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2022-2023 THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA SENATE CRIMES AND OTHER LEGISLATION AMENDMENT (OMNIBUS) BILL 2023 ADDENDUM TO THE EXPLANATORY MEMORANDUM (Circulated by authority of the Attorney-General, the Hon Mark Dreyfus KC MP)Index] [Search] [Download] [Bill] [Help]CRIMES AND OTHER LEGISLATION AMENDMENT (OMNIBUS) BILL 2023 The purpose of this addendum is to provide additional clarifying material to the Explanatory Memorandum for the Crimes and Other Legislation Amendment (Omnibus) Bill 2023 (the Bill). The addendum addresses comments made by the Parliamentary Joint Committee on Human Rights (PJCHR) in its Report 6 of 2023 in relation to Schedule 9 of the Bill (Witness Protection). The addendum also responds to comments in relation to Schedule 6 of the Bill (International Transfer of Prisoners Act 1997) made by the Senate Standing Committee for the Scrutiny of Bills in Scrutiny Digest No. 5 of 2023 and Scrutiny Digest No. 6 of 2023 and the Senate Legal and Constitutional Affairs Legislation Committee's Inquiry Report Crimes and Other Legislation Amendment (Omnibus) Bill 2023. STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS The right to security of the person and freedom from arbitrary detention Schedule 9: Witness Protection 1. After paragraph 69 of the Statement of Compatibility with Human Rights, insert the following new paragraphs: 69A. Any activities that restrict or impede the AFP's ability to control or intervene in a situation could limit the AFP's ability to provide adequate protection or assistance to a participant in the NWPP. For example, in instances where a participant does, or intends to do, something that may place them outside the jurisdiction of the AFP. 69B. The amendments provide greater flexibility by creating an option to temporarily suspend protection and assistance in certain circumstances, and generally for a short period of time. This would avoid having to permanently terminate a person's participation in the NWPP, which is the only option currently available to the AFP. 2. This additional material provides further clarification as to the intended purpose of new sections 17A and 17B by emphasising that, in these circumstances, the AFP will not be required to provide protection and assistance functions under the Witness Protection Act during the suspension period. 3. Omit paragraphs 70, 71 and 72 of the Statement of Compatibility with Human Rights and insert the following new paragraphs: 70. The objective of these amendments is to allow the Commissioner or their delegate to suspend the provision of protection and assistance to a participant if the participant requests this in writing (new section 17A) or if the relevant decision maker determines that the participant does, or intends to do, something that would limit the AFP's ability to provide adequate protection 2
and assistance (new section 17B). New subsections 24(4) and 24(5) allow the Commissioner to delegate their powers to suspend protection and assistance to an Assistant Commissioner. An Assistant Commissioner may further delegate these powers to a Commander or Superintendent, who may only exercise these powers in serious and urgent circumstances. 71. Enabling the AFP to temporarily suspend the provision of protection and assistance under new sections 17A and 17B provides an alternative solution to the current process of terminating a person's participation in the NWPP in circumstances where the AFP may be unable to provide adequate protection and assistance. Temporarily suspending protection and assistance is significantly less restrictive, as it allows protection and assistance to be reinstated as soon as the circumstances limiting the AFP's ability to provide this protection and assistance are resolved. 72. The amendments therefore provide greater flexibility for participants, who will not need to have their participation terminated and re-apply in these circumstances. This minimises the risk a participant may otherwise be exposed to while awaiting re-entry into the program following a termination. 4. These new paragraphs provide additional clarity as to the purpose of the proposed suspension provisions and highlight the benefits to this approach, including increased flexibility for the AFP and participants of the NWPP. The new provisions benefit both the AFP and participants of the NWPP as they ensure protection and assistance can be immediately reinstated once the applicable circumstances limiting the AFP's ability to provide this protection and are resolved. 5. After paragraph 72 of the Statement of Compatibility with Human Rights, insert the following new paragraphs: 72A. Extending the ability to suspend protection and assistance to cover possible future actions of participants ensures that, in the event the AFP is aware that the participant intends to do something that may limit the AFP's ability to provide adequate protection and assistance, the AFP is able to take steps to respond to the emerging circumstances. For example, in cases where the AFP becomes aware that a participant intends to put themselves outside the AFP's jurisdiction. In these circumstances, the Commissioner may decide to temporarily suspend the participant's protection and assistance for the period of time that the AFP may be unable to provide protection and assistance. This allows the decision maker to respond appropriately to operational circumstances that may warrant either an immediate or delayed commencement of the suspension of protection and assistance. 72B. It is necessary to provide for the temporary suspension of protection and assistance if a participant does, or intends to, take action that would limit (rather than 'significantly limit') the AFP's ability to provide protection and assistance. This is because, whilst voluntary, participation in the NWPP is undertaken to provide protection and assistance to witnesses who are identified as having a significant level of threat to their safety. Therefore, any limitation of the AFP's ability to provide protection and assistance is significant, as it 3
could have serious consequences (for example, result in death or serious injury to the participant). 6. New paragraph 72A provides further clarity as to why it is necessary for the suspension provisions to extend to cover possible future actions of participants. This additional material provides further context to the circumstances in which the AFP would temporarily suspend the protection and assistance of a participant in relation to future actions. 7. New paragraph 72B provides further clarity as to why the threshold currently proposed in the Bill for invoking a suspension provision is appropriate. 8. After paragraph 74 of the Statement of Compatibility with Human Rights, insert the following new sub-point: • New subsection 17B(3) requires that the duration of a suspension must be reasonable in all circumstances and the decision may be revoked if the Commissioner is satisfied that paragraph 17B(1)(a) or (b) no longer applies. It is anticipated that the majority of suspensions under proposed sections 17A and 17B will be for short periods of time and will depend on the circumstances of each case. Once the reason for suspension has ceased, these provisions would support the rapid reinstatement of protection and assistance for that participant. 9. This additional sub-point highlights a safeguard in the provisions which ensures the amendment is proportionate, reasonable and necessary to address a participant's right to security. Whilst the suspension of protection and assistance is necessary in certain situations, new subsection 17B(3) allows protection and assistance to be quickly reinstated once the impediment to providing protection and assistance no longer exists. 10. The insertion of this additional material in the Statement of Compatibility with Human Rights addresses comments made by the PJCHR in Report 6 of 2023 relating to Schedule 9 of the Bill. 4
NOTES ON CLAUSES Schedule 6 - International Transfer of Prisoners Act 1997 Item 1 - After paragraph 172 1. After paragraph 172 of the Explanatory Memorandum, insert the following new paragraphs: 172A. There are a range of mandatory threshold conditions under the ITP Act which must be satisfied before the Attorney-General can decide whether or not to consent to a transfer from Australia. These include that: • the prisoner is eligible for transfer from Australia (in broad terms, that the person is a national or has community ties with the country they are transferring to) (paragraph 10(a) and section 12) • the relevant transfer conditions are satisfied (which includes that the sentence not be subject to appeal, that dual criminality is satisfied and that there is at least 6 months remaining to be served on the sentence) (paragraph 10(e) and subsection 14(1)), and • the transfer of the prisoner is not likely to prevent the prisoner's surrender to an extradition country (paragraph 10(f)). 172B. The Attorney-General has a residual broad discretion to refuse consent to a transfer from Australia, which may be exercised once these threshold conditions and other requirements under the ITP Act and relevant treaty are satisfied. 172C. In making decisions under new subsection 19(1), the Attorney-General would continue to consider the requirements set out in the ITP Act, the relevant treaty, the circumstances of the case, the ITP Statement of Policy, and any other relevant information. 172D. As outlined above, the amendments maintain the core procedural fairness protections available throughout the ITP process. The prisoner will continue to have the opportunity to make representations to the Attorney-General when making their application, including on matters which the Attorney-General may consider when deciding whether to provide or refuse consent to a transfer. This includes in relation to any matters listed in the ITP Statement of Policy, which is publicly available on the Attorney-General's Department's website and is provided to the prisoner at the time their application is received. 2. This additional material provides further detail on the matters in the ITP Act which constrain the Attorney-General's discretion to refuse a decision to transfer a prisoner from Australia. This responds to the Senate Standing Committee for the Scrutiny of Bills' request for further information on the Bill in Scrutiny Digest No. 5 of 2023. The additional material is drawn from the Attorney-General's response to the Chair of the Committee. 5
Item 2 - After paragraph 181 3. After paragraph 181 of the Explanatory Memorandum, insert the following new paragraph: 181A. Independent merits review is not available for decisions made under new subsection 19(1) to refuse consent to a transfer of a prisoner from Australia. This is consistent with other decisions under the ITP Act to provide or refuse consent for transfers to or from Australia. 4. This additional material confirms that merits review is not available for decisions made under new subsection 19(1). This material responds to a request of the Senate Standing Committee for the Scrutiny of Bills in Scrutiny Digest No. 6 of 2023, at paragraph 2.84. Item 3 - After paragraph 203 5. After paragraph 203 of the Explanatory Memorandum, insert the following new paragraphs: 203A. As for transfers from Australia, there are a range of mandatory threshold conditions under the ITP Act which must be satisfied before the Attorney- General can decide whether or not to consent to a transfer to Australia. These include that: • the prisoner is eligible for transfer to Australia (in broad terms, that the person is an Australian citizen or is permitted to travel to, enter and remain in Australia indefinitely pursuant to the Migration Act 1958 and has community ties with a State or a Territory (paragraph 10(a) and section 13) • the relevant transfer conditions are satisfied (which includes that the sentence not be subject to appeal, that dual criminality is satisfied and that there is at least 6 months remaining to be served on the sentence) (paragraph 10(e) and subsection 15(1)), and • the transfer of the prisoner is not likely to prevent the prisoner's surrender to an extradition country (paragraph 10(f)). 203B. The Attorney-General has a residual broad discretion to refuse consent to a transfer to Australia, which may be exercised once these threshold conditions and other requirements under the ITP Act and relevant treaty are satisfied. 203C. In making decisions under new subsection 24A(1), the Attorney-General would continue to consider the requirements set out in the ITP Act, the relevant treaty, the circumstances of the case, the ITP Statement of Policy, and any other relevant information. 6. This additional material provides further detail on the matters in the ITP Act which constrain the Attorney-General's discretion to refuse a decision to transfer a prisoner to Australia. This material is provided for completeness, noting the related request of the 6
Senate Standing Committee for the Scrutiny of Bills for further information in relation to decisions in relation to transfers from Australia, discussed at item 1 above. Item 4 - After paragraph 208 7. After paragraph 208 of the Explanatory Memorandum, insert the following new paragraph: 208A. Independent merits review is not available for decisions made under new section 24A to refuse consent to a transfer of a prisoner from Australia. This is consistent with other decisions under the ITP Act to provide or refuse consent for transfers to or from Australia. 8. This additional material confirms that merits review is not available for decisions made under new section 24A. This material responds to a request of the Senate Standing Committee for the Scrutiny of Bills in Scrutiny Digest No. 6 of 2023, at paragraph 2.84. Schedule 9 - Witness Protection Item 4 - After section 17 9. At the end of paragraph 254 of the Explanatory Memorandum, omit "." and replace with "and potentially exposes the participant to additional unnecessary risk." 10. By noting one of the most significant disadvantages of the current process, this additional material highlights the intended purpose of the provisions in that it is to provide an alternative that reduces the risk to a participant. 11. At the end of paragraph 257 of the Explanatory Memorandum, insert the following new sentence: This supports the rapid reinstatement of the provision of protection and assistance to a participant. 12. This additional material provides clarity on the intended purpose of new subsection 17A(1), in that protection and assistance can be quickly reinstated after the specified period has ended. 13. After paragraph 265 of the Explanatory Memorandum, insert the following new paragraph: 265A. Whilst voluntary, participation in the NWPP is undertaken to provide protection and assistance to witnesses who are identified as having a significant level of threat to their safety. Any restrictions placed on participants are to protect their health, safety and wellbeing. As such, any limitation of the AFP's ability to provide protection and assistance is significant as it could have serious consequences (for example, result in death or serious injury to the participant). 14. This additional material provides clarity and rationale as to why the threshold currently proposed in the Bill for invoking a suspension provision is appropriate in relation to new subsection 17B(1). 7
15. After paragraph 267 of the Explanatory Memorandum, insert the following new paragraph: 267A. Extending the ability to suspend protection and assistance to cover possible future actions of participants ensures that, in the event the AFP is aware that the participant intends to do something that may limit the AFP's ability to provide adequate protection and assistance, the AFP is able to take steps to respond to the emerging circumstances. For example, in cases where the AFP becomes aware that a participant intends to put themselves outside the AFP's jurisdiction. In these circumstances, the Commissioner may decide to temporarily suspend the participant's protection and assistance for the period of time that the AFP may be unable to provide protection and assistance. 16. This additional material provides further clarity as to why it is necessary that the suspension provisions are extended to cover possible future actions of participants. This additional material provides further context to the circumstances in which the AFP would temporarily suspend the protection and assistance of a participant in relation to future actions. 17. At the end of paragraph 269 of the Explanatory Memorandum, insert the following sentence: Once the reason for suspension has ceased, new subsection 17B(3) supports the rapid reinstatement of protection and assistance for a participant. 18. This additional material provides clarity on the intended purpose of new subsection 17B(3), in that protection and assistance can be quickly reinstated after the reason for the suspension has ceased to apply. 19. At the beginning of paragraph 270 of the Explanatory Memorandum, omit "this" and replace with "New subsection 17B(3) further". This amendment accommodates for the insertion of new material to paragraph 269. 20. At the end of paragraph 270 of the Explanatory Memorandum, insert the following: Noting the discretionary nature of the NWPP, and in order to provide sufficient flexibility which enables the Commissioner to take into account the circumstances of each case, it is appropriate that subsection 17B(3) provides that the Commissioner 'may' revoke a suspension, rather than 'must'. 21. This additional material clarifies why it is appropriate for the Commissioner to retain discretion with respect to decisions under subsection 17B(3) to revoke a suspension of protection and assistance. 22. The insertion of this additional material in the Explanatory Memorandum addresses comments made by the PJCHR in Report 6 of 2023 relating to Schedule 9 of the Bill. 23. In paragraph 283 of the Explanatory Memorandum, between the words "under" and "subsections", insert "existing". 24. This amendment corrects a minor drafting error in the Explanatory Memorandum by inserting the correct word. 8