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Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2010

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2008-2009-2010

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

 

 

(1)     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)”.

[information that may be disclosed]

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

200A  Subsection 298(1)

Omit “in a particular financial year”.

[programs of expenditure]

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

[unexplained wealth hardship payments]

(4)     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”.

[operating electronic equipment]

(5)     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).

[fault element for association offences]

(6)     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.

[defences to association offences]

(7)     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.

[defences to association offences]

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

[limits on association offences]

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

[limits on association offences]

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

[technical amendment]

 



 

 

Parliamentary Counsel

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

AF230

Statement of reasons: why certain amendments should be moved as requests

Section 53 of the Constitution is as follows:

Powers of the Houses in respect of legislation

53. Proposed laws appropriating revenue or moneys, or imposing taxation, shall not originate in the Senate. But a proposed law shall not be taken to appropriate revenue or moneys, or to impose taxation, by reason only of its containing provisions for the imposition or appropriation of fines or other pecuniary penalties, or for the demand or payment or appropriation of fees for licences, or fees for services under the proposed law.

The Senate may not amend proposed laws imposing taxation, or proposed laws appropriating revenue or moneys for the ordinary annual services of the Government.

The Senate may not amend any proposed law so as to increase any proposed charge or burden on the people.

The Senate may at any stage return to the House of Representatives any proposed law which the Senate may not amend, requesting, by message, the omission or amendment of any items or provisions therein. And the House of Representatives may, if it thinks fit, make any of such omissions or amendments, with or without modifications.

Except as provided in this section, the Senate shall have equal power with the House of Representatives in respect of all proposed laws.

Amendment (3)

The effect of this amendment is to extend the purposes in respect of which money may be debited from a special account. This may increase the amount that may be paid from the Confiscated Assets Account established by section 295 of the Proceeds of Crime Act 2002 , with those payments being made out of the Consolidated Revenue Fund under the standing appropriation in section 21 of the Financial Management and Accountability Act 1997 .

It is covered by section 53 because:

(a)                 laws which cause money to be expended out of a standing appropriation are a charge or burden on the people (within the meaning of the third paragraph of section 53); and

(b)                it is likely that the amendment will have the effect of increasing the amount that may be paid out of a standing appropriation and therefore of increasing such a proposed charge or burden, which is prevented by the third paragraph of section 53.



Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

SHEET AF230

 

 

 

Statement by the Clerk of the Senate pursuant

to the order of the Senate of 26 June 2000

 

 

 



Amendment (3)

 

This amendment provides for compensation payments to be made to eligible dependants of persons subject to unexplained wealth orders. These payments would be made from the Confiscated Assets Account (CAA) established by the Proceeds of Crime Act 2002 . The CAA is a special account by virtue of section 21 of the Financial Management and Accountability Act 1997 . All proceeds recovered under the Proceeds of Crime Act 2002 are paid into the CAA.

 

Although this amendment enables payments to be made to a broader class of people (the dependants), there is no increased appropriation required from the CAA. Dependants can only claim an amount equal to or less than that paid by the person subject to the unexplained wealth order and held in the CAA.

 

Further, a dependant must make application for a court order when making a claim of compensation. The court then orders the Commonwealth to make the required compensation payment from the CAA.

 

The Senate has long held the view that only a very direct effect on an appropriation is regarded as an increase in a charge or burden ( Odgers’ Australian Senate Practice , 12 th edition, p. 297). Possible expenditure from the CAA on the basis of possible court orders in response to applications by dependants does not meet the test of directness. In any case, nothing in the amendment would have the effect of increasing the total amount available under the appropriation (which is limited by the amount of proceeds recovered). Amending a bill to change the allocation of proposed expenditure and the purposes for which money is to be appropriated has long been considered to be within the power of the Senate, provided that the total proposed (or available) expenditure is not increased. Moreover, it could be argued that, given that the appropriation is ‘self-funded’ from the proceeds of crime, there is indeed no actual charge or burden on the people.

 

For these reasons the amendments would not be regarded as requests under the precedents of the Senate.