Crimes Legislation Amendment (International Crime Cooperation and Other Measures) Bill 2016 - Commentary on Ministerial and Other Responses [2017] AUSStaCSBSD 82 (22 March 2017)

• Crimes Legislation Amendment (International Crime Cooperation and Other Measures) Bill 2016
• Delegation of legislative power—incorporation of external material into the law 18

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Crimes Legislation Amendment (International Crime Cooperation and Other Measures) Bill 2016

Purpose	This bill seeks to amend a number of Acts relating to the criminal law, law enforcement and background checking to: • ensure Australia can respond to requests from the International Criminal Court and international war crimes tribunals; • amend the provisions on proceeds of crime search warrants, clarify which foreign proceeds of crime orders can be registered in Australia and clarify the roles of judicial officers in domestic proceedings to produce documents or articles for a foreign country, and others of a minor or technical nature; • ensure magistrates, judges and relevant courts have sufficient powers to make orders necessary for the conduct of extradition proceedings; • ensure foreign evidence can be appropriately certified and extend the application of foreign evidence rules to proceedings in the external territories and the Jervis Bay Territory; • amend the vulnerable witness protections in the Crimes Act 1914; • clarify the operation of the human trafficking, slavery and slavery-like offences in the Criminal Code Act 1995; • amend the reporting arrangements under the War Crimes Act 1945; • ensure the Australian Federal Police's alcohol and drug testing program and integrity framework is applied to the entire workforce and clarify processes for resignation in cases of serious misconduct or corruption; • provide additional flexibility regarding the method and timing of reports about outgoing movements of physical currency, allowing travellers departing Australia to report cross-border movements of physical currency electronically; • include the Australian Charities and Not-for-profits Commission in the existing list of designated agencies which have direct access to financial intelligence collected and analysed by AUSTRAC enabling it to access AUSTRAC information; • clarify use of the Australian Crime Commission's prescribed alternative name; and
	• permit the AusCheck scheme to provide for the conduct and coordination of background checks in relation to major national events
Portfolio	Justice
Introduced	House of Representatives on 23 November 2016
Bill status	Before House of Representatives
Scrutiny principle	Standing Order 24(1)(a)(i), (ii) and (iv)

2.40 The committee dealt with this bill in Alert Digest No. 10 of 2016. The Minister responded to the committee's comments in a letter dated 22 December 2016. The committee sought further information in the Scrutiny Digest 1 of 2017 and the Minister responded in a letter received 24 February 2017.

2.41 Set out below are extracts from the committee's initial scrutiny of the bill and the Minister's responses followed by the committee's comments on the response. A copy of the letter is at Appendix 1.

Delegation of legislative power—incorporation of external material into the law ^[18]

Initial scrutiny – extract

2.42 This item amends a regulation making power in the Australian Federal Police Act 1979 (the AFP Act). The item adds a new subsection 40P(2) which will allow regulations made for the purposes of sections 40LA, 40M and 40N of the AFP Act (relating to drug and alcohol testing of AFP appointees) to incorporate any matter contained in a standard published by, or on behalf of, Standards Australia as in force at a particular time or as in force from time to time.

2.43 At a general level, the committee will have scrutiny concerns where provisions in a bill allow the incorporation of legislative provisions by reference to other documents because such an approach:

• raises the prospect of changes being made to the law in the absence of Parliamentary scrutiny;

• can create uncertainty in the law; and

• means that those obliged to obey the law may have inadequate access to its terms (in particular, the committee will be concerned where relevant information, including standards, accounting principles or industry databases, is not publicly available or is available only if a fee is paid).

2.44 The explanatory memorandum (at p. 179) states that the drug and alcohol testing provisions in sections 40LA, 40M and 40N are applicable only to AFP appointees, and not the general public. Further, the explanatory memorandum notes that the relevant standards as in force from time to time will be available on request to AFP appointees and 'the standards are available to the public for purchase from SAI Global Limited'. Finally, the explanatory memorandum states that allowing the AFP to incorporate the relevant standards for alcohol and drug testing as in force from time to time allows the AFP to keep pace with scientific and technology advances and ensures that it is able to employ the most appropriate procedures for conducting drug testing.

2.45 The committee notes this explanation and welcomes the indication that the relevant standards incorporated into the law will be available to AFP appointees on request. However, the committee has scrutiny concerns where material incorporated into the law is not freely and readily available to all those who may be interested in the law. In this case, for example, potential AFP recruits may be interested in the relevant standards. In any event, as a matter of principle, any member of the public should be able to freely and readily access the terms of the law. As noted above, the committee's scrutiny concerns in relation to the incorporation of external material into the law will be particularly acute where incorporated materials are not freely and readily available and therefore persons interested in or affected by the law may have inadequate access to its terms. In this case, the relevant standards will only be available to members of the public if a fee is paid to SAI Global Ltd.

2.46 The issue of access to material incorporated into the law by reference to external documents such as Australian and international standards has been an issue of ongoing concern to Australian parliamentary scrutiny committees. Most recently, the Joint Standing Committee on Delegated Legislation of the Western Australian Parliament has published a detailed report on this issue: Access to Australian Standards Adopted in Delegated Legislation (June 2016). This report comprehensively outlines the significant scrutiny concerns associated with the incorporation of material by reference, particularly where the incorporated material is not freely available.

2.47 Noting the above comments, the committee requests the Minister's further advice as to whether material incorporated by reference under proposed subsection 40P(2) can be made freely available to all persons interested in the law.

Minister's first response

2.48 The Minister advised:

Subsection 40P(2) of the Australian Federal Police Act 1979 (the Act) will allow regulations made for the purposes of section 40LA, 40M and 40N of the Act to incorporate any matter contained in a standard published by, or on behalf of, Standards Australia or Standards Australia/Standards New Zealand as in force at a particular time or as in force from time to time.
The new subsection will ensure the Australian Federal Police (AFP) is able to employ the most up to date standards for its internal alcohol and drug testing applicable to AFP appointees, allowing it to keep pace with scientific and technological advances.
The standards in question will be made freely and readily available to all persons directly affected by the law, being AFP appointees. All such persons will have full access to the current drug testing standard via an online portal accessible on the AFP intranet. However, the standards will not be made freely and readily available to the public at large, in light of copyright restrictions.
As noted by the Committee, concerns arise when external materials incorporated into the law are not freely and readily available to persons to whom the law applies, or who may otherwise be interested in the law. However, any detriment caused by incorporated material not being freely and readily available to the public at large must be balanced against the benefit gained from utilising that incorporated material. The proposed amendment strikes an appropriate balance.
Copyright restrictions
The relevant standard is copyright protected by Standards Australia, which has provided SAI Global with exclusive distributor rights. The current AFP subscription agreement with SAI Global allows it to use and access the relevant standard for internal business purposes only. The AFP is not permitted to copy, distribute or allow access to any third party. These terms and conditions are not unique to the AFP's agreement, as they are incorporated into all subscriptions. As a result of the proprietary rights of Standards Australia, Standards Australia/New Zealand and SAI Global, the AFP is not permitted to make the drug testing standard freely and readily available to the general public.
The benefit of incorporating the relevant standard
The ability for regulations to incorporate relevant aspects of standards published by Standards Australia or Standards Australia/Standards New Zealand is vital to ensuring the AFP applies best practice in its approach to alcohol and drug testing.
There is an expectation from employees that drug tests will be carried out pursuant to current industry standards. Standards Australia and Standards Australia/Standards New Zealand produce standards that are based on sound industrial, scientific and consumer experience and are regularly reviewed to ensure they keep pace with new technologies.
The Standards include highly technical scientific procedures, particularly relating to testing methods, apparatus and calculations. These procedures are carried out by trained technicians from an independent company, on behalf of the APP, in accordance with Schedule 1A of the AFP Regulations.
The incorporation of the most current standard supports the integrity of the results and ensures there is no discrepancy between the procedures and testing methods used by the company contracted to conduct drug tests and the standard referenced in the AFP Regulations.
The effect of the standard not being made freely available to the public at large
The drug and alcohol testing provisions in section 40LA, 40M and 40N are applicable only to AFP appointees, and not the general public. That is, the incorporation of the standard does not impact the general public. Moreover, the incorporation of the standard does not create obligations with which AFP appointees must comply. Rather, it ensures that collection procedures and testing methods utilised by the AFP accord with industry best practice.
As noted, the relevant standard will be made freely and readily available to the only persons directly affected by the law. Any detriment caused by the standard not being freely and readily available to the public at large is thereby minimised.
The proposed amendments strike an appropriate balance
The benefit of incorporating standards published by Standards Australia and Standards Australia/Standards New Zealand into the law is clear; it ensures the AFP applies robust, best-practice alcohol and drug testing procedures to its appointees. Imposing a different standard, one that may be freely and readily available to the public at large, may require departing from the industry accepted best-practice encompassed within standards published by Standards Australia and Standards Australia/Standards New Zealand.
The Government considers that the benefit gained from ensuring best-practice testing procedures are used outweighs the minimal detriment caused by the standard not being freely and readily available to persons not directly affected by the law.

Committee's first comment

2.49 The committee thanks the Minister for this detailed response. The committee notes the information provided by the Minister in relation to the benefits of incorporating alcohol and drug-testing standards into the AFP Regulations.

2.50 The committee welcomes the indication that the relevant standards will be made freely and readily available to AFP appointees through an online portal accessible on the AFP intranet.

2.51 The committee also notes the Minister's advice that the standards will not be made freely and readily available to the public at large as the relevant standard is copyright protected by Standards Australia, which has provided SAI Global Ltd with exclusive distributor rights. The committee also notes the advice that under the current AFP subscription agreement with SAI Global the AFP is not permitted to copy, distribute or allow access to any third party and that these terms and conditions are not unique to the AFP's agreement, as they are incorporated into all subscriptions. As a result, the relevant standards will only be available to members of the public if a fee is paid to SAI Global.

2.52 The committee thanks the Minister for providing this detailed explanation of the restrictions imposed by subscription agreements with SAI Global which assists the committee in understanding the difficulties associated with providing relevant standards to the public at large.

2.53 The committee takes this opportunity to reiterate that it is fundamental principle of the rule of the law that every person subject to the law should be able to freely and readily access its terms. As a result, the committee will have scrutiny concerns when external materials that are incorporated into the law are not freely and readily available to persons to whom the law applies, or who may otherwise be interested in the law.

2.54 The committee also takes this opportunity to highlight the expectations of the Senate Standing Committee on Regulations and Ordinances that delegated legislation which applies, adopts or incorporates any matter contained in an instrument or other writing should:

• clearly state the manner in which the documents are incorporated—that is, whether the material is being incorporated as in force or existing from time to time or as in force or existing at the commencement of the legislative instrument. This enables persons interested in or affected by the instrument to understand its operation without the need to rely on specialist legal knowledge or advice, or consult extrinsic material (see also section 14 of the Legislation Act 2003); and

• contain a description of the documents and indicate how they may be obtained (see paragraph 15J(2)(c) of the Legislation Act 2003).

2.55 The committee requests that the key information provided by the Minister be included in the explanatory memorandum, noting the importance of these documents as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

2.56 Noting the above comments, the committee also requests the Minister's advice as to whether the bill can be amended to insert a statutory requirement that the relevant standards will be made freely and readily available to all AFP appointees.

Minister's further response

2.57 The Minister advised:

The Committee has requested my advice as to whether the Bill can be amended to insert a statutory requirement that alcohol and drug testing standards be made freely and readily available to all Australian Federal Police (AFP) appointees.
I can advise that I have requested the Attorney-General's Department to work urgently with the AFP on the amendment requested by the Committee. Should that work conclude that such an amendment is appropriate, and subject to necessary policy approvals, I will seek to introduce the amendment into the Bill.
The Committee has also requested that information I previously provided to the Committee in December 2016 in relation to the Bill be included in the Bill's explanatory memorandum. I am pleased to confirm that I will table an addendum to the explanatory memorandum for the Bill, incorporating the key information requested by the Committee.

Committee's further comment

2.58 The committee thanks the Minister for this response. The committee notes the Minister's advice that he has requested the Attorney-General's Department to work urgently with the AFP in relation to an amendment requested by the committee which would insert a statutory requirement that alcohol and drug testing standards be made freely and readily available to all Australian Federal Police (AFP) appointees. The Minister advised that 'should that work conclude that such an amendment is appropriate, and subject to necessary policy approvals, I will seek to introduce the amendment into the Bill.'

2.59 The committee also notes the Minister's advice that he will table an addendum to the explanatory memorandum for the bill, incorporating the key information requested by the committee.

2.60 The committee welcomes these undertakings by the Minister and will consider any amendments and additional explanatory material in a future Scrutiny Digest.

2.61 The committee also takes this opportunity to reiterate its general comments in relation to the incorporation of external material into the law and the expectations of Senate Standing Committee on Regulations and Ordinances in relation to delegated legislation which applies, adopts or incorporates any matter contained in an instrument or other writing as detailed at paragraphs [2.53] to [2.54] above.

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[18] Schedule 8, item 15, new subsection 40P(2).