Commonwealth: Crimes Legislation Amendment (International Crime Cooperation and Other Measures) Act 2018 (Cth)

Crimes Legislation Amendment (International Crime Cooperation and Other Measures) Act 2018 No. 34, 2018 An Act to amend legislation relating to the criminal law, law enforcement and background checking, and for other purposes Contents 1 Short title 2 Commencement 3 Schedules Schedule 1—Assistance to international courts and tribunals Part 1—Lawfully obtained material International Criminal Court Act 2002 International War Crimes Tribunals Act 1995 Surveillance Devices Act 2004 Telecommunications (Interception and Access) Act 1979 Part 2—Producing documents or other articles International Criminal Court Act 2002 International War Crimes Tribunals Act 1995 Part 3—Covert access to stored communications International Criminal Court Act 2002 International War Crimes Tribunals Act 1995 Telecommunications (Interception and Access) Act 1979 Part 4—Historical telecommunications data Telecommunications (Interception and Access) Act 1979 Part 5—Prospective telecommunications data International Criminal Court Act 2002 International War Crimes Tribunals Act 1995 Telecommunications (Interception and Access) Act 1979 Part 6—Use of surveillance devices International Criminal Court Act 2002 International War Crimes Tribunals Act 1995 Surveillance Devices Act 2004 Part 7—Forensic procedures Crimes Act 1914 International Criminal Court Act 2002 International War Crimes Tribunals Act 1995 Part 8—Proceeds of crime Division 1—Amendments relating to the ICC International Criminal Court Act 2002 Division 2—Amendments relating to Tribunals International War Crimes Tribunals Act 1995 Part 9—Obligations of carriage service providers etc. to provide assistance, and recovery of costs for providing assistance Telecommunications Act 1997 Schedule 2—Amendments relating to mutual assistance in criminal matters Part 1—Search warrants Mutual Assistance in Criminal Matters Act 1987 Part 2—Production of documents or other articles Mutual Assistance in Criminal Matters Act 1987 Part 3—Other amendments Mutual Assistance in Criminal Matters Act 1987 Schedule 3—Amendment of the Extradition Act 1988 Extradition Act 1988 Schedule 4—Amendments relating to foreign evidence Foreign Evidence Act 1994 Schedule 5—Protecting vulnerable persons Crimes Act 1914 Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Act 2013 Schedule 6—Slavery‑like offences and relevant evidence Part 1—Slavery‑like offences Crimes Act 1914 Criminal Code Act 1995 Telecommunications (Interception and Access) Act 1979 Part 2—Relevant evidence Criminal Code Act 1995 Part 3—Application and transitional provisions Schedule 7—Amendment of the War Crimes Act 1945 War Crimes Act 1945 Schedule 8—Amendment of the Australian Federal Police Act 1979 Part 1—Drug testing Australian Federal Police Act 1979 Part 2—Other amendments Australian Federal Police Act 1979 Schedule 9—Amendment of the Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006 Part 1—Reports about physical currency Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006 Part 2—The Australian Charities and Not‑for‑profits Commission Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006 Schedule 10—Amendment of the Australian Crime Commission Act 2002 Australian Crime Commission Act 2002 Schedule 11—Amendment of the AusCheck Act 2007 AusCheck Act 2007 Crimes Legislation Amendment (International Crime Cooperation and Other Measures) Act 2018 No. 34, 2018 An Act to amend legislation relating to the criminal law, law enforcement and background checking, and for other purposes [Assented to 22 May 2018] The Parliament of Australia enacts: 1 Short title This Act is the Crimes Legislation Amendment (International Crime Cooperation and Other Measures) Act 2018. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Commencement information Column 1 Column 2 Column 3 Provisions Commencement Date/Details 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table The day this Act receives the Royal Assent. 22 May 2018 2. Schedule 1 A single day to be fixed by Proclamation. 22 November 2018 However, if the provisions do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. 3. Schedule 2, Part 1 The day after this Act receives the Royal Assent. 23 May 2018 4. Schedule 2, Part 2 A single day to be fixed by Proclamation. 22 November 2018 However, if the provisions do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. 5. Schedule 2, Part 3 The day after this Act receives the Royal Assent. 23 May 2018 6. Schedule 3 The day after this Act receives the Royal Assent. 23 May 2018 7. Schedule 4 A single day to be fixed by Proclamation. 22 November 2018 However, if the provisions do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. 8. Schedules 5 to 7 The day after this Act receives the Royal Assent. 23 May 2018 9. Schedule 8, Part 1 A single day to be fixed by Proclamation. 23 July 2018 However, if the provisions do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. (F2018N00120) 10. Schedule 8, Part 2 The day after this Act receives the Royal Assent. 23 May 2018 11. Schedules 9 to 11 The day after this Act receives the Royal Assent. 23 May 2018 Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act. (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act. 3 Schedules Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. Schedule 1—Assistance to international courts and tribunals Part 1—Lawfully obtained material International Criminal Court Act 2002 1 Section 4 Insert: interception warrant information has the same meaning as in the Telecommunications (Interception and Access) Act 1979. law enforcement agency has the same meaning as in the Surveillance Devices Act 2004. law enforcement officer has the same meaning as in the Surveillance Devices Act 2004. lawfully intercepted information has the same meaning as in the Telecommunications (Interception and Access) Act 1979. lawfully obtained in Australia has a meaning affected by subsection 69A(3). 2 After Division 5 of Part 4 Insert: Division 5A—Providing law enforcement agency material 69A Authorising provision of material obtained by law enforcement agencies (1) The Attorney‑General may authorise, in writing, the provision of material to the ICC if: (a) the ICC has requested the material; and (b) the Attorney‑General is satisfied that: (i) the request relates to an investigation being conducted by the Prosecutor or a proceeding before the ICC; and (ii) if the material is or includes lawfully intercepted information or interception warrant information—the investigation is into, or the proceeding relates to, an offence punishable by a maximum penalty of imprisonment for 7 years or more, or imprisonment for life; and (iii) the material was lawfully obtained in Australia by, and is lawfully in the possession of, a law enforcement agency. (2) The authorisation may: (a) specify the uses to which the material can be put by the ICC; and (b) include a direction to a law enforcement officer of the law enforcement agency about how the material is to be provided to the ICC. (3) Material lawfully obtained in Australia includes: (a) material obtained from individuals or entities by consent; and (b) material obtained by warrant, or the exercise of a coercive power by a court, in Australia for the purposes of a domestic investigation or prosecution. International War Crimes Tribunals Act 1995 3 Section 4 Insert: law enforcement agency has the same meaning as in the Surveillance Devices Act 2004. law enforcement officer has the same meaning as in the Surveillance Devices Act 2004. lawfully obtained in Australia has a meaning affected by subsection 25A(3). 4 Before Division 1 of Part 4 Insert: Division 1AA—Providing law enforcement agency material 25A Authorising provision of material obtained by law enforcement agencies (1) The Attorney‑General may authorise, in writing, the provision of material to a Tribunal if: (a) the Tribunal has requested the material; and (b) the Attorney‑General is satisfied that: (i) the request relates to a proceeding before, or an investigation conducted by, the Tribunal; and (ii) the material was lawfully obtained in Australia by, and is lawfully in the possession of, a law enforcement agency. (2) The authorisation may: (a) specify the uses to which the material can be put by the Tribunal; and (b) include a direction to a law enforcement officer of the law enforcement agency about how the material is to be provided to the Tribunal. (3) Material lawfully obtained in Australia includes: (a) material obtained from individuals or entities by consent; and (b) material obtained by warrant, or the exercise of a coercive power by a court, in Australia for the purposes of a domestic investigation or prosecution. Surveillance Devices Act 2004 5 Subsection 6(1) Insert: International Criminal Court has the same meaning as ICC in the International Criminal Court Act 2002. War Crimes Tribunal has the same meaning as Tribunal in the International War Crimes Tribunals Act 1995. 6 At the end of subsection 45(4) Add: (h) the communication of information for the purpose of providing it to the International Criminal Court, if this has been authorised under section 69A of the International Criminal Court Act 2002; or (i) the communication of information for the purpose of providing it to a War Crimes Tribunal, if this has been authorised under section 25A of the International War Crimes Tribunals Act 1995. Note: These paragraphs will be added after those substituted for paragraph 45(4)(f) of the Surveillance Devices Act 2004 (see Part 6 of this Schedule). Telecommunications (Interception and Access) Act 1979 7 Subsection 5(1) Insert: International Criminal Court has the same meaning as ICC in the International Criminal Court Act 2002. War Crimes Tribunal has the same meaning as Tribunal in the International War Crimes Tribunals Act 1995. 8 After paragraph 68(l) Insert: (la) if the Attorney‑General has authorised the provision of the information to the International Criminal Court under section 69A of the International Criminal Court Act 2002—to: (i) that Court; or (ii) the Secretary of the Department for the purpose of providing the information to that Court; and (lb) if the Attorney‑General has authorised the provision of the information to a War Crimes Tribunal under section 25A of the International War Crimes Tribunals Act 1995—to: (i) that Tribunal; or (ii) the Secretary of the Department for the purpose of providing the information to that Tribunal; and 9 Section 68A Repeal the section, substitute: 68A Communicating information obtained by the Secretary (1) This section applies to information communicated to the Secretary of the Department as described in an item of the following table: Information to which this section applies Item Information communicated under this provision: For the purpose of providing it to this entity: 1 paragraph 68(l) the foreign country concerned 2 paragraph 68(la) the International Criminal Court 3 paragraph 68(lb) the War Crimes Tribunal concerned (2) Each of the following: (a) the Secretary of the Department; (b) a person authorised by the Secretary; (c) a person or other entity to whom the information has been communicated under this subsection; may communicate the information to another person or entity for purposes connected with providing the information to the entity mentioned in that table item. 10 Section 102B Repeal the section, substitute: 102B Report regarding international requests The report must set out the number of occasions on which lawfully intercepted information or interception warrant information was communicated to any of the following: (a) a foreign country under paragraph 68(l) or section 68A; (b) the International Criminal Court under paragraph 68(la) or section 68A; (c) a War Crimes Tribunal under paragraph 68(lb) or section 68A. 11 Application and transitional provisions (1) The amendments made by this Part apply in relation to a request made to the Attorney‑General by the ICC, a Tribunal or a foreign country: (a) on or after the commencement of this item; or (b) before the commencement of this item, if, immediately before that commencement, the Attorney‑General had yet to make a decision on the request. (2) The amendments so apply: (a) whether the material requested was lawfully obtained in Australia before, on or after that commencement; and (b) whether conduct, a crime or an offence to which the request relates occurred before, on or after that commencement. (3) An authorisation that: (a) was made, before the commencement of this item, under subsection 68A(1) of the Telecommunications (Interception and Access) Act 1979 as in force before that commencement; and (b) was in force immediately before that commencement; continues in force (and may be dealt with) after that commencement as if it had been made under subsection 68A(2) of that Act as amended by this Part. Part 2—Producing documents or other articles International Criminal Court Act 2002 12 Subsection 66(2) Omit "the magistrate must", substitute "a magistrate must". 13 Subsection 66(2) Omit "to the magistrate", substitute "to that magistrate". 14 Subsection 66(3) Omit "the magistrate may", substitute "a magistrate may". 15 Subsection 66(3) Omit "the magistrate to", substitute "that magistrate to". 16 Application of amendments The amendments of the International Criminal Court Act 2002 made by this Part apply in relation to the following: (a) a requirement to produce documents or other articles that is made on or after the commencement of this item; (b) a requirement to produce documents or other articles that is made before the commencement of this item if: (i) the documents or other articles had not been produced immediately before the commencement of this item; or (ii) the documents or other articles were produced before the commencement of this item but, immediately before that commencement, the documents (or copies of the documents) or other articles had not been sent to the Attorney‑General as required by subsection 66(2) or (3) of that Act. International War Crimes Tribunals Act 1995 17 Subsection 28(2) Omit "the magistrate must", substitute "a magistrate must". 18 Subsection 28(2) Omit "to the magistrate", substitute "to that magistrate". 19 Subsection 28(3) Omit "the magistrate may", substitute "a magistrate may". 20 Subsection 28(3) Omit "the magistrate to", substitute "that magistrate to". 21 Application of amendments The amendments of the International War Crimes Tribunals Act 1995 made by this Part apply in relation to the following: (a) a requirement to produce documents or other articles that is made on or after the commencement of this item; (b) a requirement to produce documents or other articles that is made before the commencement of this item if: (i) the documents or other articles had not been produced immediately before the commencement of this item; or (ii) the documents or other articles were produced before the commencement of this item but, immediately before that commencement, the documents (or copies of the documents) or other articles had not been sent to the Attorney‑General as required by subsection 28(2) or (3) of that Act. Part 3—Covert access to stored communications International Criminal Court Act 2002 22 Section 4 Insert: carrier has the same meaning as in the Telecommunications (Interception and Access) Act 1979 (other than Part 5‑4 or 5‑4A of that Act). 23 Section 4 (paragraph (b) of the definition of police officer) Omit "police force of a State or Territory", substitute "police force or police service of a State". 24 Section 4 Insert: stored communication has the same meaning as in the Telecommunications (Interception and Access) Act 1979. 25 After Division 11 of Part 4 Insert: Division 11A—Stored communications 78A Authorising application for a stored communications warrant The Attorney‑General may authorise, in writing, the Australian Federal Police, or the police force or police service of a State, to apply for a stored communications warrant under section 110 of the Telecommunications (Interception and Access) Act 1979 if: (a) the Attorney‑General is satisfied that: (i) an investigation is being conducted by the Prosecutor or a proceeding is before the ICC; and (ii) there are reasonable grounds to believe that stored communications relevant to the investigation or proceeding are held by a carrier; and (b) the ICC has requested the Attorney‑General to arrange for access to the stored communications. Note: Information obtained under the warrant may only be communicated to the ICC on certain conditions: see subsection 142A(1) of the Telecommunications (Interception and Access) Act 1979. International War Crimes Tribunals Act 1995 26 Section 4 Insert: carrier has the same meaning as in the Telecommunications (Interception and Access) Act 1979 (other than Part 5‑4 or 5‑4A of that Act). 27 Section 4 (paragraph (b) of the definition of police officer) Omit "police force of a State or Territory", substitute "police force or police service of a State". 28 Section 4 Insert: stored communication has the same meaning as in the Telecommunications (Interception and Access) Act 1979. 29 After Division 2 of Part 4 Insert: Division 2A—Stored communications 34A Authorising application for a stored communications warrant The Attorney‑General may authorise, in writing, the Australian Federal Police or the police force or police service of a State to apply for a stored communications warrant under section 110 of the Telecommunications (Interception and Access) Act 1979 if: (a) the Attorney‑General is satisfied that: (i) a proceeding is before, or an investigation is being conducted by, a Tribunal; and (ii) there are reasonable grounds to believe that stored communications relevant to the proceeding or investigation are held by a carrier; and (b) the Tribunal has requested the Attorney‑General to arrange for access to the stored communications. Note: Information obtained under the warrant may only be communicated to the Tribunal on certain conditions: see subsection 142A(1) of the Telecommunications (Interception and Access) Act 1979. Telecommunications (Interception and Access) Act 1979 30 Subsection 5(1) Insert: access request has the meaning given by subsection 107P(1). crime within the jurisdiction of the ICC has the same meaning as in the International Criminal Court Act 2002. international assistance application means an application for a stored communications warrant made as a result of: (a) an authorisation under section 15B of the Mutual Assistance in Criminal Matters Act 1987; or (b) an authorisation under section 78A of the International Criminal Court Act 2002; or (c) an authorisation under section 34A of the International War Crimes Tribunals Act 1995. international offence has the meaning given by subsection 162(3). 31 Subsection 5(1) (definition of mutual assistance application) Repeal the definition. 32 Subsection 5(1) Insert: serious foreign contravention means: (a) a contravention of a law of a foreign country that is punishable by a maximum penalty of: (i) imprisonment for 3 years or more, imprisonment for life or the death penalty; or (ii) a fine of an amount that is at least equivalent to 900 penalty units; or (b) a crime within the jurisdiction of the ICC; or (c) a War Crimes Tribunal offence. War Crimes Tribunal offence has the same meaning as Tribunal offence in the International War Crimes Tribunals Act 1995. 33 Section 5EA Repeal the section. 34 Section 107G After "contravention of certain foreign laws", insert "or to certain international offences". 35 Section 107G After "foreign country", insert ", the International Criminal Court or a War Crimes Tribunal". 36 Section 107P Repeal the section, substitute: 107P Condition for giving a foreign preservation notice (1) An entity mentioned in the following table may request the Australian Federal Police to arrange for the preservation of stored communications that: (a) relate to a specified person or specified telecommunications service; and (b) are held by a carrier; and (c) are relevant to an investigation, investigative proceeding, or proceeding relating to a serious foreign contravention; if the entity intends to make a request (an access request) under a provision mentioned in the table to the Attorney‑General to arrange for access to those stored communications. Requesting access to stored communications Item This entity: May make an access request under: 1 a foreign country paragraph 15B(d) of the Mutual Assistance in Criminal Matters Act 1987 2 the International Criminal Court paragraph 78A(b) of the International Criminal Court Act 2002 3 a War Crimes Tribunal paragraph 34A(b) of the International War Crimes Tribunals Act 1995 (2) The request by the entity to the Australian Federal Police must: (a) be in writing; and (b) name the entity or the entity's authority concerned with the serious foreign contravention; and (c) specify the serious foreign contravention that is the subject of the investigation, investigative proceeding or proceeding; and (d) specify information identifying the stored communications to be preserved and the relationship between those communications and the serious foreign contravention; and (e) specify any information the entity has that identifies the carrier that holds the stored communications; and (f) if the stored communications relate to a specified person—specify any information the entity has that identifies the telecommunications service to which the stored communications relate; and (g) specify the reasons why the stored communications need to be preserved; and (h) specify that the entity intends to make an access request for the stored communications. 37 Subparagraph 107Q(b)(ii) Repeal the subparagraph, substitute: (ii) if a stored communications warrant authorising access to the stored communications covered by the notice is issued as a result of the access request—when the warrant ceases to be in force. 38 Paragraph 107R(1)(a) Repeal the paragraph, substitute: (a) an entity requests under section 107P the Australian Federal Police to arrange for the preservation of stored communications that are held by a carrier; and 39 Paragraph 107R(1)(c) Repeal the paragraph, substitute: (c) during the period of 180 days starting on the day the carrier was given the notice, the entity did not make an access request to the Attorney‑General to arrange for access to those communications; 40 Paragraph 107R(2)(a) Repeal the paragraph, substitute: (a) an entity requests under section 107P the Australian Federal Police to arrange for the preservation of stored communications that are held by a carrier; and 41 Paragraph 107R(2)(c) Repeal the paragraph, substitute: (c) the entity makes an access request to the Attorney‑General to arrange for access to those communications; and 42 Paragraph 107R(2)(d) Omit "request", substitute "access request". 43 Paragraph 107R(3)(a) Repeal the paragraph, substitute: (a) an entity requests under section 107P the Australian Federal Police to arrange for the preservation of stored communications that are held by a carrier; and 44 Paragraph 107R(3)(c) Omit "foreign country", substitute "entity". 45 Paragraph 116(1)(d) Repeal the paragraph, substitute: (d) information that would be likely to be obtained by accessing those stored communications under a stored communications warrant would be likely to assist in connection with: (i) unless subparagraph (ii) applies—the investigation by the agency of a serious contravention in which the person is involved (including as a victim of the serious contravention); or (ii) for an international assistance application—the investigation, investigative proceeding, or proceeding by the entity to which the application relates, of a serious foreign contravention to which the application relates and in which the person is involved (including as a victim of the serious foreign contravention); and 46 Subsection 116(2) Omit "In the case of an application other than a mutual assistance application", substitute "For an application other than an international assistance application". 47 Subsection 116(2A) Omit "In the case of a mutual assistance application", substitute "For an international assistance application". 48 Paragraph 116(2A)(c) Repeal the paragraph, substitute: (c) how much the information referred to in subparagraph (1)(d)(ii) would be likely to assist in connection with the investigation, investigative proceeding, or proceeding, to the extent that this is possible to determine from information obtained from the entity to which the application relates. 49 Subsection 139(2) Omit "a mutual assistance application", substitute "an international assistance application". 50 Paragraph 139(2)(e) Repeal the paragraph, substitute: (e) an authorisation under any of the following provisions in respect of the information: (i) subsection 13A(1) of the Mutual Assistance in Criminal Matters Act 1987; (ii) section 69A of the International Criminal Court Act 2002; (iii) section 25A of the International War Crimes Tribunals Act 1995. 51 Subsection 139(4A) Repeal the subsection, substitute: (4A) In the case of information obtained by the agency through the execution of a warrant issued as a result of an international assistance application, the purposes are purposes connected with: (a) providing the information to the entity to which the application relates, or to an appropriate authority of that entity; or (b) the keeping of records by the agency under Part 3‑5. 52 Section 142A Repeal the section, substitute: 142A Communicating information obtained as a result of an international assistance application (1) If information is obtained through the execution of a warrant issued as a result of an international assistance application, a person may only communicate the information to the entity to which the application relates on the following conditions: (a) that the information will only be used for the purposes for which the entity requested the information; (b) that any document or other thing containing the information will be destroyed when it is no longer required for those purposes; (c) any other condition determined, in writing, by the Attorney‑General. (2) Subsection (1) has effect despite subsection 139(4A) and section 142. (3) A determination under paragraph (1)(c) is not a legislative instrument. 53 Paragraph 151(1)(g) Omit "mutual assistance, being a request to which a mutual assistance application", substitute "international assistance, being a request to which an international assistance application". 54 Paragraph 162(1)(c) Omit "mutual assistance applications", substitute "international assistance applications". 55 Paragraph 162(1)(d) Repeal the paragraph, substitute: (d) for each international offence for the agency—the offence (if any), under a law of the Commonwealth, a State or a Territory, that is of the same, or a substantially similar, nature to the international offence. 56 Paragraph 162(2)(ba) Omit "mutual assistance applications", substitute "international assistance applications". 57 Paragraph 162(2)(e) Repeal the paragraph, substitute: (e) for each international offence for each enforcement agency—the offence (if any), under a law of the Commonwealth, a State or a Territory, that is of the same, or a substantially similar, nature to the international offence. 58 At the end of section 162 Add: (3) An international offence, for an enforcement agency, is: (a) an offence against a law of a foreign country; or (b) a crime within the jurisdiction of the ICC; or (c) a War Crimes Tribunal offence; in respect of which a stored communications warrant was issued as a result of an international assistance application made by the agency during the year. 59 Section 163A Repeal the section, substitute: 163A Report regarding international requests The report must set out the number of occasions on which lawfully accessed information or stored communications warrant information was communicated under subsection 139(1) or section 142 to any of the following: (a) a foreign country; (b) the International Criminal Court; (c) a War Crimes Tribunal; for a purpose connected with an authorisation referred to in paragraph 139(2)(e). 60 Application and transitional provisions (1) The amendments made by this Part apply in relation to a request made to the Attorney‑General by the ICC, a Tribunal or a foreign country: (a) on or after the commencement of this item; or (b) before the commencement of this item, if, immediately before that commencement, the Attorney‑General had yet to make a decision on the request. (2) The amendments made by this Part apply in relation to a request made to the Australian Federal Police by the ICC, a Tribunal or a foreign country: (a) on or after the commencement of this item; and (b) under section 107P of the Telecommunications (Interception and Access) Act 1979 (as inserted by this Part). (3) The amendments so apply as a result of subitem (1) or (2): (a) whether the stored communications to which the request relates became stored communications before, on or after that commencement; and (b) whether conduct, a crime or an offence to which the request relates occurred before, on or after that commencement. (4) If: (a) a foreign country makes a request to which subitem (1) applies (the access request); and (b) before the commencement of this item, the foreign country made a request (the preservation request) under section 107P of the Telecommunications (Interception and Access) Act 1979 because the foreign country intended to make the access request; the preservation request continues in existence (and may be dealt with) after that commencement as if it had been made under that section as amended by this Part. (5) A determination that: (a) was made, before the commencement of this item, under paragraph 142A(1)(c) of the Telecommunications (Interception and Access) Act 1979 (as in force before that commencement); and (b) was in force immediately before that commencement; continues in force (and may be dealt with) after that commencement as if it had been made under that paragraph as amended by this Part. Part 4—Historical telecommunications data Telecommunications (Interception and Access) Act 1979 61 Subsection 5(1) (at the end of the definition of foreign law enforcement agency) Add: ; or (c) any other authority or person responsible to the International Criminal Court for investigating or prosecuting a crime within the jurisdiction of the ICC; or (d) any other authority or person responsible to a War Crimes Tribunal for investigating or prosecuting a War Crimes Tribunal offence. 62 Section 180A (heading) Repeal the heading, substitute: 180A Authorisations for access to existing information or documents—enforcing foreign or international laws 63 Subsection 180A(3) Repeal the subsection, substitute: (3) The authorised officer must not make the authorisation unless he or she is satisfied that the disclosure is reasonably necessary for: (a) the enforcement of the criminal law of a foreign country; or (b) an investigation or prosecution of a crime within the jurisdiction of the ICC; or (c) an investigation or prosecution of a War Crimes Tribunal offence. 64 Subsection 180A(5) Repeal the subsection, substitute: (5) The authorised officer must not make the authorisation unless he or she is satisfied that the disclosure is appropriate in all the circumstances and that the disclosure is reasonably necessary for: (a) the enforcement of the criminal law of a foreign country; or (b) an investigation or prosecution of a crime within the jurisdiction of the ICC; or (c) an investigation or prosecution of a War Crimes Tribunal offence. 65 Section 180C (heading) Repeal the heading, substitute: 180C Authorisations to disclose information or documents—enforcing foreign or international laws 66 Subsection 180C(2) Repeal the subsection, substitute: (2) The authorised officer must not make the authorisation unless he or she is satisfied that the disclosure is appropriate in all the circumstances and that the disclosure is reasonably necessary for: (a) the enforcement of the criminal law of a foreign country; or (b) an investigation or prosecution of a crime within the jurisdiction of the ICC; or (c) an investigation or prosecution of a War Crimes Tribunal offence. 67 Subdivision C of Division 4A of Part 4‑1 (heading) Repeal the heading, substitute: Subdivision C—Conditions of disclosure to foreign law enforcement agencies 68 Section 180E (heading) Repeal the heading, substitute: 180E Disclosing information etc. to foreign countries or foreign law enforcement agencies 69 Subsection 180E(1) After "foreign country" (wherever occurring), insert "or foreign law enforcement agency". 70 Application of amendments The amendments made by this Part apply in relation to a disclosure of information or documents on or after the commencement of this item: (a) whether the information or documents were acquired before, on or after that commencement; and (b) whether conduct, a crime or an offence to which the disclosure relates occurred before, on or after that commencement. Part 5—Prospective telecommunications data International Criminal Court Act 2002 71 Section 4 Insert: communication has the same meaning as in the Telecommunications (Interception and Access) Act 1979. telecommunications system has the same meaning as in the Telecommunications (Interception and Access) Act 1979. 72 Before Division 12 of Part 4 Insert: Division 11B—Prospective telecommunications data 78B Authorising an authorisation for the disclosure of prospective telecommunications data (1) The Attorney‑General may authorise, in writing, the making of an authorisation under section 180B of the Telecommunications (Interception and Access) Act 1979 for the disclosure of information or documents if: (a) the ICC has requested the Attorney‑General to arrange for the disclosure of the information or documents; and (b) the information or documents come into existence during a period specified by the ICC, and which started on or after the day the request was made; and (c) the Attorney‑General is satisfied that: (i) an investigation is being conducted by the Prosecutor or a proceeding is before the ICC; and (ii) the information or documents relate to the fact of a communication passing over a telecommunications system during that period. Note: The information or documents will not be disclosed unless they are reasonably necessary for the investigation or proceeding (see subsection 180B(3) of that Act). (2) To avoid doubt, information or documents do not relate to the fact of a communication passing over a telecommunications system to the extent that the information is, or the documents contain, the contents or substance of a communication. International War Crimes Tribunals Act 1995 73 Section 4 Insert: communication has the same meaning as in the Telecommunications (Interception and Access) Act 1979. telecommunications system has the same meaning as in the Telecommunications (Interception and Access) Act 1979. 74 Before Division 3 of Part 4 Insert: Division 2B—Prospective telecommunications data 34B Authorising an authorisation for the disclosure of prospective telecommunications data (1) The Attorney‑General may authorise, in writing, the making of an authorisation under section 180B of the Telecommunications (Interception and Access) Act 1979 for the disclosure of information or documents if: (a) a Tribunal has requested the Attorney‑General to arrange for the disclosure of the information or documents; and (b) the information or documents come into existence during a period specified by the Tribunal, and which started on or after the day the request was made; and (c) the Attorney‑General is satisfied that: (i) a proceeding is before, or an investigation is being conducted by, the Tribunal; and (ii) the information or documents relate to the fact of a communication passing over a telecommunications system during a period specified in the Tribunal's request. Note: The information or documents will not be disclosed unless they are reasonably necessary for the investigation or proceeding (see subsection 180B(3) of that Act). (2) To avoid doubt, information or documents do not relate to the fact of a communication passing over a telecommunications system to the extent that the information is, or the documents contain, the contents or substance of a communication. Telecommunications (Interception and Access) Act 1979 75 Section 180B (heading) Repeal the heading, substitute: 180B Authorisations for access to prospective information or documents—enforcing international laws 76 Subsection 180B(3) Repeal the subsection, substitute: (3) The authorised officer must not make the authorisation unless: (a) the Attorney‑General has authorised the making of the authorisation under a provision mentioned in an item of the following table; and (b) the authorised officer is satisfied that: (i) the disclosure is reasonably necessary for an investigation or proceeding referred to in that table item; and (ii) the disclosure is appropriate in all the circumstances. Authorising access to prospective information or documents Item For Attorney‑General authorisations under: the investigation or proceeding is: 1 section 15D of the Mutual Assistance in Criminal Matters Act 1987 an investigation or proceeding relating to an offence against the law of a foreign country that: (a) is punishable by imprisonment for 3 years or more, imprisonment for life or the death penalty; or (b) involves an act or omission that, if it had occurred in Australia, would be a serious offence 2 section 78B of the International Criminal Court Act 2002 an investigation or proceeding relating to a crime within the jurisdiction of the ICC 3 section 34B of the International War Crimes Tribunals Act 1995 an investigation or proceeding relating to a War Crimes Tribunal offence 77 Paragraph 180B(6)(a) Repeal the paragraph, substitute: (a) reasonably necessary for an investigation or proceeding of a kind referred to in the relevant table item in subsection (3); and 78 Paragraph 180B(8)(a) Repeal the paragraph, substitute: (a) reasonably necessary for an investigation or proceeding of a kind referred to in the relevant table item in subsection (3); and 79 Application of amendments The amendments made by this Part apply in relation to a request made to the Attorney‑General by the ICC, a Tribunal or a foreign country: (a) on or after the commencement of this item; or (b) before the commencement of this item, if, immediately before that commencement, the Attorney‑General had yet to make a decision on the request; whether conduct, a crime or an offence to which the request relates occurred before, on or after that commencement. Part 6—Use of surveillance devices International Criminal Court Act 2002 80 Section 4 Insert: eligible law enforcement officer has the meaning given by subsection 79A(2). 81 After Division 12 of Part 4 Insert: Division 12A—Requests for surveillance devices 79A Authorising applications for surveillance device warrants (1) The Attorney‑General may authorise, in writing, an eligible law enforcement officer to apply for a surveillance device warrant under section 14 of the Surveillance Devices Act 2004 if: (a) the ICC has requested the Attorney‑General to arrange for the use of a surveillance device; and (b) the Attorney‑General is satisfied that an investigation is being conducted by the Prosecutor, or a proceeding is before the ICC; and (c) the Attorney‑General is satisfied that the ICC has given appropriate undertakings for: (i) ensuring that the information obtained as a result of the use of the device will only be used for the purpose for which it is communicated to the ICC; and (ii) the destruction of a document or other thing containing information obtained as a result of the use of the device; and (iii) any other matter the Attorney‑General considers appropriate. Note: The eligible law enforcement officer can only apply for the warrant if he or she reasonably suspects that the use of the device is necessary for the investigation or proceeding (see subsection 14(3A) of the Surveillance Devices Act 2004). (2) An eligible law enforcement officer is a person mentioned in column 3 of table item 5 in subsection 6A(6), or column 3 of table item 5 in subsection 6A(7), of the Surveillance Devices Act 2004. International War Crimes Tribunals Act 1995 82 Section 4 Insert: eligible law enforcement officer has the meaning given by subsection 32A(2). 83 After Division 1 of Part 4 Insert: Division 1A—Requests for surveillance devices 32A Authorising applications for surveillance device warrants (1) The Attorney‑General may authorise, in writing, an eligible law enforcement officer to apply for a surveillance device warrant under section 14 of the Surveillance Devices Act 2004 if: (a) a Tribunal has requested the Attorney‑General to arrange for the use of a surveillance device; and (b) the Attorney‑General is satisfied that a proceeding is before, or an investigation is being conducted by, the Tribunal; and (c) the Attorney‑General is satisfied that the Tribunal has given appropriate undertakings for: (i) ensuring that the information obtained as a result of the use of the device will only be used for the purpose for which it is communicated to the Tribunal; and (ii) the destruction of a document or other thing containing information obtained as a result of the use of the device; and (iii) any other matter the Attorney‑General considers appropriate. Note: The eligible law enforcement officer can only apply for the warrant if he or she reasonably suspects that the use of the device is necessary for the investigation or proceeding (see subsection 14(3A) of the Surveillance Devices Act 2004). (2) An eligible law enforcement officer is a person mentioned in column 3 of table item 5 in subsection 6A(6), or column 3 of table item 5 in subsection 6A(7), of the Surveillance Devices Act 2004. Surveillance Devices Act 2004 84 Subsection 6(1) Insert: international assistance application means an application for a surveillance device warrant made under an international assistance authorisation. international assistance authorisation means: (a) an authorisation under subsection 15CA(1) of the Mutual Assistance in Criminal Matters Act 1987; or (b) an authorisation under subsection 79A(1) of the International Criminal Court Act 2002; or (c) an authorisation under subsection 32A(1) of the International War Crimes Tribunals Act 1995. 85 Subsection 6(1) Repeal the following definitions: (a) definition of mutual assistance application; (b) definition of mutual assistance authorisation. 86 Subsection 6(1) Insert: offence has a meaning affected by subsection (5). 87 At the end of section 6 Add: (5) To avoid doubt, a reference in this Act to an offence in relation to: (a) an international assistance authorisation that is an authorisation under subsection 79A(1) of the International Criminal Court Act 2002; or (b) an international assistance application that is related to such an authorisation; is a reference to a crime within the jurisdiction of the ICC (within the meaning of that Act). 88 Subsection 14(3A) Repeal the subsection, substitute: Warrants sought for international assistance investigations (3A) A law enforcement officer (or a person on his or her behalf) may apply for the issue of a surveillance device warrant if he or she: (a) is authorised to do so under an international assistance authorisation; and (b) suspects on reasonable grounds that the use of a surveillance device is necessary, in the course of the investigation, proceeding or investigative proceeding to which the authorisation relates, for the purpose of enabling evidence to be obtained of: (i) the commission of an offence to which the authorisation relates; or (ii) the identity or location of the persons suspected of committing the offence. 89 Paragraphs 16(1)(ba) and (2)(a) Omit "a mutual assistance authorisation", substitute "an international assistance authorisation". 90 Paragraph 16(2)(ea) Repeal the paragraph, substitute: (ea) in the case of a warrant sought in relation to an international assistance authorisation—the likely evidentiary or intelligence value of any evidence or information sought to be obtained, to the extent that this is possible to determine from information obtained from the international entity to which the authorisation relates; and 91 Subparagraph 17(1)(b)(iiia) Repeal the subparagraph, substitute: (iiia) if the warrant relates to an international assistance authorisation—each offence to which the authorisation relates; and 92 Paragraph 21(3A)(a) Omit "a mutual assistance authorisation", substitute "an international assistance authorisation". 93 Subparagraph 21(3A)(b)(i) Repeal the subparagraph, substitute: (i) the commission of any offence to which the authorisation relates; or 94 Paragraph 21(5)(c) Repeal the paragraph, substitute: (c) if the warrant was issued in relation to an international assistance authorisation—of enabling evidence to be obtained of: (i) the commission of any offence to which the authorisation relates; or (ii) the identity or location of the persons suspected of committing the offence; 95 Paragraph 45(4)(f) Repeal the paragraph, substitute: (f) the communication of information for the purpose of providing it to one of the following entities (or to an appropriate authority of that entity): (i) a foreign country; (ii) the International Criminal Court; (iii) a War Crimes Tribunal; if the information was obtained under, or relates to, a surveillance device warrant issued in relation to an international assistance authorisation requested by that entity; or (g) the communication of information for the purpose of providing it to a foreign country, or an appropriate authority of a foreign country, if this has been authorised under subsection 13A(1) of the Mutual Assistance in Criminal Matters Act 1987; or 96 Subsection 45(6) After "Paragraphs (4)(f)", insert "and (g)". 97 Paragraphs 50(1)(aa) and (ea) Omit "mutual assistance applications", substitute "international assistance applications". 98 Paragraph 50(1)(ia) Repeal the paragraph, substitute: (ia) for each of the following offences: (i) an offence against a law of a foreign country; (ii) a crime within the jurisdiction of the ICC (within the meaning of the International Criminal Court Act 2002); (iii) a Tribunal offence (within the meaning of the International War Crimes Tribunals Act 1995); in respect of which a warrant was issued as a result of an international assistance application made by or on behalf of law enforcement officers of the agency during the year—the offence (if any), under a law of the Commonwealth, a State or a Territory, that is of the same, or a substantially similar, nature; and 99 Subparagraph 53(2)(c)(iiia) Repeal the subparagraph, substitute: (iiia) if the warrant was issued in relation to an international assistance authorisation—each offence to which the authorisation relates; and 100 Application of amendments The amendments made by this Part apply in relation to a request made to the Attorney‑General by the ICC, a Tribunal or a foreign country: (a) on or after the commencement of this item; or (b) before the commencement of this item, if, immediately before that commencement, the Attorney‑General had yet to make a decision on the request; whether conduct, a crime or an offence to which the request relates occurred before, on or after that commencement. Part 7—Forensic procedures Crimes Act 1914 101 Part ID (simplified outline) Omit "(as contemplated by the Mutual Assistance in Criminal Matters Act 1987)", substitute "or an international tribunal,". 102 Subsection 23WA(1) Insert: authorising provision, in relation to a request by a foreign country or international tribunal, means whichever of the following provisions that refers to the request: (a) section 28B of the Mutual Assistance in Criminal Matters Act 1987; (b) section 76A of the International Criminal Court Act 2002; (c) section 32B of the International War Crimes Tribunals Act 1995. crime within the jurisdiction of the ICC has the same meaning as in the International Criminal Court Act 2002. 103 Subsection 23WA(1) (at the end of the definition of foreign law enforcement agency) Add: ; or (c) any other authority or person responsible to the ICC for investigating or prosecuting a crime within the jurisdiction of the ICC; or (d) any other authority or person responsible to a War Crimes Tribunal for investigating or prosecuting a War Crimes Tribunal offence. 104 Subsection 23WA(1) (definition of foreign serious offence) Repeal the definition, substitute: foreign serious offence means: (a) a foreign serious offence (within the meaning of the Mutual Assistance in Criminal Matters Act 1987); or (b) a crime within the jurisdiction of the ICC; or (c) a War Crimes Tribunal offence. 105 Subsection 23WA(1) Insert: ICC has the same meaning as in the International Criminal Court Act 2002. international tribunal means: (a) the ICC; or (b) a War Crimes Tribunal. 106 Subsection 23WA(1) (paragraph (a) of the definition of investigating constable) Omit "(as contemplated by the Mutual Assistance in Criminal Matters Act 1987)", substitute ", an international tribunal". 107 Subsection 23WA(1) Insert: request, by a foreign country, international tribunal or foreign law enforcement agency, means: (a) in the case of a foreign country—a request, referred to in section 28B of the Mutual Assistance in Criminal Matters Act 1987, by the country; or (b) in the case of an international tribunal: (i) a request referred to in section 76A of the International Criminal Court Act 2002, if the tribunal is the ICC; or (ii) a request referred to in section 32B of the International War Crimes Tribunals Act 1995, if the tribunal is a War Crimes Tribunal; or (c) in the case of a foreign law enforcement agency—a request, to which Subdivision B of Division 9A applies, by the agency. 108 Subsection 23WA(1) (paragraph (d) of the definition of suspect) Repeal the paragraph, substitute: (d) a person for whom a forensic procedure has been requested by a foreign country, international tribunal or a foreign law enforcement agency because that country, tribunal or agency has: (i) started investigating whether the person has committed an indictable offence; or (ii) started proceedings against the person for an indictable offence. 109 Subsection 23WA(1) Insert: War Crimes Tribunal has the same meaning as Tribunal in the International War Crimes Tribunals Act 1995. War Crimes Tribunal offence has the same meaning as Tribunal offence in the International War Crimes Tribunals Act 1995. 110 Subsection 23WA(9) Repeal the subsection, substitute: Requests by a foreign country, international tribunal or foreign law enforcement agency (9) The provisions of this Part apply in relation to a forensic procedure carried out because of a request by a foreign country, international tribunal or foreign law enforcement agency, as if a reference to an indictable offence were a reference to a foreign serious offence. 111 Paragraph 23WJ(1)(ib) After "a foreign law enforcement agency", insert "(other than an agency responsible to an international tribunal)". 112 After paragraph 23WJ(1)(ib) Insert: (ic) if the suspect is being asked to undergo a forensic procedure because of a request by a foreign law enforcement agency responsible to an international tribunal—the following: (i) the name of the international tribunal for which the request was made; (ii) that forensic evidence resulting from the forensic procedure will be provided to the agency; (iii) that the forensic evidence may be used in proceedings against the suspect in the international tribunal; (iv) that the retention of the forensic evidence will be governed by the rules of the international tribunal; (v) that the retention of the forensic evidence will be subject to undertakings given by the agency; (vi) the content of those undertakings; 113 Subsection 23WJ(6) Repeal the subsection, substitute: Failure to consent to forensic procedure—procedure requested by foreign law enforcement agency (6) The constable must inform the suspect (whether or not the suspect is in custody) that if: (a) the suspect is being asked to undergo a forensic procedure because of a request by a foreign law enforcement agency; and (b) the suspect does not consent; the Attorney‑General may be requested to authorise (under an authorising provision) an authorised applicant to apply to a magistrate for an order for the carrying out of the forensic procedure. 114 Paragraph 23WM(2A)(a) Repeal the paragraph, substitute: (a) a foreign country or international tribunal; or 115 Paragraph 23WR(1)(d) Repeal the paragraph, substitute: (d) the forensic procedure has been requested by a foreign country or an international tribunal. 116 Paragraph 23WT(1)(ca) Repeal the paragraph, substitute: (ca) if the forensic procedure has been requested by a foreign country or an international tribunal—a constable has been authorised by the Attorney‑General, under the authorising provision relating to the request, to apply for an order under this Part; and 117 Paragraph 23WT(2)(a) Repeal the paragraph, substitute: (a) if the forensic procedure has been requested by a foreign country or an international tribunal—balance the public interest in Australia providing and receiving international assistance in criminal matters against the public interest in upholding the physical integrity of the suspect; and 118 Paragraph 23XWR(2)(da) After "a foreign law enforcement agency", insert "(other than an agency responsible to an international tribunal)". 119 After paragraph 23XWR(2)(da) Insert: (db) if the volunteer undergoes a forensic procedure because of a request by a foreign law enforcement agency responsible to an international tribunal—the following: (i) the name of the international tribunal for which the request was made; (ii) that forensic evidence resulting from the forensic procedure will be provided to the agency; (iii) that the forensic evidence may be used in proceedings in the international tribunal; (iv) that the retention of the forensic evidence will be governed by the rules of the international tribunal; (v) that the retention of the forensic evidence will be subject to undertakings given by the agency; (vi) the content of those undertakings; 120 Paragraph 23XWU(1)(d) Repeal the paragraph, substitute: (d) in the case of a forensic procedure requested by a foreign country or an international tribunal—a constable has been authorised by the Attorney‑General, under the authorising provision relating to the request, to apply for an order under this Part. 121 Section 23YBA Repeal the section, substitute: 23YBA Division does not apply to a proceeding in a foreign country or an international tribunal To avoid doubt, this Division does not apply in relation to a proceeding in a foreign country or international tribunal in which forensic evidence is provided in response to a request by: (a) a foreign country; or (b) an international tribunal; or (c) a foreign law enforcement agency. 122 Section 23YBB Repeal the section, substitute: 23YBB Application This Division does not apply to forensic evidence provided in response to a request by a foreign country, an international tribunal or a foreign law enforcement agency. 123 Subsection 23YDAC(1) (after paragraph (aa) of the definition of crime scene index) Insert: (ab) at any place outside Australia where: (i) a crime within the jurisdiction of the ICC; or (ii) a War Crimes Tribunal offence; was, or is reasonably suspected of having been, committed; or 124 Paragraph 23YDAE(2)(da) Repeal the paragraph, substitute: (da) the purpose of assisting a foreign country or international tribunal to decide whether to make a request; 125 Paragraph 23YDAE(2)(e) After "Mutual Assistance in Criminal Matters Act 1987", insert ", the International Criminal Court Act 2002, the International War Crimes Tribunals Act 1995". 126 Subsection 23YF(1) (note 1) Repeal the note, substitute: Note 1: If a forensic procedure is carried out as a result of a request by a foreign country or an international tribunal, a copy of anything made may also be provided to that country or tribunal: see section 23YQB. 127 Section 23YKA Repeal the section, substitute: 23YKA Application of sections 23YI to 23YK To avoid doubt, sections 23YI to 23YK do not apply in relation to a proceeding in a foreign country or international tribunal in which forensic evidence is provided in response to a request by: (a) a foreign country; or (b) an international tribunal; or (c) a foreign law enforcement agency. 128 Paragraph 23YO(2)(da) Repeal the paragraph, substitute: (da) the purposes of assisting a foreign country or international tribunal to decide whether to make a request; 129 Paragraph 23YO(2)(e) After "Mutual Assistance in Criminal Matters Act 1987", insert ", the International Criminal Court Act 2002, the International War Crimes Tribunals Act 1995". 130 Paragraph 23YO(3)(d) After "Mutual Assistance in Criminal Matters Act 1987", insert ", the International Criminal Court Act 2002, the International War Crimes Tribunals Act 1995". 131 Division 9A of Part ID (heading) Repeal the heading, substitute: Division 9A—Carrying out forensic procedures at the request of a foreign country or international tribunal 132 Subdivision A of Division 9A of Part ID Repeal the Subdivision, substitute: Subdivision A—Requests by foreign countries or international tribunals 23YQA Application of Subdivision This Subdivision applies if: (a) a request is made by a foreign country or an international tribunal (the requesting entity) for a forensic procedure to be carried out on a person; and (b) the Attorney‑General authorises, under the authorising provision relating to the request, an authorised applicant to apply to a magistrate for the carrying out of the forensic procedure on the person. 23YQB Providing evidence and material resulting from the forensic procedure (1) Any forensic evidence resulting from the forensic procedure must be provided to the requesting entity in accordance with a direction described in subsection (3). (2) Material (or a copy) relating to the request that was made available to, or viewed by, a person under subsection 23YF(1) (about recordings) may only be provided to the requesting entity in accordance with a direction described in subsection (3). (3) The direction is one given by the Attorney‑General under the following provision: (a) section 28C of the Mutual Assistance in Criminal Matters Act 1987, if the request was made by a foreign country; (b) section 76B of the International Criminal Court Act 2002, if the request was made by the ICC; (c) section 32C of the International War Crimes Tribunals Act 1995, if the request was made by a War Crimes Tribunal. (4) This section does not limit the directions that can be given under that provision. 133 At the end of section 23YQC Add: Note: This includes a request by an authority or person responsible