Commonwealth of Australia Explanatory Memoranda

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

                          2016 - 2017 - 2018




     THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA




                   HOUSE OF REPRESENTATIVES




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




        SUPPLEMENTARY EXPLANATORY MEMORANDUM


          Amendments to be Moved on Behalf of the Government




                     (Circulated by authority of the
             Attorney-General, the Hon Christian Porter MP)

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


(Government)


GENERAL OUTLINE

   1. The purpose of these amendments to Schedule 2 of the Crimes Legislation
      Amendment (Powers, Offences and Other Measures) Bill 2017 (the Bill) is to remove
      the obligation (currently proposed by the Bill) on investigating officials to take
      "reasonable steps" to notify an Aboriginal legal assistance organisation that an
      Aboriginal person or Torres Strait Islander is intended to be questioned by the
      investigating official.

FINANCIAL IMPACT

   2. The amendments will have no financial impact on Government revenue.




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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017

   3. The amendments to Schedule 2 of the Bill are compatible with the human rights and
      freedoms recognised or declared in the international instruments listed in section 3 of
      the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

   4. The purpose of the amendments to Schedule 2 of the Bill is to remove the obligation
      (currently proposed by the Bill) on investigating officials to take "reasonable steps" to
      notify an Aboriginal legal assistance organisation that an Aboriginal person or Torres
      Strait Islander is intended to be questioned by the investigating official.

Human rights implications

   5. The amendments do not engage any of the applicable rights or freedoms.

Conclusion

   6. The amendments are compatible with human rights as they do not raise any human
      rights issues.




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NOTES ON CLAUSES

Crimes Act 1914

Amendment 1: Schedule 2, Item 4, page 4 (lines 15 to 22)

   7. Item 4 has the effect of removing the words "immediately" from paragraph 23H(1)(a)
       and "accordingly" from paragraph 23H(1)(b) of the Crimes Act 1914, given the
       amendments contained in Item 3 of the Bill that clarify that both of the obligations
       applicable to an investigating official (that is, to inform an Aboriginal person or
       Torres Strait Islander that an Aboriginal legal assistance organisation will be notified,
       and then notify such an organisation), must occur before starting to question the
       person. The amendments in Item 3 render the terms "immediately" and "accordingly"
       unnecessary.
   8. Item 4 also inserts into paragraph 23H(1)(b) the same wording from paragraph
       23H(1)(a) about notifying an Aboriginal legal assistance organisation that a person is
       under arrest or a protected suspect (as the case requires) in order to clarify that the
       obligation is to notify such an organisation of that fact and not to notify them
       generally, for example.
   9. Item 4 also has the effect of replacing the term "Aboriginal legal aid organisation"
       currently in the Crimes Act 1914 with the term "Aboriginal legal assistance
       organisation", reflecting the updated terminology and definition contained in Item 2
       of the Bill.
   10. Item 4 will also insert a requirement that an investigating official must notify an
       Aboriginal legal assistance organisation within the State or Territory where the person the
       official intends to question is located. This is intended to ensure that an organisation in
       the relevant jurisdiction is notified.

Amendment 2: Schedule 2, Item 15, page 6 (lines 13 to 19)

   11. Item 15 has the effect of removing the word "accordingly" from paragraph
       23WG(4)(b) of the Crimes Act 1914, to achieve consistency with the amendments to
       paragraph 23H(1)(b) contained in Item 4. Existing subsection 23WG(4) makes it clear
       that an investigating official must discharge the obligations in that subsection prior to
       asking for an Aboriginal person or Torres Strait Islander's consent to a forensic
       procedure.
   12. Item 15 also inserts into paragraph 23WG(4)(b) the same wording from paragraph
       23WG(4)(a) about notifying an Aboriginal legal assistance organisation that a person
       is to be asked to consent to a forensic procedure in order to clarify that the obligation
       is to notify such an organisation of that fact and not to notify them generally, for
       example.
   13. Item 15 also has the effect of replacing the term "Aboriginal legal aid organisation"
       currently in the Crimes Act 1914 with the term "Aboriginal legal assistance
       organisation", reflecting the updated terminology and definition contained in Item 2
       of the Bill.




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