Commonwealth of Australia Explanatory Memoranda

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

                                    2016 - 2017




      THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA




                        HOUSE OF REPRESENTATIVES




CRIMES LEGISLATION AMENDMENT (POWERS, OFFENCES AND OTHER
                    MEASURES) BILL 2017




           ADDENDUM TO THE EXPLANATORY MEMORANDUM




  (Circulated by authority of the Minister for Justice, the Hon Michael Keenan MP)
  CRIMES LEGISLATION AMENDMENT (POWERS, OFFENCES AND OTHER
                      MEASURES) BILL 2017

NOTES ON CLAUSES

Schedule 3--Amendments to the controlled operation disclosure offence provisions in
the Crimes Act 1914

On page 34, after the sentence: 'A person is reckless with respect to whether the information
disclosed relates to a controlled operation if he or she is aware of a substantial risk that the
information relates to a controlled operation and, having regard to the circumstances known
to him or her, it is unjustifiable to take that risk', insert:

1.     The new offences under section 15HK apply only to disclosure of details relating to a
controlled operation authorised and conducted under the Crimes Act (a Commonwealth
controlled operation). The offences do not capture disclosure of details relating to a
controlled operation authorised and conducted under state and territory legislation - this
includes both a 'cross-border controlled operation' (that is, a controlled operation that
traverses state and territory boundaries) and a 'local controlled operation' (that is, a
controlled operation conducted solely within the border of one state or territory). Disclosure
of details relating to state and territory controlled operations (both cross-border and local)
will remain subject to the disclosure offences within relevant state or territory legislation.

2.      Similarly, the new offences under section 15HK are intended to be the only offences
applicable to the disclosure of information relating to a Commonwealth controlled operation.
It is not intended that a person would be able to be prosecuted under a state or territory
offence for disclosure of information that relates to a Commonwealth controlled operation.

3.     To this end, new section 15HK is intended to cover the field, and to operate to the
exclusion of any state and territory laws that might purport to capture, within relevant
offence provisions, disclosure of details relating to a Commonwealth controlled operation in
circumstances where the conduct would not be unlawful under Commonwealth law. It is
considered that such a state or territory law would be inconsistent with section 15HK by
virtue of section 109, or section 122, of the Constitution, and would be incapable of
operating concurrently with the Commonwealth provision. Such a law would therefore be
outside of the scope of section 15GB of the Crimes Act, which provides that Part IAB is not
intended to apply to the exclusion of a state or territory law that is capable of operating
concurrently.

4.     For example, should a disclosure offence contained in state or territory legislation
purport to capture the conduct of an 'outsider' who would otherwise be protected under the
Crimes Act by virtue of the new offence regimes under section 15HK, that law would be
inconsistent with section 15HK and its concurrent operation would therefore be excluded by
virtue of section 109, or section 122, of the Constitution.




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