Simon Birmingham (SA, Liberal Party, Minister for Education and Training) Share this | Hansard source

I table revised explanatory memoranda relating to the bills and I move:

That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted.

The speeches read as follows—

CRIMES LEGISLATION AMENDMENT (POWERS, OFFENCES AND OTHER MEASURES) BILL 2018

I am pleased to introduce the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017, which contains a range of measures to improve and clarify Commonwealth criminal justice arrangements. This Government is committed to providing our law enforcement agencies with the tools and powers they need to do their job, and ensuring Commonwealth laws are robust and effective.

To that end, we keep our criminal justice framework under constant review—our agencies, policies, laws, and processes—to ensure that we have a regime in place that is well equipped for the job of tackling crime.

This Bill contains a range of measures across Commonwealth Acts. I will address the key measures in the Bill in further detail.

Amendment of the AFP Act

Schedule 1 amends the functions of the Australian Federal Police contained in section 8 of the Australian Federal Police Act 1979. The amendments clarify the functions of the AFP to enable them to provide assistance and cooperation with international organisations and non-government organisations in relation to the provision of police services or police support services. The amendments also provide a definition of international organisation.

The amendments will ensure the AFP is able to share information with a range of organisations, depending on the types of investigations on foot and the changing criminal threat environment. International partnerships allow the AFP to meet operational challenges and threats, and progress Australia's national interests. The AFP's core work across all crime types is becoming increasing global and, as a result, international cooperation is becoming more and more important to the AFP's operations.

Custody notification amendments

Schedule 2 of the Bill will amend the custody notification obligation in the Crimes Act. The amendments will clarify the timing of the requirement and ensure that investigating officials who intend to question an Aboriginal person or Torres Strait Islander notify an Aboriginal legal assistance organisation before they begin their questioning.

This amendment is necessary following a contrary interpretation of the obligation in an ACT Supreme Court case, which frustrated the intention of the custody notification requirement. The clarification is important for the ACT because the requirement in the Commonwealth Crimes Act applies to ACT offences.

Schedule 2 will therefore put beyond doubt that an investigating official must notify an Aboriginal legal assistance organisation before questioning an Aboriginal person or Torres Strait Islander, giving full effect to a recommendation of the Royal Commission into Aboriginal Deaths in Custody. This was always the original intention of the legislative requirement.

Controlled operations disclosure offence

Schedule 3 amends the controlled operation disclosure offence provisions contained in Part IAB of the Crimes Act 1914. The amendments will mirror those amendments made to section 35P of the Australian Security Intelligence Organisation Act 1979, which implemented all of the recommendations made by the Independent National Security Legislation Monitor in his report on section 35P of the ASIO Act.

These amendments will introduce new elements that must be proven before an ordinary citizen can be convicted of a disclosure offence. The amendments will create two separate offence regimes. One offence regime will apply to 'entrusted persons' or persons who came to the knowledge or into the possession of information about a controlled operation in their capacity as an entrusted person. A separate offence regime will apply to all other persons, or 'outsiders'.

Under these new regimes, the disclosure of information made by members of the community, except those who received information in their capacity as an entrusted person, will only constitute an offence if the information will endanger the health or safety of a person or prejudice the effective conduct of a controlled operation.

The amendments will also establish a defence of prior publication available only to persons who did not receive the relevant information in their capacity as an entrusted person.

It is critical that law enforcement agencies have the tools and capabilities available to them to effectively combat the significant threat of organised crime in Australia and of serious and systemic corruption.

The Government understands the importance of maintaining public awareness of, and confidence in, the activities of our law enforcement agencies. The decision to mirror the amendments to the ASIO Act further demonstrates our commitment to achieving the right balance between freedom of expression and our national security and law enforcement requirements.

Increasing penalties for general dishonesty offences

Schedule 4 of the Bill will amend the Criminal Code to increase the maximum penalties for the general dishonesty offences from 5 years' imprisonment to 10 years' imprisonment.

This will address inconsistencies across penalties for offences in the Criminal Code, which capture similar conduct. It will also give courts the ability to adequately sentence the full range of offending that can occur under the general dishonesty offences.

As the Commonwealth Director of Public Prosecutions pointed out in evidence to the current Senate Committee inquiry into penalties for white collar crime, the general dishonesty offences in the Criminal Code cover fraudulent schemes, consisting of multiple instances of criminal activity. The current 5 year maximum term of imprisonment can be inadequate in these circumstances.

This amendment will allow judges to sentence appropriately, while also retaining their discretion to impose lesser penalties for less serious conduct.

Protecting vulnerable persons

The Government remains committed to strengthening the protections afforded to vulnerable witnesses and complainants giving evidence in Commonwealth criminal proceedings.

To this end, the Bill will amend the existing non-publication offence in section 15YR of the Crimes Act to require that a person seeking leave from the court to publish matter that is likely to identify a vulnerable person must take reasonable steps to notify parties of the original proceeding (including the vulnerable person themselves) before making the application.

This will ensure all interested parties have an opportunity to present submissions to inform the court's decision about whether to grant leave for material to be published, including on any trauma and reputational damage the vulnerable person may experience as a result.

Personal information that may be relevant for fraud and corrupt conduct

Schedule 7 of the Bill amends the Crimes Act 1914to authorise sharing personal information for tackling fraud and corruption against the Commonwealth.

Schedule 7 of this Bill will bolster the Commonwealth's ability to combat fraud and corruption. The Commonwealth will be able to gather information from within the Commonwealth and more broadly (including from the private sector and State and Territory agencies) to reduce the amount of public money lost to, and the damage inflicted by, fraud and corruption. The measures will assist Commonwealth bodies to stamp down on corrupt officials and those who are seeking to defraud the Commonwealth.

The amendments also protect privacy by limiting information sharing to circumstances that are necessary for an integrity purpose. This is similar to existing safeguards under the Privacy Act 1988. The amendments also enable guidelines on the operation of these measures to be made which require the approval of the Information Commissioner.

These amendments do not impact on secrecy requirements in other legislation. By authorising rather than compelling information sharing for Commonwealth integrity purposes, the amendments do not adversely impact on how state and territory agencies or the private sector handle personal information.

Spent convictions

Schedule 8 of the Bill will amend the Commonwealth spent convictions regime under the Crimes Act 1914 to remove impediments that would prevent the Law Enforcement Conduct Commission of New South Wales from using spent convictions information to vet employees and investigate serious misconduct and corruption in particular circumstances.

Removing these impediments is necessary to give full effect to exemptions under the New South Wales spent conviction regime, which was recently amended to allow the Commission to use spent convictions information pursuant to their functions.

Conclusion

Australia's criminal justice framework is both fair and strong. But it never serves to be complacent. Where opportunities arise to fine-tune aspects of our regime, we take these up. This Bill is another example of just that.

TREASURY LAWS AMENDMENT (AUSTRALIAN CONSUMER LAW REVIEW) BILL 2018

On 1 January 2011, the Australian Consumer Law commenced operation as Australia's first nation-wide consumer protection law.

Well informed, confident consumers are a key element of a strong and efficient economy. The introduction of the Australian Consumer Law has been good for both consumers and business—consumers are more empowered, business compliance costs have reduced and there are fewer disputes.

Indeed, the Australian Consumer Law has been an important microeconomic reform that has provided substantial benefit to all Australians.

To ensure that the Australian Consumer Law continues to deliver, the Australian Consumer Law Review identified opportunities for reform and areas where the law can be clarified and strengthened.

This Bill amends the Australian Consumer Law, contained within the Competition and Consumer Act 2010, and the consumer protection provisions of the Australian Securities and Investments Commission Act 2001, to implement a series of recommendations made in the final report of the Australian Consumer Law Review.

Schedule 1 to this Bill amends the Australian Consumer Law to ease evidentiary requirements for private litigants through expanded 'follow on' provisions, enabling litigants to rely on admitted facts from earlier proceedings.

This will improve and enhance access to remedies and promote consistency with comparable 'follow on' provisions in the competition law.

Schedule 2 to this Bill amends the Australian Consumer Law to extend the Australian Consumer Law and ASIC Act's unconscionable conduct protections to publicly listed companies.

The existing exclusion sought to confine the unconscionable conduct protections to those traders likely to lack the size and bargaining power to protect their own interests. Public listing was seen as a reasonable indicator of a trader's size and ability to protect its own interests. However, public listing is not necessarily a reflection of a trader's size, level of resourcing or its ability to withstand unconscionable conduct. Where there is a significant imbalance in bargaining power, a publicly listed company could find itself subjected to conduct that is unconscionable.

The amendments improve both the clarity and generic application of the unconscionable conduct protections and ensure they apply equally to all traders and support the Australian Consumer Law's objective of fostering effective competition and fair trading.

Schedule 3 to this Bill amends the Australian Consumer Law to amend the definition of 'unsolicited services' to allow the protections of the false billing provisions to apply to false bills for services not provided.

Current interpretations of the false billing provisions make it difficult to enforce against suppliers of unrequested and unsupplied services, even where the supplier has falsely represented that they have supplied services to the recipient. This amendment remedies this issue.

Schedule 4 to this Bill amends the Australian Consumer Law to ensure that the unsolicited selling provisions operate as intended by clarifying that the provisions can apply to public places.

Schedule 5 to this Bill amends the Australian Consumer Law to enhance price transparency in online shopping by requiring that any additional fees or charges associated with pre-selected options are included in the headline price.

This amendment ensures that consumers are made aware from the start of the online payment process of the total possible amount they would pay if they do not opt out of pre-selected options. The amendment also reduces the potential for consumers to be misled.

Schedule 6 to this Bill amends the Australian Consumer Law to strengthen the Australian Competition and Consumer Commission's powers to obtain information about product safety, by broadening the power to apply to third parties likely to have relevant information, rather than only the supplier.

This amendment will help regulators to respond to product safety issues in a more timely manner and promote consistency between the ACCC's compulsory information gathering powers for product safety investigations and its existing powers for enforcing other Australian Consumer Law provisions.

Schedule 7 to this Bill amends the Australian Consumer Law and the ASIC Act to enable regulators to use their existing investigative powers to better assess whether or not a term of a standard form contract is unfair.

Currently, the ACCC and ASIC are restricted in their ability to investigate compliance and take enforcement action with respect to unfair contract terms. This is because their investigative powers are triggered by 'contraventions' or 'possible contraventions' of the law. However, as the use of unfair contract terms is not prohibited by the law, it is not possible to breach or contravene these provisions.

These amendments extend the ACCC and ASIC's respective investigative powers to enable those regulators to undertake investigations to determine if a term in a contract may be unfair.

Schedule 8 to this Bill amends the Australian Consumer Law to allow third parties to give effect to a community service order where the trader in breach is not qualified or trusted to do so.

The Australian Consumer Law allows regulators to apply to a court for community service orders as a remedy for breaches. These orders typically require a positive action by a trader to perform a service. However, there may be circumstances where the trader is not qualified or trusted to perform the specified service. For example, it would be inappropriate for a trader who has caused financial harm to low income or vulnerable consumers to provide financial counselling to those consumers.

This amendment will allow regulators to seek community services orders as a remedy to a breach in more circumstances because they will no longer have to rely on the trader to carry out the order but instead can rely on a qualified third party.

Schedule 9 to this Bill amends the Australian Consumer Law to clarify the scope of an existing exemption from the consumer guarantees regime for the transport or storage of goods where those goods are damaged or lost in transit.

This amendment means that individual consumers will no longer bear the full risk in circumstances where they have no control over who ships their goods to them. The amendment also ensures that consumers do not have to rely on traders to raise issues with the shipper, they are instead able to use their rights to seek a remedy directly from the shipper.

Schedule 10 amends the ASIC Act to address inconsistent terminology in relation to the sale or grant of land.

These amendments will make terminology more consistent throughout the ASIC Act.

Schedule 11 amends the ASIC Act to clarify that all Australian Consumer Law related consumer protections that already apply to financial services also apply to financial products.

The current provisions explicitly cover financial services and indirectly apply to conduct related to financial products. This is because financial services has a broad definition. However, the absence of an express reference to financial products creates uncertainty.

This amendment provides clarity that a financial product is a financial service.

These amendments, taken together, improve the efficiency and effectiveness of Australia's consumer protection regime. They strengthen and clarify the law to ensure that consumers are well-informed, and will help consumers and traders to better understand their rights and obligations and improve outcomes across Australian markets.

The Legislative and Governance Forum on Corporations was consulted in relation to the amendments and has approved them as required under the Corporations Agreement 2002.

Full details of the Bill are contained in the Explanatory Memorandum.

Debate adjourned.

Ordered that the bills be listed on the Notice Paper as separate orders of the day.