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Australian Parliamentary Joint Committee on Human Rights |
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Purpose
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This bill seeks to amend the Crimes Act 1914 (the Crimes Act), the
Criminal Code Act 1995 (the Criminal Code), the COAG Reform
Fund Act 2008 and the Proceeds of Crime Act 2002 (the POC Act)
to:
• update Commonwealth money laundering offences;
• clarify that obligations imposed on investigating officials under
Part IC of the Crimes Act do not apply to undercover operatives;
• amend the POC Act to ensure that criminal entities are not afforded
an opportunity to buy back forfeited property;
• clarify the definition of the term 'benefit' under the POC
Act;
• clarify that orders made by a court with proceeds jurisdiction
under the POC Act can be made in respect of property located
overseas;
• increase penalties for non-compliance and clarify the circumstances
in which information can be disclosed and used;
• expand the Official Trustee in Bankruptcy’s powers to deal
with property, gather information and recover costs under
the POC Act
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Portfolio
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Home Affairs
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Introduced
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House of Representatives, 2 September 2020
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Rights
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Fair trial; rights of the child; life; torture or cruel, inhuman and
degrading treatment or punishment
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Status
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Seeking additional information
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2.83 The committee requested a response from the minister in relation to the bill in Report 11 of 2020.[2]
2.84 The bill seeks to amend the Criminal Code Act 1995 (Criminal Code) to introduce two new offences where a person deals with money or other property and 'it is reasonable to suspect that the money or property is proceeds of indictable crime', and the value of the money or property is either $10 million or more, or $1 million or more.[3] The penalty for the offences would be imprisonment for up to five years or 300 penalty units (where the value is $10 million or more), or imprisonment for up to four years or 240 penalty units (where the value is $1 million or more).
2.85 Absolute liability would apply to whether it is reasonable to suspect that the money or property is proceeds of indictable crime and to the value of the money or property.[4] As such, this negates the requirement for the prosecution to prove fault in relation to these matters.[5] These offences are proposed to be inserted into existing section 400.9 of the Criminal Code, which includes a provision that states that the offences in the section do not apply if the defendant proves that he or she had no reasonable grounds for suspecting that the money or property was derived or realised, directly or indirectly, from some form of unlawful activity.[6] As such, this reverses the legal burden of proof, requiring the defendant to prove, on the balance of probabilities, that they had no reasonable grounds to suspect these matters.[7]
2.86 By removing the need for the prosecution to prove that the defendant suspected that the money or property was proceeds of indictable crime, and in providing a defence that reverses the legal burden of proof, this measure engages and limits the right to a fair trial, in particular the right to be presumed innocent until proven guilty.[8] Generally, the presumption of innocence requires the prosecution to prove each element of a criminal offence beyond reasonable doubt. The effect of applying absolute liability to an element of an offence means that no fault element needs to be proved and the defence of mistake of fact is not available. In addition, an offence provision which requires the defendant to carry a legal burden of proof with regard to the existence of some fact will engage the presumption of innocence because a defendant's failure to discharge the burden of proof may permit their conviction despite reasonable doubt as to their guilt. The application of absolute liability and the reversal of the burden of proof will not necessarily be inconsistent with the presumption of innocence provided that they are within reasonable limits which take into account the importance of the objective being sought and maintain the defendant's right to a defence. In other words, such provisions must be reasonable, necessary and proportionate to the aim being pursued.
2.87 Further information is required in order to assess the compatibility of this measure with the right to the presumption of innocence, in particular:
(a) why is it necessary to completely remove the need for the prosecution to prove that the defendant suspected that the money or property was the proceeds of indictable crime (noting that the threshold is only suspicion rather than knowledge); and
(b) why is it necessary to reverse the legal burden of proof (requiring the defendant to positively prove that they had no reasonable grounds for suspecting unlawful activity), rather than reversing the evidential burden of proof (which would require the defendant to raise evidence about the matter).
2.88 The committee noted that these measures engage and limit the right to be presumed innocent until proven guilty. This right may be permissibly limited if it is shown to be reasonable, necessary and proportionate. The committee noted that these measures seek to achieve the legitimate objective of protecting public order and ensuring that the multiple layers of organised crime networks can be brought to justice.
2.89 In order to form a concluded view of the human rights implications of this measure, the committee sought the minister's advice as to the matters set out at paragraph [2.87].
2.90 The full initial analysis is set out in Report 11 of 2020.
2.91 The minister advised:
The proposed offences under section 400.9 of the Criminal Code follow the same structure as existing offences under this section, and only relate to higher values of property (valued at $1,000,000 or more and $10,000,000 or more respectively).
No need to prove that the defendant actually held a reasonable suspicion
The new offences place a burden on the prosecution to prove beyond reasonable doubt that the defendant dealt with money or other property and that it was reasonable to suspect that the property (including money) was proceeds of indictable crime. This may be satisfied where circumstances exist that would create a reasonable suspicion in the trier of fact that the property was derived from a particular indictable offence or a kind of indictable offence (for example, tax evasion).
The prosecution is not required to also prove that the defendant knew or subjectively suspected that the property was proceeds of an indictable crime. If the defendant had no knowledge of circumstances that would give rise to a reasonable suspicion that the property was derived or realised from some form of unlawful activity, they may rely on the defence at subsection 400.9(5) to avoid criminal liability.
Framing the offences with reference to an objective test that it was 'reasonable to suspect' that property was proceeds of indictable crime, rather than requiring proof of the defendant's subjective knowledge or suspicion, is necessary and appropriate to deal with the activities of money laundering networks.
These networks operate in ways which seek to insulate operatives from information as to the true origins of the property to be laundered. Through engaging in this information compartmentalisation, networks can ensure that participants do not subjectively suspect that property was derived from a particular kind of offence, even if they suspect that it was derived from offending generally.
For example, a person may be asked to deliver $1 million in cash to a third party in an abandoned car park whilst using encrypted communications to contact his instructor and also using tokens to identify himself to the third party. In these circumstances, the defendant may have reasonable grounds to suspect that the property was derived from some form of unlawful activity but is not given enough information by his instructor to suspect that it came from a specific kind of indictable offence.
Unknown to the defendant, the money came from a drug cartel and was likely derived from drug trafficking offences. Criminal liability could be established under the proposed offence provisions as the trier of fact could find that it was objectively reasonable to suspect that the money came from drug trafficking. The defendant would be unable to rely on the defence under subsection 400.9(5) as, on the information known to him, he had reasonable grounds to suspect that the cash was derived from some form of unlawful activity.
Reversing the legal (not evidential) burden of proof
The defence at subsection 400.9(5) imposes a legal burden of proof on the defendant, requiring them to establish, on the balance of probabilities, that they had no reasonable grounds for suspecting that money or property was derived or realised , directly or indirectly, from some form of unlawful activity. A legal burden of proof is higher than an evidential burden, which requires a defendant to merely adduce or point to evidence that suggests a reasonable possibility that a particular matter exists or does not exist.
It is necessary to impose a legal rather than evidential burden on the defendant here to ensure that the offences can pierce the 'veil of legitimacy' that money laundering networks frequently use to disguise their activities.
These networks often exploit seemingly legitimate front companies; complex financial, legal and administrative arrangements; real estate and other high-value assets; gambling activities; and a range of formal and informal nominee arrangements to conceal proceeds of crime and obscure beneficial ownership. This layering activity generates a paper trail that can be used to establish a 'reasonable possibility' of legitimacy that, in many cases, would be sufficient to meet an evidential burden under subsection 400.9(5) and thereby allow these networks to avoid criminal liability.
An evidential burden may be met by pointing to evidence, even slender evidence, adduced as part of the prosecution case. Hence a defendant could discharge an evidential burden by pointing to an answer provided in a police record of interview which suggested that the money or other property was derived from a legitimate business activity. By imposing a legal burden of proof on the defendant, the offences will ensure that courts look beyond this 'reasonable possibility' to properly examine the genesis and operation of structures used to legitimise transactions, reducing the effectiveness of layering activity.
2.92 The minister has advised that framing these offences with reference to an objective test, rather than requiring proof of the defendant's knowledge or suspicion, is necessary and appropriate to deal with the activities of money laundering networks, which operate in a way which seeks to insulate operatives from information as to the true origins of the property to be laundered. Thus, operatives may suspect the property was derived from offending generally, but not that it was derived from a particular kind of indictable offence. The minister has also advised that it is necessary that the defence carry a legal rather than an evidential burden because money laundering networks frequently establish a paper trail that could be used to establish a 'reasonable possibility' of legitimacy, which in many cases would be sufficient to meet an evidential burden. By imposing a legal burden of proof on the defendant this will ensure the courts can look beyond this 'reasonable possibility' to properly examine the genesis and operation of structures used to legitimise transactions.
2.93 Dealing with the activities of money laundering networks would appear to constitute a legitimate objective for the purposes of international human rights law, and the application of absolute liability and the reversal of the legal burden of proof would appear to be rationally connected to that objective. In terms of proportionality, the minister's response appears to have demonstrated that there may be no less rights restrictive option available (in the form of an evidential, rather than a legal, burden of proof), and the availability of the defence, albeit with the imposition of a legal burden of proof, would assist with the proportionality of the measure. It is also noted that the defence of mental impairment in relation to the carrying out of the conduct that constituted the offence would also appear to be available.[10] As such, while the measure limits the right to be presumed innocent, on the basis of the information provided, it would appear that this may constitute a permissible limit on this right.
2.94 The committee thanks the minister for this response. The committee notes that this measure would introduce two offences where a person deals with money or other property and 'it is reasonable to suspect that the money or property is proceeds of indictable crime', and the value of the money or property is either $10 million or more, or $1 million or more. The provisions would provide that the prosecution would not need to prove that the person reasonably suspected that the money or property was the proceeds of indictable crime, only that it is objectively reasonable that a person would have suspected this. In addition, the legal burden would be on the defendant to prove that they had no reasonable grounds for suspecting the money or property was derived or realised from some form of unlawful activity.
2.95 The committee notes the minister's advice that these measures seek to deal with the activities of money laundering networks, which often create layers of activities, making it difficult to demonstrate that all operatives had knowledge of the specific offence. The committee considers that dealing with the activities of money laundering networks constitutes a legitimate objective for the purposes of international human rights law, and the application of absolute liability and the reversal of the legal burden of proof are rationally connected to that objective. The committee notes the minister's advice that it is necessary to impose a legal rather than an evidential burden because money laundering networks frequently establish a paper trail that could be used to establish a 'reasonable possibility' of legitimacy, which in many cases would be sufficient to meet an evidential burden. On the basis of this information, it would appear that there is no less rights restrictive way to achieve the objective of the measure, and the measure constitutes a permissible limitation on the right to be presumed innocent.
2.96 The committee considers it would be useful if the explanation provided by the minister were included in the statement of compatibility accompanying the bill.
2.97 The committee has concluded its examination of this matter.
2.98 The Crimes Act 1914 (Crimes Act) currently provides that an investigating official must not question a person under arrest, a protected suspect,[11] or a suspect (whether under arrest or not) for a Commonwealth offence where they reasonably believe the person is under 18 years of age, unless they have allowed the person to communicate confidentially with a parent, guardian, lawyer, relative, friend or independent person.[12] The bill seeks to amend provisions in the Crimes Act relating to the investigation of Commonwealth offences and seeks to provide that undercover operatives are exempt from the obligations imposed on investigating officials under Part IC of the Crimes Act, including obligations in relation to child suspects.[13]
2.99 Allowing an undercover operative to question a child suspected of having committed an offence, without first allowing the child to communicate with a parent, guardian or other support person, engages and may limit the rights of the child. Children have special rights under human rights law taking into account their particular vulnerabilities.[14] Children's rights are protected under a number of treaties, particularly the Convention on the Rights of the Child. All children under the age of 18 years are guaranteed these rights, without discrimination on any grounds.[15] Under article 3(1) of the Convention on the Rights of the Child, Australia is required to ensure that, in all actions concerning children, the best interests of the child are a primary consideration. It requires legislative, administrative and judicial bodies and institutions to systematically consider how children's rights and interests are or will be affected directly or indirectly by their decisions and actions.[16] Many of the rights of the child may be subject to permissible limitations where the limitation pursues a legitimate objective, is rationally connected to that objective and is a proportionate means of achieving that objective.
2.100 Further information is required in order to assess the compatibility of this measure with the rights of the child, in particular:
(a) in what circumstances do undercover operatives question child suspects and what safeguards are in place to protect the rights of the child;
(b) in what circumstances is it appropriate that undercover operatives question a child in the absence of a family member or support person (noting that the removal of the obligation to allow a child to contact a family member or support person would apply to a child of any age of criminal responsibility, including those aged 10 years of age); and
(c) whether there is reasoning or evidence to establish that removing the obligation on undercover operatives to allow a child suspect to contact a family member or other support person before being questioned is aimed at achieving a legitimate objective.
2.101 The committee noted that this measure engages and may limit the rights of the child. Most of these rights may be permissibly limited if it is shown to be reasonable, necessary and proportionate.
2.102 In order to form a concluded view of the human rights implications of this measure, the committee sought the minister's advice as to the matters set out at paragraph [2.100].
2.103 The full initial analysis is set out in Report 11 of 2020.
2.104 The minister advised:
The necessity of questioning children (without supervision) in undercover operations
Requiring an undercover operative to only question a child suspect after allowing them to communicate confidentially with an independent person would significantly increase the chance that criminal groups would identify an operative. This would also severely jeopardise operations targeting serious criminal behaviour of individuals under the age of 18 years, including in counter-terrorism operations where suspects have been children in the past. This would effectively mean that undercover operatives could not undertake undercover engagement in some circumstances (regardless of the severity of any suspected criminal conduct). The consequences of this could be severe given undercover operatives can be used in investigations for the most serious Commonwealth offences (for example, terrorism).
Clarifying that this obligation does not apply to undercover operatives is necessary to achieve the legitimate objective of protecting national security and public safety, and ensuring the ability of law enforcement to undertake essential investigative activity, while maintaining the safety of officers.
Safeguards to protect the rights of the child
At all times during the course of covert undercover operations, law enforcement agencies are mindful to conduct themselves to the highest standard, and to comply with their legal obligations.
The inability to afford a child suspect, or person of interest, with an interview friend (for example) is a reflection of the nature of undercover work.
Any interaction an undercover officer has with a child (or any person) in terms of evidence collection will be scrutinised by a Court and determined as to whether such evidence should be admissible or not under well-established rules of evidence. This will take account of factors such as propriety and fairness. This significant external scrutiny also ensures law enforcement agency processes and procedures are robust and fit for purpose.
This measure is a reasonable and proportionate limitation on the rights of the child as:
• law enforcement agencies will continue to conduct themselves to the highest standard when engaging with a child suspect or person of interest in undercover operations;
• the Commonwealth Ombudsman provides independent oversight of the use of powers by law enforcement agencies in investigations into serious Commonwealth offences, including in relation to covert undercover operations which may involve engagement with individuals under the age of 18 years; and
• courts will continue to have discretion to consider whether or not to admit evidence obtained by an undercover officer in these circumstances.
2.105 The minister advised that requiring an undercover operative to only question a child suspect after allowing them to communicate confidentially with an independent person would severely jeopardise operations targeting serious criminal behaviour of individuals under the age of 18 years. The minister has advised that as such this measure seeks to achieve the legitimate objective of protecting national security and public safety, and ensuring the ability of law enforcement to undertake essential investigative activity, while maintaining the safety of officers. These are likely to constitute legitimate objectives for the purposes of international human rights law, and the measure would appear to be rationally connected to these objectives.
2.106 In relation to the proportionality of the measure, and in particular, whether there are safeguards in place to protect the rights of the child, the minister has advised that law enforcement agencies are mindful to conduct themselves to the highest standard, a court would determine if any evidence obtained in this manner is admissible, and the Commonwealth Ombudsman provides independent oversight of the use of powers by law enforcement agencies. While these could potentially operate to safeguard a child's rights, the response has not addressed whether the undercover operatives would have in mind the best interests of the child in determining whether to question a child suspect in the absence of a family member or other support person.
2.107 As noted above, children have special rights under human rights law taking into account their particular vulnerabilities. In relation to children suspected of being involved in criminal offences, both international human rights law and Australian criminal law recognise that children have different levels of emotional, mental and intellectual maturity than adults, and so are less culpable for their actions.[17] No information has been provided as to when it is considered appropriate that undercover operatives question a child in the absence of a family member or support person, rather than determining only to undertake undercover operations involving adults. In addition, no information has been provided as to whether there is any guidance in place that provides that undercover operatives should only question child suspects having regard to the best interests of the child as a primary consideration. In the absence of such safeguards there is a risk that removing the obligation for undercover operatives to allow a child suspect to contact a family member or support person may impermissibly limit the rights of the child.
2.108 The committee thanks the minister for this response. The committee notes that this measure seeks to exempt undercover operatives from the requirement not to question a child under 18 years of age who is under arrest or a suspect for a Commonwealth offence unless they have allowed the person to communicate confidentially with a parent, guardian, lawyer, relative, friend or independent person.
2.109 The committee notes that this measure engages and limits the rights of the child. This right may be permissibly limited if it is shown to be reasonable, necessary and proportionate. The committee considers that this measure seeks to achieve the legitimate objective of protecting national security and public safety, and ensuring the ability of law enforcement to undertake essential investigative activity, while maintaining the safety of officers, noting that requiring an undercover operative to question a child suspect only after allowing them to communicate with an independent person would severely jeopardise operations targeting serious criminal behaviour of children.
2.110 In relation to the proportionality of the measure the committee notes the minister's advice that law enforcement agencies are mindful to conduct themselves to the highest standard; that a court determines if evidence obtained in this manner is admissible; and the Commonwealth Ombudsman provides independent oversight of the use of these powers. The committee considers these may operate as important safeguards. However, as there is no requirement that undercover operatives consider the best interests of the child when conducting undercover operations, there is some risk that this may impermissibly limit the rights of the child.
2.111 The committee considers that the proportionality of this measure would be assisted were the bill amended to provide that the minister should consider, by legislative instrument, issuing guidelines setting out when it is appropriate for a child suspect to be interviewed by undercover operatives, taking into account the rights of the child, in particular the obligation to consider the best interests of the child as a primary consideration.
2.112 The committee draws these human rights concerns to the attention of the minister and the Parliament.
2.113 The bill seeks to amend various definitions in the Proceeds of Crime Act 2002 (Proceeds of Crime Act), which would have the effect of expanding the application of the Act. In establishing a scheme to confiscate the proceeds of crime, the Proceeds of Crime Act sets out a number of processes relating to the confiscation of property, many of which relate to whether a person has, or is suspected of having, committed a 'serious offence'. If a person is reasonably suspected of committing a 'serious offence', a court is able to make a restraining order against property under a person's effective control and to forfeit this property unless the person can establish that, on the balance of probabilities, it was not derived from unlawful activity.[18] In addition, if a person is convicted of a serious offence, all property subject to a restraining order will automatically forfeit six months after the date of conviction unless the person can prove it was not the proceeds of unlawful activity or an instrument of a serious offence.[19]
2.114 What constitutes a 'serious offence' is defined to include offences subject to a certain period of imprisonment involving unlawful conduct that causes a 'benefit' to a person of a certain value.[20] What constitutes a 'benefit' includes a service or advantage.[21] Schedule 4 of the bill seeks to amend the Act to provide that an 'advantage' includes a 'financial advantage', which includes 'the avoidance, deferral or reduction of a debt, loss or liability'.[22] The bill seeks to make these changes retrospectively, such that a benefit derived by a person at any time prior to the commencement of these provisions would be subject to this revised definition.[23]
2.115 In addition, the bill[24] seeks to amend the definition of 'serious offence' to include offences of failing to comply with coercive information-gathering powers under the Proceeds of Crime Act, such as failure to attend an examination, offences relating to appearance at an examination and offences of giving false or misleading answers or documents.[25] As such, a failure to comply with the information gathering powers could, itself, lead to a person being subject to the enhanced restraint and confiscation powers in the Proceeds of Crime Act.
2.116 The expansion of the Proceeds of Crime Act to cover additional conduct and offences, may engage and limit the right to a fair trial and fair hearing.[26] These rights are concerned with procedural fairness, and encompass notions of equality in proceedings, the right to a public hearing and the requirement that hearings are conducted by an independent and impartial body. The committee has previously raised concerns that the underlying regime established by the Proceeds of Crime Act for the freezing, restraint or forfeiture of property may be considered 'criminal' for the purposes of international human rights law.[27] Specific guarantees of the right to a fair trial in relation to a criminal charge include the presumption of innocence,[28] the right not to incriminate oneself,[29] and the guarantee against retrospective criminal laws.[30]
2.117 In particular, the amendments to the definition of what constitutes a 'benefit' would apply retrospectively, such that matters that may not previously have constituted a benefit would now, regardless of when they occurred, be subject to the restraint and forfeiture processes. Article 15 of the International Covenant on Civil and Political Rights prohibits retrospective criminal laws, which requires that laws not impose criminal liability for acts that were not criminal offences at the time they were committed and that the law not impose greater penalties than those which would have been available at the time the acts were done. The prohibition against retrospective criminal law is absolute and may never be subject to permissible limitations.
2.118 In order to assess whether these measures are compatible with the right to a fair trial and fair hearing, further information is required as to:
(a) whether the restraint or forfeiture powers that are broadened by the amendments to the definitions of what constitutes a 'benefit' and what is a 'serious offence' may be characterised as 'criminal' for the purposes of international human rights law, having regard to the nature, purpose and severity of those powers; and
(b) the extent to which the provisions are compatible with the criminal process guarantees set out in Articles 14 and 15, including any justification for any limitations of these rights.
2.119 The committee considered that the proceeds of crime legislation provides law enforcement agencies with important and necessary tools in the fight against crime. However, the amendments also raise concerns regarding the right to a fair hearing and the right to a fair trial, as although the regime established by the Proceeds of Crime Act for the restraint or forfeiture of property is classified as civil or administrative under domestic law, its content may nevertheless be considered 'criminal' under international human rights law.
2.120 In order to form a concluded view of the human rights implications of this measure, the committee sought the minister's advice as to the matters set out at paragraph [2.118].
2.121 The full initial analysis is set out in Report 11 of 2020.
2.122 The minister advised:
Relevant restraint and forfeiture powers (as expanded by the Bill) are properly characterised as civil for the purposes of international human rights law. These powers do not engage the criminal process guarantees as set out in Articles 14 and 15 of the International Covenant on Civil and Political Rights.
The Committee's Guidance Note 2 states that the test for whether a penalty can be classified as 'criminal' for the purposes of international human rights law relies on three criteria:
(a) The domestic classification of the penalty;
(b) The nature and purpose of the penalty; and
(c) The severity of the penalty.
On the domestic classification of the penalty, section 315 of the POC Act expressly provides that relevant restraint and forfeiture powers are characterised as civil in nature under Commonwealth law.
On the nature and purpose of the penalty, the POC Act is not solely focused on deterring or punishing persons for breaching laws, but under paragraphs 5(a)-(ba) is primarily focused on remedying the unjust enrichment of criminals who profit at society's expense, while paragraphs (d)-(da) are focussed on the removal of illicit funds from the licit economy. In addition, actions taken under the POC Act also make no determination of a person's guilt or innocence and can be taken against assets without finding any form of culpability against a particular individual (see sections 19 and 49 of the POC Act).
On the severity of the penalty, Guidance Note 2 provides that a penalty is likely to be considered criminal for the purposes of human rights law if the penalty is imprisonment or a substantial pecuniary sanction. Proceedings under the POC Act cannot in themselves create any criminal liability and do not expose individuals to criminal sanction (or a subsequent criminal record). Further, penalties under the POC Act cannot be commuted into a period of imprisonment.
On whether the penalty is substantial, it also remains open to a court to decrease the quantum to be forfeited under the POC Act to accurately reflect the quantum that has been derived or realised from crime, ensuring that orders are aimed primarily at preventing the retention of ill-gotten gains, rather than the imposition of a punishment or sanction (see, for example, compensation orders at sections 77 and 94A of the POC Act).
For these reasons, amending the definitions of what constitutes a 'benefit' and what is a 'serious offence' does not make the restraint and forfeiture powers criminal for the purposes of international human rights law.
2.123 In relation to whether the restraint and forfeiture powers, as expanded by the bill, are properly characterised as civil, the minister has advised that they are civil in nature for the purposes of international human rights law. In relation to the domestic classification of the penalty, the minister notes that the Proceeds of Crime Act expressly provides that they are civil in nature under Commonwealth law.
2.124 In relation to the nature of the offence, a penalty will likely be considered criminal under international human rights law if it is intended to punish and deter and the penalty applies to the public in general as opposed to being in a particular regulatory or disciplinary context. It is clear that the Proceeds of Crime Act has wide application and applies to general criminal conduct that may occur across the public at large. The Proceeds of Crime Act also sets out the objectives of the Act which include 'to punish and deter persons from breaching laws of the Commonwealth or the non‑governing Territories'.[31] However, the minister advised that the Proceeds of Crime Act is not solely focused on deterrence and punishment, but is also focused on remedying the unjust enrichment of criminals, and removing illicit funds from the licit economy. In addition, the minister advised that the Proceeds of Crime Act makes no determination of a person's guilt or innocence and can be taken against assets without any finding of culpability against a particular individual. It should be noted, however, that under the Proceeds of Crime Act property can only be forfeited without a finding of culpability against a particular person when the person does not contest the order;[32] if the person contests the order the forfeiture can only be made if the person has been convicted of an indictable offence or on the basis that the court is satisfied they engaged in the specified conduct.[33] While deterrence and punishment may not be the only objective of the proceeds of crime regime, it is clearly one of the objectives,[34] and as such would appear to meet the test that it is intended to punish and deter.
2.125 In relation to the severity of the penalty, the minister has advised that proceedings under the Proceeds of Crime Act do not expose individuals to criminal sanction, and it is open to the court to decrease the quantum to be forfeited to reflect the quantum that has been derived or realised from crime. However, forfeiture orders can involve significant sums of money, sometimes far in excess of any financial penalty that could be applied under the criminal law. For example the Australian Federal Police's 2012-13 Annual Report notes that one single operation resulted in $9 million worth of assets being forfeited.[35] As such, in certain instances the proceeds of crime orders may be so severe as to be considered to constitute a penalty.
2.126 As such, it may be that asset confiscation may be considered criminal for the purposes of international human rights law, because of the nature of the offence and the severity of the penalty. However, it is difficult to reach a concluded view on this without undertaking a full review of the provisions of the Proceeds of Crime Act. Assessing the forfeiture orders under the Proceeds of Crime Act as involving the determination of a criminal charge does not suggest that, in all instances, such measures will be incompatible with human rights – rather, it requires that such measures are demonstrated to be consistent with the criminal process rights under articles 14 and 15 of the International Covenant on Civil and Political Rights. There are particular concerns in relation to the standard of proof used in proceeds of crimes proceedings, the potential for double punishment, and that applying the changes to the definition of 'benefit' retrospectively could constitute retrospective criminal punishment. The minister's response did not address the question of the extent to which the provisions are compatible with the criminal process guarantees set out in articles 14 and 15. As such, it is not possible to fully assess the compatibility of the expansion of the restraint and forfeiture powers with criminal process rights.
2.127 The committee thanks the minister for this response. The committee notes that these measures seek to amend the definition of what constitutes a 'benefit' and a 'serious offence' under the Proceeds of Crime Act, which will have the effect of broadening the application of the restraint and forfeiture provisions under that Act.
2.128 The committee reiterates its earlier comments that the proceeds of crime legislation provides law enforcement agencies with important and necessary tools in the fight against crime. However, the amendments also raise concerns regarding the right to a fair hearing and the right to a fair trial, as although the regime established by the Proceeds of Crime Act for the freezing, restraint or forfeiture of property is classified as civil or administrative under domestic law, its content may be considered 'criminal' under international human rights law.
2.129 The Proceeds of Crime Act sets out an extensive coercive information gathering regime, and existing section 271 provides that a person is not excused from giving information or producing a document on the ground that to do so would tend to incriminate them or expose them to a penalty. This thereby abrogates the common law privilege against self-incrimination. Subsection 271(2) provides, however, that the information given; the giving of the document; or 'any information, document or thing obtained as a direct or indirect consequence of giving the information or document' is not admissible against the person in criminal proceedings except in limited circumstances. This provides for both a use and a derivative use immunity. The bill seeks to amend this provision to remove the derivative use immunity, so that anything obtained as a consequence of the information or documents compulsorily provided by a person could be used against them in a criminal proceeding.[36]
2.130 The removal of safeguards as to what evidence can be used against a person in a criminal proceeding engages and limits the right to a fair trial. The right to a fair trial includes the right not to be compelled to testify against oneself or confess guilt.[37] This right may be subject to permissible limitations where the limitation pursues a legitimate objective, is rationally connected to that objective and is a proportionate means of achieving that objective.
2.131 Further information is required in order to assess the compatibility of this measure with the right to a fair trial, in particular:
(a) whether there is reasoning or evidence that establishes that the stated objective addresses a pressing or substantial concern or whether the proposed changes are otherwise aimed at achieving a legitimate objective; and
(b) whether the measure is a proportionate limitation on the right to a fair trial, including whether it is the least rights restrictive way of achieving the stated objective (noting the possibility of setting up quarantining of information and information-sharing protocols).
2.132 The committee noted that this measure engages and limits the right to a fair trial, specifically the right not to be compelled to testify against oneself or confess guilt. This right may be permissibly limited if it is shown to be reasonable, necessary and proportionate.
2.133 In order to form a concluded view of the human rights implications of this measure, the committee sought the minister's advice as to the matters set out at paragraph [2.131].
2.134 The full initial analysis is set out in Report 11 of 2020.
2.135 The minister advised:
Measure is aimed at achieving a legitimate objective
The removal of the derivative use immunity at paragraph 271 (2)(c) is necessary to achieve the legitimate objectives of preserving public order and public safety by ensuring that the POC Act can be effectively used to trace, restrain and confiscate illicitly obtained funds.
The derivative use immunity applies in relation to information gained under the Official Trustee's powers at Part 4-1 of the POC Act including their powers to access books, seek assistance from suspects and obtain information and evidence. These information-gathering powers can only be used to support the Official Trustee's powers and functions, which relate to managing property seized under the POC Act and the Confiscated Assets Account into which the sale proceeds from confiscated property is credited.
The derivative use immunity creates operational issues of substantial concern, which are capable of severely undermining the confiscation mechanisms underpinning the POC Act and later unrelated criminal investigations. As it is not always possible to identify whether information may later become relevant to a criminal investigation, the information barriers required to mitigate the risk must be extremely restrictive, creating impediments that go far beyond mere administrative inconvenience.
For example, books may be provided by the Official Trustee to show that a person had provided false or misleading information and documents. Two years later these books could be seized separately as part of investigations into a separate criminal matter (such as breach of corporations offences, or money laundering). Under the current use and derivative use provisions, the Australian Federal Police could be required to go into great depth to show that information originally provided by the Official Trustee has been appropriately quarantined. This could include not only locking down the information in relevant systems, but also showing that no officer had worked on both cases and that there was no potential that investigators had access to the Official Trustee's material.
Sufficient quarantine procedures are not only administratively burdensome but can be impossible to achieve in some cases, given how closely staff supporting the Official Trustee are required work with law enforcement to ensure that restrained property is preserved pending the resolution of a matter. As the POC Act relies on the Official Trustee and law enforcement maintaining a high level of cooperation to remain effective, the necessary quarantining practices can severely undermine the effectiveness of the scheme, raising substantial concerns in asset confiscation cases.
Measure is a proportionate limitation on the right to a fair trial
The measure is also a proportionate limitation on the right to a fair trial, being the least rights restrictive means of achieving its objective.
The derivative use immunity only relates to information obtained by the Official Trustee under Part 4-1 of the POC Act, and the Official Trustee's information-gathering powers under this Part can only be used for a narrow range of purposes relating to the administration of seized property and the Confiscated Assets Account.
Under subsection 271(2) of the POC Act (as amended by items 15-17 of Schedule 6 to the Bill), information and documents obtained using these information-gathering powers will only be admissible in the following criminal proceedings:
• proceedings under, or arising out of, section 137.1 or 137.2 of the Criminal Code (false and misleading information and documents) in relation to giving the information or document; or
• proceedings for an offence against Division 2 of Part 4-2 of the POC Act.
In effect, this ensures that evidence gathered under the Official Trustee's information-gathering powers will only be admissible in criminal proceedings to prove non-compliance with these powers. The removal of the derivative use immunity at paragraph 271 (2)(c) will not allow the evidence to be used against the person in unrelated criminal proceedings (such as criminal proceedings for fraud).
2.136 In relation to whether the removal of safeguards as to what evidence can be used against a person in a criminal proceeding seeks to achieve a legitimate objective, the minister advised that this seeks to achieve the objective of preserving public order and public safety by ensuring that the Proceeds of Crime Act can be effectively used to trace, restrain and confiscate illicitly obtained funds. In particular, the minister advised that the derivative use immunity creates operational issues, requiring the creation of quarantine procedures that are so administratively burdensome that they are capable of severely undermining the confiscation mechanisms underpinning the Proceeds of Crime Act. On the basis of this information, it would appear that the removal of the derivative use immunity seeks to achieve the legitimate objective of being able to trace, restrain and confiscate illicitly obtained funds, and does not merely seek to achieve an outcome that is desirable or convenient. Removal of this derivative immunity would also appear to be rationally connected to this objective.
2.137 In terms of proportionality, the minister advised that the amendments will mean that information and documents obtained using these information gathering powers will only be admissible in criminal proceedings to prove non-compliance with these powers, and the removal of the derivative use immunity will not allow the evidence to be used against the person in unrelated criminal proceedings. However, while it is clear that a use immunity remains in place, prohibiting the directly provided information and documents to be used in other criminal proceedings, the repeal of the derivative use immunity would allow any information, document or thing obtained as a consequence of the forced production of the information or document to be used against the person. The absence of a derivative use immunity could have significant and broad-reaching implications for a person's right not to be compelled to testify against themselves. A person subject to the information gathering powers may be required to answer questions about a specific matter and while that answer itself cannot be used in evidence against the person, the information could be used to find other evidence against the person which could be used against them in a prosecution.[38] This may have the practical effect that the subject had been compelled to testify against and incriminate themselves with respect to related criminal proceedings. It is also necessary to consider whether there are any less rights restrictive ways to achieve the same aim, and the ability for information to be quarantined, while administratively burdensome, may be appropriate in some cases. Yet, this amendment would remove the derivative use immunity in its entirety.
2.138 As such, it would appear that removing the existing derivative use immunity, so that anything obtained as a consequence of information or documents compulsorily provided by a person in a proceeds of crime proceeding could be used against them in a criminal proceeding, appears to impermissibly limit the right of a person not to be compelled to testify against themselves.
2.139 The committee thanks the minister for this response. The committee notes that this measure would remove an existing derivative use immunity, so that anything obtained as a consequence of information or documents compulsorily provided by a person in a proceeds of crime proceeding could be used against them in a criminal proceeding.
2.140 The committee considers that the removal of the derivative use immunity seeks to achieve the legitimate objective of being able to trace, restrain and confiscate illicitly obtained funds. However, the committee also notes the countervailing consideration that the absence of a derivative use immunity could have significant implications for a person's right not to be compelled to testify against themselves.
2.141 The committee draws these human rights concerns to the attention of the minister and the Parliament.
2.142 The Proceeds of Crime Act sets out an extensive coercive information gathering regime, and section 266A sets out what information obtained under that process can be disclosed and to whom. The bill seeks to amend this provision to provide that this information can be disclosed to the Mutual Assistance Department[39] for the purposes of it facilitating its functions under a number of Acts, relating to providing mutual assistance to foreign countries and extradition.[40] It also provides that the information could be disclosed to a foreign country with functions corresponding to the functions of the Mutual Assistance Department for the purposes of that country assisting in the prevention, investigation or prosecution of a relevant offence, or assisting in the identification, location, tracing, investigation or confiscation of proceeds or instruments of crime.[41]
2.143 By authorising the disclosure of identifying and personal information overseas to foreign governments in circumstances relating to the investigation and prosecution of offences, where the information might be shared with a country that has not abolished the death penalty, this measure may engage the right to life. The right to life imposes an obligation on state parties to protect people from being killed by others or from identified risks.[42] The United Nations (UN) Human Rights Committee has made clear that international law prohibits the provision of information to other countries that may be used to investigate and convict someone of an offence to which the death penalty applies.[43] In addition, the sharing of personal information overseas, in circumstances relating to the investigation of offences, could risk a person being exposed to torture or cruel, inhuman or degrading treatment or punishment. Under international law the prohibition on torture is absolute and can never be subject to permissible limitations.[44]
2.144 Further information is required in order to assess the compatibility of these measures with the right to life and the prohibition on torture and cruel, inhuman and degrading treatment or punishment, in particular:
• the adequacy of the protections in the Mutual Assistance Act in ensuring that information is not disclosed to a foreign country in circumstances that could expose a person to the death penalty, and if there are any other relevant safeguards or guidelines; and
• what safeguards are in place to ensure that information would not be disclosed to a foreign country in circumstances that could expose a person to cruel, inhuman or degrading treatment or punishment.
2.145 The committee noted that where the relevant foreign country has not abolished the death penalty this may engage the right to life. In addition, the sharing of personal information overseas, in circumstances relating to the investigation of offences, could, in some circumstances, risk a person being exposed to torture or cruel, inhuman or degrading treatment or punishment.
2.146 In order to form a concluded view as to whether these rights are engaged and limited, the committee sought the minister's advice as to the matters set out at paragraph [2.144].
2.147 The full initial analysis is set out in Report 11 of 2020.
2.148 The minister advised:
The note inserted at item 11 of Schedule 6 to the Bill makes it clear that the proposed amendments are not intended to alter or override the procedures applicable to the disclosure of information to foreign countries (for example, procedures under the Mutual Assistance in Criminal Matters Act 1987 (the MACMA)). As the section applies to information, it only gives authorisation for the disclosure of this information pursuant to these procedures.
The particular amendments in Schedule 6 reinforce, and make no substantial changes, to the way in which information obtained under the POC Act is shared with foreign authorities. On that basis, these amendments do not further engage the right to life or prohibition against torture and other cruel, inhuman and degrading treatment or punishment.
If it was considered that these amendments in Schedule 6 do engage this right or prohibition, there are sufficient safeguards to ensure that the subject of a particular information-gathering request is not subject to the death penalty or cruel, inhuman or degrading treatment or punishment.
Death penalty safeguards
Subsection 8(1A) of the MACMA provides that a request by a foreign country for mutual assistance must be refused if it relates to the investigation, prosecution or punishment of a person arrested or detained on suspicion of, or charged with, or convicted of, an offence in respect of which the death penalty may be imposed in the foreign country, unless the Attorney-General is of the opinion, having regard to the special circumstances of the case, that the assistance requested should be granted.
‘Special circumstances' is not defined in the MACMA. However, the Explanatory Memorandum to the Mutual Assistance in Criminal Matters Legislation Amendment Bill 1996 (at paragraphs 60-61) provides that 'special circumstances' exist if the evidence sought is exculpatory or if the foreign country has given an assurance concerning the death penalty, for instance that it will not be sought, or if sought will not be imposed, or if imposed will not be carried out. The Federal Court in McCrea v Minister for Customs and Justice [2005] FCAFC 180 sets out the test for an acceptable death penalty undertaking. The test requires that the Attorney-General be satisfied that 'the undertaking is one that, in the context of the system of law and government of the country seeking surrender, has the character of an undertaking by virtue of which the death penalty would not be carried out'.
Where a mutual assistance request is received in circumstances where no person has yet been charged, arrested, detained or convicted of an offence that could result in the death penalty (generally in the early investigatory stages), subsection 8(1 B) of the MACMA covers cases where the Attorney-General believes that the provision of the assistance may result in the death penalty being imposed on a person. It gives the Attorney-General a discretion to refuse a request if the Attorney-General:
• believes that the provision of the assistance may result in the death penalty being imposed on a person; and
• after taking into consideration the interests of international criminal co-operation, is of the opinion that in the circumstances of the case the request should not be granted.
In addition, under paragraph 8(2)(g) of the MACMA, the Attorney-General has a discretion in all cases to refuse a request if 'it is appropriate, in all the circumstances of the case, that the assistance requested should not be granted'. The MACMA also enables conditions to be placed on the provision of the assistance. This could include restricting the use of the material to investigation purposes, or requiring the country to seek the Minister's authorisation to use the material for the purposes of prosecuting a person.
Safeguards against cruel, inhuman or degrading treatment or punishment
Concerns about cruel, inhuman or degrading treatment or punishment are addressed through the Attorney-General's general discretion under paragraph 8(2)(g) of the MACMA to refuse mutual assistance where 'it is appropriate, in all the circumstances of the case'.
Serious forms of cruel, inhuman or degrading treatment or punishment are addressed through the requirement under paragraph 8(1)(ca) of the MAGMA for the Attorney-General to consider torture as a mandatory ground of refusal. There is no definition of 'torture' in the MAGMA. This ensures that in making a decision on whether to provide assistance, the Attorney-General is able to take a broad approach and take into account a number of considerations in deciding whether there is a risk of torture.
2.149 The minister has advised that the amendments make no substantive changes to the way in which information obtained under the Proceeds of Crime Act is shared with foreign authorities, giving authorisation only for information to be disclosed pursuant to existing procedures. However, the explanatory memorandum states that the amendments will 'enhance the ability of law enforcement to enforce compliance with information-gathering powers' and they are made, for an abundance of caution, 'to ensure that information can be disclosed for the purpose of international crime cooperation'.[45] Given it was considered legislatively necessary to include this power in the Proceeds of Crime Act to help facilitate the disclosure of information for the purposes of international crime cooperation, it would appear that these amendments do engage the right to life and the prohibition against torture and other cruel, inhuman and degrading treatment or punishment.
2.150 In relation to the right to life, the minister has advised that there are sufficient safeguards to ensure that the subject of a particular information-gathering request is not subjected to the death penalty. In particular, the minister notes that the Mutual Assistance Act provides that a request by a foreign country for assistance under the Act must be refused if the offence is one in respect of which the death penalty may be imposed, unless the Attorney‐General is of the opinion, having regard to the 'special circumstances' of the case, that the assistance requested should be granted'.[46] The minister notes that 'special circumstances' are not defined but may include where the information would assist the defence, or where the foreign country undertakes not to impose the death penalty. In addition, where a mutual assistance request is received in the early investigatory stages, the Mutual Assistance Act provides the Attorney-General with a discretion to refuse the request if they believe it may result in the death penalty being imposed 'after taking into consideration the interests of international criminal cooperation'. The
Attorney-General has also advised that there is a general discretion to refuse a request if appropriate in all the circumstances of the case.
2.151 The requirement that the Attorney-General must refuse the request for assistance if the death penalty may be imposed acts as a safeguard to protect the right to life. However, this is qualified by the fact that the Attorney-General may still grant the assistance if they are of the opinion that it should be granted having regard to the special circumstances of the case. While noting the advice that 'special circumstances' would likely include matters such as where the evidence sought is exculpatory or an undertaking has been sought, there is nothing in the legislation restricting the interpretation in this way. In addition, while the Attorney-General's general discretion may operate to safeguard the right, this remains discretionary and the possibility remains that the discretion may not be exercised in this way. The explanatory memorandum also states that while the existing procedures under the Mutual Assistance Act would continue to apply, there will also be circumstances where disclosure under this provision 'is not governed by other procedures (for example, in certain cases of informal cooperation with other foreign authorities)’.[47] In such cases it is not clear if there would be any restriction on the sharing of such information because of concerns as to the imposition of the death penalty. As such, in the absence of a strict prohibition on the provision of mutual assistance where the death penalty may be imposed, these amendments may result in a risk that information obtained under the Proceeds of Crime Act may be shared with foreign governments in circumstances that may not be compatible with the right to life.
2.152 In relation to the prohibition against torture and other cruel, inhuman or degrading treatment or punishment, the minister advised that serious forms of cruel, inhuman or degrading treatment or punishment are addressed by the requirement that the Attorney-General must refuse to provide assistance if there are substantial grounds for believing that, if the request were granted, the person would be in danger of being subjected to torture.[48] The minister notes that there is no definition of torture in the Mutual Assistance Act, which ensures that the Attorney-General is able to take a broad approach and take into account a number of considerations in deciding if there is a risk of torture. However, while the Attorney-General could choose to take this broader interpretation of the definition of torture, it would also appear open as a matter of statutory interpretation to take a narrower approach. The value of this as a safeguard would be strengthened if the legislation specifically provided that the definition of 'torture' included other cruel, inhuman or other degrading treatment or punishment.[49] In the absence of this there may be some risk that information obtained under the Proceeds of Crime Act may be shared with foreign governments in circumstances that may limit the absolute prohibition against cruel, inhuman or degrading treatment or punishment.
2.153 The committee thanks the minister for this response. The committee notes that the bill provides that information obtained under the information gathering powers of the Proceeds of Crime Act 2002 can be disclosed for the purposes of providing mutual assistance to a foreign country to investigate or prosecute a person.
2.154 The committee notes the minister's advice that the amendments make no substantive changes to the way in which information obtained under the Proceeds of Crime Act is shared with foreign authorities, and that information will be disclosed pursuant to existing procedures. The committee also notes the significant safeguards that already exist in the Mutual Assistance in Criminal Matters Act 1987 which seeks to ensure that mutual assistance is likely to be refused if to do so would result in the application of the death penalty or would expose a person to torture or serious forms of cruel, inhuman or degrading treatment or punishment. The committee considers these could operate in practice to safeguard these rights. However, noting the exceptions to allow information sharing where there are 'special circumstances', and that there is no definition of 'torture' (so it is not clear that this would include cruel, inhuman or degrading treatment or punishment), the committee considers there is some risk that information obtained under the Proceeds of Crime Act may be disclosed to foreign countries in circumstances that may not be compatible with the right to life or the prohibition against torture, or cruel, inhuman or degrading treatment or punishment.
2.155 The committee draws these human rights concerns to the attention of the minister and the Parliament.
[1] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Crimes Legislation Amendment (Economic Disruption) Bill 2020, Report 13 of 2020; [2020] AUPJCHR 158.
[2] Parliamentary Joint Committee on Human Rights, Report 11 of 2020 (24 September 2020), pp. 30-47.
[3] Schedule 1, item 62 (proposed subsection 400.9(1AA) would impose a penalty of imprisonment for up to five years, or 300 penalty units (or both) where the value of the money of other property being dealt with is $10 million or more, and proposed subsection 400.9(1AB) would impose a penalty of imprisonment for up to four years, or 240 penalty units (or both) where the value of the money of other property being dealt with is $1 million or more).
[4] Schedule 1, item 67 (which would amend subsection 400.9(4) of the Criminal Code Act 1995 (Criminal Code) which applies absolute liability).
[5] Criminal Code, section 6.2.
[6] Criminal Code, subsection 400.9(5).
[7] Criminal Code, section 13.4.
[8] International Covenant on Civil and Political Rights, article 14(2).
[9] The minister's response to the committee's inquiries was received on 21 October 2020. This is an extract of the response. The response is available in full on the committee's website at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports.
[10] Criminal Code Act 1995, Schedule – The Criminal Code, section 7.3.
[11] Crimes Act 1914, subsection 23B(2) defines a person as a 'protected suspect', which includes if the person is in the company of the investigating official for the purposes of being questioned about a Commonwealth offence; they have not been arrested for the offence; and the official believes there is sufficient evidence to establish the person has committed the offence, or the official has indicated the person is not allowed to leave if they wished to do so.
[12] Crimes Act 1914, section 23K. 'Interview friend' is defined in subsection 23K(3) to mean a parent or guardian or legal practitioner acting for the person; or if none of these are available, a relative or friend who is acceptable to the person being interviewed; or if the person is an Aboriginal person or a Torres Strait Islander and none of the previously mentioned persons are available, a person who is a representative of an Aboriginal legal assistance organisation in the State or Territory in which the person is located; or if none of those persons are available, an independent person.
[13] Schedule 2.
[14] United Nations Human Rights Committee, General Comment No. 17: Article 24 (1989) [1].
[15] United Nations Human Rights Committee, General Comment No. 17: Article 24 (1989) [5]. See also International Covenant on Civil and Political Rights, articles 2 and 26.
[16] United Nations Committee on the Rights of Children, General Comment 14 on the right of the child to have his or her best interest taken as primary consideration (2013).
[17] United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules) at: http://www.un.org/documents/ga/res/40/a40r033.htm.
[18] Proceeds of Crime Act 2002, sections 18, 29, 47 and 73.
[19] Proceeds of Crime Act 2002, sections 29, 92 and 94. See summary of this from explanatory memorandum, p. 74.
[20] Proceeds of Crime Act 2002, section 338 (definition of 'serious offence').
[21] Proceeds of Crime Act 2002, section 338 (definition of 'benefit').
[22] Schedule 4, items 1–3.
[23] Schedule 4, item 4.
[24] Schedule 3, item 13 and Schedule 6, item 19.
[25] Offences set out at sections 195, 169 and 197A of the Proceeds of Crime Act 2002.
[26] As protected by articles 14 and 15 of the International Covenant on Civil and Political Rights.
[27] Parliamentary Joint Committee on Human Rights, Thirty-First Report of the 44th Parliament (24 November 2015) pp. 43–44; Twenty-Sixth Report of the 44th Parliament Report 1 of 2017 (16 February 2017); Report 2 of 2017 (21 March 2017) p. 6; Report 4 of 2017 (9 May 2017) pp. 92–93; Report 1 of 2018 (6 February 2018) pp. 112–122.
[28] International Covenant on Civil and Political Rights, article 14(2).
[29] International Covenant on Civil and Political Rights, article 14(3)(g).
[30] International Covenant on Civil and Political Rights, article 15(1).
[31] Proceeds of Crime Act 2002, section 5(2).
[32] Proceeds of Crime Act 2002, section 49.
[33] Proceeds of Crime Act 2002, sections 47 and 48.
[34] Proceeds of Crime Act 2002, paragraph 5(c).
[35] Australian Federal Police, Annual Report 2012-13, 101.
[36] Schedule 6, item 16.
[37] International Covenant on Civil and Political Rights, article 14(3(g).
[38] A person subject to an examination order under the Proceeds of Crime Act 2002 could be charged with a criminal offence for failure to attend or answer questions or produce documents, subject to up to two years imprisonment (see section 195 and 196). The United Nations Human Rights Committee has relevantly directed that in considering any abrogation of the privilege against self-incrimination, regard should be had to any form of compulsion used to compel a person to testify against themselves. See, United Nations Human Rights Committee, General Comment No. 13: Article 14 (Administration of justice) (1984) [14].
[39] Schedule 6, item 18 would insert a new definition into the Proceeds of Crime Act 2002 of 'Mutual Assistance Department' to mean the Department administered by the Minister who administers the Mutual Assistance in Criminal Matters Act 1987 (currently the Attorney-General's Department).
[40] Schedule 6, item 9, proposed item 2E in the table in subsection 266A(2).
[41] Schedule 6, item 9, proposed item 2F in the table in subsection 266A(2).
[42] International Covenant on Civil and Political Rights, article 6. While the ICCPR does not completely prohibit the imposition of the death penalty, international law prohibits states which have abolished the death penalty (such as Australia) from exposing a person to the death penalty in another state.
[43] In this context, the United Nations Human Rights Committee stated in 2009 its concern that Australia lacks 'a comprehensive prohibition on the providing of international police assistance for the investigation of crimes that may lead to the imposition of the death penalty in another state', and concluded that Australia should take steps to ensure it 'does not provide assistance in the investigation of crimes that may result in the imposition of the death penalty in another State'. United Nations Human Rights Committee, Concluding observations on the fifth periodic report of Australia, CCPR/C/AUS/CO/5 (2009) [20].
[44] Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, article 4(2); United Nations Human Rights Committee, General Comment 20: Article 7 (1992) [3].
[45] Explanatory memorandum, p. 71.
[46] Mutual Assistance in Criminal Matters Act 1987, subsection 8(1A).
[47] Explanatory memorandum, p. 72.
[48] Mutual Assistance in Criminal Matters Act 1987, paragraph (1)(ca).
[49] International Covenant on Civil and Political Rights, article 7.
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