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




    FURTHER ADDENDUM TO THE EXPLANATORY MEMORANDUM




                    (Circulated by authority of the
            Attorney-General, the Hon Christian Porter MP)
CRIMES LEGISLATION AMENDMENT (POWERS, OFFENCES AND OTHER
MEASURES) BILL 2017

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Schedule 1 -Amendment of the Australian Federal Police Act 1979
On page 8, after paragraph 19, insert a new subheading:
Right to privacy
On page 8, delete paragraph 23 and in its place, insert the following new paragraphs:
"The amendments in Schedule 1 do not override the Privacy Act 1988 (Privacy Act). To the
extent that any new function will enable the disclosure of personal information with
international organisations and non-government organisations, the Privacy Act, the AFP Act
and AFP policy provide effective and adequate safeguards to protect the right to privacy.
The AFP is bound by the Australian Privacy Principles (APPs) which are contained in
Schedule 1 of the Privacy Act. The APPs govern the way the AFP collects, uses, discloses
and stores personal information. The APPs apply irrespective of whether the AFP is
cooperating with a domestic or international body.
The APPs contain some exceptions allowing the use and disclosure of personal information
for a purpose other than the primary purpose for which it was collected. One such exception
is where the use or disclosure of personal information is reasonably necessary for
enforcement related activity conducted by, or on behalf of, an enforcement body.
'Enforcement related activity' is defined broadly and includes prevention, detection,
investigation, prosecution or punishment of criminal offences. 'Enforcement body' includes
the AFP together with a number of other domestic agencies.
The use or disclosure of personal information pursuant to the amendments in Schedule 1
may, in some circumstances, qualify under this exception. That is, where the use or disclosure
of personal information with respect to the international organisation or non-government
organisation is reasonably necessary for enforcement related activity conducted by, or on
behalf of, an enforcement body as defined by the Privacy Act. In most cases, however, the
provision of information will not involve personal information or relate to any particular
investigation.
In all cases involving the use or disclosure of personal information, AFP appointees must
consider whether the Privacy Act permits use or disclosure of the personal information. In
relation to information disclosure, AFP appointees are also bound by the secrecy provision in
section 60A of the AFP Act and must consider whether the release of information is
consistent with AFP functions. Each disclosure must be considered on a case-by-case basis.
The AFP's National Guideline on Privacy also outlines AFP appointees' obligations under
the Privacy Act and all AFP appointees are required to be familiar with and comply with the
Guideline.
Right to life and prohibition on torture, cruel, inhuman and degrading treatment or
punishment
Information and intelligence sharing with international organisations and non-government
organisations for the purposes of the amendments contained in Schedule 1 will often not
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relate to any particular individual under investigation, and therefore will not raise death
penalty or torture, cruel, inhuman or degrading treatment or punishment (TCIDTP)
implications.
Where information provided to an international organisation or a non-government
organisation has potential death penalty or TCIDTP implications, the AFP will apply the
National Guideline on Death Penalty or the National Guideline on TCIDTP. For example,
this might arise when providing information to a law enforcement agency in a country that
has not abolished the death penalty or where TCIDTP concerns exist. The AFP regularly
reviews these guidelines to ensure they are appropriate and fit for purpose.
The AFP applies the National Guideline on Death Penalty and the National Guideline on
TCIDTP to relevant information disclosures it makes to international organisations. The AFP
will continue to treat any disclosures of information that may involve the death penalty or
TCIDTP implications with the same process as it would for the exchange of information
under its existing functions.
National Guideline on Death Penalty
All AFP appointees are required to comply with the National Guideline on Death Penalty.
Inappropriate departures from the National Guideline may constitute a breach of AFP
professional standards and be dealt with under Part V of the AFP Act.
Under the National Guideline on Death Penalty, the AFP is required to consider relevant
factors before providing information to foreign law enforcement agencies if it is aware the
provision of information is likely to result in the prosecution of an identified person for an
offence carrying the death penalty. Ministerial approval is required for any case in which a
person has been arrested or detained for, charged with, or convicted of an offence which
carries the death penalty.
National Guideline on TCIDTP
The National Guideline on TCIDTP outlines the obligations for AFP appointees where a
person is in danger of being subjected to TCIDTP. All AFP appointees are required to
comply with the National Guideline on TCIDTP. Inappropriate departures may constitute a
breach of AFP professional standards and be dealt with under Part V of the AFP Act.
The National Guideline on TCIDTP provides a list of mandatory considerations before
information can be disclosed to foreign authorities in situations where there are substantial
grounds for believing a person that is detained would be in danger of being subjected to
TCIDTP. It also sets out a formal approval process for the release of such information. The
information, if provided, must include a caveat to protect against unintended use of the
information, and on-disclosure to third parties."




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