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senate vote 2023-09-04#1
Edited by
mackay staff
on
2024-01-05 13:43:10
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Title
Bills — Crimes and Other Legislation Amendment (Omnibus) Bill 2023; in Committee- Crimes and Other Legislation Amendment (Omnibus) Bill 2023 - in Committee - Explicit considerations for transfer
Description
<p class="speaker">Carol Brown</p><p>I table a supplementary explanatory memorandum relating to the government's amendments to be moved to this bill. I seek leave to move government amendments (1) to (6) on a sheet ZA212 together.</p>-
- The majority voted against [amendments](https://www.openaustralia.org.au/senate/?gid=2023-09-04.67.1) introduced by NSW Senator [David Shoebridge](https://theyvoteforyou.org.au/people/senate/nsw/david_shoebridge) (Greens), which means they failed.
- ### What do these amendments do?
- Senator Shoebridge [explained that](https://www.openaustralia.org.au/senate/?gid=2023-09-04.67.1):
- > *These amendments taken together add in a number of matters that need to be considered by the Attorney-General in making a decision on transferring a prisoner to other countries. They include explicit consideration of matters including a prisoner's welfare, family and community support, medical conditions and disability, and the ability to receive appropriate care for these education, accommodation and employment services post-release.*
<p>Leave granted.</p><p>I move:</p><p class="italic">(1) Schedule 9, page 24 (before line 3), before item 3, insert:</p><p class="italic">3A Section 3</p><p class="italic">Insert:</p><p class="italic"><i>Assistant Commissioner</i> means an Assistant Commissioner of the Australian Federal Police.</p><p class="italic">(2) Schedule 9, item 4, page 27 (after line 3), at the end of section 17B, add:</p><p class="italic"> <i>Suspension decision may only be made by delegate or sub-delegate</i></p><p class="italic">(9) A decision under subsection 17B(1) to suspend the protection and assistance provided to a participant under the NWPP (other than such a decision made as a result of a review under section 17C) may only be made by a person to whom the power to make the decision has been delegated, or sub-delegated, under section 25.</p><p class="italic">(3) Schedule 9, item 4, page 27 (lines 5 to 12), omit subsection 17C(1) (including the note), substitute:</p><p class="italic">(1) This section applies to a decision under subsection 17B(1) to suspend the protection and assistance provided to a participant under the NWPP (a <i>suspension decision</i>), other than such a decision made as a result of a review under this section.</p><p class="italic">(4) Schedule 9, item 4, page 27 (line 15), omit "a Deputy", substitute "the".</p><p class="italic">(5) Schedule 9, item 4, page 27 (lines 16 and 17), omit "the person to whom the application is made", substitute "the Commissioner".</p><p class="italic">(6) Schedule 9, item 5, page 27 (after line 33), after subsection 25(6), insert:</p><p class="italic">(7) The Commissioner's powers under section 17C:</p><p class="italic">(a) may only be delegated to a member of the Australian Federal Police who holds or occupies a designated position; and</p><p class="italic">(b) may, in relation to a particular decision under subsection 17B(1), be exercised by a delegate only if that delegate holds a rank higher than the rank held by the delegate, or sub-delegate, who made the decision under subsection 17B(1).</p><p class="italic">(8) Subject to subsection 17B(9) of this Act, sections 34AA, 34AB and 34A of the <i>Acts Interpretation Act 1901</i> apply in relation to a sub-delegation in a corresponding way to the way in which they apply in relation to a delegation.</p><p>The bill currently provides for the inclusion of a new section 17B in the Witness Protection Act 1994, which allows the AFP commissioner to temporarily suspend the provision of protection and assistance where the participant does or intends to do something that would limit the AFP's ability to provide them with protection and assistance. The government amendments propose minor changes to the bill to ensure that internal merits review is available for all decisions relating to the suspension of protection and assistance under new subsection 17B(1). To achieve this, the government amendments would require that decisions to suspend the provision of protection and assistance under new subsection 17B(1) be made by a delegate or subdelegate of the AFP commissioner, unless the decision is being made as a result of a review under new section 17C. Ensuring these decisions are made by a delegate or subdelegate ensures that there is always a more senior officer available to review all suspension decisions under new subsection 17B(1).</p><p>The government amendments will not alter the fact that decisions to suspend protection and assistance in situations where the suspension was requested by the participant will not be reviewable. It is appropriate that merits review does not apply in these situations, as decisions made at the request of the participant are unlikely to have significant adverse impacts on the rights and interests of that person. The government amendments would also insert a definition of 'assistant commissioner' into the Witness Protection Act. The definition would clarify that 'assistant commissioner' is taken to mean an assistant commissioner of the AFP. This is consistent with the definitions for 'commissioner' and 'deputy commissioner' in the Witness Protection Act. I commend the amendments to the Senate.</p> <p class="speaker">Marise Payne</p><p>The opposition supports these amendments.</p> <p class="speaker">David Shoebridge</p><p>The Greens don't oppose these amendments and think that they have some marginal benefits. But I would ask the government, through you, Deputy President: what was the government's rationale for not adopting the Law Council of Australia's recommendations to set the threshold for suspension of witness protection around the behaviour of or concerns in relation to the person who had the benefit of protection, instead of limiting the capacity to provide protection through the AFP? Why did the government reject the higher threshold and significantly limit the ability of the AFP to provide protection, given that the removal of witness protection can literally be a life-and-death matter?</p> <p class="speaker">Carol Brown</p><p>Thank you, Senator Shoebridge. Regarding the proposal, it's appropriate for protection and assistance to be suspended in circumstances where the AFP's ability to provide protection and assistance may be limited. This is because any limitation on the AFP's ability to provide protection and assistance would present a serious risk to both the participant and the AFP, as it could have serious consequences—for example, result in death or serious injury to the participant.</p> <p class="speaker">David Shoebridge</p><p>SHOEBRIDGE () (): Surely removing witness protection could have serious consequences to the witness, including death and serious injury? I'm unable to understand why the government didn't accept the recommendation of the higher threshold before witness protection is removed. It's one thing to say that the witness's behaviour may limit the ability of the AFP to provide the protection. But surely withdrawing the protection is a far more drastic step. I can't understand, from the government's response, why that higher threshold wasn't adopted. If the witness's behaviour may have a marginal impact in limiting the ability to provide that protection, the idea that the AFP commissioner could withdraw witness protection in those circumstances and potentially see someone exposed to deathly threats seems wrong in policy.</p> <p class="speaker">Carol Brown</p><p>My understanding is that the protection is removed only in situations when the AFP's ability is impeded.</p> <p class="speaker">David Shoebridge</p><p>I come back to the question: that could be a very marginal limitation. And the Law Council said, 'Set the threshold higher; make it a significant limitation before witness protection can be withdrawn.' I ask again why the government continues to resist that higher threshold before the protection is revoked.</p> <p class="speaker">Carol Brown</p><p>Again, I will reiterate that the protection is removed only where the AFP's ability is impeded, and it's appropriate for protection assistance to be suspended in circumstances where the AFP's ability to provide protection and assistance may be limited.</p> <p class="speaker">David Shoebridge</p><p>That's a 'computer says no' answer. Having tried three times, I'll probably move on to my next question. One of the other proposals from the Law Society was to, instead of having a discretion for the commissioner to revoke suspension where the reasons for suspension no longer apply, make it mandatory to return the protection where the reasons for suspension no longer apply. What's the rationale for giving the AFP commissioner or their delegate a discretion to not provide the protection, to not reinstate the protection, where the reasons it was revoked have been removed? In what circumstances is the government proposing that witnesses continue to be exposed to the risk—often to their life or their health and their safety and that of their families—where the rationale for the suspension has been removed? Why would you let the AFP commissioner continue to allow witnesses to have no protection?</p> <p class="speaker">Carol Brown</p><p>I'm advised it's to allow operational flexibility.</p> <p class="speaker">David Shoebridge</p><p>We've come back to the 'computer says no' response. This is almost an articulation of why we're concerned by computer assisted decision-making, which is another aspect of this bill. Is the government proposing to give the AFP commissioner flexibility to leave people without the benefit of witness protection simply for operational efficiencies when there has been a prior determination that they should have witness protection—that is, where they have been engaged in some conduct that limits capacity, that conduct is removed and the reasons are no longer there? Is the government seriously putting operational flexibility ahead of the life and safety of witnesses?</p> <p class="speaker">Carol Brown</p><p>Thank you, Senator Shoebridge. Suspensions from the National Witness Protection Program are temporary in nature, and the purpose of these measures is to ensure the rapid reinstatement of protection and assistance for a participant. Again, I will just restate that it is important that the AFP have operational flexibility.</p> <p class="speaker">David Shoebridge</p><p>The computers again said no, Deputy President! The question is: why are you putting the operational flexibility of the AFP ahead of the health, and often the life, of witnesses for whom there has been a previous decision that they require witness protection? If the behaviour or the concerns that led to the suspension have been removed, why is the government going to permit the AFP to continue to withhold witness protection? Is the government at all concerned that giving the AFP commissioner that discretion may lead to a tragedy? And do you accept the potential fatal consequences of not providing witness protection?</p> <p class="speaker">Carol Brown</p><p>I will start by indicating that I don't accept your statements, Senator Shoebridge. What's important to note here—and I'm sure you already know this—is that suspensions from the Witness Protection Program are temporary in nature, and the purpose of these measures is to ensure rapid reinstatement of protection and assistance for a participant. While a suspension is in place, protection and assistance can still be provided to the benefit of the participant if the commissioner is satisfied that it is necessary and appropriate to do so in the circumstances.</p> <p class="speaker">David Shoebridge</p><p>I'm yet to understand why you would permit the AFP commissioner, or their delegate to continue, on a discretionary basis, to suspend witness protection to a vulnerable witness, and often to their family, when the rationale for the initial suspension has been removed. It's impossible to understand from the government's responses why on earth you're allowing the AFP commissioner to leave vulnerable witnesses without that protection when the original rationale for the suspension has been removed. I could ask again, but I'll probably get another one of those non sequiturs in response. I'll just leave my disappointment on the record.</p><p>I note, for the government, that if you think this is a good decision—to leave open the discretion and not to provide witness protection in these circumstances—then you take on board the future risk to witnesses who were denied protection as a result of this decision by the government today. You take on board those risks. Remember that the only reason people are put into witness protection in the first place is because there's a significant risk to the life of them or their family and their loved ones. Not reinstating that protection when the reason for suspension has been removed seems to be bloody-mindedness—nothing short of bloody-mindedness.</p><p>Could I ask the government why they also rejected the proposal from the Law Council to have regular reviews of suspensions of protection and assistance? What possible basis is there not to require a regular review of suspension, given that we're talking about a life-and-death matter?</p> <p class="speaker">Carol Brown</p><p>Thank you, Senator Shoebridge. To answer your last point, suspension from the Witness Protection Program is only temporary in nature. That's the reason the government have taken that position. I would also add that in practice the AFP would continue to consider the circumstances of each case to assess whether it is appropriate for the suspension to remain in force or whether it should be revoked, and the protection and assistance reinstated.</p> <p class="speaker">David Shoebridge</p><p>What's the time limit on suspension? What's the maximum period people can have their protection suspended for? [Inaudible] Is it forever?</p> <p class="speaker">Carol Brown</p><p>There's no time limit because we need to enable the AFP to have operational flexibility.</p> <p class="speaker">David Shoebridge</p><p>SHOEBRIDGE () (): So, rest assured, they are only temporary—but they can be permanent! And don't worry about legislative protections because we want to give AFP operational flexibility! Is that the government's response?</p> <p class="speaker">Carol Brown</p><p>No, it's not the government's response, Senator Shoebridge. The new subsection 17B(3) provides that the duration of the suspension must be reasonable in all circumstances, and this goes to providing operational flexibility in determining the duration of the suspension and extending or revoking as is required.</p> <p class="speaker">David Shoebridge</p><p>I've lost the will to live.</p> <p class="speaker">Andrew McLachlan</p><p>I put the question that amendments (1) to (6) on sheet ZA212, moved by leave together by the minister, be agreed to.</p><p>Question agreed to.</p> <p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>-
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