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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)
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
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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
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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.
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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.
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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
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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).
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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.
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