Marise Payne (NSW, Liberal Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

I rise to speak on the Crimes and Other Legislation Amendment (Omnibus) Bill 2023. The coalition supports the intent of this bill. It is, however, somewhat ironic, as this bill makes changes to a range of Commonwealth statutes that relate to oversight, but, until the coalition intervened, the scrutiny processes around the bill itself were less than satisfactory.

The original intent as communicated to us was that the entirety of this bill would be referred to the Parliamentary Joint Committee on Intelligence and Security, making a further committee inquiry unnecessary. For whatever reason, that did not happen. Instead, only a single technical provision of the bill relating to a change in the name of the South Australian Independent Commission Against Corruption was ultimately referred to the PJCIS. Understandably, the PJCIS declined to conduct an inquiry into an inconsequential amendment on name change. As a result, the bill almost avoided scrutiny completely. Luckily, at the eleventh hour, and at the urging of the coalition, the government realised that error and the bill was referred to the Legal and Constitutional Affairs Legislation Committee.

It is important that such a process is conducted because, while much of the bill is procedural, we are dealing with important and complicated matters relating to criminal law and national security. Whenever legislation touches on areas like the Telecommunications (Interception and Access) Act and the Anti-Money Laundering and Counter-Terrorism Financing Act, as this bill does, it should be subject to careful examination by a parliamentary committee, which can examine how proposed changes will work in practice. The only way to do this is to hear from agencies likely to be affected by the legislation. We all in this place have an interest in avoiding unintended consequences being baked in to Commonwealth law.

Schedule 1 of this bill will amend the Anti-Money Laundering and Counter-Terrorism Financing Act to close a loophole relating to the obligation imposed on reporting entities to register with AUSTRAC. Currently, that obligation can only be enforced if AUSTRAC becomes aware of the failure to register within 12 months of the contravention. The amendments in schedule 1 will allow AUSTRAC to more effectively enforce contraventions. In addition, the amendments in schedule 1 would clarify that sensitive AUSTRAC information that is shared with partner agencies cannot then be presented to courts and tribunals by those agencies.

Finally, the amendments in schedule 1 would authorise the AUSTRAC CEO to use computer programs, including automated programs, to take non-adverse administrative actions, such as registration renewals. Explanatory materials note the need for sophisticated internal business rules and quality assurance and refer to high-risk decisions. Consultation on the rollout and implementation of any computer-assisted decision-making will be essential if the changes are to be effective. It is the execution that counts here. We will monitor these changes to see how they play out over time.

Amendments to the Foreign Evidence Act in schedule 5 of the bill will mean that foreign evidence is no longer required to be certified by a 'judge, magistrate or officer' of the relevant country. Instead, testimony may also be signed or certified by 'a person authorised to administer an oath or affirmation or put a person under an obligation to tell the truth' in or of the foreign country to which the request was made. This change would mean that foreign evidence will be admissible in a wider range of circumstances.

The amendments proposed in schedule 6 of the bill would provide the Attorney-General with a discretionary power to refuse consent to a request or an application for transfer to or from Australia at an earlier stage in the process. This is intended to reduce procedural overheads associated with the international prison transfer process.

The Telecommunications (Interception and Access) Act allows eligible judges or nominated AAT members to issue warrants, orders and approvals to use certain covert or coercive investigative powers. To provide oversight to this process, both Victoria and Queensland have established public interest monitors who can appear at hearings of applications for warrants and, essentially, be a contradictor. The current legislation prevents those public interest monitors from making submissions relating to part 5.3 supervisory orders—those being control orders, extended supervision orders and interim supervision orders issued under part 5.3 of the Criminal Code, including in relation to matters concerning terrorist offenders. The provisions in schedule 8 of the bill would allow the public interest monitors in Victoria and Queensland to make submissions relating to part 5.3 supervisory orders. Again, we will monitor these changes to see how they play out in practice.

Changes to schedule 9 of the bill would allow the commissioner to suspend a person's participation in the National Witness Protection Program in circumstances where the participant requests it or where the commissioner forms the view that the participant has done or intends to do something that will limit their ability to protect and assist the participant. Having looked at these changes through the committee process, we are of the view that the changes provide appropriate flexibility to the commissioner to suspend participation where necessary. In most cases, it is likely to be the commissioner, informed by the officers on the ground who actually provide the assistance and protection, who is best placed to make decisions about how the act should be administered in any particular case. I understand that the government will move some technical amendments to this schedule to address issues identified by the Scrutiny of Bills Committee. We will support those amendments. I also understand that the Australian Greens will move a range of amendments to the powers conferred by this schedule which we do not consider are necessary.

As I said earlier, the coalition agrees with the intent of this bill. We are glad that the bill was scrutinised by the Legal and Constitutional Affairs Legislation Committee. That this bill received such scrutiny is thanks to the vigilance of coalition senators and members. As a rule, we believe that parliamentarians should not be asked to change Australia's criminal or national security legislation without scrutinising the impact of those changes. Of course, where a bill has urgent and important national security implications, we will support the timely passage of appropriate legislation, but this was not one of those cases. We will support the passage of this legislation through the parliament, and I commend the bill to the Senate.

David Shoebridge (NSW, Australian Greens) Share this | Link to 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.

Paul Scarr (Queensland, Liberal Party) Share this | Link to this | Hansard source

I rise to speak briefly in relation to the Crimes and Other Legislation Amendment (Omnibus) Bill 2023, and I want to flesh out a point that was made by my very good friend Senator Payne in relation to the scrutiny of this bill. The reality is that the government had to be dragged kicking and screaming to actually refer to this bill to the Legal and Constitutional Affairs Committee, on which I and Senator Shoebridge sit. That baffles me—it genuinely baffles me that it was so difficult to get this bill referred to the committee which myself and my good friend Senator Shoebridge sit on.

That's because the work of that committee is extraordinarily important. Those listening to this debate, those in the chamber, would have received an insight into the important work that Senate committees undertake. If you're going to propose amendments that have an impact with respect to Australia's laws relating to anti money-laundering; if you're going to propose amendments to laws relating to witness protection schemes; if you're going to propose amendments to the laws relating to the circumstances in which internationally-held prisoners, or prisoners held in overseas countries, may be transferred to Australia; and if you're going to propose amendments to laws relating to the tendering into evidence of depositions and affidavits which are sworn overseas, then those issues that need to be carefully scrutinised by the committee that has been given, delegated, the role of scrutiny by this place—by this chamber. Those laws need to be carefully scrutinised by the Legal and Constitutional Affairs Committee.

My friend Senator Shoebridge has listed a number of legitimate concerns which should be aired and debated, and which will be debated, in this place. The fact is that those concerns may well have never seen the light of day but for the fact that eventually the government—dragged kicking and screaming—relented to this bill being subject to scrutiny by the Senate Legal and Constitutional Affairs Legislation Committee. However this chamber lands in relation to those amendments put forward by the Australian Greens, at the very least at the end of that process this chamber will have discharged its responsibility of scrutiny and discharged its responsibility of closely reviewing changes to these fundamental aspects of Australian law.

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

And there are now government amendments that came as a result of it.

Paul Scarr (Queensland, Liberal Party) Share this | Link to this | Hansard source

I take that interjection from Senator Shoebridge. There are now government amendments that have arisen from that scrutiny process. So, whilst I'm not asking Senator Brown to give a mea culpa in terms of this process, I sincerely hope that the government reflects on this situation.

Just taking on Senator Shoebridge's point in relation to government amendments, I'll quote from the report, which I contributed to through my membership as the deputy chair of the Senate Legal and Constitutional Affairs Legislation Committee. The 'committee view' in relation to this bill in paragraph 1.49 states:

In general, submitters supported the operational efficiencies that the bill would create and in particular, the Law Council suggested areas in which the bill could be further improved. The committee urges the Australian government—and where relevant AUSTRAC—to take these suggestions into consideration prior to the bill being debated in the Senate.

That's the result of the review by the committee which both Senator Shoebridge and I sit on. Paragraph 1.50 states:

The committee expresses concern with the bill's provision for procedural fairness, as raised by the Selection of Bills Committee and the Law Council, in relation to the ITP Act. The committee agrees that the primary legislation should set out a non-exclusive list of considerations to which the Attorney-General must have regard …

Paragraph 1.51 states:

The committee acknowledges the advice from the AGD—

and this takes on Senator Shoebridge's point—

that it will be proposing amendments to the bill to take into account many of the concerns identified by parliamentary comments.

I'll read that again. It states:

The committee acknowledges the advice from the AGD that it will be proposing amendments to the bill to take into account many of the concerns identified by parliamentary comments. The committee welcomes this advice, which will improve the bill.

That should be how this place works. Bills, specifically of this nature dealing with criminal law, should in the usual and ordinary course be referred to the relevant committee so that it can discharge its scrutiny function.

I note that Senator Shoebridge noted that the government is proposing amendments to this bill. I do hope there is some learning in relation to this on the government side. When committees in this place scrutinise legislation they typically provide amendments that will enhance, improve and deal with unintended consequences contained in bills. I do hope that this process causes some reflection on the part of the government.

Carol Brown (Tasmania, Australian Labor Party, Assistant Minister for Infrastructure and Transport) Share this | Link to this | Hansard source

I'd like to start by thanking Senate colleagues for their contribution to the debate on the Crimes and Other Legislation Amendment (Omnibus) Bill 2023. I also thank the Senate Legal and Constitutional Affairs Legislation Committee for the work that they have done on this bill.

The bill before us will update, improve and clarify the intended operation of key provisions to support the proper administration of government law enforcement regulatory oversight and judicial processes. This will improve outcomes for non-Commonwealth government stakeholders, such as members of the public who have come in contact with the judicial system, international partners, and state and territory governments. By making small and clarifying amendments, the bill will streamline and enhance the everyday work of government agencies, improving their ability to deliver outcomes for the Australian government.

At this point I indicate that the government will be moving some amendments. I note that Senator Shoebridge will be moving amendments, which we'll be opposing. I also table an addendum to the explanatory memorandum relating to this bill, which is the addendum response to matters raised by the Parliamentary Joint Committee on Human Rights, the Senate Standing Committee for the Scrutiny of Bills and the Legal and Constitutional Affairs Legislation Committee. I commend the bill to the Senate.

Question agreed to.

Bill read a second time.