enable the Attorney-
General to consent to prosecution of persons in lieu of their extradition
in all circumstances and regardless of their nationality.
This item can be explained with the following example: Person X kills
person Y in country Z, then flees to Australia. Country Z requests the
extradition of person X, but the Attorney-General refuses the request on
the basis of concerns that person X will be subjected to torture in country
Z. Item 47 will facilitate the prosecution of person X in Australia in
lieu of his or her extradition to country Z.
New subsection 45(1) will create an offence against person X to facilitate
his or her prosecution in Australia. In order to establish this offence,
first, the prosecution must prove that person X has been remanded in a
State or Territory by order of a magistrate under section 15 of the
Extradition Act. This will establish a nexus to the extradition process,
as remand can only occur pursuant to section 15 if a person is arrested
under an extradition arrest warrant issued in response to a request made by
a foreign country.
Second, the prosecution must prove that person X has engaged in conduct
outside Australia at an earlier time, which would have constituted an
offence had the conduct or equivalent conduct occurred in Australia. This
will be referred to as the 'notional Australian offence'.
The phrase 'at an earlier time' in new paragraph 45(1)(b) will refer to a
time prior to person X's remand under section 15 of the Act. This is
because, under subsection 45(4), the Attorney-General shall only consent to
a prosecution under section 45 in relation to an extradition offence (or
extradition offences) for which surrender has been refused under section 22
of the Act. Accordingly, the conduct which will be captured by this
offence will be limited to the conduct for which the Attorney-General
refused surrender, and could not include, for example, illegal conduct
which person X may have engaged in, in his or her past which is not the
subject of the particular extradition request or conduct which the person
may engage in after their remand under section 15. This means person X
will not be vulnerable to prosecution for offences which he or she may have
committed, or may commit, over a potentially indefinite period of time.
The phrase 'equivalent conduct' in new paragraph 45(1)(c) is intended to
cover circumstances where an element of the relevant foreign offence is
analogous but not identical to a corresponding element of the relevant
Australian offence (for example, in Australia, conduct equivalent to
defrauding the United States Internal Revenue Service will be defrauding
the Australian Taxation Office).
Subsection 45(2) will outline that absolute liability will attach to new
paragraphs 45(1)(a) and 45(1)(b) and to the circumstances in paragraph
45(1)(c). This will mean that the prosecution need not prove person X was
reckless as to the elements required to establish the offence under
subsection 45(1). This will clarify that new paragraphs 45(1)(a), 45(1)(b)
and 45(1)(c) will effectively be factual pre-conditions for the existence
of the offence. This will ensure that the prosecution is not required to
prove that the person intended to engage in conduct outside Australia at an
earlier time or that the person was reckless as to whether that conduct
would have constituted an offence in Australia had the conduct or
equivalent conduct occurred in Australia. Further, new subsection 45(3)
will set out the physical and fault elements that need to be established by
the prosecution.
New subsection 45(3) will explain how the prosecution is to prove the
'notional Australian offence'. New paragraph 45(3)(a) will require the
prosecution to prove the physical and fault elements applicable to the
'notional Australian offence'. In the example above, person X's conduct
constitutes the Australian offence of murder. Accordingly, the prosecution
will be required to prove the physical and fault elements for the offence
of murder in the State or Territory in which person X is on remand.
Assuming person X was held on remand in Queensland, the prosecution will be
required to prove the physical and fault elements for the offence of murder
under Queensland law.
The phrase 'however described' in new paragraph 45(3)(a) will encompass
concepts such as mens rea and actus reus (that is, elements of an offence
which have not been codified in legislation and are therefore not described
as 'physical' and 'fault' elements).
New paragraph 45(3)(b) will provide that any defences or special liability
provisions that apply in relation to the notional Australian offence will
have effect. Using the example above, if person X was held on remand in
Queensland, then any defences (for example, self-defence) or special
liability provisions applicable to the offence of murder in Queensland will
apply. 'Special liability provision' is defined in the Dictionary to the
Criminal Code (Cth) to mean:
. a provision that provides that absolute liability applies to one or
more (but not all) of the physical elements of an offence
. a provision that provides that, in a prosecution of an offence, it is
not necessary to prove that the defendant knew a particular thing, or
. a provision that provides that, in a prosecution for an offence, it is
not necessary to prove that the defendant knew or believed a
particular thing.
The phrase 'however described' in new paragraph 45(3)(b) will include
defences or special liability provisions that are not described as such in
State or Territory legislation.
New paragraph 45(3)(c) will provide that any procedures or limitations that
apply in relation to the notional Australian offence will have effect.
This will ensure that any applicable limitation period for the notional
Australian offence would apply, as would any relevant procedure in relation
to the offence, such as offering suitable protections for vulnerable
witnesses.
The phrase 'however described' in new paragraph 45(3)(c) will include
procedures or limitations that are not described as such in State or
Territory legislation.
Division 1 of Part X and subsection 79(1) of the Judiciary Act 1903 apply
State and Territory procedural laws in relation to persons charged with
Commonwealth offences. New subsection 45(3A) will clarify that new
subsection 45(3) is not intended to override or replace the Judiciary Act
provisions.
New subsection 45(3B) will apply the maximum penalty applicable to the
notional Australian offence at the time the conduct occurred. Using the
example above, that will be the maximum penalty for the offence of murder
under Queensland law at the time person X killed person Y in country Z.
This will ensure person X will not be liable for a harsher maximum penalty
than was applicable when the offence was committed. This is consistent
with Australia's international obligations under Article 15 of the
International Covenant on Civil and Political Rights.
New subsection 45(3C) will clarify that the offence is an indictable
offence. This will ensure that prosecutions for such offences are held
before a jury, as section 80 of the Constitution requires jury trials for
indictable Commonwealth offences. In practice, the conduct constituting
the 'notional Australian offence' in this offence would generally
constitute an indictable offence, as all extradition treaties to which
Australia is party do not permit extradition for offences punishable by a
maximum penalty of less than 12 months imprisonment.
New subsection 45(3D) will provide that the Attorney-General's written
consent is required for offence proceedings to be instituted. This is
consistent with the current provision governing prosecution in lieu of
extradition. The Attorney-General would have discretion to refer the
matter to the relevant law enforcement agency for investigation and the DPP
for prosecution. The DPP would need to independently assess whether a
prosecution should be undertaken in accordance with its Prosecution Policy.
The Prosecution Policy requires the DPP to be satisfied that there is
sufficient evidence to prosecute the case, and that it is evident from the
facts of the case and all the surrounding circumstances that the
prosecution would be in the public interest.
Existing subsection 45(4) (which will be amended by items 49 to 52) will
continue to provide for when the Attorney-General can give his or her
consent to a prosecution in lieu of extradition.
Item 48 - Application of item 47
This item will clarify that the amendments to the offence provision in
section 45 of the Extradition Act will not apply retrospectively.
Item 49 - Subsection 45(4)
This item will remove the reference to 'subsection (3)' in subsection 45(4)
and replace it with 'subsection (3D)'. This change is a consequence of
item 47, which will repeal existing subsections 45(1), (2) and (3) and
replace them with new subsections. As new subsection 45(3D) will require
the Attorney-General's consent for proceedings to take place, this item
will replace the reference to subsection 45(3) with subsection 45(3D).
Item 50 - Paragraph 45(4)(a)
This item will remove the reference to 'paragraph (1)(a)' and replace it
with 'paragraph (1)(b); and'. This change is a consequence of item 47,
which will repeal existing subsection 45(1) and replace it with a new
subsection. As new paragraph 45(1)(b) will refer to conduct for which an
extradition country has sought the surrender of a person, this item will
replace the reference to paragraph (1)(a) with a reference to paragraph
(1)(b).
Item 51 - Paragraph 45(4)(b)
This item will omit the reference to 'country; and' in paragraph 45(4)(b)
and replace it with 'country.' This is a consequence of item 52, which
will repeal existing paragraph 45(4)(c).
Item 52 - Paragraph 45(4)(c)
Existing paragraph 45(4)(c) provides that the Attorney-General can only
give his or her consent for prosecution in lieu of extradition if:
. the Attorney-General made a determination not to surrender a person
because the person was an Australian citizen at the time of committing
the offence
. the extradition country would not have surrendered the person to
Australia if the situation was reversed, and
. the Attorney-General intended to give his or her consent for
prosecution in lieu of extradition.
This item will repeal the limitations to prosecution in lieu of extradition
in paragraph 45(4)(c). This will enable Australia to prosecute a person
regardless of their nationality, and regardless of whether the extradition
country would not have surrendered the person to Australia if the situation
had been reversed.
This will assist in preventing Australia from becoming an attractive safe
haven for fugitives from countries whose criminal justice systems might
give rise to grounds for refusal under the Extradition Act. For example,
where there are concerns about torture or the death penalty.
Item 53 - Application of the amendment made by item 52
This item will provide that the amendment made by item 52 will apply in
respect of an extradition request made by an extradition country if the
request is made on or after the commencement of this item. This item is to
commence on a date to be fixed by Proclamation.
Item 54 - Subsection 45(5)
This item will remove the reference to 'subsection (3)' in subsection 45(5)
and replaces it with 'subsection (3D)'. This change is a consequence of
item 47, which will repeal existing subsections 45(1), (2) and (3) and
replace them with new subsections. As new subsection 45(3D) will require
the Attorney-General's consent for proceedings to take place, this item
will replace the reference to subsection 45(3) with subsection 45(3D).
Division 7-Technical amendments relating to notices
Overview
Division 7 of Part 3 of Schedule 2 of the Bill will make various minor and
technical amendments to the provisions in the Extradition Act which provide
for the Attorney-General to give notices. The Extradition Act makes
provision for the Attorney-General to give notices at various stages of the
extradition process, for example, notices stating that an extradition
request has been received (section 16) and notices directing a magistrate
to release a person from remand (section 17).
Item 55 - After section 16
Section 16 provides for the Attorney-General to issue a notice to a
magistrate stating that a formal extradition request has been received. In
some cases it may be desirable for the Attorney-General to amend a section
16 notice after the notice is given, for example, to rectify a minor
deficiency or to add additional extradition offences that satisfy the
requirements under the Extradition Act. Currently subsection 10(4) of the
Extradition Act refers to a section 16 notice as including the notice as
amended. This implies that a section 16 notice can be amended, however,
there is no express power under the Extradition Act for the Attorney-
General to amend the section 16 notice and the Extradition Act does not
specify the processes for making such an amendment.
This item will insert a new section 16A, after existing section 16, to make
specific provision for the Attorney-General to amend a notice of receipt of
an extradition request given under section 16 of the Extradition Act.
Section 16A will enable the Attorney-General to amend the notice at any
time up until the magistrate determines the person eligible for surrender,
or the person consents to surrender under section 18.
New subsection 16A(1) will set out when section 16A applies. This will
provide that section 16A applies if the Attorney-General has given a notice
(the original notice) under subsection 16(1) of the Extradition Act in
relation to a person.
New subsection 16A(2) will provide that the Attorney-General may, in his or
her discretion, give an amended notice at any time before:
. the person consents to surrender under section 18 in relation to the
extradition offence or extradition offences specified in the original
notice, or
. a magistrate determines the person eligible for surrender in relation
to the extradition offence or extradition offences specified in the
original notice.
New subsection 16A(3) will provide that the amended notice must be in
writing in the statutory form expressed to be directed to any magistrate.
This will ensure that the magistrate is informed of any amendments to the
notice.
New subsection 16A(4) will provide that if the amended notice lists new
extradition offences, the Attorney-General may only give the notice if the
requirements of section 16 of the Extradition Act are satisfied with
respect to the new offences. This will mean that the Attorney-General may
only give the amended notice containing the new offences if he or she could
have given a notice in relation to those offences under section 16. This
will ensure all new offences in the amended notice comply with the
requirements set out in section 16.
New subsection 16A(5) will provide that a reference to a notice given under
subsection 16(1) in the Extradition Act includes a reference to an amended
notice given under subsection 16A(2). This will ensure that provisions in
the Extradition Act which apply to notices given under subsection 16(1)
will also apply to amended notices given under new subsection 16A(2).
New subsection 16A(6) will provide that an amended notice given under
subsection 16A(2) is not a legislative instrument. This will clarify that
a notice given under subsection 16A(2) is not a legislative instrument
within the meaning of section 5 of the Legislative Instruments Act 2003.
New subsection 16A(7) will provide that as soon as practicable after the
person is remanded under section 15, or an amended notice is given under
subsection 16A(2), whichever is later, a copy of the amended notice and, if
the amended notice specifies one or more extradition offences that were not
in the original notice, copies of relevant documents relating to the
offence(s), must be given to the person. This will ensure the person is
kept informed of the case against him or her, including information
relating to the offences for which he or she is being sought for
extradition.
New subsection 16A(8) will provide that section 16A does not limit the
power of the Attorney-General to revoke the original notice in accordance
with subsection 33(3) of the Acts Interpretation Act 1901. Subsection
33(3) of the Acts Interpretation Act 1901 provides that where an Act
confers a power to make, grant or issue any instrument, the power shall,
unless the contrary intention appears, be construed as including a power to
repeal, rescind, revoke, amend, or vary any such instrument.
Item 56 - Paragraph 17(1)(a)
This item will replace the reference to 'issue' in paragraph 17(1)(a) with
'give' to make the language of paragraph 17(1)(a) consistent with
references to the Attorney-General 'giving' notice under section 16 and
other provisions in the Extradition Act.
Item 57 - After subsection 18(1)
This item will insert a new subsection 18(1A), after existing subsection
18(1), into the Extradition Act. New subsection 18(1A) will provide that
where the Attorney-General gives an amended notice under new section 16A
(which will be inserted by item 55) containing new offences while consent
to surrender proceedings are being conducted under section 18, the
magistrate may adjourn proceedings to give the person additional time to
inform the magistrate about whether the person consents to be surrendered
in relation to any of those new offences. This will ensure a person has an
appropriate amount of time to consider whether to consent to the new
offences.
Item 58 - After subsection 19(4)
This item will insert a new subsection 19(4A), after existing subsection
19(4), into the Extradition Act. New subsection 19(4A) will provide that
where the Attorney-General gives an amended notice under new section 16A
(which will be inserted by item 55) containing new offences while
determination of eligibility for surrender proceedings are being conducted
under section 19, the magistrate may, if he or she considers it necessary,
adjourn proceedings to give the person and the extradition country
additional time to prepare for the conduct of proceedings. This will
ensure a person and the extradition country have an appropriate amount of
time to prepare for the conduct of proceedings involving the new offences.
Item 59 - Subsection 43(1)
Section 43 allows the Attorney-General to authorise the taking of evidence
for use in any proceedings for the surrender of that person to Australia
where the Attorney-General suspects that the person is an extraditable
person in relation to Australia. This item will insert 'expressed to be
directed to any magistrate' after the reference to 'statutory form' in
subsection 43(1). This amendment is to clarify that where the Attorney-
General authorises, by notice in writing in the statutory form, the taking
of evidence under section 43, it is to be directed to a magistrate.
Item 60 - After section 46
The Extradition Act makes provision for the Attorney-General to give
notices at various stages of the extradition process including, for
example, notices stating that an extradition request has been received
(section 16) and notices directing a magistrate to release a person from
remand (section 17). This item will insert new section 46A, after existing
section 46, into the Act. New section 46A will set out the process by
which a notice may be 'given' and the time at which such notices are taken
to be given. The time at which a notice is taken to be 'given' by the
Attorney-General can be particularly relevant in determining if the
Attorney-General has given a section 16 notice within the 45 day period
specified in section 17 of the Act.
Subsection 46A(1) will provide that new section 46A will apply to notices
(under subsection 16(1)), amended notices (under new subsection 16A(2)), as
well as other types of notices given by the Attorney-General to a
magistrate (under subsections 43(1), 12(3), 15B(4) or 17(1)).
Subsection 46A(2) will provide that when a notice, or copy of the notice,
is to be given to a magistrate, it may be handed to a magistrate in person
or sent to a magistrate by post, fax, email or other electronic means.
Subsection 46A(3) will provide that the notice is taken to be given at the
time at which the notice, or a copy of the notice, is handed to the
magistrate, or delivered in the ordinary course of post, or at the time at
which the fax, email or other electronic communication is sent to the
magistrate (whichever is relevant). For example, if an email is sent to
the magistrate on 1 July 2011, then that is when the notice is taken to be
given, regardless of when the magistrate actually views the email.
Item 61 - Application-section 16A of the Extradition Act 1988
This item will provide that new section 16A, which will be inserted by item
55, will apply in relation to a notice given under subsection 16(1) of the
Act, after the commencement of this item. This item will commence on a
date to be fixed by Proclamation.
Item 62 - Application-section 46A of the Extradition Act 1988
This item provides that new section 46A, which will be inserted by item 60,
will apply in relation to a notice given under subsections 16(1), 16A(2) or
43(1) of the Extradition Act, if the Attorney-General gives notice on or
after the commencement of this item. This item will commence on a date to
be fixed by Proclamation.
This item will also provide that new section 46A, which will be inserted by
item 60, will apply to a notice under subsection 12(3) or 17(1) of the
Extradition Act if the Attorney General is required to give notice on or
after the commencement of this item. This item will commence on a date to
be fixed by Proclamation.
Division 8-Amendments relating to remand and bail
Overview
This Division will make amendments to extend the availability of bail in
the extradition process. This Division will also make amendments to
provide the Attorney-General with an additional five days in which to
consider whether to issue a section 16 notice stating that an extradition
request has been received.
Extradition Act 1988
Item 63 - Paragraph 17(2)(b)
The effect of existing paragraph 17(2)(b) is that, where a person is
arrested on a provisional arrest warrant in urgent circumstances, the
person shall be brought before a magistrate who shall determine if the
person is to be released from custody if the Attorney-General has not
issued a notice stating that a formal extradition request has been received
(a 'section 16 notice') within 45 days. The period of 45 days may be
varied through Regulations. This item will repeal existing paragraph
17(2)(b) and replace it with a new paragraph 17(2)(b).
New paragraph 17(2)(b) will provide that where a person is arrested on a
provisional arrest warrant in urgent circumstances, and the Attorney-
General has not received an extradition request or has received such a
request but has not issued a section 16 notice within five days after the
period of days referred to in paragraph 17(2)(a) (i.e. 45 days), then the
person is to be brought before a magistrate.
The effect of new paragraph 17(2)(b) will be that the Attorney-General is
given an additional five days following the receipt of an extradition
request to consider the request and determine whether to issue a section 16
notice. Many of Australia's treaties with other countries require an
extradition request to be made within a certain period of a person being
arrested on a provisional arrest warrant. However, the Extradition Act
requires the Attorney-General to issue a section 16 notice within that same
period.
In circumstances where a person has been provisionally arrested and the
Attorney-General receives the extradition request on the last day of the
specified time period, he or she may not have sufficient time to consider
the request and determine whether to issue the section 16 notice. This
amendment would allow the Attorney-General an additional five days
following the receipt of an extradition request for the Attorney-General to
consider the request and determine whether to issue a section 16 notice.
The other requirement in existing paragraph 17(2)(b) for what the
magistrate must do once a person has been brought before him or her will be
removed by item 64, and provided in new subsection 17(2A), which will be
inserted by item 65.
Item 64 - Subsection 17(2)
Subsection 17(2) of the Extradition Act provides that where a person is
arrested on a provisional arrest warrant in urgent circumstances, they must
be brought before a magistrate if a formal extradition request is not
received or the Attorney-General decides not to issue a section 16 notice
within a specified period of the person being held on remand. This item
will remove all the words after the third occurring reference to 'the
person' in subsection 17(2) and replace them with 'must be brought before a
magistrate'. This amendment removes the provision for what a magistrate
must do once a person has been brought before him or her under existing
subsection 17. This is because this requirement will be outlined in
amended form in a new subsection 17(2A), which will be inserted by item 65.
Item 65 - after subsection 17(2)
This item will insert a new subsection 17(2A), after existing subsection
17(2), into the Extradition Act. Subsection 17(2) provides that a person
who has been arrested on a provisional arrest warrant and placed on remand
must be brought before a magistrate if the Attorney-General has not given a
section 16 notice within a specified period of the person being held on
remand.
New subsection 17(2A) will provide that once the person is brought before a
magistrate, the magistrate would be required to release the person or
discharge the recognisances on which bail was granted to the person except:
. where the Attorney-General has not received a formal extradition
request from the extradition country in relation to the person, if:
o exceptional circumstances have prevented the extradition country
from providing an extradition request (subparagraph
17(2A)(a)(i))
o the Attorney-General is likely to receive an extradition request
within a particular time that is reasonable in the circumstances
(subparagraph 17(2A)(a)(ii)), and
o after receiving the extradition request, the Attorney-General is
likely to make a decision to give or not to give a section 16
notice within a particular period that is reasonable in the
circumstances (subparagraph 17(2A)(a)(iii)).
. where the Attorney-General has received a formal extradition request
but a section 16 notice has not been given, if:
o the Attorney-General is likely to make a decision to give, or
not to give, a section 16 notice within a particular period that
is reasonable in the circumstances (paragraph 17(2A)(b)).
This amendment will better align the operation of the Extradition Act with
Australia's obligations under bilateral extradition treaties and would
ensure the Attorney-General has sufficient opportunity to give due
consideration to extradition requests before issuing a section 16 notice.
This provision will also clearly delineate the circumstances in which a
person can continue to be held on remand, and thereby provide greater
certainty for persons subject to an extradition request or potentially
subject to an extradition request.
Item 66 - Paragraphs 17(3)(a) and (b)
This item will repeal existing paragraphs 17(3)(a) and (b) and replace them
with new paragraphs 17(3)(a) and (b). The new paragraphs will provide that
a magistrate must order the release of a person from custody, or discharge
any recognisances on which bail was granted, as the case requires, if:
. the formal extradition request is not received within the particular
period (as anticipated under new subparagraph 17(2A)(a)(ii)), or
. the decision to give or not to give a section 16 notice is not made
within the particular period (as anticipated under new subparagraph
17(2A)(a)(iii) or new paragraph 17(2A)(b)).
This amendment of existing paragraphs 17(3)(a) and (b) is necessary as a
consequence of the changes that will be made by item 65.
Item 67 - Subparagraph 18(2)(a)(i)
This item will insert ', or subject to subsection (3), released on bail'
after the reference to 'prison' in subparagraph 18(2)(a)(i). This
amendment is a consequence of the extension of the availability of bail,
which will be inserted by item 68.
Item 68 - Paragraph 18(2)(b)
Currently under the Extradition Act, a person may be remanded on bail
during the early stages of the extradition process if special circumstances
exist. However, once a person is determined by a magistrate to be eligible
for surrender, he or she must be committed to prison. Under paragraph
18(2)(b), the person must also be committed to prison, once he or she
consents to extradition. This item will repeal existing paragraph 18(2)(b)
and replace it with a new paragraph 18(2)(b), which will extend the
availability of bail to persons who have consented to extradition.
New paragraph 18(2)(b) will provide that if the person consents to being
surrendered, the magistrate shall order that the person be committed to
prison or, subject to new subsection 18(3) (which will be inserted by item
69), released on bail to await:
. surrender under a surrender warrant or temporary surrender warrant, or
. release, or the discharge of the recognisances on which bail was
granted, under an order under subsection 22(5).
Extending the availability of bail to situations where a person consents to
extradition will ensure the Extradition Act is sufficiently flexible to
accommodate extenuating circumstances that may justify granting a person
bail. New section 49B, which will be inserted by item 84, will provide
that a decision by a court to release a person on bail may be made on such
terms and conditions as the court or magistrate thinks fit.
Item 69 - At the end of section 18
This item will insert new subsections 18(3), 18(4) and 18(5) at the end of
section 18 of the Extradition Act. New paragraph 18(2)(b), which will be
inserted by item 68, will allow a person to be released on bail if the
person consents to being surrendered. Subsection 18(3) will provide that a
magistrate must not release a person on bail where the person consents to
surrender under section 18, unless there are special circumstances
justifying such release. This aligns with the circumstances in which bail
can be granted under section 15, which provides for a person who is
arrested under the Extradition Act to be placed on remand for the purposes
of consent to surrender proceedings under section 18 or determination of
eligibility for surrender proceedings under section 19.
This reflects the current presumption against bail under subsection 15(6)
for persons who seek to be released on bail upon consent to being
surrendered under new paragraph 18(2)(b). Creating a presumption against
bail for persons sought for extradition is appropriate given the serious
flight risk posed in extradition matters and Australia's international
obligations to secure the return of alleged offenders to face justice in
the requesting country. The High Court in United Mexican States v Cabal[1]
has previously observed that to grant bail where a risk of flight exists
would jeopardise Australia's relationship with the country seeking
extradition and jeopardise our standing in the international community.
New section 49B, which will be inserted by item 84, will provide that any
decision under the Extradition Act of a court or a magistrate to remand or
release a person on bail may be made on such terms and conditions as the
court or magistrate thinks fit. The presumption against bail unless there
are special circumstances and new section 49B will assist Australia to meet
its international obligations to secure the return of alleged offenders to
face justice in the requesting country.
New subsection 18(4) will provide that if a magistrate makes an order
committing the person to prison or releasing the person on bail under
paragraph 18(2)(b), the magistrate must advise the Attorney-General in
writing of the offence or offences in respect of which the person has
consented to surrender. This replicates the requirement under existing
subparagraph 18(2)(b)(ii), which will be repealed by item 68, and will
ensure that the Attorney-General is notified of extradition offences which
the person has consented to and which he or she must ultimately decide
whether to extradite the person in relation to.
New subsection 18(5) will provide that an order committing a person to
prison under paragraph 18(2)(b) must be made by warrant in the statutory
form. This replicates the requirement under existing subparagraph
18(2)(b)(i), which will be repealed by item 68.
Item 70 - Paragraph 19(9)(a)
Existing paragraph 19(9)(a) of the Extradition Act provides that where a
magistrate determines that a person is eligible for surrender, the
magistrate shall order the person be committed to prison to await
surrender. This item will repeal existing paragraph 19(9)(a) and insert a
new paragraph 19(9)(a). This item will extend the availability of bail to
persons who have been determined eligible for surrender by a magistrate.
New paragraph 19(9)(a) will provide that if the magistrate determines the
person is eligible for surrender, the magistrate shall order that the
person be committed to prison or (subject to new subsection 19(9A), which
will be inserted by item 72), released on bail, to await surrender under a
surrender warrant or temporary surrender warrant. However, if the Attorney-
General decides not to surrender the person, new paragraph 19(9)(a) will
require the magistrate to order the release of the person, or the discharge
of the recognisances on which bail was granted, under an order under
subsection 22(5).
Extending the availability of bail to a person following a magistrate's
determination that the person is eligible for surrender will ensure the
Extradition Act is sufficiently flexible to accommodate extenuating
circumstances that may justify granting a person bail.
Item 71 - Paragraph 19(9)(b)
This item will remove the reference to 'in the warrant is made, seek a
review of the order' in paragraph 19(9)(b) and substitute it with 'under
paragraph (a) is made, seek a review of the order'. This amendment is a
consequence of the changes that will be made by item 70.
Amended paragraph 19(9)(b) will require the magistrate to inform the person
that they can seek a review of the order under subsection 21(1) within 15
days after the day on which the order under paragraph 19(9)(a) is made. An
order under amended paragraph 19(9)(a) could be made by warrant if the
person is committed to prison, but it could also be an order that the
person be released on bail (which would not be required to be made by
warrant).
Item 72 - After subsection 19(9)
This item will insert new subsections 19(9A) and 19(9B) after subsection
19(9). Subsection 19(9A) will provide that a magistrate must not release a
person on bail where the magistrate determines that the person is eligible
for surrender under paragraph 19(9)(a), unless there are special
circumstances justifying such release. This reflects the current
presumption against bail under subsection 15(6) of the Extradition Act.
Creating a presumption against bail for persons sought for extradition is
appropriate given the serious flight risk posed in extradition matters and
Australia's international obligations to secure the return of alleged
offenders to face justice in the requesting country. The High Court in
United Mexican States v Cabal[2] has previously observed that to grant bail
where a risk of flight exists would jeopardise Australia's relationship
with the country seeking extradition and jeopardise our standing in the
international community.
New section 49B, which will be inserted by item 84, will provide that any
decision under the Extradition Act of a court or a magistrate to remand or
release a person on bail may be made on such terms and conditions as the
court or magistrate thinks fit. The presumption against bail unless there
are special circumstances justifying such a release and new section 49B
will assist Australia to meet its international obligations to secure the
return of alleged offenders to face justice in the requesting country.
Subsection 19(9B) will provide that an order committing a person to prison
under paragraph 19(9)(a) must be made by warrant in the statutory form.
This replicates the requirement under existing paragraph 19(9)(a), which
will be removed by item 70.
Item 73 - Paragraph 21(2)(b)
Existing paragraph 21(2)(b) provides that upon review of a magistrate's
determination of eligibility for surrender, the Court may quash the
original order of the magistrate and direct the magistrate to release the
person or commit the person to prison to await surrender. This item will
repeal existing paragraph 21(2)(b) and substitute it with a new
paragraph 21(2)(b), which will simply provide that the Court may quash the
order made by the magistrate. New subsection 21(2A) (which will be
inserted by item 74) will provide for the orders the Court must make if a
Court quashes its order.
Item 74 - After subsection 21(2)
This item will insert new subsections 21(2A), 21(2B) and 21(2C) after
subsection 21(2) (which will be amended by item 73). New subsection 21(2A)
will set out the orders the Federal Court must make if it quashes an order
of a magistrate under subsection 19(9) or (10).
. If the magistrate made an order under subsection 19(9) (that the
person is eligible for surrender) and the Federal Court quashes that
order-the Federal Court must also order the release of the person or
the discharge of the recognisances on which bail was granted. This
ensures a person is released and no longer subject to extradition
processes.
. If the magistrate made an order under subsection 19(10) (that the
person is not eligible for surrender) and the Federal Court quashes
that order-the Federal Court must also order that the person be
committed to prison or (subject to new subsection (2B)) released on
bail, to await surrender under a surrender warrant or a temporary
surrender warrant or to await release, or the discharge of the
recognisances on which bail was granted, under an order under
subsection 22(5).
The orders for the discharge of the recognisances on which bail was
granted, or for the person to be released on bail under new subsection
21(2A) are additional to what is currently provided under existing
subsection 21(2). This is a consequence of the extension of bail to the
later stages of the extradition process that will be made by item 70.
New subsection 21(2B) will provide that the Federal Court must not release
a person on bail under new paragraph 21(2A)(b) unless there are special
circumstances justifying such release. Maintaining this presumption
against bail for orders made by the Federal Court on appeal is appropriate
given the serious flight risk posed in extradition matters and Australia's
international obligations to secure the return of alleged offenders to face
justice. The High Court in United Mexican States v Cabal[3] has previously
observed that to grant bail where a risk of flight exists would jeopardise
Australia's relationship with the country seeking extradition and
jeopardise our standing in the international community.
New section 49B, which will be inserted by item 84, will provide that any
decision under the Extradition Act of a court or a magistrate to remand or
release a person on bail may be made on such terms and conditions as the
court or magistrate thinks fit. The presumption against bail unless there
are special circumstances justifying such a release and new section 49B
will assist Australia to meet its international obligations to secure the
return of alleged offenders to face justice in the requesting country.
New subsection 21(2C) will provide that an order by the Federal Court, on
appeal, committing a person to prison under paragraph 21(2A)(b) must be
made by a warrant in the statutory form.
Item 75 - Paragraph 21(6)(e)
Existing paragraph 21(6)(e) provides that where an extradition country
applies for review of a magistrate's order or institutes any subsequent
appeal under section 21 of the Extradition Act in circumstances where a
person has been released because of an order by a magistrate or a court on
appeal, the court to which the application or appeal is made may order the
arrest of the person. This item will repeal existing paragraph 21(6)(e)
and substitute it with a new paragraph 21(6)(e).
New paragraph 21(6)(e) will provide that the court may, if the person was
released on bail, order both the discharge of the recognisances on which
bail was granted and the arrest of the person. This additional order will
be necessary as a consequence of the extension of bail to the later stages
of the extradition process that will be made by item 70.
Item 76 - Subparagraph 21(6)(f)(i)
Existing subparagraph 21(6)(f)(i) provides that if, because of an order by
a magistrate at first instance, or by a court on appeal, the person has
been remanded in custody, the court to which an application for review or
appeal has been made may order the person's release on bail until the
review has been conducted or appeal heard. This item will repeal existing
subparagraph 21(6)(f)(i) and substitute it with a new
subparagraph 21(6)(f)(i), which will more generally provide that if an
order for the release of the person has not been made, the court to which
an application for review or appeal has been made may order the person's
release on bail until the review has been conducted or appeal heard. It
will simplify the existing subparagraph 21(6)(f)(i) by not specifying the
source of the order not to release the person.
Item 77 - Subparagraph 21(6)(f)(iv)
Subparagraph 21(6)(f)(iv) provides that if a person has been remanded in
custody, the court hearing an application for review or an appeal may, if
there are special circumstances justifying such a course, order the release
on bail of the person on such terms and conditions as the court thinks
fits.
This item will remove the reference to 'on such terms and conditions as the
court thinks fit' in subparagraph 21(6)(f)(iv). These words will not be
necessary as a consequence of new section 49B, which will be inserted by
item 84. New section 49B will provide that any decision under the
Extradition Act of a court or a magistrate to remand or release a person on
bail may be made on such terms and conditions as the court or magistrate
thinks fit.
Item 78 - Subsection 22(1) (definition of eligible person)
This item will amend the definition of eligible person in subsection 22(1)
by inserting the words 'or released on bail' after 'prison'. This is to
reflect the changes which will be made by items 68 and 70, which will
extend the availability of bail to a person following a determination by a
magistrate that he or she is eligible for surrender or his or her consent
to extradition.
Item 79 - Subsection 22(1) (paragraph (b) of definition of eligible person)
This item will repeal existing paragraph (b) of the definition of eligible
person and replace it with a new paragraph (b). New paragraph (b) will
update cross-references to relevant provisions under which a person may be
committed to prison or released on bail by order of a magistrate. These
updates are necessary as a consequence of new subsection 21(2A) (which will
be inserted by item 74), which will replace the content of
subparagraph 21(2)(b)(ii), and the changes to section 19 (which will be
made by item 71).
As a result, a person will be an eligible person for the purposes of a
surrender determination by the Attorney-General if they have been committed
to prison or released on bail following a determination of eligibility for
surrender by a magistrate under subsection 19(9) or a decision by the
Federal Court to quash a magistrate's determination that the person is not
eligible for surrender on appeal under subsection 21(2A) and no further
appeal proceedings are being conducted or are available.
Item 80 - Subsection 22(5)
Subsection 22(5) of the Extradition Act requires the Attorney-General to
order, in writing, the release of a person where the Attorney-General
determines that the person is not to be surrendered to the extradition
country.
This item will remove the reference to 'the Attorney-General shall order,
in writing, the release of the person' in subsection 22(5) and replace it
with 'the Attorney-General must, by notice in writing, direct a magistrate
to order:
. if the person has been committed to prison-the release of the person;
or
. if the person has been released on bail-the discharge of the
recognisances on which bail was granted.'.
This amendment is a consequence of the extension of the availability of
bail to a person following his or her determination of eligibility for
surrender by a magistrate or his or her consent to extradition.
Item 81 - Paragraph 26(1)(c)
Section 26 provides for the form and execution of surrender warrants and
temporary surrender warrants. Paragraph 26(1)(c) provides that a surrender
warrant or a temporary surrender warrant shall require the person who is
being held in custody to be released into the custody of a police officer.
This allows the police officer to execute the surrender warrant. This item
will insert 'if the person has been committed to prison-' before the
reference to 'require' in paragraph 26(1)(c). This amendment is a
consequence of the extension of the availability of bail to a person
following a determination by a magistrate that he or she is eligible for
surrender or his or her consent to extradition, which means that a person
the subject of a surrender warrant may not always be held in custody. New
paragraph 26(1)(ca), which will be inserted by item 82, will provide for
the situation where a surrender warrant is executed against a person who is
released on bail.
Item 82 - After paragraph 26(1)(c)
This item will insert new paragraph 26(1)(ca) after existing paragraph
26(1)(c) of the Extradition Act. New paragraph 26(1)(ca) will provide that
if the person is released on bail, a surrender warrant or a temporary
surrender warrant in relation to a person shall authorise any police
officer to take the person into custody and to take the person before a
magistrate or, if a court made the order releasing the person on bail,
before that court for the purposes of the discharge of the recognisances on
which bail was granted (if necessary). This item is a consequence of the
extension of the availability of bail to a person following a determination
by a magistrate that he or she is eligible for surrender or after his or
her consent to extradition (items 68 and 70). It is also a consequence of
the extension of the availability of bail to a person where the Federal
Court quashes a magistrate's order to release the person and makes a new
order that the person should be committed to prison pending a surrender
determination (item 74).
Item 83 - Subparagraph 35(6)(g)(iv)
Subparagraph 35(6)(g)(iv) of the Extradition Act provides that if a person
has been remanded in custody in the execution of an extradition request
from New Zealand, the court hearing the application for review or on appeal
may, if there are special circumstances justifying such a course, order the
release on bail of the person on such terms and conditions as the court
thinks fits. This item will remove the words 'on such terms and conditions
as the court thinks fit' from subparagraph 35(6)(g)(iv). These words will
not be necessary as a consequence of new section 49B, which will be
inserted by item 84. New section 49B will provide that any decision under
the Extradition Act of a court or a magistrate to remand or release a
person on bail may be made on such terms and conditions as the court or
magistrate thinks fit.
Item 84 - After section 49A
This item will insert new sections 49B and 49C after existing section 49A.
New section 49B will provide that a decision under the Extradition Act of a
court or a magistrate to remand or release a person on bail may be made on
such terms and conditions as the court or magistrate thinks fit. There
will be various stages of the extradition process where a court or
magistrate is able to release a person on bail including where a person has
consented to extradition, where a magistrate determines that a person is
eligible for surrender, and where the Federal Court quashes a determination
of the magistrate that a person is not eligible for surrender, on appeal.
New section 49B will cover all instances where a court or magistrate
decides to remand or release a person on bail.
New section 49C extends the availability of bail to where a person seeks
review of the Attorney-General's decision to surrender a person under
subsection 22(2) or 15B (which will be inserted by item 24). Subsections
49C(1) and 49C(2) will provide that if the Attorney-General determines that
a person is to be surrendered, and the person applies to a court for
judicial review of the determination, the court to which the application is
made, or any court hearing a subsequent appeal, may order the release of
the person on bail until the application has been determined or the appeal
has been heard. Subsection 49C(3) provides that a court must not release a
person on bail unless there are special circumstances justifying such
release. Maintaining this presumption against bail where a person seeks
review of the Attorney-General's decision to surrender a person is
appropriate given the serious flight risk posed in extradition matters and
Australia's international obligations to secure the return of alleged
offenders to face justice in the requesting country. The High Court in
United Mexican States v Cabal[4] has previously observed that to grant bail
where a risk of flight exists would jeopardise Australia's relationship
with the country seeking extradition and jeopardise our standing in the
international community.
New section 49B will provide that any decision under the Extradition Act of
a court or a magistrate to remand or release a person on bail may be made
on such terms and conditions as the court or magistrate thinks fit. The
presumption against bail unless there are special circumstances justifying
such a release and new section 49B will assist Australia to meet its
international obligations to secure the return of alleged offenders to face
justice in the requesting country.
Item 85 - Application
This item will provide that the amendments of subsections 17(2) and (3) of
the Extradition Act, which will be made by items 63, 64, 65 and 66 will
only apply to a person who is remanded under section 15 of the
Extradition Act on or after the commencement of this item. This item will
commence on a date to be fixed by Proclamation.
Division 9-Other minor technical amendments
Overview
Division 9 will make a series of minor and technical amendments to the
Extradition Act. A number of these amendments will simplify the language
of the Extradition Act and rectify technical drafting issues.
Extradition Act 1988
Item 86 - Section 5
This item will insert a definition of extraditable person in section 5 to
have the meaning given by section 6. This will correct a previous omission
to define this term.
Item 87 - Section 5
This item will insert a definition of extradition arrest warrant in section
5 to mean a warrant issued under section 12. The inclusion of this new
definition is a consequence of items 94, 96, and 98, which will change
references to 'a provisional arrest warrant' in Part II of the Extradition
Act to refer to 'an extradition arrest warrant'.
Item 88 - Section 5 (at the end of paragraph (a) of the definition of
extradition country)
This item will add 'or' at the end of paragraph (a) of the definition of
extradition country to correct a previous typographical oversight.
Item 89 - Section 5 (subparagraph (b)(ii) of the definition of extradition
country)
This item will remove the reference to 'responsible; and', and substitute
it with 'responsible; or' in subparagraph (b)(ii) of the definition of
extradition country. This will correct a previous typographical oversight.
Item 90 - Section 5
This item will insert a definition of extradition objection to have the
meaning given by section 7. This will correct a previous omission to
define this term.
Item 91 - Section 5 (definition of provisional arrest warrant)
This item will repeal the existing definition of provisional arrest warrant
in section 5 of the Extradition Act, and substitute it with a new
definition to mean a warrant issued under section 29. The new definition
will exclude warrants issued under section 12, for the purposes of Part II
of the Extradition Act (which covers extradition from Australia to
extradition countries other than New Zealand). The amendment in this item
is a consequence of items 94, 96, and 98, which will change all references
to 'a provisional arrest warrant' in Part II to refer to 'an extradition
arrest warrant'.
Item 92 - Section 5 (before subparagraph (b)(i) of the definition of
surrender warrant)
Existing subparagraph (b)(i) of the definition of surrender warrant in
section 5 provides that, where the expression is used in Part III of the
Extradition Act, a surrender warrant means a warrant issued or required to
be issued under paragraph 34(1)(c).
This item will insert a new subparagraph (b)(ia) before subparagraph (b)(i)
of the definition of surrender warrant. New subparagraph (b)(ia) will
provide that a surrender warrant when referred to in Part III will also
mean 'a warrant issued, or required to be issued, under subparagraph
33A(2)(b)(i)'. This is a warrant issued following a person consenting to
surrender to New Zealand.
Item 93 - At the end of section 12
Subsection 12(3) provides that where a magistrate has issued a provisional
arrest warrant, but the person has not yet been arrested under the warrant
and the Attorney-General decides not to proceed with the extradition
process or considers for any other reason that the warrant should be
cancelled, the Attorney-General must by notice in writing in the statutory
form, direct a magistrate to cancel the warrant. This item will insert a
new subsection 12(4) at the end of existing section 12. New
subsection 12(4) will provide that a notice given under subsection 12(3) is
not a legislative instrument. This provision is intended to clarify any
existing uncertainty about whether a notice given under subsection 12(3) is
a legislative instrument within the meaning of section 5 of the Legislative
Instruments Act 2003.
This item will also replace the existing heading for section 12,
'Provisional arrest warrants', with 'Extradition arrest warrants'. Section
12 enables a magistrate to issue a warrant for a person's arrest either
before or after a full formal extradition request has been received by
Australia. Generally, in an international context, 'provisional arrest'
refers to circumstances in which a person is arrested in urgent
circumstances before receipt of a full extradition request. Therefore, the
heading for section 12, 'provisional arrest warrants', will be changed to
'extradition arrest warrants' to avoid any implication that warrants issued
under section 12 are limited to those issued in urgent circumstances prior
to the Attorney-General issuing a section 16 notice.
Item 94 - Paragraphs 13(1)(a) and (2)(a)
This item will remove the references to 'a provisional arrest warrant' in
paragraphs 13(1)(a) and 13(2)(a) and replace them with 'an extradition
arrest warrant'. The references to 'provisional arrest warrant' in these
paragraphs refer to a warrant issued under section 12. Section 12 enables
a magistrate to issue a warrant for a person's arrest either before or
after a full formal extradition request has been received by Australia.
Generally, in an international context, 'provisional arrest' refers to
circumstances in which a person is arrested in urgent circumstances before
receipt of a full extradition request.
Item 93 will change the heading of section 12 to refer to extradition
arrest warrants to avoid any implication that warrants issued under section
12 are limited to those issued in urgent circumstances prior to the
Attorney-General issuing a section 16 notice. As a consequence of the
change that will be made by item 93, this item will change references to
'provisional arrest warrants' in paragraphs 13(1)(a) and 13(2)(a) to
'extradition arrest warrants'.
Item 95 - At the end of section 13
Subsection 13(5) provides that a police officer may retain any property or
thing seized upon or following the arrest of a person under a provisional
arrest warrant pending any direction from the Attorney-General as to the
manner in which the thing is to be dealt with. This item will add a new
subsection 13(8) at the end of existing section 13. New subsection 13(8)
provides that if a direction under subsection 13(5) is given in writing,
the direction is not a legislative instrument. This provision is intended
to clarify any existing uncertainty about whether a direction given under
subsection 13(5) is a legislative instrument within the meaning of
section 5 of the Legislative Instruments Act 2003.
Item 96 - Paragraph 14(1)(a)
This item will remove the reference to 'a provisional arrest warrant' in
paragraph 14(1)(a) and substitute it with 'an extradition arrest warrant'.
The reference to 'provisional arrest warrant' in paragraph 14(1)(a) refers
to a warrant issued under section 12. Section 12 enables a magistrate to
issue a warrant for a person's arrest either before or after a full formal
extradition request has been received by Australia. Generally, in an
international context, 'provisional arrest' refers to circumstances in
which a person is arrested in urgent circumstances before receipt of a full
extradition request.
Item 93 will change the heading of section 12 to refer to extradition
arrest warrants to avoid any implication that warrants issued under section
12 are limited to those issued in urgent circumstances prior to the
Attorney-General issuing a section 16 notice. As a consequence of the
change that will be made by item 93, this item will change the reference to
'provisional arrest warrant' in paragraph 14(1)(a) to 'extradition arrest
warrant'.
Item 97 - After subsection 14(5)
Subsection 14(5) provides that where a police officer seizes a thing in the
execution of a search and seizure warrant under section 14, the police
officer may retain the thing pending any direction from the Attorney-
General as to the manner in which it is to be dealt with. This item will
insert a new subsection 14(5A) after existing subsection 14(5). New
subsection 14(5A) provides that if a direction under subsection 14(5) is
given in writing, the direction is not a legislative instrument. This
provision is intended to clarify any existing uncertainty about whether a
direction given under subsection 14(5) is a legislative instrument within
the meaning of section 5 of the Legislative Instruments Act 2003.
Item 98 - Subsection 15(1)
This item will remove the reference to 'a provisional arrest warrant' in
subsection 15(1) and replace it with 'an extradition arrest warrant'. The
reference to 'provisional arrest warrant' in subsection 15(1) refers to a
warrant issued under section 12. Section 12 enables a magistrate to issue
a warrant for a person's arrest either before or after a full formal
extradition request has been received by Australia. Generally, in an
international context, 'provisional arrest' refers to circumstances in
which a person is arrested in urgent circumstances before receipt of a full
extradition request.
Item 93 will change the heading of section 12 to refer to an extradition
arrest warrant to avoid any implication that warrants issued under section
12 are limited to those issued in urgent circumstances prior to the
Attorney-General issuing a section 16 notice. As a consequence of the
change that will be made by item 93, this item will change the reference to
'a provisional arrest warrant' in subsection 15(1) to 'an extradition
arrest warrant'.
Item 99 - At the end of section 16
Subsection 16(1) provides that where the Attorney-General receives an
extradition request, he or she may give a notice to a magistrate stating
that the request has been received. This item will add a new subsection
16(4) at the end of existing section 16. New subsection 16(4) will provide
that a notice given under subsection 16(1) is not a legislative instrument.
This provision is intended to clarify any existing uncertainty about
whether a notice given under subsection 16(1) is a legislative instrument
within the meaning of section 5 of the Legislative Instruments Act 2003.
Item 100 - At the end of section 17
Subsection 17(1) provides that where a person is on remand pending the
Attorney-General's decision whether to issue a notice of receipt of the
formal extradition request, and the Attorney-General decides not to issue a
notice, or considers for any other reason that the remand should cease, the
Attorney-General must by notice in writing direct a magistrate to release
the person from custody or discharge any conditions on which bail was
granted (whichever is applicable). This item will add a new subsection
17(6) at the end of existing section 17. New subsection 17(6) will provide
that a notice given under subsection 17(1) is not a legislative instrument.
This provision is intended to clarify any existing uncertainty about
whether a notice given under subsection 17(1) is a legislative instrument
within the meaning of section 5 of the Legislative Instruments Act 2003.
Item 101 - Paragraph 21(6)(d)
Existing paragraph 21(6)(d) provides that where a person or the extradition
country applies for a review of the magistrate's order determining whether
a person is eligible for surrender, or institutes a subsequent appeal, the
court to which the application or appeal is made must only have regard to
the material that was before the magistrate. This item will insert
'subject to section 21A' before the reference to 'the court' in
paragraph 21(6)(d). This amendment is a consequence of new section 21A
(which will be inserted by item 102). New section 21A will make it clear
that if a review court considers evidence was wrongly excluded in the
extradition proceedings, the review court may consider the wrongly excluded
evidence as well as further evidence or submissions directly relating to
the excluded evidence.
The effect of this amendment is that the requirement for a review court to
'have regard only to the material that was before the magistrate' during
section 19 proceedings is subject to new section 21A.
Item 102 - After section 21
Paragraph 21(6)(d) provides that where a person or the extradition country
applies for review of a magistrate's decision about eligibility for
surrender, the review court may 'have regard only to the material that was
before the magistrate' during the section 19 proceedings. While it is
likely that the review court would interpret paragraph 21(6)(d) as enabling
the court to consider material that was 'before' the magistrate but wrongly
excluded, it is not clear whether the review court could then hear further
submissions on the wrongly excluded material. For example, if the review
court were able to consider material tendered by the person but wrongly
excluded by the magistrate, it is not clear under paragraph 21(6)(d)
whether the requesting country could adduce any further evidence, or make
any submissions relating to the wrongly excluded material.
This item will insert a new section 21A after existing section 21, which
will make it clear that if a review court considers evidence was wrongly
excluded in the extradition proceedings, the review court may receive the
wrongly excluded evidence as well as further evidence or submissions
directly relating to the excluded evidence.
Subsection 21A(1) will provide that section 21A applies if a person or
extradition country applies under subsection 21(1) for a review of an order
of a magistrate, appeals under subsection 21(3) against an order made on
that review, or appeals to the High Court against an order made on that
appeal. This will cover all possible stages of the appeal process.
Subsection 21A(2) will provide that if a party to the relevant proceedings
under section 19 was prevented from adducing evidence (the excluded
evidence) in the proceedings, and the review court considers that the party
should have been permitted to adduce the excluded evidence, the court may
receive the excluded evidence and further evidence, or submissions, that
directly relate to the excluded evidence.
Subsection 21A(3) will provide that if a document before a review court
contains a deficiency of relevance to the review or appeal, and the court
considers the deficiency to be of a minor nature, the court must adjourn
the proceedings for such period as is necessary to allow the deficiency to
be remedied. This will ensure that parties have sufficient time to remedy
minor deficiencies in documents which a review court will consider.
Subsection 21A(4) will provide that section 21A does not entitle the person
to whom the proceedings relate to adduce, or the court to receive, evidence
to contradict an allegation that the person has engaged in conduct
constituting an extradition offence for which the surrender of the person
is sought. This is intended to maintain the 'no evidence' standard in
extradition proceedings as currently applies in proceedings under section
19. The application of the 'no evidence' standard means that an
extradition request does not need to include actual evidence of the alleged
offence (for example, sworn affidavits). The Extradition Act only requires
that a requesting country provide the warrant for arrest, a statement
setting out a description of the offence and the applicable penalty and a
statement setting out the alleged conduct constituting the offence in an
extradition request.
This standard of information required for extradition requests to Australia
is in line with the United Nations Model Treaty on Extradition. It has
allowed Australia to enter into extradition relations with many countries
that would otherwise have been unable to conduct extradition with
Australia, particularly civil code jurisdictions
Subsection 21A(5) will provide that in section 21A, review court means the
court to which the application or appeal was made.
Item 103 - At the end of paragraph 22(3)(a)
This item will add 'and' at the end of paragraph 22(3)(a) to correct a
previous stylistic error.
Item 104 - Paragraph 22(3)(b)
Paragraph 22(3)(b) currently requires the Attorney-General to be satisfied
that a person will not be subjected to torture on surrender to an
extradition country before making a surrender determination. The
Explanatory Memorandum to the Extradition Act makes clear that this is
intended to implement Australia's obligations under the UNCAT.
This item will repeal existing paragraph 22(3)(b) and substitute it with a
new paragraph 22(3)(b). The wording in this new paragraph 22(3)(b) will
align with Australia's non-refoulement obligations under Article 3 of the
UNCAT. The revised wording will provide that the Attorney-General may only
make a surrender determination if he or she does not have substantial
grounds for believing that, if the person were surrendered to the
extradition country, the person would be in danger of being subjected to
torture. In determining whether there are substantial grounds for
believing a person would be in danger of being subjected to torture, the
Attorney-General will take into account relevant considerations, including
any consistent patterns of gross, flagrant or mass violations of humans
rights consistent with Article 3(2) of the UNCAT.
Item 105 - At the end of paragraphs 22(3)(c) and (d)
This item will add 'and' at the end of paragraphs 22(3)(c) and 22(3)(d) to
correct a previous stylistic error.
Item 106 - At the end of paragraph 22(4)(a)
This item will add 'or' at the end of paragraph 22(4)(a) to correct a
previous stylistic error.
Item 107 - At the end of subparagraphs 22(4)(d)(i) and (ii)
This item will add 'or' at the end of subparagraphs 22(4)(d)(i) and
22(4)(d)(ii) to correct a previous stylistic error.
Item 108 - At the end of section 22
Subsection 22(2) provides that the Attorney-General shall, as soon as
reasonably practicable after a person becomes eligible for surrender,
determine whether the person is to be surrendered. Subsection 22(5)
provides that where the Attorney-General determines that the eligible
person is not be surrendered to the extradition country, the Attorney-
General shall order, in writing, the release of that person. This item
will add new subsections 22(6) and 22(7) at the end of section 22.
Subsection 22(6) will provide that if a determination under subsection
22(2) is made in writing, the determination is not a legislative
instrument. Subsection 22(7) will provide that an order made under
subsection 22(5) is not a legislative instrument. These new provisions are
intended to clarify any existing uncertainty about whether determinations
given under subsections 22(2) or 22(5) are legislative instruments within
the meaning of section 5 of the Legislative Instruments Act 2003.
Item 109 - At the end of paragraphs 24(1)(a) and (b)
This item will add 'and' at the end of paragraphs 24(1)(a) and 24(1)(b) to
correct a previous stylistic error.
Item 110 - At the end of subparagraph 24(3)(b)(i)
This item will add 'or' at the end of paragraph 24(3)(b)(i) to correct a
previous stylistic error.
Item 111 - At the end of section 24
This item will add new subsection 24(6) at the end of existing section 24.
New subsection 24(6) will provide that if the Attorney-General informs an
extradition country, in writing, in accordance with subsection 24(4) that
an undertaking referred to in subparagraph 24(1)(d)(ii) is no longer
required to be complied with, the written instrument is not a legislative
instrument. This provision is intended to clarify any existing uncertainty
about whether the written instrument under subsection 24(4) is a
legislative instrument within the meaning of section 5 of the Legislative
Instruments Act 2003.
Item 112 - At the end of subparagraph 25(2)(a)(i)
This item will add 'or' at the end of subparagraph 25(2)(a)(i) to correct a
previous stylistic error.
Item 113 - Paragraph 26(1)(c)
Existing paragraph 26(1)(c) provides that a surrender warrant or temporary
surrender warrant (for extradition from Australia to an extradition
country) must require that a person held in custody be released into the
custody of 'a police officer' for the purpose of surrendering the person to
the foreign country. Paragraph 26(1)(d) provides that a surrender warrant
or temporary surrender warrant must authorise 'the police officer' to
transport the person in custody for the purposes of enabling the person to
be placed into the custody of the foreign escort officer and transported
out of Australia.
This item will remove the reference to 'a police officer' in paragraph
26(1)(c) and replace it with 'any police officer'. This is because it is
not always practicable for the same police officer to transport a person in
custody through to the point of surrender to the foreign escort. This
amendment, together with the amendment in item 114, will ensure that the
police officer who takes custody of the person when released from prison is
able to transfer the person into the custody of another police officer if
necessary for the purposes of executing a surrender warrant.
Item 114 - Paragraph 26(1)(d)
Paragraph 26(1)(d) provides that a surrender warrant or temporary surrender
warrant must authorise 'the police officer' (who took custody of the person
when released from prison) to transport the person in custody for the
purpose of enabling the person to be placed in the custody of the foreign
escort and transported out of Australia. However, it is not always
practicable for the same police officer to transport a person in custody
through to the point of surrender to the foreign escort.
This item will remove the reference to 'the police officer to transport the
eligible person in custody, and, if necessary or convenient, to detain the
eligible person in custody' and replace it with 'the eligible person to be
transported in custody, and if necessary or convenient, detained in
custody, by any police officer'. This amendment, together with the
amendment in item 113, will ensure that the police officer who takes
custody of the person when released from prison is able to transfer the
person into the custody of another police officer if necessary for the
purposes of executing a surrender warrant.
Item 115 - Paragraph 26(1)(d)
Paragraph 26(1)(d) provides that a surrender warrant or temporary surrender
warrant must authorise a police officer to transport the person in custody
for the purposes of enabling the person to be placed in the custody of a
specified person to transport the person out of Australia. This specified
person is currently referred to as a 'foreign escort officer'.
This item will remove the reference to '(in this subsection called the
foreign escort officer)' in paragraph 26(1)(d) and replace it with 'or a
person included in a specified class (in this subsection called the escort
officer)'. The phrase 'foreign escort officer' suggests the person will
always be an officer of the foreign country. However, in some cases,
Australian authorities may escort the person to the foreign country. In
some situations the police officer may also be the escort officer for the
purpose of the warrant. This amendment will recognise that Australian
officers may escort the person to the requesting country.
Item 116 - Paragraph 26(1)(e)
Paragraph 26(1)(e) provides that a surrender warrant or temporary surrender
warrant shall authorise the foreign escort officer to transport the person
in custody out of Australia to a place in the extradition country for the
purpose of surrendering the person. This item will remove the reference to
'foreign' in paragraph 26(1)(e). The existing phrase 'foreign escort
officer' in this paragraph suggests the person will always be an officer of
the foreign country. However, in some cases, Australian authorities may
escort the person to the foreign country. In some situations the police
officer may also be the escort officer for the purpose of the warrant.
Item 117 - After subsection 26(1)
This item inserts new subsection 26(1A) after existing subsection 26(1).
While subsection 26(1) sets out what the warrant authorises, it does not
specify when it ceases to be in force. New subsection 26(1A) will provide
that a surrender warrant or a temporary surrender warrant remains in force
until the eligible person is surrendered, at a place in the extradition
country, to a person appointed by the extradition country to receive the
eligible person.
Item 118 - Section 27
This item will insert '(1)' before the reference to 'where' in section 27.
This is a consequence of new subsection 27(2), which will be inserted by
item 119.
Item 119 - At the end of section 27
Subsection 27(1) provides that where property or a thing is seized upon
arrest or in the execution of a search and seizure warrant, the Attorney-
General may direct, by notice in writing, that the property or thing be
sent to the extradition country. This item will insert a new subsection
27(2) at the end of existing section 27. New subsection 27(2) will provide
that a notice given under subsection 27(1) is not a legislative instrument.
This provision is intended to clarify any existing uncertainty about
whether a notice given under subsection 27(1) is a legislative instrument
within the meaning of section 5 of the Legislative Instruments Act 2003.
Item 120 - At the end of section 30
Subsection 30(5) provides that a police officer may retain any property or
thing seized upon arrest under an indorsed New Zealand warrant or a
provisional arrest warrant pending any direction from the Attorney-General
as to the manner in which the thing is to be dealt with. This item will
insert a new subsection 30(8) at the end of existing section 30. New
subsection 30(8) will provide that if a direction under subsection 30(5) is
given in writing, the direction is not a legislative instrument. This
provision is intended to clarify any existing uncertainty about whether a
direction given under subsection 30(5) is a legislative instrument within
the meaning of section 5 of the Legislative Instruments Act 2003.
Item 121 - After subsection 31(5)
This item will insert a new subsection 31(5A) after existing subsection
31(5). New subsection 31(5A) provides that if a direction under subsection
31(5) is given in writing, the direction is not a legislative instrument.
This provision is intended to clarify any existing uncertainty about
whether a direction given under subsection 31(5A) is a legislative
instrument within the meaning of section 5 of the Legislative Instruments
Act 2003.
Item 122 - Subsection 32(2)
This item will remove the reference to '34' in subsection 32(2) and replace
it with '33A or 34, or both'. This will recognise that proceedings may
take place under section 33A if a person consents to surrender.
Item 123 - Paragraph 33A(1)(b)
This item will remove the reference to 'and' in paragraph 33A(1)(b) as a
consequence of the repeal of ensuing paragraph 33A(1)(c), which will be
done by item 124.
Item 124 - Paragraph 33A(1)(c)
This item will repeal paragraph 33A(1)(c). Existing paragraph 33A(1)(c)
allows a person to consent to be surrendered to New Zealand where a request
has been made to a magistrate for proceedings to be conducted under section
34, determining whether the person should be surrendered. This will enable
a person to consent to extradition to New Zealand earlier in the process,
and not have to wait until surrender proceedings have been requested to be
conducted. However, while enabling a person to consent at any earlier
stage, this amendment will not remove any safeguards that currently apply
where a person consents to being surrendered to New Zealand.
Item 125 - Paragraph 38(1)(a)
Paragraph 38(1)(a) provides that a surrender warrant or temporary surrender
warrant (for extradition from Australia to New Zealand) must authorise 'a
police officer' to take the person into custody, to transport the eligible
person in custody and, if necessary or convenient, to detain the eligible
person in custody for the purpose of enabling the person to be placed in
the custody of a specified person (called the New Zealand escort officer)
and transported out of Australia. However, it is not always practicable
for the same police officer to transport a person in custody through to the
point of surrender to the escort.
This item will remove the phrase 'a police officer to take the eligible
person into custody, to transport the eligible person in custody and, if
necessary or convenient, to detain the eligible person in custody' and
replace it with 'the eligible person to be taken into custody, transported
in custody and, if necessary or convenient, detained in custody, by any
police officer'. This amendment, together with the amendment in item 126,
will ensure that the police officer who takes custody of the person when
released from prison is able to transfer the person into the custody of
another police officer if necessary for the purposes of executing a
surrender warrant.
Item 126 - Paragraph 38(1)(a)
Paragraph 38(1)(a) provides that a surrender warrant or temporary surrender
warrant shall authorise a police officer to take the eligible person into
custody, and transfer the person into the custody of a specified person (in
this subsection called the New Zealand escort officer).
This item will remove '(in this subsection called the New Zealand escort
officer)' and replace it with 'or a person included in a specified class
(in this subsection called the escort officer)'. The phrase 'New Zealand
escort officer' suggests the person will always be an officer from New
Zealand. However, in some cases, Australian authorities may escort the
person to New Zealand. In some situations the police officer may also be
the escort officer for the purpose of the warrant. This amendment will
recognise that Australian officers may escort the person.
Item 127 - Paragraph 38(1)(b)
Paragraph 38(1)(b) provides that a surrender warrant or temporary surrender
warrant must authorise 'the New Zealand escort officer' to transport the
person in custody out of Australia to a place in New Zealand for the
purpose of surrendering the person to New Zealand.
This item will remove the first occurring reference to 'New Zealand' in
paragraph 38(1)(b). The phrase 'New Zealand escort officer' in existing
paragraph 38(1)(b) suggests the person will always be an officer from New
Zealand. However, in some cases, Australian authorities may escort the
person to New Zealand. In some situations the police officer may also be
the escort officer for the purpose of the warrant. This amendment will
recognise that Australian officers may escort the person.
Item 128 - After subsection 38(1)
This item will insert new subsection 38(1A) after existing subsection
38(1). New subsection 38(1A) provides that, subject to section 38 and
subsection 33(3) of the Acts Interpretation Act 1901, a surrender warrant
or a temporary surrender warrant remains in force until the eligible person
is surrendered, at a place in New Zealand, to a person appointed by New
Zealand to receive the eligible person. Subsection 33(3) of the Acts
Interpretation Act 1901 provides that where an Act confers a power to make,
grant or issue any instrument, the power shall, unless the contrary
intention appears, be construed as including a power to repeal, rescind,
revoke, amend, or vary any such instrument.
Item 129 - Section 39
This item inserts '(1)' before the reference to 'where' in section 39 as a
consequence of new subsection 39(2), which will be inserted by item 130.
Item 130 - At the end of section 39
Subsection 39(1) provides that where property or a thing is seized upon
arrest under an indorsed New Zealand warrant or a provisional arrest
warrant or in the execution of a search and seizure warrant, the Attorney-
General may direct, by notice in writing, that the property or thing be
sent to New Zealand. This item inserts a new subsection 39(2) at the end
of section 39. New subsection 39(2) will provide that a notice given under
subsection 39(1) is not a legislative instrument. This provision is
intended to clarify any existing uncertainty about whether a notice given
under subsection 39(1) is a legislative instrument within the meaning of
section 5 of the Legislative Instruments Act 2003.
Item 131 - At the end of section 43
Subsection 43(1) provides that where the Attorney-General suspects that a
person is an extraditable person in relation to Australia, the Attorney-
General may, by notice in writing in the statutory form, authorise the
taking of evidence for use in any proceedings for the surrender of the
person to Australia. This item inserts a new subsection 43(4) at the end
of section 43. New subsection 43(4) will provide that a notice given under
subsection 43(1) is not a legislative instrument. This provision is
intended to clarify any existing uncertainty about whether a notice given
under section 43 is a legislative instrument within the meaning of
section 5 of the Legislative Instruments Act 2003.
Item 132 - At the end of section 44
Section 44 provides for the situation where a person is surrendered to
Australia pursuant to an undertaking that Australia will return the person
back to the country, following the trial of the person in Australia for
particular offences. Under section 44, a person who has been temporarily
surrendered to Australia must be kept in custody unless the country that
surrendered the person requests the release of the person, in which case
the Attorney-General must order the release of the person. This item
inserts new subsections 44(3), 44(4) and 44(5) at the end of existing
section 44. Subsection 44(3) will provide that if the undertaking
mentioned in subsection 44(1) is given in writing, the undertaking is not a
legislative instrument. Subsection 44(4) will provide that an order made
under paragraph 44(1)(d) is not a legislative instrument. Subsection 44(5)
will provide that if an order under subsection 44(2) is made in writing,
the order is not a legislative instrument. These new provisions are
intended to clarify any existing uncertainty about whether orders under
subsections 44(1) and 44(2) are legislative instruments within the meaning
of section 5 of the Legislative Instruments Act 2003.
Item 133 - At the end of section 45
Subsection 45(3D) (which will be inserted by item 47) will require the
Attorney-General's consent for a person to be prosecuted in Australia in
respect of conduct constituting an extradition offence (or extradition
offences) instead of being surrendered to an extradition country. This
item inserts a new subsection 45(6) at the end of section 45. New
subsection 45(6) will provide that a consent given under subsection 45(3D)
is not a legislative instrument. This provision is intended to ensure
there is no uncertainty about whether a consent given under
subsection 45(3D) is a legislative instrument within the meaning of
section 5 of the Legislative Instruments Act 2003.
Item 134 - Section 47
This item removes the reference to 'A provisional arrest warrant, within
the meaning of Part II or III' and replaces it with 'An extradition arrest
warrant, a provisional arrest warrant'. This is a consequence of
amendments which will change references to 'a provisional arrest warrant'
in Part II to 'an extradition arrest warrant' (items 94, 96 and 98).
Item 135 - At the end of section 48
Section 48 allows Australia to facilitate the transport of a person through
Australia for the purposes of the person's extradition from another country
to a third country. This includes providing for the Attorney-General to
authorise, in writing, a magistrate to issue a warrant to hold the
transferee in custody under subparagraph 48(1)(b)(iv) or direct any person
having custody of the transferee to release the transferee from custody
under subparagraph 48(1)(b)(v). This item inserts new subsections 48(3)
and 48(4) at the end of section 48. New subsection 48(3) provides that an
authorisation given under subparagraph 48(1)(b)(iv) is not a legislative
instrument. Subsection 48(4) provides that if a direction under
subparagraph 48(1)(b)(v) is given in writing, the direction is not a
legislative instrument. These provisions are intended to clarify any
existing uncertainty about whether an authorisation given under
subparagraph 48(1)(b)(iv) or a direction given in writing under
subparagraph 48(1)(b)(v) are legislative instruments within the meaning of
section 5 of the Legislative Instruments Act 2003.
Item 136 - Paragraph 55(d)
This item will remove the reference to 'prescribing penalties not exceeding
a fine of $2,000' in paragraph 55(d) and replace it with 'penalties not
exceeding a fine of 20 penalty units'. This item will remove the reference
to 'prescribing' at the beginning of the paragraph as it is already
referred to leading in to paragraph 55(d). This item will also ensure the
regulations can prescribe penalties for offences against the regulations by
reference to a maximum number of penalty units rather than a maximum
monetary amount. This reflects modern drafting practice for penalties. A
penalty unit is defined in section 4AA of the Crimes Act and is $110.
Item 137 - Application-section 21A of the Extradition Act 1988 etc.
This item will provide that section 21A of the Extradition Act, which will
be inserted by item 102, will apply in relation to an application for
review or appeal referred to in subsection 21A(1) that is made on or after
the commencement of this item, whether or not the relevant proceedings
under section 19 were instituted before or after that commencement.
Item 138 - Application of amendments made by items 122, 123 and 124
This item will provide that the amendments that will be made by items 122,
123, and 124 of this Schedule will apply in relation to persons in respect
of whom an indorsed New Zealand warrant has been obtained on or after the
commencement of this item.
Item 139 - Application of amendment made by item 136
This item will provide that the amendment that will be made by item 136 of
this Schedule will apply to a penalty imposed on or after the commencement
of this item, whether or not the relevant proceedings were instituted
before, on or after that commencement.
SCHEDULE 3 - AMENDMENTS RELATING TO PROVIDING MUTUAL ASSISTANCE IN CRIMINAL
MATTERS
GENERAL OUTLINE
1. Schedule 3 contains a range of amendments to improve the operation of
the MA Act.
2. Part 1 of Schedule 3 will amend section 8 of the MA Act, which sets out
the grounds on which the Attorney-General may or must refuse a mutual
assistance request from a foreign country. These amendments will expand
the operation of the grounds of refusal to ensure they apply at the
investigation stage and to proceeds of crime related requests. The
amendments will also expand the discrimination ground of refusal to
include discrimination on the basis of sexual orientation, strengthen the
death penalty ground of refusal and insert an express mandatory ground
for refusal where there are substantial grounds to believe the provision
of the assistance would result in a person being subjected to torture.
3. Part 2 of Schedule 3 will improve the operation of the 'take evidence'
provisions in the MA Act. In particular, this Part will amend the MA Act
to clarify the application of sections 12 and 13 of the MA Act to
requests for witnesses to give evidence directly to a courtroom in the
requesting country by live video link. The amendments will also more
clearly set out the role of the Australian magistrate in conducting the
proceedings in cooperation with the foreign court, and clarify the powers
that may be exercised by a magistrate in such proceedings.
4. Parts 3 and 4 of Schedule 3 will expand the range of law enforcement
tools that are available for foreign law enforcement purposes. Division
1 of Part 3 will amend the MA Act and the TIA Act so that section 13A of
the MA Act is available for the provision of TI product and covertly
accessed stored communications material that was originally obtained for
domestic purposes. This material can currently only be provided under
take evidence proceedings under section 13 which can be resource and time
intensive. Division 2 of Part 3 will amend the MA Act and the SD Act to
enable Australia to make and receive requests relating to the use of
surveillance devices. While Australia is able to make requests for a
country to provide this type of assistance under the executive power, the
amendment would ensure express provision is made in the legislation,
consistent with other types of assistance. The power to use a
surveillance device for foreign purposes will be limited to circumstances
where a surveillance device could be used for domestic investigations
(generally offences that carry at least three years imprisonment).
5. Currently, Australia cannot conduct a compulsory forensic procedure on a
suspect in relation to a foreign serious offence in response to a request
from a foreign country. Part 4 of Schedule 3 will amend the MA Act and
the Crimes Act to enable the AFP, or a State or Territory police force,
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 a foreign country. Part 4 would also clarify the procedures
for obtaining forensic material from a volunteer on behalf of a foreign
law enforcement agency.
6. Part 5 of Schedule 3 will make a range of amendments to Part VI of the
MA Act to improve the operation of the proceeds of crime provisions.
These amendments will enable Australia to register non-conviction based
proceeds of crime orders from any country and streamline existing
processes for providing certain forms of investigative assistance
relating to proceeds of crime to other countries.
7. Part 6 of Schedule 3 will make a range of miscellaneous amendments to
the MA Act to improve the operation of the MA Act.
PART 1 - GROUNDS OF REFUSAL
8. Part 1 of Schedule 3 will make a range of amendments to section 8 of the
MA Act, which sets out the grounds on which the Attorney-General may or
must refuse a mutual assistance request from a foreign country.
Mutual Assistance in Criminal Matters Act 1987
Items 1 and 2 - Paragraphs 8(1)(a) and 8(1)(b)
9. Currently, paragraphs 8(1)(a) and (b) of the MA Act provide that the
Attorney-General must refuse a request for assistance if it relates to
the prosecution or punishment of a person for a political offence, or if
there are substantial grounds for believing that the request has been
made with a view to prosecuting or punishing a person for a political
offence. The term 'political offence' is defined by reference to the
Extradition Act.
10. In practice, a large portion of mutual assistance requests seek
assistance during the investigation stage (that is, prior to prosecution
or punishment). This means that when mutual assistance requests are
received for assistance at the investigation stage, paragraphs 8(1)(a)
and 8(1)(b) are not strictly applicable in considering whether to provide
that assistance.
11. Item 1 will insert the word 'investigation' in paragraph 8(1)(a) and
item 2 will insert the word 'investigating' in paragraph 8(1)(b). These
amendments will expand the operation of paragraphs 8(1)(a) and 8(1)(b) to
provide that the Attorney-General must refuse a request for assistance if
it relates to the investigation, prosecution or punishment of a person
for a political offence, or if there are substantial grounds for
believing that the request has been made with a view to investigating,
prosecuting or punishing a person for a political offence.
12. These amendments will ensure that the grounds of refusal in paragraphs
8(1)(a) and 8(1)(b) apply to requests for assistance made during the
investigation of an offence, affording greater protections to persons who
may be the subject of a request.
Item 3 - After paragraph 8(1)(b)
13. Subsection 8(1) of the MA Act sets out the circumstances in which the
Attorney-General must refuse a foreign country's request for assistance.
Currently, most of these grounds for refusal refer to the prosecution or
punishment for an offence. However, proceeds of crime action may be non-
conviction based, meaning that a prosecution has not, and may not,
commence. Further, proceeds action may be taken or pursued after a trial
concludes or independently of a trial process. Therefore, the request
may not relate to the prosecution or punishment of an offence.
14. This item will insert proposed paragraph (ba) in subsection 8(1) to
clarify the application of the political offence grounds for refusal in
subsection 8(1) of the MA Act to requests for assistance relating to
proceeds of crime.
15. The insertion of proposed paragraph 8(1)(ba) will extend the
circumstances in which the Attorney-General must refuse a request by
requiring the Attorney-General to refuse a request relating to a foreign
order in relation to an offence, that is, or is by reason of the
circumstances in which it is alleged to have been committed, or was
committed, a political offence. A foreign order is defined in subsection
3(1) of the MA Act as a foreign forfeiture order (an order relating to
the forfeiture of property in respect of an offence against the foreign
country's law), a foreign pecuniary penalty order (an order imposing a
pecuniary penalty in respect of an offence against a foreign law) or a
foreign restraining order (an order made for the purposes of preserving
property including preventing dealings with the property or freezing the
property). A request will 'relate' to a foreign order even if the
foreign order has not yet been sought - for example, assistance is
required to determine whether a foreign order should be sought, or a
foreign country requests that an Australian restraining order is sought
to ensure assets are not dissipated before a foreign country can seek an
order.
16. This will ensure that the grounds of refusal for a political offence
clearly apply to requests for assistance in relation to the recovery of
the proceeds or an instrument of a political offence.
Items 4 and 5 - Paragraph 8(1)(c)
17. Currently, paragraph 8(1)(c) of the MA Act provides that the Attorney-
General must refuse a foreign country's request for assistance if there
are substantial grounds for believing that the request was made for the
purpose of prosecuting, punishing or otherwise prejudicing a person on
account of his or her race, sex, religion, nationality or political
opinions.
Item 4
18. In practice, a large portion of mutual assistance requests seek
assistance during the investigation stage of the offence. This means
that when mutual assistance requests are received for assistance at the
investigation stage, paragraph 8(1)(c) is not strictly applicable in
considering whether to provide assistance.
19. This item will insert the word 'investigating' in paragraph 8(1)(c).
The insertion of the word 'investigating' will expand paragraph 8(1)(c)
to provide that the Attorney-General must refuse a country's request for
assistance if there are substantial grounds for believing that the
request was made for the purpose of investigating, prosecuting, punishing
or otherwise prejudicing a person on account of his or her race, sex,
religion, nationality or political opinions.
20. This amendment will ensure that the grounds for refusal in paragraph
8(1)(c) apply to requests for assistance made during the investigation of
an offence, affording greater protections to persons who may be the
subject of a request.
Item 5
21. Under paragraph 8(1)(c) of the MA Act, the Attorney-General must refuse
a request for assistance if there are substantial grounds for believing
that the request was made for the purpose of prosecuting, punishing or
otherwise prejudicing a person on account of his or her race, sex,
religion, nationality or political opinions.
22. This item will insert the words 'sexual orientation' in paragraph
8(1)(c). The insertion of the words 'sexual orientation' will expand
this provision to provide that the Attorney-General must refuse a
country's request for assistance if there are substantial grounds for
believing that the request was made for the purpose of prosecuting,
punishing or otherwise prejudicing a person on account of his or her
sexual orientation, in addition to the other grounds of discrimination
currently set out in the paragraph.
23. The proposed amendment will ensure that a request made solely for the
purpose of persecuting someone on the basis of their sexual orientation
must be refused. This demonstrates Australia's firm position against
this type of discrimination.
24. This amendment is consistent with the proposed amendment to the
extradition objections in section 7 of the Extradition Act (see Division
2 of Part 3 of Schedule 2).
Item 6 - After paragraph 8(1)(c)
25. Currently, the Attorney-General has a discretion to refuse to provide
assistance where the provision of the assistance would, or would be
likely to, prejudice the safety of any person. Requests raising concerns
about torture can and would be refused on the basis of this ground for
refusal. However, there is no explicit legal protection against the
provision of assistance in such cases.
26. This item will insert proposed paragraph (ca) in subsection 8(1) of the
MA Act. Proposed paragraph 8(1)(ca) will provide that the Attorney-
General must refuse a request where there are substantial grounds for
believing that, if the request was granted, the person would be in danger
of being subjected to torture. The wording is consistent with the
proposed change to the Extradition Act (see Division 9 of Part 3 of
Schedule 2).
27. This amendment will enhance protections in cases where there are
torture concerns and affirm Australia's strong position against torture.
It will also be consistent with the recommendations made by the UNCAT
that mutual assistance be refused where there are substantial grounds to
believe that if the request was approved, the person would be in danger
of being subjected to torture. What would be considered to be torture
would be determined in the particular circumstances of each case and with
reference to the UNCAT. This amendment will operate in addition to
paragraph 8(2)(e) of the MA Act, which contains a discretionary ground
for refusing assistance if the provision of the assistance would, or
would be likely to, prejudice the safety of any person.
Item 7 - Paragraph 8(1)(d)
28. Currently, paragraph 8(1)(d) of the MA Act provides that a request must
be refused if it relates to the prosecution or punishment of a person in
respect of an act or omission that would have constituted an offence
under the military law of Australia, but not under the ordinary criminal
law of Australia, had it occurred in Australia.
29. In practice, a large portion of mutual assistance requests seek
assistance during the investigation stage. This means that paragraph
8(1)(d) is not strictly applicable to such requests, as that paragraph
only relates to the prosecution or punishment of a person, and not to the
investigation of a person in respect of an act or omission that would
have constituted a military offence in Australia.
30. This item will insert the word 'investigation' in paragraph 8(1)(d).
The insertion of the word 'investigation' will expand this provision to
provide that the Attorney-General must refuse a country's request for
assistance if the request relates to the investigation, prosecution or
punishment of a person in respect of an act or omission that would have
constituted an offence under the military law of Australia, but not under
the ordinary criminal law of Australia, had it occurred in Australia.
31. This amendment will ensure that the grounds of refusal in paragraph
8(1)(d) apply to requests for assistance made during the investigation of
an offence, affording greater protections to persons who may be the
subject of a request.
Item 8 - After paragraph 8(1)(d)
32. Subsection 8(1) of the MA Act sets out the circumstances in which the
Attorney-General must refuse a foreign country's request for assistance.
Currently, most of these grounds for refusal refer to the prosecution or
punishment for an offence. However, proceeds action may be non-
conviction based, meaning that a prosecution has not, and may not,
commence. Further, proceeds action may be taken or pursued after a trial
concludes or independently of a trial process. Therefore, the request
may not relate to the prosecution or punishment of an offence.
33. This item will insert proposed paragraph (da) in subsection 8(1) to
clarify the application of the ground for of refusal in paragraph 8(1)(d)
of the MA Act to requests for assistance relating to proceeds of crime.
34. The insertion of proposed paragraph (da) will extend the circumstances
in which the Attorney-General must refuse a request for assistance.
Under new paragraph 8(1)(da), a request must be refused if the request
relates to a foreign order relating to an offence and an act or omission
constituting the offence, if the act or omission had occurred in
Australia, would have constituted an offence under the military law of
Australia, but not under the ordinary criminal law of Australia.
35. A foreign order is defined in subsection 3(1) of the MA Act as a
foreign forfeiture order (an order relating to the forfeiture of property
in respect of an offence against the foreign country's law), a foreign
pecuniary penalty order (an order imposing a pecuniary penalty in respect
of an offence against a foreign law) or a foreign restraining order (an
order made for the purposes of preserving property including preventing
dealings with the property or freezing the property). A request will
'relate' to a foreign order even if the foreign order has not yet been
sought - for example, assistance is required to determine whether a
foreign order should be sought, or a foreign country requests that an
Australian restraining order is sought to ensure assets are not
dissipated before a foreign country can seek an order.
36. This amendment will ensure that the ground for refusal for a military
offence also applies to requests for assistance in relation to the
restraint or confiscation of the proceeds or an instrument of an offence.
Item 9 - Paragraph 8(1)(e)
37. This item will remove the phrase '; or' which currently follows the
word 'Territory' in paragraph 8(1)(e). This item will be consequential
upon the repeal of paragraph 8(1)(f) (item 10). The repeal of paragraph
8(1)(f) will make the phrase '; or' unnecessary.
Item 10 - Paragraph 8(1)(f)
38. Paragraph 8(1)(f) of the MA Act provides that the Attorney-General must
refuse a request where it relates to the prosecution of a person for an
offence in a case where the person has previously been acquitted,
pardoned or punished in the requesting country in respect of that
offence, or another offence constituted by the same conduct. This
reflects the principle known as 'double jeopardy'.
39. This item will repeal paragraph 8(1)(f). This item will be
consequential upon item 14, which will insert paragraph 8(2)(c) to
provide for double jeopardy to be a discretionary, rather than a
mandatory, ground for refusal. Cases in which it might be appropriate to
provide mutual assistance despite a double jeopardy issue include where
there is fresh evidence that was not available at the original trial, or
where there are other circumstances accepted in Australia as being
exceptions to the double jeopardy principle.
Item 11 - Subsection 8(1A)
40. Subsection 8(1A) of the MA Act currently requires the Attorney-General
to refuse a request for assistance if the request relates to the
prosecution or punishment of a person charged with, or convicted of, an
offence for which the death penalty may be imposed in the foreign
country, unless the Attorney-General is of the opinion, having regard to
the special circumstances of the case, that the assistance requested
should be granted.
41. This item will repeal existing subsection 8(1A) and replace it with a
new provision. The new subsection 8(1A) will ensure the mandatory ground
of refusal for death penalty offences also applies in circumstances in
which a person has been arrested or detained on suspicion of committing
an offence for which the death penalty may apply, regardless of whether
formal charges have been laid.
42. This recognises that under some legal systems, a suspect may be
formally charged with an offence later in the criminal justice process
than in Australia. As a consequence, the suspect may be arrested or
detained for a longer period of time before being formally charged.
43. As is the case in respect of existing subsection 8(1A), the 'special
circumstances of the case' warranting assistance may include, but are not
limited to, circumstances where the assistance is exculpatory in nature
or where the requesting country has provided an undertaking that the
death penalty will not be imposed, or if it is imposed, will not be
carried out.
44. In addition, subsection 8(1B) of the MA Act will continue to enable the
Attorney-General to refuse a request for assistance in circumstances
where he or she believes that the provision of assistance may result in
the death penalty being imposed on a person, and, after taking into
consideration the interests of international criminal co-operation, he or
she is of the opinion that in the circumstances of the case, the request
should not be granted.
Item 12 - Paragraph 8(2)(a)
45. Currently, paragraph 8(2)(a) of the MA Act provides that the Attorney-
General may refuse a request for assistance if he or she is of the
opinion that the request relates to the prosecution or punishment of a
person in respect of an act or omission that would not have constituted
an offence against Australian law had it occurred in Australia. This is
known as the principle of dual criminality.
46. In practice, a large portion of mutual assistance requests seek
assistance during the investigation stage. This means that when mutual
assistance requests are received for assistance at the investigation
stage, paragraph 8(2)(a) is not strictly applicable in considering
whether to provide that assistance.
47. This item will insert 'investigation' in paragraph 8(2)(a). The
insertion of 'investigation' will expand the operation of paragraph
8(2)(a) to provide that the Attorney-General may refuse a request for
assistance if he or she is of the opinion that it relates to the
investigation, prosecution or punishment of a person in respect of an act
or omission that would not have constituted an offence against Australian
law had it occurred in Australia.
48. This amendment will ensure that the discretionary ground for refusal in
paragraph 8(2)(a) applies to requests for assistance made during the
investigation of an offence, affording greater protections to persons who
may be the subject of a request.
Item 13 - Paragraph 8(2)(a)
49. Currently, the Attorney-General has a discretion to refuse a request
for assistance where the request relates to conduct that would not have
constituted an offence against Australian law, had it occurred in
Australia. This is known as the principle of dual criminality. Unlike
the dual criminality provision in the Extradition Act, the MA Act does
not specify the time at which dual criminality is to be assessed.
50. To ensure consistency with the Extradition Act, this item will insert
'at the time at which the request was received' in paragraph 8(2)(a) of
the MA Act to clarify that dual criminality exists if the relevant
conduct is an offence against Australian law at the time at which the
request was received.
Item 14 - Paragraphs 8(2)(b) and (c)
Repeal of paragraph 8(2)(b)
51. Paragraph 8(2)(b) of the MA Act currently provides that the Attorney-
General may refuse a request if he or she is of the opinion that the
request relates to conduct that occurred outside the foreign country
(that is, where the foreign country has criminalised the conduct
extraterritorially) and Australia has not criminalised the same conduct
extraterritorially.
52. Many countries exercise extraterritorial jurisdiction for criminal
offences and Australia now asserts extraterritorial jurisdictions for a
number of offences, such as terrorism, war crimes, crimes against
humanity, genocide and child sex tourism. As a result, the
extraterritoriality ground of refusal in paragraph 8(2)(b) is rarely used
and will be repealed from the MA Act by this item. The repeal would not
affect a person's protections under the MA Act, as the Attorney-General
would have a discretion to refuse a request if the relevant conduct would
not be an offence under Australian law if it had occurred in Australia
(paragraph 8(2)(a)). The Attorney-General will also retain a broad
discretion to refuse assistance under paragraph 8(2)(g) of the MA Act.
Repeal of paragraph 8(2)(c)
53. Paragraph 8(2)(c) of the MA Act currently provides that the Attorney-
General may refuse a request if he or she is of the opinion that it
relates to the prosecution or punishment of a person in respect of
conduct for which the person, had the offence occurred in Australia,
could no longer be prosecuted by reason of lapse of time or any other
reason.
54. The ground of refusal in paragraph 8(2)(c) was originally included in
the MA Act to align mutual assistance legislation with Australian
statutes of limitation. Statutes of limitation have now been removed for
most criminal offences in Australia. As a result, the lapse of time
ground for refusal is rarely used and will be repealed by this item. The
repeal would not affect a person's protections under the MA Act, as the
Attorney-General would retain a broad discretion to refuse assistance
under paragraph 8(2)(g) of the MA Act.
New paragraph 8(2)(b)
55. Subsection 8(2) of the MA Act sets out the circumstances in which the
Attorney-General may exercise his or her discretion to refuse a foreign
country's request for assistance. Currently, most of these grounds for
refusal refer to prosecution or punishment for an offence. However,
proceeds action may be non-conviction based, meaning that a prosecution
has not, and may not, commence. Further, proceeds action may be taken or
pursued after a trial concludes or independently of a trial process.
56. Paragraph 8(2)(b) will be replaced with a new paragraph that will
provide that the Attorney-General may exercise his or her discretion to
refuse assistance if the request relates to a foreign order in relation
to an offence, where an act or omission constituting the offence would
not have constituted an offence against Australian law had it occurred in
Australia at the time at which the request was received (that is, where
dual criminality cannot be established).
57. A foreign order is defined in subsection 3(1) of the MA Act as a
foreign forfeiture order (an order relating to the forfeiture of property
in respect of an offence against the foreign country's law), a foreign
pecuniary penalty order (an order imposing a pecuniary penalty in respect
of an offence against a foreign law) or a foreign restraining order (an
order made for the purposes of preserving property including preventing
dealings with the property or freezing the property). A request will
'relate' to a foreign order even if the foreign order has not yet been
sought - for example, assistance is required to determine whether a
foreign order should be sought, or a foreign country requests that an
Australian restraining order is sought to ensure assets are not
dissipated before a foreign country can seek an order.
58. The insertion of proposed paragraph 8(2)(b) will extend the
circumstances in which the Attorney-General may exercise his or her
discretion to refuse assistance in relation to proceeds of crime matters.
59. This amendment will ensure that the dual criminality ground of refusal
applies to requests for assistance made in relation to the recovery of
the proceeds or an instrument of an offence.
New paragraph 8(2)(c)
60. Currently, double jeopardy is a mandatory ground for refusal under
paragraph 8(1)(f) of the MA Act. However, there may be exceptional
circumstances where it is appropriate to provide assistance
notwithstanding double jeopardy concerns, for example, if fresh and
compelling evidence such as new DNA evidence or evidence obtained through
technological developments, has emerged.
61. This item will insert a new paragraph 8(2)(c) that will provide the
Attorney-General with the discretion to refuse a request for assistance
if he or she is of the opinion that it relates to the investigation,
prosecution or punishment of a person for an offence where the person has
been acquitted or pardoned or has undergone punishment for that offence,
or another offence constituted by the same conduct. This amendment will
make double jeopardy a discretionary ground for refusal to enable the
provision of assistance in appropriate exceptional cases such as where
there is fresh evidence that was not available at the original trial, or
where there are other circumstances accepted in Australia as being
exceptions to the double jeopardy principle.
62. The current double jeopardy ground for refusal only refers to
situations where the person has been acquitted, pardoned or punished in
the requesting country. The new double jeopardy ground for refusal
inserted by this item will extend the application of the ground for
refusal so that a request for assistance may be refused where the person
has previously been acquitted, pardoned or punished in Australia or a
third country, as well as the requesting country in respect of the
offence.
63. Further, in line with other amendments made by this Part to extend the
operation of the grounds for refusal to the investigation stage, the
double jeopardy ground for refusal will also be extended to apply at the
investigation stage.
64. However, unlike the other grounds for refusal in the MA Act, the double
jeopardy ground is currently limited to the prosecution of a person and
does not apply at the punishment stage. The new double jeopardy ground
for refusal inserted by this item will also apply at the punishment
stage. This would ensure that Australia is able to refuse to provide
assistance at the investigation, prosecution or punishment stage in
circumstances where the person has previously been acquitted, pardoned or
punished in Australia, the requesting country or a third country in
respect of the offence.
Item 15 - Application of amendments made by this Part
65. This item will provide that the amendments made by Part 1 of Schedule 3
will apply in relation to a request by a foreign country that is being
considered on or after the day on which this item commences. The
commencement for this item will be a day to be fixed by proclamation.
66. This application provision also specifies that the amendments made by
this Part will apply from the day of commencement regardless of whether
the request was made before or after that day. The provision is
necessary to enable there to be certainty with regards to the applicable
law when processing requests made by foreign countries for assistance.
PART 2 - VIDEO LINK EVIDENCE
67. Section 12 of the MA Act deals with requests by Australia for evidence
to be taken in a foreign country. Section 13 of the MA Act deals with
requests by a foreign country for evidence to be taken from a witness
before an Australian magistrate.
68. Increasingly, Australia is making and receiving requests for witnesses
to give evidence directly to a courtroom using live video link
technology. Such requests are currently able to be made and received by
Australia under the existing take evidence provisions in sections 12 and
13 of the MA Act. However, section 13 in particular is not very clear in
its application to such requests. Part 2 of Schedule 3 will amend the MA
Act to clarify the application of sections 12 and 13 to requests for
witnesses to give evidence directly to a courtroom in the requesting
country by live video link.
69. In particular, Part 2 would amend section 13 to make clear that the
Attorney-General may authorise evidence to be taken before an Australian
magistrate for live transmission by video link back to a court in the
foreign country. The amendments will also set out the role of the
Australian magistrate in conducting the proceedings in cooperation with
the foreign court, and clarify the powers that may be exercised by a
magistrate in such proceedings.
70. Part 2 also contains amendments to sections 12 and 13 of the Mutual
Assistance Act which will make clear that Australia can make and receive
requests for take evidence proceedings to be audio or video recorded, or
recorded by other electronic means. In some circumstances, this type of
recording of the proceeding is likely to be more useful to the requesting
country than a written transcript of the proceeding as would ordinarily
be provided.
Mutual Assistance in Criminal Matters Act 1987
Item 16 - Subsection 3(1)
71. Subsection 3(1) of the MA Act sets out definitions that are relevant to
the operation of the MA Act.
72. This Part will amend the MA Act to enable Australia to request, where
evidence is taken in a foreign country, that the foreign country arranges
for a tape recording to be made of the evidence. Further, the amendments
will also provide that foreign countries are able to request, where
evidence is taken in Australia, that a tape recording be made of the
evidence taken.
73. This item will insert a definition of 'tape recording' in subsection
3(1) of the MA Act. 'Tape recording' will be defined to include an audio
recording, video recording or recording by other electronic means. As
this definition will encompass a wide range of means of recording
evidence, it will ensure that the legislation will not require amendment
every time there are technological advancements in methods of
electronically recording evidence.
Item 17 - Before section 12
74. This item will insert a heading before section 12. The heading,
'Division 1 - Requests by Australia' will create a new division in Part
II of the MA Act. This new Division will contain section 12 of the
MA Act which deals with requests by Australia for assistance from foreign
countries in relation to the taking of evidence.
Item 18 - Subparagraphs 12(1)(a)(i) and (ii)
75. Subparagraphs 12(1)(a)(i) and (ii) of the MA Act currently provide that
Australia may request that a foreign country arrange for evidence to be
taken in the foreign country, in accordance with the law of that country,
or a document or other article to be produce in accordance with the law
of that country, for the purposes of a proceeding or investigation
relating to a criminal matter in Australia.
76. This item will omit the phrase 'in accordance with the law of that
country' from subparagraphs 12(1)(a)(i) and (ii).
77. As the 'take evidence' proceeding will be occurring in the foreign
country, the proceedings will necessarily have to be conducted under that
country's law. Accordingly, these words will be removed to avoid
confusion.
Items 19 and 20 - After paragraph 12(1)(a) and paragraph 12(1)(b)
78. Subsection 12(1) of the MA Act provides that Australia may request a
foreign country to arrange for evidence to be taken or a document to be
produced in the foreign country for the purposes of a proceeding or
investigation relating to a criminal matter in Australia. It also
provides that Australia may request a foreign country to arrange for the
evidence, document or other article to be sent to Australia.
79. Item 19 will insert paragraph 12(1)(aa) and item 20 will insert
additional words in paragraph 12(1)(b).
80. Proposed paragraph 12(1)(aa) will provide that, if a request is made
for evidence to be taken, Australia may request the appropriate authority
of a foreign country to arrange for a tape recording to be made of the
evidence taken. Proposed paragraph 12(1)(b) will be amended to provide
that Australia may request the appropriate authority of the foreign
country to arrange for the evidence, (and if paragraph (aa) applies, the
tape recording or a copy of it) document or other article to be sent to
Australia.
81. These amendments will clarify that Australia can make requests for take
evidence proceedings to be recorded by a foreign country, and for that
recording to be sent to Australia. This will ensure that section 12
covers evidence taken by tape, audio, video or another electronic means
of recording as well as a transcript of the evidence.
Item 21 - Subsection 12(3)
82. Subsection 12(3) of the MA Act currently provides that when Australia
makes a request for evidence to be taken or a document to be produced in
a foreign country for the purposes of an Australian investigation or
proceeding, Australia may also request an opportunity for the person
giving evidence or producing the document to be examined or cross
examined by video link from Australia.
83. This item will insert additional words in subsection 12(3).
84. The application of this provision is currently limited to examination
or cross examination by video link. This item will amended subsection
12(3) to provide that Australia may request an opportunity for the person
to be examined or cross examined in person or by video link from
Australia.
Item 22 - After section 12
85. This item will insert a heading after section 12 of the MA Act. The
heading, 'Division 2 - Requests by foreign countries' will create a new
division in Part II of the MA Act. This new Division will contain
section 13 of the MA Act which deals with requests by foreign countries
for assistance in relation to the taking of evidence, or the production
of documents.
Item 23 - Subsection 13(1)
86. Subsection 13(1) of the MA Act currently provides that if a foreign
country requests that evidence be taken, or documents be produced, in
Australia in relation to a foreign criminal matter, the Attorney-General
may provide written authorisation for the taking of evidence, production
of documents and transmission of that evidence or those documents to the
foreign country.
87. Increasingly, Australia is receiving requests for witnesses to give
evidence directly to a foreign courtroom using live video link
technology; however subsection 13(1) does not make clear whether
Australia is able to arrange for the evidence to be given through video
link.
88. This item will repeal existing subsection 13(1) and replace it with two
subsections: subsections 13(1) and 13(1A), which will govern requests
from foreign countries for evidence to be taken or documents produced.
89. New subsection 13(1) will provide that section 13 applies if a foreign
country requests, for the purposes of a foreign proceeding, that:
. evidence be taken in Australia
. a tape recording be made of evidence taken in Australia
. evidence be taken in Australia for live transmission by means of video
link to a foreign country, or
. documents or articles be produced in Australia.
90. New subsection 13(1A) will provide that the Attorney-General may
authorise the taking of evidence or the production of documents and also
approve their transmission to the foreign country. New subsections 13(1)
and (1A) will enable the evidence to be taken and then provided to the
foreign country (for example, by way of a transcript and tape recording)
as well as enabling the evidence to be taken and transmitted to the
foreign country through a live video link.
91. This will clarify the means by which evidence may be taken or documents
produced in Australia.
Item 24 - Saving of existing authorisations
92. Item 23 will repeal existing subsection 13(1) of the MA Act and
substitute it with two subsections: subsections 13(1) and 13(1A), which
will govern requests from foreign countries for evidence to be taken or
documents produced.
93. This item will provide that any authorisation made by the Attorney-
General under subsection 13(1) prior to the commencement of this item,
will continue to have force as if the authorisation had been given under
new subsection 13(1A) (which will be inserted by item 23).
94. This will ensure that old authorisations can continue to be relied upon
to obtain evidence or require the production of documents or other
articles without the Attorney-General having to make a new authorisation.
This will also clarify that any take evidence proceedings which are on
foot can continue without a new authorisation being necessary.
Item 25 - Subsection 13(2)
95. Currently, paragraph 13(2)(a) of the MA Act provides that where the
Attorney-General authorises the taking of evidence under subsection
13(1), this must be done before a magistrate. Where evidence is taken,
the magistrate must cause the evidence to be put in writing, certify that
the evidence was taken by the magistrate, and cause the certified writing
to be sent to the Attorney-General. Where documents or other articles
are produced, paragraph 13(2)(b) requires the Magistrate to send those
documents, or certified copies of those documents or other articles, to
the Attorney-General.
96. While paragraph 13(2)(a) provides some guidance as to the role a
magistrate plays in 'take evidence' proceedings, the extent of the powers
which may be exercised by a magistrate is unclear.
97. This item will omit all the words before paragraph 13(2)(b) and
substitute them with replacement provisions.
98. New paragraph 13(2)(a) will set out the powers which may be exercised
by a magistrate when taking evidence, other than by video link (this will
be governed by new subsection 13(2B) which will be inserted by item 28),
in accordance with an authorisation given by the Attorney-General. These
will be:
. taking the witness' evidence on oath or affirmation (subparagraph (i))
. directing that all or part of the proceeding be conducted in private
(subparagraph (ii))
. requiring a person to leave the place in Australia where the giving of
evidence is taking place or going to take place (subparagraph (iii))
(an example of this may be where a person present during the take
evidence proceedings is being uncooperative and disruptive and it is
necessary for the magistrate to order them to leave the place where
evidence is being given)
. prohibiting or restricting the publication of evidence given in the
proceeding or the name of a party to, or a witness in, the foreign
proceeding (subparagraph (iv)) (for example, this may be necessary to
protect the identities of vulnerable witnesses or a witness who may be
prejudiced by giving evidence because they are subject to ongoing
criminal proceedings)
. requiring the production of documents or other articles (subparagraph
(v)) (this power will be subject to proposed subsections 13AB(1),
which will be introduced by item 32)
. taking such action as the magistrate considers appropriate to
facilitate the foreign proceeding (subparagraph (vi)), or
. performing any other function required by the regulations
(subparagraph (vii)).
99. This list is based on powers which are generally available to a
magistrate when taking evidence in Australian criminal proceedings for
Australian purposes. As such, the list of powers set out in new
paragraph 13(2)(a) is not intended to be exhaustive, but is designed to
give greater clarity and guidance to magistrates in performing their
function under section 13 of the MA Act.
Item 26 - Paragraph 13(2)(b)
100. This item will omit the words 'subsection (6)' and substitute the
words 'subsection 13AB(1)' in paragraph 13(2)(b) of the MA Act.
101. The proposed amendment is consequential upon items 31 and 32, which
will repeal subsection (6) and insert section 13AB.
Item 27 - At the end of subsection 13(2)
102. This item will insert two notes after subsection 13(2) of the MA Act.
These notes contain cross references to proposed subsections 13(2C) and
13(2B) respectively, which will be inserted by item 26, and will clarify
the powers that a magistrate may exercise when evidence is taken during
live video link proceedings.
Item 28 - After subsection 13(2)
103. Currently, while subsection 13(2) of the MA Act provides some guidance
as to the role a magistrate plays in 'take evidence' proceedings, the
extent of the powers which may be exercised by a magistrate are unclear,
particularly in relation to live video link proceedings. Item 25 will
insert a new paragraph which will set out the powers which may be
exercised by a magistrate when taking evidence, other than by video link.
104. This item will insert subsections 13(2A), 13(2B), 13(2C) and 13(2D) in
the MA Act, which will further clarify the powers and functions a
magistrate may exercise while evidence is taken, particularly during live
video link proceedings and will also set out the magistrate's
responsibilities with regard to providing the evidence to the Attorney-
General for provision to the foreign country.
105. Proposed subsection 13(2A) will provide that a magistrate may not make
a ruling about the admissibility of evidence in a foreign proceeding.
106. This amendment is intended to reflect the High Court's decision in The
Queen v Wilson, ex parte Witness T (1976) 135 CLR 179, in which the High
Court considered the role of magistrates in take evidence proceedings.
Barwick CJ held:
The Magistrate who takes such evidence exercises no more than a
recording function. He decides no matter of right and makes no rulings
as to admissibility of evidence. All that will be for the foreign
court, whose laws may be unknown to the Magistrate as may be its
detailed rules as to admissibility of evidence.
107. This amendment will clarify that magistrates exercising powers under
section 13 of the MA Act, whether during, or in the absence of, a live
video link proceeding, perform a recording function and may not rule on
matters of admissibility. This is a matter governed by the laws of the
foreign country in which the evidence is to be admitted.
108. Proposed subsection 13(2B) will provide that a magistrate taking
evidence by live video link may only exercise the following powers at the
request of the foreign court:
. direct that all or part of the proceeding be conducted in private
. require a person to leave the place in Australia where the giving of
evidence is taking place or going to take place (for example, if a
witness is being uncooperative and disruptive and it may be necessary
for a magistrate to order them to leave the place where evidence is
being given)
. prohibit or restrict the publication of evidence given in the
proceeding or the name of a party to, or a witness in, the foreign
proceeding (for example, this power may be necessary to, for example,
protect the identity of a witness)
. assist with the administering by the foreign court of, or administer
himself or herself, an oath or affirmation.
109. This is appropriate because a judicial authority of the foreign
country will be presiding over the proceedings and the taking of evidence
is an extension of the foreign proceedings. As such, the powers
exercisable by the Australian magistrate should be more limited.
110. New subsection 13(2C) will provide that where a magistrate takes a
witness's evidence on oath or affirmation, but not for live video link
transmission (as provided for in
new subparagraph 13(2)(a)(i) which will be inserted by item 25), the
magistrate must also:
. cause a tape recording to be made of the evidence if requested by the
foreign country, certify that the evidence on the tape recording was
taken by the magistrate and cause the tape recording, or a copy of it,
to be sent to the Attorney-General
. cause the evidence to be put in writing, certify that the evidence was
taken by the magistrate and cause the certified writing to the sent to
the Attorney-General.
111. This is consistent with the current general requirement in subsection
13(2), yet encompasses the recording of evidence which is not currently
covered by subsection 13(2) and ensures the evidence is able to be
provided to the foreign country in a form that will be admissible as
evidence.
112. New section 13(2D) will outline the magistrate's responsibilities if,
during take evidence proceedings, he or she requires the production of
documents or other articles. If documents or other articles are
produced, the magistrate must send those documents, or certified copies
of those documents, or other articles, to the Attorney-General. This
mirrors the requirements imposed on a magistrate by current paragraph
13(2)(b) where the magistrate has required the production of documents or
other articles.
Item 29 - Subsection 13(4A)
113. Currently, subsection 13(4A) of the MA Act provides that where the
Attorney-General authorises the taking of evidence or the production of
documents at the request of a foreign country, a magistrate conducting
'take evidence' proceedings may permit any or all of the following
persons to examine or cross examine, through a video link, from the
requesting country, any person giving evidence or producing documents:
. any person to whom the proceeding in the requesting country relates
. the legal representative of the relevant authority of the requesting
country.
114. This item will omit ', through a video link, from the requesting
country' and substitute 'in person, or through a video link from the
requesting country' in subsection 13(4A) of the MA Act. This amendment
will ensure subsection 13(4A) applies to proceedings conducted in person
or through a video link from the requesting country. This will ensure
that the legislation reflects that examination or cross examination is
permitted in take evidence proceedings conducted by live video link, and
in take evidence proceedings other than by live video link. This mirrors
the amendment that will be made by item 21 in relation to requests by
Australia for the taking of evidence or production of documents in a
foreign country.
Item 30 - After subsection 13(4A)
115. Part III of the Crimes Act contains offences relating to the
administration of justice, including giving false testimony, fabricating
evidence and intimidating witnesses.
116. This item will insert subsection 13(4B) in the MA Act, which will
clarify that, for the purposes of Part III of the Crimes Act:
. a 'take evidence' proceeding before a magistrate is a federal judicial
proceeding, and
. evidence taken from a witness on oath or affirmation is testimony
given in a federal judicial proceeding.
117. This provision will ensure that any relevant offences contained in
Part III of the Crimes Act will apply to evidence taken at the request of
a foreign country in accordance with section 13 of the MA Act.
Item 31 - Subsections 13(6) to (10)
118. Subsections 13(6) to (10) of the MA Act relate to the application of
Commonwealth, State and Territory laws to evidence taken and documents
produced in accordance with section 13 of the MA Act.
119. This item will repeal subsections 13(6) to 13(10). This amendment
will be consequential upon item 32, which will insert two new sections
relating to enforcing orders and applying Commonwealth, State and
Territory laws when taking evidence and producing documents for foreign
purposes.
Item 32 - After section 13
120. This item will insert new sections 13AA (relating to the enforcement
of orders) and 13AB (relating to the application of Commonwealth, State
and Territory laws in the taking of evidence and production of documents
in accordance with section 13 of the MA Act) in the MA Act.
121. New section 13AA will confirm that orders made by a magistrate during
'take evidence' proceedings are enforceable if they relate to the conduct
of the proceedings, even if they are made at the request of a foreign
court. This will clarify that any orders made may be enforced as if they
were an order of that court, subject to the rules of the relevant court.
122. Currently, subsections 13(6), 13(7) and 13(8) provide for the
application of State and Territory laws to 'take evidence' proceedings
before magistrates. However, item 8 of Schedule 1 will enable Federal
Magistrates, in addition to magistrates, to conduct 'take evidence' and
production of document proceedings under section 13. As a consequence of
this change, item 31 will repeal subsections 13(6) to 13(10) and new
section 13AB will provide for the application of Commonwealth, State and
Territory laws to 'take evidence' proceedings before Federal Magistrates
and magistrates.
123. New subsection 13AB(1) will apply the following laws, subject to
subsection 13AB(2):
. laws of Commonwealth with respect to the compelling of persons to
attend before a Federal Magistrate
. laws of the Commonwealth with respect to giving evidence, answering
questions and producing documents or other articles before a Federal
Magistrate
. laws of a State or Territory with respect to compelling of persons to
attend before a magistrate (other than a Federal Magistrate), and
. laws of a State or Territory with respect to giving evidence,
answering questions and producing documents or other articles before a
magistrate (other than a Federal Magistrate).
124. This will ensure that the rules of court apply when compelling persons
to attend before a Federal Magistrate, and the Commonwealth Evidence Act
1995 applies when a person gives evidence, answers questions and produces
documents or other articles before a Federal Magistrate. This will be
consistent with the usual rules and laws applicable to proceedings before
a Federal Magistrate.
125. The laws of the State or Territory in which the magistrate is sitting
will apply when compelling persons to attend before a magistrate, or when
a person gives evidence, answers questions and produces documents or
other articles before a magistrate. This will replicate the current
application of State or Territory laws to magistrates under
subsections 13(6), 13(7) and 13(8) (which will be repealed by item 31).
New subsections 13AB(2) and (3) will provide that:
. the person to whom the proceeding in the requesting country relates is
competent but not compellable to give evidence, and
. a person who is required to give evidence, or produce documents or
other articles is not compellable to answer a question or produce a
document if they could not be compelled to do so in the foreign
country (except if this would be inconsistent with a provision of a
mutual assistance treaty between Australia and the country requesting
the take evidence proceedings).
126. A person to whom the foreign proceedings relate should not be
compelled to give evidence for the purposes of a proceeding in the
requesting country in relation to that person. However, the person
should be able to give evidence if he or she wishes to do so.
127. A person who is required to give evidence, or produce documents or
other articles should not be compellable to answer a question or produce
a document if they could not be compelled to do so in the foreign country
or under a relevant treaty. This will ensure that any evidence used for
the purposes of a proceeding in the foreign country is obtained
consistently with the laws of that foreign country.
128. These new subsections mirror subsections 13(7) to (9) which will be
repealed by item 31.
129. New subsection 13AB(4) will provide that a duly authenticated foreign
law immunity certificate is admissible in proceedings under section 13 as
prima facie evidence of the matters stated in the certificate. This
mirrors existing subsection 13(10) which will be repealed by item 31.
Item 33 - Application of amendments made by this Part
130. This item will provide that the amendments apply to requests made by
foreign countries before the commencement of this item only if the
Attorney-General has not made an authorisation under subsection 13(1).
131. The item will also provide that the amendments apply in relation to
any request received on or after the commencement of this item.
PART 3 - TELECOMMUNICATIONS AND SURVIELLANCE DEVICES
Division 1 - Provision of certain lawfully obtained material
132. Section 13A of the MA Act provides a streamlined procedure for
providing directly to a foreign country material that was lawfully
obtained by, and is lawfully in the possession of, a domestic enforcement
agency following an authorisation from the Attorney-General. Under
section 13A, the material is not required to be produced before a
magistrate before it can be provided to a foreign country.
133. Currently, information that is obtained by lawful telecommunications
interception (lawfully intercepted information) and covertly accessed
stored communications (such as email records) (lawfully accessed
information) obtained in an Australian investigation can only be provided
to a foreign country through take evidence or production order
proceedings before a magistrate pursuant to section 13 of the MA Act.
Lawfully intercepted and obtained currently cannot be provided to a
foreign country under section 13A.
134. Division 1 of Part 3 will amend the MA Act and the TIA Act so that
section 13A of the MA Act is available for the provision of lawfully
intercepted and accessed information. Information in relation to the
warrant used by the domestic enforcement agency to obtain the lawfully
intercepted or accessed information will also be able to be provided
under section 13A. This could include information in the application for
the warrant, the person or telecommunications service to which the
warrant relates and persons specified in the warrant as using the
telecommunications service.
Mutual Assistance in Criminal Matters Act 1987
Items 34 to 38 - Subsection 3(1)
135. Subsection 3(1) of the MA Act sets out definitions that are relevant
to the operation of the MA Act. Items 34 to 38 will insert new
definitions relevant to the changes that will be made by this Division.
Item 34 - Subsection 3(1)
136. Item 39 will amend section 13A of the MA Act to enable the Attorney-
General to authorise the provision of certain specified material to a
requesting country, provided the requisite offence threshold is met.
Under the amendments, the Attorney-General will be able to authorise the
provision of 'interception warrant information' to a foreign country
provided it relates to a serious offence against the laws of the
requesting country punishable by a maximum penalty of seven or more years
imprisonment, life imprisonment or death, or for a cartel offence, by a
maximum fine of an amount equivalent to at least $A10,000,000.
137. This item will insert a definition of 'interception warrant
information' in subsection 3(1) of the MA Act. 'Interception warrant
information' will have the same meaning as in the TIA Act.
138. Section 6EA of the TIA Act provides that a reference to 'interception
warrant information' is a reference to information:
. about an application for an interception warrant
. about the issue of an interception warrant
. about the existence or non-existence of an interception warrant
. about the expiration of an interception warrant
. that is likely to enable the identification of the telecommunications
service to which an interception warrant relates, or
. that is likely to enable the identification of a person specified in
an interception warrant as a person using, or likely to use, the
telecommunications service to which the warrant relates.
Item 35 - Subsection 3(1)
139. Item 39 will amend section 13A of the MA Act to enable the Attorney-
General to authorise the provision of certain specified material to a
requesting country, provided the requisite offence threshold is met.
Under the amendments, the Attorney-General will be able to authorise the
provision of 'lawfully accessed information' provided it related to a
serious offence against the laws of the requesting country that was
punishable by a maximum penalty of three or more years imprisonment, life
imprisonment or death, or a maximum fine of an amount equivalent to at
least 900 penalty units (under section 4AA of the Crimes Act 1914, one
penalty unit equates to $A110).
140. This item will insert a definition of 'lawfully accessed information'
in subsection 3(1) of the MA Act. 'Lawfully accessed information' will
have the same meaning as in the TIA Act.
141. Subsection 5(1) of the TIA Act provides that 'lawfully accessed
information' means information obtained by accessing a stored
communication otherwise than in contravention of subsection 108(1) of the
TIA Act. Subsection 108(1) makes it an offence to access a stored
communication unless the access is otherwise permitted by that section of
the TIA Act.
Item 36 - Subsection 3(1)
142. Item 39 will amend section 13A of the MA Act to enable the Attorney-
General to authorise the provision of certain specified material to a
requesting country, provided the requisite offence threshold is met.
Under the amendments, the Attorney-General will be able to authorise the
provision of 'lawfully intercepted information' provided it related to a
serious offence against the laws of the requesting country that was
punishable by a maximum penalty of seven or more years imprisonment, life
imprisonment or death, or for a cartel offence, by a maximum fine of an
amount equivalent to at least $A10,000,000.
143. This item will insert a definition of 'lawfully intercepted
information' in subsection 3(1) of the MA Act. 'Lawfully intercepted
information' will have the same meaning as in the TIA Act.
144. Section 6E of the TIA Act provides that a reference to lawfully
intercepted information is a reference to information obtained by
lawfully intercepting a communication passing over a telecommunications
system.
Item 37 - Subsection 3(1)
145. Section 13A of the MA Act enables Australia to provide directly to a
foreign country material obtained through the use of a surveillance
device only where the investigation or proceedings to which the material
relates, is in relation to an offence punishable by a maximum penalty of
three or more years imprisonment, life imprisonment or death.
146. Item 39 will amend section 13A of the MA Act to enable the Attorney-
General to authorise the provision of other certain specified material to
a requesting country, provided the requisite offence threshold is met.
Under the amendments, the Attorney-General will continue to be able to
provide surveillance device material in the same circumstances as is
currently possible (that is where the offence is punishable by a maximum
penalty of three or more years imprisonment, life imprisonment or death).
However, this material will be covered by the term 'protected
information'.
147. This item will insert a definition of 'protected information' in
subsection 3(1) of the MA Act. 'Protected information' will be defined
by reference to paragraphs 44(1)(a), (b) and (c) of the SD Act.
148. Paragraphs 44(1)(a), (b) and (c) of the SD Act define 'protected
information' as any information:
. obtained from using a surveillance device
. relating to an application for the issue, existence, or expiration of
a warrant, an emergency authorisation or a tracking device
authorisation,
. relating to an application for approval of powers exercised under an
emergency authorisation, or
. that is likely to enable the identification of a person, object or
premises specified in a warrant, an emergency authorisation or a
tracking device authorisation.
Item 38 - Subsection 3(1)
149. Item 39 will amend section 13A of the MA Act to enable the Attorney-
General to authorise the provision of certain specified material to a
requesting country, provided the requisite offence threshold is met.
Under the amendments, the Attorney-General will be able to authorise the
provision of 'stored communications warrant information' provided it
relates to a serious offence against the laws of the requesting country
that was punishable by a maximum penalty of three or more years
imprisonment, life imprisonment or death, or a maximum fine of an amount
equivalent to at least 900 penalty units (under section 4AA of the Crimes
Act, one penalty unit equates to $A110).
150. This item will insert a definition of 'stored communications warrant
information' in subsection 3(1) of the MA Act. 'Stored communications
warrant information' will have the same meaning as in the TIA Act.
151. Section 6EB of the TIA Act defines 'stored communications warrant
information' as information about:
. an application for a stored communications warrant
. the issue of a stored communications warrant
. the existence or non-existence of a stored communications warrant
. the expiry of a stored communications warrant
. any other information that is likely to enable the identification of
the telecommunications service to which a stored communications
warrant relates, or
. any other information that is likely to enable the identification of a
person specified in a stored communications warrant as a person using,
or likely to use, the telecommunications service to which the warrant
relates.
Items 39 to 41
152. Section 13A currently enables the Attorney-General to authorise the
provision of material to the requesting foreign country where that
material has been lawfully obtained by, and is in the possession of, an
enforcement agency in Australia.
153. However, subsection 13A(2) limits the provision of material obtained
through the use of a surveillance device to where the investigation, or
proceedings to which the material relates, is in relation to an offence
punishable by a maximum penalty of three or more years imprisonment, life
imprisonment or death.
154. Further, subsection 13A(6) excludes material obtained under the TIA
Act from the definition of material lawfully obtained by an enforcement
agency in Australia and as such that material cannot be provided in
response to a request pursuant to section 13A. This means that lawfully
intercepted information and lawfully accessed stored communications
('lawfully accessed information' such as email records) can currently
only be provided to a foreign country through 'take evidence' or
production order proceedings before a magistrate pursuant to section 13
of the Act. These proceedings can be costly and time consuming.
155. The amendments made by these items will allow lawfully intercepted
information and lawfully accessed information acquired for domestic
purposes to be provided to a foreign country under section 13A. Unlike
the current process for providing telecommunications interception product
and covertly accessed stored communications under section 13, the
material will not be required to be produced before a magistrate before
it could be provided to a foreign country. This will enable Australia to
provide material lawfully obtained by, and lawfully in the possession of,
a domestic law enforcement agency directly to a foreign country following
the Attorney-General's authorisation.
Item 39 - Subsection 13A(2)
156. Subsection 13A(2) of the MA Act and the definition of 'material
lawfully obtained by an enforcement agency in Australia' in the MA Act
currently limits the material that is able to be provided to a foreign
country under section 13A.
157. This item will repeal subsection 13A(2) and replace it with a new
provision which will clearly outline what material can be provided to a
foreign country, and the circumstances in which that material can be
provided. Subsection 13A(2) will enable the provision of:
. protected information
. lawfully accessed information or stored communications warrant
information, and
. lawfully intercepted information or interception warrant information.
Protected information
158. Under new subsection 13A(2), protected information will be able to be
provided to a foreign country following an authorisation by the Attorney-
General where the offence is a serious offence punishable by a maximum
penalty of at least three years imprisonment, life imprisonment or the
death penalty. This will mirror the threshold level required to obtain a
surveillance device for a domestic offence under the SD Act. This is
because it would be inappropriate to provide information obtained for a
domestic purpose to a foreign country for use in relation to an offence
that, if it were investigated in Australia would not have been able to be
obtained for such purposes.
159. Although this amendment will enable assistance to be provided in
relation to an offence that carries the death penalty, section 8 of the
MA Act provides that where a mutual assistance request relates to a death
penalty offence, assistance must be refused unless 'special
circumstances' exist. Special circumstances could include material that
provides exculpatory evidence, or where the requesting country has
provided an undertaking that the death penalty will not be sought, or if
imposed, will not be carried out.
160. Item 37 will insert a definition of 'protected information'.
Protected information will be defined as information:
. obtained from using a surveillance device
. relating to an application for the issue, existence, or expiration of
a warrant, an emergency authorisation or a tracking device
authorisation,
. relating to an application for approval of powers exercised under an
emergency authorisation, or
. that is likely to enable the identification of a person, object or
premises specified in a warrant, an emergency authorisation or a
tracking device authorisation.
161. This will maintain the current position under section 13A of the MA
Act in relation to the provision of already lawfully obtained protected
information to foreign countries.
Lawfully accessed information and stored communications warrant information
162. Under new subsection 13A(2), lawfully accessed information or stored
communications warrant information will be able to be provided to a
foreign country following an authorisation by the Attorney-General where
the relevant foreign offence carries a maximum penalty of at least three
years imprisonment, life imprisonment or the death penalty, or a fine
equivalent to, or greater than 900 penalty units. Under section 4AA of
the Crimes Act, one penalty unit is currently $110. This will mirror the
threshold level required for a stored communications warrant in relation
to a domestic offence under the TIA Act. This is because it would be
inappropriate to provide information obtained for a domestic purpose to a
foreign country for use in relation to an offence that, if it were
investigated in Australia would not have been able to be obtained for
such purposes.
163. Although this amendment will allow assistance to be provided in
relation to an offence that carries the death penalty, section 8 of the
MA Act provides that where a mutual assistance request relates to a death
penalty offence, assistance must be refused unless 'special
circumstances' exist. Special circumstances could include material that
provides exculpatory evidence, or where the requesting country has
provided an undertaking that the death penalty will not be sought, or if
imposed, will not be carried out.
164. Item 35 will insert a definition of 'lawfully accessed information'
and item 38 will insert a definition of 'stored communications warrant
information'. 'Lawfully accessed information' will be defined as
information obtained by accessing a stored communication otherwise than
in contravention of subsection 108(1) of the TIA Act. 'Stored
communications warrant information' will be defined as information about:
. an application for a stored communications warrant
. the issue of a stored communications warrant
. the existence or non-existence of a stored communications warrant
. the expiry of a stored communications warrant
. any other information that is likely to enable the identification of
the telecommunications service to which a stored communications
warrant relates, or
. any other information that is likely to enable the identification of a
person specified in a stored communications warrant as a person using,
or likely to use, the telecommunications service to which the warrant
relates.
Lawfully intercepted information or interception warrant information
165. Under the amended section 13A of the MA Act, lawfully intercepted
information and interception warrant information will be able to be
provided to a foreign country following an authorisation by the Attorney-
General where the relevant foreign offence carries a maximum penalty of
at least seven years imprisonment, life imprisonment, the death penalty
or in the case of a foreign cartel offence, a fine of at least the
equivalent of $A10,000,000. This generally mirrors the threshold for
obtaining this information for domestic purposes. This is because it
would be inappropriate to provide information obtained for a domestic
purpose to a foreign country for use in relation to an offence that, if
it were investigated in Australia would not have been able to be obtained
for such purposes.
166. Although this amendment will allow assistance to be provided in
relation to an offence that carries the death penalty, section 8 of the
MA Act provides that where a mutual assistance request relates to a death
penalty offence, assistance must be refused unless 'special
circumstances' exist. Special circumstances could include material that
provides exculpatory evidence, or where the requesting country has
provided an undertaking that the death penalty will not be sought, or if
imposed, will not be carried out.
167. Item 36 will insert a definition of 'lawfully intercepted information'
and item 34 will insert a definition of 'interception warrant
information'. Lawfully intercepted information will be defined to mean
information obtained by lawfully intercepting a communication passing
over a telecommunications system. Interception warrant information will
be defined to mean information:
. about an application for an interception warrant
. about the issue of an interception warrant
. about the existence or non-existence of an interception warrant
. about the expiration of an interception warrant
. that is likely to enable the identification of the telecommunications
service to which an interception warrant relates, or
. that is likely to enable the identification of a person specified in
an interception warrant as a person using, or likely to use, the
telecommunications service to which the warrant relates.
168. Item 114 will insert a definition of 'cartel offence'. Cartel offence
will be defined as an offence by a corporation involving cartel conduct.
As the definition will be limited to offences committed by corporations,
if lawfully intercepted information or interception warrant information
was sought in relation to an individual suspected of engaging in cartel
conduct, the relevant offence must be punishable by seven or more years
imprisonment. Lawfully intercepted information or interception warrant
information could not be provided in relation to an individual being
investigated, prosecuted or punished in relation to an offence punishable
by only a fine.
Item 40 - Subsection 13A(6) (paragraph (b) of the definition of material
lawfully obtained by an enforcement agency in Australia)
169. This item will replace a semi colon with a full stop after the word
'prosecution' in paragraph (b) of the definition of 'material lawfully
obtained by an enforcement agency in Australia'. It is consequential
upon item 41, which removes all words in subsection 13A(6) appearing
after paragraph 13A(6)(b).
Item 41 - Subsection 13A(6) (definition of material lawfully obtained by an
enforcement agency in Australia)
170. Subsection 13A(6) of the MA Act currently excludes material obtained
under the TIA Act from the definition of 'material lawfully obtained by
an enforcement agency in Australia' and as such that material cannot be
provided in response to a request pursuant to section 13A. This means
that lawfully intercepted information or lawfully accessed stored
communications ('lawfully accessed information' such as email records)
can only be provided to a foreign country through 'take evidence' or
production order proceedings before a magistrate pursuant to section 13
of the Act.
171. This item will remove 'but does not include material under the
Telecommunications (Interception and Access) Act 1979.' This amendment
will support the amendment made by item 39, which will enable the
Attorney-General to authorise the provision of certain types of
information obtained lawfully under the TIA Act to the requesting
country.
Telecommunications (Interception and Access) Act 1979
Item 42 - At the end of section 68
172. Section 63 of the TIA Act places a general prohibition on the use or
communication of any lawfully intercepted information, or information
about warrants ('interception warrant information').
173. Section 68 of the TIA Act sets out an exception to this prohibition
which enables the chief officer of an agency to communicate lawfully
intercepted information that was originally obtained by that agency, or
interception warrant information, to certain named entities or persons
for certain purposes.
174. This item will insert new paragraph 68(l) in the TIA Act which will
outline a further circumstance in which lawfully intercepted information
or interception warrant information may be communicated.
175. Paragraph 68(l) will enable the chief officer of an agency to
communicate lawfully intercepted information or interception warrant
information to a foreign country that has requested that information or
to the Secretary of the Department for the purpose of providing that
information to that foreign country.
176. The information will only be able to be provided if the Attorney-
General has authorised the provision of the information under subsection
13A(1) of the MA Act. Section 13A (which will be amended by items 39 to
41) will provide that the Attorney-General may only authorise the
provision of the information following a request by a foreign country if:
. lawfully intercepted information or interception warrant information
has already been lawfully obtained by, and is in the possession of,
Australian law enforcement, and
. the request relates to a serious offence punishable by a maximum
penalty of seven or more years imprisonment, life imprisonment or
death, or for a cartel offence, a maximum fine equivalent to at least
$A10,000,000.
177. Using the definitions of 'chief officer' and 'agency' in subsection
5(1) of the TIA Act, the following persons will be able to disclose
lawfully intercepted information or interception warrant information
under paragraph 68(l):
. the Commissioner of the AFP
. the Chief Executive Officer of the Australian Crime Commission
. the Integrity Commissioner of the Australian Commission for Law
Enforcement Integrity
. the Commissioners of all State Police forces or services (including
the Northern Territory)
. the Commissioner of the NSW Crime Commission
. the Commissioner of the NSW Independent Commission Against Corruption
. the Inspector of the NSW Independent Commission Against Corruption
. the Commissioner of the NSW Police Integrity Commission
. the Inspector of the NSW Police Integrity Commission
. the Director of the Victorian Office of Police Integrity
. the Chairperson of the Queensland Crime and Misconduct Commission
. the Commissioner of the Western Australian Corruption and Crime
Commission, or
. the Parliamentary Inspector of the Western Australian Corruption and
Crime Commission
Item 43 - After section 68
178. New paragraph 68(l) (which will be inserted by item 42) will enable
the chief officer of an agency to communicate lawfully intercepted
information or interception warrant information to the Secretary of the
Department for the purpose of providing that information to a foreign
country. The information will only be able to be provided if the
Attorney-General has authorised the provision of the information under
subsection 13A(1) of the MA Act. Section 13A (which will be amended by
items 39 to 41) will provide that the Attorney-General may only authorise
the provision of the information following a request by a foreign country
if:
. lawfully intercepted information or interception warrant information
has already been lawfully obtained by, and is in the possession of,
Australian law enforcement, and
. the request relates to a serious offence punishable by a maximum
penalty of seven or more years imprisonment, life imprisonment or
death, or for a cartel offence, a maximum fine equivalent to at least
$A10,000,000.
179. This item will insert new section 68A, which will describe the
circumstances in which information communicated to the Secretary of the
Department in accordance with paragraph 68(l) (which will be inserted by
item 42) will be able to be communicated to another person, including a
foreign country.
180. Proposed subsection 68A(1) will provide that where lawfully
intercepted information or interception warrant information has been
provided to the Secretary of the Department in accordance with paragraph
68(l), the Secretary may (either personally or by a person authorised by
him or her) communicate that information to another person, including a
foreign country. The information may only be communicated for purposes
connected with providing the information to a foreign country.
181. If the Secretary authorises another person to communicate the
information, proposed subsection 68A(2) will authorise that person to
communicate that information to another person (including a foreign
country) for purposes connected with providing the information to the
foreign country.
182. This new section will ensure that information requested by a foreign
country is able to be provided to that foreign country (following
Attorney-General authorisation) in the most appropriate manner by the
most appropriate person.
183. As the provision of this information to the foreign country is part of
the formal mutual assistance process as opposed to police-to-police
assistance, the information will generally be provided to the foreign
country by the Central Authority in the Department as opposed to being
provided by the law enforcement agency.
Items 44 and 45 - Paragraph 94(3)(a) and after section 102A
184. Subsection 94(3) of the TIA Act requires the chief officer of a
Commonwealth agency to provide an annual written report to the Minister,
as soon as practicable within three months after 30 June. The report
must contain information about telecommunications interceptions. The
information required for inclusion in the report is set out in Division 2
of Part 2-8 of the TIA Act.
185. These items will insert '(other than section 102B)' after 'Division 2'
in paragraph 94(3)(a), and will insert new section 102B.
186. The insertion of '(other than section 102B)' after 'Division 2' in
paragraph 94(3)(a) will mean that the chief officer of a Commonwealth
agency will not be required to provide the Minister with the information
required to be in the Minister's annual report under new section 102B.
New section 102B (which will be inserted by item 45) will require the
Minister's report to set out the number of occasions on which lawfully
intercepted information or interception warrant information was provided
to a foreign country under paragraph 68(l) or section 68A of the TIA Act
in connection with an authorisation under subsection 13A(1) of the MA Act
187. The provision of lawfully intercepted information or interception
warrant information to the foreign country is part of the formal mutual
assistance process as opposed to police-to-police assistance. Therefore,
the information will generally be provided to the foreign country by the
Central Authority in the Department as opposed to being provided by a law
enforcement agency. As such, it is not appropriate that the agency be
required to report on these matters.
188. Division 2 of Part 2-8 requires the report to the Minister include
information about how many warrant applications were made and issued, the
duration of warrants and the effectiveness of the warrants including
information about the number of arrests, prosecutions and convictions
that result from the use of telecommunications interception warrants. As
it will not be feasible for Australian authorities to obtain this type of
information from foreign counterparts, these reporting requirements will
not be extended to circumstances where information has been provided to a
foreign country.
189. However, item 45 will insert new section 102B. This section will
instead require the Minister's report to set out the number of occasions
on which information about telecommunications interceptions was provided
to a foreign country under paragraph 68(l) or section 68A of the TIA Act
in connection with an authorisation under subsection 13A(1) of the
MA Act. Paragraph 68(l) and section 68A will be inserted by items 42 and
43 respectively.
190. As section 104 of the TIA Act requires the Minister to table the
report in Parliament, the amendments by these items will ensure there is
transparency and accountability as to how often information lawfully
obtained for a domestic purpose, is provided to a foreign country for the
purpose of foreign law enforcement.
Item 46 - At the end of subsection 139(2)
191. Section 133 of the TIA Act places a general prohibition on the use and
communication of lawfully accessed stored communications and stored
communications warrant information. Section 139 contains exceptions to
these prohibitions.
192. This item will insert new paragraph 139(2)(e), which will provide an
additional purpose for which lawfully accessed information (other than
foreign intelligence information) and stored communication warrant
information may be communicated, used or recorded by an officer or staff
member of an enforcement agency or an eligible Commonwealth authority.
193. Paragraph 139(2)(e) will provide that an officer or staff member of an
enforcement agency or an eligible Commonwealth authority may communicate,
use or record information for purposes connected with an authorisation
under subsection 13A(1) of the MA Act. This is appropriate as it will be
those officers or staff members who will need to deal with the
information for the purposes of responding to the request from the
foreign country.
194. Section 13A of the MA Act enables the Attorney-General to authorise
the provision of certain material that has been lawfully obtained by, and
is lawfully in the possession of, an enforcement agency, to a requesting
foreign country. Item 39 will enable information obtained under the TIA
Act to be provided pursuant to section 13A. This item will ensure that
disclosure requirements under the TIA Act are not offended when
information is provided in accordance with the MA Act.
Items 47 and 48 - Paragraph 159(1)(a) and at the end of Division 2 of Part
3-6 of Chapter 3
195. Section 159 requires the provision of a written annual report to the
Minister, as soon as practicable within three months of 30 June. The
report must contain information about applications and warrants to access
stored communications, as required by Division 2 of Part 3-6 of the TIA
Act.
196. These items will insert '(other than section 163A)' after 'Division 2'
in paragraph 159(1)(a) and insert new section 163A.
197. The insertion of (other than section 163A)' after 'Division 2' in
paragraph 159(1)(a) by item 47 will mean that the chief officer of an
enforcement agency will not be required to provide the Minister with the
information required to be included in the Minister's annual report under
new section 163A. New section 163A will instead specify that the
Minister's annual report must set out the number of occasions on which
lawfully accessed information or stored communications information was
provided to a foreign country under paragraph 139(1) or section 142 of
the TIA Act in connection with an authorisation under subsection 13A(1)
of the MA Act.
198. The provision of lawfully accessed information or stored
communications information to the foreign country is part of the formal
mutual assistance process as opposed to police-to-police assistance.
Therefore the information will generally be provided to the foreign
country by the Central Authority in the Department as opposed to being
provided by a law enforcement agency. As such, it is not appropriate
that the agency be required to report on these matters.
199. Division 2 of Part 3-6 requires the report to the Minister to contain
information about the number of arrests, prosecutions and convictions
that result from lawfully accessing stored communications information.
As it will not be feasible for Australian authorities to obtain this type
of information from foreign counterparts, these reporting requirements
will not be extended to circumstances where information has been provided
to a foreign country.
200. However, item 48 will insert new section 163A. This section will
instead specify that the Minister's annual report must set out the number
of occasions on which lawfully accessed information or stored
communications information was provided to a foreign country under
paragraph 139(1) or section 142 of the TIA Act in connection with an
authorisation under subsection 13A(1) of the MA Act.
201. As section 164 of the TIA Act requires the Minister to table the
report in Parliament, the amendments by these items will ensure there is
transparency and accountability as to how often information lawfully
obtained for a domestic purpose, is provided to a foreign country for the
purpose of foreign law enforcement.
Item 49 - Application of amendments made by this Division
202. This item will provide that the amendments made by Part 1 of Schedule
3 apply in relation to a request by a foreign country that is being
considered on or after the day on which this item commences. The
commencement for this item will be a day to be fixed by proclamation.
203. This application provision also specifies that the amendments made by
this Part will apply from the day of commencement regardless of whether
the request was made before or after that day. While this provision
would apply to requests made before the date of Royal Assent, it would
not create any retrospective criminal liability. The provision is
necessary to enable there to be certainty with regards to the applicable
law when processing requests made by foreign countries for assistance.
Division 2 - Requests for use of surveillance devices
204. Currently, prescribed Australian agencies may apply to an eligible
judge or nominated Administrative Appeals Tribunal member for warrants to
use surveillance devices to assist in the investigation of domestic
offences. The prescribed agency's investigation must relate to a
domestic offence that is punishable by imprisonment for at least three
years. These law enforcement tools are not currently available for the
investigation or prosecution of a foreign offence.
205. This Division will amend the MA Act and the SD Act to enable Australia
to make and receive requests relating to the use of surveillance devices.
Mutual Assistance in Criminal Matters Act 1987
Item 50 - After Part IIIB
206. This item will insert Part IIIC into the MA Act. Part IIIC will
govern assistance in relation to surveillance devices. Part IIIC will
contain two sections; the first will detail requests made by Australia
and the second will detail requests made by foreign countries.
Section 15E - Requests by Australia for surveillance devices
207. New section 15E will enable Australia to request an appropriate
authority of a foreign country to authorise the use of a surveillance
device in that country and arrange for information obtained pursuant to
use of that device to be sent to Australia.
208. The threshold test for requesting the use of a surveillance device
will be:
. if the use of a surveillance device is reasonably necessary to obtain
information relevant to the commission of an Australian offence
punishable by three or more years imprisonment, or
. if the use of a surveillance device is reasonably necessary to obtain
information relevant to the identity or location of the offenders.
209. If the foreign country obtained the requested information lawfully,
but by a means other than using a surveillance device, that information
would not be inadmissible as evidence in Australia, or precluded from use
in an Australian investigation, because it was obtained otherwise than in
accordance with the request.
210. This is appropriate because so long as the foreign country obtained
the evidence in accordance with their domestic requirements, and it is
still related to the request, it should not matter that the evidence was
not obtained in the way requested originally by Australia.
Section 15F - Requests by foreign countries for surveillance devices
211. New section 15F will establish the means by which Australia may
respond to a foreign country's request for a surveillance device. It
will enable the Attorney-General to authorise an eligible law enforcement
officer to apply for a surveillance devices warrant under section 14 of
the SD Act, if satisfied of the following matters:
. a request has been received from the foreign country
. an investigation or investigative proceeding relating to a criminal
matter has commenced in the requesting country
. the offence the subject of the investigation or investigative
proceeding is punishable by a maximum penalty of three or more years
imprisonment, life imprisonment or death, and
. the requesting country has given appropriate undertakings in relation
to the use and destruction of information obtained as a result of the
surveillance device and any other matter the Attorney-General
considers relevant.
212. The applicable threshold of a maximum penalty of three or more years
imprisonment, life imprisonment or death mirrors the threshold that
applies to whether a surveillance device can be sought for the
investigation of domestic offences. This will ensure that surveillance
devices will only be able to be used to investigate foreign offences that
would also warrant the use of surveillance devices if those offences had
been committed in Australia.
213. Although this amendment will allow assistance to be provided in
relation to an offence that carries the death penalty, section 8 of the
MA Act provides that where a mutual assistance request relates to a death
penalty offence, assistance must be refused unless 'special
circumstances' exist. Special circumstances could include material that
provides exculpatory evidence, or where the requesting country has
provided an undertaking that the death penalty will not be sought, or if
imposed, will not be carried out.
214. 'Eligible law enforcement officer' will be defined by reference to
paragraphs (a) and (c) of the definition of 'law enforcement officer' in
subsection 6(1) of the SD Act. As such, the following persons will be
able to be authorised by the Attorney-General to apply for a surveillance
device warrant in response to a mutual assistance request:
. the Commissioner or Deputy Commissioner of the AFP
. any AFP employee
. any special member or person seconded to the AFP, or
. an officer (however described) of the police force of a State or
Territory, or any person who is seconded to that police force.
215. 'Investigative proceeding' will be defined in the MA Act by reference
to paragraphs (a) and (b) of the existing definition of 'proceeding' in
the MA Act:
. gathering evidential material that may lead to the laying of a
criminal charge (paragraph (a)), or
. assessing evidential material in support of the laying of a criminal
charge (paragraph (b)).
Surveillance Devices Act 2004
Items 51 to 53 - Subsection 6(1)
216. Subsection 6(1) sets out definitions that are relevant to the
operation of the SD Act. Items 51 to 53 will add new definitions
relevant to the changes being made by this Division.
Item 51 - Subsection 6(1)
217. Item 50 will insert a new power into the MA Act to enable Australia to
use a surveillance devices warrant for the purposes of assisting a
foreign investigation or investigative proceeding.
218. This item will insert a definition of 'investigative proceeding' into
subsection 6(1) of the SD Act which will have the same meaning as the
term carries in the MA Act.
219. 'Investigative proceeding' will be defined in the MA Act by reference
to paragraphs (a) and (b) of the existing definition of 'proceeding' in
the MA Act:
. gathering evidential material that may lead to the laying of a
criminal charge (paragraph (a)), or
. assessing evidential material in support of the laying of a criminal
charge (paragraph (b)).
220. Under some legal systems, a suspect may be formally charged with an
offence later in the legal process than in Australia. Accordingly, the
inclusion of 'investigative proceeding' in addition to 'investigation'
will enable the Attorney-General to authorise Australian law enforcement
to apply for a surveillance devices warrant to assist foreign law
enforcement at any point where evidence is still being gathered before
charges have been laid.
Item 52 - Subsection 6(1)
221. Currently, prescribed Australian agencies may apply to an eligible
judge or nominated AAT member for a warrant to use a surveillance device
to assist in the investigation of domestic offences. The prescribed
agency's investigation must relate to a domestic offence that is
punishable by imprisonment for at least three years. This law
enforcement tool is not currently available for the investigation or
prosecution of a foreign offence.
222. Items 65 to 67 will insert various reporting requirements relating to
the number of mutual assistance applications made each year.
223. This item will insert a definition of 'mutual assistance application'
in subsection 6(1) of the SD Act. 'Mutual assistance application' will
be defined as an application for a surveillance device warrant made under
a mutual assistance authorisation.
224. A definition of 'mutual assistance authorisation' will be inserted in
the SD Act by item 53 and will mean an authorisation under subsection
15F(1) of the MA Act. Subsection 15F(1) will be inserted in the MA Act
by item 50. The subsection will set out the conditions that must be met
before the Attorney-General can authorise an eligible law enforcement
officer to apply for a surveillance device warrant.
225. Item 54 will insert new subsection 14(3A) to enable a law enforcement
officer to make an application for a surveillance device warrant (for
foreign purposes) if authorised to do so by the Attorney-General under a
'mutual assistance authorisation' - a 'mutual assistance application'.
Item 53 - Subsection 6(1)
226. Currently, prescribed Australian agencies may apply to an eligible
judge or nominated Administrative Appeals Tribunal member for a warrant
to use a surveillance device to assist in the investigation of domestic
offences. The prescribed agency's investigation must relate to a
domestic offence that is punishable by imprisonment for at least three
years. This law enforcement tool is not currently available for the
investigation or prosecution of a foreign offence.
227. Item 54 will insert new subsection 14(3A) to enable a law enforcement
officer to apply for a surveillance device warrant if authorised to do so
by the Attorney-General under a 'mutual assistance authorisation'.
228. This item will insert a definition of 'mutual assistance
authorisation' in subsection 6(1) of the SD Act which will mean an
authorisation under subsection 15F(1) of the MA Act. Subsection 15F(1)
will be inserted in the MA Act by item 50. The subsection will set out
the conditions that must be met before the Attorney-General can authorise
an eligible law enforcement officer to apply for a surveillance device
warrant.
Item 54 - After subsection 14(3)
229. Section 14 of the SD Act sets out the process for applying for a
surveillance device warrant. It also sets out the requirements that must
be met in an application. However, this section is currently limited to
applications for 'relevant offences' which is defined as Commonwealth or
State offences that have a federal aspect that carry a penalty of at
least three years imprisonment. As such, a surveillance device warrant
cannot be sought with respect to foreign offences.
230. This item will insert new subsection (3A) in section 14. Subsection
14(3A) will extend the application of section 14 to foreign offences. It
will enable a law enforcement officer, or another person on his or her
behalf, to apply for a surveillance device warrant in
relation to foreign offences. Subsection 14(3A) will set out the
requirements that must be met before an application can be made. These
are:
. the Attorney-General has authorised the application under subsection
15F(1) of the MA Act (which will be inserted by item 50)
. the law enforcement officer will need to suspect on reasonable grounds
that the use of a surveillance device is necessary to obtain evidence
of:
o the commission of the offence to which the authorisation
relates, or
o the identity or location of the persons suspected of committing
the offence.
231. This threshold test is similar to that which currently applies for
applications for warrants for domestic offences - suspicion on reasonable
grounds that the use of a surveillance device is necessary to enable
evidence to be obtained of the commission of the offence or the identity
or location of the offenders. This ensures that applications for
surveillance device warrants are subjected to the same level of rigour
and scrutiny whether they apply to domestic or foreign offences. It also
ensures that the use of a surveillance device for foreign purposes cannot
occur in instances where the use of a device could not be authorised for
a domestic purpose.
Item 55 - Subsection 14(4)
232. Subsection 14(4) of the SD Act states that an application for a
surveillance device warrant under subsection (1) or (3) may be made to an
eligible Judge or nominated AAT member.
233. This item will include a reference to new subsection (3A) in
subsection 14(4). The substitution of '(1) or (3)' with '(1), (3), or
(3A)' will clarify that an application made pursuant to new subsection
14(3A) may be made to an eligible Judge or nominated AAT member. This
item is consequential upon item 54, which will insert subsection 14(3A)
which will enable applications for surveillance device warrants to be
made with respect to foreign offences.
Item 56 - After paragraph 16(1)(b)
234. Section 16 states the matters about which an eligible Judge or
nominated AAT member must be satisfied in order to issue a surveillance
device warrant.
235. This item will insert paragraph 16(1)(ba). It is consequential upon
item 54, which will insert subsection 14(3A). Subsection 14(3A) will
enable applications for surveillance device warrants to be made with
respect to foreign offences.
236. New paragraph 16(1)(ba) will provide that, in the case of a warrant
sought in relation to a mutual assistance authorisation, the eligible
Judge or nominated AAT member must be satisfied that:
. the mutual assistance authorisation is in force, and
. there are reasonable grounds for the suspicion founding the
application for the warrant.
237. A mutual assistance authorisation will be in force if the Attorney-
General has authorised an application for a surveillance device warrant
under subsection 15F(1) of the MA Act, which will be inserted by item 50.
238. The 'reasonable grounds for the suspicion founding the application for
the warrant' test is the same which applies to an application for a
surveillance device warrant in relation to a domestic offence and refers
to the suspicion the applying officer must have as set out in new
subsection 14(3A) which will be inserted by item 54. These factors will
ensure that applications for surveillance device warrants are subjected
to the same level of rigour and scrutiny whether they apply to domestic
or foreign offences.
Item 57 - Paragraph 16(2)(a)
239. Subsection 16(2) of the SD Act requires the eligible Judge or
nominated AAT member to have regard to certain matters when determining
whether a surveillance device warrant should be issued. Paragraph
16(2)(a) requires the eligible Judge or nominated AAT member in the case
of a warrant sought in relation to a relevant offence, to have regard to
the nature and gravity of the alleged offence.
240. This item would insert the phrase 'or a mutual assistance
authorisation' after 'relevant offence' in paragraph 16(2)(a). It is
consequential upon item 54, which will insert subsection 14(3A) in the SD
Act. Subsection 14(3A) will enable applications for surveillance device
warrants to be made with respect to foreign offences.
241. The amendment by this item will therefore provide that when a
surveillance device warrant is sought in relation to domestic offence or,
in the case of a mutual assistance authorisation, in relation to a
foreign offence, the eligible Judge or nominated AAT member must have
regard to the nature and gravity of the alleged offence when determining
whether a warrant should be issued. This ensures that applications for
surveillance device warrants are subjected to the same level of rigour
and scrutiny whether they apply to domestic or foreign offences.
Item 58 - Paragraph 16(2)(e)
242. Subsection 16(2) of the SD Act requires the eligible Judge or
nominated AAT member to have regard to certain matters when determining
whether a surveillance device warrant should be issued. Paragraph
16(2)(e) requires the eligible Judge or nominated AAT member to have
regard to 'the likely evidentiary or intelligence value of any evidence
or information sought to be obtained'.
243. This item would insert the phrase 'in the case of a warrant sought in
relation to a relevant offence or a recovery order - ' before 'the
likely' in paragraph 16(2)(e). It is consequential upon item 54, which
will insert subsection 14(3A). Subsection 14(3A) will enable
applications for surveillance device warrants to be made with respect to
foreign offences. This item is also consequential upon item 59, which
will insert paragraph 16(2)(ea).
244. The amendment by this item will limit the application of paragraph
16(2)(e) to cases where the warrant was sought in relation to a relevant
offence or a recovery order. Therefore, paragraph 16(2)(e) will not
apply in the case of a warrant sought in relation to a mutual assistance
authorisation.
Item 59 - After paragraph 16(2)(e)
245. Subsection 16(2) requires the eligible Judge or nominated AAT member
to have regard to certain matters when determining whether a surveillance
device warrant should be issued.
246. This item will insert new paragraph 16(2)(ea). New paragraph
16(2)(ea) will provide that, in the case of a warrant sought in relation
to a mutual assistance authorisation, the eligible Judge or nominated AAT
member must have regard to the likely evidentiary or intelligence value
of any evidence or information sought to be obtained, to the extent that
it is possible to determine this from the information obtained from the
foreign country.
247. While new paragraph 16(2)(ea) and paragraph 16(2)(e) (which will be
amended by item 58) require the eligible Judge or nominated AAT member to
have regard to the same matter (the likely evidentiary or intelligence
value of any evidence or information sought to be obtained), they
distinguish between a warrant sought in relation to a mutual assistance
authorisation and a warrant sought in relation to a domestic offence or a
recovery order with the inclusion of the words 'to the extent that it is
possible to determine this from the information obtained from the foreign
country' in new paragraph 16(2)(ea). This is because the likely
evidentiary or intelligence value of evidence or information sought in
relation to a foreign offence may be difficult to obtain from the
requesting country. For example, civil law countries do not assess the
weight of a single piece of evidence in the same manner as the common law
system.
Item 60 - After subparagraph 17(1)(b)(iii)
248. Paragraph 17(1)(b) specifies the information a surveillance device
warrant must contain, such as the name of the applicant, the alleged
offences in respect of which the warrant is issued, and the date the
warrant is issued.
249. This item will insert new subparagraph 17(1)(b)(iiia) which will
require a warrant issued in relation to a mutual assistance authorisation
to specify the offence or offences against the law of a foreign country
to which the warrant relates.
250. This is consistent with subparagraph 17(1)(b)(ii), which requires the
warrant to specify the alleged domestic offences in respect of which the
warrant was issued.
Item 61 - Subsection 20(2)
251. Section 20 enables an eligible Judge or nominated AAT member to revoke
a surveillance device warrant on his or her own motion at any time before
the expiration of the period of validity specified in the warrant.
Subsection 20(2) specifies certain circumstances in which the chief
officer of the agency to which the warrant was issued must revoke a
surveillance device warrant. The circumstances in which the warrant must
be revoked are currently set out in paragraphs 21(2)(a) and (b) and
21(3)(a) and (b) and relate to the use of the surveillance device no
longer being necessary.
252. This item will omit 'or 21(3)(a) and (b)' and substitute it with ',
21(3)(a) and (b) or 21(3A)(a) and (b)'. This item is consequential upon
item 62, which will insert subsection 21(3A). New subsection 21(3A) will
set out the circumstances in which a surveillance device warrant issued
in relation to a mutual assistance authorisation must be revoked.
253. As such, the amendment by this item will ensure that if the
circumstances set out in paragraphs 21(2)(a) and (b), 21(3)(a) and (b) or
21(3A)(a) and (b) are met in relation to a surveillance device warrant,
the chief officer of the law enforcement agency to which the warrant was
issued must revoke the warrant by instrument in writing.
Item 62 - After subsection 21(3)
254. Section 21 sets out the procedure for the discontinuance of a
surveillance device warrant if it is no longer necessary.
255. This item will insert new subsection 21(3A). Subsection 21(3A) will
provide the procedure for revoking and discontinuing the use of a
surveillance device issued in respect of a mutual assistance
authorisation.
256. Subsection 21(3A) will apply if:
. a surveillance device warrant has been sought following authorisation
by the Attorney-General under subsection 15F(1) of the MA Act which
will be inserted by item 50, and
. the chief officer of the law enforcement agency to which the warrant
was issued is satisfied that the use of the surveillance device is no
longer required for the purpose for which it was issued (obtaining
evidence relating to the commission of the offence against the law of
a foreign country or the identity or location of the person suspected
of committing the offence).
257. Examples of when the use of the surveillance device may no longer be
necessary include where:
. the suspect has been identified
. a person has been eliminated as a suspect in relation to a particular
offence that the foreign country is investigating
. co-offenders have been identified, and
. sufficient evidence for a prosecution has been collected.
258. Where these conditions are met, the chief officer must take the
necessary steps to ensure that the use of the surveillance device is
discontinued. Further, the amendments which will be made by item 61 will
also require the chief officer to revoke the warrant.
259. This item will ensure that procedures for discontinuing the use of a
surveillance device obtained in response to a mutual assistance request
are the same as those for discontinuing the use of a surveillance device
obtained for a domestic purpose.
Item 63 - After paragraph 21(5)(b)
260. Section 21 sets out the procedure for discontinuing a surveillance
device warrant if it is no longer necessary. Subsection 21(5) places
responsibilities on the law enforcement officer to whom the warrant was
issued to inform the chief officer if they believe the use of the device
is no longer necessary.
261. This item will insert new paragraph 21(5)(c). Paragraph 21(5)(c) will
apply to the law enforcement officer:
. to whom a warrant was issued in response to a mutual assistance
authorisation, or
. who is primarily responsible for executing the warrant.
262. Under new paragraph 21(5)(c), if that officer believes that the
surveillance device is no longer required to enable evidence to be
obtained of the commission of the offence the subject of the mutual
assistance authorisation, or of the identity or location of the suspects,
he or she must immediately inform the chief officer of his or her law
enforcement agency. The chief officer would then be required to comply
with the requirements set out in subsection 21(3A) which will be inserted
by item 62.
263. This item will ensure that procedures for discontinuing the use of a
surveillance device obtained in response to a mutual assistance request
are the same as those for discontinuing the use of a surveillance device
obtained for a domestic purpose.
Item 64 - Paragraph 45(4)(f)
264. Subsections 45(1) and (2) contain offences for the unauthorised use,
recording, communication or publishing of any protected information.
Protected information is defined in section 44 of the SD Act and
generally includes any information obtained from the use of a
surveillance device or related to the use of a surveillance device
including the application for that device. Subsection 45(3) sates that
protected information may not be admitted into evidence in any
proceedings.
265. Subsection 45(4) lists exceptions to the offences in subsections 45(1)
and (2) and to the rule in subsection 45(3) that protected information
may not be admitted into evidence in any proceedings.
266. The exception in paragraph 45(4)(f) applies to the communication of
information to a foreign country, or the use of that information in
accordance with the MA Act, if that communication relates to an offence
against the laws of a foreign country that is punishable by a maximum
penalty of three years imprisonment, life imprisonment or death.
However, this exception currently only applies in circumstances where the
information was originally acquired pursuant to a surveillance device
warrant issued for a domestic purpose and provided to the foreign country
under section 13A of the MA Act.
267. This item would repeal paragraph 45(4)(f) and replace it with new
paragraph 45(4)(f). New paragraph 45(4)(f) will insert an additional
exception. It will apply to the communication of information if it is
authorised under subsection 13A(1) of the MA Act (as is currently
allowed), as well as if the information was obtained under, or relates
to, a surveillance devices warrant issued in relation to a mutual
assistance authorisation.
268. This will ensure that any information obtained pursuant to a
surveillance device warrant executed in response to a mutual assistance
request is able to be lawfully disclosed to the country that made the
request without it being an offence under the SD Act.
Items 65, 66 and 67 - After paragraph 50(1)(a), after paragraph 50(1)(e)
and after paragraph 50(1)(i)
269. Section 50 requires the chief officer of a law enforcement agency to
provide an annual report to the Minister setting out certain matters.
270. These items will insert new paragraphs 50(1)(aa), 50(1)(ea) and
50(1)(ia).
271. New paragraph 50(1)(aa) will require the annual report to set out the
number of mutual assistance applications made by or on behalf of, and the
number of warrants issued to, law enforcement officers in the agency
during that year.
272. New paragraph 50(1)(ea) will require the annual report to set out the
number of mutual assistance applications made by, or on behalf of, law
enforcement officers of the agency that were refused during that year,
and the reasons for refusal.
273. A mutual assistance application will be an application made in respect
of a mutual assistance authorisation made by the Attorney-General under
subsection 15F(1) following a request from a foreign country.
274. New paragraph 50(1)(ia) will require the annual report to set out the
Commonwealth, State or Territory offence (if any) which corresponds to
the relevant foreign offence in respect of which a mutual assistance
application was made by, or on behalf of, law enforcement officers of
that agency during the year.
275. These requirements will ensure that the issue and use of surveillance
device warrants in response to mutual assistance requests are subject to
similar accountability and transparency requirements as those applicable
to domestic offences. The requirements would differ in one important
respect. Australian authorities would not be obliged to obtain
information about the prosecutions and convictions that result from the
use of surveillance device warrants from foreign counterparts, as it
would not be feasible for them to do so.
276. As subsection 50(4) of the SD Act requires the Minister to table the
annual report in Parliament, the amendments by these items will ensure
there is transparency and accountability as to how often information
lawfully obtained for a domestic purpose, is provided to a foreign
country for the purpose of foreign law enforcement.
Item 68 - After subparagraph 53(2)(c)(iii)
277. Section 53 requires the chief officer of a law enforcement agency to
cause a register to be kept of warrants, emergency authorisations and
tracking device authorisations sought by law enforcement officers of that
agency. Subsection 53(2) requires the register to specify certain
matters including the relevant offence in relation to which the warrant
was issued.
278. This item will insert new subparagraph 53(2)(c)(iiia) which will,
where the warrant was issued in relation to a mutual assistance
authorisation, require the register to specify the relevant foreign
offence to which the authorisation relates. This mirrors the requirement
for warrants sought in relation to domestic offences.
Item 69 - Application of amendments made by this Division
279. This item will provide that the amendments made by Part 3 of Schedule
3 apply in relation to a request by a foreign country that is being
considered on or after the day on which this item commences. The
commencement for this item will be a day to be fixed by proclamation.
This application provision also specifies that the amendments made by this
Part will apply from the day of commencement regardless of whether the
request was made before or after that day. While this provision would
apply to requests made before the date of Royal Assent, it would not create
any retrospective criminal liability. The provision is necessary to enable
there to be certainty with regards to the applicable law when processing
requests made by foreign countries for assistance.
PART 4 - CARRYING OUT FORENSIC PROCEDURES AT THE REQUEST OF A FOREIGN
COUNTRY ETC.
280. Forensic procedures (for example, obtaining fingerprints and DNA
samples) can provide compelling evidence which may confirm or exclude a
person as a suspect in the commission of an offence. These procedures
are used in criminal investigations throughout Australia.
281. Currently, Australia cannot conduct a compulsory forensic procedure on
a suspect in relation to a foreign serious offence in response to a
request from a foreign country. Australia can conduct a forensic
procedure on a volunteer in response to a request from a foreign country
where that person provides informed consent (or in the case of a child or
incapable person, where their parent or guardian provides informed
consent) to the forensic procedure. However, the application of relevant
provisions in the Crimes Act to these circumstances is not as clear as it
could be.
282. Part 4 of Schedule 3 will amend the MA Act and the Crimes Act to
enable the AFP, or a State or Territory police force, 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 a foreign
country. Part 4 would also clarify the procedures for obtaining forensic
material from a volunteer on behalf of a foreign law enforcement agency.
283. Under the Crimes Act, there are several mechanisms for obtaining
forensic material from a person, depending on the person's status in
relation to a criminal matter and whether he or she consents to
undergoing a forensic procedure. In the case of a suspect of an offence,
there are three options:
i) forensic procedure carried out following the informed consent of a
suspect
ii) compulsory 'non-intimate' forensic procedure carried out following an
order by a senior constable, and
iii) compulsory forensic procedure carried out following an order by a
magistrate.
284. There are also two further regimes: one for the carrying out of
forensic procedures on certain convicted offenders, and one for
volunteers. The amendments in Part 4 would only make available, for the
purposes of international cooperation, forensic procedures through
mechanisms (i) and (iii) above in relation to suspects, and the regime
for volunteers.
Crimes Act 1914
Item 70 - Simplified outline of Part ID
285. The simplified outline of Part ID summarises the main provisions
contained in Part ID of the Crimes Act. This item will insert a
paragraph to outline the application of the Crimes Act in cases where the
forensic procedure is to be carried out in response to a request made by
a foreign country under the MA Act or a request by a foreign law
enforcement agency. The amendment will highlight that certain rules
contained within the Crimes Act relating to the carrying out of forensic
procedures will not apply or will be modified in their application to
forensic procedures carried out at the request of a foreign country or a
foreign law enforcement agency.
Item 71 - 75 - Definitions (subsection 23WA(1))
286. Section 23WA sets outs the definitions that are relevant to the
operation of Part ID of the Crimes Act. Items 71 to 75 will add new, or
amend existing, definitions relevant to the changes being made by this
Part.
Item 71 - Definition of foreign law enforcement agency
287. The amendments made by this Part will allow a forensic procedure to be
carried out at the request of a foreign law enforcement agency and will
also provide for the provision of forensic material to a foreign law
enforcement agency.
288. This item will insert a definition of 'foreign law enforcement agency'
into subsection 23WA(1) of the Crimes Act. 'Foreign law enforcement
agency' will be defined as the police force of a foreign country (however
described) or any other authority or person responsible for the
enforcement of the laws of a foreign country.
Item 72 - Definition of foreign serious offence
289. The amendments made by this Part will enable a forensic procedure to
be carried out in relation to investigating, or prosecuting a person for
a 'foreign serious offence'.
290. This item will insert a definition of 'foreign serious offence' into
subsection 23WA(1) of the Crimes Act. The term will have the same
meaning as in the MA Act. 'Foreign serious offence' is defined in the MA
Act as a serious offence against a law of a foreign country. Item 153
will redefine 'serious offence' to mean an offence for which the maximum
penalty is death or imprisonment for a period exceeding 12 months, or a
fine exceeding 300 penalty units as defined in section 4AA of the Crimes
Act.
291. Although this amendment will allow assistance to be provided in
relation to an offence that carries the death penalty, section 8 of the
MA Act provides that where a mutual assistance request relates to a death
penalty offence, assistance must be refused unless 'special
circumstances' exist. Special circumstances could include material that
provides exculpatory evidence, or where the requesting country has
provided an undertaking that the death penalty will not be sought, or if
imposed, will not be carried out.
Item 73 - Definition of forensic evidence
292. The amendments made by this Part will enable forensic evidence to be
obtained and provided to a foreign country.
293. This item will insert a definition of 'forensic evidence' into
subsection 23WA(1) of the Crimes Act for the purposes of Part ID.
'Forensic evidence' will be taken to either mean: evidence of forensic
material, or evidence consisting of forensic material, taken from a
suspect or volunteer by a forensic procedure, or evidence of any results
of the analysis of the forensic material. There is currently no
definition of 'forensic evidence' in the Crimes Act.
Item 74 - Definition of investigating constable
294. 'Investigating constable' is defined in subsection 23WA(1) of the
Crimes Act as the constable in charge of the investigation of the
commission of an offence in relation to which a forensic procedure is
carried out or proposed to be carried out.
295. The amendments made by this Part will allow a forensic procedure to be
carried out at the request of a foreign law enforcement agency and will
also provide for the provision of forensic material to a foreign law
enforcement agency.
296. This item will add a second limb to the definition of 'investigating
constable' to cover situations where the forensic procedure is being
carried out at the request of a foreign country and as such there is no
investigating constable in Australia. An 'investigating constable', in
the case of a request by a foreign country, will be defined as the
constable in charge of coordinating the response to the request. This
will ensure that the 'investigating constable' will be clearly
identifiable in all cases.
Item 75 - Definition of suspect
297. 'Suspect' is defined in subsection 23WA(1) of the Crimes Act, in
relation to an indictable offence, as:
. a person whom a constable suspects on reasonable grounds has committed
the indictable offence
. a person charged with the indictable offence; or
. a person who has been summonsed to appear before a court in relation
to the indictable offence.
298. 'Indictable offence' is defined by reference to Commonwealth
indictable offences or State indictable offences that have a federal
aspect (generally offences that carry a penalty of at least 12 months
imprisonment). The definition does not extend to foreign offences.
299. The amendments made by this Part will allow a forensic procedure to be
carried out at the request of a foreign law enforcement agency for the
investigation or prosecution of a foreign serious offence (a definition
of which will be inserted by item 72).
300. This item will amend the definition of suspect to ensure it extends to
suspects in foreign serious offences. The expanded definition will
extend to a person in respect of whom a forensic procedure has been
requested by a foreign country or a foreign law enforcement agency
because the foreign county has started investigating whether the person
has committed an indictable offence or started proceedings against the
person for an indictable offence.
301. Further, item 76 will ensure that where the provisions of Part ID
apply because of a request by a foreign country or foreign law
enforcement agency, a reference to an 'indictable offence' will be taken
to be a reference to a 'foreign serious offence' (a definition of which
will be inserted by item 72).
Item 76 - At the end of section 23WA
302. Item 76 will add a new subsection to the end of section 23WA of the
Crimes Act to clarify how the provisions of Part ID are intended to
operate following a request by a foreign country or foreign law
enforcement agency. New subsection 23WA(9) will state that where a
request is made by a foreign country or foreign law enforcement agency,
the provisions of Part ID will apply as if a reference to an indictable
offence is a reference to a foreign serious offence.
303. The term 'foreign serious offence' will have the same meaning in the
Crimes Act as in the MA Act (a definition will be added by item 72).
'Foreign serious offence' is defined in the MA Act as a serious offence
against a law of a foreign country. Item 153 will redefine 'serious
offence' to mean an offence for which the maximum penalty is death or
imprisonment for a period exceeding 12 months, or a fine exceeding 300
penalty units as set out in section 4AA of the Crimes Act.
304. As indictable offences are limited to those exceeding 12 months
imprisonment, the provisions of Part ID will only be able to be utilised
for the investigation of foreign offences in circumstances in which they
would be able to be used in Australia.
305. Although this amendment will allow assistance to be provided in
relation to an offence that carries the death penalty, section 8 of the
MA Act provides that where a mutual assistance request relates to a death
penalty offence, assistance must be refused unless 'special
circumstances' exist. Special circumstances could include material that
provides exculpatory evidence, or where the requesting country has
provided an undertaking that the death penalty will not be sought, or if
imposed, will not be carried out.
Items 77 to 84 - Division 3 of Part ID
306. Division 3 of Part ID of the Crimes Act contains provisions which
govern the carrying out of a forensic procedure on a suspect with their
informed consent. However, the Division does not authorise the carrying
out of a forensic procedure on a suspect who is a child or an incapable
person. The Division sets out the process for obtaining the suspect's
consent including the matters that must be considered by a constable
before seeking the suspect's consent and the matters the suspect must be
informed of before he or she is able to consent.
307. Items 77 to 84 will amend various provisions in Division 3 of Part ID
so that the Division also applies to carrying out a forensic procedure on
a person suspected of having committed a foreign serious offence with
their consent.
Item 77 - Subparagraph 23WF(2)(b)(i)
308. Section 23WF of the Crimes Act sets out the procedure that applies
when a constable seeks a suspect's consent to a forensic procedure.
Subparagraph 23WF(2)(b)(i) requires the constable to give the suspect a
written statement setting out certain information the suspect is required
to be given under paragraphs 23WJ(1)(a), (e), (f), (g), (h), (i) and (j).
309. Item 79 will insert a new paragraph into subsection 23WJ(1)
(paragraph 23WJ(1)(ib)) which will set out further information a suspect
will be required to be given if the suspect is being asked to undergo a
forensic procedure because of a request by a foreign law enforcement
agency.
310. This item will amend subparagraph 23WF(2)(b)(i) to insert a reference
to new paragraph 23WJ(1)(ib) (which will be inserted by item 79) to
ensure that this information will have to be given to a suspect in
writing before he or she is able to consent to a forensic procedure.
Item 78 - Subsection 23WI(2)
311. Section 23WI of the Crimes Act sets out the matters that are to be
considered by a constable before requesting a suspect consent to a
forensic procedure, including that the constable must be satisfied on the
balance of probabilities that the request for consent to the forensic
procedure is justified in all the circumstances.
312. Subsection 23WI(2) currently stipulates that in determining whether a
request is justified in all the circumstances, the constable must balance
the public interest in obtaining evidence tending to confirm or disprove
that the suspect committed the offence concerned against the public
interest in upholding the physical integrity of the suspect.
313. This item will repeal subsection 23WI(2) and replace it with a new
subsection with two paragraphs.
314. New paragraph 23WI(2)(a) will cover circumstances where the forensic
procedure has been requested by a foreign country and paragraph
23WI(2)(b) will cover all other cases.
315. New paragraph 23WI(2)(a) will require a constable to balance the
public interest in Australia providing and receiving international
assistance in criminal matters, against the public interest in upholding
the physical integrity of the suspect. Given the fundamental importance
of reciprocity in international cooperation in criminal matters, it is
important that this is taken into account by the magistrate in
determining whether the carrying out of the forensic procedure is
justified in all the circumstances.
316. New paragraph 23WI(2)(b) will mirror the existing subsection 23WI(2)
and will require the constable to balance the public interest in
obtaining evidence tending to confirm or disprove that the suspect
committed the offence concerned against the public interest in upholding
the physical integrity of the suspect.
317. This amendment will ensure that the factors considered by the
constable are relevant to the case at hand and are balanced against the
public interest in upholding the physical integrity of the suspect
(regardless of whether the forensic procedure is for domestic or foreign
purposes).
Item 79 - After paragraph 23WJ(1)(ia)
318. Subsection 23WJ(1) of the Crimes Act sets out the matters that a
suspect must be informed of before he or she is able to consent to the
carrying out of a forensic procedure. These include how the procedure is
to be carried out, that the evidence produced might be used in court
proceedings, and that the suspect may refuse to consent.
319. This item will insert a new paragraph into subsection 23WJ(1) which
will set out further information a suspect will be required to be given
if the suspect is being asked to undergo a forensic procedure because of
a request by a foreign law enforcement agency.
320. The specific matters of which the suspect must be informed are:
. the name of the foreign law enforcement agency that has made the
request
. that forensic evidence obtained from the procedure will be provided to
that agency
. that the evidence may be used in proceedings in the foreign country
. that the retention of the evidence will be governed by the laws of the
foreign country and undertaking given by the foreign law enforcement
agency, and
. the content of undertakings given by the foreign law enforcement
agency relating to the retention of the evidence.
321. This amendment will ensure that a suspect in relation to a foreign
serious offence is informed of all relevant matters relating to the
request for the forensic procedure before he or she is requested to
consent to a forensic procedure, as is currently the case for suspects of
domestic offences. The additional matters will also ensure that the
suspect is aware that he or she is consenting to the information obtained
from the procedure being made available to foreign law enforcement
authorities for a foreign offence and that the retention of the
information will be governed by foreign not domestic law.
Item 80 - After subsection 23WJ(4)
322. Subsections 23WJ(3) and (4) of the Crimes Act require a constable to
inform a suspect who is in custody of the consequences of their decision
if he or she decides not to consent to an intimate or non-intimate
forensic procedure.
323. If a suspect who is in custody does not consent to a non-intimate
forensic procedure the constable must inform the suspect that a constable
may order the carrying out of the forensic procedure under Division 4 if
he or she is satisfied of certain matters (including that that the
suspect is in lawful custody, there are reasonable grounds to believe
that the suspect committed a relevant offence and the forensic procedure
is likely to produce evidence tending to confirm or disprove that the
suspect committed the offence and the carrying out of the forensic
procedure without consent is justified in all the circumstances).
324. If the constable is not satisfied of those factors (and as such cannot
order the carrying out of the forensic procedure), the constable must
inform the suspect that an application may be made to a magistrate for an
order authorising the carrying out of the forensic procedure.
325. If a suspect who is in custody does not consent to an intimate
forensic procedure the constable must inform the suspect that an
application may be made to a magistrate for an order authorising the
carrying out of the forensic procedure.
326. This item will insert a new subsection 4A into section 23WJ. This new
subsection will state that subsections (3) and (4) as described above do
not apply if the suspect is being asked to undergo a forensic procedure
(whether intimate or non-intimate) because of a request by a foreign law
enforcement agency.
327. New subsection 23WJ(6) (which will be inserted by item 82) will
outline the matters a suspect must be informed of by a constable if he or
she refuses to consent to a forensic procedure following a request by a
foreign law enforcement agency.
Item 81 - Subsection 23WJ(5)
328. Subsection 23WJ(5) requires a constable to inform a suspect who is not
in custody of the consequences of their decision if he or she decides not
to consent to a forensic procedure (whether intimate or non-intimate).
The constable must inform the suspect that, if the suspect does not
consent, an application may be made to a magistrate for an order
authorising the carrying out of the forensic procedure.
329. This item will amend subsection 23WJ(5) to ensure that it will not
apply to suspects who are being asked to undergo a forensic procedure
because of a request by a foreign country.
330. New subsection 23WJ(6) (which will be inserted by item 82) will
outline the matters a suspect must be informed of by a constable if he or
she refuses to consent to a forensic procedure following a request by a
foreign law enforcement agency.
Item 82 - At the end of section 23WJ
331. Subsections 23WJ(3), (4) and (5) set out the consequences if a suspect
does not consent to a forensic procedure. Amendments made by items 80
and 81 will limit the application of these subsections to persons
suspected of having committed domestic offences.
332. This item will insert a new subsection at the end of section 23WJ.
New subsection 23WJ(6) will outline the consequences where a suspect who
is being asked to undergo a forensic procedure because of a request from
a foreign law enforcement agency refuses to consent to the procedure.
333. This new subsection will require the constable to inform the suspect
(regardless of whether the suspect is in custody or not and regardless of
whether the procedure is an intimate or non-intimate procedure) that if
the suspect does not consent, the foreign country may request that the
forensic procedure be carried out and, following the request, the
Attorney-General may authorise a constable to apply to a magistrate for
an order for the carrying out of the procedure.
334. This provision is consistent with the consequences of not consenting
to a forensic procedure for domestic purposes (as set out in subsection
23WJ(3), (4) and (5)). Further, given the intrusive nature of forensic
procedures, it is appropriate that the Attorney-General be required to
approve any application for a forensic procedure where a person does not
consent. This is consistent with the Attorney-General's role in
authorising the use of other coercive powers under the MA Act.
335. Item 112 will insert relevant provisions into the MA Act (section 28B)
which will govern how and when the Attorney-General may accept a request
from a foreign country and authorise an application to a magistrate for
the carrying out of a forensic procedure.
336. Further, items 86 to 91 will amend various provisions in Division 5 of
Part ID (which govern the carrying out of a forensic procedure on a
suspect by order of a magistrate) so that the Division also enables a
magistrate to order the carrying out of a forensic procedure on a person
suspected of having committed a foreign serious offence following the
Attorney-General's approval.
Item 83 - Subsection 23WL(2) (note)
337. Subsection 23WL(1) of the Crimes Act requires, where possible, the
tape recording of a constable's giving of information about the proposed
forensic procedure and the suspect's response. Subsection 23WL(2)
requires a written record to be made where a tape recording is not
practicable.
338. The note at the end of the section states that Division 9 of Part ID
contains provisions about making copies of material (including copies of
tapes) available to the suspect.
339. Item 83 will renumber the note as 'Note 1' as a result of the second
note which will be inserted by item 84.
Item 84 - At the end of section 23WL
340. Subsection 23WL(1) of the Crimes Act requires, where possible, the
tape recording of a constable's giving of information about the proposed
forensic procedure and the suspect's response. Subsection 23WL(2) of the
Crimes Act requires a written record to be made where a tape recording is
not practicable.
341. This item will insert a second note at the end of section 23WL. This
note will state that where a foreign law enforcement agency has requested
that a forensic procedure be carried out, section 23YQD(2) will allow a
copy of the tape recording or written record to also be provided to the
foreign law enforcement agency.
342. Subsection 23YQD(2) will be inserted by item 103 and will provide that
where a person has consented to the forensic procedure, a copy of the
tape recording or written record may be provided to the foreign law
enforcement agency with the relevant forensic evidence. This is
appropriate as it will enable the foreign country to obtain a record of
the person consenting to the carrying out of the forensic procedure (for
example, the fact that the person consented to the forensic procedure may
be relevant to the admissibility of the forensic material as evidence in
court proceedings).
Item 85 - After subsection 23WM(2)
343. Division 4 of Part ID of the Crimes Act sets out the process for how
and when a senior constable can order that a person carry out a non-
intimate forensic procedure on a suspect where he or she has not
consented to a forensic procedure under Division 3 of Part ID.
344. This item will clarify that a senior constable under Division 4 of
Part ID cannot authorise the carrying out of a forensic procedure on a
suspect who has not consented if the procedure has been requested by a
foreign country or a foreign law enforcement agency. This will ensure
that any forensic procedure carried out on a suspect without their
consent must be as a result of a formal request by the foreign country
and subsequent approval by the Attorney-General.
Items 86 to 91 - Division 5 of Part ID
345. Division 5 of Part ID of the Crimes Act contains provisions which
govern the carrying out of a forensic procedure on a suspect by order of
a magistrate. The Division operates where a person has not consented to
the forensic procedure under Division 3 of Part ID.
346. The Division sets out the process for obtaining an order from a
magistrate including the matters that must be considered by the
magistrate before he or she makes an order for the carrying out of the
forensic procedure.
347. Items 86 to 91 will amend various provisions in Division 5 of Part ID
so that the Division also enables a magistrate to order the carrying out
of a forensic procedure on a person suspected of having committed a
foreign serious offence.
Item 86 - Section 23WR
348. Section 23WR of the Crimes Act sets out the circumstances in which a
magistrate may order that a forensic procedure be carried out on a
suspect.
349. This item will insert '(1)' at the beginning of the section. This is
necessary as a new, second subsection will be inserted by item 87.
Item 87 - At the end of section 23WR
350. Section 23WR of the Crimes Act sets out the circumstances in which a
magistrate may order that a forensic procedure be carried out on a
suspect. These include if:
. the suspect is not in custody and has not consented to the forensic
procedure
. the suspect is in custody and has not consented to the forensic
procedure, or
. the suspect cannot consent to the forensic procedure.
351. This item will add a new paragraph which will set out a further
circumstance in which a magistrate may order a forensic procedure be
carried out on a suspect. The new paragraph 23WR(1)(d) will state that a
forensic procedure may also be carried out on a suspect if the forensic
procedure has been requested by a foreign country (and subsequently
approved by the Attorney-General under the MA Act).
352. This new paragraph will provide a basis for a magistrate to order the
carrying out of a forensic procedure on a suspect for a foreign purpose
(if satisfied of the matters set out in section 23WT). However, the
magistrate will only be able to make such an order if the procedure has
been requested by the foreign country and has been approved by the
Attorney-General under section 28B of the MA Act, which will be inserted
by item 112. Further, the amendments that will be made by items 89 and
90 to section 23WT will set out further matters that the magistrate must
consider before ordering the carrying out of a forensic procedure
following a request from a foreign country.
353. This item will also insert a new subsection 23WR(2). This new
subsection will clarify that a magistrate is not authorised to order the
carrying out of a forensic procedure on a suspect if the procedure has
been requested by a foreign law enforcement agency. This will ensure
that any forensic procedure carried out on a suspect without their
consent must be as a result of a formal request by the foreign country
and subsequent approval by the Attorney-General.
Item 88 - Paragraph 23WS(a)
354. This item replaces the reference to section 23WR in paragraph 23WS(a)
with a reference to subsection 23WR(1). This is a result of the
amendment which will be made by item 86 which will renumber what is
currently section 23WR as subsection 23WR(1) to take account of new
subsection 23WR(2) which will be inserted by item 87.
Item 89 - After paragraph 23WT(1)(c)
355. Subsection 23WT(1) of the Crimes Act sets out the matters of which a
magistrate must be satisfied before ordering that a forensic procedure be
carried out on a suspect. These include that on the evidence before him
or her, there are reasonable grounds to believe that the suspect
committed a relevant offence, there are reasonable grounds to believe
that the forensic procedure is likely to produce evidence tending to
confirm or disprove that the suspect committed a relevant offence and the
carrying out of the forensic procedure is justified in all the
circumstances. These matters will all need to be considered before a
magistrate makes an order for the carrying out of a forensic procedure on
a suspect following a request from a foreign country (as will be allowed
under new paragraph 23WR(1)(d) which will be inserted by item 87).
356. This item will insert a new matter into subsection 23WT(1) that must
also be considered by a magistrate before ordering the carrying out of a
forensic procedure on a suspect. New paragraph 23WT(1)(ca) will require,
where the forensic procedure has been requested by a foreign country, the
magistrate to be satisfied on the balance of probabilities that the
constable has been authorised by the Attorney-General under the MA Act to
make the application for an order.
357. The Attorney-General will be able to authorise an application for the
carrying out of a forensic procedure under new section 28B of the MA Act
which will be inserted by item 112.
Item 90 - Subsection 23WT(2)
358. Section 23WT of the Crimes Act sets out the matters of which a
magistrate must be satisfied before ordering a suspect to undergo a
forensic procedure, including that the magistrate must be satisfied on
the balance of probabilities that the carrying out of the forensic
procedure is justified in all the circumstances.
359. Subsection 23WT(2) currently stipulates that in determining whether
the carrying out of the forensic procedure is justified in all the
circumstances, the constable must balance the public interest in
obtaining evidence tending to confirm or disprove that the suspect
committed the offence concerned against the public interest in upholding
the physical integrity of the suspect.
360. This item will repeal subsection 23WT(2) and replace it with a new
subsection with two paragraphs.
361. New paragraph 23WT(2)(a) will cover circumstances where the forensic
procedure has been requested by a foreign country and paragraph
23WT(2)(b) will cover all other cases.
362. New paragraph 23WT(2)(a) will require a constable to balance the
public interest in Australia providing and receiving international
assistance in criminal matters, against the public interest in upholding
the physical integrity of the suspect. Given the fundamental importance
of reciprocity in international cooperation in criminal matters, it is
important that this is taken into account by the magistrate in
determining whether the carrying out of the forensic procedure is
justified in all the circumstances.
363. New paragraph 23WT(2)(b) will mirror the existing subsection 23WT(2)
and will require the constable to balance the public interest in
obtaining evidence tending to confirm or disprove that the suspect
committed the offence concerned against the public interest in upholding
the physical integrity of the suspect.
364. This amendment will ensure that the factors considered by the
constable are relevant to the case at hand and are balanced against the
public interest in upholding the physical integrity of the suspect
(regardless of whether the forensic procedure is for domestic or foreign
purposes).
Item 91 - Paragraph 23WU(2)(b)
365. Section 23WU of the Crimes Act stipulates who can apply to a
magistrate for an order to carry out a forensic procedure on a suspect.
Subsection 23WU(2) sets out the requirements that must be met when
applying for such an order. Paragraph 23WU(2)(b) requires the
application to be supported by evidence on oath or by affidavit dealing
with the matters referred to in paragraphs 23WT(1)(a), (b), (c) and (d)
(the matters a magistrate must be satisfied of before ordering the
forensic procedure).
366. Paragraph 23WU(2)(b) will be amended by this item to also include a
reference to paragraph 23WT(1)(ca) (which will be inserted by item 89).
New paragraph 23WT(1)(ca) will require, where the forensic procedure has
been requested by a foreign country, that the magistrate be satisfied on
the balance of probabilities that the constable has been authorised by
the Attorney-General under the MA Act to make the application for an
order.
367. This item will ensure that the application contains evidence dealing
with this particular matter as it is a matter that is required to be
considered by the magistrate in determining whether to make an order.
Item 92 - Paragraph 23XA(1)(a)
368. This item will amend paragraph 23XA(1)(a) of the Crimes Act to remove
the reference to section 23WR and replace it with a reference to
subsection 23WR(1). This is as a result of the amendments that will be
made by items 86 and 87 which will add a second subsection to section
23WR.
Items 93 to 98 - Division 6B of Part ID
369. Division 6B of Part ID of the Crimes Act contains provisions which
govern the carrying out of a forensic procedure on a volunteer. It
details how a volunteer is able to consent to a procedure and whose
consent is needed to carry out a procedure on a child or incapable
person. It also sets out the circumstances in which a magistrate may
order the carrying out of a forensic procedure on a child or incapable
person.
370. These items will amend various provisions in Division 6B of Part ID so
that the Division also governs the carrying out of a forensic procedure
on a volunteer, child or incapable person for foreign purposes.
Item 93 - After paragraph 23XWR(2)(d)
371. Division 6B of Part ID of the Crimes Act deals with the carrying out
of forensic procedures on volunteers and certain other persons. Section
23XWR governs when a volunteer or other person can consent to a forensic
procedure.
372. Subsection 23XWR(1) of the Crimes Act states that a volunteer, or
parent or guardian of a child or incapable person can only give informed
consent if it is done in the presence of an independent person after a
constable informs the volunteer, parent or guardian of certain matters
including those listed in subsection 23XWR(2).
373. This item will amend subsection 23XWR(2) to insert new matters that
the person must be informed of before he or she is able to consent to the
carrying out of the forensic procedure. New paragraph 23XWR(2)(da) will
state that where the volunteer will undergo the procedure as a result of
a request by a foreign law enforcement agency, the person will need to be
informed of the following:
. the name of the foreign law enforcement agency that has made the
request
. that forensic evidence obtained from the procedure will be provided to
that agency
. that the evidence may be used in proceedings in the foreign country
. that the retention of the evidence will be governed by the laws of the
foreign country, and
. any undertakings given by the foreign country relating to the
retention of the evidence.
374. These new matters that the person must be informed of relate to the
forensic procedure being for the purpose of a foreign investigation as
opposed to a domestic investigation and that the evidence obtained may be
used for these foreign purposes and be in the control of the foreign
agency.
375. This amendment will ensure that the volunteer is aware that he or she
is consenting to the information obtained from the procedure being made
available to foreign law enforcement authorities for a foreign offence
and that the retention of the information will be governed by foreign not
domestic law. This includes that if evidence or information has already
been provided to the foreign country, withdrawing consent will mean the
return of evidence or information is subject to foreign laws.
376. The amendment that will be made by this item will enable a forensic
procedure to be carried out on a volunteer (with their consent) or a
child or incapable person (with the consent of their parent or guardian),
following a request from a foreign law enforcement agency.
377. If a volunteer who is able to consent to a forensic procedure does not
provide their consent to the carrying out of the procedure, or withdraws
their consent, then the forensic procedure will not be carried out on
that volunteer under any circumstances (as it is not possible to obtain
an order from a magistrate for the carrying out of a forensic procedure
on a volunteer who is not a child or incapable person).
378. However, it will still be possible to carry out a forensic procedure
on a child or incapable person following a formal mutual assistance
request by the foreign country for the carrying out of the forensic
procedure on that child or incapable person. New section 28B of the MA
Act (which will be inserted by item 112) will govern when the Attorney-
General can authorise a constable to apply for an order for the carrying
out of the procedure. Section 23XWU of the Crimes Act (which will be
amended by items 95 and 96) will govern when a magistrate may order the
carrying out of the forensic procedure following a formal mutual
assistance request and authorised by the Attorney-General.
Item 94 - at the end of section 23XWS
379. Subsection 23XWS(1) of the Crimes Act requires, where possible, the
tape recording of a constable's giving of information related to the
proposed forensic procedure and the volunteer's, or volunteer's parent's
or guardian's, response. Subsection 23XWS(2) of the Crimes Act requires
a written record to be made where a tape recording is not practicable.
380. This item will insert two notes at the end of section 23XWS.
381. Note 1 will mirror the existing note following section 23WL (which
governs the recording of the giving of information to a suspect). It
will state that Division 9 contains provisions about making copies of
material (including copies of tapes) available to volunteers.
382. Note 2 will state that where a tape recording or written record is
made, section 23YQD(2) will allow a copy of the tape recording or written
record to be provided to the foreign law enforcement agency where the
forensic procedure is requested by a foreign law enforcement agency.
383. Subsection 23YQD(2) will be inserted by item 103 and will ensure that
where a person has consented to the forensic procedure, a copy of the
recording (tape recording or a written record) may also be provided to
the foreign law enforcement agency. This is appropriate as it will
enable the foreign country to obtain a record of the person consenting to
the carrying out of the forensic procedure (for example, the fact that
the person consented to the forensic procedure may be relevant to the
admissibility of the forensic material as evidence in court proceedings).
Item 95 - At the end of subsection 23XWU(1)
384. Subsection 23XWU(1) of the Crimes Act sets out the circumstances in
which a magistrate may order the carrying out of a forensic procedure on
a child or incapable person. These are if:
. the consent of the parent or guardian of the child or incapable person
cannot reasonably be obtained
. the parent or guardian of the child or incapable person refuses
consent and the magistrate is satisfied that there are reasonable
grounds to believe:
o that the parent or guardian is a suspect, and
o that the forensic procedure is likely to produce evidence
tending to confirm or disprove that he or she committed an
offence, or
. the parent or guardian of the child or incapable person consented to
the carrying out of the forensic procedure, but subsequently withdraws
that consent.
385. This item will insert a new circumstance in which a magistrate may
order the carrying out of a forensic procedure on a child or incapable
person. New paragraph 23XWU(1)(d) will state that a magistrate can order
a child or incapable person to undergo a forensic procedure if, where the
forensic procedure has been requested by a foreign country, a constable
has been authorised by the Attorney-General under the MA Act to make the
application for an order.
386. This new paragraph will provide a basis for a magistrate to order the
carrying out of a forensic procedure on a child or incapable person for a
foreign purpose (if satisfied of the matters set out in section 23XWU).
However, the magistrate will only be able to make such an order if the
procedure has been requested by the foreign country and has been approved
by the Attorney-General under section 28B of the MA Act which will be
inserted by item 112.
387. Further, the amendment that will be made by item 96 will clarify that
a magistrate must not make an order for the carrying out of a forensic
procedure on a child or incapable person if the procedure has been
requested by a foreign law enforcement agency (police-to-police
assistance) as opposed to the foreign country (formal mutual assistance
request).
388. This is appropriate because it aligns with other amendments made by
this Part which will require a formal mutual assistance request and the
authorisation of the Attorney-General before a forensic procedure can be
carried out on any person who refuses to consent to a procedure.
389. While the amendment made by this item will enable a magistrate to
order the carrying out of a forensic procedure on a child or incapable
person, the factors listed in subsection 23XWU(2) will be required to be
taken into account by the magistrate in
determining whether or not to make the order. The factors that the
magistrate will need to take into account include:
. if the forensic procedure is being carried out for the purposes of the
investigation of a particular offence - the seriousness of the
circumstances surrounding the commission of the offence
. the best interests of the child or incapable person
. so far as they can be ascertained, any wishes of the child or
incapable person with respect to whether the forensic procedure should
be carried out, and
. whether the carrying out of the forensic procedure is justified in all
the circumstances.
390. These factors will need to be appropriately balanced by the magistrate
to determine whether or not to order that the forensic procedure be
carried out.
391. Further, despite any order by the magistrate for the carrying out of
the forensic procedure, subparagraph 23XWQ(2)(b)(ii) and subsection
23XWQ(3) of the Crimes Act will continue to prevent the carrying out of a
forensic procedure on a child or an incapable person who objects to or
resists the carrying out of the procedure.
Item 96 - After subsection 23XWU(1)
392. Item 95 will amend subsection 23XWU(1) to allow a magistrate to order
a child or incapable person to undergo a forensic procedure if, where the
forensic procedure has been requested by a foreign country, a constable
has been authorised by the Attorney-General under the MA Act to make the
application for an order.
393. This item will insert new subsection 23XWU(1A) into section 23XWU to
clarify that a magistrate will not be able to order the carrying out of a
forensic procedure on a child or incapable person if the procedure has
been requested by a foreign law enforcement agency.
394. This will confirm that a formal mutual assistance request,
authorisation by the Attorney-General and an order from a magistrate will
all be necessary to obtain forensic evidence from a child or incapable
person without the consent of their parent or guardian. The material
will not be able to be obtained in response to a request made through
police channels.
395. This is appropriate because it aligns with other amendments made by
this Part which will require a formal mutual assistance request and the
authorisation of the Attorney-General before a forensic procedure can be
carried out on any person who refuses to consent to a procedure.
Items 97 and 98 - Subsection 23XWV(2) and after subsection 23XWV(2)
396. Section 23XWV of the Crimes Act sets out a process for the retention
of forensic material obtained by consent from a volunteer (which includes
a child or incapable person) in circumstances where the consent for the
retention of the forensic material taken, or information obtained from
the procedure, is withdrawn.
397. Subsection 23XWV(2) sets out certain factors a magistrate must be
satisfied of before he or she can order that the forensic material be
retained notwithstanding the withdrawal of consent.
398. Item 97 will amend subsection 23XWV(2) to insert the words 'Subject to
subsection (2A), a magistrate' at the commencement of the subsection.
399. Item 98 will insert new subsection 23XWV(2A). This new subsection
will, despite the operation of current subsection 23XWV(2), state that a
magistrate may not make an order to retain the forensic material
following the withdrawal of consent if:
. the volunteer was asked to undergo a procedure as a result of a
request by a foreign law enforcement agency, and
. the forensic evidence has already been provided to the foreign law
enforcement agency.
400. This is appropriate because, while Australia could request the foreign
country to return the material (where it has already been provided before
the consent was withdrawn), some use may have already been made of it -
it may, for example, have been adduced in evidence in proceedings, which
would pose difficulties. While the volunteer retains his or her right to
withdraw consent to the retention of material, once the material has been
provided, it is a matter for the foreign country as to how to respond to
the withdrawal of consent.
401. This also aligns with the amendments that will be made by item 93
which will provide that a volunteer must be informed of certain matters
prior to consenting, including that the retention of the material will be
governed by the laws of the foreign country, as well as any undertakings
that country provides.
Item 99 - At the end of Division 7 of Part ID
402. Division 7 of Part ID of the Crimes Act provides for the admissibility
of evidence associated with a forensic procedure.
403. This item will insert a new subdivision into Division 7. New
Subdivision C -Application (section 23YBA) - will clarify that this
Division does not apply in relation to a proceeding in a foreign country
for the purposes of which forensic evidence has been provided because of
a request by the foreign country or a foreign law enforcement agency.
404. This is appropriate because the admissibility of the forensic evidence
in proceedings in a foreign country is a matter which would be governed
by that country's evidence laws.
Item 100 - Before section 23YC
405. Division 8 of Part ID deals with the destruction of forensic material.
406. Item 100 will insert a new section at the beginning of Division 8.
New section 23YBB will state that Division 8 does not apply to forensic
evidence provided in response to a request by a foreign country or a
foreign law enforcement agency.
407. This is because the continued retention of forensic material provided
to a foreign country is a matter for that country in accordance with its
own laws, subject to any undertakings the foreign country provided in
relation to the forensic material.
Item 101 - At the end of subsection 23YF(1)
408. Division 9 sets out general provisions relating to the operation of
Part ID of the Crimes Act. Section 23YF of the Crimes Act governs the
obligations of investigating constables relating to tape recordings that
have been required to be made under Part ID.
409. This item will insert two new notes at the end of subsection 23YF(1).
410. Note 1 will state that where a forensic procedure has been carried out
as a result of a request by a foreign country, a copy of anything made
may also be provided to the foreign country under subsections 23YQB(2)
and (3). These subsections will be inserted by item 103.
411. Note 2 will state that where a forensic procedure has been carried out
as a result of a request by a foreign law enforcement agency, a copy of
anything made may also be provided to the foreign law enforcement agency
under subsections 23YQD(3) and (4). These subsections will be inserted
by item 103.
Item 102 - After section 23YK
412. Sections 23YI to 23YK of the Crimes Act contain general provisions
relating to proof of certain matters relating to the operation of Part ID
in court proceedings.
413. This item will insert a new section which will clarify that sections
23YI to 23YK do not apply in relation to a proceeding in a foreign
country for the purposes of which forensic evidence has been provided in
response to a request by the foreign country or a foreign law enforcement
agency.
414. This is appropriate because the conduct of proceedings in foreign
courts is a matter for the foreign country's laws.
Item 103 - After Division 9 of Part ID - Division 9A - Carrying out
forensic procedures at the request of a foreign jurisdiction
415. Under the Crimes Act, Australia cannot compel a suspect to undergo a
forensic procedure in respect of a foreign serious offence in response to
a request from a foreign country. Further, while Australia can conduct a
forensic procedure on a volunteer, or child or incapable person, in
response to a request from a foreign country where that person provides
informed consent (or in the case of a child or incapable person, their
parent or guardian provides informed consent) to the forensic procedure,
the application of relevant provisions in the Crimes Act to these
circumstances is not as clear as it could be.
416. This item will insert a new Division which will govern the provision
of forensic evidence to a foreign country following the carrying out of a
forensic procedure for a foreign purpose.
Division 9A - Carrying out forensic procedures at the request of a foreign
jurisdiction
Subdivision A - Requests by foreign countries
417. New Subdivision A will govern the process for providing forensic
evidence to a foreign country following a request by the foreign country.
Section 23YQA
418. New section 23YQA will outline the application of the subdivision. It
will state that the Subdivision applies if:
. a request is made by a foreign country that a forensic procedure be
carried out on a person, and
. the Attorney-General has authorised a constable to apply to a
magistrate for an order authorising the carrying out of the forensic
procedure.
419. That is, this subdivision will cover forensic evidence obtained
following a formal mutual assistance request. The Attorney-General will
have the power to give an authorisation under new section 28B which will
be inserted by item 112.
420. Although this subdivision simply refers to a request by a foreign
country in relation to a person, the subdivision will only apply to
forensic procedures carried out on a suspect or a child or incapable
person following a request from a foreign country. This is because the
Attorney-General can only authorise forensic procedures on these classes
of persons under new section 28B of the MA Act (which will be inserted by
item 112). This subdivision will not apply where a forensic procedure is
carried out following a request from a foreign law enforcement agency and
consent to the procedure by the suspect, volunteer or the volunteer's
parent or guardian.
421. Further, forensic procedures will only be able to be carried out on a
suspect or a child or incapable person (where their parent or guardian is
a suspect) following a request from a foreign country in relation to a
foreign serious offence. A foreign serious offence will be defined (by
item 72) as a serious offence against a law of a foreign country. Item
153 will redefine 'serious offence' to mean an offence for which the
maximum penalty is death, imprisonment for a period exceeding 12 months,
or, a fine exceeding 300 penalty units as set out in section 4AA of the
Crimes Act 1914.
Section 23YQB
422. New section 23YQB will set out the process for providing forensic
evidence to the foreign country for the purposes of this subdivision.
423. Subsection 23YQB(1) will provide that where forensic evidence has been
obtained from a forensic procedure carried out on a person (following
Attorney-General approval), the evidence is to be provided to the foreign
country in accordance with a direction given by the Attorney-General
under section 28C of the MA Act (which will be inserted by item 112). In
practice, the provision of this material may be through police channels
or through each country's central authority responsible for processing
mutual assistance requests.
424. New section 28C of the MA Act will allow the Attorney-General to
provide directions to the constable as to how forensic evidence is to be
provided to the foreign country.
425. New subsection 23YQB(2) will provide for the transmission of copies of
audio recordings or transcripts of tape recordings to foreign countries.
426. The subsection will state that where an audio recording, transcript of
a tape recording or copies of recordings or transcripts are made
available to a person as required by subsection 23YF(1) (which will apply
in relation to forensic procedures for foreign offences in the same way
it currently applies to forensic procedures for domestic offences), they
may also be provided to the foreign country. However, if a direction is
given by the Attorney-General under new section 28C (which will be
inserted by item 112), then the transmission of an audio recording,
transcript of a tape recording or copies of recordings or transcripts
will be required to be done in a way that accords with any direction.
427. New subsection 23YQB(3) will govern the provision of video recordings
to a foreign country where a video recording or both a video and audio
recording were made.
428. In circumstances where only a video recording was made, or where both
an audio and video recording were made, and the person is given a copy of
the video recording or given the opportunity to view the video recording,
then a copy of the video recording may also be provided to the foreign
country. However, if a direction is given by the Attorney-General under
new section 28C (which will be inserted by item 112), then the
transmission of a copy of the video recording will be required to be done
in a way that accords with any direction.
429. Subsections 23YQB(2) and (3) are appropriate as they will ensure the
foreign country has a record of the carrying out of the forensic
procedure. This may be relevant to the admissibility of the forensic
material as evidence in court proceedings.
Subdivision B - Requests by a foreign law enforcement agency
430. New Subdivision B will govern the process for providing forensic
evidence to a foreign country following a request by the foreign country.
Section 23YQC
431. New section 23YQC will outline the application of the subdivision. It
will state that the Subdivision applies if a request is made by a foreign
law enforcement agency for a forensic procedure to be carried out on:
. a suspect in relation to a foreign serious offence who has consented
to the procedure, or
. a volunteer.
432. That is, this subdivision will cover the provision of forensic
evidence obtained as a result of police-to-police assistance without the
need for a formal mutual assistance request. In all circumstances,
evidence that will be able to be provided under this subdivision would
have been obtained with the person's consent.
433. A foreign serious offence will be defined (by item 72) as a serious
offence against a law of a foreign country. Item 153 will redefine
'serious offence' to mean an offence for which the maximum penalty is
death or imprisonment for a period exceeding 12 months, or a fine
exceeding 300 penalty units as defined in section 4AA of the Crimes Act.
Section 23YQD
434. New section 23YQD will set out the process for providing forensic
evidence to the foreign country for the purposes of this Subdivision.
435. Subsection 23YQD(1) will state that the Commissioner may provide
forensic evidence directly to a foreign law enforcement agency. The
Commissioner will only be able to do so if satisfied that the foreign law
enforcement agency has given appropriate undertakings in relation to the
retention, use and destruction of the forensic evidence and that it is
appropriate in all the circumstances to do so.
436. It is also appropriate that the Commissioner be responsible for the
provision of the material as the material will have been obtained on a
police-to-police basis and therefore should be able to be transferred to
the foreign country through the appropriate police channels, subject to
the considerations set out above.
437. New subsection 23YQD(2) will ensure that where a person has consented
to the forensic procedure, a copy of the recording (tape recording or a
written record) may also be provided to the foreign country. Section
23WL (suspects) and section 23XWS (volunteers) govern the recording of
the giving of information and consent.
438. This is appropriate as it will ensure the foreign country has a record
of the person consenting to the carrying out of the forensic procedure.
The fact that the person consented to the forensic procedure may be
relevant to the admissibility of the forensic material as evidence in
court proceedings.
439. New subsection 23YQD(3) will provide for the transmission of copies of
audio recordings or transcripts of tape recordings to foreign countries.
440. The subsection will state that where the audio recording, transcript
of the recording or copies of recordings or transcripts are made
available to a suspect as required by subsection 23YF(1) (which will
apply in relation to forensic procedures for foreign offences in the same
way it currently applies to forensic procedures for domestic offences),
they may also be provided to the foreign country.
441. New subsection 23YQD(4) will govern the provision of video recordings
to a foreign country where a video recording or both a video and audio
recording were made.
442. In circumstances where only a video recording was made, or where both
an audio and video recording were made, and the suspect is given a copy
of the video recording or given the opportunity to view the video
recording, then a copy of the video recording may also be provided to the
foreign country.
443. Subsections 23YQD(3) and (4) are appropriate as they will ensure the
foreign country has a record of the carrying out of the forensic
procedure. This may be relevant to the admissibility of the forensic
material as evidence in court proceedings.
Item 104 - Section 23YQA
444. This item will renumber current section 23YQA of the Crimes Act as
section 23YQE as a result of new Division 9A which will be inserted by
item 103.
Item 105 - After subsection 23YUB(1)
445. Subsection 23YUB(1) of the Crimes Act states that the Minister may
enter into arrangements with the responsible Ministers of the
participating jurisdictions (States and Territories) for the
establishment and maintenance of a register of orders for the carrying
out of forensic procedures made under Part ID or corresponding laws of
participating jurisdictions.
446. This item will insert a new subsection to follow subsection 23YUB(1).
New subsection 23YUB(1A) will clarify that the orders referred to in
subsection 23YUB(1) do not include orders for the carrying out of a
forensic procedure on a person made in response to a request by a foreign
country. Although this new subsection will simply refer to forensic
procedures carried out on a person in response to a request from a
foreign country, the subsection will only apply to forensic procedures
carried out on a suspect or a child or incapable person, and not other
volunteers. This is because the Attorney-General can only authorise
forensic procedures on these classes of persons under new section 28B of
the MA Act (which will be inserted by item 112).
447. This will ensure that the register does not contain information about
orders made by a magistrate for foreign purposes. This is appropriate as
it is a register for Australian investigatory purposes.
Mutual Assistance in Criminal Matters Act 1987
Items 106 to 111 - Subsection 3(1)
448. Subsection 3(1) of the MA Act sets out definitions that are relevant
to the operation of the Act. Items 106 to 111 will insert new
definitions relevant to the changes that will be made by this Schedule.
Item 106 - Subsection 3(1)
449. Item 112 will insert a new Part into the MA Act which will govern
requests by and to Australia for forensic procedures. New section 28B of
the MA Act will set out the circumstances in which, following a request
from a foreign country, the Attorney-General may authorise a constable to
apply to a magistrate for an order for the carrying out of a forensic
procedure on a child or incapable person.
450. This item will insert a definition of 'child' in subsection 3(1) of
the MA Act. 'Child' will be defined by reference to the definition of
child in Part ID of the Crimes Act which is a person who is at least 10
years of age but under 18 years of age.
Item 107 - Subsection 3(1)
451. Item 112 will insert a new Part into the MA Act which will govern
requests by and to Australia for forensic procedures. New section 28C
will enable the Attorney-General to direct a constable as to how the
forensic evidence obtained from the carrying out of a forensic procedure
is to be provided to a foreign country.
452. This item will insert a definition of 'forensic evidence' in
subsection 3(1) of the MA Act. 'Forensic evidence' will be defined by
reference to the definition of 'forensic evidence' in Part ID of the
Crimes Act which will be inserted by item 73. It will be taken to either
mean: evidence of forensic material, or evidence consisting of forensic
material, taken from a suspect or volunteer by a forensic procedure, or
evidence of any results of the analysis of the forensic material.
Item 108 will insert a definition of forensic material into the MA Act
which will be defined by reference to the definition of the term in Part
ID of the Crimes Act.
Item 108 - Subsection 3(1)
453. Item 112 will insert a new Part into the MA Act which will govern
requests by and to Australia for forensic procedures. New section 28B
will set out the circumstances in which, following a request from a
foreign country, the Attorney-General may authorise a constable to apply
to a magistrate for an order for the carrying out of a forensic procedure
on a person. Among other matters of which the Attorney-General must be
satisfied, the Attorney-General may only authorise an application if the
foreign country has given appropriate undertakings in relation to the
retention, use and destruction of forensic material.
454. This item will insert a definition of 'forensic material' in
subsection 3(1) of the MA Act. 'Forensic material' will be defined by
reference to the definition of 'forensic material' in Part ID of the
Crimes Act, which encompasses samples, hand prints, finger prints, foot
prints or toe prints, photographs or video recordings, or casts or
impressions that have been taken from or of a person's body by a forensic
procedure.
Item 109 - Subsection 3(1)
455. Item 112 will insert a new Part into the MA Act which will govern
requests by and to Australia for forensic procedures. New section 28B
will set out the circumstances in which, following a request from a
foreign country, the Attorney-General may authorise a constable to apply
to a magistrate for an order for the carrying out of a forensic procedure
on a person.
456. This item will insert a definition of 'forensic procedure' in
subsection 3(1) of the MA Act. 'Forensic procedure' will be defined by
reference to the definition of 'forensic procedure' in Part ID of the
Crimes Act, namely, an intimate or non-intimate forensic procedure not
including any intrusion into a person's body cavities except the mouth or
the taking of any sample for the sole purpose of establishing the
identity of the person from whom the sample is taken.
Item 110 - Subsection 3(1)
457. Item 112 will insert a new Part into the MA Act which will govern
requests by and to Australia for forensic procedures. New section 28B
will set out the circumstances in which, following a request from a
foreign country, the Attorney-General may authorise a constable to apply
to a magistrate for an order for the carrying out of a forensic procedure
on a child or incapable person.
458. This item will insert a definition of 'incapable person' in subsection
3(1) of the MA Act. 'Incapable person' will be defined by reference to
the definition of 'incapable person' in Part ID of the Crimes Act meaning
an adult who is incapable of:
. understanding the general nature and effect of, and purposes of
carrying out, a forensic procedure, or
. indicating whether he or she consents or does not consent to a
forensic procedure being carried out.
Item 111 - Subsection 3(1)
459. Item 112 will insert a new Part into the MA Act which will govern
requests by and to Australia for forensic procedures. New section 28B
will set out the circumstances in which, following a request from a
foreign country, the Attorney-General may authorise a constable to apply
to a magistrate for an order for the carrying out of a forensic procedure
on a child or incapable person. The Attorney-General will only be able
to make an authorisation if the consent of the parent or guardian cannot
be obtained or if the parent or guardian is a suspect in relation to the
foreign offence.
460. This item will insert a definition of 'parent' in subsection 3(1) of
the MA Act. 'Parent' will be defined by reference to the definition of
'parent' in the Crimes Act, which generally defines parent as:
. the adult who is legally entitled to, and has, custody of the person,
or
. the adult who is legally responsible for the day-to-day care, welfare
and development of the person and has the person in his or her care.
Item 112 - After Part IV
461. Items 70 to 105 will make various amendments to Part ID of the Crimes
Act to enable Australia to provide assistance to other countries in
relation to forensic evidence. The amendments to the Crimes Act will
enable assistance to be provided either through police-to-police channels
or through the formal mutual assistance process depending on whether the
person undergoing the forensic procedure has consented to the procedure.
462. This item will amend the MA Act to insert corresponding provisions to
facilitate the execution of a formal request from a foreign country for
forensic evidence. It will also insert a specific power into the MA Act
to enable Australia to request the same type of assistance from foreign
countries.
Part IVA - Forensic Procedures
Division 1 - Requests by Australia
Section 28A
463. This item will insert a new section into the MA Act which will
specifically enable Australia to request a foreign country to carry out
forensic procedures on persons in foreign countries to assist Australian
investigations and prosecutions. While Australia is currently able to
make requests for a country to provide this type of assistance under the
executive power, the amendment will ensure provision is made in the
legislation to enable these requests to be made, consistent with other
types of assistance covered by the MA Act.
464. Subsections 28A(1) and (2) will set out the circumstances in which
Australia will be able to request assistance and the type of assistance
that may be requested. Under subsection 28A(1), assistance will be able
to be requested if a proceeding relating to a criminal matter has
commenced in Australia and carrying out a forensic procedure on a person
in a foreign country may result in evidence relevant to the proceeding.
Under subsection 28A(2), assistance will be able to be requested if an
investigation relating to a criminal matter has commenced in Australia
and carrying out a forensic procedure on a person in a foreign country
may result in evidence relevant to the investigation. This wording will
ensure that subsections 28A(1) and (2) are consistent with other
conditions in the MA Act, such as section 14, and the wording used in the
Crimes Act 1914 (section 23WT) to govern the carrying out of forensic
procedure in Australia.
465. These two separate subsections will ensure that Australia is able to
request assistance at all stages of the process, regardless of whether a
person has been charged or whether proceedings have commenced. The main
pre-requisite is that carrying out a forensic procedure on a person in a
foreign country may result in evidence relevant to the investigation or
proceeding. This could potentially include exculpatory evidence.
466. The type of assistance that will be able to be requested under both
subsections 28A(1) and (2) will be the carrying out of a forensic
procedure by the foreign country for the purpose of giving assistance in
connection with the proceeding or investigation. A definition of
'forensic procedure' will be inserted in the MA Act by item 109.
467. Subsection 28A(3) will clarify that Australia may request that a
forensic procedure be carried out in the foreign country even if, under
Australian law, the forensic procedure could not have been carried out by
using processes similar to those used in the foreign country.
468. This is appropriate because it is a matter for the foreign country to
carry out the forensic procedure in accordance with its applicable
domestic procedures. This would also be the case in the reverse
situation where a foreign country requests assistance from Australia.
The forensic procedure would be carried out in Australia in accordance
with our own domestic requirements (set out in Part ID of the Crimes Act
which will be amended by items 70 to 105).
469. Subsections 28A(4) and (5) relate to the admissibility of evidence
that was obtained by the foreign country otherwise than in accordance
with the request.
470. Subsection 28A(4) will provide that subsection 28A(5) will apply where
Australia has made a request under new section 28A and the foreign
country obtains any thing relevant to the proceeding or investigation by
a lawful process in that country other than the carrying out of a
forensic procedure.
471. Subsection 28A(5) will provide that the thing obtained by the foreign
country is not inadmissible as evidence and is not precluded from being
used for the purposes of the investigation simply on the ground that it
was obtained otherwise than in accordance with Australia's request.
472. The formal mutual assistance processes are important in ensuring that
evidence obtained from other countries is admissible in
Australian criminal proceedings. The admissibility of forensic evidence
in criminal proceedings can be challenged where legislative procedures
governing the collection of samples from suspects have not been complied
with. The amendments to the MA Act by this item will ensure forensic
evidence obtained by the foreign country in accordance with their own
laws in response to a formal request under this new section will not be
rendered inadmissible from Australian proceedings on the basis that it
was not taken in accordance with Australian laws. These amendments are
not intended to displace the operation of other applicable rules of
evidence.
473. These provisions are appropriate because as long as the foreign
country obtains the evidence requested by Australia in accordance with
its domestic requirements, it should not matter that the evidence was not
obtained in a way envisaged by Australia's request.
Division 2 - Requests by foreign countries
Section 28B
474. Items 70 to 105 will amend Part ID of the Crimes Act to establish
processes for carrying out forensic procedures on behalf of a foreign
country following a formal mutual assistance request.
475. This item will insert a new section into the MA Act which will govern
the process for the Attorney-General to respond to a formal request from
a foreign country for the carrying out of a forensic procedure on a
person for the purpose of investigating a foreign offence, or for a
prosecution relating to a foreign offence. It will enable the Attorney-
General to authorise a constable to apply to a magistrate for an order
for the carrying out of the forensic procedure if satisfied of certain
matters.
476. Subsection 28B(1) will provide that the Attorney-General is able to
authorise a constable to apply to a magistrate for the carrying out of a
forensic procedure following a request from a foreign country. Where the
person who is to be subject to the order is a 'suspect' (as defined in
subsection 23WA(1) of the Crimes Act), then the constable authorised by
the Attorney-General to apply for an order must be an authorised
applicant.
477. 'Suspect' is currently defined in subsection 23WA(1) of the Crimes
Act, in relation to an indictable offence, as:
. a person whom a constable suspects on reasonable grounds has committed
the indictable offence
. a person charged with the indictable offence; or
. a person who has been summonsed to appear before a court in relation
to the indictable offence.
478. Item 75 will amend the definition of suspect to ensure it extends to
persons suspected of having committed a foreign serious offence. The
expanded definition will define suspect as a person in respect of whom a
forensic procedure has been requested by a foreign country or a foreign
law enforcement agency because the foreign county has started
investigating whether the person has committed an indictable offence or
started proceedings against the person for an indictable offence.
479. An 'authorised applicant' in relation to a forensic procedure that is
to be carried out on a suspect is defined in subsection 23WA(1) of the
Crimes Act as the constable in charge of a police station or the
investigating constable in relation to a relevant offence.
480. Item 74 will add a second limb to the definition of 'investigating
constable' to cover situations where the forensic procedure is being
carried out at the request of a foreign country and as such there is no
investigating constable in Australia. An 'investigating constable', in
the case of a request by a foreign country, will be defined as the
constable in charge of coordinating the response to the request.
Therefore, the person authorised by the Attorney-General to apply for an
order to carry out a forensic procedure on a suspect following a request
from a foreign country must be the constable in charge of a police
station or the constable in charge of coordinating the response to the
request.
481. Subsection 28B(2) will set out certain conditions that must be
satisfied before the Attorney-General can make an authorisation under
subsection 28B(1). There are different conditions that must be satisfied
depending on whether the forensic procedure is requested in relation to a
suspect or a child or incapable person.
482. In relation to a suspect, the Attorney-General must be satisfied that:
. a foreign country has requested that a forensic procedure be carried
out on a person
. the foreign country has started investigating whether that person has
committed a foreign serious offence or started proceedings against
that person for a foreign serious offence
. the person is or is believed to be in Australia
. the foreign country has given appropriate undertakings in relation to
the retention, use and destruction of the forensic material and/or
information obtained from analysing that forensic material that would
be provided to that country after the carrying out of the forensic
procedure
. the foreign country has given any other undertaking considered
necessary by the Attorney-General, and
. the person has been given an opportunity to consent to the forensic
procedure and has not consented to it.
483. The provisions governing how a person is to be given an opportunity to
consent to the carrying out of a forensic procedure are set out in
Division 3 of Part ID of the Crimes Act which will be amended by items 77
to 84.
484. In relation to a child or incapable person, the Attorney-General must
be satisfied:
. a foreign country has requested that a forensic procedure be carried
out on a person
. the person is or is believed to be in Australia
. the foreign country has given appropriate undertakings in relation to
the retention, use and destruction of the forensic material and/or
information obtained from analysing that forensic material that would
be provided to that country after the carrying out of the forensic
procedure
. the foreign country has given any other undertaking considered
necessary by the Attorney-General, and
. of the matters specified in new subsection 28B(3).
485. Subsection 28B(3) will specify certain additional matters that the
Attorney-General must be satisfied of before he or she is able to
authorise an application for the carrying out of a forensic procedure on
a child or incapable person. First, the Attorney-General must be
satisfied that either:
. the consent of the parent or guardian cannot reasonably be obtained or
has been withdrawn, or
. the parent or guardian is a suspect in relation to the foreign serious
offence.
486. Division 6B of Part ID of the Crimes Act, including the amendments
that will be made to that Division by items 93 to 98, sets out the
process for obtaining the consent of the parent or guardian and also for
the withdrawal of that consent. If consent cannot be obtained, or is
withdrawn, then the forensic procedure cannot be carried out without an
order by a magistrate. However, to obtain an order from a magistrate, a
formal mutual assistance request will need to be made for the carrying
out of the forensic procedure on the child or incapable person, at which
point, new section 28B will govern the authorisation process in relation
to that request.
487. Further, the Attorney-General must also believe that, having regard to
the best interests of the child or incapable person, it is appropriate to
make the authorisation. This also aligns with the factors that must be
considered by a magistrate under subsection 23XWU(2) of the Crimes Act in
determining whether, following authorisation by the Attorney-General, he
or she should make an order that the forensic procedure be carried out on
the child or incapable person.
488. If the Attorney-General authorises a constable, or authorised
applicant, to apply for an order for the carrying out of a forensic
procedure, the provisions in Division 5 (for suspects) or Division 6B
(for children or incapable persons) of Part ID of the Crimes Act (which
will be amended by items in this Part) will apply to the application
process.
Section 28C
489. New section 28C will enable the Attorney-General to direct a constable
as to how forensic evidence obtained through the carrying out of a
forensic procedure authorised by the Attorney-General under new
subsection 28B(1) is to be provided to the foreign country.
Item 113 - Application of amendments made by this Part
490. This item will provide that the amendments made by Part 4 of Schedule
3 will apply in relation to a request by a foreign country that is being
considered on or after the day on which this item commences. The
commencement for this item will be a day to be fixed by proclamation.
491. This application provision also specifies that the amendments made by
this Part will apply from the day of commencement regardless of whether
the request was made before or after that day. The provision is
necessary to enable there to be certainty with regards to the applicable
law when processing requests made by foreign countries for assistance.
PART 5 - PROCEEDS OF CRIME
492. Proceeds of crime action is a vital mutual assistance tool. Part VI
of the MA Act enables Australia to:
. register and enforce foreign forfeiture and pecuniary penalty orders
where there is a conviction for a foreign serious offence
. register and enforce foreign orders which are not conviction-based for
countries specified in regulations, and
. use a range of investigative tools, including monitoring orders and
production orders, on behalf of a foreign country to identify, locate
and quantify the proceeds of crime.
493. This Part will make a range of amendments to Part VI of the MA Act to
improve the operation of the proceeds of crime provisions.
Mutual Assistance in Criminal Matters Act 1987
Item 114 - Subsection 3(1)
494. Subsection 3(1) of the MA Act sets out definitions that are relevant
to the operation of the MA Act.
495. Item 145 will repeal and replace subsection 34Y(1) with a new
subsection that will outline the range of offences in relation to which
an authorised officer can apply for a monitoring order. Included in the
new list of offences is a 'cartel offence'.
496. This item will insert a definition of 'cartel offence' into subsection
3(1) of the MA Act. 'Cartel offence' will be defined as an offence by a
corporation involving cartel conduct. This definition is limited to
cartel offences that are committed by corporations and will not extend to
offences committed by individuals.
497. While 'cartel conduct' is an undefined term, a 'cartel provision' is
defined in the Competition and Consumer Act 2010 as including any fixing,
controlling or maintaining the price of goods or services.
498. This will ensure the definition is given a wide meaning so that
foreign offences aiming to regulate this type of behaviour fall within
the definition.
Item 115 - Subsection 34(1)
499. Subsection 34(1) of the MA Act enables the Attorney-General to
authorise the DPP to apply for the registration of a foreign forfeiture
order or foreign pecuniary penalty order in a specified court.
500. This item will amend subsection 34(1) by removing the requirement for
the Attorney-General to specify the court in which the application for
the order to be registered is to be made. This is a procedural amendment
and will not change the rights of any person affected by the order.
501. It is not necessary for the Attorney-General to specify the court in
which the application should be made. It is the role of the DPP to make
the application so they are best placed to determine the most appropriate
jurisdiction and court in which to make the application to register the
foreign order.
Item 116 - Subsection 34(2)
502. A non-conviction based proceeds of crime order restrains or forfeits
property that is, or is alleged to be, the proceeds or an instrument of
an offence, or the benefit derived from an offence, regardless of whether
the person alleged to have committed the offence has been convicted of
that offence, or whether charges have been laid against that person. A
non-conviction based proceeds of crime order may also be made over
property where the person who committed the offence has not yet been
identified. Non-conviction based proceeds of crime 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 prosecution of the person is unsuccessful, 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.
503. Currently, subsection 34(2) of the MA Act provides for the
registration and enforcement of foreign non-conviction based proceeds of
crime orders made in certain countries specified in regulations for the
purpose of this subsection.
504. Further, subsection 34J(1) of the MA Act enables the Attorney-General
to authorise the DPP to apply for a temporary Australian restraining
order in relation to proceeds of foreign crimes where confiscation
proceedings have commenced, or are about to commence, in a foreign
country that is specified in the regulations for the purposes of
subsection 34(2) (a non-conviction based restraining order).
505. This item will amend subsection 34(2) to remove the requirement that
the foreign country be specified in regulations in order for Australia to
enforce a non-conviction based proceeds of crime order or seek a
temporary non-conviction based restraining order.
506. This amendment is appropriate given the more widespread use of non-
conviction based proceeds of crime orders around the world. This will
enable Australian authorities to act quickly to register these types of
orders at the request of any country rather than being limited to
countries specified in regulations. Having to list countries in the
regulations can be a time consuming process and as such can cause
unnecessary delay which may allow offenders to disperse assets.
507. While the amendment by this item will potentially facilitate the
enforcement of a non-conviction based proceeds of crime order from any
country, the grounds for refusal in section 8 of the MA Act, as amended
by Part 1 of this Schedule, will still need to be considered by the
Attorney-General in determining whether to authorise the DPP to apply to
a court for the registration of the order.
Item 117 - Subsection 34(2)
508. Currently, subsection 34(2) of the MA Act enables the Attorney-General
to authorise the DPP to apply for the registration of a foreign non-
conviction based proceeds of crime order from certain countries specified
in regulations.
509. This item will amend subsection 34(2) by removing the requirement for
the Attorney-General to specify the court in which the application for
the order to be registered is to be made. This is a procedural amendment
and will not change the rights of any person affected by the order.
510. It is not necessary for the Attorney-General to specify the court in
which the application should be made. It is the role of the DPP to make
the application so they are best placed to determine the most appropriate
jurisdiction and court in which to make the application to register the
foreign order.
Item 118 and 119 - Paragraphs 34(3)(a) and (b) and subsection 34(3)
511. Subsection 34(3) of the MA Act enables a foreign country to request
Australia's assistance in registering and enforcing a restraining order
made in that foreign country against property that is reasonably
suspected of being in Australia. The foreign restraining order must have
been made in respect of:
. in any case, a foreign serious offence for which a person has been
convicted (a conviction-based order), or
. in relation to countries specified in regulations for the purposes of
subsection 34(2), the alleged commission of a foreign serious offence
whether or not the identity of the person who committed the offence is
known (non-conviction based order).
512. If satisfied of the above factors, the Attorney-General may authorise
the DPP to apply for the registration of the foreign restraining order in
a specified court.
513. Section 34A governs the registration of a foreign restraining order,
while sections 34E to 34H govern how a foreign restraining order that has
been registered is enforced and cancelled if necessary.
Item 118 - Paragraphs 34(3)(a) and (b)
514. This item will repeal paragraphs 34(3)(a) and (b) of the MA Act and
replace them with new paragraphs.
515. New paragraph 34(3)(a) will continue to enable the Attorney-General to
authorise the DPP to apply to a court for the registration of a
conviction-based restraining order made in any country.
516. New paragraph 34(3)(b) will enable the Attorney-General to authorise
the DPP to apply to a court for the registration of a non-conviction
based foreign restraining order made in any country in contrast to
current paragraph 34(3)(b) which is limited to certain countries
specified in regulations. This mirrors the change that will be made by
item 116 which will allow a non-conviction based foreign forfeiture or
pecuniary penalty order made in any country to be enforced in Australia.
517. This amendment is appropriate given the more widespread use of non-
conviction based proceeds of crime orders around the world. This will
enable Australian authorities to act quickly to register these types of
orders at the request of any country rather than being limited to
countries specified in regulations. Having to list countries in the
regulations can be a time consuming process and as such can cause
unnecessary delay which may allow offenders to disperse assets.
518. While the amendment by this item will potentially facilitate the
enforcement of a non-conviction based restraining order from any country,
the grounds for refusal in section 8 of the MA Act, as amended by Part 1
of this Schedule, will still need to be considered by the Attorney-
General in determining whether to authorise the DPP to apply to a court
for the registration of the order.
Item 119 - subsection 34(3)
519. This item will amend subsection 34(3) of the MA Act by removing the
requirement for the Attorney-General to specify the court in which the
application for the foreign restraining order to be registered is to be
made. This is a procedural amendment and will not change the rights of
any person affected by the order.
520. It is not necessary for the Attorney-General to specify the court in
which the application should be made. It is the role of the DPP to make
the application so they are best placed to determine the most appropriate
jurisdiction and court in which to make the application to register the
foreign order.
Item 120 - Subsection 34(4)
521. Section 34 of the MA Act enables the Attorney-General to authorise the
DPP to apply for the registration of certain foreign orders in a
specified court.
522. Items 115, 117 and 119 will amend subsections 34(1), (2) and (3) of
the MA Act respectively to remove the requirement that the Attorney-
General specify the court in which the DPP is to apply to have the order
registered.
523. Subsection 34(4) of the MA Act currently provides that where the
Attorney-General specifies a court, it must be a court that has proceeds
jurisdiction in the State or Territory in which the property, or some of
the property that is subject to the foreign order, is reasonably
suspected of being located.
524. This item will repeal subsection 34(4). As items 115, 117 and 119
will remove the requirement for the Attorney-General to specify the court
in which the application is to be made, subsection 34(4) is no longer
necessary.
Item 121 - Before subsection 34A(1)
525. Items 115, 117 and 119 will amend subsections 34(1), (2) and (3) of
the MA Act respectively to remove the requirement that the Attorney-
General specify the court in which the DPP is to apply to have a foreign
order registered. Item 120 will repeal subsection 34(4) which currently
requires the Attorney-General, when specifying the court in which the
application is to be made, to specify a court that has proceeds
jurisdiction in the State or Territory in which the property, or some of
the property that is subject to the foreign order, is reasonably
suspected of being located.
526. Section 34A of the MA Act sets out the process for registering a
foreign order. This item will insert a new subsection at the beginning
of section 34A. New subsection 34(1A) will require the DPP to apply for
the registration of a foreign order in a court with proceeds
jurisdiction.
527. As it is more appropriate for the DPP to determine the court in which
to make the application, new subsection 34(1A) will recognise that in
making the decision, the DPP must ensure the application is to a court
with proceeds jurisdiction. 'Proceeds jurisdiction' is defined by
reference to the definition in the POC Act. Section 335 of that Act
defines a court with proceeds jurisdiction generally as any State or
Territory court with jurisdiction to deal with criminal matters on
indictment.
Item 122 - Subsection 34A(1)
528. Items 115, 117 and 119 will amend subsections 34(1), (2) and (3) of
the MA Act respectively to remove the requirement that the Attorney-
General specify the court in which the DPP is to apply to have the order
registered. Item 120 will repeal subsection 34(4) which currently
requires the Attorney-General, when specifying the court in which the
application is to be made, to specify a court that has proceeds
jurisdiction in the State or Territory in which the property, or some of
the property that is subject to the foreign order, is reasonably
suspected of being located.
529. Section 34A sets out the process for registering a foreign order.
Item 121 will insert a new subsection at the beginning of section 34A
which will require the DPP to apply for the registration of a foreign
order in a court with proceeds jurisdiction.
530. This item will amend subsection 34(1) to include the words 'with
proceeds jurisdiction' after the reference to 'a court' as a result of
the amendment which will be made by item 121. This recognises that the
application by the DPP must be to a court with proceeds jurisdiction
Items 123 to 125 - Section 34F
531. Currently, subsection 34F(1) of the MA Act states that a faxed copy of
a sealed or authenticated copy of a foreign order (or amendment to a
foreign order) is to be regarded for the purposes of the MA Act as the
same as the sealed or authenticated version.
532. If the registration of an order is effected by means of a faxed copy,
subsection 34F(2) (as it is currently drafted) then requires the sealed
or authenticated copy of the foreign order to be filed with the court
within 21 days of the registration of the foreign order. If this does
not occur, the registration ceases to have effect after 21 days.
533. This recognises that it may be impracticable for the foreign country
to produce immediately the actual order made by the foreign court for the
purposes of proceedings in Australia. Such a requirement would undermine
the purpose of the provisions which is to provide efficient and effective
assistance in enforcing an order made in another country where property
subject to that order may be in Australia. However, it is also important
that the sealed or authenticated copy ultimately be produced to the court
in which the order is registered.
Item 123 - Subsection 34F(1)
534. This item will repeal and replace subsection 34F(1) with a new
subsection which will ensure the provision is kept up to date with modern
technology. New subsection 34F(1) will have the same purpose and effect
but will apply if the copy of the order (or amendment to the foreign
order) is sent by email or other electronic means, as well as being sent
by fax.
535. This amendment is designed to ensure that any copy of the foreign
order, however it is sent to Australia, is to be regarded as the same as
the sealed or authenticated copy.
Item 124 - Subsection 34F(2)
536. This item will remove the reference to 'faxed' in subsection 34F(2) of
the MA Act as a result of the amendment that will be made by item 123,
which will enable a copy of the foreign order to be sent to Australia by
email or other electronic means as well as by fax.
537. As such, subsection 34F(2) will apply where the registration of an
order is effected by means of a copy, regardless of the way it was sent
(be it fax, email or other electronic means).
Item 125 - Subsection 34F(2)
538. This item will amend subsection 34F(2) of the MA Act to extend the
period of time a foreign country has to provide the sealed or
authenticated copy of the foreign order. Currently, a registered foreign
order ceases to have effect after 21 days if the sealed or authenticated
copy of the foreign order is not filed with the court.
539. This item will extend the period to 45 days. This recognises that it
may take some time to obtain the sealed or authenticated copy of the
foreign order and the registration should not cease to have effect simply
because this has not taken within place three weeks.
Item 126 - Subsection 34J(1)
540. This item will remove '(1)' from the beginning of subsection 34J(1) of
the MA Act because of the amendment which will be made by item 129 which
will repeal subsection 34J(2).
Item 127 - Subparagraph 34J(1)(a)(ii)
541. Subsection 34J(1) of the MA Act sets out the process for obtaining a
restraining order on behalf of a foreign country (as opposed to
subsection 34(3) which provides the basis for registering a restraining
order made in a foreign country).
542. The Attorney-General may only authorise the DPP to apply for a
restraining order if there are reasonable grounds to believe that
property that may be made, or is about to be
made, the subject of a foreign restraining order is located in Australia
and either:
. criminal proceedings have commenced or there are reasonable grounds to
suspect that criminal proceedings are about to commence in a foreign
country in respect of a foreign serious offence (subparagraph
34J(1)(a)(i)), or
. in relation to countries specified in regulations for the purposes of
subsection 34(2) of the MA Act, foreign confiscation proceedings have
commenced, or there are reasonable grounds to suspect that
confiscation proceedings are about to commence
(subparagraph 34J(1)(a)(ii)).
543. If satisfied of the above matters, the Attorney-General may authorise
the DPP to apply for a restraining order in a specified court in relation
to that property.
544. This item will repeal subparagraph 34J(1)(a)(ii) and replace it with a
new subparagraph which will not contain any limitation on the countries
that are able to request that a restraining order be sought on the basis
of confiscation proceedings. This is currently limited to countries that
are specified in regulations for the purposes of subsection 34(2)
(registration and enforcement of foreign forfeiture and pecuniary penalty
orders).
545. This amendment is appropriate given the more widespread use of non-
conviction based proceeds of crime orders around the world. This will
enable Australian authorities to act quickly to seek these types of
orders at the request of any country rather than being limited to
countries specified in regulations. Having to list countries in the
regulations can be a time consuming process and as such can cause
unnecessary delay which may allow offenders to disperse assets.
546. While the amendment by this item will potentially facilitate the
enforcement of a non-conviction based restraining order on behalf of any
country, the grounds for refusal in section 8 of the MA Act, as amended
by Part 1 of this Schedule, will still need to be considered by the
Attorney-General in determining whether to authorise the DPP to apply to
a court for the order.
Item 128 - Subsection 34J(1)
547. Subsection 34J(1) of the MA Act enables the Attorney-General to
authorise the DPP to apply for a restraining order in a specified court
on behalf of a foreign country.
548. This item will amend subsection 34J(1) by removing the requirement for
the Attorney-General to specify the court in which the application for
the foreign restraining order to be registered is to be made. This is a
procedural amendment and will not change the rights of any person
affected by the order.
549. It is not necessary for the Attorney-General to specify the court in
which the application should be made. It is the role of the DPP to make
the application so they are best placed to determine the most appropriate
jurisdiction and court in which to make the application to register the
foreign order.
Item 129 - Subsection 34J(2)
550. Section 34J of the MA Act enables the Attorney-General to authorise
the DPP to apply to a specified court for a restraining order on behalf
of a foreign country.
551. Item 128 will amend subsection 34J(1) to remove the requirement that
the Attorney-General specify the court in which the DPP is to apply for
the restraining order.
552. Subsection 34J(2) currently requires that where the Attorney-General
specifies a court, it must be a court that has proceeds jurisdiction in
the State or Territory in which the property, or some of the property
that is subject to the foreign order, is reasonably suspected of being
located.
553. This item will repeal subsection 34J(2). As item 128 will remove the
requirement for the Attorney-General to specify the court in which the
application is to be made, subsection 34J(2) is no longer necessary.
Item 130 - Paragraph 34K(3)(b)
554. Section 34K sets out the process for applying for a restraining order
once the DPP is authorised to do so by the Attorney-General. It sets out
how certain parts of the POC Act apply to the application and any
restraining order made as a result.
555. Paragraph 34K(3)(b) states that references in Part 2-1 of the POC Act
to a court with proceeds jurisdiction are to be taken as references to
the court specified in the authorisation made by the Attorney-General
under section 34J of the MA Act (section 34J of the MA Act currently
enables the Attorney-General to authorise the DPP to apply to a specified
court for a restraining order on behalf of a foreign country).
556. Item 128 will amend subsection 34J(1) of the MA Act to remove the
requirement that the Attorney-General specify the court in which the DPP
is to apply for the restraining order.
557. This item will repeal paragraph 34K(3)(b) of the MA Act. As item 128
will remove the requirement for the Attorney-General to specify the court
in which the application is to be made in the authorisation, paragraph
34K(3)(b) is no longer necessary.
Items 131 and 132 - Paragraph 34K(3)(c) and paragraph 34K(3)(d)
558. Item 126 will remove '(1)' from the beginning of subsection 34J(1)
because of the amendment which will be made by item 129 which will repeal
subsection 34J(2).
559. These items will update references as a result of the amendment that
will be made by item 126.
560. Item 131 will replace the reference to subparagraph 34J(1)(a)(i) in
paragraph 34K(3)(c) with a reference to subparagraph 34J(a)(i) and item
132 will replace the reference to subparagraph 34J(1)(a)(ii) in
paragraph 34K(3)(d) with a reference to subparagraph 34J(a)(ii).
Item 133 - Subparagraph 34K(3)(d)(i)
561. Section 34K of the MA Act sets out the process for applying for a
restraining order once authorised to do so by the Attorney-General. It
sets out how certain parts of the POC Act apply to the application for
any restraining order made as a result of that application.
562. Subparagraph 34K(3)(d)(i) of the MA Act operates where proceedings
have been commenced under the POC Act as a result of subparagraph
34J(1)(a)(ii) (where foreign confiscation proceedings have commenced, or
there are reasonable grounds to suspect that confiscation proceedings are
about to commence). This subparagraph states that references in Part 2-1
of the POC Act to reasonable grounds to suspect that a person has
committed a serious offence are to be taken to be references to
reasonable grounds to suspect that such proceedings have commenced or are
about to commence in the foreign country.
563. This item will replace the words 'such proceedings' with 'foreign
confiscation proceedings' in subparagraph 34K(3)(d)(i) to ensure the
scope of the subparagraph is clear.
Items 134 to 151
564. The MA Act contains a number of investigative tools that Australia can
use to assist foreign countries in proceeds of crime matters. These
include notices to financial institutions, monitoring orders, search
warrants and production orders. However, the authorisation process for
these tools is inadequate to keep pace with the fast and fluid nature of
proceeds of crime investigations.
565. Currently, a notice to a financial institution under the MA Act must
be authorised by the Attorney-General or a senior officer of the Attorney-
General's Department. Monitoring orders, search warrants and production
orders must be the subject of a separate authorisation from the Attorney-
General each time an authorised officer wishes to apply to a court to use
one of these tools to assist the execution of a mutual assistance
request. Further, the Attorney-General's authorisations must be
jurisdiction-specific, which can mean an authorised officer may need to
seek multiple authorisations to satisfy a single request.
566. Items 134 to 151 will streamline the authorisation process for the
proceeds of crime investigative tools in the MA Act. In particular, the
Attorney-General will be able to give a general authorisation allowing an
authorised officer to make the necessary applications for monitoring
orders, search warrants or production orders under the POC Act to
appropriately respond to a specific mutual assistance request. This will
ensure Australia can respond more efficiently to requests for assistance.
Item 134 - Section 34N
567. Section 34N of the MA Act sets out the circumstances in which the
Attorney-General may authorise an authorised officer of an enforcement
agency to apply for a production order under the POC Act. The
authorisation must specify the State or Territory in which the
application is to be made. This current section therefore requires more
than one authorisation if production orders in different States and
Territories are needed.
568. The section also only applies if the foreign country requests the
Attorney-General to obtain the issue of a production order requiring that
certain documents be produced or made available for inspection.
569. The wording of this section severely limits the extent to which it is
able to be utilised. For example, if the foreign country makes a more
general request for assistance in obtaining evidence relating to a
certain investigation or proceeding, but does not specifically request
the use of a production order, then this section cannot be used even if a
production order is the most appropriate investigative tool.
570. Item 151 will insert new section 34ZG in the MA Act. This new section
will enable the Attorney-General to make a general authorisation for an
authorised officer of an enforcement agency to make any applications
under the POC Act necessary to respond to a request for assistance from a
foreign country. In particular, this general authorisation will be able
to be made where the foreign country requests assistance in relation to a
criminal investigation or proceeding without the foreign country needing
to specify the exact tool with which the evidence should be obtained.
571. This item will repeal section 34N of the MA Act. As a result of the
new general authorisation that will be able to be made under new section
34ZG, section 34N will no longer be necessary.
Item 135 - Saving of existing authorisations
572. Item 134 will repeal section 34N of the MA Act which currently sets
out the circumstances in which the Attorney-General may authorise an
authorised officer of an enforcement agency to apply for a production
order under the POC Act.
573. This item will ensure that any authorisations that have been made
under section 34N continue to operate notwithstanding the fact that
section 34N will be repealed by item 134. This is appropriate because
repealing section 34N does not affect the circumstances in which the
authorisation was originally made in accordance with the requirements set
out in section 34N. Therefore, any authorisation made by the Attorney-
General under section 34N prior to it being repealed by item 134 will
continue to be able to be relied upon for the purpose of applying for a
production order under the POC Act.
Item 136 - Subsection 34P(1)
574. Section 34P of the MA Act specifies the process for applying for and
making production orders. Currently, subsection 34P(1) provides that if
an authorised officer has been authorised to apply for a production order
under subsection 34N(1), then the authorised officer may apply for such a
production order.
575. Item 134 will repeal section 34N and item 151 will insert a new
section 34ZG which will enable the Attorney-General to make a general
authorisation for an authorised officer of an enforcement agency to make
any applications under the POC Act necessary to respond to a request for
assistance from a foreign country.
576. This item will repeal subsection 34P(1) and replace it with a new
subsection that will enable an authorised officer to apply for a
production order under the POC Act if authorised by the Attorney-General
under new section 34ZG (which will be inserted by item 151). The
application for the production order must be in relation to the foreign
serious offence that was the subject of the request.
577. Part 3-2 of the POC Act will continue to apply to the application for
a production order and any production order that is made as a result of
the application.
Item 137 - Paragraph 34P(3)(b)
578. Section 34P of the MA Act enables a production order to be sought
under the POC Act to assist with a foreign investigation or proceeding.
Subsection 34P(2) states that Part 3-2 of the POC Act applies to the
application for a production order and any production order that is made
as a result of the application. Subsection 34P(3) effects some minor
changes to Part 3-2 of the POC Act for the purposes of an application
made in response to a foreign request. Paragraph 34P(3)(b) states that
any reference in that Part to a magistrate is to be taken to be a
reference to a magistrate of the State or Territory specified in the
authorisation made by the Attorney-General under subsection 34N(1).
579. Item 134 will repeal section 34N and item 151 will insert a new
section 34ZG which will enable the Attorney-General to make a general
authorisation for an authorised officer of an enforcement agency to make
any applications under the POC Act necessary to respond to a request for
assistance from a foreign country.
580. As a result of the amendments that will be made by those two items,
the Attorney-General will no longer need to specify the State or
Territory in which the production order is to be sought.
581. As such, this item will repeal paragraph 34P(3)(b). Any reference to
'magistrate' in Part 3-2 of the POC Act will continue to be a reference
simply to the magistrate hearing the application in whichever State or
Territory the application is made.
Item 138 - Subsection 34Q(2)
582. Subsection 34Q(1) of the MA Act provides for the retention of
documents obtained pursuant to a production order pending a direction
from the Attorney-General as to how the document is to be dealt with.
Subsection 34Q(2) states directions from the Attorney-General may include
a direction that documents be sent to an authority of the foreign country
that requested the obtaining of the production order.
583. Item 151 will insert a new section 34ZG which will enable the Attorney-
General to make a general authorisation for an authorised officer of an
enforcement agency to make any applications under the POC Act necessary
to respond to a request for assistance from a foreign country where that
foreign country has requested assistance in relation to a criminal
investigation or proceeding.
584. As a result of the amendment that will be made by item 151, the
foreign country will no longer be required to request that a production
order be obtained.
585. This item will amend subsection 34Q(2) to remove the reference to 'the
obtaining of the production order' and replace it with a reference to
'assistance in respect of the foreign serious offence'. This recognises
that under the amendments that will be made by this Part, a foreign
country will no longer be required to specify the investigative tool that
should be used to obtain the information that is requested and the
foreign country will simply be able to make a general request for
assistance which will only need to specify what is sought and not how it
should be obtained.
Items 139 - Subsection 34R(1)
586. Section 34R of the MA Act outlines when the Attorney-General or a
senior Departmental officer may issue a notice to a financial institution
requiring them to produce certain documents. The documents that are able
to be requested are documents relevant to determining whether an account
is held by a certain person, whether a person is a signatory to an
account and details of accounts such as transactions on an account and
the balance of the account.
587. This item (and items 141 and 142) will make some minor amendments to
section 34R to change who is able to issue such a notice to a financial
institution.
588. Item 139 will amend subsection 34R(1) of the MA Act so that officers
who are empowered to issue a notice to a financial institution correspond
more directly with those who can issue a notice for domestic purposes
under the POC Act. While there are a range of officers who can issue
these notices under the POC Act (such as the Taxation Commissioner, the
CEO of the Australian Crime Commission and the CEO of Customs), this item
will limit who can issue a notice under the MA Act to the officers
mentioned in paragraphs 213(3)(a), (b) and (c) of the POC Act, that is:
. the Commissioner of the AFP
. a Deputy Commissioner of the AFP, and
. a senior executive AFP employee (within the meaning of the Australian
Federal Police Act 1979) who is a member of the AFP and who is
authorised in writing by the Commissioner for the purposes of this
section 213 of the POC Act.
589. This limitation of the exercise of the powers under section 34R is
appropriate as the AFP will be the agency which will most likely be
liaising with foreign officers to obtain relevant information for the
purposes of the foreign investigation.
590. These amendments will allow a senior AFP officer to issue notices to
financial institutions and will remove the power of the Attorney-General
or a senior Departmental officer to issue such a notice. This is
appropriate as the purpose of section 34R of the MA Act is to help a
foreign agency determine whether it is appropriate that further action be
pursued under the MA Act or the POC Act. If further action is
appropriate, a formal mutual assistance request from the foreign country
would be needed (for example, if it was determined that a restraining
order should be obtained in respect of a particular account).
591. Subsection 34R(2) of the MA Act sets out the circumstances in which a
notice is able to be issued. It states that a notice can only be issued
if the Attorney-General or senior
Departmental officer reasonably believes that giving the notice is
required:
. to determine whether to take action under Division 2 of Part VI of the
MA Act or under the POC Act, or
. in relation to proceedings commenced under Division 2 of Part VI of
the MA Act or under the POC Act.
Item 140 - Saving of existing authorisations
592. Item 139 will amend section 34R of the MA Act to align the people who
can issue a notice to a financial institution with those able to do so
under the POC Act (as opposed to those currently included in the MA Act
-the Attorney-General or a senior Departmental officer).
593. This item will ensure that any notices that have been made under
section 34R continue to operate notwithstanding the fact that section 34R
will be amended by item 139. This is appropriate because changing who is
able to issue a notice under section 34R does not affect the fact that
the person who originally issued the notice was able to do so at the time
the notice was issued. Therefore, any notice issued under section 34R
prior to it being repealed by item 139 will continue to have effect -
that is, a financial institution that has been issued with a notice under
section 34R will still have to comply with the notice.
Items 141 and 142 - Subsection 34R(2) and subsection 34R(3)
594. Item 141 will omit the reference to 'Attorney-General or the senior
Departmental' in subsection 34R(2) as a consequence of the amendment that
will be made by item 139. As a result, subsection 34R(2) will simply
refer to 'the officer' (that is, one of the officers that will be able to
issue a notice under subsection 34R(1) which will be amended by item 139)
needing to believe on reasonable grounds that the circumstances
stipulated in subsection 34R(2) exist.
595. Subsection 34R(3) contains a definition of senior Departmental
officer. Item 142 will repeal subsection 34R(3). As items 139 and 141
will repeal the references to 'senior Departmental officer', subsection
34R(3) will no longer be required.
Item 143 - Section 34X
596. Section 34X of the MA Act sets out the circumstances in which the
Attorney-General may authorise an authorised officer of an enforcement
agency to apply for a monitoring order under the POC Act. The
authorisation must specify the court in which the application is to be
made. This current provision would therefore require more than one
authorisation if monitoring orders in different States and Territories
were required as courts can only issue monitoring orders in relation to
their own jurisdiction.
597. Also, section 34X only applies if information is sought in relation to
certain foreign serious offences. The offences in respect of which the
section currently applies are:
. offences punishable by imprisonment for three or more years that:
o involve unlawful conduct relating to a narcotic substance
o are money laundering offences
o involve unlawful conduct by a person that causes, or is intended
to cause, a benefit to the value of at least $10,000 for that
person or another person, or
o involve unlawful conduct by a person that causes, or is intended
to cause, a loss to the foreign country in question or another
person of at least $10,000
. offences involving the smuggling of migrants
. offences involving failure to report financial transactions, and
. ancillary offences in respect of any of the above offences.
598. The section also only applies if the foreign country specifically
requests the Attorney-General to obtain the issue of an order directing a
financial institution to give information about transactions conducted
through a certain account.
599. The wording of this section severely limits the extent to which it is
able to be utilised. For example, if the foreign country makes a more
general request for assistance in obtaining evidence relating to a
certain investigation or proceeding such as requesting information about
a certain person's financial dealings, but does not specifically request
the use of an order directing a bank to give certain information, then
this section cannot be used even if a monitoring order is the most
appropriate investigative tool.
600. Item 151 will insert new section 34ZG in the MA Act. This new section
will enable the Attorney-General to make a general authorisation for an
authorised officer of an enforcement agency to make any applications
under the POC Act necessary to respond to a request for assistance from a
foreign country. In particular, this general authorisation will be able
to be made where the foreign country requests assistance in relation to a
criminal investigation or proceeding without the foreign country needing
to specify the exact tool by which the evidence should be obtained.
601. This item will repeal section 34X. As a result of the new general
authorisation that will be able to be made under new section 34ZG,
section 34X will no longer be necessary.
Item 144 - saving of existing authorisations
602. Item 143 will repeal section 34X of the MA Act which currently sets
out the circumstances in which the Attorney-General may authorise an
authorised officer of an enforcement agency to apply for a monitoring
order under the POC Act.
603. This item will ensure that any authorisations that have been made
under section 34X continue to operate notwithstanding the fact that
section 34X will be repealed by item 143. This is appropriate because
repealing section 34X does not affect the circumstances in which the
authorisation was originally made in accordance with the requirements set
out in section 34X. Therefore, any authorisation made by the Attorney-
General under section 34X prior to it being repealed by item 143 will
continue to be able to be relied upon for the purpose of applying for a
monitoring order under the POC Act.
Item 145 - Subsection 34Y(1)
604. Section 34Y of the MA Act sets out the process for applying for and
making monitoring orders. Subsection 34Y(1) states that if an authorised
officer has been authorised to apply for a monitoring order under
subsection 34X(1), then the authorised officer may apply for such a
monitoring order.
605. Item 143 will repeal section 34X and item 151 will insert a new
section 34ZG which will enable the Attorney-General to make a general
authorisation for an authorised officer of an enforcement agency to make
any applications under the POC Act necessary to respond to a request for
assistance from a foreign country.
606. This item will repeal subsection 34Y(1) and replace it with a new
subsection that will enable an authorised officer to apply for a
monitoring order under the POC Act if authorised by the Attorney-General
under new section 34ZG (which will be inserted by item 151). The
application for the monitoring order must be in relation to the foreign
serious offence that was the subject of the request.
607. Further, new subsection 34Y(1) will limit the operation of section 34Y
in a way that will be similar to how section 34X (which will be repealed
by item 143) currently limits the section.
608. New subsection 34Y(1) will only apply if the foreign serious offence
to which the request relates is:
. an offence punishable by imprisonment for three or more years that:
o involves unlawful conduct relating to a narcotic substance
o is a money laundering offence
o involves unlawful conduct by a person that causes, or is
intended to cause, a benefit to the value of at least $10,000
for that person or another person, or
o involves unlawful conduct by a person that causes, or is
intended to cause, a loss to the foreign country in question or
another person of at least $10,000
. an offence involving the smuggling of migrants
. an offence involving failure to report financial transactions
. a cartel offence
. an offence involving terrorism, or
. an ancillary offence in respect of any of the above offences.
609. While most of these offences are covered by current subsection 34X(2)
of the MA Act, a few new offences have been included. These are a cartel
offence and an offence involving terrorism. A monitoring order is also
able to be issued in relation to domestic offences of this nature and
this amendment recognises the importance of ensuring that assistance is
able to be provided to foreign countries in circumstances where law
enforcement tools are able to be used for domestic purposes.
610. Item 114 will insert a definition of 'cartel offence' to mean an
offence committed by a corporation involving cartel conduct.
611. Subsection 34Y(2) will continue to ensure that Part 3-4 of the POC Act
applies to the application for a monitoring order and any monitoring
order that is made as a result of the application.
Item 146 - Paragraph 34Y(3)(a)
612. Section 34Y of the MA Act enables a monitoring order to be sought
under the POC Act to assist with a foreign investigation or proceeding.
Subsection 34Y(2) states that Part 3-4 of the POC Act applies to the
application for a monitoring order and any monitoring order that is made
as a result of the application. Subsection 34Y(3) effects some minor
changes to Part 3-4 of the POC Act for the purposes of an application
made in response to a foreign request. Paragraph 34Y(3)(a) states that
any reference in that Part to a serious offence is to be taken to be a
reference to an offence of the kind referred to in paragraph 34X(1)(a).
613. Item 143 will repeal section 34X and item 145 will repeal and insert a
new subsection 34Y(1) which will set out the foreign serious offences to
which the section will apply.
614. As such, this item will amend subparagraph 34Y(3)(a) to remove the
reference to offences of the kind referred to in paragraph 34X(1)(a) and
replace it with a reference to an offence of the kind referred to in
paragraph 34Y(1)(a), (b), (c), (d), (e) or (f). This amendment will
ensure that any reference to a serious offence in Part 3-4 of the POC Act
is taken to be a reference to an offence of the kind referred to in these
paragraphs for the purposes of a monitoring order sought pursuant to an
authorisation under the MA Act.
Item 147 - Section 34ZA
615. Section 34ZA of the MA Act sets out the circumstances in which the
Attorney-General may authorise an authorised officer of an enforcement
agency to apply for a search warrant under the POC Act. The
authorisation must specify the State or Territory in which the
application is to be made. This current provision therefore requires
more than one authorisation if search warrants are required in different
States and Territories.
616. The section also only applies if the foreign country requests the
Attorney-General to obtain the issue of a search warrant relating to the
proceeds or instrument of an offence or a property-tracking document in
relation to the offence.
617. The wording of this section severely limits the extent to which it is
able to be utilised. For example, if the foreign country makes a more
general request for assistance in obtaining evidence relating to a
certain investigation or proceeding, but does not specifically request
the use of a search warrant, then this section cannot be used even if a
search warrant is the most appropriate investigative tool.
618. Item 151 will insert new section 34ZG in the MA Act. This new section
will enable the Attorney-General to make a general authorisation for an
authorised officer of an enforcement agency to make any applications
under the POC Act necessary to respond to a request for assistance from a
foreign country. In particular, this general authorisation will be able
to be made simply where the foreign country requests assistance in
relation to a criminal investigation or proceeding without the foreign
country needing to specify the exact tool by which the evidence should be
obtained.
619. This item will repeal section 34ZA. As a result of the new general
authorisation that will be able to be made under new section 34ZG,
section 34ZA will no longer be necessary.
Item 148 - saving of existing authorisations
620. Item 147 will repeal section 34ZA of the MA Act which currently sets
out the circumstances in which the Attorney-General may authorise an
authorised officer of an enforcement agency to apply for a search warrant
under the POC Act.
621. This item will ensure that any authorisations that have been made
under section 34ZA continue to operate notwithstanding the fact that
section 34ZA will be repealed by item 147. This is appropriate because
repealing section 34ZA does not affect the circumstances in which the
authorisation was originally made in accordance with the requirements set
out in section 34ZA. Therefore, any authorisation made by the Attorney-
General under section 34ZA prior to it being repealed by item 147 will
continue to be able to be relied upon for the purpose of applying for a
search warrant under the POC Act.
Item 149 - Subsection 34ZB(1)
622. Section 34ZB of the MA Act sets out the process for applying for and
issuing search warrants. Subsection 34ZB(1) states that if an authorised
officer has been authorised to apply for a search warrant under
subsection 34ZA(1), then the authorised officer may apply for such a
warrant.
623. Item 147 will repeal section 34ZA of the MA Act and item 151 will
insert a new section 34ZG in the MA Act which will enable the Attorney-
General to make a general authorisation that authorises an authorised
officer of an enforcement agency to make any applications under the POC
Act necessary to respond to a request for assistance from a foreign
country.
624. This item will repeal subsection 34ZB(1) and replace it with a new
subsection that will enable an authorised officer to apply for a search
warrant under the POC Act if authorised by the Attorney-General under new
section 34ZG (which will be inserted by item 151).
625. Part 3-5 of the POC Act will continue to apply to the application for
a search warrant and any search warrant issued as a result of the
application.
Item 150 - Paragraph 34ZB(3)(b)
626. Section 34ZB of the MA Act enables a search warrant to be sought under
the POC Act for the purposes of a foreign criminal investigation or
proceeding. Subsection 34ZB(2) states that Part 3-5 of the POC Act
applies to the application for a search warrant and any search warrant
issued as a result of the application. Subsection 34ZB(3) effects some
minor changes to Part 3-5 of the POC Act for the purposes of an
application made in response to a foreign request. Paragraph 34ZB(3)(b)
states that any reference in that Part to a magistrate is to be taken to
be a reference to a magistrate of the State or Territory specified in the
authorisation made by the Attorney-General under subsection 34ZA(1).
627. Item 147 will repeal section 34ZA and item 151 will insert a new
section 34ZG which will enable the Attorney-General to make a general
authorisation for an authorised officer of an enforcement agency to make
any applications under the POC Act necessary to respond to a request for
assistance from a foreign country.
628. As a result of the amendments that will be made by those two items,
the Attorney-General will no longer need to specify the State or
Territory in which the search warrant is to be sought.
629. As such, this item will repeal paragraph 34ZB(3)(b). Any reference to
'magistrate' in Part 3-5 of the POC Act will continue to be a reference
simply to the magistrate hearing the application in whichever State or
Territory the application is made.
Item 151 - At the end of Division 2 of Part VI
630. The MA Act contains a number of investigative tools that Australia can
use to assist foreign countries in proceeds of crime matters. These
include monitoring orders, search warrants and production orders.
However, the authorisation process for these tools is inadequate to keep
pace with the fast and fluid nature of proceeds of crime investigations.
631. In particular, monitoring orders, search warrants and production
orders must be the subject of a separate authorisation from the Attorney-
General each time an authorised officer wishes to apply to a court to use
one of these tools to assist the execution of a mutual assistance
request. Further, the Attorney-General's authorisations must be
jurisdiction-specific, which can mean an authorised officer may need to
seek multiple authorisations to satisfy a single request.
632. This item will insert a new Subdivision into Part VI of the MA Act.
Subdivision G - Authorisation of authorised officers - will contain new
section 34ZG.
633. The new section will apply if:
. a foreign country has commenced an investigation or proceeding
relating to a criminal matter involving a foreign serious offence
. the foreign country requests assistance in relation to that proceeding
or investigation, and
. the assistance that is requested may be obtained under the POC Act in
the form of a production order, search warrant or monitoring order.
634. If Attorney-General is satisfied that the requisite circumstances
exist, the Attorney-General will be able to make a general authorisation
for an authorised officer of an enforcement agency to make any
applications under the POC Act necessary to respond to a request by the
foreign country.
635. The authorisation will enable the authorised officer to apply for a
production order under section 34P, which will be amended by items 136
and 137, a monitoring order under section 34Y, which will be amended by
items 145 and 146, or a search warrant under section 34ZB as amended by
items 149 and 150. Each of these sections, when amended by the
respective items, will govern the process for applying for each of the
investigative tools.
636. This new section will significantly streamline the authorisation
process in comparison to the current process where the Attorney-General
needs to make a separate authorisation for each investigative tool and
also needs to make a separate authorisation depending on the jurisdiction
in which the authorisation is to be used.
637. The other benefit of this amendment is that it will mean the foreign
country will be able to make one general request without having to make
separate requests depending on the type of investigative tool that will
need to be used to obtain the information that the foreign country has
requested.
638. Subsection 3(1) of the MA Act sets out definitions that are relevant
to this new general authorisation power. In particular, subsection 3(1)
defines 'criminal matter' as including:
. a criminal matter relating to revenue (including taxation and customs
duties)
. a criminal matter relating to foreign exchange control
. a matter relating to the forfeiture or confiscation of property in
respect of an offence
. a matter relating to the imposition or recovery of a pecuniary penalty
in respect of an offence, and
. a matter relating to the restraining of dealings in property, or the
freezing of assets, that may be forfeited or confiscated, or that may
be needed to satisfy a pecuniary penalty imposed, in respect of an
offence.
639. Subsection 3(1) also defines a proceeding in relation to a criminal
matter as including a proceeding before a judicial officer or a jury for
the purpose of gathering evidential material that may lead to the laying
of a criminal charge or assessing evidential material in support of the
laying of a criminal charge. This definition recognises that under some
criminal justice systems, a suspect may be formally charged with an
offence later in the criminal justice process than in Australia, but
'proceedings' may have commenced prior to charges having been laid for
the purpose of gathering evidence.
640. Subsection 3(1) defines a foreign serious offence as a serious offence
against a law of a foreign country. Serious offence is currently defined
in subsection 3(1). However, item 153 of this Schedule will redefine
'serious offence' to mean an offence for which the maximum penalty is
death or imprisonment for a period exceeding 12 months, or a fine
exceeding 300 penalty units as set out in section 4AA of the Crimes Act.
641. Although this amendment will allow assistance to be provided in
relation to an offence that carries the death penalty, section 8 of the
MA Act provides that where a mutual assistance request relates to a death
penalty offence, assistance must be refused unless 'special
circumstances' exist. Special circumstances could include material that
provides exculpatory evidence, or where the requesting country has
provided an undertaking that the death penalty will not be sought, or if
imposed, will not be carried out.
Item 152 - Application of amendments made by items 114 to 151
642. Subsection (1) of this item will provide that the amendments made by
items 115 to 133, but not including item 125, apply in relation to a
request by a foreign country that is being considered on or after the day
on which this item commences. The commencement for this item will be a
day to be fixed by proclamation.
643. This subsection also specifies that the amendments made by these items
will apply from the day of commencement regardless of whether the request
was made before or after that day. The provision is necessary to enable
there to be certainty with regard to the applicable law when processing
requests made by foreign countries for assistance.
644. The amendments made by items 115 to 133, not including item 125 will,
among other things, enable Australia to register non-conviction based
orders from any country and seek a non-conviction based restraining order
on behalf of any country.
645. Item 125 will amend subsection 34F(2) so that a foreign country has 45
days (instead of 21 days) following the registration of a foreign order
in a court to have the sealed or authenticated copy of a foreign order
filed with that court. If this does not occur, the registration ceases
to have effect.
646. Subsection (2) of item 152 will provide that the amendment made by
item 125 will only apply in relation to the registration of a foreign
order that has effect on or after commencement. This is appropriate
because it will ensure that the timeframes in which a foreign country
needs to provide the sealed or authenticated copy of the foreign order
are clear. Further, if item 125 applied in relation to orders that had
been registered before commencement of this item, it is possible that
orders which may have ceased to have effect because the 21 days had
passed, could come back into operation with the extension of the time
period to 45 days. Applying this item only to orders that have effect on
or after commencement will prevent this from happening.
647. Items 114 and 134 to 151 will streamline the authorisation process for
the proceeds of crime investigative tools in the MA Act. Subsection (3)
of item 152 will provide that the amendments made by these items will
only apply to authorisations made by the Attorney-General on or after the
commencement of this item.
PART 6 - OTHER AMENDMENTS
648. This Part will make a range of miscellaneous amendments to the MA Act
to improve the operation of the MA Act.
Mutual Assistance in Criminal Matters Act 1987
Item 153 - Subsection 3(1) (definition of serious offence)
649. Subsection 3(1) of the MA Act sets out definitions that are relevant
to the operation of the MA Act.
650. There are some forms of assistance that can only be requested or
provided under the MA Act where the alleged offence is a 'serious
offence'. One example is where Australia or the foreign country requests
that the other country execute a search warrant to obtain particular
material. A 'serious offence' is currently defined as an offence the
maximum penalty for which is death, or imprisonment for not less than 12
months.
651. This item will amend the definition of 'serious offence' in subsection
3(1) of the MA Act in two ways. First, the threshold period of
imprisonment will change to 'exceeding 12 months'. This will align the
'serious offence' definition with the penalty threshold for an
'indictable offence' in the Crimes Act. Section 4G of the Crimes Act
defines an 'indictable offence' as an offence against a law of the
Commonwealth punishable by imprisonment for a period exceeding 12 months.
This change is necessary because some forms of assistance that can be
provided under the MA Act, or will be able to be provided subject to the
passage of this Bill, are only available for domestic purposes for the
investigation of an indictable offence. For example, a suspect in a
Commonwealth offence cannot be compelled to undergo a forensic procedure
unless the relevant offence is an indictable offence.
652. Although this amendment will allow assistance to be provided in
relation to an offence that carries the death penalty, section 8 of the
MA Act provides that where a mutual assistance request relates to a death
penalty offence, assistance must be refused unless 'special
circumstances' exist. Special circumstances could include material that
provides exculpatory evidence, or where the requesting country has
provided an undertaking that the death penalty will not be sought, or if
imposed, will not be carried out.
653. Secondly, a monetary fine of 'exceeding 300 penalty units' would be
incorporated into the definition. Under section 4AA of the Crimes Act
one penalty unit is currently A$110. The inclusion of a monetary fine
element in the 'serious offence' definition would enable Australia to
request and provide assistance in relation to serious corporate offences
that may only carry monetary fines as penalties. Two examples of such
offences are the cartel offences in sections 44ZZRF and 44ZZRG of the
Competition and Consumer Act 2010. These proposed offences target the
conduct of corporations, so have a maximum penalty expressed in monetary
terms, rather than a term of imprisonment.
654. It is important that Australia be in a position to request and provide
assistance in relation to serious offences committed by corporations.
This approach reflects international efforts to combat 'white collar'
crime in general, for example through the United Nations Convention
Against Corruption and the United Nations Convention Against
Transnational Organized Crime, which apply to offences committed by
'legal persons' as well as natural persons.
Item 154 - After subsection 3(1)
655. There are some forms of assistance that can only be requested or
provided under the MA Act where the alleged offence carries a certain
penalty level. As a result of the amendments that will be made by this
Bill, certain types of assistance will only be able to be requested or
provided if a certain monetary threshold is reached. For example, item
39 of this Schedule will amend subsection 13A(2) of the MA Act to enable
lawfully intercepted information and interception warrant information to
be provided to a foreign country following an authorisation by the
Attorney-General where the relevant foreign offence carries a maximum
penalty of at least seven years imprisonment, life imprisonment, the
death penalty or, in the case of a foreign cartel offence, a fine of at
least the equivalent of $A10,000,000.
656. This item will insert a new subsection which will explain how foreign
currency is to be translated into an Australian dollar amount for the
purposes of determining whether a particular threshold is reached under
the MA Act. New subsection 3(1A) will provide that the penalty or fine
carried by a foreign offence is to be converted into Australian dollars
using the daily exchange rate listed on the Australian Tax Office website
on the day that the request is received.
657. If the country does not have a daily exchange rate listed on the
Australian Tax Office website, the exchange rate to be used is the
exchange rate that applies at the time the request is received.
658. This subsection will provide clarity in determining whether a
particular foreign offence satisfies the penalty threshold required for
Australia to be able to provide the requested assistance.
Item 155 - Paragraphs 5(a) and (b)
659. Section 5 of the MA Act sets out the objects of the Act. The objects
listed are specific and relate to the different powers currently set out
in the MA Act.
660. Paragraph 5(a) provides that the object of the MA Act is to regulate
the provision by Australia of the following types of assistance:
. the taking of evidence
. the issue of a search warrant and seizure of any thing relevant to a
foreign investigation or proceeding
. the forfeiture or confiscation of property
. the recovery of pecuniary penalties, and
. the restraining of dealings in property that may be confiscated or
forfeited.
661. Paragraph 5(b) provides that the object of the MA Act is also to
facilitate the provision by Australia of assistance in criminal matters
where a foreign country requests that arrangements be made for a person
to travel to the country to give evidence in a proceeding or to give
assistance in relation to an investigation.
662. This item will repeal paragraphs 5(a) and (b) and replace them with a
new general objects provision.
663. New paragraph 5(a) will state that the object of the MA Act is to
regulate the provision by Australia of international assistance in
criminal matters when a request is made in respect of which powers may be
exercised under the Act.
664. This new general objects provision will ensure that the objects of the
MA Act do not need to be updated each time a new power is inserted into
the MA Act. This also mirrors the approach taken in section 3 of the
Extradition Act.
Item 156 - Subsection 15(1)
665. Section 15 of the MA Act contains only one subsection. This item will
remove '(1)' from the commencement of the section. This is not needed as
there is not a second subsection.
Item 157 - Subsection 15(1)
666. Section 15 of the MA Act currently requires the Attorney-General to
specify the State or Territory in which an authorised officer must apply
for a search warrant. Section 15 also lacks clarity in relation to
whether an authorisation under section 15 can be relied upon to apply for
more than one search warrant.
667. This item will amend section 15 in two ways. First, this item will
remove the requirement in section 15 for the Attorney-General's
authorisation to specify the State or Territory in which an authorised
officer must apply for a search warrant. Secondly, section 15 will be
amended to clarify that the authorisation can be relied upon to apply for
one or more search warrants.
668. These amendments will mean that the Attorney-General will only be
required to make one authorisation regardless of the jurisdiction in
which the evidential material is believed to be located and how many
search warrants may be necessary.
Items 158 and 159 - Paragraph 16(1)(b) and paragraph 16(2)(b)
669. Section 16 of the MA Act currently enables Australia to request a
foreign country to authorise the attendance of a foreign prisoner at a
hearing in connection with an Australian proceeding, or removal of the
foreign prisoner to Australia to assist with an Australian investigation.
670. The exercise of this power is currently subject to the Attorney-
General being of the opinion that certain circumstances exist, including
that the person is a foreign prisoner and that the person is capable of
giving evidence relevant to the proceeding or giving assistance in
relation to the investigation.
671. These items will amend subsections 16(1) and (2) to remove the
requirement for the Attorney-General to determine certain facts, such as
whether a person is a foreign prisoner, and whether he or she has given
consent to being removed to Australia. These matters are able to be
established sufficiently on the basis of information provided to the
Department.
672. The Attorney-General will still be required to make arrangements with
the foreign country in relation to the request as set out in subsection
16(3) (for example, in relation to the custody of the person while in
Australia and the return of the person to the foreign country).
Item 160 - Paragraph 35B(c)
673. Section 35B of the MA Act enables a court to make certain ancillary
orders relating to foreign restraining orders that have been registered
in Australia. Paragraph 35B(c) enables the court to order the owner of
the property subject to the restraining order to give to the Official
Trustee a statement, verified by the oath of the owner, setting out such
particulars of the property as the court considers appropriate.
674. This item will amend paragraph 35B(c) to enable the owner of the
property to verify their statement by oath or by affirmation. This will
ensure that a person has the option of giving a statement that is
verified on oath or affirmation depending on a person's beliefs.
Item 161 - Subsection 38B(1)
675. Item 156 will remove '(1)' from the commencement of section 15 of the
MA Act as there is no second subsection. This item will, as a
consequence of the amendment that will be made by item 156, replace the
reference to subsection 15(1) in subsection 38B(1) with a reference to
section 15.
Item 162 - Subsections 38B(2) and (3)
676. Section 38B of the MA Act sets out the process for applying for a
search warrant if authorised to do so by the Attorney-General under
section 15 of the MA Act. Subsections 38B(2) and (3) require the police
officer applying for a warrant in relation to premises (subsection
38B(2)) or a person (subsection 38B(3)) to provide information on oath
when applying for the warrant.
677. This item will amend subsections 38B(2) and (3) to enable the police
officer to provide information on oath or affirmation. This will ensure
that a person has the option of providing information on oath or
affirmation depending on a person's beliefs.
Items 163 and 164 - Subsection 39A(1) and paragraphs 39A(2)(a) and (3)(c)
678. Section 39A enables the Attorney-General to make requests to a foreign
country for assistance in relation to a criminal matter on behalf of a
defendant. Subsection 39A(1) currently refers to a defendant in a
proceeding and calls that proceeding the 'original proceeding'.
679. Item 163 will remove the reference to 'original proceeding' in
subsection 39A(1). Item 164 will remove the reference to 'original'
before the word proceeding in paragraphs 39A(2)(a) and (3)(c).
680. These amendments will clarify that the Attorney-General may make a
mutual assistance request to a foreign country on behalf of a defendant
in criminal appeal proceedings. The references to 'original proceeding'
will be removed, as they create an impression that appeal proceedings are
excluded from the provision, which is not the intention of the provision.
Item 165 - Subsection 43(2)
681. Section 43 of the MA Act states that any duly authenticated document
is admissible in evidence in proceedings under the MA Act or in any
proceeds of crime proceeding arising as a result of a request made under
the MA Act.
682. Subsection 43(2) sets out when a document is duly authenticated for
the purposes of subsection 43(1). This subsection currently requires the
document to be:
. signed or certified by a Judge, magistrate or officer in or of the
foreign country, and
. sealed with an official or public seal of the foreign country or of a
Minister of State or of a Department or officer of the Government of
the foreign country.
683. This item will repeal subsection 43(2) and replace it with a new
subsection that only requires the document to be signed or certified by a
Judge, magistrate or officer in or of the foreign country. This will
ensure consistency with the provisions of the Foreign Evidence Act 1994,
which does not require documents to be sealed by the foreign country.
The Foreign Evidence Act only requires testimony obtained from a foreign
country to purport to be signed by a judge, magistrate or officer in or
of the foreign country to which the request was made.
Item 166 - Paragraph 44(c)
684. Section 44 of the MA Act provides that the Governor-General may make
regulations prescribing certain matters which are required or permitted
by the MA Act, or are necessary or convenient to be prescribed for
carrying out or giving effect to the MA Act. In particular, paragraph
44(c) provides that the Governor-General may make regulations relating to
the performance by magistrates of functions under the MA Act including
the taking of evidence on oath and the administering of oaths.
685. As Part 2 of this Schedule will amend the MA Act to enable evidence to
be taken on oath or affirmation, this item will amend paragraph 44(c) to
enable regulations to be made with respect to taking evidence on oath or
affirmation and administering oaths or affirmations. These amendments
recognise that a person should have the option of giving evidence that is
verified on oath or affirmation depending on a person's beliefs.
Item 167 - Paragraph 44(d)
686. Section 44 provides that the Governor-General may make regulations
prescribing certain matters which are required or permitted by the MA
Act, or are necessary or convenient to be prescribed for carrying out or
giving effect to the MA Act. In particular, paragraph 44(c) provides
that the Governor-General may make regulations prescribing penalties not
exceeding a fine of $1,000 for offences against the regulations.
687. This item will replace the reference to 'a fine of $1,000' with '10
penalty units'. Under section 4AA of the Crimes Act, one penalty unit
equates to $A110. This will ensure the regulations can prescribe
penalties for offences by reference to a maximum number of penalty units
rather than a maximum monetary amount. This reflects modern drafting
practice for penalties.
Item 168 - Application of amendments made by items 157 and 165
688. The amendment that will be made by item 157 will mean that the
Attorney-General will only be required to make one authorisation under
section 15 for a police officer to apply for a search warrant regardless
of the jurisdiction in which the evidential material is believed to be
located and how many search warrants may be necessary.
689. Subsection (1) of item 168 will provide that the amendment that will
be made by item 157 will only apply to authorisations made on or after
the commencement of this item. Therefore, any authorisation made by the
Attorney-General prior to the commencement of this item will continue
only to enable an application for a warrant in the State or Territory
that is specified in the warrant.
690. Item 165 will amend the requirements that need to be met under section
43 of the MA Act for a document to be duly authenticated for the purposes
of proceedings in connection with the MA Act.
691. Subsection (2) of item 168 will provide that the amendments made by
item 165 will only apply in relation to proceedings of a kind mentioned
in subsection 43(1) that begin on or after the commencement of this item.
Therefore, even if a particular document had not yet been admitted as
evidence prior to the commencement of this item, if the proceeding had
commenced, a document will only be duly authenticated if the requirements
currently set out in subsection 43(2) are met, not the requirements in
subsection 43(2) after amendments that will be made by item 165 commence.
This will ensure that the evidential rules relating to whether or not a
document is admissible do not change during proceedings.
SCHEDULE 4 - CONTINGENT TECHNICAL AMENDMENTS
GENERAL OUTLINE
1. The Bill contains amendments which are contingent upon the commencement
of amendments in other Bills currently before Parliament.
2. This Schedule contains a range of technical amendments which will, when
combined with the commencement table in clause 2 of the Bill, ensure that
the amendments are made regardless of whether the other Bills before
Parliament have already commenced prior to the commencement of this Bill.
Migration Act 1958
Item 1 - Subsection 5(1)(paragraph (b) of the definition of non-political
offence)
3. Item 35 of Schedule 2 of this Bill will amend subsection 91T(3) of the
Migration Act as a result of the amendment being made to the definition
of 'political offence' in the Extradition Act. However, this item will
only commence if item 20 of Schedule 1 to the Migration Amendment
(Complementary Protection) Bill has not yet commenced.
4. Item 20 of Schedule 1 of the Migration Amendment (Complementary
Protection) Bill 2011, which is currently before Parliament, will repeal
subsection 91T(3) of the Migration Act and item 4 of Schedule 1 of that
Bill will insert a definition of 'non-political crime' in subsection 5(1)
of the Migration Act which will refer to the definition of 'political
offence' in the Extradition Act..
5. Item 1 of Schedule 4 of this Bill will amend paragraph (b) of the
definition on 'non-political crime in subsection 5(1) of the Migration
Act (which will be inserted by the Migration Amendment (Complementary
Protection) Bill 2011) as a result of the amendment being made to the
definition of 'political offence' in the Extradition Act.
6. This item will commence on the later of
. a single day to be fixed by proclamation or at the end of the six
month period beginning on the day this Bill receives Royal Assent,
whichever is earlier, or
. immediately after the commencement of item 20 of the Migration
Amendment (Complementary Protection) Bill
7. Therefore, if this Bill commences first:
. item 35 of Schedule 2 will amend subsection 91T(3) of the Migration
Act, then
. when the Migration Amendment (Complementary Protection) Bill 2011
commences item 20 of Schedule 1 of that Bill will repeal subsection
91T(3) of the Migration Act and item 4 of Schedule 1 of that Bill will
insert the reference to the definition of 'political offence' in
paragraph (b) of subsection 5(1) of the Migration Act, and then
. this item will commence immediately after the commencement of the
Migration Amendment (Complementary Protection) Bill 2011 and will
amend paragraph (b) of the definition on 'non-political crime' in
subsection 5(1) of the Migration Act.
8. If the Migration Amendment (Complementary Protection) Bill 2011
commences before item 35 of Schedule 2 of this Bill, that item will never
commence and:
. item 20 of Schedule 1 of that Bill will repeal subsection 91T(3) of
the Migration Act and item 4 of Schedule 1 of that Bill will insert
the reference to the definition of 'political offence' in paragraph
(b) of subsection 5(1) of the Migration Act, and then
. this item will commence immediately after the commencement of the
Migration Amendment (Complementary Protection) Bill 2011 and will
amend paragraph (b) of the definition on 'non-political crime' in
subsection 5(1) of the Migration Act.
Mutual Assistance in Criminal Matters Act 1987
Items 2 to 4
9. Items 50 (which will insert Part IIIC governing assistance in relation
to surveillance devices in the MA Act) and 53 (which will insert a
definition of 'mutual assistance authorisation' in subsection 6(1) of the
SD Act) of Schedule 3 rely on provisions in the Cybercrime Bill having
commenced before they commence.
10. The provisions of the Cybercrime Bill which are being relied upon are
the definition of 'investigative proceeding' which will be inserted by
item 2 of Schedule 2 and new sections 15B and 15D of the MA Act which
will be inserted by items 4 and 27 of Schedule 2 respectively.
11. Items 2, 3 and 4 in Schedule 4 will commence instead of items 50 and 53
in Schedule 3 if this Bill commences before the Cybercrime Bill.
Item 2 - After Part IIIB
12. This item will insert Part IIIBA into the MA Act. Part IIIBA will
govern assistance in relation to surveillance devices. Part IIIBA will
contain two sections; the first will deal with requests made by Australia
and the second will deal with requests made by foreign countries.
13. This item will only commence on a single day to be fixed by
proclamation or at the end of the six month period beginning on the day
this Bill receives Royal Assent, whichever is earlier. However, if
item 2 of Schedule 2 to the Cybercrime Bill commences before that time,
this item will never commence.
Section 15C - Requests by Australia for surveillance devices
14. New section 15C will enable Australia to request an appropriate
authority of a foreign country to authorise the use of a surveillance
device in that country and arrange for information obtained through the
use of that device to be sent to Australia.
15. The threshold test for requesting such assistance will be:
. if the use of a surveillance device is reasonably necessary to obtain
information relevant to the commission of an Australian offence
punishable by three or more years imprisonment, or
. if the use of a surveillance device is reasonably necessary to obtain
information relevant to the identity or location of the offenders.
16. If the foreign country obtained the requested information lawfully, but
by a means other than using a surveillance device, that information would
not be inadmissible as evidence in Australia, or precluded from use in an
Australian investigation, because it was obtained otherwise than in
accordance with the request.
17. This is appropriate because as long as the foreign country obtained the
evidence in accordance with their domestic requirements, it should not
matter that the evidence was not obtained in the way requested originally
by Australia.
Section 15CA - Requests by foreign countries for surveillance devices
18. New section 15CA will establish the means by which Australia may
respond to a foreign country's request for a surveillance device. It
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 satisfied of the following matters:
. a request has been received from the foreign country
. an investigation or investigative proceeding relating to a criminal
matter has commenced in the requesting country
. the offence the subject of the investigation or investigative
proceeding is punishable by a maximum penalty of three or more years
imprisonment, life imprisonment or death, and
. the requesting country has given appropriate undertakings in relation
to the use and destruction of information obtained as a result of the
use of the surveillance device and any other matter the Attorney-
General considers relevant.
19. The threshold of a maximum penalty of three or more years'
imprisonment, life imprisonment or death mirrors the threshold that
applies to whether a surveillance device can be sought for the
investigation of domestic offences. This will ensure that surveillance
devices will only be able to be used to investigate foreign offences of a
similar level of seriousness as would be required to obtain a
surveillance device for the purposes of a domestic investigation.
20. Although this amendment will allow assistance to be provided in
relation to an offence that carries the death penalty, section 8 of the
MA Act provides that where a mutual assistance request relates to a death
penalty offence, assistance must be refused unless 'special
circumstances' exist. Special circumstances could include material that
provides exculpatory evidence, or where the requesting country has
provided an undertaking that the death penalty will not be sought, or if
imposed, will not be carried out.
21. 'Eligible law enforcement officer' will be defined in this section by
reference to paragraphs (a) and (c) of the definition of 'law enforcement
officer' in subsection 6(1) of the SD Act. As such, the following
persons will be able to be authorised by the Attorney-General to apply
for a surveillance device warrant in response to a mutual assistance
request:
. the Commissioner or Deputy Commissioner of the AFP
. any AFP employee
. any special member or person seconded to the AFP, or
. an officer (however described) of the police force of a State or
Territory, or any person who is seconded to that police force.
22. 'Investigative proceeding' will be defined in this section by reference
to paragraphs (a) and (b) of the existing definition of 'proceeding' in
the MA Act:
. gathering evidential material that may lead to the laying of a
criminal charge (paragraph (a)), or
. assessing evidential material in support of the laying of a criminal
charge (paragraph (b)).
Item 3
23. Item 2 of this Schedule will insert a new section 15CA in the MA Act.
This new section will, in subsection 15CA(2), contain a definition of
'investigative proceeding'.
24. However, item 2 of Schedule 2 of the Cybercrime Bill (which is
currently before Parliament) will also insert a definition of
'investigative proceeding' in the MA Act.
25. As item 2 of Schedule 4 of this Bill will insert a definition of
investigative proceeding, that definition will need to be repealed if the
Cybercrime Bill commences.
26. As such, this item will commence immediately after the commencement of
item 2 of Schedule 2 to the Cybercrime Bill to repeal the definition.
However, if item 2 of Schedule 2 of the Cybercrime Legislation Amendment
Act 2011 does not commence, this item will never commence.
Surveillance Devices Act 2004
Item 4
27. Item 53 of Schedule 3 of this Bill will insert a definition of 'mutual
assistance authorisation' in subsection 6(1) of the SD Act which will be
defined as an authorisation under subsection 15F(1) of the MA Act (which
will be inserted by item 53 of Schedule 3 of this Bill). Item 53 of
Schedule 3 of this Bill will only commence on proclamation if item 2 of
Schedule 2 of the Cybercrime Bill has commenced before that time.
28. Therefore, if item 2 of Schedule 2 of the Cybercrime Bill has not
commenced prior to proclamation, item 53 of Schedule 3 of this Bill will
never commence. As such, item 4 of Schedule 4 will instead insert a
definition of 'mutual assistance authorisation' in the SD Act to mean an
authorisation under subsection 15CA(1) of the MA Act. Subsection 15CA(1)
of the MA Act will be inserted by item 2 of this Schedule.
29. This item will commence on a single day to be fixed by proclamation or
at the end of the six month period beginning on the day this Bill
receives Royal Assent, whichever is earlier. However, if item 2 of
Schedule 2 to the Cybercrime Bill commences before that time, this item
will never commence.
-----------------------
[1] (2001) 209 CLR 165; 183 ALR 645
[2] (2001) 209 CLR 165; 183 ALR 645
[3] (2001) 209 CLR 165; 183 ALR 645
[4] (2001) 209 CLR 165; 183 ALR 645
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