David Shoebridge (NSW, Australian Greens) Share this | Hansard source

I rise on behalf of the Greens to speak to the Crimes and Other Legislation Amendment (Omnibus) Bill 2023. I note that the bill seeks to, in the words of the attorney, update, improve and clarify the operation of certain provisions in the Crimes Act as well as other acts, including the Australian Crime Commission Act 2002, the Anti-Money Laundering and Counter-Terrorism Financing Act 2006, the Criminal Code Act 1995, the Criminology Research Act 1971, the International Transfer of Prisoners Act 1997, the Foreign Evidence Act 1994 and certain other acts.

The bill is largely inoffensive, making a series of minor and technical amendments, including correcting some obvious errors, clarifying and, to some extent, improving a range of government, judicial, regulatory and other oversight processes. Thankfully, the bill has been the subject of some consideration by both the Human Rights Committee and the Legal and Constitutional Affairs Legislation Committee, and it is as a result of concerns raised in that course of that consultation and review that the Greens will be moving a series of amendments dealing with the threshold for suspension of protection and assistance of people in witness protection. The revocation and suspension of protection assistance is of very real concern to the Greens. People who have the benefit of witness protection need to ensure that due process will be undertaken before that is suspended. The amendments will also consider the changes proposed by this bill to international prisoner transfers, and there are very real concerns we have at the moment about two prisoners who are the subjects of potential international transfers: Mr Duggan and Mr Assange.

This bill has now been the subject of two reports from the Parliamentary Joint Committee on Human Rights. They've raised significant concerns, especially in relation to the suspension of witness protection and assistance. Senators will be aware that the Witness Protection Act 1994 is a critical tool in protecting vulnerable witnesses who may have had death threats or other serious threats made against them. The protection that's provided under the Witness Protection Act is essential for the operation of our judicial system, and, indeed, it's often essential for the work of law enforcement agencies.

This bill proposes that a power be given to the Commissioner of the Australian Federal Police to suspend a participant's protection and assistance, either at the request of the participant or at the discretion of the AFP. In relation to the AFP's proposed power to suspend, the bill proposes that it can be suspended 'if, in the opinion of the commissioner, the participant has done or intends to do something that limits or would limit the commissioner's ability to provide' that protection and assistance. The length of suspension is, of course, proposed in the bill to be open to the AFP commissioner or the AFP commissioner's delegate to determine. I'll read briefly from the committee's first review of that:

Committee view

1.41 The committee welcomes those measures in the bill that would promote human rights, particularly expanding the scope of the mandatory ground of refusal with respect to mutual assistance requests—

and public interest monitor matters.

1.42 However, the committee notes that the bill, by providing the Commissioner with the discretion to suspend a participant's protection or assistance in the National Witness Protection Program, engages and may limit the rights to life and security of person. The committee considers further information is required to assess the compatibility of this measure with these rights, and as such seeks the Attorney-General's advice as to:

(a) what types of actions or circumstances would limit the AFP's ability to provide adequate protection or assistance to a participant—

in other words, what's the trigger—

(b) why it is appropriate that a participant's protection and assistance be suspended where they do something that 'limits' the AFP's ability to provide protection and whether this threshold should be higher, such as 'significantly limits';

(c) why it is necessary for the Commissioner's power to suspend protection and assistance to extend to possible future actions of a participant;

(d) how the Commissioner would assess an appropriate time period for the suspension to have effect and whether the Commissioner would be required to regularly review the case to assess whether circumstances have changed such that protection and assistance should be reinstated;

(e) why decisions to suspend protection or assistance made by the Commissioner personally are not reviewable, noting the importance of the availability of review as a safeguard and the potentially significant consequences for a participants' rights of such a decision; and

(f) whether any less rights restrictive alternatives could achieve the same stated objective.

The Attorney-General's office did engage with the committee and provided at least a partial response to the concerns raised by the committee. In a further report, the committee noted those responses but remained concerned in relation to this matter. In paragraph 2.18 of that second report, they said:

In relation to providing the Commissioner with the discretion to suspend a participant's protection or assistance in the National Witness Protection Program, the committee considers that the measure likely pursues a legitimate objective for the purposes of international human rights law. That is, to increase the Commissioner's flexibility to enable the temporary suspension, rather than termination, of protection or assistance, and would be rationally connected to this objective.

I pause there to state that the Greens understand that as a rational basis for this. Rather than having only the nuclear button of terminating witness protection, allowing for circumstances where witness protection can be suspended does have a legitimate legislative purpose. The committee went on to say:

The committee considers the measure is accompanied by some important safeguards. In particular, the committee welcomes the Attorney-General's undertaking to amend the bill to ensure decisions made by the Commissioner personally to suspend protection or assistance pursuant to proposed section 17B may be subject to internal review. The committee considers access to review to be an important safeguard in light of the potential severity of the consequences of suspending protection and assistance on participants' rights to life and security of person.

I'll have more to say on that aspect in the committee process.

I'll finish with this from the human rights committee. They said at 2.19:

However, the committee notes that some concerns remain as to whether the measure is sufficiently circumscribed given the broad scope of the Commissioner's powers and the potentially low basis for suspending protection or assistance. As such, the committee considers that, depending on how the suspension powers are exercised in practice, there may be a risk that the proposed limitations on the rights to life and security of the person would not, in all circumstances, be proportionate.

Then the committee proposed suggested action, including considering the proportionality of that measure, and suggested the proportionality outcome may be assisted by amending the bill to:

(a) require the Commissioner to regularly review a suspension decision …

(b) require the Commissioner to revoke a suspension of protection and assistance where the Commissioner is satisfied that the circumstances of the case that justified the suspension no longer apply; and

(c) increase the threshold for suspending protection and assistance to actions that 'significantly limit' (rather than 'limit') …

It recommended that this house take on board those concerns.

The Legal and Constitutional Affairs Legislation Committee also reviewed the bill and was assisted by a number of submissions largely from government agencies but also by an extremely helpful submission from the Law Council of Australia. A number of concerns were raised in the legal and constitutional affairs review of the bill, one of which was the proposal in part 3 of schedule 1 of the bill to empower the AUSTRAC CEO to arrange for the use of computer-assisted programs to assist with administrative decision-making—a matter, of course, which would concern many senators if it were an expanded role of computer-assisted decision-making. The Greens, of course, have consulted in relation to this aspect of the bill, have looked into the scope of the proposed computer-assisted decision-making and are reassured that the only substantive decision made using ADM is whether to grant an application for registration. If there's a decision made to refuse an application, it will require ASIC staff to then take over the decision-making, so the only assisted decision-making that can be made is decision-making that benefits an applicant. In those circumstances, we see on balance that that element of the bill can be supported.

The Legal and Constitutional Affairs Legislation Committee also noted the concerns raised by the Law Council in their helpful submission and noted that the Law Council agreed with recommendations made by the Scrutiny of Bills Committee, but the Law Council went further and suggested that the bill should also be amended to require a decision-maker who is considering matters in relation to international transfer of prisoners to have regard to a series of other matters.

With regard to procedural fairness, the Law Council made a number of suggestions to improve the bill, that is:

Those are all matters that the Greens see significant merit in. We have had some consultation with the Attorney General's office, who have suggested that requiring written reasons for a decision to be made to the transfer country would create potential international repercussions, and we're not at this stage progressing those amendments, but amendments that pick up the balance of the concerns by the Law Council we will be pressing in the committee process.

I raise one other matter the Law Council brought to the attention of the committee when it reviewed it. That was the nature of these ad hoc amendments to a number of bills but in particular to the telecommunications intercept act.

The Telecommunications (Interception and Access) Act has been the subject of innumerable amendments over the almost 4½ decades since it was legislated. Those amendments have, inevitably, seen a power creep to the security agencies, providing greater powers to intercept and access telecommunications, and more secretive powers. The Law Council considered that the ad hoc amendments being presented in this bill highlight the need to expand the role of the independent contradictor—that is, a public interest advocate, who is there in court to test the applications being made by security agencies—which is currently established in a fairly weak form under the Telecommunications (Interception and Access) Act. I'll quote from the Law Council submission:

The role should go beyond applications for journalist information warrants to other applications for intrusive powers under the TIA Act. Consideration of the latter alternative will improve the oversight of intrusive powers across the board under the TIA Act.

The Greens agree with those concerns raised by the Law Council.

A number of those matters will be addressed in the committee process. There are some positive elements in this bill; we don't want to lose sight of those, and the Greens will be supporting the passage of this bill through the Senate. But in relation to the international-transfer-of-prisoner provisions can I say in my concluding comments that we have now seen two high-profile cases: one in the Australian jurisdiction, with Mr Duggan, who was sought to be extradited from Australia to the United States; and one in the case of Julian Assange, who the United States is seeking to extradite from the United Kingdom. The rights of prisoners are often almost negated in the extradition and the transfer-of-prisoner process. Indeed, the human rights of prisoners should be considered as a fundamental aspect when we're considering the international transfer of prisoners. Jurisdictions that may otherwise be friendly with the Australian government, such as the United States, have prison systems that would fail even the most rudimentary human rights review by Australian authorities—brutal prison systems. I believe Australian governments expect there to be tougher and higher standards applied by Australian governments before they agree to Australian citizens being extradited to the United States.