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The Global Legal Monitor is an online publication from the Law Library of Congress covering legal news and developments worldwide. It is updated frequently and draws on information from official national legal publications and reliable press sources. You can find previous news by searching the Global Legal Monitor.

Italy: Measures to Fight Against Illegal Immigration Bolstered

(Mar. 29, 2017) On February 18, 2017, new legislation on the fight against illegal immigration entered into effect in Italy. (Decree Law No. 13 of February 17, 2017, Urgent Provisions for the Acceleration of International Protection Procedures and for the Fight Against Illegal Immigration (D.L. No. 13), NORMATTIVA (in Italian).)

More Efficient Handling of Non-EU Citizens

The new legislation provides for accelerated procedures to identify and define the legal situation of non-European Union citizens and to fight illegal immigration and the trafficking of migrants. (D.L. No. 13, art. 15(1).)  In accordance with EU legislation, the director of Italy’s National Central Police for Crime Prevention under the Ministry of the Interior, after consultation with the Italian Committee for Strategic Analysis of Anti-Terrorism, has the authority to adopt a decision to reject the entry of a migrant from outside the EU into the national territory.  (Id. art. 15(1).)

To better identify non-EU citizens under international protection, EU residence permits issued for long-term residence to foreigners who are beneficiaries of international protection must contain the phrase “international protection recognized by [name of the state] on [date].” (Id. art. 9(1)(a)(1).)  Pursuant to EU legislation, should foreigners holding these residence permits become subject to removal procedures, the EU states that have recognized such permits must implement removal procedures after consultation with the EU state that originally issued the permit.  (Id. art. 8(1)(b)(2).)

When due to force majeure it is not possible to implement the repatriation of foreigners, judicial authorities must order the restoration of detention for the time strictly necessary to carry out the expulsion order.  (Id. art. 19(2)(b).)   Detention centers must be located outside urban areas and must be furnished with appropriate public facilities and structures to ensure respect for the human dignity and personal freedom of the persons subject to removal procedures.  (Id. art. 19(3).)

The new legislation also contains measures to strengthen cooperative activities between Italian government agencies that administer the country’s Automatized Information System and the Italian Automatized Fingerprints Identification System (i.e., the Ministry of the Interior’s Public Security Department and the Civil Liberties and Immigration Department, respectively) and the Schengen Information System in order to eliminate illegal immigration.  (Id. art. 18(1).)  The Schengen Information System “is a highly efficient large-scale information system that supports external border control and law enforcement cooperation” in the 26 European States that comprise the Schengen Area.  (Schengen Information System, European Commission website (last updated Mar. 21, 2017).)

Additionally, measures are included for the identification of foreign citizens found to be in an “irregular situation” in the national territory or who are rescued  at sea.  (D.L. No. 13, art. 17(1). )  

New Judicial Units to Review Immigration Cases 

The legislation creates specialized judicial units, ascribed to the ordinary tribunals in several Italian cities most affected by recent immigration, for handling immigration cases.  (Id. art. 1(1).)  The national Superior School of Magistrates appoints judges to the specialized units from among magistrates who enjoy specific competences in the field of immigration.  (Id. art. 2(1).)  The Superior School of Magistrates must organize courses and programs specialized in immigration according to the criteria established in the new legislation.  (Id. art. 2(1).)  One of these criteria is that applicants have knowledge of the English language.  The specialized unit judges must also comply with continuing legal education requirements.  (Id.)

Specialized units review controversies related to:

(a) the non-recognition of the right of residence in Italy of other EU nations’ citizens or their relatives;

(b) appeals against decisions on expulsion, for public security reasons, affecting non-Italian EU citizens or their relatives;

(c) the recognition of the right to international protection in procedures in which the respective prefect (questore, a city’s administrative head) orders the detention or extension of detention of a requester of international protection;

(d) the recognition of humanitarian protection;

(e) the denial of authorization for family reunification and of a residence permit based on that ground; and

(f) establishment of the status of statelessness.  (Id. art. 3(1) & (2).) 

Procedural Provisions for Immigration Cases 

Under the new legislation, an immigration hearing must be recorded through audiovisual means and transcribed into the Italian language through available voice recognition systems.  (Id. art. 6(1)(c).)  The court-appointed interpreter must verify the accuracy of the transcription.  (Id. art. 6(1)(c).)  A copy of the recorded transcript and the verbal transcription must be kept for a minimum of three years, a computer filing must be sent to the Ministry of the Interior, and a copy of the transcript in the Italian language must also be provided to anyone who requests international protection.  (Id. art. 6(3) & (4).)  The law also contains procedural provisions regulating the implementation of decisions issued as a result of immigration proceedings.  (Id. art. 6(4)-(18).)

In agreement with local communes, prefects must promote initiatives that can be used by requesters of international protection, on a voluntary basis, in social activities of benefit to the community, while the requesters are awaiting an appeal decision. (Id. art. 8(1)(d).)  The requester of international protection must remain at a detention center awaiting the execution of an expulsion or refoulement order when there are reasonable grounds to believe that a judicial appeal has been presented only to delay or frustrate the enforcement of such an order.  (Id. art. 8(1)(b)(1).)

The Superior Council of the Judiciary must define a special plan to address the increase in the number of jurisdictional proceedings related to requests by migrants present in Italy for access to the international and humanitarian protection regime and to provide for other judicial procedures related to the influx of migrants.  (Id. art. 11(1); see also Dante Figueroa, Italy, REFUGEE LAW & POLICY, Law Library of Congress website (Mar. 2016).)

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Netherlands: Legislation to Allow More Testing of Driverless Vehicles

(Mar. 29, 2017) On February 24, 2017, the Dutch Cabinet approved a bill that removes legal restrictions and makes it possible for manufacturers to carry out much more extensive testing of self-driving vehicles, without the physical presence of the driver in the vehicle. (Self-Driving Vehicles to Hit the Roads, Ministry of Infrastructure and the Environment (Feb. 28, 2017); Sjoerd Hartholt, Vrij baan zelfrijdende auto door experimenteerwet [Public Road Self-Driving Vehicles by Virtue of Experimental Testing Law], BINNENLANDS BESTUUR (Feb. 27, 2017).)  According to the Ministry of Infrastructure and the Environment,

Driverless-vehicles can mean a great deal in terms of mobility: they can drive more closely behind one another so that road capacity is better utilized. Moreover, since the vehicles can communicate with each other, traffic will flow more smoothly. And, traffic will also become safer: currently, some 90% of road accidents are caused by human error. In addition, self-driving vehicles use less fuel which make[s] them environmentally friendly and financially more attractive. (Self-Driving Vehicles to Hit the Road, supra.)

Features of the Experimental Use Law

The draft law will “enable companies to apply for a permit to conduct tests with driverless-vehicles on public roads, with a human being ready to take command via remote control.” (Id.)  Since July 2015, automated vehicle testing has already been allowed through an exemption granted by the Netherlands Vehicle Authority (RDW), but it required that a human being always be in the vehicle to physically take over control if necessary.  (Id.)  The Cabinet had approved the large-scale testing of self-driving cars and trucks on public roads in January 2015, but the requisite legislative changes had to be made before such testing could be implemented.  The first such test conducted in the Netherlands occurred in November 2016 on a highway outside Amsterdam.  (Dutch Approve Driverless Cars for Public, Large-Scale Testing, CTVNEWS (Jan. 24, 2015).) According to the Ministry of Infrastructure and the Environment, the RDW will assess in advance “the locations and conditions under which tests can be performed without the presence of a driver,” through “collaboration with experts, including the National Scientific Institute for Road Safety Research in the Netherlands (SWOV), the relevant road authority and the police.” (Self-Driving Vehicles to Hit the Road, supra.)

Based on the testing done on public roads, the Minister of Infrastructure and the Environment can determine whether further amendment of the legislation is necessary.  This approach, the Ministry indicated, “implements the desire of the cabinet to produce future-proof legislation through which impediments to innovation are removed in a timely fashion.” (Id.)

Possible Specifics of Exemptions to Be Added to Road Traffic Act 

The draft Law Governing the Experimental Use of Self-Driving Vehicles (Experimenteerwet zelfrijdende auto), according to a text made available on the Internet last year, amends the Road Traffic Act by adding two new subsections to article 149a of the Act that expand on the exemption from the Act’s provisions and those of other acts insofar as they have to do with a driver or registration number of the owner of a vehicle. The new subsections allow an exemption “to the extent necessary to conduct experiments with automated systems in vehicles”; however, the Act’s provisions on supervision, enforcement, and criminal responsibility would still apply.  (Experimenteerwet zelfrijdende auto [Law Governing the Experimental Use of Self-Driving Vehicles] OVERHEID.NL  (last visited Mar. 23, 2017) (click on pdf icon near “Draft for Internet Consultation” to view text in English; the consultation was conducted from July 7, 2016 to Sept. 1, 2016); Wegenverkeerswet 1994 [Road Traffic Act 1994] (Apr. 21, 1994, as last amended effective Mar. 15, 2017).)

Under a proposed new article 149aa of the Road Traffic Act, the exemption for experimental testing within the meaning of article 149a is to stipulate:

a. The purpose of the experiment,

b. The roads or road sections on which the experiment will be carried out,

c. The period of time for which the exemption shall apply,

d. The rules referred to in Article 149a, subsection three, from which there may be derogation and, to the extent relevant, the conditions on which derogations shall be allowed,

e. The safety measures that shall be taken in order to conduct the experiment with a view to the interests referred to in Article 2, subsection one [to ensure safety on the road; to protect road users and passengers; to maintain the road and guarantee its usability; to ensure, insofar as possible, freedom of movement];

e.[sic] Control of the positioning, device and method, as well as supervising independent administrative bodies which perform tasks in the field of this law.

f. How the experiment shall be monitored and evaluated by the Netherlands Vehicle Authority (RDW),

g. That use of the exemption shall be terminated if safety is jeopardised as a result or partly as a result of the experiment. (Id. § B, new art. 149aa.)

Among other measures, the draft law also states that an exemption for the experiments to test automated vehicles will require the permission of the Minister of Infrastructure and the Environment. (Id. § B, new art. 149aa ¶ 2.)  The Minister may decide to revoke the exemption if, in his/her opinion, “road safety is in jeopardy as a result or partly as a result of the experiment.”  (Id. § B, new art. 149aa ¶ 3.)  The RDW will submit a report on its evaluation of the testing to the Minister.  (Id. § B, new art. 149aa ¶ 4.)  The draft law also provides for rules on the provision of documents and data by the applicant when applying for an exemption to be prescribed by ministerial order. (Id. § C, new art. 150(3).)

Developments in the European Union

In 2016, at the initiative of the Netherlands, the transport ministers of the 28 European Union Member States signed the Declaration of Amsterdam on Cooperation in the Field of Connected and Automated Driving (Declaration). (Self-Driving Vehicles to Hit the Road, supra; Declaration of Amsterdam (Apr. 4, 2016),  The Netherlands EU Presidency 2016 website (click on download link to view text).)  One of the objectives of the agreement is “to work towards a coherent European framework for the deployment of interoperable connected and automated driving, which should be available, if possible, by 2019 … .”  (Declaration, art. I(a).)

In February 2017, the Netherlands and other EU Member States reached agreements to establish, “as quickly as possible, the large-scale testing of self-driving vehicles,” including, among other tests, “truck platooning and vehicles that communicate data to one another in order to drive on automatic pilot.” (Self-Driving Vehicles to Hit the Road, supra.)  It is expected that the first tests will occur at the end of 2017 or early in 2018.  (Id.)  The various countries and manufacturers involved also concurred that in 2019 it should be possible for self-driving vehicles to cross borders.  (Id.; see also Clare Feikert-Ahalt, Great Britain: Technology Bill Introduced to Regulate Driverless Cars, Increase Penalties for Misuse of Lasers, GLOBAL LEGAL MONITOR (Mar. 21, 2017).)

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Sweden: Court Rules Legislation Must Be Made Available Free of Charge

(Mar. 29, 2017) On March 15, 2017, the Swedish Supreme Court, in an advisory decision, explained that laws and regulations must be available free of charge to the public in order for a conviction or a fine imposed under their relevant provisions to be lawful. (Press Release Högsta domstolen,  Författningar måste vara tillgängliga i läsbar form och gratis [Legislation Must Be Available in Readable Format and Free of Charge] (Mar. 15, 2017), Supreme Court website; Supreme Court Decision Ö 4833-16, Mar. 15, 2017, HÖGSTA DOMSTOLEN (in Swedish).)

Background

Two youths, both 16 years of age, had brought green, class 3B lasers to school and were fined by the Attunda District Court for violating the Radiation Protection Act, which prohibits possession of that type of laser. (Supreme Court Decision Ö 4833-16 at 2; 8a § Strålskyddslagen [Radiation Protection Act] (SFS 1988:220) NOTISUM.) The regulation that defines and lists which lasers are illegal to possess was only available in the publication “Svensk standard SS EN 60825-1, utgåva 4, 2007” [Swedish Standard SS EN 60825-1, Edition 4, 2007].  This publication includes a list maintained by Svensk Elstandard (Swedish Electric Standard) and available only upon payment of SEK1091 (about US$124) to Svensk Elstandard, a non-profit organization responsible for electricity-related standards in Sweden  (Supreme Court Decision Ö 4833-16, at 3; About SEK, SVENSK ELSTANDARD (last visited Mar. 27, 2017).)

The Court’s Finding

The Supreme Court held that requiring the abovementioned process of access to the law violates the principle of legality (legalitetsprincipen) (nullum crimen sine lege), a fundamental principle of Swedish law that requires that for a person to be convicted of a crime there must be a law against said action.  (Supreme Court Decision Ö 4833-16, at 4-5; 2 ch. 10 § 1 para Regeringsformen [Instrument of Government] [Constitution], NOTISUM.) In the case at hand, there was a law prohibiting class 3B lasers from being used, but lasers that belong to class 3B were only defined in a legal text deemed not readily available to the public because a written copy was only available through purchase. (Supreme Court Decision Ö 4833-16, at 3.)  There is an international classification system for lasers for safety purposes, “based on their potential for causing injury to humans’ eyes and skin”; class 3B  and class 4 of the four main classes of visible-beam consumer lasers are deemed hazardous to eye exposure.  (Laser Classes, Laser Safety Facts website (last visited Mar. 27, 2017).)

The fact that information on the content of the regulation could be accessed by calling the Svensk Elstandard or the Swedish Radiation Safety Authority (Strålskyddsmyndigheten) was not considered by the Court to be a sufficiently readily available means of access to the definitions to meet the standards of the principle of legality. (Supreme Court Decision Ö 4833-16 at 5.)  Leave for appeal to the Appeals Court was therefore granted to the defendants, with the instruction that the Court of Appeal render a decision consistent with the Supreme Court Decision.  (Id.)

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Australia: Northern Territory Parliament Passes Bill to Decriminalize Abortion, Improve Access

(Mar. 28, 2017) On March 21, 2017, Australia’s Northern Territory Parliament voted to pass the Termination of Pregnancy Law Reform Bill 2017 (NT) (Northern Territory Legislation website). The Bill amends part VI, division 8, of the Criminal Code Act (NT), which currently criminalizes the administration of a drug or use of an instrument with the intention of procuring a woman’s miscarriage. (Criminal Code Act (NT), s 208B, as in force at Nov. 1, 2016, Northern Territory Legislation website.) It also repeals the current provision in the Medical Services Act (NT) that sets out the circumstances in which it is lawful for a medical practitioner to give medical treatment intended to terminate a pregnancy, replacing this with the new abortion law framework provided by the Bill. (Medical Services Act (NT), s 11, as in force July 1, 2014, Northern Territory Legislation website.)

The Bill was passed with a vote of twenty to four. (Minutes of Proceedings No. 19, Mar. 21, 2017, at 8-9, Northern Territory of Australia Legislative Assembly website.) It will come into force on July 1, 2017. (Jill Poulsen, New Northern Territory Abortion Law to Come into Effect on July 1, DAILY TELEGRAPH (Mar. 23, 2017).)

Existing Law: The Medical Services Act 

Section 11 of the Medical Services Act requires that, in order for an abortion to be performed,

  • a medical practitioner must reasonably believe that a woman is not more than 14 weeks pregnant;
  • the practitioner and another medical practitioner (one of whom must be a gynecologist or obstetrician) must be of the opinion that either
    • “the continuance of the pregnancy would involve greater risk to her life or greater risk of harm to her physical or mental health than if the pregnancy were terminated”; or
    • “there is a substantial risk that, if the pregnancy were not terminated and the child were born, the child would be seriously handicapped because of physical or mental abnormalities”;
  • the treatment must be given in a hospital; and
  • “the appropriate person consents to the giving of the treatment.” (Medical Services Act (NT), s 11(1) & (2).)

The Act also provides for abortions to be performed up to the 23rd week of pregnancy if a medical practitioner “is of the opinion termination of the pregnancy is immediately necessary to prevent serious harm to [the woman’s] physical or mental health.” (Id. s 11(3).)  Furthermore, abortion is lawful at any time if “the treatment is given or carried out in good faith for the sole purpose of preserving [the woman’s] life.” (Id. s 11(4).)

In all cases, the appropriate person to provide consent is the woman, if she is over 16 years of age and capable in law of giving consent.  The consent of “each person having authority in law” is required if the woman is under 16 years of age or is otherwise incapable in law of giving consent.  (Id. s 11(5).)

The Act provides that “[a] person is not under any duty to terminate or assist in terminating a woman’s pregnancy, or to dispose of or assist in disposing of an aborted foetus, if the person has a conscientious objection to doing so.” (Id. s 11(6).)

Issues Identified Regarding the Existing Law 

Section 11 of the Medical Services Act was drafted in the 1970s.  A discussion paper on the proposed reform of abortion law in the Northern Territory, published in 2016 by the Department of Health, stated that “there are specific elements of the current Act that have not kept pace with the changing nature of medicine, best practice in medicine, societal expectations, or legislation elsewhere in Australia,” and that aspects of the law have been identified as limiting access to termination of pregnancy for women in the Northern Territory.  (Department of Health (NT), Termination of Pregnancy Law Reform; Improving Access by Northern Territory Women to Safe Termination of Pregnancy Services, Discussion Paper 1 (2016); see also Department of Health (NT), FAQ Termination of Pregnancy Law Reform; … (2016).)

The paper went on to discuss these aspects, including the following:

  • The requirement in the Act for abortions to only take place in a hospital means that drugs such as RU486, which was registered in Australia for medical termination of early pregnancy in 2012 and is now on the Pharmaceutical Benefits Scheme (i.e., is subsidized by the government), cannot be used in practice. Such medical termination involves two stages, the second of which may be performed at a woman’s home, and the process can take several days; under the Northern Territory legislation, the woman would have to remain in hospital for the full time until the miscarriage is completed. (Discussion Paper, supra,at 2; About the PBS, Pharmaceutical Benefits Scheme website (last updated Jan. 1, 2017).)
  • Also due to the requirement for abortions to be performed in hospitals, the majority of abortions in Northern Territory, including early terminations, are performed in one of two public hospitals (free of charge for Medicareeligible resident women) and one private hospital. Medicare is Australia’s publicly funded health care system. (Discussion Paper, supra, at 2 & 8; Medicare Services, DEPARTMENT OF HUMAN SERVICES (last updated Jan. 9, 2017).) The discussion paper notes that in all other Australian jurisdictions, early medical terminations (at up to nine weeks of gestation) and surgical terminations (at up to 14 weeks of gestation) are safely conducted outside a hospital setting. It also states, “[t]here is anecdotal evidence that women travel interstate to access medical termination services.” (Discussion Paper, supra, at 5.)
  • The consent requirements in the Act mean that, where a young woman is under the age of 16, the consent of both of her parents or legal guardians must be obtained in order for a lawful termination of a pregnancy to be performed, which is not consistent with consent requirements for other medical procedures. The discussion paper also states that this requirement, “is viewed as potentially restrictive to young women accessing termination, with the potential for this vulnerable group to seek unsafe or unsupervised terminations.” (Id. at 9.)

New Framework in the Bill

The Bill is “intended to increase access by women to safe terminations of pregnancy in either of out-of-hospital or within hospital settings, with health practitioners applying evidence-based practice within a framework of professional standards and guidelines relevant to assessment and treatment.” (Explanatory Statement, Termination of Pregnancy Law Reform Bill, Serial No. 17 (Minister for Health), at 1, Northern Territory Legislation website.) 

The Bill replaces the current Criminal Code Act provisions related to abortion with a provision that criminalizes, with a maximum penalty of imprisonment for seven years, only the “termination of a pregnancy by an unqualified person.” (Termination of Pregnancy Law Reform Bill 2017 (NT), pt 6, inserting a new s 208A into the Criminal Code Act (NT).) The Criminal Code Act will now list those who are considered to be a “qualified person,” who must also act in accordance with the new legislation. The new provision clarifies that “[t]his section does not apply to a woman who consents to, or assists in, the performance of a termination on herself.” (Id.)

The legislation will now allow a “suitably qualified medical practitioner” to perform a termination on a woman who is not more than 14 weeks pregnant where the practitioner considers this to be appropriate in the circumstances, having regard to

(a) all relevant medical circumstances; and
(b) the woman’s current and future physical, psychological and social circumstances; and
(c) professional standards and guidelines. (Id. cl 7.)

Certain authorized people may supply and administer a termination drug at the direction of the medical practitioner.  (Id. cl 8.) For terminations where is woman is between 14 and 23 weeks pregnant, the medical practitioner must consult with “at least one other suitably qualified medical practitioner who has assessed the woman” and both must consider the termination appropriate in the circumstances.  (Id. cl 9.)In addition, “[a] medical practitioner may perform a termination on a woman in an emergency if the medical practitioner considers the termination is necessary to preserve the life of the woman.”  (Id. cl 10.)

The Bill does include provisions related to conscientious objection to performing abortions on the part of medical practitioners. However, unlike the existing law, such a practitioner is required to inform the woman of his or her conscientious objection in relation to the termination and to refer her, “within a clinically reasonable time,” to another medical practitioner who has no such objection. (Id. cl 11.) There is also a requirement to perform or assist with a termination in an emergency to preserve the life of the woman, despite any conscientious objection to terminations.  (Id. cl 12.)

Part 3 of the Bill provides for “safe access zones,” which are defined as being the boundary of premises for performing abortions and the area 150 meters outside that boundary. (Id. pt 3 & cl 4.)  Certain conduct is prohibited in such areas, specifically:

(a) harassing, hindering, intimidating, interfering with, threatening or obstructing a person, including by recording the person by any means without the person’s consent and without a reasonable excuse, that may result in deterring the person from:
(i) entering or leaving premises for performing terminations;
(ii) performing, or receiving, a termination at premises for performing terminations; and
(b) an act that could be seen or heard by a person in the vicinity of premises for performing terminations, that may result in deterring the person or another person from:
(i) entering or leaving the premises; or
(ii) performing a termination, or receiving a termination at the premises. (Id. cl 14(4).)

The publication of an unauthorized recording of a person who is in a safe access zone is also an offense. (Id. cl 15.)

Debate in the Parliament

The Bill’s sponsor, Minister of Health Natasha Fyles, noted in her second reading speech in the Northern Territory Parliament that there had been “passionate debate” in previous years on proposed changes to the abortion law of the territory, which had failed to pass. (Northern Territory Legislative Assembly, Debates, Second Reading Speech (Natasha Fyles), Termination of Pregnancy Law Reform Bill, at 1 (Feb. 15, 2017); Helen Davidson, Abortion Decriminalised in Northern Territory After Long Campaign, GUARDIAN (Mar. 21, 2017).) Prior to the passage of the Bill, there were further “impassioned speeches” in the Parliament, during which ”[b]oth the Government and Opposition argued the bill would bring the Territory in line with other jurisdictions, and into the 21st century.”  (Lucy Marks, NT Abortion Bill: Reform to Allow RU486 Will Deliver Equality, Lead to ‘Dark Ages,’ Politicians tell Parliament, ABC NEWS (Mar. 21, 2017, updated Mar. 22, 2017).)

An independent member, Gerry Wood, argued strongly against the Bill and put forward a number of amendments, stating that the Bill would take the territory back to “the dark ages” and would contribute to a new “stolen generation” (referring to the forcible removal of Aboriginal children pursuant to government policies). (Id.; see generally Northern Territory Legislative Assembly, Debates, Third Reading Debate, Termination of Pregnancy Law Reform Bill (Mar. 21, 2017).)  Two other independent members and a Labor Party member also voted against the Bill.  (Davidson, supra.)

Much of the final debate on the Bill was focused on the potential impact on Aboriginal women, particularly those living in remote communities in the Northern Territory. An Aboriginal member of the Northern Territory Parliament said that “she was appalled that the bill was being diverted from an issue about gender equality into one about race.”  (Id.)

Other Abortion Laws in Australia

Two other Australian jurisdictions, Queensland and New South Wales, have legislative provisions that criminalize abortion. (Id.) In the past year, bills have been introduced in both states to decriminalize abortion but have not been passed. (Chris O’Brien, Abortion Decriminalisation Bills Withdrawn from Queensland Parliament Agenda, ABC NEWS (Feb. 27, 2017); Meredith Griffiths, Abortion Laws ‘Ambiguous, Outdated’ in Qld and NSW, Doctors Argue, ABC NEWS (Oct. 9, 2016).)

Apart from the Northern Territory, as noted above, all other Australian jurisdictions allow for early medical abortion using RU486. (Suzanne Belton, Decriminalisation in the NT Signals Abortion Is Part of Normal Health Care, THE CONVERSATION (Mar. 23, 2017).) Victoria and Tasmania also have laws regarding safe access zones. (Ronli Sifris, State by State, ‘Safe Access Zones’ Around Clinics Are Shielding Women from Abortion Protesters, THE CONVERSATION (Nov. 29, 2015); Kelly Buchanan, Australia: Victorian Parliament Passes Law Establishing Protest Buffer Zone for Abortion Clinics, GLOBAL LEGAL MONITOR (Nov. 30, 2015).)

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Kenya: Anti-Money Laundering Law Amended

(Mar. 24, 2017) On March 3, 2017, the Kenyan President, Uhuru Kenyatta, signed into law the Proceeds of Crime and Anti-Money Laundering (Amendment) Bill.  During the signing ceremony, he reportedly noted that “[t]his is a major tool in our sustained efforts to fight corruption.  It means that no proceeds of theft and corruption are beyond the reach of the State.”  (Maryanne Gicobi, Kenyan President Signs Anti-Money Laundering Bill to Law, EAST AFRICAN (Mar. 3, 2017).)  At present it appears that the latest available version of the amendment bill is one that was published in 2015; it is unclear whether the newly adopted law has further revisions.  Therefore, references to the changes in the law are to the 2015 Amendment Bill on the assumption that those changes were adopted.

Based on the 2015 amendment bill, the 2017 amendment would strengthen the authority of the Financial Reporting Centre (FRC) to issue instructions, directions, and rules.  (Proceeds of Crime and Anti-Money Laundering (Amendment) Bill, 2015, KENYA GAZETTE SUPPLEMENT, No. 190 (Nov. 26, 2015), Institute of Certified Public Accountants of Kenya (ICPAK) website.)  The Proceeds of Crime and Anti-Money Laundering Act of 2009 established the FRC mainly to assist “in the identification of the proceeds of crime and the combating of money laundering and the financing of terrorism.”  (Proceeds of Crime and Anti-Money Laundering Act, No. 9 of 2009, § 23 (June 28, 2010), Laws of Kenya  website.)  A 2012 amendment to the Act accorded the FRC the authority to issue “such instructions, directions, guidelines or rules to reporting institutions as it may consider necessary for the better carrying out of its functions.”  (Proceeds of Crime and Anti-Money Laundering (Amendment) Act, No. 51 of 2012, § 9, KENYA GAZETTE SUPPLEMENT, No. 215 (Jan. 4, 2013), Laws of Kenya website.)

The Amendment Bill would strengthen this authority by affording the FRC the power to impose civil penalties against persons (both natural and juridical) who defy its authority.  Specifically, in addition to other forms of penalty envisaged under the 2009 Act, the Amendment Bill states that a natural person who “fails to comply with any instruction, direction or rules issued by the [FRC] … shall be liable on conviction to a fine not exceeding 5 million shillings (KES)” (about US$48,590).  (Proceeds of Crime and Anti-Money Laundering (Amendment) Bill, 2015, § 4.)  A similar violation by a juridical person is, on conviction, subject to a fine not exceeding KES25 million (about US$242,955).  (Id.)  If the violation is not remedied, the person responsible is liable to pay KES10,000 (about US$97) per day for up to 180 days.  (Id.)

The  Amendment Bill also expands the category of persons that fall under the authority of the FRC.  It does this by clarifying the definition of the term “reporting institutions.”  The Proceeds of Crime and Anti-Money Laundering Act of 2009 defined the term “reporting institution” as “a financial institution and a designated non-financial business and profession.”  (Proceeds of Crime and Anti-Money Laundering Act No. 9 of 2009, § 2.)    The Amendment Bill further defines the term “designated non-financial businesses or professions” to include:

  • casinos (including online casinos);
  • real estate agencies;
  • those dealing in precious metals;
  • those dealing in precious stones;
  • accountants;
  • non-governmental organizations; and
  • any business or profession that the Minister of Finance, on the advice of the FRC, deems vulnerable to money laundering.  (Proceeds of Crime and Anti-Money Laundering (Amendment) Bill, 2015, § 2.

The Amendment Bill also accords the FRC additional, significant powers.  It authorizes the institution to issue an order barring an individual from employment within a a particular reporting institution or employment in a specific capacity.  (Id. § 4.)  It also permits the FRC to issue an order “to a competent supervisory authority requesting the suspension or revocation of a licence or registration of a specified reporting institution whether entirely or in a specified capacity or of any employee of the reporting institution.” (Id.)

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