Save Search

Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
 Download PDFDownload PDF 

Previous Fragment    Next Fragment

CRIMES LEGISLATION AMENDMENT (SERIOUS AND ORGANISED CRIME) BILL 2009E CRIMES LEGISLATION AMENDMENT (SERIOUS AND ORGANISED CRIME) BILL (NO. 2) 2009

Order of the day read for the adjourned debate on the motions of the Assistant Treasurer (Senator Sherry) and the Special Minister of State (Senator Ludwig)—That these bills be now read a second time.

Debate resumed.

Question put and passed.

Bills read a second time.

The Senate resolved itself into committee for the consideration of the bills.

In the committee

Explanatory memoranda: The Minister for Climate Change and Water (Senator Wong) tabled the following documents:

 Replacement explanatory memorandum relating to the Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009.

 Supplementary explanatory memoranda [2] relating to the government amendments to be moved to the bills.


Statement by Chair of Committees: The Chair of Committees (Senator Ferguson) made a statement indicating that as a Government amendment to the Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009, circulated as a request, did not have a direct effect on an appropriation, it could not be regarded as an increase in a charge or burden on the people within the meaning of section 53 of the Constitution. It should therefore not be moved as a request and would be treated as an amendment.

CRIMES LEGISLATION AMENDMENT (SERIOUS AND ORGANISED CRIME) BILL 2009—

Bill taken as a whole by leave.

On the motion of Senator Wong the following amendments, taken together by leave, were debated and agreed to:

 Clause 2, page 2 (table item 5), omit "Part 6", substitute "Parts 6 and 7".

 Schedule 1, item 13, page 9 (line 32), omit "so.", substitute "so; or".

 Schedule 1, item 13, page 9 (after line 32), at the end of subsection 179C(5), add:

 (c) it is otherwise in the interests of justice to do so.

 Schedule 2, item 3, page 31 (lines 7 to 17), omit section 15J, substitute:

  

15J Service of freezing order etc. on financial institution and account-holder

  (1) If a magistrate makes a *freezing order relating to an *account with a *financial institution, the applicant for the order must cause the things described in subsection (2) to be given to:

 (a) the financial institution; and

 (b) each person in whose name the account is held.

  (2) The things are as follows:

 (a) a copy of the order (or of a form of the order under section 15E);

 (b) a written statement of the name and contact details of the *enforcement agency mentioned in the paragraph of the definition of authorised officer in section 338 that describes the applicant.

   Note: If the copy of the order is given to the financial institution after the end of the first working day after the order is made, the order does not come into force: see subsection 15N(1).

 Schedule 2, item 3, page 34 (after line 27), at the end of Part 2-1A, add:

  

Division 6—Revoking freezing orders

 

15R Application to revoke a freezing order

  (1) A person may apply to a magistrate to revoke a *freezing order.

  (2) The applicant for the revocation must give written notice of the application and the grounds on which the revocation is sought to the *enforcement agency mentioned in the paragraph of the definition of authorised officer in section 338 that describes the *authorised officer who applied for the *freezing order.

  (3) One or more of the following may adduce additional material to the magistrate relating to the application to revoke the *freezing order:

 (a) the *authorised officer who applied for the freezing order;


 (b) the authorised officer whose affidavit supported the application for the freezing order;

 (c) another authorised officer described in the paragraph of the definition of authorised officer in section 338 that describes the authorised officer mentioned in paragraph (a) or (b) of this subsection.

  (4) The magistrate may revoke the *freezing order if satisfied that it is in the interests of justice to do so.

   

15S Notice of revocation of a freezing order

  (1) If a *freezing order relating to an *account with a *financial institution is revoked under section 15R, an *authorised officer (the notifying officer) described in the paragraph of the definition of authorised officer in section 338 that describes the authorised officer who applied for the freezing order must cause written notice of the revocation to be given to:

 (a) the financial institution; and

 (b) each person in whose name the account is held.

  (2) However, the notifying officer need not give notice to the applicant for the revocation.

  (3) Subsection (1) does not require more than one *authorised officer to cause notice of the revocation to be given.

 Schedule 2, page 51 (after line 19), at the end of the Schedule, add:

  

Part 7—Other amendments

 

Proceeds of Crime Act 20020

 106 Subsection 42(5)

  Repeal the subsection, substitute:

  (5) The court may revoke the *restraining order if satisfied that:

 (a) there are no grounds on which to make the order at the time of considering the application to revoke the order; or

 (b) it is otherwise in the interests of justice to do so.

 107 Application and transitional

  (1) The amendment of section 42 of the Proceeds of Crime Act 2002 made by this Part applies in relation to the revocation of a restraining order on or after commencement, whether the application for that revocation was made before, on or after commencement.

 (2) If an application under section 42 of the Proceeds of Crime Act 2002 for the revocation of a restraining order has been made but not determined as at commencement:

 (a) the applicant may vary the application to take account of paragraph 42(5)(b) of the Proceeds of Crime Act 2002 as in force at commencement; and

 (b) if the application is varied under paragraph (a) of this subitem—the applicant must give a copy of the application as varied, and written notice of any additional grounds that he or she proposes to rely on in seeking that revocation, to the DPP and the Official Trustee; and


 (c) the DPP may adduce additional material to the court relating to those additional grounds.

  (3) In this item:

  commencement means the commencement of this item.

On the motion of Senator Brandis the following amendments, taken together by leave, were debated and agreed to:

 Schedule 1, item 5, page 3 (line 23), omit "must", substitute "may".

 Schedule 1, item 5, page 5 (after line 19), after subsection 20A(3), insert:

   Legal expenses

  (3A) Without limiting the manner and circumstances that may be specified in an order under paragraph (1)(b), the court may order that specified property may be disposed of or otherwise dealt with for the purposes of meeting a person's reasonable legal expenses arising from an application under this Act.

  (3B) The court may make an order under subsection (3A) despite anything in section 24.

  (3C) The court may require that a costs assessor certify that legal expenses have been properly incurred before permitting the payment of expenses from the disposal of any property covered by an order under subsection (3A) and may make any further or ancillary orders it considers appropriate.

 Schedule 1, item 5, page 5 (after line 25), after subsection 20A(4), insert:

  (4A) If the court refuses to make a *restraining order under subsection (1), it may make any order as to costs it considers appropriate, including costs on an indemnity basis.

 Schedule 1, item 5, page 5 (line 27), omit "must", substitute "may".

 Schedule 1, item 12, page 7 (after line 33), at the end of section 45A, add:

  (4) If a *restraining order ceases under subsection (1) or (2), the court may, on application by a person with an *interest in the property covered by the restraining order, make any order as to costs it considers appropriate, including costs on an indemnity basis.

 Schedule 1, item 13, page 8 (line 14), omit "must", substitute "may".

 Schedule 1, item 13, page 10 (line 23), omit "must", substitute "may".

 Schedule 1, item 13, page 11 (after line 24), after section 179E, insert:

  

179EA Refusal to make an order for failure to give undertaking

  (1) The court may refuse to make a *preliminary unexplained wealth order or an *unexplained wealth order if the Commonwealth refuses or fails to give the court an appropriate undertaking with respect to the payment of damages or costs, or both, for the making and operation of the order.

  (2) The *DPP may give such an undertaking on behalf of the Commonwealth.

   


179EB Costs

   If the court refuses to make a *preliminary unexplained wealth order or an *unexplained wealth order, it may make any order as to costs it considers appropriate, including costs on an indemnity basis.

 Schedule 1, item 13, page 17 (after line 18), after section 179S, insert:

  

179SA Legal expenses

  (1) If the court considers that it is appropriate to do so, it may order that the whole, or a specified part, of specified property covered by an order under subsection 179S(1) is not available to satisfy the *unexplained wealth order and may instead be disposed of or otherwise dealt with for the purposes of meeting a person's reasonable legal expenses arising from an application under this Act.

  (2) The court may require that a costs assessor certify that legal expenses have been properly incurred before permitting the payment of expenses from the disposal of any property covered by an order under subsection (1) and may make any further or ancillary orders it considers appropriate.

 Schedule 1, item 13, page 17 (after line 33), at the end of the Part, add:

  

Division 5—Oversight

 

179U Parliamentary supervision

  (1) The operation of this Part and section 20A is subject to the oversight of the Parliamentary Joint Committee on the Australian Crime Commission (the Committee).

  (2) The Committee may require the Australian Crime Commission, the Australian Federal Police, the *DPP or any other federal agency or authority that is the recipient of any material disclosed as the result of the operation of this Part to appear before it from time to time to give evidence.

Bill, as amended, agreed to.

CRIMES LEGISLATION AMENDMENT (SERIOUS AND ORGANISED CRIME) BILL (NO. 2) 2009—

Bill taken as a whole by leave.

On the motion of Senator Wong the following amendments, taken together by leave, were debated and agreed to:

 Schedule 1, Part 5, page 40 (after line 30), at the end of the Part, add:

 158A Subparagraph 266A(1)(a)(i)

  Omit "39(1)(d)", substitute "39(1)(ca), (d) or (da)".

 Schedule 1, page 51 (after line 11), after item 200, insert:

 200A Subsection 298(1)

  Omit "in a particular financial year".

 Schedule 1, item 207, page 52 (line 22), omit "or subparagraph 102(d)(ii)", substitute ", subparagraph 102(d)(ii) or section 179L".


 Schedule 2, item 16, page 65 (line 23), at the end of subsection 3L(1), add "if he or she suspects on reasonable grounds that the data constitutes evidential material".

 Schedule 4, item 1, page 100 (after line 19), after subsection 390.3(3), insert:

   Intention fault element for paragraphs (1)(c) and (2)(d)

  (3A) The fault element for paragraphs (1)(c) and (2)(d) is intention (by the first person).

 Schedule 4, item 1, page 101 (lines 6 to 28), omit paragraphs 390.3(6)(d) to (f), substitute:

 (d) the association is only for the purpose of providing legal advice or legal representation in connection with judicial or administrative proceedings under a law of the Commonwealth, a State, a Territory or a foreign country; or

 (e) the association is reasonable in the circumstances.

 Schedule 4, item 1, page 101 (after line 30), after subsection 390.3(6), insert:

  (6A) Paragraphs (6)(a), (b), (c), (d) and (e) do not limit one another.

 Schedule 4, item 1, page 101 (line 32), omit "under subsection (1)", substitute "against subsection (1) or (2)".

 Schedule 4, item 1, page 101 (line 34), omit "under subsection (1)", substitute "against subsection (1) or (2)".

 Schedule 7, item 18, page 127 (line 2), omit "ACC", substitute "examiner".

Bill, as amended, agreed to.

Bills to be reported with amendments.

The Acting Deputy President (Senator Hutchins) resumed the chair and the Temporary Chair of Committees reported accordingly.

On the motion of Senator Wong the report from the committee was adopted and the bills read a third time.