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Crimes Legislation Amendment (Serious and Organised Crime) Bill 2010

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2008-2009

 

 

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

CRIMES LEGISLATION AMENDMENT (SERIOUS AND ORGANISED CRIME) BILL 2009

 

 

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

 

Amendments to be Moved on Behalf of the Government

 

 

 

 

 

 

(Circulated by authority of the Attorney-General,

the Honourable Robert McClelland MP)

 

 

 



CRIMES LEGISLATION AMENDMENT (SERIOUS AND ORGANISED CRIME) BILL 2009

 

GENERAL OUTLINE

The Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 will:

·          strengthen criminal asset confiscation, including introducing unexplained wealth provisions (Schedules 1 and 2)

·          enhance police powers to investigate organised crime by implementing model laws for controlled operations, assumed identities and witness identity protection (Schedule 3)

·          address the joint commission of criminal offences (Schedule 4, Part 1), and

·          facilitate greater access to telecommunications interception for criminal organisation offences (Schedule 4, Part 2).

The Bill was introduced in the House of Representatives on 24 June 2009 and was referred to the Senate Standing Committee on Legal and Constitutional Affairs (the Senate Committee), which reported on 17 September 2009.  The Senate Committee made 13 recommendations.  The proposed Government amendments will give effect to most of the Committee’s recommendations.  The amendments will also respond to issues identified in Questions on Notice from the Senate Committee and Alert Digest 9/2009 of the Standing Committee for the Scrutiny of Bills, as well as issues identified as a result of ongoing discussions between the Attorney-General’s Department and portfolio agencies.

 

FINANCIAL IMPACT STATEMENT

The amendments to the Bill will have no financial impact.



ACRONYMS

AAT                            Administrative Appeals Tribunal

ACC                            Australian Crime Commission

ACLEI                                    Australian Commission for Law Enforcement Integrity

AFP                             Australian Federal Police

ASIO                          Australian Security Intelligence Organisation

ASIS                           Australian Secret Intelligence Service

C(COC)A                   Crimes (Criminal Organisations Control) Act 2009 (NSW)

CDPP                          Commonwealth Director of Public Prosecutions

Crimes Act                  Crimes Act 1914

Senate Committee       Senate Standing Committee on Legal and Constitutional Affairs

the Bill                                    Crimes Legislation Amendment (Serious and Organised Crime)                               Bill 2009

TIA Act                      Telecommunications (Interception and Access) Act 1979

 

 

 

 

 



NOTES ON CLAUSES

Amendments to Schedule 1

Amendment (1)

This amendment will amend proposed subsection 179B(2), which will be inserted by Schedule 1 of the Bill, to require that an authorised officer must state in their affidavit, supporting an application for a preliminary unexplained wealth order, the grounds on which he or she holds a reasonable suspicion that a person’s total wealth exceeds his or her lawfully acquired wealth.  This amendment will implement recommendation 3 of the Senate Committee’s report on the Bill.

This amendment is in addition to the existing requirement that the court be satisfied that an authorised officer has reasonable grounds to suspect that a person’s wealth exceeds the value of the persons’ wealth that was lawfully acquired (see proposed paragraph 179B(1)(b)) before making a preliminary unexplained wealth order.

Amendment (2)

This amendment will insert a new subsection 179B(3) into proposed section 179B, which will be inserted by Schedule 1 of the Bill. The effect of this amendment will be that a court will be required to make a preliminary unexplained wealth order, without notice being given to any person, if the CDPP requests that the order be made ex parte.  This amendment is modelled on existing subsection 26(4), which requires a court to consider an application for a restraining order without notice if requested to do so by the CDPP.

Amendments (3) and (4)

These amendments will delete proposed subsections 179C(3) and (5), which would be inserted by Schedule 1 of the Bill and deal with notice requirements and adducing additional information for hearings under proposed section 179C.  These procedures will now be contained in proposed new subsection 179CA in amendment (5).

These amendments will also delete proposed subsection 179C(6) in Schedule 1 of the Bill and insert a new subsection 179C(5).  The effect of new subsection 179C(5) will be that a court will have a discretion to revoke a preliminary unexplained wealth order if it is in the public interest to do so.  This amendment will implement recommendation 1 of the Senate Committee’s report on the Bill. Providing the court with this discretion is consistent with other provisions in the Act.  For example, existing subsection 19(4) gives the court discretion to refuse to make a restraining order if the court considers it is not the public interest to make the order.

These amendments will also have the effect of clarifying that the time at which a court considers whether there were grounds to make a preliminary unexplained wealth order is at the time of the application under proposed section 179C, not the time at which the preliminary order was made under proposed section 179B.  This will ensure that decisions about whether a preliminary unexplained wealth order should have been made will be made on all of the available evidence, and will not require the CDPP to unnecessarily reapply for a new preliminary unexplained wealth order.

New subsection 179C(5) will make it clear that a preliminary unexplained wealth order can only be revoked where a person has made an application for revocation.  The effect of this amendment will be that a court will not be able to revoke a preliminary unexplained wealth order on its motion.

Amendment (5)

This amendment will insert a proposed new section 179CA into Schedule 1 of the Bill. New section 179CA will outline the procedure and notice requirements to revoke a preliminary unexplained wealth order under proposed section 179C.  To avoid an applicant under proposed section 179C being confronted with additional evidence at the hearing that she or he did not know about, the CDPP will be required to provide an applicant with the affidavits it proposes to rely on to contest the application. The CDPP will be required to provide copies of any affidavits it intends to rely on within a reasonable time before the section 179C hearing.  Similarly, the applicant will be required to provide the CDPP with written notice of their application and a copy of any affidavit supporting their application to revoke a preliminary unexplained wealth order.  This amendment will ensure that the procedure for applying to revoke a preliminary unexplained wealth order is clear and that both sides are provided with all relevant information before the hearing.

Amendment (6)

This amendment will amend proposed paragraph 179E(2)(a) in Schedule 1 of the Bill to refer to the “whole, or any part of a person’s *wealth.”  This amendment is necessary because, on a literal reading of the previously proposed paragraph 179E(2)(a), if a court is not satisfied that all of a person’s wealth was derived from one of the specified offences, it may not make an unexplained wealth order, even if it is satisfied that some of the person’s wealth was derived from the offences.  A literal interpretation of the current wording would frustrate the purpose of the provision.  This amendment will ensure that an unexplained wealth order can be made when some or all of a person’s wealth was derived from one of the specified offences.

This amendment will also ensure that the terminology used in proposed paragraph 179E(2)(a) is consistent with the other sections in Chapter 2 (the confiscation scheme) of the Act, in particular, proposed subparagraphs 20A(1)(g)(ii), 20A(3)(c)(ii) and 179S(3)(b)(ii).

Amendment (7)

This amendment will delete subparagraph 179E(2)(b)(ii) from Schedule 1 of the Bill and replace it with a proposed new subparagraph which provides that an amount a court specifies a person is liable to pay to the Commonwealth (the unexplained wealth amount) is reduced by any amount deducted under proposed section 179J.  Proposed section 179J will allow for the reduction of an unexplained wealth amount to take into account forfeiture, pecuniary penalties and literary proceeds orders.  It is appropriate to make this amendment to proposed subparagraph 179E(2)(b)(ii) to ensure that when a court makes an order requiring a person to repay an amount in unexplained wealth, that the amount is reduced by the amount of money or property already forfeited or paid.

Amendment (8)

This amendment will delete the words “including information that could not have reasonably been ascertained before the application was made” from proposed subsection 179E(4) in Schedule 1 of the Bill.  On a strict interpretation, the inclusion of those words might be unduly limiting and a court might only admit additional evidence if it could not have been ascertained before the application was made.  This amendment will ensure that the court, when making an unexplained wealth order under proposed section 179E, may have regard to all relevant information.  The CDPP may have been aware of information that it did not consider relevant at the time of the application and for this reason did not include it in the affidavit.  In the intervening period since the application was made, that information might become relevant as further facts come to light.  For example, because of submissions made by a person against whom the unexplained wealth order is sought.  It is important that when making an unexplained wealth order, the court has regard to all relevant information, whether or not it was reasonably ascertainable at the time the original application was made.

Amendment (9)

This amendment will insert proposed new subsection 179E(6) into Schedule 1 of the Bill to provide the court with a discretion to refuse to make an unexplained wealth order if the court considers it is not in the public interest to do so.  This amendment will implement recommendation 2 of the Senate Committee’s report on the Bill.

Amendment (10)

This amendment will make a minor amendment to proposed subsection 179L(1) in Schedule 1 of the Bill to make it clear that an unexplained wealth order is made in relation to a particular person.  Proposed section 179L outlines the process for relieving certain dependants from hardship in certain circumstances.  One of the requirements is that the person who receives a payment for hardship must be a dependant of the person to whom the unexplained wealth order relates.  This amendment will ensure consistency within proposed section 179L.

Amendment (11)

This amendment will amend proposed section 179L (relieving certain dependants from hardship) in Schedule 1 of the Bill to ensure the provision operates as intended.  The effect of the amendment will be that the Commonwealth will only be required to pay an amount to a dependant after a person (to whom the unexplained wealth order relates) has satisfied his or her debt to the Commonwealth in relation to the unexplained wealth amount.

This amendment is necessary because, unlike forfeiture orders, unexplained wealth orders do not involve a person forfeiting property to the Commonwealth.  Rather, the person pays his or her unexplained wealth amount to the Commonwealth.  It is possible that, as drafted in the Bill, the provision could be interpreted as requiring the Commonwealth to pay an amount to a dependant to relieve hardship, where a person to whom the order relates, has not paid, or otherwise satisfied the unexplained wealth amount.  These amendments will ensure that the Commonwealth is only required to pay an amount to relieve hardship where it has actually received an unexplained wealth amount.

Amendment (12)

This amendment will make a minor amendment to proposed subsection 179L(2) in Schedule 1 of the Bill to make it clear that the Commonwealth cannot be required to pay an amount to relieve hardship which exceeds the unexplained wealth amount owed by a person.

Amendment (13)

This amendment will make a minor amendment to proposed paragraph 179N(2)(b) in Schedule 1 of the Bill to make it clear that the CDPP must provide a copy of the application and affidavit referred to in proposed subsection 179B(2) (affidavit requirements when seeking a preliminary unexplained wealth order) to a person who would be subject to an unexplained wealth order, if it were made, within seven days of a court making a preliminary unexplained wealth order.  The provision as currently worded in the Bill referred to “any” affidavit.  This amendment will ensure it instead refers to the specific affidavit relied upon in seeking the preliminary unexplained wealth order.

Amendment (14)

This amendment will improve the procedure for providing notice of an application for an unexplained wealth order by replacing proposed subsections 179N(3), (4) and (5) in Schedule 1 of the Bill with a simplified process for giving notice in new subsections 179N(3) and (4).  This amendment will require the CDPP to provide a copy of any other affidavit supporting the application for an unexplained wealth order.  Copies must be provided to any person who would be affected by the order if it were made and must be provided within a reasonable time before the hearing.

Amendment (15)

This amendment will delete section 179Q in Schedule 1 of the Bill and insert a proposed new section 179Q outlining the procedure on application and other notice requirements for unexplained wealth orders.  The amendment will provide that a person who would be subject to an unexplained wealth order if it were made, may appear and adduce evidence at the hearing.  The CDPP is also permitted to appear and adduce evidence at the hearing.  This amendment will require a person who intends to adduce evidence at an unexplained wealth order hearing (under proposed section 179E) to give the CDPP written notice of the grounds on which the person proposes to contest the order.  The requirement that a person inform the CDPP of the grounds on which they intend to contest the order will ensure that both parties are aware of the issues in dispute prior to the hearing.  The CDPP will have an obligation to provide copies of affidavits it intends to rely upon as outlined at amendment (14).

Amendment (16)

This amendment will amend the definition of “property or wealth being lawfully acquired” in proposed section 366A in Schedule 1 of the Bill by removing “any” at the beginning of proposed subsection 336A(b).  It is possible that the word “any” before “consideration” in the subsection suggests that, where property is partly acquired with legitimate funds and partly with illegitimate funds, proposed section 366A would render the whole of the property as lawfully obtained.  This interpretation would frustrate the purpose of the provision.  This amendment will ensure that where property is purchased with partly illegitimate funds, it cannot be treated as wholly lawfully acquired.

Amendments to Schedule 2

Amendment (17)

This amendment will delete reference to “or Division 2 of Part 4-1” from proposed subparagraph 266A(1)(a)(ii) in Schedule 2 of the Bill.  The effect of this amendment will be that information obtained by the Official Trustee about controlled property under Division 2 of Part 4-1 cannot be disclosed under proposed section 266A.

Division 2 of Part 4-1 of the Act attaches  derivative use immunity (in subsection 271(2)) to information disclosed by a natural person under the Part, whereas the effect of proposed section 266A is that no derivative use immunity would attach to the information to which it applies.  To ensure that subsection 271(2) and proposed section 266A are not inconsistent, it is necessary to exclude the reference in subparagraph 266A(1)(a)(ii).

Amendment (18)

This amendment will amend item 2 of the table at subsection 266A(2) in Schedule 2 of the Bill so that the purpose for which information may be disclosed to law enforcement and prosecuting agencies is limited to the investigation, prosecution or prevention of an indictable offence punishable by imprisonment for three years or more.  This amendment will give effect to recommendation 4 of the Senate Committee’s report on the Bill.

This amendment will also insert a new item 2A into the table at proposed subsection 266A(2), which limits the disclosure of information to foreign law enforcement agencies to conduct, that, if it had occurred in Australia, would constitute and indictable offence punishable by imprisonment for three years or more.  This amendment will give effect to recommendation 5 of the Senate Committee’s report on the Bill.

Amendment (19)

This amendment will delete proposed subsections 266A(3), (4) and (5) in the Bill and insert new subsections 266A(3) - (7) in Schedule 2 of the Bill.  These amendments are necessary to ensure that a direct use immunity continues to apply to certain types of information disclosed under section 266A.

The deletion of subsection 266A(5) is consequential upon the amendment to subparagraph 266A (1)(a)(ii) referred to in amendment (17) above.

Proposed new subsections 266A(3) - (6) will ensure the immunities that apply to a particular answer or document when it is first obtained under the Act continue to apply when the answer or document is disclosed under proposed section 266A.  The subsections will provide direct use immunity in respect of a disclosure of an answer or document, and in respect of the fact that the person gave such an answer or document under the Act, even if the answer or document is produced in some other form (eg a summary of a document produced).  This means, for example, that an answer given or a document produced in an examination under Part 3-1 of the Act, and the fact that the person gave such an answer or document, are not admissible in civil or criminal proceedings against the person who gave the information.  This is consistent with the direct use immunity offered by section 198 for such answers and documents.

Proposed new subsections (3) - (6) will not prevent information disclosed under the section from being used to pursue further criminal investigations, or other investigations under the Act.  The subsections will not operate to prevent the admission in criminal proceedings of evidence that was obtained as a result of those investigations.  For example, a person may give an answer in an examination under Part 3-1 that discloses information about a bank account.  Proposed subsection 266A(3) will prevent information about the bank account that is obtained directly from the answer being admitted in proceedings against the person.  However, the section will not operate to prevent the admission of the same information about the bank account if the information was obtained from separate investigations, such as the execution of a search warrant under the Crimes Act.

Proposed new subsection 266A(7) will provide that section 266A does not affect the admissibility of any information, document or thing obtained as an indirect consequence of a disclosure under the section.  The purpose of this amendment is to make it clear that subsections (3) - (6) create only a direct use immunity in respect of the types of information referred to in those provisions.  This is consistent with the direct use immunity that would have applied when the information was originally obtained under Part 3-1 (Examinations) or Part 3-2 (Production orders).

Amendment (20)

This amendment will insert proposed new subsection 266A(8) into Schedule 2 of the Bill.  The new subsection will expressly state that proposed section 266A does not limit the operation of existing section 228(2) (which provides that a search warrant authorises the executing officer to make things seized under the warrant available to officers of other law enforcement agencies).  The amendment will also make it clear that section 228 does not limit the operation of proposed section 266A.  This amendment is necessary to remove any potential uncertainty about the interaction between the two information sharing provisions in section 228 and proposed section 266A.

Amendments to Schedule 3

Controlled operations

Amendment (21)

Proposed section 15GO sets out when an authority for a controlled operation may be varied by an appropriate ‘authorising officer’ (defined at proposed section 15GF) and the restrictions that apply to such variations.  The reference to ‘no single variation’ in proposed subsection 15GO(4) could create ambiguity about whether it would be possible for an appropriate authorising officer to make more than one variation that would, taken together, extend the period of the authority beyond three months.  Amendment (21) will amend proposed subsection 15GO(4) to clarify that a formal authority must not be varied such that it would, following the variation, exceed three months.

Amendment (22)

Amendment (22) will change the title of proposed section 15GQ from ‘Determination of application to vary authority’ to ‘Requirements for variation of authority’ to better reflect the purpose of the proposed section as amended by amendments (23) and (24).

Amendments (23) and (24)

Proposed subsection 15GQ(1) states that the authorising officer concerned may vary an authority after considering an application.  Proposed subsection 15GQ(2) sets out matters an authorising officer must consider before varying an authority for a controlled operation.

Amendment (23) will amend proposed subsection 15GQ(1) to refer to an appropriate ‘authorising officer’ (defined at proposed section 15GF) instead of ‘the authorising officer concerned’.  This is a minor technical amendment to maintain consistent terminology throughout the proposed provisions.

Amendment (24) will amend proposed subsection 15GQ(2) to clarify that the requirements listed in proposed subsection 15GQ(2) apply whether an authorising officer is considering varying an authority on his or her own initiative (under proposed paragraph 15GO(1)(a)) or in response to an application from another officer made under proposed section 15GP.  No variation should be made unless the authorising officer is satisfied on reasonable grounds of the matters set out at proposed subsection 15GQ(2).

Amendment (25)

Proposed section 15GR sets out the forms in which an authority for a controlled operation may be varied - namely a formal variation or an urgent variation.  Amendment (25) will amend the wording of proposed subsection 15GR(1) to explicitly refer to the two circumstances in which an authorising officer may vary an authority, being on application or on the authorising officer’s own initiative, instead of on application or ‘otherwise’.  This is a minor technical amendment to clarify the proposed provision.

Amendment (26)

Proposed section 15GT provides that a formal authority for a controlled operation may be varied by a nominated member of the AAT.  The proposed section in the Bill is ambiguous as to the maximum total duration of a controlled operation.

Amendment (26) will make it clear that a single variation can only extend the period of effect of an authority by up to three months.  The amendment will also clarify that a variation cannot be made in such a way that it would result in the period of effect of the authority exceeding 24 months in total.

Amendments (27) and (28)

Proposed subsection 15HM(1) will provide that the chief officer of each authorising agency for controlled operations (the AFP, the ACC and ACLEI) must report, every six months, to the Commonwealth Ombudsman and the Minister.  Proposed subsection 15HM(2) sets out the information that must be included in the report.  Proposed subparagraph 15HM(2)(i)(ii) currently requires the report to contain the date the controlled operation ceased, if it ceased during that six-monthly reporting period.

Amendment (27) will amend proposed subparagraph 15HM(2)(i)(ii) to also require every six-monthly report to contain details on the outcomes of each controlled operation that concluded during that six month period.  This amendment seeks to address concerns raised by the Senate Committee about the reporting requirements in the Bill.

Amendment (28) will insert new subsections 15HM(2A), (2B) and (2C) into proposed section 15HM to require that if a controlled operation involved illicit goods that are narcotic goods, the report on that operation must include additional information.

New subsection 15HM(2A) will provide that the report must identify people who had possession of the narcotic goods during the operation, whether the goods have been destroyed, and if they have not been destroyed, further information about their current location as set out at new subsection 15HM(2B).

New subsection 15HM(2B) will provide that if the narcotic goods have not been destroyed, and the identity of the person in possession of the goods is known, the report must (if the person is a law enforcement officer) identify the law enforcement agency to which the officer belongs or (if the person is not a law enforcement officer), identify the person in possession of the narcotic goods.

New subsection 15HM(2C) will provide that if the chief officer of the authorising agency is of the view that disclosing the identity of a person who possesses or did possess the narcotic goods in question may endanger the person’s safety or prejudice an investigation or prosecution, the person may instead be identified by an assumed name under which the person is operating, a code name or a code number.  The subsection will also provide that this may only be done if the chief officer can match the assumed name, code name or code number to the person’s identity.  This will ensure that personal safety and the integrity of investigations and prosecutions are protected while still providing accountability for the location and possession of narcotic goods.

New subsection 15HM(2C) is based on current subsection 15S(5) of the Crimes Act.

Amendment (29)

Proposed section 15HN will require the chief officer of each authorising agency for controlled operation (the AFP, the ACC and ACLEI) to prepare an annual report to the Minister and the Ombudsman, as soon as practicable after 30 June each year, on the work and activities of the agency under new Part IAB of the Crimes Act.  The report will be required to contain the details set out at proposed subsection 15HM(2) for each controlled operation for which the agency was the authorising agency during the previous 12 months.

As amendment (28) will insert subsections (2A), (2B) and (2C) into proposed section 15HM, it is appropriate that the details required by these new subsections relating to narcotic goods also be required in the chief officers’ annual reports to the Minister and to the Ombudsman.

Amendment (29) will amend proposed subsection 15HN(1) to ensure that the annual reports to the Minister and the Ombudsman also include the details required by new subsections 15HM(2A), (2B) and (2C).

Amendments (30) to (32)

Proposed section 15HQ will require the chief officer of each authorising agency (the AFP, ACC and ACLEI) to ensure that a general register is kept of all controlled operations applications and authorities.  Proposed subsection 15HQ(2) will specify the information that must be recorded in the register.

Amendment (30) will require the general register to contain information on the nature of the controlled conduct that was engaged in by law enforcement and civilian participants (if any).  Amendment (31) mirrors amendment (27) and will amend paragraph 15HQ(2)(x) to require the general register to contain details on the outcomes of each operation as well as the date on which the operation ceased.  These amendments seek to address concerns raised by the Senate Committee about the reporting requirements in the Bill.

Amendment (32) mirrors amendment (28) and will insert new subsections 15HQ(2A), (2B) and (2C) into proposed section 15HQ so that the general register will be required to include certain additional information where a controlled operation involved illicit goods that are narcotic goods.  This amendment implements recommendation 7 of the Senate Committee’s report on the Bill.

New subsection 15HQ(2A) will provide that the general register must identify people who had possession of the narcotic goods during the operation, whether the goods have been destroyed, and if they have not been destroyed, further information about their current location as set out at new subsection 15HQ(2B).  New subsection 15HQ(2B) will provide that if the narcotic goods have not been destroyed, and the identity of the person in possession of the goods is known, the general register must (if the person is a law enforcement officer) identify the law enforcement agency to which the officer belongs, or (if the person is not a law enforcement officer), identify the person in possession of the narcotic goods.

New subsection 15HQ(2C) will provide that if the chief officer of the authorising agency is of the view that disclosing the identity of a person who possesses or did possess the narcotic goods in question may endanger the person’s safety or prejudice an investigation or prosecution, the person may instead be identified in the general register by an assumed name under which the person is operating, a code name or a code number.  The new subsection will also provide that this may only be done if the chief officer can match the assumed name, code name or code number to the person’s identity.  This will ensure that personal safety and the integrity of investigations and prosecutions are protected while still providing accountability for the location and possession of narcotic goods.

New subsection 15HQ(2C) is based on current subsection 15S(5) of the Crimes Act.

Amendment (33)

Proposed section 15HX will authorise the Ombudsman to delegate some or all of his or her powers under this Division, except the power to report to the Minister.

Amendment (33) will limit the breadth of Ombudsman’s ability to delegate powers under the Part by removing the discretion for the Ombudsman to delegate his or her powers to a person having similar oversight functions under a law of a State or Territory or an employee responsible to that person.  The Ombudsman will instead be able to delegate only to an APS employee responsible to the Ombudsman.  This amendment responds to an issue raised by the Scrutiny of Bills Committee in Alert Digest 9/2009.

The amendment will also require any delegation be made by a written instrument of delegation.

Assumed Identities

Amendments (34) and (35)

Proposed section 15LH will specify which functions under new Part IAC of the Crimes Act a chief officer (defined at proposed section 15K) is able to delegate, and to whom a delegation can be made.  Proposed subsection 15LH(2) will state that the chief officer can delegate any function under proposed Part IAC that relates to the granting, variation, transfer or cancelling of authorities to a senior officer of the chief officer’s agency.  ‘Senior officer’ is defined in proposed subsection 15LH(3).

Amendments (34) and (35) will insert new paragraph 15LH(3)(i) to provide that where regulations specify a Commonwealth agency as a ‘law enforcement agency’ (under proposed paragraph (f) of the definition of ‘law enforcement agency’ in proposed subsection 15K), a senior officer of that agency will be an officer specified as such in those regulations.  These amendments will rectify a drafting oversight identified by the Senate Committee.

Witness identity protection

Amendment (36)

Amendment (36) will amend the definition of ‘chief officer’ in proposed subsection 15M(1).  The current definition in the Bill includes the chief officers of both ASIO and ASIS.  This amendment will limit the definition of chief officer to the head of a ‘law enforcement agency’.  The model scheme on which the witness identity protection provisions in the Bill were based was developed for law enforcement agencies.  It has become clear that the scheme does not entirely meet the needs of intelligence agencies.  This amendment will ensure that chief officers of intelligence agencies are not able to issue a witness identity protection certificate under the scheme.  ASIO and ASIS will instead be able to continue to rely on the court’s inherent power to protect the identity of officers and agents in court proceedings.

This amendment will also amend the definition of ‘chief officer’ to include, where regulations specify a Commonwealth agency as a ‘law enforcement agency’, an officer specified as such in those regulations.  This amendment implements part of recommendation 9 of the Senate Committee’s report on the Bill.

Amendment (37)

Amendment (37) will omit the definition of ‘intelligence agency’ from proposed subsection 15M(1) of the Crimes Act.  ‘Intelligence agency’ was defined as ASIO and ASIS.  This amendment will remove ASIO and ASIS from the operation of the witness identity protection scheme.  The model scheme on which the witness identity protection provisions in the Bill were based was developed for law enforcement agencies.  It has become clear that the scheme does not entirely meet the needs of intelligence agencies.  ASIO and ASIS will instead be able to continue to rely on the court’s inherent power to protect the identity of officers and agents in court proceedings.

Amendment (38)

Amendment (38) will omit the definition of ‘National Witness Protection Program’ from proposed subsection 15M(1).  This term does not need to be defined as it is not used in proposed Part IACA of the Crimes Act.

Amendment (39)

Amendment (39) will amend the definition of ‘operative’ in proposed subsection 15M(1).  ‘Operative’ is defined in the Bill as a person who is or was a participant in a controlled operation authorised under Part IAB, or authorised to acquire and use an assumed identity under Part IAC.  This amendment will limit the definition to exclude any person who is or was an intelligence officer, or any person who is or was authorised to use an assumed identity by an intelligence agency.  This will ensure that intelligence agencies are not included in the proposed witness identity protection scheme.  The model scheme on which the witness identity protection provisions in the Bill were based was developed for law enforcement agencies.  It has become clear that the scheme does not entirely meet the needs of intelligence agencies.  ASIO and ASIS will instead be able to continue to rely on the court’s inherent power to protect the identity of officers and agents in court proceedings.

Amendment (40)

Proposed section 15MD will outline the application of proposed new Part IACA of the Crimes Act.  Amendment (40) will insert new subsection 15MD(3) to clarify that the provisions in proposed Part IACA are not intended to operate to limit the ability of a court to control proceedings before it.  The provisions do not affect a court’s inherent powers to control its own proceedings.

Amendment (41)

Proposed section 15ME of the Crimes Act will set out who is able to give a witness identity protection certificate, the criteria that must be satisfied before the certificate may be given and other procedural matters that apply to giving the certificate.

Amendment (41) will amend proposed subsection 15ME(1) to limit who is able to issue a witness identity protection certificate to the chief officer of a law enforcement agency.  The model scheme on which the witness identity protection provisions in the Bill were based was developed for law enforcement agencies.  It has become clear that the scheme does not entirely meet the needs of intelligence agencies.  ASIO and ASIS will instead be able to continue to rely on the court’s inherent power to protect the identity of officers and agents in court proceedings.

Amendments (42) to (44)

Proposed section 15MF will require an operative to make a statutory declaration, setting out certain matters, before a witness identity protection certificate can be given.  As intelligence agencies will no longer be included in the witness identity protection scheme, amendments (42) to (44) remove references to ‘intelligence officer’ in paragraphs 15MF(1)(c), 15MF(3)(b) and (c).

Amendment (45)

Proposed subsection 15MG(1) will set out the information that will be required to be included in a witness identity protection certificate.  As intelligence agencies will no longer be included in the witness identity protection scheme, this amendment will remove the reference to ‘intelligence officer’ in proposed paragraph 15MG(1)(h).

Amendments (46) to (48)

Proposed section 15MH will set out the requirements for filing, and giving copies of, the witness identity protection certificate ahead of an operative giving evidence.  These requirements are necessary to ensure that other parties to the proceeding have sufficient notice that there will be a witness in the proceeding whose true identity will be protected.  Proposed subsection 15MH(1) will require a certificate to be filed in the court prior to the operative giving evidence in the proceeding.  Proposed subsection 15MH(2) states that once filed, a copy of the certificate must be provided to each party to the proceeding at least 14 days before the operative gives evidence.  The time for giving a copy of the certificate to a party to the proceeding can be shorter than 14 days if agreed to by the party receiving the certificate.

Proposed subsection 15MI(1) as currently drafted would allow the court to give leave for the person to not comply with one or more of the requirements of proposed section 15MH.  This would technically allow a witness identity protection certificate to take effect without being provided to the court or to the other party.

Amendment (46) will limit the scope of proposed section 15MI so that the only requirement that a person may be given leave not to comply with is the timing requirement imposed under subsection 15MH(2) (14 days or a shorter period agreed to by the other party).

Amendment (47) will amend proposed subsection 15MH(2) so that the court must not give leave under proposed subsection 15MI(1) unless satisfied that it was not reasonably practicable to comply with the requirements outlined in proposed subsection 15MH(2).

Amendment (48) will omit proposed subsection 15MI(3).  This subsection will not be necessary as there will be no circumstance in which leave could be given by a court for a certificate not to be filed in accordance with proposed subsection 15MH(1).

Amendments (49) and (50)

Proposed section 15MK will provide that a court in which a certificate is filed may make any order necessary to protect the true identity or address of an operative.  Proposed subsection 15MK(2) will make it an offence for a person to engage in conduct that contravenes an order made by the court under proposed section 15MK.  Proposed subsection 15MK(3) would make it clear that the offence in proposed subsection 15MK(2) will not limit the court’s inherent power to punish a person who contravenes an order with contempt of court. 

Proposed subsection 15MK(4) will require the court to make an order suppressing the publication of anything said when an order is made under proposed subsection 15MK(1) to protect the identity of the operative.  Proposed subsection 15MK(5) will allow a court to make an order for how the court transcript is to be dealt with, including an order suppressing its publication.  Although proposed subsections 15MK(4) and (5) allow a court to make an order, there is no offence in the Bill for breaching an order made by the court under those subsections.

Amendments (49) and (50) will omit proposed subsections 15MK(2) and (3) and insert new subsections 15MK(6) and (7).  These subsections will be based on subsection 15MK(2) and (3) but will make it an offence, punishable by imprisonment for two years, to engage in conduct that contravenes an order made under proposed subsections 15MK(1), (4) or (5).  New subsection 15MK(7) will clarify that subsection 15MK(6) will not limit the court’s power to punish for contempt.

Amendment (51)

Proposed section 15MN will give the court discretion to allow the operative (who is protected by the certificate) and the chief officer of the agency who gave the certificate to be joined as a respondent to an application for leave under proposed sections 15MI or 15MM, or an order under proposed sections 15MK or 15MM.  The intention of this section is to ensure the court is provided with relevant information about why the operative’s identity should not be disclosed.

Proposed section 15MP would allow a party to seek an adjournment to allow time for that party to appeal or to decide whether to appeal a decision of the court (under proposed sections 15MI, 15MK or 15MM).

Amendment (51) will omit proposed section 15MP and replace it with a new section to provide the court with discretion to allow an operative or a chief officer to:

·         seek an adjournment to decide whether to appeal a decision or order under proposed sections 15MI, 15MK or 15MM

·         appeal against a decision or order, or

·         be joined as a respondent to an appeal against a decision or order.

This amendment is consistent with the policy intention of proposed section 15MN which allows an operative, or the chief officer of the agency who gave the certificate, to make representations to the court as to why the operative’s identity should not be disclosed.

New subsection 15MP(1) will state that the section will apply if a court gives or refuses to give leave under proposed sections 15MI or 15MM or the court makes, or refuses to make, an order under proposed sections 15MK or 15MM.

New subsection 15MP(2) will ensure that a court that has jurisdiction to hear and determine appeals from a judgement will also have jurisdiction to hear and determine an appeal against a decision to give or refuse leave, or make or refuse to make an order.

New subsection 15MP(3) will ensure that a party to the proceedings, or the operative or chief officer who gave the certificate, is able to appeal a decision to give or refuse leave or make or refuse to make an order.  An operative or chief officer who gave the certificate will only be able to appeal if the court is satisfied that they have a sufficient interest in the decision.

New subsection 15MP(4) will ensure that where a party to the proceedings appeals a decision to give or refuse leave, or make or refuse to make an order, the appeal court may allow the operative or chief officer who gave the certificate to join the appeal as a respondent.  This amendment is consistent with the proposed section 15MN, which allows the operative or chief officer to be joined as a respondent to an application for leave or an order.  It is also appropriate that the operative or chief officer can be heard in an appeal to that decision.  The operative or chief officer can only be joined if the appeal court is satisfied that they have a sufficient interest in the decision.

New subsections 15MP(5) and (6) will be based on proposed subsections 15MP(1) and (2) of the Bill but will extend the application of the provision to the operative and chief officer who issued the certificate.  New subsection 15MP(5) will allow a party to the proceeding, or the operative or the chief officer who issued the certificate, to apply to the original court for an adjournment to appeal, or decide whether to appeal, a decision to give or refuse leave, or make or refuse to make an order.  New subsection 15MP(6) will state that if such an application is made to the court, the court must grant the adjournment.  An adjournment is appropriate because otherwise the appeal would not take place until after the operative’s true identity had been disclosed.  This would frustrate the objectives of the witness identity protection regime.

Amendment (52)

Proposed section 15MQ will provide that a chief officer will be required to cancel a witness identity protection certificate if the chief officer believes that it is no longer necessary or appropriate to prevent the disclosure of the operative’s identity or address.  As intelligence agencies will no longer be included in the witness identity protection scheme, this amendment will remove the reference to the chief officer of an intelligence agency in proposed subsection 15MQ(1).  The model scheme on which the witness identity protection provisions in the Bill were based was developed for law enforcement agencies.  It has become clear that the scheme does not entirely meet the needs of intelligence agencies.  ASIO and ASIS will instead be able to continue to rely on the court’s inherent power to protect the identity of officers and agents in court proceedings.

Amendment (53)

Proposed section 15MR will provide that a chief officer may give written permission to a person (including the operative) to give information outside the proceeding that may disclose, or may lead to the disclosure of, the operative’s identity or address. As intelligence agencies will no longer be included in the witness identity protection scheme, this amendment will remove the reference to the chief officer of an intelligence agency in proposed subsection 15MR(1).  The model scheme on which the witness identity protection provisions in the Bill were based was developed for law enforcement agencies.  It has become clear that the scheme does not entirely meet the needs of intelligence agencies.  ASIO and ASIS will instead be able to continue to rely on the court’s inherent power to protect the identity of officers and agents in court proceedings.

Amendment (54)

Proposed section 15MS will create three offences that relate to the disclosure of an operative’s identity or address where the operative has been given a witness identity protection certificate.

Under proposed subsection 15MS(3), it will be an offence for a person to engage in conduct that results in the disclosure of the operative’s true identity or address, where the person is reckless as to whether their conduct will prejudice the effective conduct of an investigation or intelligence-gathering in relation to criminal activity.  Amendment (54) will amend proposed paragraph 15MS(3)(f) to align the offences more closely with the circumstances in which a certificate can be issued under proposed section 15ME.  As these are designed to protect the identity of the operative or operation, it is appropriate that the offences are targeted to protect the same matters.  The amendment will make it an offence for a person to engage in conduct being reckless as to whether the conduct will prejudice:

·         any current or future investigation, or

·         any current or future activity relating to security.

Amendment (55)

Proposed section 15MT will allow a chief officer to sign a certificate stating whether a certificate has been cancelled, or whether the conduct that is the subject of an offence was required, authorised by or permitted under proposed sections 15ML, 15MM or 15MR.  As intelligence agencies will no longer be included in the witness identity protection scheme, this amendment will remove the reference to the chief officer of an intelligence agency in proposed subsection 15MT(1).  The model scheme on which the witness identity protection provisions in the Bill were based was developed for law enforcement agencies.  It has become clear that the scheme does not entirely meet the needs of intelligence agencies.  ASIO and ASIS will instead be able to continue to rely on the court’s inherent power to protect the identity of officers and agents in court proceedings.

Amendments (56) to (58)

Proposed sections 15MU and 15MV would require the chief officer of a law enforcement agency or intelligence agency to submit an annual report to the Minister and to the Inspector-General of Intelligence and Security respectively about the certificates given during that year.

Amendment (56) will amend the heading to proposed section 15MU to remove the reference to ‘law enforcement agencies’.  As the scheme will no longer apply to intelligence agencies, proposed section 15MU will not need to be explicitly limited to law enforcement agencies.

Amendment (57) is consequential to amendment (41).  Proposed paragraph 15MU(2)(b) currently refers to proposed paragraph 15ME(1)(d).  This paragraph will be replaced with paragraph 15ME(1)(b) by amendment (41).

Amendment (58) will omit proposed section 15MV, which currently sets out the reporting requirements which apply to intelligence agencies.  As the scheme will no longer apply to intelligence agencies, this section is no longer necessary.

Amendments (59) and (60)

Proposed section 15MX will allow the chief officer to delegate any of his or her functions (except the power of delegation) under this Part to a senior officer of the agency.

As the witness identity protection scheme will no longer apply to intelligence agencies, amendment (59) will remove the reference to intelligence agency in proposed subsection 15MX(1) and amendment (60) will remove proposed paragraphs 15MX(3)(e) and (f) which define ‘senior officer’ in relation to ASIO and ASIS.  The model scheme on which the witness identity protection provisions in the Bill were based was developed for law enforcement agencies.  It has become clear that the scheme does not entirely meet the needs of intelligence agencies.  ASIO and ASIS will instead be able to continue to rely on the court’s inherent power to protect the identity of officers and agents in court proceedings.

Amendment (60) will also insert a definition of ‘senior officer’ of a Commonwealth agency which has been specified in the regulations under proposed paragraph (f) of the definition of ‘law enforcement agency’ in subsection 15M.  New paragraph 15MX(3)(e) will provide that, where regulations specify an agency as a ‘law enforcement agency’, a senior officer of that agency will be the officer specified in those regulations to be a senior officer of that agency.  This amendment will implement part of recommendation 9 of the Senate Committee’s report on the Bill.

Amendments to Schedule 4

Amendment (61)

Amendment (61) will insert a new heading for Division 1 of Schedule 4, Part 2 of the Bill, which refers to offences involving criminal organisations.

Amendment (62)

Amendment (62) will amend the definition of ‘serious offence’ in section 5D of the TIA Act to include offences against section 93T of the Crimes Act 1900 (NSW).

As well as the provisions in the C(COC)A , section 93T of the Crimes Act (NSW) contains offences committed by and on behalf of criminal groups, including directing the activities of a criminal organisation and assaulting a police officer on behalf of a criminal organisation.  The definition of a criminal group under section 93T is the same as for a criminal organisation which can be declared under the C(COC)A.

Organised crime offences in other jurisdictions that are similar to section 93T of the Crimes Act (NSW), will have telecommunications interception available to investigate declared criminal organisations.  The inclusion of section 93T of the Crimes Act ensures there is a nationally consistent approach to combating organised crime.

Amendment (63)

This amendment will omit and substitute item 18 of Schedule 4 of the Bill.  This will enable conduct within the meaning of new subsection 5D(3AA) at amendment (62) and proposed subsection 5D(9) at item 17 of Schedule 4 of the Bill, to be investigated whether or not the conduct in question occurred before or after the conduct was included in the definition of “serious offence”.

Amendment (64)

This amendment will insert new Division 2 into Schedule 4, Part 2.  The Division will set out the provisions relating to the use of information for purposes of organised crime control laws.

Item 18A will insert a definition of ‘organised crime control law’ into section 5 of the TIA Act.  This will ensure that where a law of a State relates to combating organised crime or restricting the activities of criminal organisation, State interception agencies will be able to use and disclose lawfully intercepted information in certain prescribed circumstances.

The TIA Act allows lawfully intercepted information to be used to investigate criminal conduct which is linked to many criminal organisations as well as conduct of organisations which have been declared organisations under a relevant State law.  This amendment will accommodate the nexus between the two points.

New item 18B will add conjunctions at the end of a number of the subparagraphs of subsection 5(1) of the definition of ‘permitted purpose’ for consistency with current drafting practice.

New item 18C will amend the definition of ‘permitted purpose’ in section 5 of the TIA Act.  This will allow State and Territory interception agencies to use lawfully intercepted information in the preparation and making of applications for declarations of criminal organisations and control orders against individual members of such organisations.

The TIA Act contains a general prohibition on the use of lawfully intercepted information, subject to limited exceptions.  One such exception is the use or disclosure of information for a ‘permitted purpose’ as defined in section 5 of the TIA Act.

New item 18D will amend section 5B of the TIA Act to include in the definition ‘exempt proceedings’, proceedings relating to matters arising under ‘organised crime control laws’.

This amendment will enable a person to give lawfully intercepted information in evidence in ‘exempt proceedings’ under section 74 of the TIA Act for the declaration of an organisation as a criminal organisation or to assist applications for control orders against individual members of such organisations.

New item 18E adds conjunctions at the end of a number of the paragraphs of subsection 6L(1) of the definition of ‘relevant proceeding’ for consistency with current drafting practice.

New items 18F and 18G will amend section 6L of the TIA Act to include in the definition of ‘relevant proceeding’, proceedings relating to matters arising under ‘organised crime control laws’.

The definition of ‘permitted purpose’ allows the use and communication of lawfully intercepted information to be used in the decision of whether or not to commence a ‘relevant proceeding’ and for the relevant proceeding itself.

This amendment will have the same effect as the amendment to ‘permitted purpose’ at new item 18C, including its application to information that was obtained before commencement, but will apply to applications for declarations and control orders which are decided by a court.

New item 18H will amend section 68 of the TIA Act to allow the communication of lawfully intercepted information to recipient agencies for the purpose of preparing or making an application for a declaration of a criminal organisation or a control order for members of such organisations.

This amendment will assist agencies involved in joint operations established to combat organised crime.  It will ensure agencies can exchange information in order to compile the strongest possible case for an application for a declaration or a control order.

New item 18J will enable the communication, use and making of a record of information, and the giving of information in evidence in proceedings, on or after the commencement of this item, whether the information was obtained before or after that commencement.