Save Search

Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Crimes Legislation Amendment (Serious and Organised Crime) Bill 2010

Bill home page  


Download WordDownload Word


Download PDFDownload PDF

2009

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

CRIMES LEGISLATION AMENDMENT (SERIOUS AND ORGANSED CRIME) BILL 2009

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

(Circulated by authority of the Attorney-General,

the Honourable Robert McClelland MP)



CRIMES LEGISLATION AMENDMENT (SERIOUS AND ORGANISED CRIME) BILL 2009

GENERAL OUTLINE

This Bill amends the Crimes Act 1914 , the Criminal Code Act 1995 , the Customs Act 1901 , the Family Law Act 1975 , the Proceeds of Crime Act 2002 and the Telecommunications (Interception and Access) Act 1979 .

In April 2009, the Standing Committee of Attorneys-General (SCAG) agreed to a set of resolutions for a comprehensive national response to combat organised crime.  The SCAG resolutions dealt with both the legislative and operational response to organised criminal activity.  This Bill implements the Commonwealth’s commitment as part of the SCAG agreement to enhance its legislation to combat organised crime by:

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

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

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

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

These measures are further described below. 

PURPOSE

The purpose of Schedules 1 and 2 is to amend the Proceeds of Crime Act 2002 to strengthen the Commonwealth criminal assets confiscation regime.  The proposed amendments respond to recommendations of law enforcement agencies and to the Report of the Independent Review of the Operation of the Proceeds of Crime Act by Mr Tom Sherman AO, which was tabled in Parliament in October 2006.

Schedule 1 will introduce unexplained wealth provisions which target wealth that a person cannot demonstrate that he or she has lawfully acquired.

The amendments in Schedule 2 will:

·          introduce freezing orders to ensure assets are not dispersed

·          remove time limitations on orders

·          provide for non-conviction-based restraint and forfeiture of instruments of serious crime

·          enhance information sharing under the Proceeds of Crime Act 2002 , and

·          reimburse legal aid commission legal costs from the Confiscated Assets Account.

 

The overarching purpose behind these amendments is to improve the ability of law enforcement agencies to target upper-echelon organised crime figures that derive the greatest financial benefit from offences, but are seldom linked by evidence to the commission of an offence. 

 

The purpose of Schedule 3 is to implement model laws for controlled operations, assumed identities and witness identity protection.  The model laws were developed following the 2002 Leaders Summit on Multi-jurisdictional Crime by the Joint Working Group of SCAG and the then Australasian Police Ministers Council. The Joint Working Group’s Report, Cross-border investigative powers for law enforcement , was released in 2003, and the model laws endorsed by implementation by SCAG in 2004.

The model laws are intended to enhance the ability of law enforcement agencies to investigate and prosecute multi-jurisdictional criminal activity.  This type of crime is becoming increasingly common due to advances in information and communication technology, and the increasing sophistication of organised criminal groups, particularly those involved in terrorism or transnational crime, including drug trafficking .  Implementation of the model laws will enable authorisations issued under a regime in one jurisdiction to be recognised in other jurisdictions.

Schedule 3 will replace the existing provisions in the Crimes Act 1914 for controlled operations, assumed identities and witness identity protection with the model laws, taking into account the unique role of Commonwealth agencies for national security and the investigation of crimes with a foreign aspect.

The purpose of Schedule 4, Part 1 is to amend the Criminal Code Act 1995 to include a new ground for extending criminal liability in relation to persons who jointly commit offences.  Extending criminal liability to cover the joint commission of criminal offences would also target persons who engage in criminal activity as part of a group.  The amendments will enable the prosecution to obtain higher penalties for offenders who commit crimes in organised groups by aggregating the conduct of offenders who operate together.

 

Part of the national response to organised crime includes offences that target criminal organisations (for example, associating with a member of a criminal organisation or instructing the commission of an offence for a criminal organisation).  Some of these offences may carry a maximum penalty that falls below the threshold for the use of telecommunications interception.  The purpose of Schedule 4, Part 2 is to amend the Telecommunications (Interception and Access) Act 1979 to facilitate greater access to telecommunications interception for criminal organisation offences.

 

FINANCIAL IMPACT STATEMENT

 

The amendments in this Bill have no financial impact on Government revenue.

 

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

 

ATO                    Australian Taxation Office

 

BDM register       Register of births, deaths and marriages

 

Customs                Australian Customs and Border Protection Service

 

DPP                     Commonwealth Director of Public Prosecutions

 

NWPP                 National Witness Protection Program

 

NOTES ON CLAUSES

 

Clause 1: Short Title

 

This clause provides that when the Bill is enacted, it is to be cited as the Crimes Legislation Amendment (Serious and Organised Crime) Act 2009 .

 

Clause 2: Commencement

 

This clause sets out when the various parts of the Act are to commence.

 

Clause 3: Schedule(s)

 

This is a formal clause that enables the Schedules to amend Acts by including amendments under the title of the relevant Act.



Schedule 1 - Unexplained Wealth

 

Schedule 1 amends the Proceeds of Crime Act 2002 to strengthen the Commonwealth criminal assets confiscation regime in Chapter 2 of the Act by introducing unexplained wealth orders to the suite of confiscation processes.  Unexplained wealth orders target wealth that a person cannot demonstrate that he or she has lawfully acquired.

While the Act contains existing confiscation mechanisms, these are not always effective in relation to those who remain at arm’s length from the commission of offences, as most of the other confiscation mechanisms require a link to the commission of an offence.  Senior organised crime figures who fund and support organised crime, but seldom carry out the physical elements of crimes, are not always able to be directly linked to specific offences. 

Under the unexplained wealth provisions introduced by Schedule 1, once a court is satisfied that an authorised officer has reasonable grounds to suspect that a person’s total wealth exceeds the value of the person’s wealth that was lawfully acquired, the court can compel the person to attend court and prove, on the balance of probabilities, that their wealth was not derived from offences with a connection to Commonwealth power.  If a person cannot demonstrate this, the court must order them to pay to the Commonwealth the difference between their total wealth and their legitimate wealth (the unexplained wealth amount).  Schedule 1 also provides for restraining orders in relation to unexplained wealth.

Unexplained wealth provisions have been successfully used in Italy in recent years in relation to the Mafia.  The Northern Territory and Western Australia also have unexplained wealth schemes.  It is estimated that more than $40 million in alleged criminal assets has been seized in the Northern Territory and Western Australia under unexplained wealth provisions since 2003.  Article 20 of the United Nations Convention Against Corruption encourages parties to the Convention to consider creating an 'illicit enrichment' offence for public officials who have intentionally increased the value of their assets and cannot link the whole value of their assets to a lawful source of income.

The Commonwealth unexplained wealth regime draws on the Northern Territory and Western Australia experience.  There main differences between the Commonwealth’s unexplained wealth scheme and those of the Northern Territory and Western Australia is that the Commonwealth is limited to confiscating unexplained wealth derived from offences within Commonwealth Constitutional power.

Part 1 - Main amendments

Proceeds of Crime Act 2002

Items 1-4

Items 1 - 4 are consequential on the insertion of new Part 2-6 into the Act.  Part 2-6 establishes a new confiscation scheme in the Act for unexplained wealth.

Item 1 - After paragraph 5(b)

Item 1 inserts a new object into the Act.  It provides that one of the principal objects of the Act is to deprive persons of ‘unexplained wealth amounts’ that they cannot satisfy a court were not derived from certain offences.

An unexplained wealth amount is the difference between a person’s total wealth (defined at 179G(2)) and the amount of a person’s wealth that he or she can satisfy a court was not derived from certain offences (see subsection 179E(2)).  The offences that a person must show were not the source of his or her wealth are an offence against a law of the Commonwealth, a foreign indictable offence or a State offence that has a federal aspect.

Item 2 - Paragraph 5(d)

Item 2 amends paragraph 5(d) of the Act by inserting ‘unexplained wealth amounts.’  This makes one of the principal objects of the Act the prevention of the reinvestment of ‘unexplained wealth amounts’ in further criminal activities.

Item 3 - Paragraph 5(e)

Item 3 amends paragraph 5(e) of the Act by inserting ‘unexplained wealth amounts.’  It will be a principal object of the Act to enable law enforcement authorities to effectively trace unexplained wealth amounts.

Item 4 - At the end of section 7

Item 4 amends the outline of how Chapter 2 (the confiscation scheme) operates.  It inserts a new process relating to confiscation: unexplained wealth orders requiring payment of unexplained wealth amounts in Part 2-6 of the Act.

Item 5 - After section 20

20A  Restraining orders - unexplained wealth

Item 5 inserts section 20A after section 20 of the Act.  Section 20A requires a court with proceeds jurisdiction to make a restraining order in relation to unexplained wealth if certain conditions have been met.  The restraining order for unexplained wealth is modelled on the existing restraining orders at sections 17-20 of the Act.

The restraint of property suspected of being an unexplained wealth amount is a crucial part of the confiscation scheme and a condition precedent to the court issuing an examination order.  An examination order is an important tool that the DPP may employ to locate further property. These provisions ensure that property is preserved and cannot be dealt with to defeat an ultimate unexplained wealth order.

Paragraphs 20A(1)(a) and (b) will enable the court to prohibit a person from dealing with certain property, or specify that the property may only be dealt with in ways set out in the order. For example, a restraining order may prohibit a person from selling or mortgaging a business, but allow him or her to continue to run the business.

There are several conditions that must be met before a court with proceeds jurisdiction may make a restraining order.  These are set out in subparagraphs 20A(1)(c)-(g).  The DPP must first have applied for a restraining order for unexplained wealth and met the affidavit requirements of subsection 20A(3) (20A(1)(c) and (e).

Subparagraph 20A(1)(d) requires there to be reasonable grounds to suspect that a person’s total wealth exceeds the value of the person’s wealth that was lawfully acquired.  The court must be satisfied that the authorised officer who made the affidavit holds the requisite suspicion(s) stated in the affidavit on reasonable grounds (subparagraph 20A(1)(f)).

Lastly, subparagraph 20A(1)(g) requires the court to be satisfied either that:

·          the person has committed an offence against a law of the Commonwealth, a foreign indictable offence or a State offence that has a federal aspect, or

·          the whole or any part of the person’s wealth was derived from an offence against a law of the Commonwealth, a foreign indictable offence or a State offence that has a federal aspect.

Subsection 20A(2) sets out what property may be covered by a restraining order.  The restraining order may cover all of the property of the person (the suspect) suspected of having unexplained wealth amounts, or specified parts of that person's property.  In addition, the order can extend to property of another person if the property is suspected of being under the effective control of the suspect, as well as bankruptcy property.  Bankruptcy property is property that used to belong, or be under the effective control of, the suspect but which is now vested in another person under either subsection 58(1) or 249(1) of the Bankruptcy Act 1966 .

The DPP is not required, at the time of applying for a restraining order for unexplained wealth, to prove that the property is effectively controlled by the person, or is an unexplained wealth amount.  However, under subparagraph 20A(3)(b), if the application is to restrain property of a person other than the suspect, but not to restrain bankruptcy property of the suspect, the authorised officer must state in his or her affidavit that he or she suspects that the property is subject to the effective control of the suspect.  For example, if a person places a property in his or her spouse’s name but effectively controls the property.

The authorised officer must also state in his or her affidavit his or her suspicions that the total wealth of the person identified in the affidavit exceeds the value of the person’s wealth that was lawfully acquired (subparagraph 20A(3)(a).) 

The affidavit requirement of subparagraph 20A(3)(c) also requires an authorised officer to state that he or she suspects either that the person identified in the affidavit has committed an offence against a law of the Commonwealth, a foreign indictable offence or a State offence that has a federal aspect; or that the whole or any part of the property was derived from an offence against a law of the Commonwealth, a foreign indictable offence or a State offence that has a federal aspect.

Subsection 20A(4) will allow a court to refuse to make the restraining order if it is not in the public interest to do so.

A court may also refuse to make a restraining order if the Commonwealth refuses to give an undertaking with respect to the payment of damages or costs, or both, for the making and operation of the order under section 21 of the Act.

Subsection 20A(5) provides that a court must make a restraining order even if there is no risk that the property will be disposed of or dealt with.  This is because a restraining order must be in force before a court may make an examination order and examinations are a particularly useful investigative tool for uncovering proceeds of crime.

Subsection 20A(6) enables a restraining order to operate in relation to property which is not yet in the possession of the suspect at the time the order is made. For example, the suspect's bank account may be restrained, and the court may order that any other amounts paid into that account after the making of the order are also restrained.

Item 6 - Subsection 29(1) (note)

Item 6 amends the note that follows subsection 29(1) by omitting ‘31A’ and substituting ’32.’  This is to correct an incorrect existing cross reference.

This item also alters the heading to section 29 by omitting ‘a restraining order’ and substituting ‘certain restraining orders.’  This is necessary to differentiate between property that be excluded from a restraining order made under section 20A and other restraining order situations in which property may be excluded under section 29.

Item 7 - After section 29

29A  Court may exclude property from a restraining order made under section 20A

Item 7 inserts section 29A into the Act and will enable a person whose property is the subject of a restraining order under section 20A to have specified property excluded from that order, if certain conditions have been met. 

The first condition is that the person must apply under either section 30 or 31 of the Act for an order to exclude property from a restraining order (a person applies under section 30 after receiving notice of an application for a restraining order but before a restraining order is made, and under section 31 if the restraining order has already been made).

The second condition is that the court hearing the application to exclude property from a restraining order must be satisfied that the property is property of a person other than the suspect and the property is not subject to the effective control of the suspect.

Item 8 - Paragraph 35(1)(a)

Item 8 amends paragraph 35(1)(a) by inserting ‘29A’ after ’29.’  This is consequential to the insertion of section 29A by Item 6 

Section 35 states that, if the DPP has previously applied to a registration authority for the recording in a register of particulars of a restraining order covering particular property, the DPP must notify the registration authority if certain circumstances change. 

One of the existing circumstances is if the property is no longer covered by the restraining order because it is excluded from the order under section 29 or because the property covered by the order is varied under section 39.  Inserting the reference to section 29A means that the DPP will need to notify the registration authority if property is excluded from a restraining order under section 29A.

Item 9 - Section 39(1)(note)

Item 9 inserts ‘1’ after ‘Note’ at the end of subsection 39(1) of the Act.  This amendment is necessary because of item 8.  Item 8 inserts a second note after subsection 39(1) of the Act.  Therefore, the existing note after subsection 39(1) of the Act needs to be labelled ‘Note 1.’



Item 10 - At the end of subsection 39(1)(after the note)

Item 10 inserts a second note at the end of subsection 39(1) of the Act.  Subsection 39(1) of the Act relates to ancillary orders a court that has made a restraining order, or any other court that could have made the restraining order, may make.

Note 2 states that, if there is an unexplained wealth order that relates to a restraining order under section 20A, the court may also order the Official Trustee to pay an amount equal to the relevant unexplained wealth amount out of property covered by the restraining order.  This means that, in certain circumstances a court may direct the Official Trustee to pay the Commonwealth an amount up to a person’s unexplained wealth amount, out of property that is subject to a restraining order under section 20A.

Item 11 - At the end of subsection 45

Item 11 inserts a new subsection to section 45 of the Act.  Section 45 of the Act deals with cessation of restraining orders.  Subsection 45(7) clarifies that section 45 does not apply to a restraining order made under section 20A.

Cessation of section 20A restraining orders will be governed by section 45A at item 10.

A note after subsection 45(7) alters the heading to section 45 by inserting ‘certain’ before ‘restraining.’  This is necessary to differentiate between cessation of restraining orders relating to unexplained wealth orders under section 45A inserted by Item 10, and other restraining orders under section 45.

Item 12 - At the end of Division 6 of Part 2-1

45A  Cessation of restraining orders relating to unexplained wealth

Item 12 inserts section 45A after section 45 of the Act.  Section 45A establishes the three ways in which a section 20A restraining order will cease to operate.  It is important that a person to whom a section 20A restraining order relates, knows when the order ceases to operate so that they can deal in their property.

The first way in which a section 20A restraining order will cease to operate is if, within 28 days after the order was made, the DPP has not applied for an unexplained wealth order in relation to the person to who the restraining order relates.

The second way in which a section 20A restraining order will cease to operate is if a court refuses to make an unexplained wealth order and all appeal avenues are closed.  This could be because either the time for an appeal against the refusal has expired without an appeal being lodged, or an appeal against the refusal has lapsed or an appeal against the refusal has been dismissed and finally disposed of.

The third way in which a section 20A restraining order will cease to operate is if an unexplained wealth order is made and either the order is complied with or an appeal against the order has been upheld and finally disposed of.



Item 13 - At the end of Chapter 2

Item 13 inserts new Part 2-6 into Chapter 2 of the Act.  Chapter 2 of the Act is the confiscation scheme and currently includes restraint and forfeiture of property, pecuniary penalty and literary proceeds orders.  Part 2-6 will add unexplained wealth orders to the suite of confiscation processes in the Act.

179A  Simplified outline of this Part

Section 179A gives a basic outline of the unexplained wealth provisions.  The DPP must apply for an unexplained wealth order.  A court with proceeds jurisdiction must then decide whether to make a preliminary unexplained wealth order requiring a person to attend court for the purpose of enabling the court to decide whether to make an unexplained wealth order.

Division 1 - Making unexplained wealth orders

179B  Making an order requiring a person to appear.

The process for obtaining an unexplained wealth order is divided into three steps, but requires only one application (an application for an unexplained wealth order.)  Section 179B is the first and prerequisite step in obtaining an unexplained wealth order.

This initial step has been inserted to act as a gate keeping provision.  Before a court with proceeds jurisdiction embarks on the hearing of an unexplained wealth order, it has an opportunity to assess whether an authorised officer has demonstrated reasonable grounds to suspect that the total value of the person’s wealth exceeds the value of the person’s wealth that was lawfully acquired.  If the court does not consider that the authorised officer has reasonable grounds to hold that suspicion, it can refuse to make the preliminary unexplained wealth order and the application for an unexplained wealth order does not proceed any further.

Subsection 179B(1) requires a court with proceeds jurisdiction to make a preliminary unexplained wealth order requiring a person to appear before the court in relation to an unexplained wealth order if three conditions have been met.

The first condition is that the DPP must have applied for an unexplained wealth order in relation to the person.  The second condition is that the court is satisfied that an authorised officer has reasonable grounds to suspect that the person’s total wealth exceeds the value of the person’s wealth that was lawfully acquired.  Section 179G explains how to determine a person’s wealth, total wealth and the value of property.  Wealth is all the property that the person has owned, effectively controlled or disposed of at any time.  The third condition is the affidavit requirements of section 179B(2) must be met.

Section 179B(2) requires an authorised officer to state in his or her affidavit the identity of the person to whom the application for the unexplained wealth order relates.  The authorised officer must state that he or she suspects that the total value of the person’s wealth exceeds the value of the person’s wealth that was lawfully acquired.  An authorised officer is also required to state the property he or she knows or reasonably suspects was lawfully acquired by the person and the property he or she knows or reasonably suspects is owned by the person or is under the effective control of the person and the grounds for that knowledge or suspicion.



179C  Application to revoke a preliminary unexplained wealth order

Section 179C provides a person to whom a preliminary unexplained wealth order relates, an opportunity to have the order requiring them to appear before the court revoked.  There may be instances where a person can quickly and easily demonstrate that his or her total wealth does not exceed the value of his or her wealth that was lawfully acquired because, for example, the authorising officer was not aware of wealth that was lawfully acquired by the person.  In such cases, it is in the interests of justice that the matter be disposed of quickly without resorting to a full hearing for an unexplained wealth order under 179E.

To have a preliminary unexplained wealth order revoked, a person must apply to the court, within 28 days after he or she is notified of the preliminary unexplained wealth order or within such longer period as the court allows but not exceeding 3 months, to revoke the order (subsections 179C(1) and (2).)  The person must give written notice to the DPP of the application to revoke the preliminary unexplained wealth order and the grounds on which the revocation is sought (subsection 179C(3).)  Under subsection 179C(5) the DPP has the right to adduce additional material to the court relating to the application to revoke the preliminary unexplained wealth order.

The court may revoke the preliminary unexplained wealth order if satisfied that there were no grounds on which to make the order at the time the order was made.  This could occur where the person demonstrates that his or her total wealth does not exceed the value of his or her wealth that was lawfully acquired.  For example, an authorised officer’s affidavit may state that a person’s total wealth exceeds their lawfully acquired wealth by $100,000.00.  The person, however, has proof that the $100,000.00 came from a lawful source and thus that there were no grounds for making the preliminary unexplained wealth order.

Under subsection 179C(4) a preliminary unexplained wealth order remains in force until the court revokes the order.

179D  Notice of revocation of a preliminary unexplained wealth order

Section 179D is a notice provision.  If a court revokes a preliminary unexplained wealth order under subsection 179C(6), the DPP must give written notice of the revocation to the person who applied for the revocation.  Requiring the DPP to provide written notice to an applicant will ensure that an applicant is made aware of the outcome of an application.

179E  Making an unexplained wealth order

Subsection 179E(1) requires a court with proceeds jurisdiction to make an unexplained wealth order, requiring a person to pay an amount to the Commonwealth, if two requirements have been met.  The first requirement is that the court has made a preliminary unexplained wealth order in relation to the person under section 179B.  The second requirement is that the person has failed to satisfy the court that his or her total wealth was not derived from an offence against a law of the Commonwealth, a foreign indictable offence or a State offence that has a federal aspect (a specified offence).  The courts that have proceeds jurisdiction for a preliminary unexplained wealth order or an unexplained wealth order are those of any State or Territory with jurisdiction to deal with criminal matters on indictment.

The amount that the person must pay to the Commonwealth is his or her unexplained wealth amount.  A person’s unexplained wealth amount is the amount that, in the court’s opinion, is the difference between the person’s total wealth, and the sum of the values of the property that the court is not satisfied was not derived from a specified offence.

Under subsection 179E(3) a person bears the legal burden of proving, on the balance of probabilities, that his or her wealth is not derived from one or more of the specified offences.  Subsection 179E(4) clarifies that section 317 of the Act does not affect the burden in subsection 179E(3).  Section 317 states that an applicant (which would be the DPP for an unexplained wealth order) in any proceedings under the Act bears the onus of proving the matters necessary to establish the grounds for making the order applied for.  In this case, however, it is the person against whom an order is sought that bears the burden of proving that his or her wealth is not derived from one or more of the specified offences.

Subsection 179E(4) clarifies that, when considering whether to make an unexplained wealth order, the court may have regard to information not included in the application, including information that could not reasonably have been ascertained before the application was made.

The effect of this subsection is that, if the DPP discovers further property owned or under the effective control of the person, after the application for an unexplained wealth order was lodged (and that information could not reasonably have been ascertained before the application was made), the DPP can lead that evidence at a hearing for an unexplained wealth order.

179F  Ancillary orders

Subsections 179F(1) and (2) will allow a court that makes a preliminary unexplained wealth order or an unexplained wealth order, or any other court that could have made the preliminary unexplained wealth order or the unexplained wealth order, to make any ancillary orders to the preliminary unexplained wealth order or the unexplained wealth order that it considers appropriate.  The court may make the ancillary orders either when the preliminary unexplained wealth order or the unexplained wealth order is made or at a later time.

Examples of ancillary orders that a court might make include an order varying the property covered by the restraining order or an order varying a condition to which a restraining order is subject.

Division 2 - Unexplained wealth amounts

179G  Determining unexplained wealth amounts

Subsection 179G(1) explains what a person’s ‘wealth’ is for the purpose of Part 2-6.  A person’s wealth is property owned, effectively controlled, consumed or disposed of by the person at any time.  Importantly, this includes property owned, effectively controlled, consumed or disposed of before the commencement of Part 2-6.

It is necessary to include property owned, effectively controlled, consumed or disposed of by the person at any time so that the person accounts for the entirety of his or her wealth over time and not just property he or she currently owns or controls.  If a person’s wealth were limited to a particular period of time, a person could escape accounting for large amounts of unexplained wealth derived from a potential lifetime of crime.  Similarly, if wealth did not include property disposed of, a person could funnel significant amounts of proceeds of crime through extravagant gifts or personal consumption.

Subsection 179G(2) explains what ‘total wealth’ is.  A person’s total wealth is the sum of all of the values of the person’s property that constitute a person’s wealth.  This means that the value of every item of property owned, effectively controlled, consumed or disposed of by the person at any time is added together to give the person’s total wealth.

Subsections 179G(3) and (4) state how the value of property is to be established.  For property that has been disposed of, consumed or is no longer available (179G(3)), the value of the property is the greater of the value of the property at the time it was acquired or the value of the property immediately before it was disposed of, consumed or stopped being available. 

Subsection 179G(4) relates to property that is available to be valued and is, again, the greater of the value of the property at the time it was acquired or the value of the property on the day that the application for the unexplained wealth order was made.

This is necessary to prevent a person from not fully accounting for their wealth.  For example a house purchased for $100,000.00 and sold for $150,000.00 will be valued at $150,000.00 in any unexplained wealth order.  Similarly, if a house is purchased for $100,000.00 and depreciates to $50,000.00, it will still be valued at $100,000.00 under the unexplained wealth order provisions.

179H  Effect of property vesting in an insolvency trustee

Section 179H provides that, in limited but well recognised circumstances, property that would not normally be considered a person’s property may still be treated as if it were the person’s property for the purpose of assessing the value of a person’s property.

These circumstances are if the property vests in the trustee of the estate of a bankrupt, the trustee of a composition or scheme arrangement, the trustee of a personal insolvency agreement or the trustee of a deceased person’s estate.  If such property were not included in the value of a person’s property, a person could avoid accounting for their unexplained wealth by declaring themselves bankrupt.

179J  Reducing unexplained wealth amounts to take account of forfeiture, pecuniary penalties etc.

When a court determines a person’s total wealth under 179E(2), it could include amounts that a person has previously forfeited under a forfeiture order, an interstate forfeiture order or a foreign forfeiture order.  A person’s total wealth could also include amounts payable under a pecuniary penalty order, literary proceeds order, an order under section 243B of the Customs Act 1901 , an interstate pecuniary penalty order or a foreign pecuniary penalty order.

To counteract this effect, section 179J requires a court, in determining a person’s unexplained wealth amount, to deduct an amount equal to the value of any property forfeited by the person (at the time the order was made) or an amount equal to the sum of any amounts payable by the person listed in subparagraphs 179J(b)(i)-(v).

This provision is an important safeguard to ensure that a person will not be required to forfeit the same unlawfully acquired property twice.

179K  Varying unexplained wealth orders to increase penalty amounts

Section 179K allows a court, in either of two situations, to increase the unexplained wealth amount determined under subsection 179E(2).  The DPP must make an application to the court to vary an unexplained wealth order and increase the penalty amount.  The DPP’s application may deal with more than one increase to the same unexplained wealth amount.

The first situation in which an unexplained wealth amount may be increased is if the value of property the person forfeited under 179J(a) was deducted from the unexplained wealth amount and an appeal against the forfeiture or the order is allowed.  In such a case, the amount of the increase able to be sought by the DPP is equal to the value of the property.

The second situation in which an unexplained wealth amount may be increased is if an amount the person forfeited under 179J(b) was deducted from the unexplained wealth amount and an appeal against the amount payable or the order is allowed.  In such a case, the amount of the increase able to be sought by the DPP is equal to the amount that was payable.

Section 179K is necessary because, if a court deducts an amount from a person’s unexplained wealth amount to take account of property forfeited or an amount paid, and the person successfully appeals against a forfeiture or pecuniary penalty type order, they will not pay to the Commonwealth the full extent of their unexplained wealth. 

179L  Relieving certain dependants from hardship

Section 179L enables a dependant of a person whose property is the subject of an unexplained wealth order to seek payment from the Commonwealth to compensate that person for the hardship that would be caused by the unexplained wealth order.

Such an order must specify the amount to be paid, and the court must be satisfied that the amount would relieve the hardship.  The specified amount cannot exceed the unexplained wealth amount.

Where the dependant is aged 18 or over, the court must also be satisfied that the dependant did not have any knowledge of the conduct the subject of the order. The court may make an order in respect of more than one dependant.

Division 3 - How unexplained wealth orders are obtained

179M  DPP may apply for an unexplained wealth order

Section 179M states that the Director of Public Prosecutions (DPP) may apply for an unexplained wealth order.  This is consistent with other application processes in the Act which empower the DPP to apply for restraining, forfeiture, pecuniary penalty and literary proceeds orders.  Although a number of Commonwealth agencies will investigate and be involved in unexplained wealth order actions, only the DPP may apply for an unexplained wealth order.

179N  Notice of application

Section 179N sets out the notice provisions for obtaining an unexplained wealth order. The DPP may apply for an unexplained wealth order without initially providing notice to the person to whom the unexplained wealth order would relate, if it were made. 

However, once a court is satisfied that a preliminary unexplained wealth order should be made under 179B, subsection 179N(2) requires the DPP, within 7 days of the order being made, to give written notice of the preliminary unexplained wealth order to the person, as well as provide a copy of the application for the unexplained wealth order and any affidavit supporting the application. 

The DPP must provide a copy of the affidavit supporting an application, whether the affidavit was provided with the application or prepared after the application was made.  In effect, this means that the DPP must provide the person with any updated affidavit in support of the application, not just the affidavit provided with the application.

To protect an investigation or the prosecution of a person for an offence, or if it is otherwise appropriate, the court may make an order allowing the DPP to delay giving a copy of an affidavit to the person.  The court may only make such an order if it is satisfied that providing a copy of the affidavit would prejudice the investigation of, or the prosecution of a person for, an offence or that it is for any other reason appropriate to make the order.

179P  Additional application for an unexplained wealth order

Section 179P prohibits the DPP from applying for an unexplained wealth order in particular circumstances without the leave of the court.  The prohibition prevents the DPP from seeking to make an application for an unexplained wealth order under this Division if an application has already been made and finally determined. Similarly, if an application for an unexplained wealth order has been made and finally determined under another law of the Commonwealth or a law of a non-governing Territory, the DPP cannot apply for an unexplained wealth order in relation to the person without the leave of the court.

Subsection 179P(2) only allows the court to give leave in particular circumstances - namely if the court finds that the wealth to which the new application relates was identified only after the first application was determined, necessary evidence became available only after the first application was determined, or it is in the interests of justice to grant the leave.

It is not fair to subject a person to multiple unexplained wealth order applications that relate to the same ‘wealth,’ unless there are exceptional circumstances for doing so.  If further unexplained wealth orders are made in relation to property that was already the subject of such an application, the court must be satisfied that the further application should be allowed.

179Q  Procedure on application

Section 179Q provides for matters of procedure in the hearing of an application for an unexplained wealth order.  The person who would be subject to an unexplained wealth order, were it made, may appear and adduce evidence at the hearing of an application under section 179C (application to revoke a preliminary unexplained wealth order) and 179E (making an unexplained wealth order).

The purpose of this section is to clarify, in case there is any doubt, that the person who would be subject to an unexplained wealth order, were it made, may appear and adduce evidence at the hearings under sections 179C and 179E.

Division 4 - Enforcement of unexplained wealth orders

179R  Enforcement of an unexplained wealth order

Where an unexplained wealth order is made against a person for the payment to the Commonwealth of a specified amount of money, subsection 179R(1) provides that that amount is a debt due by that person to the Commonwealth.

Subsection 179R(2) provides that the unexplained wealth order may be enforced by the Commonwealth as if it were an order made by a court to recover a debt due by that person to the Commonwealth. By operation of subsection 170R(3), that debt is taken to be a judgment debt.  Subsection 179R(4) has the effect that, if an unexplained wealth order is made against a person after they die, the order is treated as having been made the day before the person died.

179S  Property subject to a person’s effective control

Where the court has made an unexplained wealth order in relation to a person, the DPP may apply to the court for an order under subsection 179S, declaring that all or part of property within the effective control of that person be made available to satisfy the unexplained wealth order.  The court may make such an order where it is satisfied that the property is subject to the effective control of the person.

Subsection 179S(2) provides that where the court makes such an order, the order may be enforced as if the property under the effective control of the person were the property of that person.

In addition, the court may make a restraining order over that property, as if the requirements to obtain a section 20A restraining order had been met (subsection 179S(3)).

Subsection 179S(4) requires the DPP to provide notice of an application to the person in respect of whom the unexplained wealth order was made, and any other person who the DPP believes has an interest in the property. Those people may appear at the hearing of the application, and adduce evidence (subsection 179S(5)).

This provision is necessary to ensure a person does not avoid paying their unexplained wealth amount to the Commonwealth by claiming that they do not control property that would assist in satisfying the debt to the Commonwealth.  If a court is satisfied that particular property is subject to the effective control (defined in section 337 of the Act) of the person to whom an unexplained wealth order relates, subsection 179S(1) will empower a court to declare that property as being available to satisfy the unexplained wealth amount.

179T  Penalty amounts exceeding the court’s jurisdiction

Subsections 179T(1)-(3) clarify jurisdictional issues that may arise and ensure that courts have the ability to enforce orders made under Part 2-6. 

The DPP may apply for an unexplained wealth order in a State or Territory County or District Court, on the basis that the authorised officer suspected that a person’s unexplained wealth was $200,000.00, for example.  However, after conducting further investigations and/or examination hearings, it may become apparent that a person’s unexplained wealth is considerably more - $2,000,000.00, for example.  In such a situation, most State and Territory County or District Courts would not have jurisdiction with respect to recovery of debts for the larger amount.

In such a situation, subsection 179T(1) will allow the registrar of the court to issue a certificate containing certain particulars specified in the regulations.  The certificate may then by registered in a court that has jurisdiction with respect to the recovery of debts of an amount equal to the amount in the relevant order (subsection 179T(2).)  In practice, this will most likely be the Supreme Court.  Subsection 179T(3) provides that, once the certificate is registered, it is enforceable as a final judgment of the court in favour of the Commonwealth and the Commonwealth can recover the unexplained wealth amount.



Item 14 - After paragraph 202(5)(e)

Item 14 amends the definition of ‘property tracking document’ in subsection 202(5) of the Act to ensure this definition encompasses documents relevant to unexplained wealth orders.

The definition of property tracking document will be amended to include a document relevant to identifying, locating or quantifying property if it is reasonable to suspect the total value of a person’s wealth exceeds the value of wealth that was lawfully acquired.  The definition will also be amended to include a document relevant to identifying or locating any document necessary for the transfer of property to such a person.

If the definition of ‘property tracking document’ were not amended as described above, production orders used to gather information about a person’s unexplained wealth might be frustrated.

Item 15 - Paragraph 202(5)(f)

Item 15 will omit the words ‘or (e)’ from paragraph 202(5)(f) and substitute the words ‘(e), (ea) or (eb)’.  This will ensure the definition of property tracking document includes documents that would assist in the interpretation of a document referred to in the new paragraphs (ea) and (eb), in addition to documents referred to in existing paragraphs.

Law enforcement agencies will be assisted in their investigation of unexplained wealth by being able to access and inspect documents that may assist in the interpretation of other documents relevant to identifying, locating or quantifying the property of a person.

A note is inserted after subsection 202(5) amending the heading to section 282 by adding at the end of the heading the words, ‘in relation to certain restraining orders.’  This is necessary to differentiate directions by a court to the Official Trustee of those orders, and section 282A, inserted by Item 14, that permits a court to direct the Official Trustee in relation to unexplained wealth orders.

Item 16 - After section 282

282A  Direction by court to Official Trustee

Item 16 will insert section 282A.

Section 282A will permit a court, in certain circumstances, to direct the Official Trustee to pay the Commonwealth an amount up to a person’s unexplained wealth amount, out of property that is subject to a restraining order under section 20A.

This will ensure that courts have the discretion to enforce unexplained wealth orders directly from the property of a person named in the order or by requiring the person to pay an amount to the Commonwealth.

There are three circumstances in which a court may make such a direction.  The first circumstance is that the court that makes the unexplained wealth order may include such a direction if the restraining order has already been made against the person and relates to property that constitutes part of the person’s total wealth.  The second circumstance is that the court that makes the restraining order may include such a direction in the order if the unexplained wealth order has been made against the person and the restraining order is made against the person’s property under section 20A or property the person effectively controls under section 179S.  The third circumstance is that the court that made the unexplained wealth order or the restraining order, may, on application by the DPP, make the direction if the unexplained wealth order has been made and the restraining order is made against the person under section 20A or another person under section 179S. 

Item 17 - Subsections 283(1) and 284(1)

Item 17 will amend subsections 283(1) and 284(1) by adding references to new section 282A, in addition to section 282.

The powers in section 282A are substantially similar to the powers in section 282, although they are applicable to unexplained wealth orders instead of pecuniary penalty orders.  Sections 283-285 provide guidance on the application of the directions that may be made under section 282.  It is appropriate to ensure this guidance also applies to section 282A, which is intended to operate in a similar way to existing section 282.

Item 18 and 19 - Subsection 284(2) and Paragraph 284(2)(a)

Items 18 and 19 amend subsection 284(2) and paragraph 284(2)(a) by adding the words ‘or unexplained wealth amount’ after literary proceeds amount.  This amendment is consequential to the insertion of the unexplained wealth provisions.  It will allow the Official Trustee, where it is to credit an amount to the Confiscated Assets Account and the available amount of restrained property exceeds the unexplained wealth amount, to pay to the Confiscated Assets Account an amount equal to the unexplained wealth amount and to pay the balance to the person whose property was subject to the restraining order.

Items 20-22 - Subsection 285(1), Paragraphs 285(2)(a) and 285(2)(b)

Items 20, 21 and 22 amend subsection 285(1) and paragraphs 285(2)(a) and 285(2)(b) by inserting the words ‘or 282A’ after ‘282.’  This is necessary to prevent the Official Trustee from carrying out the directions of a court that are subject to appeal.  Because Item 14 inserted section 282A that allows a court to give directions to the Official Trustee in relation to unexplained wealth orders, it is necessary that section 285 also refers to section 282A.

Item 23 - At the end of section 286

Item 23 inserts subsection (3) to section 286.  Section 286 is concerned with the discharge of a person’s pecuniary, literary proceeds or unexplained wealth order to the extent that the Official Trustee credits money to the Confiscated Assets Account. 

Subsection 286(3) has the effect that, if a court makes an unexplained wealth order requiring a person to pay an unexplained wealth amount of $50,000.00 and the Official Trustee credits money to the Confiscated Assets Account out of that person’s restrained property to the value of $40,000.00, the person’s liability under the unexplained wealth order is discharged to the extent of the $40,000.00.  The person will still have to pay the remaining $10,000.00 debt to the Commonwealth.

Item 24 - After paragraph 296(3)(f)

Item 24 will insert paragraph (fa) into subsection 296(3).  This will ensure that unexplained wealth amounts paid to the Commonwealth in accordance with an unexplained wealth order must be deposited into the Confiscated Assets Account.

Money in the Confiscated Assets Account is used for a number of purposes, including funding programs approved by the Minister for the purposes of crime prevention, law enforcement, treatment of drug addiction and diversionary measures relating to illegal use of drugs.  Thus, wealth that a person has derived from illegal activities can be channelled into programs aimed at preventing crime.

Item 25 - Paragraph 322(1)(c)

Item 25 will amend paragraph 322(1)(c) to ensure that a person who has an interest in property that has been declared available to satisfy an unexplained wealth order may appeal the making of the order.  The person may be the person against who the unexplained wealth order was made (the first person), or could be a person who has an interest in property that is subject to the first person’s effective control (section 179S).

Item 26 - Subsection 322(1)

Item 26 will amend the words at the end of subsection 322(1) to ensure these words encompass the right to appeal against an unexplained wealth order or an order that property is available to satisfy an unexplained wealth order.

Item 27 - After subsection 322(4)

Item 27 inserts subsection (4A) after subsection 322(4).  Subsection 322(4A) allows a person to appeal against an unexplained wealth order or an order made under section 179S (that property subject to a person’s effective control is available to satisfy an unexplained wealth order).

The way in which a person may appeal either of those orders is as if the person had been convicted of one of the specified offences in subparagraph 20A(g)(i) (an offence against a law of the Commonwealth, a foreign indictable offence or a State offence that has a federal aspect) and the targeted order were, or were part of, the sentence imposed on the person in respect of the offence.

This ensures the manner of appeal is kept consistent with other appeal mechanisms under section 322.

Item 28 - Subsection 335(1)

Item 28 will amend subsection 335(1) to provide that ‘proceeds jurisdiction’ for an unexplained wealth order or a preliminary unexplained wealth order does not depend on the circumstances of the offence or offences to which the order would relate as it does for the other types of orders under the Act.

A court’s jurisdiction to hear and determine unexplained wealth orders and preliminary unexplained wealth orders falls within the definition of ‘proceeds jurisdiction’ but such orders do not relate directly to an offence or offences as do other orders in the Act.  It is therefore not appropriate for the references to the circumstances of an offence or offences in subsection 335(1) to apply to unexplained wealth orders and preliminary unexplained wealth orders.

Item 29 - At the end of subsection 335

Item 29 will amend section 335 by inserting subsection 335(7).  Subsection 335(7) provides that a court of a State or Territory with jurisdiction to deal with criminal matters on indictment will have jurisdiction to make unexplained wealth orders and preliminary unexplained wealth orders.

A court’s ability to hear and determine unexplained wealth orders and preliminary unexplained wealth orders has been incorporated into the definition of ‘proceeds jurisdiction’ for two reasons.  The first is consistency and readability throughout the Act because all of the other provisions in the Act that refer to a court’s jurisdiction refer to a court with proceeds jurisdiction.  Secondly, unexplained wealth orders and preliminary unexplained wealth orders are not intended to have a separate jurisdiction.  Rather, they are one of several types of confiscation orders available under Chapter 2 of the Act.

Items 30-31 - Section 336

Items 30 and 31 amend the meaning of ‘derived’ by inserting ‘wealth’ after ‘literary proceeds.’  These amendments are consequential to the inclusion of unexplained wealth provisions and are necessary to ensure their effective operation.

Item 32 - After section 336

336A  Meaning of property being lawfully acquired

Item 32 will insert section 336A.

Section 336A will provide a definition of ‘lawfully acquired’ property and wealth.  Property and wealth will only be lawfully acquired if the property or wealth was lawfully acquired and the consideration given for the property or wealth was lawfully acquired.

This definition will ensure that a court may include in the assessment of a person’s lawfully acquired wealth any lawfully acquired consideration given in exchange for property or wealth.  It will ensure a court cannot include in the assessment of a person’s lawfully acquired wealth, the value of any consideration that was not lawfully acquired or the value of property purchased wholly or partially with consideration that was not acquired lawfully.  This will ensure a person retains their lawfully acquired consideration but does not retain unlawfully acquired consideration or capital gains made on property that was not lawfully acquired.

For example, a person who purchases a house for $100,000.00 with $50,000.00 of lawfully acquired wealth and $50,000.00 of unlawfully acquired wealth, and whose house appreciates so that it is worth $200,000.00, will only be entitled to the initial lawfully acquired $50,000.00.  They will not be entitled to half of the appreciation that might be argued to be attributable to the initial lawfully acquired $50,000.00.  This is because the person would not have been able to purchase the house without the initial unlawfully acquired portion of $50,000.00 and should not gain the benefit of appreciation made possible through partially unlawfully acquired wealth.

Item 33 - Section 338 (definition of confiscation order )

Item 33 will amend the definition of ‘confiscation order’ in section 338 of the Act to include an unexplained wealth order.

The definition of confiscation order will be amended to include unexplained wealth orders to ensure proper interaction between this form of confiscation order and existing provisions providing guidance on the operation of confiscation orders.



Item 34 - Section 338

Item 34 will insert a definition of ‘lawfully acquired’ into section 338 that cross references the definition in section 338 to the definition of this term provided in section 336A.

Item 35 - Section 338

Item 35 will insert a definition of ‘preliminary unexplained wealth order’ into section 338, meaning an order under section 179B requiring the person to appear before a court.

Item 36 - Section 338 (definition of restraining order )

Item 36 will amend the definition of ‘restraining order’ in section 338 to include the unexplained wealth restraining orders under section 20A.

The definition of restraining order is being amended to include unexplained wealth restraining orders to ensure proper interaction between this restraining order and existing provisions providing guidance on the operation of restraining orders.  Provisions that depend on the existence of a restraining order for application, such as examination orders under section 180, will apply to orders under section 20A in the same manner they apply to other restraining orders.

Item 37 - Section 338

Item 37 will insert a definition into section 338 of ‘State offence that has a federal aspect’, which will have the same meaning as section 3AA of the Crimes Act 1914 .  A State offence that has a federal aspect is an offence that is not an ancillary offence and, had it been enacted by the Parliament of the Commonwealth instead of by the Parliament of a State, it would have been a valid law of the Commonwealth.

This definition is relevant to unexplained wealth orders because a person against whom the DPP seeks an unexplained wealth order has to satisfy the court that his or her total wealth was not derived from certain offences, including State offences that have a federal aspect.

After the definition of ‘State offence that has a federal aspect’ a Note is inserted to alert the reader that section 3AA of the Crimes Act 1914 sets out when a State offence has a federal aspect.

Item 38 - Section 338 (definition of suspect )

Item 38 will amend the definition of ‘suspect’ in section 338 to include a person, in relation to an unexplained wealth order, whose total wealth is suspected of exceeding the value of wealth that was lawfully acquired.

This will ensure that existing provisions that apply to a ‘suspect’ will also apply to a person suspected of possessing unexplained wealth.  By retaining and amending the term ‘suspect’ the Act will remain consistent.  It also reflects the fact that unexplained wealth orders are similar to other types of confiscation orders.

Item 39 - Section 338

Item 39 will insert a definition of ‘total wealth’ into section 338, cross referencing the definition provided in subsection 179G(2), inserted by Item 13.

Item 40 - Section 338

Item 40 will insert a definition of ‘unexplained wealth amount’ into section 338, cross referencing the definition in subsection 179E(2), inserted by Item 13.

Item 41 - Section 338

Item 41 will insert a definition of ‘unexplained wealth order’ into section 338.  An unexplained wealth order will mean an order under subsection 179E(1) that is in force.

Item 42 - Section 338

Item 42 will insert a definition of ‘wealth’ into section 338, cross referencing the definition in subsection 179G(1), inserted by Item 13.

Part 2 - Related Amendments

Bankruptcy Act 1966

Item 34 - Subsection 5(1) (at the end of the definition of pecuniary penalty order)

Item 34 will insert paragraph (c) at the end of 5(1) of the Bankruptcy Act 1966 to include explained wealth orders in the definition of ‘pecuniary penalty order’.  This will ensure that any reference to ‘pecuniary penalty order’ in the Bankruptcy Act 1966 will pick up unexplained wealth orders.

Crimes Act 1914

Item 35 - Subparagraph 3(2)(a)(ii)

Item 35 will amend subparagraph 3(2)(a)(ii) of the Crimes Act 1914 to include a reference to unexplained wealth orders.

Subparagraph 3(2)(a)(ii) states that a reference to a ‘fine’ in the Crimes Act is a reference to a pecuniary penalty, other than a pecuniary penalty imposed under several pieces of legislation, including the Proceeds of Crime Act 2002 .  Item 35 will replace the words ‘or a literary proceeds order’ with ‘, a literary proceeds order or an unexplained wealth order’.  This will clarify that a ‘fine’ in the Crimes Act is a pecuniary penalty, other than a pecuniary penalty imposed by a pecuniary penalty order, literary proceeds order or unexplained wealth order made under the Proceeds of Crime Act.



Schedule 2 - Other amendments to the Proceeds of Crime Act 2002

 

This Schedule will amend the Proceeds of Crime Act 2002 to enhance and extend the Commonwealth asset confiscation regime by:

·          introducing freezing orders to ensure assets are not dispersed (Part 1)

·          removing the six year time limitation on orders for non-conviction-based restraint and forfeiture of proceeds of crime (Part 2)

·          providing for non-conviction-based restraint and forfeiture of instruments of serious crime (Part 3)

·          enhancing information sharing under the Act (Part 4), and

·          reimbursing legal aid commission legal costs from the Confiscated Assets Account (Part 5).

 

The Act provides a scheme to trace, restrain and confiscate proceeds of crime.  With its passage in 2002, the Act introduced a civil based confiscation regime alongside the more traditional conviction based confiscation.  The ability to deprive criminals of the proceeds of their criminal activity is an essential law enforcement tool.  It deters criminal behaviour and prevents proceeds of crime from being used to fund further criminal activity.

 

In April 2006, Mr Tom Sherman AO undertook an independent review of the Act.  Report on the Independent Review of the Operation of the Proceeds of Crime Act 2002 (the Sherman Report) was tabled in Parliament on 18 October 2006.  The Report contained 18 major recommendations and 39 technical recommendations to increase the effectiveness of the Act.

 

In June 2007, the Attorney-General’s Department convened a senior level working group of Commonwealth agencies to review the Sherman Report.  In addition to examining the recommendations, the working group identified additional proposals to improve the operation of the Act based on their experience and research since the time of the Sherman Report.

 

A number of the amendments in Schedule 2 respond to recommendations made in the Sherman Report, including the amendments removing the six year time limit on non-conviction-based asset recovery, providing for the restraint and forfeiture of instruments of serious offences without conviction and enhancing information sharing under the Act.  Other amendments were identified by the senior level working group convened by the Attorney-General’s Department.

 

Recommendations of the Sherman Report that are not dealt with in this Bill are being considered for possible amendments in future legislation. 

 

Freezing orders

 

Part 1 of Schedule 2 will introduce freezing orders into the Act to limit the risk of criminal funds being dissipated.  Freezing orders are an interim asset restraint measure and will be strictly limited in their application and duration. 

 

Law enforcement agencies have identified that the time between identifying criminal funds in an account and obtaining a restraining order can result in criminal funds being moved.  Even where restraining orders are obtained ex parte , significant documentation and a court hearing are required, which can provide more than enough time for funds in an account to be transferred.  South Australia and Victoria have provisions for interim freezing of suspected criminal proceeds held in bank accounts. 

Freezing orders will enable the temporary restraint of liquid assets held in accounts with financial institutions.  The application process for freezing orders will be simpler than for restraining orders and an expedited application process will be available in circumstances where the time taken to obtain a formal restraining order increases the risk that suspected proceeds or instruments of crime will be transferred to frustrate confiscation proceedings.

The amendments contain a number of safeguards.  Before making a freezing order, a magistrate must be satisfied there are reasonable grounds to suspect that the balance of an account is wholly or partly proceeds, or an instrument, of an offence and that there is a risk the balance of the account will be reduced.  A freezing order will only continue in force for three working days.  The person affected by the order can apply to a magistrate to have the order varied to meet the reasonable living expenses of the person or their dependants, the reasonable business expenses of the person or a specified debt incurred in good faith by the person.  Offences will apply to support the integrity of the freezing order regime.  Protection from liability is provided for institutions and individuals acting in good faith to comply with a freezing order.

 

Removal of time limitations for non-conviction based asset confiscation

 

Part 2 of Schedule 2 will amend the Act to remove the restriction on non-conviction-based orders that currently limits their application to offences occurring in the six years prior to the application for an order.  The six year limitation on non-conviction-based asset confiscation was identified as an issue that needed to be addressed in the Sherman Report. Currently under the Act, non-conviction-based asset recovery (with the exception of literary proceeds orders) may only confiscate the proceeds or instruments of crimes committed in the six years prior to recovery action commencing.

 

This limitation precludes confiscation if relevant offences are not detected until more than six years after the offence was committed.  It may also interfere with confiscation when extended criminal conduct is considered to be one offence stretching over more than six years. As criminals routinely attempt to conceal offences, and crimes such as fraud and money laundering may occur over extended periods, the time limit can pose significant obstacles for non-conviction-based recovery.

 

The removal of the six year time limitation for non-conviction-based asset recovery will ensure that criminals are not able to benefit from their crimes, regardless of when they occurred.

 

The Sherman Report recommended extending the time limitation to twelve years, however, the report also stated that any limit would pose difficulties.  In view of these difficulties, it is considered appropriate to remove the time limit altogether.

 

Non-conviction-based confiscation of instruments of serious offences

 

Part 3 of Schedule 2 will amend the Act to enable the restraint and forfeiture of instruments of serious offences without conviction.

 

The non-conviction-based confiscation scheme is important to the overall success of the Act.  Since its introduction in 2003, it has proven to be an effective mechanism to remove the proceeds of unlawful activity, preventing criminals profiting from their crimes and reinvesting in further criminal activity.

 

The amendments will enable the restraint and forfeiture of instruments of serious offences without conviction, similar to the way proceeds of crime can be confiscated without conviction.  This amendment responds to a recommendation of the Sherman Report.  It also brings Commonwealth legislation into line with legislation in South Australia, Western Australia and Victoria that permits non-conviction-based confiscation of property used (or intended to be used) in, or in connection with, an offence.

 

Currently, the Act permits the proceeds of a wide variety of offences to be confiscated on a civil standard of proof but instruments of indictable offences (other than terrorism offences) may only be confiscated where a person is convicted of the offence. 

 

The Sherman Report recommended that instruments of indictable offences should be subject to non-conviction-based restraining orders and forfeiture orders under the Act.  However, as a safeguard the amendments have been limited to the confiscation of serious offences only (defined in the Act to be offences carrying a penalty of 3 or more years imprisonment).

 

As a further safeguard the proposed amendments will permit a court discretion to make or amend a civil forfeiture order to take into account potential hardship to any person, the use ordinarily made of the property and the gravity of the offences concerned.  This is consistent with the discretion afforded a court when considering an order to forfeit instruments of indictable offences following conviction. 

 

Information sharing

 

Part 4 of Schedule 2 will amend the Act to clarify the use and sharing of information gathered under the Act. 

 

The Act contains a range of information-gathering powers, including coercive examination, document production, and search and seizure mechanisms.  The Act contains no specified limit on the use and sharing of information obtained under the Act.  However, judicial decisions have created doubt regarding the extent to which information can be shared.

 

In DPP (Cth) v Hatfield [2006] NSWSC 195, the NSW Supreme Court ruled that information obtained in an examination under Part 3-1 of the Act could only be used for the purpose of proceedings under the Act, and could not be used or disclosed for any other purpose.  Whether the decision in Hatfield would apply to material obtained using the other information-gathering powers contained in the Act is unclear.

 

The Sherman Report discussed this limit on the use of information and raised concerns it could prevent agencies sharing information vital to the prevention and investigation of serious criminal incidents.  The Sherman Report highlighted that the decision in Hatfield would, for example, prevent sharing information of a planned murder or terrorist attack.  The limit expressed in Hatfield may also require agencies to internally ‘quarantine’ information to avoid the argument that examination material had tainted other investigations.

 

The Sherman Report recommended a clear mandate in the Act that information relating to any serious offence can be passed to any agency having a lawful function to investigate that offence and to the Insolvency and Trustee Service Australia (ITSA) and Australian Tax Office to assist in their functions under the Act.

 

The amendments ensure that information obtained under the regime can be disclosed when that information will assist in the prevention, investigation or prosecution of criminal conduct.

 

Legal Aid payments

 

Part 5 of Schedule 2 will amend the Act to simplify arrangements for legal aid commissions to recover costs incurred by people who have assets restrained under the Act.  The simplified process will see legal aid costs paid directly from the Confiscated Assets Account, instead of from restrained assets.

 

The existing scheme, which requires legal aid commissions to recover legal costs directly from a person’s restrained assets, has proven complex and, at times, subject to delay.  The New South Wales Legal Aid Commission has advised that it has encountered a range of problems with having its costs reimbursed under the existing scheme. 

 

Under the new scheme, legal aid commissions will be able to invoice the Official Trustee for legal costs incurred by a person with restrained assets.  The Official Trustee will then pay the costs from the Confiscated Assets Account and the Commonwealth will then recover the amount from the person who received the legal aid, up to the value of the restrained assets.

 

This amendment responds to the Sherman Report recommendation that all claims for legal expenses which have been certified as fair, reasonable and duly expended by legal aid commissions on proceedings relating to property that has been restrained under the Act, should be paid directly out of the Confiscated Assets Account.

The Commonwealth Legal Aid Priorities and Guidelines award a high priority to legal aid in cases where a person has assets restrained under the Act and direct legal aid commissions to disregard merits tests in certain circumstances and to disregard assets that are subject to a restraining order for the purposes of means tests. 

When the Act was enacted, a commitment was made by the then Government to ensure legal aid commissions did not suffer detriment by taking on matters that may not usually pass the means and merits test.  These amendments will address the problems with existing procedures and ensure that commitment by the then Government to legal aid commissions is met.

Part 1 - Freezing orders

 

Item 1 - Section 7

 

This item inserts a consequential amendment to section 7 of the Act, which provides a general outline of the confiscation scheme, to omit reference to ‘5’ and substitute ‘a number of’. Section 7 currently states that Chapter 2 sets out five processes relating to confiscation.  The inclusion of unexplained wealth orders and freezing orders increases the number of processes relating to confiscation to more than five.



Item 2 - Before paragraph 7(a)

This item inserts a consequential amendment to section 7 of the Act to include a new subsection 7(aa) which includes freezing orders in the outline of the confiscation scheme, contained in Chapter 2 of the Act.

Item 2 - Before Part 2-1

This item inserts Part 2-1A in the Proceeds of Crime Act.

Part 2-1A - Freezing orders

 

Part 1 of Schedule 2 will insert new Part 2-1A into the Proceeds of Crime Act.  Part 2-1A will introduce freezing orders into the Act to limit the risk of criminal funds being dissipated.    Freezing orders are an interim asset restraint measure and will be strictly limited in their application and duration. 

 

Law enforcement agencies have identified that the time between identifying criminal funds in an account and obtaining a restraining order can result in criminal funds being moved.  Even where restraining orders are obtained ex parte , significant documentation and a court hearing are required, which can provide more than enough time for funds in an account to be transferred.  South Australia and Victoria have provisions for interim freezing of suspected criminal proceeds held in bank accounts. 

‘Freezing orders’ will enable the temporary restraint of liquid assets held in accounts with financial institutions.  The application process for freezing orders will be simpler than for restraining orders and an expedited application process will be available in circumstances where the time taken to obtain a formal restraining order increases the risk that suspected proceeds or instruments of crime will be transferred to frustrate confiscation proceedings.

The amendments contain a number of safeguards.  Before making a freezing order, a Magistrate must be satisfied there are reasonable grounds to suspect that the balance of an account is wholly or partly proceeds, or an instrument of an offence, and that there is a risk the balance of the account will be reduced.  A freezing order will only continue in force for three working days.  The person affected by the order can apply to a magistrate to have the order varied to meet the reasonable living expenses of the person or their dependants, the reasonable business expenses of the person or a specified debt incurred in good faith by the person.  Offences will apply to support the integrity of the freezing order regime.  Protection from liability is provided for institutions and individuals acting in good faith to comply with a freezing order.

Division 1 - Making freezing orders

15A Simplified outline of this Part

Section 15A provides a simplified outline of Part 2-1A and specifies when a freezing order can be made against a financial institution.  A freezing order can be obtained where there are grounds to suspect the account balance reflects proceeds or an instrument of a serious offence and when a magistrate is satisfied that, unless a freezing order is made, there is a risk that the balance will be reduced.



15B Making freezing orders

Section 15B sets out the circumstances in which a freezing order can be made. 

A freezing order can be made when an authorised officer applies for an order and a magistrate is satisfied there are reasonable grounds to suspect that the balance of an account is wholly or partly proceeds, or an instrument of an offence.  The magistrate must also be satisfied there is a risk the balance of the account will be reduced and that this reduction would frustrate confiscation proceedings.

The requirement that a magistrate be satisfied there is a risk of the funds being reduced, ensures freezing orders will only be made in situations where it is necessary to ensure funds are not moved or dissipated.

Division 2 - How freezing orders are obtained

15C Affidavit supporting application made in person

Section 15C sets out the information that must be contained in an affidavit, supporting an application for a freezing order, where that application is made in person. 

An affidavit must include sufficient information to identify the account(s) to be frozen and identify the financial institution with which the account is held.  The affidavit must set out the grounds to suspect that the balance of the account is, wholly or partly, proceeds or an instrument of a serious offence. 

The affidavit must also set out the grounds on which a person could be satisfied there is a risk that the balance of the account will be reduced, so that a person is not deprived of proceeds or an instrument of an offence, if a freezing order is not made.

15D Applying for freezing orders by telephone or other electronic means

Section 15D outlines the circumstances in which an authorised officer may apply for a freezing order by telephone, fax or other electronic means.

An authorised officer may apply for a freezing order by electronic means in an urgent case or, if the time involved in making an application in person would frustrate the effectiveness of the freezing order.  For example, a freezing order may be granted where the authorising officer is concerned that the person who owns the assets targeted, is aware of an investigation.  An electronic application must include all the information required in an application for an order made in person.

This item provides that where an application is made by telephone or other electronic means, a magistrate may require communication by voice to the extent practical and may require any other further information.  This additional safeguard ensures that a magistrate can satisfy themselves of the need for the order to be made by telephone or electronic means, at the time the application is made.

15E Making order by telephone etc

Section 15E outlines the circumstances in which a magistrate may make a freezing order by telephone or other electronic means, and details the procedures that must be followed when a magistrate does so.

A magistrate will be permitted to make the same form of freezing order available under proposed section 15B by telephone or other electronic means if they are satisfied an order should be issued urgently and the time taken to apply in person would frustrate the order.

If a magistrate makes an order by telephone or other electronic means, the magistrate must inform the applicant of the terms of the order and the day and time when the order was made.

The applicant must complete a form of freezing order in terms corresponding to those given by the magistrate and include on the form the name of the magistrate who made the order and the day and time when the order was made.  The applicant must then give the magistrate the completed form of freezing order, and lodge a written copy of any affidavit supporting the application not previously lodged, within the relevant timeframes. 

A freezing order will be taken never to have had effect if the applicant does not provide an affidavit supporting the application (if one was not provided before the application was made) to the magistrate by the end of the second day after the order was made.

15F Unsigned freezing orders in court proceedings

Section 15F provides that, if it is material in any proceedings that a court be satisfied that a freezing order applied for under section 15D was duly made, and the signed freezing order is not produced, the court must assume the order was not duly made (unless the contrary is proved).

15G Offence for making false statements in applications

This item inserts an offence to support the integrity of the freezing order regime.  A person will commit an offence if they make a statement that is false or misleading, or omit any information without which the statement is misleading, if the statement is made in, or in connection with, an application for a freezing order.  Further offences relating to freezing orders are set out in section 15H.

This offence is necessary to deter people from making false statements, or providing inaccurate information in an application, or in connection with an application for a freezing order. An offence under this section is punishable by 2 years imprisonment and/or a fine of 120 penalty units.

15H Offences relating to orders made under section 15E

Section 15H inserts four offences relating to freezing orders made under section 15E by telephone, fax or other electronic means.  These offences match existing offences in the Proceeds of Crime Act 2002 designed to support the operation of search warrants.

A person will commit an offence if they state the name of a magistrate in a form of freezing order and the name is not the name of the magistrate who made the order.

A person will commit an offence if they state a matter in a freezing order made under 15E and the matter departs in a material way from the order made by the magistrate.

A person will also commit an offence if they serve a freezing order that has not been approved by a magistrate or that departs materially from the terms authorised by the magistrate.

A person will commit an offence if, after serving a freezing order on a financial institution, they give the magistrate a form of freezing order that is not in the same form as the document provided to the financial institution. 

These offences provide safeguards to ensure that penalties are attached to a breach of the conditions in relation to the application for, and service of, freezing orders. It is necessary to ensure that when an application for a freezing order is made by telephone, fax or other electronic means, all necessary processes are adhered to.

Offences under this section are punishable by 2 years imprisonment, and/or a fine of 120 penalty units.

Division 3- Giving effect to orders

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

Section 15J outlines the service requirements applicable to freezing orders.  If a magistrate makes a freezing order, the applicant must give a copy of the order to the financial institution, and to each person whose account(s) will be affected by the order.

A copy of a freezing order must be given to a financial institution before the end of the first working day after the order was made.  A freezing order will not come into force if this condition is not satisfied.  This requirement ensures that financial institutions are made aware of the existence of a freezing order as soon as practicable after the order is made.

15K Freezing order does not prevent withdrawal to enable financial institution to meet its liabilities

Section 15K provides that the existence of a freezing order does not prevent a financial institution from processing withdrawals on the account to meet a liability imposed by or under a written law of the Commonwealth, a State or a Territory.

This will ensure that transactions mandated by law are not affected by freezing orders.  These transactions could include, but are not limited to, payments mandated by family law or other court orders.  The section is not intended to permit a financial institution to process withdrawals for the purpose of meeting the expenses of a person affected by the order.

15L Offence for contravening freezing orders

This item inserts an offence to support the enforcement of freezing orders.  A financial institution will commit an offence if it allows a withdrawal from an account, which is subject to a freezing order, where the withdrawal contravenes the terms of the order.

This item is necessary to ensure that financial institutions comply with the terms of a freezing order.

This offence is punishable by 5 years imprisonment, or a fine of 300 penalty units.

15M Protection from suits etc for those complying with orders

This item provides protection from legal proceedings for a financial institution, or an agent or officer of a financial institution, for any action taken in complying with the order or in the mistaken belief that action was required under a freezing order.

This will ensure that institutions and individuals acting in good faith to comply with a freezing order are not exposed to liability for those actions.



Division 4 - Duration of freezing orders

15N When a freezing order is in force

Section 15N outlines the circumstances in which a freezing order is in force.

For a freezing order to have effect, a copy of the order must be given to the financial institution before the end of the first working day after the order was made.  If a copy is not provided to a financial institution within this timeframe, the freezing order does not come into effect.

A freezing order will remain in force for the period specified in the order unless a court makes a decision on a restraining order covering the account before the end of that period.  A freezing order is limited to a maximum duration of three working days.  A freezing order can be extended if, before the end of the three day period, an application for a restraining order to cover the amount has been made and an order is made under section 15P extending the freezing order. 

15P Order extending a freezing order

Section 15P outlines the circumstances in which a magistrate may make an order extending a freezing order beyond the time specified in the original order.

A magistrate may make an order extending a freezing order if an application for a restraining order, relating to the accounts specified in the freezing order, has been made but not yet determined by a court.  The extension may be for a specified number of working days, or the period ending when the court decides the application for the restraining order.

The extension of a freezing order will not have effect unless a copy of the order for the extension is given to the financial institution before the time the original freezing order would have ceased.

Allowing for the extension of a freezing order in these limited circumstances recognises the intended operation of a freezing order as an interim measure, specifically designed to address risks that proceeds of crime will be dissipated before a restraining order can be obtained.

15Q Magistrate may vary freezing order to allow for withdrawal to meet reasonable expenses

Section 15Q allows a magistrate to vary a freezing order, on application by a person in whose name the account is held, if the magistrate is satisfied certain criteria have been met.

A freezing order may be varied to meet the reasonable living expenses of the person or their dependants, the reasonable business expenses of the person or a specified debt incurred in good faith by the person.

A freezing order may only be varied by a magistrate if: the person in whose name the account is held applies for a variation; the applicant has notified the DPP of the application and the grounds for making it; the magistrate is satisfied that the expense or debt is not related to legal costs and the magistrate is satisfied the person cannot meet the expense or debt out of property that is not covered by a freezing or restraining order.

A variation will not take effect until written notice of the variation is provided to the financial institution.

Allowing for a freezing order to be varied recognises that in certain situations it will be necessary to allow for withdrawals from a frozen account. For example, it would be inequitable that employees of a business which had its accounts frozen would not be paid if a regular pay day fell within the period the account was frozen. Similarly, it may be necessary to allow a withdrawal to ensure that a person can provide food and other necessities for his or her family.

Item 4 - Paragraph 337A(1)(a)

This item inserts a reference to a ‘freezing order’ into section 337A(1)(a) of the Act, which deals with the meaning of the term foreign indictable offence .

This is a consequential amendment which arises because new section 15C refers to a foreign indictable offence.

Item 5 - Paragraph 337A(2)(a)

This item insert a reference to a ‘freezing order’ into section 337A(2)(a) of the Act, which deals with the meaning of the term foreign indictable offence .

This is a consequential amendment which arises because new section 15C refers to a foreign indictable offence.

Item 6 - Section 338

This item inserts a definition of freezing order into section 338 of the Proceeds of Crime Act 2002 .

This is a consequential amendment that arises out of the introduction of Part 2-1A into the Proceeds of Crime Act 2002 .

Item 7 - Section 338

This item inserts a definition of ‘working day’ into section 338 of the Proceeds of Crime Act 2002

This provides certainty as to the aspects of the operation of a freezing order that rely on working days. A working day does not include a Saturday or Sunday or a public or bank holiday in the place concerned.

Item 8 - Application

This item sets out the application of new Part 2-1A of the Proceeds of Crime Act 2002 .  Part 2-1A will apply to an account if there are reasonable grounds to suspect the balance of the account is proceeds of an offence or wholly or partly an instrument of an a serious offence, regardless of whether the conduct constituting the offence occurs before, on or after the commencement of Part 2-1A.

Item 9 - Subsection 21E(4) (paragraph (a) of the definition of confiscation proceedings ) in the Crimes Act 1914

This item is a consequential amendment to Subsection 21E(4) of the Crimes Act 1914 to include a reference to freezing orders in the definition of confiscation proceedings under this section.



Item 10 - Subsection 4(1) (before paragraph (a) of the definition of proceeds of crime order ) in the Family Law Act 1975

This item is a consequential amendment to Subsection 4(1) of the Family Law Act 1975 . Subsection 4(1) contains a definition of proceeds of crime order that currently includes restraining and forfeiture orders. It is necessary to include a reference to new freezing orders to ensure that the existence of a freezing order can be made known to a Court when necessary in family law proceedings.

Part  2 - Removal of six year time limit on non-conviction-based confiscation

 

Part 2 of Schedule 2 will amend the Proceeds of Crime Act to remove the restriction on non-conviction-based orders that currently limits their application to offences occurring in the six years prior to the application for an order.  The six year limitation on non-conviction-based asset confiscation was identified as an issue that needed to be addressed in the Sherman Report. Currently under the Act, non-conviction-based asset recovery (with the exception of literary proceeds orders) may only confiscate the proceeds or instruments of crimes committed in the six years prior to recovery action commencing.

 

This limitation precludes confiscation if relevant offences are not detected until more than six years after the offence was committed.  It may also interfere with confiscation when extended criminal conduct is considered to be one offence stretching over more than six years. As criminals routinely attempt to conceal offences, and crimes such as fraud and money laundering may occur over extended periods, the time limit can pose significant obstacles for non-conviction-based recovery.

 

The removal of the six year time limitation for non-conviction based asset recovery will ensure that criminals are not able to benefit from their crimes, regardless of when they occurred.  It also ensures that those who are able to successfully hide their criminal conduct for a sufficiently long period of time are not rewarded by being able retain the proceeds.

 

The Sherman Report recommended extending the time limitation to twelve years, however, the report also stated that any limit would pose difficulties. In view of these difficulties, it is considered appropriate to remove the time limit altogether.

The Proceeds of Crime Act contains other references to six-year time limits that will be retained because they do not constrain the commencement of confiscation proceedings but are relevant, for example, to calculating penalty amounts or providing certainty to family law orders.

Item 11 - Paragraph 18(1)(d)

This item repeals paragraph 18(1)(d) which requires that the offence was committed within the six years preceding the application, and inserts a paragraph which removes this time limit for a restraining order made under section 18.

The effect of amended 18(1)(d) will be to ensure that restraining orders under section 18 are available to restrain property of a person reasonably suspected of committing a serious offence, or property of a person who is suspected of possessing proceeds or instruments of a serious offence, regardless of when that offence occurred.



Item 12 - Paragraph 18(3)(a)

This item repeals paragraph 18(3)(a) which requires that an affidavit of an authorised officer state the officer’s suspicion that the offence was committed within six years preceding the application, and inserts a new paragraph which removes this time limit.

The effect of amended paragraph 18(3)(a) will be to permit an authorised officer to complete an affidavit supporting an application for a restraining order under section 18 with reference to all offences relevant to the restraining order, regardless of when the offence occurred.

Item 13 - At the end of subparagraph 19(1)(d)(ii)

The item inserts the word ‘and’ at the end of subparagraph 19(1)(d)(ii).  

This is a consequential amendment that ensures proper interaction between subparagraph 19(1)(d)(ii) (as it is amended by item 212), and paragraph 19(1)(e).

Item 14 - Paragraph 19(1)(d)

This item omits the sentence at the end of paragraph 19(1)(d) that limits the operation of restraining orders under section 19 to offences suspected to have been committed within the six years preceding an application for an order under section 19.

The effect of amended paragraph 19(1)(d) will ensure that restraining orders under section 19 can be obtained where there are reasonable grounds to suspect property is the proceeds or an instrument of a relevant offence, regardless of when that offence occurred.

Item 15 - Application of amendments of sections 18 and 19

This item provides guidance on the application of the amendments to sections 18 and 19 that remove the six-year time limit.

The amendments to sections 18 and 19 of the Act will apply to any applications for a restraining order that are made on or after the commencement of the amendments, regardless of whether the conduct constituting an offence relevant to the order occurred before or after commencement of these sections. 

Item 16 - Paragraph 47(1)(c)

This item repeals paragraph 47(1)(c) and replaces it with a paragraph that does not require a court to be satisfied the conduct, or suspected conduct that formed the basis of the order, occurred in the six years preceding an application for a forfeiture order under section 47.

The effect of the amended paragraph 47(1)(c) will be to ensure that forfeiture orders are available under section 47 regardless of when the suspected offence occurred, if a court is satisfied an order should be made.

Item 17 - Paragraph 49(1)(d)

This item repeals paragraph 49(1)(d)  which limits forfeiture orders under section 49 to offences, that are not terrorism offences, which occurred in the six years preceding application for an order under section 49.

Repealing this paragraph ensures that forfeiture orders under section 49 are available regardless of when a relevant offence occurred, if a court considers an order should be made.

Item 18 - Application of amendments of sections 47 and 49

This item provides guidance on the application of the amendments to section 47 and 49 which remove the six-year time limit.

The amendments to sections 47 and 49 will apply to any applications for a forfeiture order that are made on or after the commencement of the amendments, regardless of whether the conduct constituting an offence relevant to the order occurred before or after commencement of these sections.

Item 19 - Subsection 84(1)

Item 19 will omit ‘(1)’ from section 84 of the Proceeds of Crime Act 2002

This is a consequential amendment that arises because Item 20 repeals subsection 84(2), leaving only one provision under section 84 and removing the need to divide section 84 into subsections.

Item 20 - Subsection 84(2)

This item repeals subsection 84(2) which directs a court to treat any conduct that is relevant to making an order under section 84, confirming a forfeiture order, as having occurred within the period of six years referred to in paragraph 47(1)(c).

This is a consequential amendment that arises because Item 16 removes the reference to the period of six years in paragraph 47(1)(c).

Item 21 - Subsection 85(1)

This item omits ‘84(1)(a)’ from subsection 85(1) and substitutes ‘84(a)’. 

This is a consequential amendment that arises because Item 19 removes ‘(1)’ from section 84.

Item 22 - Subsection 85(2)

This item omits ‘84(1)(b)’ from subsection 85(2) and substitutes ‘84(b)’.

This is a consequential amendment that arises because item Item 19 removes ‘(1)’ from section 84

Item 23 - Subsection 110(1)

This item omits ‘(1)’ in section 110. 

This is a consequential amendment that arises because Item 24 repeals subsection 110(2), leaving only one provision in section 110 and removing the need to divide section 84 into subsections.

Item 24 - Subsection 110(2)

This item repeals subsection 110(2).  Subsection 110(2) directs a court to treat any conduct that is relevant to making an order under section 110, confirming a forfeiture order, as having occurred within the period of six years referred to in paragraph 47(1)(c).

This is a consequential amendment that arises because Item 16 removes the reference to the period of six years in paragraph 47(1)(c).

Item 25 - Subsection 111(1)

This item omits ‘110(1)(a)’ from subsection 111(1) and substitutes ‘110(a)’. 

This is a consequential amendment that arises because Item 24 repeals subsection 110(2), leaving only one provision in section 110 and removing the need to divide section 84 into subsections.

Item 26 - Subsection 111(2)

This item omits ‘110(1)(b)’ from subsection 111(2) and substitutes ‘110(b)’.

This a consequential amendment that arises because Item 24 repeals subsection 110(2), leaving only one provision in section 110 and removing the need to divide section 84 into subsections.

Item 27 - Subparagraph 116(1)(b)(ii)

This item omits the words ‘subject to subsection (2)’ from subparagraph 116(1)(b)(ii). 

This is a consequential amendment that arises because Item 28 repeals subsection 116(2).

Item 28 - Subsection 116(2)

This item repeals subsection 116(2).  The effect of subsection 116(2) is to limit a court’s ability to consider offences, when making a pecuniary penalty order, to considering offences that occurred within the six years preceding application for a pecuniary penalty order.

This is a consequential amendment that ensures that pecuniary penalty orders are available in relation to offences regardless of when the offence occurred, if a court considers an order should be made.

Item 29 - Application of amendments of section 116

This item provides guidance on the application of the amendments of section 116. 

These amendments will apply to applications for a pecuniary penalty order that are made on or after commencement, regardless of whether the conduct constituting an offence relevant to the order occurred before or after the commencement of these sections.

Item 30 - Section 149

This item repeals section 149, and replaces it with new section 149. This is a consequential amendment that arises because Item 28 repeals subsection 116(2).  Existing section 149 limits a court’s ability to confirm a pecuniary penalty order relating to non-terrorism offences, to offences occurring within the six-year time period referred to in subsection 116(2). 

New section 149 will permit a court to make an order confirming a pecuniary penalty order without reference to offences within a six-year time period, if a court considers a confirmation order should be made.



Item 31 - Application of new section 149

This item provides guidance on the application of the amendments of section 149.

The amendments to section 149 will apply to pecuniary penalty orders applied for on or after the commencement of proposed section 149, whether the conduct constituting an offence relevant to the order occurred before, on or after the commencement of new section 149.

Item 32 - Subparagraphs 202(5)(a)(ii) and (iii)

This item repeals subparagraph 202(5)(a)(ii) which refers to terrorism offences, and also repeals subparagraph 202(5)(s)(iii) which refers to a serious offence committed within 6 years.  The item substitutes a new, single subparagraph 202(5)(a)(ii).

The distinction between terrorism offences, and serious offences that occurred within the last six years, is no longer relevant because of the application of Parts 2 and 3 which remove the six year limitation for serious offences other than terrorism offences and allow for the confiscation of instruments of serious offences.

Item 33 - Subparagraphs 202(5)(c)(ii) and (iii)

This item repeals subparagraph 202(5)(c)(ii) which contains reference to a terrorism offence and, also repeals 202(5)(c)(iii) which refers to a serious offence committed within 6 years. The item substitutes a new, single, subparagraph 202(5)(c)(ii).

The distinction between terrorism offences, and other serious offences limited to those that occurred within the last six years, is no longer relevant because of the application of Parts 2 and 3 which remove the six year limitation for serious offences other than terrorism offences and allow for the confiscation of instruments of serious offences.

The new subparagraph 202(5)(c)(ii) will define ‘property tracking document’ to include a document relevant to identifying, locating or quantifying proceeds of a serious offence, or an instrument of any other serious offence, that a person is reasonably suspected of having committed.

Item 34 - Subsection 202(6)

This item omits the words ‘or (iii)’ from subsection 202(6), which is a reference to subparagraph 202(5)(c)(iii). 

This is a consequential amendment that arises because Item 33 repeals subparagraph 202(5)(c)(iii).

Item 35 - Application of amendments to section 202

This item provides guidance on the application of the amendments of section 202 of the Proceeds of Crime Act 2002 .

These amendments will apply to production orders applied for on or after the commencement of the amendments, whether the conduct constituting an offence relevant to the production order occurred before, on or after commencement.



Item 36 - Section 338 (paragraph (g) of the definition of serious offence )

Item 36 will insert the words ‘or former section 5, 7, 7A or 86 of the Crimes Act 1914 ’, after the words ‘ Criminal Code ’ in paragraph (g) of the definition of  ‘serious offence’ in section 338.

This is a consequential amendment arising out of the removal of the six-year time limits that constrain the commencement of confiscation action.  Former sections 5, 6, 7, 7A and 86 of the Crimes Act 1914 provided extensions of criminal responsibility equivalent to sections 11.1, 11.2, 11.4 and 11.5 of the Criminal Code , which are included in the definition of ‘serious offence’.  The removal of the 6 year time limit, makes it possible to commence confiscation action in relation to the former sections of the Crimes Act.  It is therefore appropriate to include these sections in the definition of ‘serious offence’.

Part 3 - Non-conviction-based confiscation of instruments of serious offences

 

Part 3 of Schedule 2 will amend the Proceeds of Crime Act to enable the restraint and forfeiture of instruments of serious offences without conviction.

 

The non-conviction-based confiscation scheme is important to the overall success of the Act.  Since its introduction in 2003, it has proven to be an effective mechanism to remove the proceeds of unlawful activity, preventing criminals profiting from their crimes and reinvesting in further criminal activity.

 

The amendments will enable the restraint and forfeiture of instruments of serious offences without conviction, similar to the way proceeds of crime can be confiscated without conviction.  This amendment responds to a recommendation of the Sherman Report.  It also brings Commonwealth legislation into line with legislation in South Australia, Western Australia and Victoria that permits non-conviction-based confiscation of property used (or intended to be used) in, or in connection with, an offence.

Currently, the Act permits the proceeds of a wide variety of offences to be confiscated but instruments of indictable offences (other than terrorism offences) may only be confiscated where a person is convicted of the offence.  O nly the instruments of terrorism offences can be confiscated under non-conviction-based confiscation provisions. 

Part 3 amends various provisions relevant to non-conviction-based confiscation action, to ensure instruments of serious offences can be confiscated.  It replaces the references to instruments of terrorism offences in provisions that provide for non-conviction-based confiscation with references to instruments of serious offences.

A serious offence is defined under the Act as an indictable offence punishable by at least 3 years imprisonment and involving certain other elements such as unlawful conduct relating to narcotic substances or serious drug offences, money laundering and certain people smuggling offences.

The effect of these changes will mean that the DPP could apply to a court with proceeds jurisdiction to confiscate the premises of a person used as a laboratory to make narcotics, because the premises would be treated as an instrument of a serious offence.

These changes will ensure that the assets persons use in the commission of serious crimes can be confiscated.

 

The Sherman Report recommended that instruments of indictable offences should be subject to non-conviction-based restraining orders and forfeiture orders under the Act. However, as a safeguard the amendments have been limited to the confiscation of serious offences only (defined in the Act to be offences carrying a penalty of 3 or more years imprisonment).

 

As a further safeguard the proposed amendments will permit a court discretion to make or amend a civil forfeiture order to take into account potential hardship to any person, the use ordinarily made of the property and the gravity of the offences concerned.  This is consistent with the discretion afforded a court when considering an order to forfeit instruments of indictable offences following conviction. 

Items 37 - 41 - Subparagraphs 18(2)(d)(ii), 18(3)(b)(iii), 19(1)(d)(ii), 19(1)(e)(ii) and paragraph 19(2)(b)

Items 37 - 41 will omit the references to ‘terrorism’ offences from subparagraphs 18(2)(d)(ii), 18(3)(b)(iii), 19(1)(d)(ii), 19(1)(e)(ii) and paragraph 19(2)(b) and substitute references to ‘serious’ offences.

Item 42 - Application of amendments to sections 18 and 19

Item 42 provides guidance on the application of amendments to sections 18 and 19 of the Act to permit confiscation of instruments of serious offences.

The amendments will apply to applications for a restraining order that are made on or after the commencement of these amendments, regardless of whether the conduct constituting an offence relevant to the restraining order occurred before, on or after commencement.

Items 43 - 47 - Subparagraphs 29(2)(c)(ii), 29(2)(d)(ii) and paragraph 45(6)(ca)

Items 43 - 47 will omit the references to ‘terrorism’ offences from subparagraphs 29(2)(c)(ii) and 29(2)(d)(ii) and paragraph 45(6)(ca)  and substitute references to ‘serious’ offences.

Item 48 - Application of amendments of sections 29 and 45

Item 48 provides guidance on the application of amendments to sections 29 and 45 to permit confiscation of the instruments of serious offences.

These amendments apply to restraining orders made as a result of an application made on or after commencement of the amendments to sections 29 and 45, regardless of whether the conduct constituting an offence relevant to an order occurred before, on or after commencement.

Item 49 - At the end of section 47

Item 49 inserts a subsection (4) to section 47.

Subsection 47(4) will permit a court to refuse to make a forfeiture order under section 47 in relation to property that is an instrument of a serious offence that is not a terrorism offence, if the court is satisfied it is not in the public interest to make the order.

This will retain the mandatory confiscation of instruments of terrorism offences while providing courts with discretion not to make orders relating to other serious offences, if the order is not in the public interest.

Item 50 - Application of new subsection 47(4)

Item 50 provides guidance on the application of subsection 47(4).

Subsection 47(4) applies to orders that are made on or after the commencement of subsection 47(4), regardless of whether the conduct constituting an offence relevant to an order under section 47 occurred before, on or after commencement of subsection 47(4).

Item 51 - Subparagraph 49(1)(c)(iv)

Item 51 omits the reference to ‘terrorism’ offences from subparagraph 49(1)(c)(iv) and substitutes a reference to ‘serious’ offences.

Item 52 - Application of amendment of subparagraph 49(1)(c)(iv)

Item 52 provides guidance on the application of the amendment to section 49 of the Act.

The amendment to section 49 applies to applications for a forfeiture order that are made on or after the commencement of the amendment to section 49, regardless of whether the conduct constituting an offence relevant to an order under section 49 occurred before, on or after commencement of that amendment.

Item 53 - At the end of section 49

Item 53 inserts a subsection (4) to section 49.

Subsection 49(4) will permit a court to refuse to make a forfeiture order under section 49 in relation to property that is an instrument of a serious offence, that is not a terrorism offence, if the court is satisfied it is not in the public interest to make the order.

This will retain the mandatory confiscation of instruments of terrorism offences while providing courts with discretion not to make orders relating to other serious offences, if the order is not in the public interest.

Item 54 - Application of new subsection 49(4)

Item 54 provides guidance on the application of the amendment to section 49 of the Act.

Subsection 49(4) applies to orders that are made on or after the commencement of subsection 49(4), regardless of whether the conduct constituting an offence relevant to an order under section 49 occurred before, on or after commencement of subsection 49(4).

Items 55 - 59 - Subparagraphs 73(1)(c)(ii), 73(1)(d)(iii), 85(2)(a)(ii), 85(2)(b)(ii)

Items 55 - 59 omit the references to ‘terrorism’ offences from subparagraphs 73(1)(c)(ii), 73(1)(d)(iii), 85(2)(a)(ii) and 85(2)(b)(ii) and substitute references to ‘serious’ offences.

Item 60 - Application of amendments of sections 73 ad 85

Item 60 provides guidance on the application of amendments to sections 73 and 85.

The amendments will apply to forfeiture orders applied for on or after the commencement of the amendments, regardless of whether the conduct constituting an offence relevant to an order occurred before, on or after commencement.

Item 61 - 62 - Subparagraphs 111(2)(a)(ii) and 111(2)(b)(ii)

Items 61 - 62 omit the references to ‘terrorism’ offences from subparagraphs 111(2)(a)(ii) and 111(2)(b)(ii)  and substitute references to ‘serious’ offences.

Item 63 - Application of amendments of section 111

Item 63 provides guidance on the application of the amendments to section 111 of the Act.

These amendments will apply in relation to the quashing, on or after the commencement of the amendments, of a conviction of an offence, whether the conviction occurred before, on or after commencement.

Part 4 - Disclosure of information

 

Part 4 of Schedule 2 will amend the Proceeds of Crime Act to clarify the use and sharing of information gathered under the Act. 

 

The Act contains a range of information-gathering powers, including coercive examination, document production, and search and seizure mechanisms. The Act contains no specified limit on the use and sharing of information obtained under the Act. However, judicial decisions have created doubt regarding the extent to which information can be shared.

 

In DPP (Cth) v Hatfield [2006] NSWSC 195, the NSW Supreme Court ruled that information obtained in an examination under Part 3-1 of the Act could only be used for the purpose of proceedings under the Act, and could not be used or disclosed for any other purpose.  Whether the decision in Hatfield would apply to material obtained using the other information-gathering powers contained in the Act is unclear.

 

The Sherman Report discussed this limit on the use of information and raised concerns it could prevent agencies sharing information vital to the prevention and investigation of serious criminal incidents. The Sherman Report highlighted that the decision in Hatfield would, for example, prevent sharing information of a planned murder or terrorist attack. The limit expressed in Hatfield may also require agencies to internally ‘quarantine’ information to avoid the argument that examination material had tainted other investigations.

 

The Sherman Report recommended a clear mandate in the Act that information relating to any serious offence can be passed to any agency having a lawful function to investigate that offence and to the Insolvency and Trustee Service Australia (ITSA) and Australian Taxation Office (ATO) to assist in their functions under the Act.

 

The amendments ensure that information obtained under the regime can be disclosed when that information will assist in the prevention, investigation or prosecution of criminal conduct.

It was never the intention of the Act that information obtained in an examination could only be used for the purposes of confiscation proceedings under the Act and could not be shared for any other reason.  It is desirable that, if during the course of an examination hearing, information about planned serious criminal activity is uncovered, such information is able to be passed on to relevant law enforcement agencies.

Item 64 - Section 8

Item 64 amends section 8 by including the existing information in section 8 in a new subsection 8(1).  This is necessary because Item 65 will insert subsection 8(2).

Item 65 - At the end of section 8

Item 65 inserts subsection 8(2) after subsection 8(1).  Subsection 8(2) indicates that Chapter 3, which sets out ways to obtain information, also authorises certain authorities to disclose information obtained under Chapter 3 for certain purposes.

Item 66 - At the end of subsection 223(4)

Item 66 inserts paragraph (e), (f) and (g) after subsection 223(4).  Section 223 contains offences for disclosing the existence or operation of a monitoring order.  Subsection 223(4) contains a list of persons to whom the existence or the operation of a monitoring order may be disclosed (for certain purposes).

Paragraphs 223(4)(e)-(f) add three further persons to who such information may be disclosed.  They reflect the people with whom information may be shared under Item 67 .  These people are a person who is or forms part of an authority with functions under the Act, a person who is or forms part of an authority of the Commonwealth, or of a State, Territory or foreign country and a person in the Australian Taxation Office.

Item 67 - At the end of Chapter 3

Item 67 inserts Part 3-6 at the end of Chapter 3 of the Act.

Part 3-6 consists of section 266A, which allows authorities to disclose certain information obtained under certain circumstances to the authorities and for the purposes described in the table in section 266A. 

Subsection 266A(1) sets out the types of information that can be disclosed under section 266A.  Information obtained as a direct result of paragraph 39(1)(d), Parts 3-1, 3-2, 3-3, 3-4, or 3-5, Division 2 of Part 4-1 or as a result of a disclosure, or a series of disclosures, under section 266A may be disclosed.

Part 3-2 of the Act relates to production orders.  The AFP may obtain a person’s bank statements under a production order that reveal significant amounts of income.  If the AFP had reasonable grounds to suspect that the person had not declared all of their income in their Income Tax Returns, it is highly desirable that the AFP be able to pass the information obtained under the production order to the Australian Taxation Office for the purpose of protecting public revenue.

Similarly, if the AFP executed a search warrant under part 3-5 of the Act and discovered evidence of State offences, the AFP should be able to pass this information to their State Police counterparts for investigation.

The information outlined above may be disclosed to an authority with one or more functions under the Act, whether those functions involve investigation, conducting confiscation action, dealing with property or any other function under the Act.  Information may only be disclosed to such an authority when the person disclosing the information believes, on reasonable grounds, that the disclosure would facilitate the authority’s performance of its functions under the Act.

Information may also be disclosed to an authority of the Commonwealth, a State, Territory or foreign country that has a function investigating or prosecuting crimes against a law of the Commonwealth, State, Territory or foreign country.  Information may only be disclosed when the person disclosing the information believes, on reasonable grounds, that the disclosure would assist in the prevention, investigation or prosecution of a crime against the law of the relevant jurisdiction. 

To avoid doubt, this section does not alter existing procedures applicable to disclosure of information to foreign countries but provides a mandate to provide information obtained under the Act in accordance with those procedures.

Information may be disclosed to the Australian Taxation Office if the person disclosing the information believes, on reasonable grounds, that the disclosure would assist the Australian Taxation Office discharge its function of protecting public revenue.

Section 266A also provides that any applicable existing immunity in relation to the information continues to apply to any information disclosed in accordance with this section.  For example, a document, or information from the document that is produced or made available by a person, is not admissible in evidence in criminal proceedings against the person, except in proceedings under, or arising out of, section 137.1 or 137.2 of the Criminal Code (false or misleading information or documents) in relation to producing the document or making it available.

Part 5 - Legal aid costs

 

Part 5 of Schedule 2 will amend the Proceeds of Crime Act to simplify arrangements for legal aid commissions to recover costs incurred by people who have assets restrained under the Act.  The simplified process will see legal aid costs paid directly from the Confiscated Assets Account, instead of from restrained assets.

 

The existing scheme, which requires legal aid commissions to recover legal costs directly from a person’s restrained assets, has proven complex and at times, subject to delay.  The New South Wales Legal Aid Commission has advised that it has encountered a range of problems with having its costs reimbursed under the existing scheme. 

 

Under the new scheme, legal aid commissions will be able to invoice the Official Trustee for legal costs incurred by a person with restrained assets.  The Official Trustee will then pay the costs from the Confiscated Assets Account and the Commonwealth will then recover the amount from the person who received the legal aid, up to the value of the restrained assets.

 

This amendment responds to the Sherman Report recommendation that all claims for legal expenses which have been certified as fair, reasonable and duly expended by legal aid commissions on proceedings relating to property that has been restrained under the Act, should be paid directly out of the Consolidated Assets Account.

The Commonwealth Legal Aid Priorities and Guidelines award a high priority to legal aid in cases where a person has assets restrained under the Act and direct legal aid commissions to disregard merits tests in certain circumstances and to disregard assets that are subject to a restraining order for the purposes of means tests. 

When the Proceeds of Crime Act 2002 was enacted, a commitment was made by the then Government to ensure legal aid commissions did not suffer detriment by taking on matters that may not usually pass the means and merits test.  These amendments will address the problems with existing procedures and ensure that commitment by the then Government to legal aid commissions is met.

Item 68 - Section 292

Item 68 repeals section 292.  Section 292 obliged the Official Trustee to pay legal aid commissions’ costs from assets covered by a restraining order.  Under the new arrangements legal aid commissions’ costs will be paid from the Confiscated Assets Account.

Item 69 - Subsections 293(1),(2) and (3)

Item 69 repeals subsections 293(1), 293(2) and 293(3) and substitutes new subsections 293(1), 293(2) and 293(3).

Existing subsections 293(1) and 293(2) provided guidance on the procedure for paying legal aid costs when those costs exceeded the value of assets subject to a restraining order or when it took a considerable time to dispose of the assets.  This procedure will not be needed under the new arrangements.

The new arrangements for paying a legal aid commission’s costs apply where a legal aid commission incurs costs representing someone whose assets are or were subject to a restraining order at the time of representation and where the person was also a suspect (defined under section 338 of the Act) at the time of representation. 

The legal aid commission must give a bill for the costs to the Official Trustee and the Official Trustee must be satisfied the bill is true and correct for payment.  Once these conditions are satisfied, the Official Trustee must pay the legal costs to the legal aid commission out of the Confiscated Assets Account, subject to subsection 293(2A).

Subsection 293(2A) provides that, if the Official Trustee is satisfied that the balance of the Confiscated Assets Account is insufficient to pay the legal costs, and there is a restraining order in place, the Official Trustee must, to the extent possible, pay the legal costs out of the property covered by the order.

If the Official Trustee does pay an amount to a legal aid commission under section 293 and property of the person is covered by a restraining order, the person must pay to the Commonwealth an amount equal to the lesser of the amount paid to the legal aid commission or the value of the person’s property covered by the restraining order (subsection 293(3)).

This means that, if a legal aid commission incurs costs of $5,000.00 in representing a person whose property was covered by a restraining order and only $2,000.00 of the person’s property is covered by the restraining order, the person need only pay $2,000.00 to the Commonwealth, not the full $5,000.00.

Item 70 - Division 1 of Part 4-4

Item 70 repeals Division 1 of Part 4-4 of the Act.  This Division is no longer necessary because the system of charges to secure amounts payable to legal aid commissions is not needed under the new costs payment scheme.



Item 71 - Application of amendments of Chapter 4

Item 71 states that the changes in relation to costs made by Part 5 of the Bill apply to costs that were incurred by legal aid commissions before, on or after the commencement of the amendments and, if they were incurred before commencement, had not been paid to the commission before that commencement.

Part 6 - Technical amendments

Items 72 - 102

Items 72 - 102 make technical amendments to various offence provisions in the Act to ensure these provisions reflect current drafting practice.  Specifically, items 72 - 102 replace the references to ‘Maximum penalty’ in all offence provisions to ‘Penalty’.  These amendments do not make any substantive changes to the offence provisions concerned.

Item 103

Item 103 amends subsection 274(1) by omitting ‘(1) A person’ and replacing it with ‘A person.’  This is a technical amendment.  It is not necessary to number the section as ‘(1)’ because there is only one subsection in section 274. 

Items 104 - 105

Items 104 - 105 make technical amendments to subsections 274(1) and section 275 to ensure these provisions reflect current drafting practice.  Specifically, these items replace the references to ‘Maximum penalty’ with ‘Penalty’.  These amendments do not make any substantive changes to the offence provisions.

 

 

 



Schedule 3 - Amendments relating to controlled operations, assumed identities and witness identity protection

GENERAL OUTLINE

The purpose of this Schedule is to replace the existing controlled operations, assumed identities and witness identity protection regimes in the Crimes Act 1914 with new regimes based on national model legislation.  The laws were developed following the 2002 Leaders Summit on Multi-jurisdictional Crime by the Joint Working Group of the Standing Committee of Attorneys-General (SCAG) and the then Australasian Police Ministers Council.  The Joint Working Group Report, Cross-border Investigative Powers for Law Enforcement , was released in November 2003, and the model laws endorsed for implementation by SCAG in 2004.

The intent of the model legislation is to harmonise, as closely as possible, the controlled operations, assumed identities and protection of witness identity regimes across Australia and enable authorisations issued under a regime in one jurisdiction to be recognised in other jurisdictions.

The model laws are intended to enhance the ability of law enforcement agencies to investigate and prosecute multi-jurisdictional criminal activity.  This type of crime is becoming increasingly common due to  advances in information and communication technology, and the increasing sophistication of organised criminal groups, particularly those involved in terrorism or trans-national crime, including drug trafficking .  State and Territory adoption of the model laws will:

·       allow an authority for a cross-border controlled operation issued in one jurisdiction to be recognised in other participating jurisdictions, which will permit the movement of State or Territory controlled operatives across the State or Territory border without the need to make a separate application for a controlled operation in the second jurisdiction

·       enable a person authorised to acquire and use an assumed identity in one jurisdiction to lawfully acquire evidence of that assumed identity in another jurisdiction, and

·       enable a witness identity protection certificate that is issued in one jurisdiction to be recognised in proceedings held in another jurisdiction, which will protect the identity of operatives as they move across State or Territory borders without the need to seek separate certificates.



Controlled operations

A controlled operation is a law enforcement operation in which a person is authorised to engage in unlawful conduct in order to obtain evidence of a serious criminal offence.

The purpose of controlled operations is described on page 1 of the Joint Working Group’s February 2003 Discussion Paper on Cross-border investigative powers for law enforcement as follows: 

In a controlled operation, instead of seeking to terminate immediately a criminal scheme, law enforcement officers allow the scheme to unfold under controlled conditions.  During the process of allowing the scheme to unfold … [an authorised person] … may themselves need to commit offences.

Controlled operations are a valuable tool for investigating organised criminal activity because they enable law enforcement officers to infiltrate criminal organisations and to target those in the higher echelons of those organisations.

The new controlled operation regime, which this Schedule will insert as new Part IAB of the Act, will recognise corresponding State and Territory controlled operation laws and provide protection against liability for Commonwealth offences for participants in operations that have been validly authorised under those laws, without requiring a separate Commonwealth authority to be sought for the controlled operation.

As set out above, protection from liability for State and Territory offences will be provided to State and Territory participants in cross-border controlled operations as part of the mutual recognition provisions contained in State and Territory laws implementing the model legislation.  However, as these provisions cannot provide protection from liability under Commonwealth law, it is important that Commonwealth laws be enacted to ensure State and Territory operatives engaged in lawful controlled operations are protected against criminal liability for Commonwealth offences.

Differences to the model laws

The new controlled operations regime introduced by this Schedule will differ from the model laws by:

·       allowing foreign law enforcement officers, under the control and supervision of an Australian law enforcement agency, to participate in controlled operations.  This recognises the unique role of Commonwealth agencies in the investigation of crimes with a foreign aspect

·       providing a stronger oversight regime, including a requirement for the Ombudsman to report on its own monitoring of controlled operations, in addition to reporting on the controlled operations activities of law enforcement agencies

·       requiring external approval for extensions of operations beyond three months and providing that the maximum duration for a controlled operation is 24 months

·       requiring close consultation with Customs in relation to any illicit goods that may be dealt with by that agency, and

·       other minor differences to provide additional accountability and take into account the Commonwealth’s unique role in national and international law enforcement.

Differences to the existing regime

The new regime will differ from the existing regime in Part IAB of the Act by:

·       providing protection from criminal and civil liability to informants who participate in a controlled operation in circumstances where a law enforcement officer could not perform the function to be performed by the informant

·       providing for recognition of State and Territory controlled operation laws

·       extending the timeframes for controlled operations (though to a more limited degree than under the model laws) to reflect the need for operational flexibility

·       streamlining reporting requirements

·       increasing the Ombudsman’s inspection powers, and

·       prescribing offences for the unauthorised disclosure of information, including aggravated offences where the disclosure endangers the safety of others.

Retrospective protection

The need for reforms to the controlled operations regime was highlighted by the recent High Court decision in Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43.

Following the decision in Gedeon , there is real risk that there is insufficient protection for evidence obtained from, and participants in, operations authorised under a State or Territory controlled operations law that may involve the commission of a Commonwealth offence.  The new regime introduced by this Schedule will recognise controlled operations authorities issued under corresponding State and Territory laws.  This will remove the need to seek separate Commonwealth approval of State and Territory controlled operations that may involve the commission of a Commonwealth offence.  The new regime will also provide retrospective protection for evidence obtained from, and participants in, past and existing controlled operations authorised under a State or Territory law that may have involved the commission of a Commonwealth offence.

Assumed identities 

 

An assumed identity is a false identity that is used for the purpose of investigating, or gathering intelligence on, criminal activity, or conducting other intelligence or security activities.

The importance of assumed identities is described on page 85 of the Joint Working Group Discussion Paper as follows: 

Assumed identities provide vital protection for undercover operatives engaged in infiltrating organised crime groups or collecting information relevant to national security.  Officers need to be able to substantiate an assumed identity with proper identification documents [such as birth certificates, drivers’ licence or passport] ...   In the absence of a verifiable identity the safety of undercover operatives can be jeopardised.

 

The new assumed identities regime, which this Schedule will insert as new Part IAC of the Crimes Act, will recognise corresponding State and Territory assumed identities laws and enable a person authorised to acquire and use an assumed identity in one jurisdiction to lawfully acquire evidence of that assumed identity in another jurisdiction.  Those laws will also ensure that officers who are authorised under a corresponding State or Territory law to use an assumed identity will be protected from criminal liability under Commonwealth law when using that identity.

 

The model laws contain mutual recognition provisions to enable a person authorised to acquire and use an assumed identity in one jurisdiction to lawfully acquire evidence of that assumed identity in another jurisdiction.  Those laws will also ensure that officers who are authorised under a corresponding State or Territory law to use an assumed identity will be protected from criminal liability under Commonwealth law when using that identity.

 

Schedule 3 will expand the operation of the model assumed identity laws by extending the legislative scheme beyond law enforcement officers to include intelligence officers and other authorised people (such as foreign law enforcement officers).  This recognises the unique role of Commonwealth agencies in national security and intelligence operations, as well as in the investigation of crimes with a foreign aspect.  

 

Schedule 3 will also specifically allow officers of the AFP to obtain assumed identities for the purpose of performing their roles under the NWPP.  This is crucial to the operation of the NWPP, as AFP officers are required to assume an alternate identity to protect a witness under the NWPP without bringing attention to the fact that the person is being protected by police.

 

The new assumed identity provisions will also differ from the model laws by allowing the control of an authority to be transferred between agencies.  This is necessary because there may be occasions where, for operational or other reasons, control of an authority for an assumed identity will need to be transferred from one agency to another agency.

Witness identity protection

Undercover operatives may need to give evidence in criminal and civil proceedings.  In some cases, it will be necessary to protect the true identity of the operative to ensure their safety (or the safety of his or her family).  In other cases, it may be necessary to conceal the operative’s real identity to avoid prejudicing current or future investigations or activity relating to security (for example the prevention of espionage or politically motivated violence).

The Joint Working Group Report makes it clear that the model witness identity protection provisions - which allow evidence to be given under a pseudonym - do not result in the operative becoming ‘anonymous’ or ‘secret’:

A witness who appears in person to give evidence, who can be cross-examined, whose demeanour can be assessed by the court but whose true name and address are withheld is significantly different from a truly anonymous witness who does not appear and who the defendant cannot place. [page 245]

This is an important distinction to make, as the protection of the witness (or the integrity of an investigation or security activity) must be balanced with an accused person’s right to a fair trial in which the credibility of the witness can be properly tested. 

In most cases, the credibility of the witness will not depend on the disclosure of his or her real name and address.  However, there may exceptional situations in which the credibility of the witness cannot be tested without disclosing their real identity.  Accordingly, the court will be able to allow, for example, defence counsel to ask questions which may reveal the witness’ true identity in specific circumstances and where it is in the interests of justice to do so.

This Schedule replaces section 15XT of the Act - which provides a broad discretion for a court, tribunal or royal commission to protect the real identity of a witness who is or was using an assumed identity - with a more comprehensive witness identity protection regime based on the model laws. 

The new witness identity protection regime, which this Schedule will insert as new Part IACA of the Act, will recognise corresponding State and Territory witness identity protection laws and enable certificates issues in one jurisdiction to be recognised in proceedings held in another jurisdiction.  Those laws will ensure that undercover operatives - who often have to work across jurisdictions - will be protected by a certificate issued by their home agency that is recognised in proceedings which may be held in another jurisdiction. 



The new regime for witness identity protection will:

·          govern the procedures and requirements for giving a witness identification certificate, and the form for that certificate

·          allow the court to make orders protecting the witness’ identity and for the disclosure of the witness’ true identity

·          introduce offences for unauthorised disclosures of the witness’ identity

·          provide for annual reporting requirements on agencies that give certificates, and

·          facilitate the mutual recognitions of certificates given under corresponding State and Territory laws.

One of the key differences between the old and new regimes is that the protections will extend to operatives who are participants in a controlled operation authorised under Part IAB of the Act.  This recognises the need to protect operatives who are involved in covert investigations who may not use an assumed identity.

While the new regime for witness identity protection is substantially based on the model laws, some modifications have been made.  This includes extending the witness identity protection provisions to security and intelligence officers and other authorised people (such as foreign law enforcement officers) granted an assumed identity.  This reflects the expansion of the assumed identity regime (also introduced by this Schedule) to include persons other than domestic law enforcement officers. 

The witness identity protection provisions will only apply to operatives and will not affect the protections available to other types of witnesses. 

Part 1 - Main amendments

Crimes Act 1914

Items 1 to 9 - Subsection 3(1)

This item will repeal definitions from the Crimes Act that apply to the current controlled operations regime and are not required for other purposes in the Crimes Act.

Item 10 - Parts IAB and IAC

This item will repeal the current Parts IAB and IAC of the Crimes Act, which contain the current controlled operations and assumed identities regimes.  In substitution, it will insert new Parts IAB, IAC and IACA, which set out the revised controlled operations, assumed identities and witness identity protection regimes.

Part IAB - Controlled operations

Division 1—Preliminary

15G Objects of Part

This section will set out the main objects of the new controlled operations regime, which are:

·       to establish a comprehensive regulatory scheme for authorising, conducting and monitoring Commonwealth controlled operations

·       to exempt law enforcement and civilian participants in controlled operations from criminal liability, and to indemnify them from civil liability, for conduct engaged in as part of an authorised controlled operation, and

·       to ensure protection for participants in, and evidence obtained from, operations authorised under a State or Territory law that may have involved the commission of a Commonwealth offence.

15GA Relationship to other laws and matters

Courts have a general discretion to exclude evidence that was obtained through unlawful conduct.  A crucial feature of controlled operations is that they often involve conduct that would otherwise amount to the commission of an offence.  Section 15GA will prevent evidence obtained as a result of criminal activity undertaken as part of a controlled operation from being automatically excluded in court proceedings.  This provision is necessary to ensure that evidence obtained from a properly authorised controlled operation can be used in prosecutions without being subject to challenge on the ground that it was obtained through the commission of an offence.

Subsection 15GA(1) will preserve the general judicial discretion to admit or exclude evidence or stay proceedings, except to the extent that these discretions are expressly restricted as part of the new controlled operations regime.

Subsection 15GA(2) will clarify that a court should not apply its discretion to exclude evidence obtained during a controlled operation solely because it was obtained through the commission of an unlawful act, provided that the unlawful act was undertaken within the scope of the controlled operation authority.

Paragraph 15GA(2)(a) will protect evidence obtained through controlled operations validly authorised under this new Part IAB of the Crimes Act.  Paragraph 15GA(2)(b) reflects the mutual recognition elements of the model legislation and protects evidence obtained through controlled operations validly authorised under ‘a corresponding State controlled operations law’.

‘A corresponding State controlled operations law’ will be defined at section 15GC as a law of a State or Territory that is prescribed in regulations made under the Crimes Act.  The prescribed laws will be State and Territory laws that are based on, or are substantially similar to, the model legislation.

This recognition of State and Territory controlled operations laws is necessary to ensure that, following the High Court Decision in Gedeon , State and Territory law enforcement agencies are not required to seek simultaneous Commonwealth authority for controlled operations authorised under the State or Territory laws.  This would be administratively complex and burdensome and defeat the purpose of the legislation, which is to allow separate regimes for State and Territory controlled operations.

Retrospective protection will also be provided for evidence obtained from controlled operations authorised under State or Territory controlled operations law before the commencement of the new regime (see Part 2 of this Schedule).



15GB Concurrent operation of State and Territory laws

Section 15GB will provide that this new Part IAB of the Crimes Act is not to apply to the exclusion of a law of a State or Territory to the extent that the State or Territory law is capable of operating concurrently with this Part.  This is important to enable cross-recognition of State and Territory controlled operations laws and ensure that States and Territories are able to independently conduct their own controlled operations. 

15GC Definitions

Section 15GC will define terms associated with the new controlled operations regime.  The key definitions will be:

appropriate authorising officer - A number of agencies can be involved in controlled operations under this Part of the Crimes Act.  However, only certain agencies - the Australian Federal Police (AFP), the Australian Crime Commission (ACC) and the Australian Commission for Law Enforcement Integrity (ACLEI) - can grant the authority that allows a controlled operation to commence. 

‘Authorising officer’ will be defined at section 15GF.  An authorising officer will be responsible for granting or refusing an authority to conduct a controlled operation, where the investigation of the offence to which the controlled operation relates comes within the functions of that authorising officer’s agency (i.e. the AFP, the ACC or ACLEI).

An ‘appropriate authorising officer’ will be an authorising officer from the same agency as the authorising officer.  An appropriate authorising officer will be able to authorise a variation of the conditions of a controlled operation or extend its duration up to three months if the controlled operation was originally authorised by an officer of the same agency.  For example, if the controlled operation relates to the functions of the ACC and was originally authorised by an ACC authorising officer, an authorising officer from the ACC would be an appropriate authorising officer for the controlled operation, while an officer from ACLEI would not.  This will ensure that the agency that initially authorised the controlled operation maintains responsibility and accountability for the operation.

authorising agency for an authorised controlled operation will be the agency whose authorising officer (defined at new section 15GF) granted the authority for the controlled operation (defined at new section 15GI).  For example, if an AFP authorising officer granted the authority, the AFP would be the authorising agency. 

Only the AFP, the ACC and ACLEI will be authorising agencies under the new controlled operation regime.

authority will mean an authority granted under new section 15GI.  The authority will be the document or communication issued by an authorising officer (defined at new section 15GF) that authorises the controlled operation and any conduct that, in the absence of the authority, would be unlawful.

chief officer will mean the head of a ‘law enforcement agency’ (as defined in this section 15GC).   The chief officers will be as follows:

·       in relation to the AFP, the Commissioner

·       in relation to the police force of a State or Territory, the Commissioner of Police in that police force or the person holding equivalent rank

·       in relation to Customs, the Chief Executive Officer of Customs

·       in relation to the ACC, the Chief Executive Officer of the ACC, and

·       in relation to the ACLEI, the Integrity Commissioner.

A chief officer of an ‘authorising agency’ (as defined in this section 15GC, only the AFP, the ACC and ACLEI are authorising agencies) will have the following responsibilities under the new controlled operations regime:

·       authorising controlled operations (along with other authorising officers) (section 15GI)

·       ensuring that record keeping requirements are met (section 15HP)

·       submitting a six-monthly report on controlled operations to the Commonwealth Ombudsman and the Minister (section 15HM)

·       submitting an annual report on controlled operations to the Minister (section 15HN), and

·       notifying a person who suffers loss of or serious damage to property, or personal injury, that the loss, damage or injury was caused in the course of or as a direct result of a controlled operation (section 15HG).

civilian participan t will be a person, other than a law enforcement officer, who has been authorised to participate in the controlled operation by an authorising officer under new section 15GI or15GO.  This will include informants, and people who have specialised expertise or hold particular positions, such as people who are responsible for critical infrastructure (such as airports).  Paragraphs 15GI(2)(h) and 15GQ(2)(h) will provide that civilians may only be authorised to participate in a controlled operation where the authorising officer (defined at section 15GF) is satisfied on reasonable grounds that a law enforcement officer could not adequately perform the role that the civilian will perform.

The current controlled operation regime allows civilians, including informants, to participate in controlled operations.  However, it does not provide protection from criminal and civil liability for authorised conduct engaged in by informants as part of a controlled operation.  This has hampered the ability of law enforcement agencies to use informants to perform controlled conduct, which has presented a significant obstacle to law enforcement agencies in successfully conducting controlled operations.  As organised criminal groups have developed sophisticated counter intelligence capability to protect their criminal activity, and are increasingly aware of law enforcement methods and technical capability, the use of informants has become critical to the successful investigation of some criminal groups, particularly those involved in terrorism and transnational crime. 

As organised criminal groups may only trust established members of their group, infiltration by undercover officers may only be possible with the ongoing assistance of an informant.  In these cases, the members of the criminal organisations may trust an informant to carry out certain acts, such as sourcing a warehouse for storing illicit goods, in circumstances where they would not trust an undercover operative.  It is also often necessary for informers to participate in criminal conduct in order to maintain the trust of, and their position in, the criminal group.  These acts could be as simple as moving a suitcase containing drugs from the boot of a car to a premises.   Informants who might be willing to assist law enforcement agencies if they were protected from liability for certain approved conduct are unlikely to provide that assistance if they cannot receive any protection from criminal liability. 

Allowing informants to assist law enforcement officers in a controlled operation enables ongoing monitoring of the activities of the target criminal groups and is more likely to result in law enforcement obtaining key information and evidence from the controlled operation.  This legislation will not provide immunity for past criminal offences that informants may have committed.  Informants will only receive protection from liability for conduct that they have been authorised to undertake as part of a controlled operation.

For operational efficiency, the decision about whether to include informants and other civilians in a controlled operation will rest with the law enforcement agency. 

New section 15GK will provide that an authority to conduct a controlled operation must detail the particular ‘controlled conduct’ (if any) that a civilian may undertake, but is only required to state the ‘nature’ of the controlled conduct in which a law enforcement officer may engage.  This will ensure that the behaviour of civilian participants is tightly controlled, while allowing some latitude to law enforcement officers to address operational contingencies as they arise.

Whereas law enforcement officers can be authorised to engage in ‘controlled conduct’ (defined at section 15GC) of a specified ‘nature’, the particular controlled conduct in which a civilian may engage as part of the controlled operation will be required to be specified in the authority to conduct a controlled operation (as set out at new section 15GK).  This will ensure that the behaviour of civilian participants is tightly controlled.

Info rmants and civilians will have the same obligations as law enforcement participants and will be under the supervision of law enforcement officers.  The new provisions allowing the participation of informants will bring the Commonwealth into line with the model legislation.

controlled conduct will mean conduct constituting an offence for which a person would, but for new section 15HA, be criminally responsible .  During a controlled operation, a participant may need to engage in unlawful conduct.  For example, in a controlled operation investigating a drug trafficking syndicate, a participant may purchase illegal drugs to gather required evidence.  Only criminal conduct that the participant has been authorised to participate in will be covered by ‘controlled conduct’.

corresponding State controlled operations law will mean a law of, or provisions of a law of, a State or Territory prescribed in regulations made under the Crimes Act.  These laws will be State and Territory laws that are based on, or are substantially similar to, the model legislation.

law enforcement agency will mean the AFP, the ACC, Customs, ACLEI or the police force of a State or Territory.  Officers of each of these agencies will be able apply to an authorising agency (as defined in this section 15GC) to conduct a controlled operation.  This definition will be differ from the definition of ‘law enforcement officer’ in section 3 of the Crimes Act as it does not include foreign police or foreign law enforcement agencies.  This has been done intentionally as, while foreign officers may assist and participate in controlled operations, it would not be appropriate to allow them to independently apply for an authorisation to conduct a Commonwealth controlled operation (see also the definition of Australian law enforcement officer in current section 3 of the Crimes Act).

While officers of each ‘law enforcement agency’ will be able to apply for a controlled operation, only the AFP, the ACC and ACLEI will be able to authorise a controlled operation.  Accordingly, one of these three agencies will ultimately be responsible for each controlled operation authorised under this regime.

law enforcement participant in an authorised controlled operation will be a participant authorised by an authorising officer (as defined in this section 15GC) under section 15GI or 15GO, who is a law enforcement officer.  Law enforcement officers are differentiated from civilian participants, as it is appropriate, in some respects, to impose different requirements on the two groups.  For example, new section 15GK will provide that an authority to conduct a controlled operation must detail the particular ‘controlled conduct’ (if any) that a civilian may undertake, but is only required to state the ‘nature’ of the controlled conduct in which a law enforcement officer may engage.  This will ensure that the behaviour of civilian participants is tightly controlled, while allowing more latitude to law enforcement officers to provide greater operational flexibility.

nominated Tribunal member will mean an Administrative Appeals Tribunal (AAT) member who is nominated by the Minister under new section 15GG to deal with applications under new section 15GU to extend the period of effect of a controlled operation authority beyond three months.

participant will be any person who is authorised, under new section 15GI or 15GO, to engage in ‘controlled conduct’ for the purposes of a controlled operation .  This will include both law enforcement and civilian participants (including informants).

principal law enforcement officer will be the law enforcement officer who is responsible for the conduct of the controlled operation.  New section 15GK provides that an authority to conduct a controlled operation must nominate the law enforcement officer responsible for the controlled operation. 

15GD Meaning of controlled operation and major controlled operation

Subsection 15GD(1) will define controlled operation as an operation authorised under this Part of the Crimes Act which involves law enforcement officers, and may involve other people, to obtain evidence that may lead to the prosecution of a person for a ‘serious Commonwealth offence’ (defined at new section 15GE) or a ‘serious State offence that has a federal aspect’ (defined at new subsection 15GE(4)).  To obtain the required evidence, participants in a controlled operation may need to engage in conduct that may constitute a criminal offence, or for which they may be civilly liable.  To protect participants, Division 3 of this Part of the Crimes Act will provide that participants are not criminally responsible, and are indemnified against civil liability, for conduct that they have been authorised to undertake as part of a controlled operation.

Subsection 15GD(2) will define major controlled operation as a controlled operation that is likely to involve infiltration of an organised crime group by a law enforcement officer for a period of more than seven days, or continue for more than three months, or be directed against suspected activity which includes a threat to human life.  The term ‘organised crime group’ will not be separately defined - it is intended to cover any group of people engaged in criminal activity in a structured way.  

The purpose of this definition will be to distinguish between major controlled operations and other controlled operations, as authorities for major controlled operations can only be authorised by the Commissioner or Deputy Commissioner of the AFP.  Other AFP controlled operations will be able to be authorised by an ‘appropriate authorising officer’, as defined at new sections 15GC and 15GF.

The distinction between major controlled operations and other controlled operations will only apply to the AFP.  Because the AFP authorises the majority of controlled operations, this will ensure that only the most senior officers in the AFP authorise long operations, or operations directed against activity involving threat to life. 

15GE Meaning of serious Commonwealth offence and serious State offence that has a federal aspect

New section 15GD will provide that a controlled operation may only be carried out to obtain evidence that may lead to the prosecution of a person for a ‘serious Commonwealth offence’ or a ‘serious State offence that has a federal aspect’.  Section 15GE will define these terms.

The definition of serious Commonwealth offence will reflect the definition in existing section 15HA of the Crimes Act, including offences listed in Regulation 4A of the Crimes Regulations 1900 .  It will be defined as a Commonwealth offence carrying a maximum penalty of imprisonment for three years or more that falls within the categories of offences specified in subsections 15GE(2) and (3).  This will ensure that controlled operations are only authorised for the most serious Commonwealth offences.  In accordance with the recommendation made by the Standing Committee on Legal and Constitutional Affairs in its report on the Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006, offences carrying a penalty of less than three years imprisonment cannot be included in the definition of 'serious offence' by regulation.

A serious State offence that has a federal aspect will mean an offence against a law of a State or Territory that has a federal aspect and that is punishable on conviction by imprisonment for a period of three years or more.  This will allow Commonwealth law enforcement agencies to investigate State offences that are incidental to Commonwealth crime.

A State offence will have a federal aspect if the subject matter of the offence is a subject on which the Commonwealth has constitutional power to legislate.  A State offence will also have a federal aspect if the investigation of that State offence is incidental to an investigation of a Commonwealth or Territory offence (existing section 3AA of the Crimes Act explains when a State offence has a federal aspect).

In practice, where a Commonwealth law enforcement agency, such as the AFP, is investigating Commonwealth crimes, it may become apparent that State offences have also been committed.  Allowing controlled operations authorised under the Crimes Act to be used for the investigation of serious State offences that have a federal aspect will enable the AFP to investigate the totality of the criminal conduct involved in the offending.

15GF Meaning of authorising officer etc.

Section 15GF will set out who may authorise a controlled operation under the new regime.  Only senior officers within each ‘authorising agency’ (defined at new section 15GC) will be able to authorise a controlled operation.  These officers will be ‘authorising officers’.

For the purposes of the definition of authorising officer, there will be four categories of controlled operations:

·       where the operation is a major controlled operation and the investigation of the offence is within the functions of the AFP

·       where the operation is not a major controlled operation and the investigation of the offence is within the functions of the AFP

·       where the investigation of the offence is within the functions of the ACC, and

·       where the investigation relates to a corruption issue within the meaning of the Law Enforcement Integrity Commissioner Act 2006 .

The reason for the distinction between types of controlled operations conducted by the AFP is to ensure that the controlled operations which may involve more serious risks for operatives, both in terms of time spent undercover and safety, will only be approved by the Commissioner or Deputy Commissioner of the AFP (paragraph 15GF(1)(a)).  This distinction only applies to the AFP.

Where the operation is an AFP controlled operation other than a ‘major controlled operation’, paragraph 15GF(1)(b) will provide that it may be authorised by an AFP authorising officer , which will be defined at subsection 15GF(3) as the AFP Commissioner, a Deputy Commissioner or a senior executive AFP employee authorised in writing by the Commissioner to perform the function.

Where the investigation of the offence is within the functions of the ACC, paragraph 15GF(1)(c) will provide that it may be authorised by an ACC authorising officer , which will be defined at subsection 15GF(4) as the Chief Executive Officer of the ACC or an SES employee of the ACC authorised in writing by the Chief Executive Officer to perform the function.

Where the investigation is of a corruption issue within the meaning of the Law Enforcement Integrity Commissioner Act, paragraph 15GF(1)(d) will provide that it may be authorised by an ACLEI authorising officer , which will be defined at subsection 15GF(5) as the Integrity Commissioner, the Assistant Integrity Commissioner, or a staff member of ACLEI who is an SES employee and is authorised in writing by the Integrity Commissioner to perform the function.

Authorising officers will only be officers of the AFP, the ACC or ACLEI.  Other law enforcement agencies, such as Customs, will need to make any application to conduct a controlled operation to an authorising officer in the AFP, the ACC or ACLEI.  The vast majority of controlled operations conducted at the federal level are undertaken by the AFP.  A smaller, but significant number of operations are conducted by the ACC.  As a result, these agencies have the relevant operational experience to appropriately determine when a controlled operation should be authorised.  As ACLEI has the specific role of investigating corruption issues that relate to the AFP and the ACC, it would not be appropriate to require ACLEI to ask the AFP or the ACC to authorise a controlled operation into this conduct.

15GG Minister may nominate AAT members

Section 15GG will allow the Minister to nominate AAT members to deal with applications under new section 15GU to extend the period of effect of a controlled operation authority beyond three months.

The Minister will be able to nominate an AAT Deputy President, full-time senior member, part-time senior member or member for this purpose, but a part-time senior member or member will only be able to be nominated if he or she has been enrolled as a legal practitioner of the High Court or another federal court, or of the Supreme Court of a State or of the Australian Capital Territory, for not less than five years. 

Subsection 15GG(4) will provide that a nominated Tribunal member has, in relation to the performance of a function under this Part of the Crimes Act, the same protection and immunity as a Justice of the High Court in relation to proceedings in that Court.

Division 2 - Authorisation of controlled operations

Division 2 of new Part IAB of the Crimes Act will set out how controlled operations can be authorised and varied, including how applications are made, who can issue authorities and the procedural requirements that must be followed.

Subdivision A - Authorities to conduct controlled operations

15GH Applications for authorities to conduct controlled operations

Section 15GH will provide that only an ‘Australian law enforcement officer’ (defined at existing section 3 of the Crimes Act) of a ‘law enforcement agency’ (defined at new section 15GC) may apply for an authority to conduct a controlled operation.  A foreign law enforcement officer will be able to participate in a controlled operation under the Crimes Act, but cannot apply for authority to conduct the operation.  This section will also outline the requirements and process for an application for an authority to conduct a controlled operation.

Subsection 15GH(2) will provide that there are two types of application for an authority to conduct a controlled operation:

A formal application will be the standard method of applying for an authority.  A formal application will be required to be in writing and signed by the law enforcement officer who is applying for the authority.  It will be required to state the proposed duration of the authority, which must not exceed three months.

An urgent application will be the method of applying for an authority when time is of the essence or when the means of communication available to the law enforcement officer who is applying for the authority are limited.  An urgent application will only be able to be made if the applicant has reason to believe that the delay caused by making a formal application may affect the success of the operation.  Urgent applications will be able to be made orally in person, or by telephone, or by any other means of communication.  An urgent application will be required to state the proposed duration of the authority, which must not exceed seven days.

Both formal and urgent applications to conduct a controlled operation will be required to be made to an authorising officer (as defined in section 15GF).

Subsection 15GH(3) will provide that an application can be made in relation to a controlled operation which has been the subject of a previous application, but in those circumstances only a formal application can be made.

The most important aspect of an urgent application is that it enables information to be presented to an authorising officer without the need to prepare a formal document, which facilitates the grant of an authority within a tight timeframe.  However, to ensure appropriate record keeping and assist oversight mechanisms, subsection 15GH(6) will provide that if an urgent application was not made in writing, the applicant must make a written record of the application as soon as practicable and provide a copy to the authorising officer.  This will assist the authorising officer, who is required under new section 15GL to provide a written record of an urgent authority to the principal law enforcement officer (who is defined at section 15GC as the law enforcement officer who is responsible for the conduct of the controlled operation) within seven days of granting the application.

Subsection 15GH(4) will set out the information that all applications (whether formal or urgent) must include.  Applications will be required to provide sufficient information to enable the authorising officer to decide whether or not to authorise the proposed controlled operation.  Applications will also be required to specify the proposed duration of the operation, and provide details of any previous applications that have been made, or authorities that have been granted, in respect of the proposed operation or another controlled operation that investigated the same the criminal activity as the proposed operation. 

Subsection 15GH(5) will provide that an authorising officer may ask the applicant to provide further information about the proposed controlled operation, where this is required for a proper consideration of the application.

15GI Determination of applications

Subsection 15GI(1) will provide that after considering the application and any additional information, the ‘authorising officer’ (defined at section 15GF) may authorise the controlled operation, subject to, or without, conditions, or refuse the application.

Subsection 15GI(2) will provide that an authorising officer must not authorise a controlled operation unless he or she is satisfied, on reasonable grounds, of a number of specified matters, including that:

·       a serious Commonwealth offence or a serious State offence with a federal aspect has been (as defined at section 15GE), is being or is likely to be committed

·       the nature and extent of the suspected criminal activity are such as to justify the conduct of a controlled operation

·       any unlawful conduct will be limited to the maximum extent necessary to conduct an effective controlled operation

·       the operation will be conducted in a way that ensures that, to the maximum extent possible, any illicit goods will be under the control of Australian law enforcement officers at the end of the controlled operation

·       the operation will be conducted in such a way as to enable the oversight and accountability arrangements in Division 4 of this Part IAB to be complied with

·       the operation will not be conducted in a way that would induce a person to commit any offence that they would not otherwise have intended to commit.  This would ensure that a controlled operation does not involve conduct that would constitute entrapment (i.e. where a suspect is induced to commit an offence that they would not otherwise have intended to commit).  It does not apply to authorised participants, who will be provided with protection from criminal responsibility for authorised criminal conduct engaged in during a controlled operation (new section 15HA)

·       the operation will not involve conduct that will:

-        seriously endanger the health or safety of any person

-        cause the death of, or serious injury to, any person

-        involve the commission of a sexual offence against a person, or

-        result in significant loss of or damage to property (other than illicit goods).

The regime recognises that it is never appropriate for conduct of the nature specified to be undertaken, or authorised by, law enforcement officers.

·       any role assigned to a civilian could not be adequately performed by a law enforcement officer.  For example, it would be appropriate to authorise the participation of a civilian in a controlled operation if that person speaks a language or dialect that is spoken by the people under investigation but is not spoken by any available law enforcement officer.  Alternatively, the civilian may be an informant who is a member of a crime syndicate that police are either unable, or would not have sufficient time, to infiltrate without the informant’s assistance.

The original authorisation process for controlled operations is internal to the AFP, the ACC and ACLEI.  This is appropriate, as the conduct of controlled operations is essentially an operational matter and internal authorisation provides operational efficiency and protects the security of the investigation. 

New Division 4 of this new Part IAB of the Crimes Act will set out the role of the Ombudsman in reporting on compliance by the AFP, the ACC and ACLEI with the application and authorisation requirements provided in this Division.  This will ensure appropriate oversight and monitoring of the process.

Subsection 15GI(4) will clarify that an authority to conduct a controlled operation granted under this section is not a legislative instrument.  A ‘legislative instrument’ is defined at section 5 of the Legislative Instruments Act 2003 .  In general terms, a legislative instrument is a written document that is of a legislative character and that is made in the exercise of a power designated by Parliament.  Requirements relating to registering, tabling, scrutinising and sunsetting all Commonwealth legislative instruments are imposed under the Legislative Instruments Act.  Subsection 15GI(4) has been included to assist readers of the Crimes Act, so that they are aware that the requirements imposed by the Legislative Instruments Act do not apply to authorities issued under this section.

15GJ Manner of granting authority

Section 15GJ will set out the forms in which an authority for a controlled operation can be granted.

Subsection 15GJ(1) will provide that there are two types of authority:

A formal authority , which will be required to be in writing and signed by the authorising officer.

An urgent authority, which will be able to be given orally in person or by telephone, or any other means of communication.

A formal authority will only be able to be granted in response to a formal application (as defined at paragraph 15GH(2)(a)).  An urgent authority will be able to be granted in response to an urgent application (as defined at paragraph 15GH(2)(b)) or, if the authorising officer (as defined at section 15GF) is satisfied that the delay caused by granting a formal application may affect the success of the operation, in response to a formal application.  The maximum duration of an urgent authority will be seven days.

Subsection 15GJ(2) will provide that the authorising officer can only grant a formal authority for a controlled operation that has been the subject of a previous authority.  As a result, if an operation that was authorised by an urgent authority needs to be continued, a new formal application will need to be made, and a formal authority granted.  This section will also maintain the current position of allowing a new authority to be granted for a controlled operation which has previously ended due to it reaching the maximum duration.  This is necessary to provide law enforcement agencies with the flexibility to reopen or continue long and complex investigations into organised crime groups. 

15GK Form of authority

Section 15GK will set out the details that must be included in an authority.  Subsection 15GK(1) will set out the details to be included in a formal authority and subsection 15GK(2) will set out the details to be included in an urgent authority.  These requirements are designed to ensure that the authority provides comprehensive information about the planned operation.  The following information will be required to be included in both formal and urgent authorities:

·       the name and rank or position of the authorising officer (paragraphs 15GK(1)(a) and 15GK(2)(a))

·       the principal law enforcement officer - as defined at section 15GC, this will be the law enforcement officer who is responsible for the conduct of the controlled operation (paragraphs 15GK(1)(b) and 15GK(2)(b))

·       the applicant for the authority, if different to the principal law enforcement officer (paragraphs 15GK(1)(b) and 15GK(2)(b))

·       whether the application was formal or urgent - noting that section 15GJ will provide that a formal authority can only be granted in response to a formal application (paragraphs 15GK(1)(c) and 15GK(2)(c))

·       the nature of the criminal activity (including the suspected serious Commonwealth offences (defined at section 15GE) and serious State offences that have a federal aspect (defined at subsection 15EG(4)) in respect of which the controlled conduct is to be engaged in (paragraphs 15GK(1)(d) and 15GK(2)(d))

·       the identity of the individual people authorised to participate in the controlled operation - this includes law enforcement officers and civilians (paragraphs 15GK(1)(e) and 15GK(2)(e)).  Subsection 15GK(3) will provide that a person may be identified by an assumed name, or a code name or number, provided that the chief officer of the authorising agency can match this name or number to the person’s real identity.  This will provide protection for a person who is participating in a controlled operation, as their life may be at risk if the criminals targeted by the controlled operation discovered that the person was conducting or assisting an investigation into their criminal activity.    

·       the nature of the controlled conduct in which authorised participants may engage ( paragraphs 15GK(1)(f) and 15GK(2)(f)).  ‘Controlled conduct’ will be defined at section 15GC as conduct constituting an offence for which a person would, but for new section 15HA, be criminally responsible.  Paragraphs 15GK(1)(f) and 15GK(2)(f) will specify that different levels of detail must be provided for law enforcement officers and civilian participants.  For civilian participants, the particular ‘controlled conduct’ (if any) in which they are authorised to participate will be required to be detailed, whereas for law enforcement participants, the authority will only be required to state the ‘nature’ of the controlled conduct in which they are authorised to engage.  This will ensure that the behaviour of civilian participants is tightly controlled, while allowing more latitude to law enforcement officers to provide greater operational flexibility.

·       the person/s to be targeted by the controlled operation - to the extent that this is known (paragraphs 15GK(1)(g) and 15GK(2)(g))

·       the period of the authority - for a formal authority this period will not be able to exceed three months, for an urgent authority this period will not be able to exceed seven days (paragraphs 15GK(1)(h) and 15GK(2)(h))

·       any conditions to which the conduct of the operation is subject (paragraphs 15GK(1)(i) and 15GK(2)(i)), and

·       the time and date that the authority was granted (paragraphs 15GK(1)(j) and 15GK(2)(j)).

In addition, paragraph 15GK(1)(k) will provide that a formal authority must also include, to the extent known and applicable, details about any illicit goods (eg illegal drugs) that will be involved in the operation, including any international movements of those goods and details of when the goods will be dealt with by Customs.  These details will not be required to be contained in an urgent application because it is likely to be unfeasible for an applicant to ascertain this information in a limited timeframe. 

15GL Written record of urgent authority must be issued

Section 15GL will require an authorising officer (as defined at section 15GF) to provide the principal law enforcement officer (as defined at section 15GC, this is the law enforcement officer who is responsible for the conduct of the controlled operation) with a written record of the urgent authority to conduct a controlled operation within seven days of granting that authority under section 15GI.  The written record will be required to contain all the information set out at subsection 15GK(2).

15GM Change of principal law enforcement officer

Section 15GM will allow an authorising officer (as defined at section 15GF) to nominate a new principal law enforcement officer for a controlled operation where the current principal law enforcement officer ceases for any reason to have responsibility for the controlled operation.  This will ensure that if a principal law enforcement officer resigns or transfers to a new area of responsibility, the controlled operation can continue under the direction of another appropriate officer.

15GN Commencement and duration of authorities

Section 15GN will set out when an authority to conduct a controlled operation commences and expires.

Subsection 15GN(1) will provide that a controlled operation is taken to commence at the time that an authority is granted under section 15GI.  Subsection 15GN(2) will clarify that an urgent authority is granted when the authorising officer (as defined at section 15GF) tells the applicant that the authority is granted. 

The maximum duration of a formal authority for a controlled operation will be three months.  However, the duration of a controlled operation will be able to be extended up to a total of 24 months (see new sections 15GQ and 15GV).

The maximum duration of an urgent authority will be seven days.  This period cannot be extended.  However, the controlled operation authorised by an urgent authority will be able to continue beyond seven days if a formal application is made, and a formal authority given, to allow this to occur (see subsections 15GH(3) and 15GJ(2)).

A controlled operation will have effect for the period specified in the authority granted under section 15GI, unless it is cancelled before the end of that period (under section 15GY) or, in the case of a formal authority, the period is extended under section 15GQ or 15GV.  In that case, the controlled operation ends once the final period of extension is completed.

Under the existing legislation, the maximum duration of a controlled operation is six months (existing section 15OB of the Crimes Act).  Under the new controlled operation regime, the maximum duration for a controlled operation will be 24 months.  This change recognises that some controlled operations, particularly those investigating organised crime, may extend for a long period of time and it would cause significant disruption to the investigation, and possible risk to participants, if the operation was interrupted at a sensitive state. 

Subdivision B - Variation of authorities by appropriate authorising officers

Subdivision B of Division 2 of new Part IAB of the Crimes Act will establish a regime for varying authorities where the variation will not result in the duration of the operation exceeding three months.  Such variations will be able to be made by an ‘appropriate authorising officer’, who, as defined at section 15GC, is an authorising officer (defined at section 15GF) of the original authorising agency.  For example, if the controlled operation was originally authorised under section 15GI by an ACC authorising officer (defined at subsection 15GF(4)) the authority to conduct the controlled operation will be able to be varied by that person, or any other ACC authorising officer, provided that the variation will not extend the total period of the controlled operation beyond three months. 

Authorities will be able to be varied to allow a controlled operation to extend beyond three months, but these variations will only be able to be made by a nominated member of the AAT (as defined at section 15GG) acting under Subdivision C of Division 2 of new Part IAB of the Crimes Act.  This will provide additional, external oversight for long controlled operations, while retaining flexibility for shorter operations.

15GO Variation of authority by appropriate authorising officer

Section 15GO will set out when an authority for a controlled operation may be varied by an ‘appropriate authorising officer’.  ‘Appropriate authorising officer’ will be defined at section 15GC as an authorising officer (defined at section 15GF) of the original authorising agency.  For example, if the controlled operation was originally authorised under section 15GI by an ACC authorising officer (defined at subsection 15GF(4)) that person, and any other ACC authorising officer, is an ‘appropriate authorising officer’.  Allowing variations to be made by authorising officers other than the officer who originally authorised the controlled operation will allow flexibility in circumstances where the original authorising officer is not available, while ensuring that the same agency remains responsible for each controlled operation approved by its authorising officers.

Both formal authorities and urgent authorities will be able to be varied under section 15GO.

Subsection 15GO(1) will provide that an appropriate authorising officer may vary an authority at any time on their own initiative or in response to an application made under new section 15GP.  An authority may be varied in a number of ways.  Subsection 15GO(2) will provide that a variation may:

·       allow participants to engage in controlled conduct that is additional to, or different from, the controlled conduct that the original authorisation allowed them to engage in. 

‘Controlled conduct’ will be defined at new section 15GC as conduct constituting an offence for which a person would, but for new section 15HA, be criminally responsible.  As with the original authorisation (as set out at new paragraphs 15GK(1)(f) and 15GK(2)(f)) a variation of this kind will be required to provide different levels of detail for law enforcement officers and civilian participants. 

For civilian participants, the particular ‘controlled conduct’ in which the variation is authorising them to participate will be required to be detailed, whereas for law enforcement participants, the variation will only be required to specify the ‘nature’ of the controlled conduct in which the variation authorises them to engage.  This will ensure that the behaviour of civilian participants is tightly controlled, while allowing more latitude to law enforcement officers to provide greater operational flexibility.

·       provide that participants are no longer authorised to engage in controlled conduct that the original authorisation allowed them to engage in

·       authorise new people (law enforcement officers and/or civilians, including informants) to participate in the controlled operation, and/or

·       extend a controlled operation up to a total duration of three months.

 

Subsection 15GO(3) will provide that the period of effect of an urgent authority cannot be extended.  As a result, if an operation that was authorised by an urgent authority needs to be extended, a new formal application to conduct the controlled operation will be required to be made under new section 15GH.

Under the current Crimes Act, appropriate authorising officers are able to vary an authorisation to conduct a controlled operation, except to extend the duration of the controlled operation.  Under existing section 15OB of the Crimes Act, only a nominated member of the AAT may extend the duration of a controlled operation.  The period of effect of an authority to conduct a controlled operation may only be extended once, for a period of no more than three months.  This means that currently a controlled operation may run for a maximum of six months.

As with the current provisions, appropriate authorising officers will not be able to authorise a controlled operation to extend beyond three months.  Authorities will be able to be varied to allow a controlled operation to extend beyond three months, but these variations will only be able to be made by a nominated member of the AAT (as defined at section 15GG) acting under Subdivision C of Division 2 of new Part IAB of the Crimes Act.  The requirement for extensions beyond three months to be authorised by a nominated AAT member will ensure that these decisions are subject to external, independent scrutiny.

Allowing an appropriate authorising officer, who is internal to the authorising agency, to vary the period of effect of a controlled operation authority, provided that the variation does not result in the controlled operation extending beyond three months, is appropriate as it provides operational efficiency and protects the security of the investigation.  However, to ensure a proper balance between operational flexibility and accountability, the new regime will contain additional safeguards to ensure that this new function is appropriately oversighted and monitored.

The Ombudsman will have the power to inspect the records of the AFP, the ACC and ACLEI at any time (new section 15HS) and obtain relevant information from any law enforcement officer, including an officer from an agency other than the AFP, the ACC or ACLEI (new section 15HT).  In addition, the chief officers of the AFP, ACLEI and the ACC (as defined at section 15GC) will be required, under new section 15HP, to keep a copy of all formal variation applications and authorisations.  If the Ombudsman finds any irregularity in these records, the Ombudsman will be able to report these concerns to the Minister.

Subsection 15GO(5) will provide that a variation cannot be granted unless the appropriate authorising officer is satisfied on reasonable grounds that the variation will not authorise a significant alteration of the nature of the controlled operation.  This will be a safeguard against the use of variation applications to authorise entirely new and different operations.  The authorising officer will be required to consider whether the variation is consistent with the character of the originally authorised controlled operation.  If a significant change to the nature of the operation is required, an application for a new controlled operation should be made under new section 15GH.

Subsection 15GO(6) will clarify that the variation of an authority to conduct a controlled operation granted under this section is not a legislative instrument.  A ‘legislative instrument’ is defined at section 5 of the Legislative Instruments Act.  In general terms, a legislative instrument is a written document that is of a legislative character and that is made in the exercise of a power designated by Parliament.  Requirements relating to registering, tabling, scrutinising and sunsetting all Commonwealth legislative instruments are imposed under the Legislative Instruments Act.  Subsection 15GO(6) has been included to assist readers of the Crimes Act, so that they are aware that the requirements imposed by the Legislative Instruments Act do not apply to authorities issued under this section.

15GP Application to appropriate authorising officer

Section 15GP will provide that the principal law enforcement officer for an authorised operation (that is, as defined at section 15GC, the law enforcement officer who is responsible for the conduct of the controlled operation) or any other Australian law enforcement officer acting on behalf of the principal law enforcement officer, may apply to an appropriate authorising officer for a variation of an authority to conduct a controlled operation.  ‘Appropriate authorising officer’ will be defined at section 15GC as an authorising officer (defined at section 15GF) of the original authorising agency.  For example, if the controlled operation was originally authorised under section 15GI by an ACC authorising officer (defined at subsection 15GF(4)) that person, and any other ACC authorising officer, will be an ‘appropriate authorising officer’. 

Subsection 15GP(1) will provide that an authority may be varied as set out at subsection 15GO(2), which provides that variations may:

·       allow participants to engage in controlled conduct that is additional to, or different from, the controlled conduct that the original authorisation allowed them to engage in. 

‘Controlled conduct’ will be defined at new section 15GC as conduct constituting an offence for which a person would, but for new section 15HA, be criminally responsible.  As with the original authorisation (as set out at new paragraphs 15GK(1)(f) and 15GK(2)(f)) a variation of this kind will be required to provide different levels of detail for law enforcement officers and civilian participants. 

For civilian participants, the particular ‘controlled conduct’ in which the variation is authorising them to participate will be required to be detailed, whereas for law enforcement participants, the variation is only required to specify the ‘nature’ of the controlled conduct in which the variation authorises them to engage.  This ensures that the behaviour of civilian participants will be tightly controlled, while allowing more latitude to law enforcement officers to provide greater operational flexibility.

·       provide that participants are no longer authorised to engage in controlled conduct that the original authorisation allowed them to engage in 

·       authorise new people (law enforcement officers, civilians and/or informants) to participate in the controlled operation, and/or

·       extend a controlled operation up to a total duration of three months.

Subsection 15GP(2) will provide that an application cannot be made to an appropriate authorising officer to vary an authorisation if the variation would result in the total period of effect of the authority extending beyond three months.  Authorities will be able to be varied to allow a controlled operation to extend beyond three months, but these variations will only be able to be made by a nominated member of the AAT (as defined at section 15GG) acting under Subdivision C of Division 2 of this new Part IAB of the Crimes Act.  The requirement for extensions beyond three months to be authorised by a nominated AAT member will ensure that these decisions subject to external, independent scrutiny.  While this departs from the model laws, it accords with the recommendation made by the Standing Committee on Legal and Constitutional Affairs in its report on the Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006.

Only formal authorities will be able to be extended.  I f a controlled operation that was authorised by an urgent authority needs to be extended, a new formal application to conduct the controlled operation will need to be made under new section 15GH.

There will be two types of applications for variations to an authority to conduct a controlled operation:

A formal variation application will be the standard method for applying for a variation.  A formal variation application will be required to be in writing and signed by applicant.  If the application is seeking a variation of the period of effect of the authority it must state the proposed period of the extension, which must not result in the total duration of the controlled operation exceeding three months.

An urgent variation application will be the method of applying for a variation when time is of the essence or when the means of communication available to applicant are limited.  An urgent variation application may only be made if the applicant has reason to believe that the delay caused by making a formal variation application may affect the success of the operation.  Urgent variation applications will only be able to be made orally in person, or by telephone, or by any other means of communication.  If the urgent variation application is seeking a variation of the period of effect of an authority it will be required to state the proposed period of the extension, which must not exceed the lesser of seven days or the period that would result in the total duration of the controlled operation exceeding three months.

The most important aspect of an urgent variation application is that it enables information to be presented to an authorising officer without the need to prepare a formal document, which facilitates the grant of an authority to within a tight timeframe.  However, to ensure appropriate record keeping and assist oversight mechanisms, subsection 15GP(8) will provide that if an urgent variation application was not made in writing, the applicant must make a written record of the application as soon as practicable and provide a copy to the authorising officer.  This will assist the authorising officer, who will be required under new section 15GR to provide a written record of any variation of an authority to the principal law enforcement officer, or the law enforcement who applied for the variation, as soon as practicable.

Subsection 15GP(5) will provide that a variation application must provide details of any previous variation applications that have been made in respect of the controlled operation.  This information is important as subsection 15GP(4) will provide that more than one variation application may be made in respect of the same authority, but if an urgent variation was granted as a result of an application, the next variation application must be a formal variation application. 

Subsection 15GP(7) will provide that an authorising officer may ask the applicant to provide further information, where this is required for a proper consideration of the variation application.

Agencies will be required, under new subsection 15HM(2) to include, in their six-monthly report to the Ombudsman and Minister, information on the number of formal variation applications and urgent variation applications that were made in the reporting period.  This will provide an external check on the use of variation applications.

 

15GQ Determination of application to vary authority

Subsection 15GQ will provide that, after considering the application and any additional information, the ‘authorising officer’ (defined at section 15GF) may vary the authority to conduct the controlled operation, subject to, or without, conditions, or refuse to vary the authority.

Subsection 15GQ(2) will provide that the authorising officer must not grant the requested variation unless he or she is satisfied, on reasonable grounds, of a number of criteria, equivalent to the criteria in subsection 15GI(2).  This will require the authorising officer who is determining the application for a variation to consider the same range of factors as must be considered when an authorising officer is considering whether to grant the original authority to conduct a controlled operation.  This will mean that the variation application process will effectively function as a full internal review of the controlled operation in question.

Agencies will be required, under new subsection 15HM(2) to include, in their six-monthly report to the Ombudsman and Minister, information on the number of formal variations and urgent variations that were granted or refused in each six-month reporting period.  This will provide an external check on the use of variation powers.

15GR Manner of varying authority

Section 15GR will set out the forms in which an authority for a controlled operation can be varied by an appropriate authorising officer (defined at section 15GC), either as a result of a variation application or on his or her own initiative.

Subsection 15GR(2) will provide for two types of variation:

A formal variation of authority , which must be in writing and signed by the appropriate authorising officer.

An urgent variation of authority , which may be given orally in person or by telephone or any other means of communication.

A formal variation of authority will be able to be granted in response to a formal variation application (as defined at paragraph 15GP(3)(a)) or on the initiative of the appropriate authorising officer.

An urgent variation of authority will be able to be granted on the appropriate authorising officer’s own initiative, in response to an urgent application (as defined at paragraph 15GP(3)(b)) or, if the appropriate authorising officer is satisfied that the delay caused by granting a formal variation of authority may affect the success of the operation, in response to a formal variation application.  Paragraph 15GP(5)(b) will provide that the maximum duration of an urgent variation of authority is seven days.  Subsection 15GP(4) will provide that more than one variation application may be made in respect of the same authority, but if an urgent variation was granted as a result of an application, the next variation application must be a formal variation application. 

Subsection 15GR(2) will require the authorising officer, as soon as practicable, to prepare and give to the applicant (or, where the variation is made on the initiative of the authorising officer, to the principal law enforcement officer, as defined at section 15GC) a written document that complies with new section 15GS. 

15GS Form of variation of authority

Section 15GS will set out the details that must be included in a variation of an authority, whether formal or urgent.  Subsection 15GS(1) will provide that a variation of an authority must:

·       identify the controlled operation to which the variation relates

·       identify the appropriate authorising officer (defined at section 15GC) varying the authority

·       if relevant, identify the person who made the application for the variation and whether that application was formal or urgent

·       state the date and time that the authority was varied, and

·       describe the variation, taking into account the restrictions on how an authority can be varied (which will be set out at new section 15GO).

Subdivision C - Variations of authorities by nominated Tribunal member: extensions beyond 3 months

Subdivision C of Division 2 of new Part IAB of the Crimes Act will establish a regime for varying authorities where the variation will result in the duration of the operation exceeding three months.  Such variations can only be made by a nominated member of the AAT (defined at section 15GG) on the application of the principal law enforcement officer for an authorised operation (which will be defined at new section 15GC as the law enforcement officer who is responsible for the conduct of the controlled operation) or any other Australian law enforcement officer acting on behalf of the principal law enforcement officer. 

Variations of authorities that will not result in the duration of the operation exceeding three months will be able to be made, under Subdivision B of Division 2 of new Part IAB of the Crimes Act, by an ‘appropriate authorising officer’, which will be defined at section 15GC, as an authorising officer (defined at section 15GF) of the original authorising agency.  For example, if the controlled operation was originally authorised under section 15GI by an ACC authorising officer (defined at subsection 15GF(4)) the authority to conduct the controlled operation may be varied by that person, or any other ACC authorising officer, provided that the variation will not extend the total period of the controlled operation beyond three months. 

Variations extending the duration of an operation beyond three months will be able to be planned and prepared for.  Determination of applications for these variations will provide the nominated AAT member with an opportunity to review the operation as a whole.

Unlike the position in relation to variations that will be able to be made by appropriate authorising officers, nominated AAT members will not be able to vary an authority to conduct a controlled operation on their own initiative.

15GT Variations of authorities by nominated Tribunal member: extensions beyond 3 months

Section 15GT will provide that a formal authority to conduct a controlled operation may be varied by a nominated member of the AAT.  A nominated member of the AAT is the only person who will be able to vary an authority to extend the period of effect of that authority beyond three months.  This requirement will ensure the external oversight of any decision to extend a controlled operation beyond this timeframe.  The Minister will be able to nominate AAT members under new section 15GG. 

Subsection 15GT(3) will provide that each variation made by a nominated AAT member must not extend the period of effect of an authority to conduct a controlled operation for more than three months at a time, or so that the total duration of the controlled operation (including any extensions previously granted by an appropriate authorising officer under section 15GQ or by a nominated AAT member under section 15GV) would exceed 24 months.   

Subsection 15GT(4) will provide that a nominated AAT member may only vary an authority to extend the period of operation of a controlled operation in the two weeks prior to the end of the period of effect of the authority.  This will ensure that AAT member is considering the most recent events in the controlled operation before making the decision to extend the operation.

Agencies will be required, under new subsection 15HM(2), to include, in their six-monthly report to the Ombudsman and Minister, information on the number of formal variation applications and urgent variation applications that were made in the reporting period.  This will provide an external check on the use of variation applications.

15GU Application to nominated Tribunal member

Section 15GU will provide that the principal law enforcement officer for an authorised operation (that is, as defined at section 15GC, the law enforcement officer who is responsible for the conduct of the controlled operation) or any other Australian law enforcement officer acting on behalf of the principal law enforcement officer, may apply to a nominated AAT member (defined at section 15GG) to vary an authority to conduct a controlled operation to extend the period of effect of that authority beyond three months.

Subsection 15GU(2) will provide that an application cannot be made to extend the period of effect of an authority to conduct a controlled operation if the extensions would result in the total duration of the controlled operation (including any extension previously granted by an appropriate authorising officer under section 15GQ or by a nominated AAT member under section 15GV) exceeding 24 months.   

Subsection 15GU(3) will set out the two types of applications that may be made to a nominated AAT member for variations to an authority to conduct a controlled operation:

A formal variation application will be the standard method for applying for a variation.  A formal variation application will be required to be in writing and signed by the person who is applying for the variation.  It will be required to state the proposed extension to the period of effect of the authority, which must not exceed three months.

An urgent variation application will be the method of applying for a variation when time is of the essence or when the means of communication available to the applicant are limited.  An urgent variation application will only be able to be made if the applicant has reason to believe that the delay caused by making a formal variation application may affect the success of the operation.  An urgent variation application will be able to be made orally in person, or by telephone, or by any other means of communication.  It will be required to state the proposed extension to the period of effect of an authority, which must not exceed seven days. 

Subsection 15GU(5) will provide that a variation application must provide details of any previous variation applications that have been made in respect of the controlled operation.  This information is important as subsection 15GU(4) will provide that more than one variation application may be made in respect of the same authority, but if an urgent variation was granted as a result of an application, the next variation application must be a formal variation application. 

The most important aspect of an urgent variation application is that it enables information to be presented to a nominated AAT member without the need to prepare a formal document, which facilitates the grant of a variation to an authority within a tight timeframe.  However, to ensure appropriate record keeping and assist oversight mechanisms, subsection 15GU(7) will provide that if an urgent variation application was not made in writing, the applicant must make a written record of the application as soon as practicable and provide a copy to the nominated AAT member.  This will assist the nominated AAT member, who will be required under new section 15GW to provide a written record of any variation of an authority to the applicant as soon as practicable.

Subsection 15GU(6) will provide that the nominated AAT member may ask the applicant to provide further information, where this is required for a proper consideration of the variation application.

Agencies will be required, under new subsection 15HM(2) to include, in their six-monthly report to the Ombudsman and Minister, information on the number of formal variation applications and urgent variation applications that were made in the reporting period.  This will provide an external check on the use of variation applications.

15GV Determination of application

Section 15GV will provide that, after considering the application and any additional information, the nominated AAT member (defined at section 15GG) may vary the authority to conduct the controlled operation, subject to, or without, conditions, or refuse to vary the authority.

Subsection 15GV(2) will provide that the nominated AAT member must not grant the requested variation unless he or she is satisfied, on reasonable grounds, of a number of specified criteria.  These criteria reflect the criteria relevant to the determination of an initial application for an authority under new section 15GI.  As a request for variation requires the nominated AAT member to consider the same range of factors as must be considered when an authorising officer is considering whether to grant an original authority, this process effectively functions as a full external review of the controlled operation if an application is made to continue the operation beyond three months, and at least every three months thereafter if further extensions are sought.

Agencies will be required, under new subsection 15HM(2) to include, in their six-monthly report to the Ombudsman and Minister, information on the number of formal variations and urgent variations that were granted or refused in each six-month reporting period.  This will provide an external check on the use of variation powers.

Subsection 15GV(3) will clarify that a variation of an authority to conduct a controlled operation granted under the section is not a legislative instrument.  A ‘legislative instrument’ is defined at section 5 of the Legislative Instruments Act.  In general terms, a legislative instrument is a written document that is of a legislative character and that is made in the exercise of a power designated by Parliament.  Requirements relating to registering, tabling, scrutinising and sunsetting all Commonwealth legislative instruments are imposed under the Legislative Instruments Act.  Subsection 15GV(3) will assist readers of the Crimes Act, so that they are aware that the requirements imposed by the Legislative Instruments Act do not apply to variations of authorities issued under this section.

15GW Manner of varying formal authority

Section 15GW will set out the forms in which an authority for a controlled operation can be varied by a nominated AAT member (as defined at section 15GG).

Subsection 15GW(1) will provide for two types of variation:

A formal variation of authority , which must be in writing and signed by the authorising officer .

An urgent variation of authority , which may be given orally in person or by telephone or any other means of communication.

A formal variation of authority will only be able to be granted in response to a formal variation application (as defined at paragraph 15GU(3)(a)).  An urgent variation of authority will be able to be granted in response to an urgent variation application (as defined at paragraph 15GU(3)(b)) or, if a nominated AAT member is satisfied that the delay caused by granting a formal variation of authority may affect the success of the operation, in response to a formal variation application. 

Subsection 15GW(2) will require the nominated AAT member, as soon as practicable, to prepare and give to the applicant a written document that complies with new section 15GX. 

15GX Form of variation of formal authority

Section 15GX will set out the details that must be included in a variation of a formal authority by a nominated AAT member, whether formal or urgent.  Subsection 15GX(1) will provide that a variation of an authority must:

·       identify the controlled operation to which the variation relates

·       identify the nominated AAT member (defined at section 15GG) varying the authority

·       identify the person who made the application for the variation and whether that application was formal or urgent

·       state the date and time that the authority was varied, and

·       state the period by which the authority was extended, taking into account the restrictions on the length of each extension, and on the total duration of the controlled operation (which will be set out at new section 15GT).

Subdivision D - Other matters

15GY Cancellation of authorities

Section 15GY will provide for the cancellation of authorities. 

Subsection 15GY(1) will provide that an appropriate authorising officer (as defined at section 15GC) may cancel an authority at any time and for any reason. 

Subsection 15GY(2) will provide that an appropriate authorising officer may also cancel an authority at the request of the principal law enforcement officer (who will be defined at section 15GC as the law enforcement officer who is responsible for the conduct of the controlled operation).

Subsection 15GY(3) will provide that a cancellation of an authority to conduct a controlled operation takes effect from the time the cancellation order is made, or at a later time specified in the order.

15GZ Effect of authorities

Section 15GZ will describe the effect of an authority to conduct a controlled operation.

Subsection 15GZ(1) will provide that an authority authorises a participant (whether a law enforcement officer or a civilian, including an informant) to engage in the controlled conduct specified in the authority, or a variation to such an authority, issued under new sections 15GI or 15GO.  ‘Controlled conduct’ is defined at section 15GC as conduct constituting an offence for which a person would, but for new section 15HA, be criminally responsible.

Subsection 15GZ(1) will be consistent with new paragraphs 15GK(1)(f), 15GK(2)(f) and subsection 15GO(2), which require the authority for a controlled operation, or a variation to such an authority, to identify the nature of the controlled conduct which may be engaged in by the participants during the controlled operation.

Subsection 15GZ(2) will clarify that a participant in a controlled operation who has been authorised to engage in controlled conduct is authorised to engage in that conduct for the period of effect of the authority to conduct the controlled operation unless:

·       the authority states that the person is authorised to engage in the controlled conduct for a shorter period

·       the authority is varied (under new section 15GQ) to state that the person is no longer authorised to participate in controlled conduct for the purpose of the controlled operation, or

·       the authority is cancelled (under new section 15GY) before the expiry of the period of effect specified in the authority.

Subsection 15GZ(2) will specify that the authority to engage in controlled conduct will not be able to be delegated to any other person.

15H Defect in authority

Section 15H will provide that:

·       an application for an authority to conduct a controlled operation (under new section 15GH)

·       an application for a variation to an authority (under new sections 15GP or 15GU)

·       an authority (under new section 15GI), or

·       a variation of an authority (under new sections 15GQ or 15GV)

are not invalidated by defects, unless the defect materially affects the application, the authority or the variation of an authority. 

This provision will recognise that it would be inefficient and unreasonable if such documents were invalidated by minor matters that relate to form or process.

Division 3—Protection from criminal responsibility and related provisions

Division 3 of new Part IAB of the Crimes Act will be the critical component of the new controlled operations regime, as it will provide protection from criminal liability for participants (law enforcement officers and civilians, including informants) in controlled operations.

Subdivision A of new Division 3 will provide protection from criminal liability for participants in controlled operations authorised under this new Part IAB of the Crimes Act.

Subdivision B will give effect to the mutual recognition provisions in the model laws and provide protection from criminal liability for participants in controlled operations authorised under a corresponding controlled operations law of a State or Territory.

Subdivision A - Controlled operations under this Part

15HA Protection from criminal responsibility for controlled conduct during controlled operations

Section 15HA will protect a participant in a controlled operation (who may be a law enforcement officer or a civilian, including an informant) from criminal responsibility for controlled conduct that he or she is authorised (under sections 15GI, 15GO or 15GQ) to engage in during a controlled operation.  ‘Controlled conduct’ will be defined at new section 15GC as conduct constituting an offence for which a person would, but for this section, be criminally responsible.  For example, in a controlled operation investigating a drug trafficking syndicate, a participant may be authorised to purchase illicit drugs to gather evidence of drug trafficking.

The effect of this section will be that, while the controlled conduct will remain unlawful in nature, a participant who meets the requirements of the section will not be criminally responsible for the offence.

Subsection 15HA will provide that this protection from criminal responsibility only applies if:

·       the participant engages in the conduct in accordance with the authority to conduct the controlled operation.  New paragraphs 15GK(1)(f), 15GK(2)(f) and 15GO(2)(b) will provide that when a controlled operation is authorised, or varied, the nature of the controlled conduct in which participants are authorised to engage must be specified.  Those provisions require different levels of detail for law enforcement officers and civilian participants.  For civilian participants, the particular ‘controlled conduct’ in which the authority or variation is authorising them to participate must be detailed, whereas for law enforcement participants, the authority or variation is only required to specify the ‘nature’ of the controlled conduct in which they are authorised to engage.  This will ensure that the behaviour of civilian participants is tightly controlled, while allowing more latitude to law enforcement officers to provide address operational contingencies as they arise.

·       the participant is authorised under new sections 15GK or 15GO to engage in that conduct

·       the conduct does not involve the participant intentionally inducing another person to commit an offence that the person would not otherwise have intended to commit.  New sections 15GI and 15GQ will provide that an authority to conduct a controlled operation, or a variation to a controlled operation, must not be granted unless the authorising officer (defined at section 15GF) is satisfied on reasonable grounds that the controlled operation will not be conducted in such a way that a person will be induced to commit an offence in this way

·       the participant does not engage in conduct that is likely to cause the death of, or serious injury to, any person, or involve the commission of a sexual offence against any person.  New sections 15GI and 15GQ will provide that an authority to conduct a controlled operation, or a variation to a controlled operation, must not be granted unless the authorising officer (defined at section 15GF) is satisfied on reasonable grounds that any conduct involved in the controlled operation will not result in these outcomes or offending, and

·       if the participant is a civilian participant, he or she acts in accordance with the instructions of a law enforcement officer.  

This section will apply to offences against Commonwealth, State or Territory law.

This provision will extend the protection from criminal liability that is currently provided to controlled operation participants under existing section 15I of the Crimes Act by providing protection from criminal responsibility to informants.  This will reflect the model laws. 

It is considered necessary to extend protection from criminal liability to informants as in some circumstances the participation of informants will be crucial to the success of a controlled operation, such as where informants would be able to perform actions in a controlled operation that law enforcement officers, or other civilians, could not undertake without compromising the success of the operation.

As an additional safeguard, paragraph 15GI(2)(h) will limit the use of informants in controlled operations, as it will provide that the authorising officer must be satisfied that the role intended for the civilian participant (which includes an informant) could not be adequately performed by a law enforcement officer.

The new controlled operation regime will not provide immunity for past criminal offences that informants may have committed.  Informants will only receive protection from liability for conduct that they have been specifically authorised to undertake as part of a controlled operation.

15HB Indemnification of participants against civil liability

Section 15HB will provide that the Commonwealth must indemnify a participant in an authorised controlled operation (who may be a law enforcement officer or a civilian, including an informant) against any civil liability incurred because of conduct that the participant engages in, provided the following requirements are met:

·       the conduct is in the course of, and for the purposes of, the controlled operation and in accordance with the authority to conduct the controlled operation

·       the participant is authorised under proposed sections 15GK or 15GO to engage in that conduct

·       the conduct does not involve the participant intentionally inducing another person to commit an offence that the person would not otherwise have intended to commit.  New sections 15GI and 15GQ will provide that an authority to conduct a controlled operation, or a variation to a controlled operation, must not be granted unless the authorising officer (defined at section 15GF) is satisfied on reasonable grounds that the controlled operation will not be conducted in such a way that a person will be induced to commit an offence in this way

·       the participant does not engage in conduct that is likely to cause the death of, or serious injury to, any person or involve the commission of a sexual offence against any person.  New sections 15GI and 15GQ will provide that an authority to conduct a controlled operation, or a variation to a controlled operation, must not be granted unless the authorising officer (defined at section 15GF) is satisfied on reasonable grounds that any conduct involved in the controlled operation will not result in these outcomes or offending

·       if the participant is a civilian participant, he or she acts in accordance with the instructions of a law enforcement officer, and

·       any further requirements specified in the regulations.

As with the extension of protection of informants from criminal liability under new section 15HA, this provision will extend the indemnity from civil liability that is currently provided to controlled operation participants by existing section 15IA of the Crimes Act, by indemnifying informants.  This will reflect the model laws. 

15HC Effect of sections 15HA and 15HB on other laws relating to criminal investigation

Section 15HC will provide that participants in controlled operations (who may be law enforcement officers or civilians, including informants) will not be protected from criminal or civil liability (under new sections 15HA and 15HB) if they undertake conduct which could be authorised under other laws relating to criminal investigation.  This ensures that the provisions in this new Part IAB of the Crimes Act cannot be used as substitutes for other laws.

For example, it is unlawful to forcibly enter a person’s home and take private property.  However, in certain circumstances this can be authorised by a search warrant.  Section 15HC will ensure that the new controlled operations regime cannot be used to authorise such conduct, rather than the relevant search warrant legislation.

This provision covers conduct relating to:

·       the arrest or detention of individuals

·       searches of individuals

·       entry onto, or searches or inspection of, premises

·       searches, inspections or seizures of other property

·       forensic procedures

·       electronic surveillance devices or telecommunications interception

·       identification procedures

·       the acquisition or use of assumed identities, and

·       any other matter concerning powers of criminal investigation.

15HD Effect of being unaware of variation or cancellation of authority

An authority to conduct a controlled operation will be able to be varied under new sections 15GQ or 15GV, or cancelled under new section 15GY.  New section 15HD provides that if an authority is varied or cancelled, but a participant in the controlled operation (who may be a law enforcement officer or a civilian, including an informant) is unaware of the variation or cancellation (and is not reckless about the existence of a variation or cancellation), then he or she is still protected under new sections 15HA and 15HB, as if the variation or cancellation had not been made.

This provision will also ensure that evidence collected by the participant will continue to be protected against exclusion (under new section 15GA) for as long as the participant is unaware of the variation or cancellation and is not reckless as to the existence of the variation or cancellation.

Subsection 15HD(3) will provide that a person is reckless about the existence of a variation or cancellation if he or she is aware of a substantial risk that the authority to conduct the controlled operation has been cancelled or varied and, taking into account the circumstances known to the person, it is unjustifiable for him or her to take the risk that the authority has not been cancelled or varied. 

This provision will be narrower than the current Crimes Act provision (existing section 15PA) as it does not provide protection for a participant who is unaware that the authorisation to conduct a controlled operation has expired at the end of the period of three months after the day on which it was given.  It was considered that this existing protection was too broad and could potentially excuse poor operational practices.

It is incumbent on participants in a controlled operation to be aware of the start and end dates of the initial authority to conduct the operation.  However, as decisions relating to authorities can be made without the knowledge of participants, it is necessary to include limited protection for activities that are undertaken after a cancellation or variation, especially in situations where it may be difficult for the participant to contact the principal law enforcement officer.

This provision will require participants to take necessary steps to determine whether a cancellation or variation has occurred.  This position is consistent with the model laws.

15HE Protection from criminal responsibility for certain ancillary conduct

Section 15HE will provide protection from criminal responsibility for a person who is connected with the controlled operation but is not necessarily an authorised participant in the operation, if that person has a belief that the activities in which they are engaging are ancillary, or related, to the authorised controlled operation.  Although section 15HA will provide that participants will not be criminally responsible for authorised controlled conduct, that conduct remains unlawful in nature, so a person who assists or encourages another person to engage in that unlawful activity may be committing an offence such as aiding and abetting, or conspiracy.

For example, it might be argued that other law enforcement officers involved in authorising or overseeing a controlled operation, such as an authorising officer (defined at section 15GF) or a principal law enforcement officer (defined at section 15GC) have counselled, procured, aided or abetted the commission of an offence, or have conspired to commit an offence, thereby committing an offence themselves.

This provision is necessary to ensure that a person who engages in this ‘ancillary conduct’ will not be criminally responsible if he or she believed that the ‘related controlled conduct’ was authorised for an operation.

This section will apply to offences against Commonwealth, State or Territory law.

15HF Compensation for property loss or serious damage

Section 15HF will provide for compensation to be paid to a person who suffers loss of, or serious damage to, property, or personal injury, in the course of, or as a direct result of, an authorised controlled operation.  This compensation is not accessible by a person who was involved in the commission of an offence (other than a person who is undertaking ‘controlled conduct’, as defined at section 15GC) or who is a law enforcement participant.  These classes of people may have recourse to compensation through other avenues including court action, but cannot make a claim under this provision.

This section is intended to facilitate claims for compensation by people who suffer property loss, serious damage to property, or personal injury because of a controlled operation.  Where a person can show that their loss is a direct result of an authorised operation, the Commonwealth is liable to pay compensation.  An example of this is where a law enforcement participant engaged in a controlled operation loses control of a car he is driving and hits a member of the public walking on the footpath.  The amount of compensation will be as agreed between the claimant and the Commonwealth, or if an agreement cannot be reached, an amount determined by a court.

This provision will be broader than the model laws as it extends compensation to persons who suffer personal injury as well as property damage.  This is consistent with the current position, as existing section 15ID of the Crimes Act provides for the compensation of people who suffer personal injury or loss as a result of a controlled operation.  Inclusion of personal injury in the new regime makes plain the legal position that would exist in any event, that where the Commonwealth would be tortiously liable for personal injury arising from a controlled operation, it is to pay the compensation for which it is liable at law, or otherwise a settled amount.  The provision is not intended to give rise to a cause of action, or to render the Commonwealth liable in circumstances where it would not otherwise be liable.

This provision will clarify that only actions that are directly connected to the controlled operation would be compensable.  Compensation payments required to be paid under this section would generally come from the operating budget of law enforcement agencies conducting the controlled operation. 

15HG Notification requirements

Section 15HG will require a principal law enforcement officer (defined at section 15GC as the law enforcement officer who is responsible for the conduct of the controlled operation) to report any loss or serious damage to property, or injury to a person, occurring in the course of, or as a direct result of, an authorised controlled operation to the chief officer of the law enforcement agency (defined at section 15GC) as soon as practicable.

Given the covert nature of controlled operations, a person who suffers injury, or property loss or damage, is unlikely to know that the person who caused the injury, loss or damage was a law enforcement officer or an authorised participant in a controlled operation, and therefore that the loss or damage was the direct result of a controlled operation.  In particular, as new section 15HF will permit a claim of compensation in these circumstances, it is important that a person is notified as soon as possible that the injury, damage or loss was a result of a controlled operation.  Subsection 15HG(2) will place this notification obligation on the chief officer of the relevant agency.

However, the chief officer will not be required to notify the injured person or property owner until he or she is satisfied that notification would not:

·       compromise or hinder the controlled operation or any related investigation (paragraph 15HG(4)(a))

·       compromise the identity of a participant in the controlled operation (paragraph 15HG(4)(b))

·       endanger the life or safety of any person (paragraph 15HG(4)(c))

·       prejudice any legal proceeding (paragraph 15HG(4)(d)), or

·       otherwise be contrary to the public interest (paragraph 15HG(4)(e)).

Subsection 15HG(5) will allow the chief officer to delegate his or her functions under this section to certain other officers of the agency.

Subdivision B—Controlled operations under a corresponding State controlled operations law

Subdivision B of Division 3 of new Part IAB of the Crimes Act will give effect to the mutual recognition provisions in the model laws and provide protection from criminal liability for participants in controlled operations authorised under a corresponding controlled operations law of a State or Territory.

15HH Protection from criminal responsibility for conduct under a corresponding State controlled operations law

Section 15HH will provide equivalent protection from criminal liability for participants ( whether law enforcement officers or civilians) in controlled operations authorised under a corresponding State controlled operations law, as will be provided to participants in a Commonwealth controlled operation by section 15HA.  ‘Corresponding State controlled operations law’ will be defined in new section 15GC to mean a law of, or provisions of a law of, a State or Territory prescribed by the regulations to be a corresponding State controlled operations law. 

While the State or Territory laws would provide protection to participants for liability for State or Territory offences, those laws cannot provide protection from liability for Commonwealth offences. 

Consistent with the mutual recognition component of the model laws, this section will provide this protection.  It will also ensure that State and Territory agencies are not required to seek simultaneous Commonwealth approval for their controlled operations.

The effect of this section will be that, while the relevant conduct will remain unlawful in nature, a participant who meets the requirements of the section will not be criminally responsible for the offence.

The limitations on the protection of participants from criminal liability will be the same as those that will be set out in new section 15HA.

15HI Effect of section 15HH on other laws relating to criminal investigation

Section 15HI will be the equivalent, for controlled operations authorised under a corresponding State controlled operations law, of section 15HC, which applies to controlled operations authorised under this Part of the Crimes Act.  ‘Corresponding State controlled operations law’ will be defined in new section 15GC to mean a law of, or provisions of a law of, a State or Territory prescribed by the regulations to be a corresponding State controlled operations law. 

Section 15HI will provide that participants in controlled operations (who may be law enforcement officers or civilians, including informants) will not be protected from criminal liability under new section 15HH if they undertake conduct which could be authorised under other laws relating to criminal investigation.  This ensures that section 15HH will not be used as a substitute for other laws.

For example, it is unlawful to forcibly enter a person’s home and take private property.  However, in certain circumstances this can be authorised by a search warrant.  Section 15HI will ensure that the new controlled operations regime cannot be used to authorise such conduct, rather than the relevant search warrant legislation.

The conduct covered by this provision will be the same as that covered under section 15HC.

15HJ Protection from criminal responsibility for certain ancillary conduct

Section 15HJ will be the equivalent, for controlled operations authorised under a corresponding State controlled operations law, of section 15HE, which applies to controlled operations authorised under this Part of the Crimes Act.  ‘Corresponding State controlled operations law’ will be defined in new section 15GC to mean a law of, or provisions of a law of, a State or Territory prescribed by the regulations to be a corresponding State controlled operations law. 

This provision will provide protection from criminal liability for ancillary conduct (within the meaning of the Commonwealth Criminal Code ) that relates to conduct that will be protected by new section 15HH.

This provision will only provide protection from criminal liability for Commonwealth ancillary offences.  The relevant State or Territory law will provide protection from criminal liability for State or Territory ancillary offences.

Subdivision B of Division 3 of new Part IAB of the Crimes Act does not provide indemnity against civil liability arising out of any conduct engaged in under a State or Territory controlled operation.  That indemnity would need to be provided by the relevant State or Territory.

Division 4—Compliance and Monitoring

Division 4 of new Part IAB of the Crimes Act will deal with the unauthorised disclosure of information relating to a controlled operation and establish recordkeeping, reporting and oversight obligations for the new controlled operation regime.

The purpose of this independent oversight process is to increase accountability and transparency, and to maintain public confidence in the conduct of controlled operations.

15HK Unauthorised disclosure of information

Section 15HK will create an offence of disclosing information relating to a controlled operation.  A person will be guilty of this offence if he or she intentionally discloses any relevant information and knows that, or is reckless as to whether, the information relates to an authorised controlled operation.

However, the disclosure of information relating to a controlled operation will not be an offence if the disclosure was made:

·       in connection with the administration or execution of this Part IAB of the Crimes Act

·       for the purposes of any legal proceeding arising out of, or otherwise related to this Part, or of any report of any such proceedings

·       to a legal practitioner for the purpose of obtaining legal advice in relation to the controlled operation

·       in accordance with any requirement imposed by law

·       in connection with the performance of functions or duties, or the exercise of powers, of a law enforcement agency, or

·       to the Ombudsman or ACLEI, about potential misconduct during controlled operations.

As is the case with the model laws, the person who disclosed the information will need to prove that these factors exist.  This is consistent with the Commonwealth criminal law policy that, where a matter is peculiarly within the knowledge of the defendant, and it is significantly more difficult for the prosecution to disprove that matter than for the defendant to establish it, it is appropriate to require the defendant to adduce evidence on the matter.  In this case, the ‘standard evidential burden’ defence is used, making the defendant bear the burden of adducing, or pointing to, evidence that suggests a reasonable possibility that the defence is made out.  If this is done, the prosecution must refute the defence beyond reasonable doubt.

The maximum penalty for this offence will be two years imprisonment.  This offence will help protect participants in controlled operations and ensure the integrity of investigations.

Section 15HL: Unauthorised disclosure of information—endangering safety, etc.

Section 15HL will create an aggravated form of the offence that will be created by new section 15HK.  The offence created by this section will be an indictable offence that will be committed if a person discloses information relating to a controlled operation and he or she:

·       intends that the disclosure of the information will endanger the health or safety of any person or prejudice the effective conduct of a controlled operation, or

·       is reckless as to whether the disclosure of the information could endanger the health or safety of any person or prejudice the effective conduct of a controlled operation.

As will be the case under new section 15HK, the disclosure will not be an offence if the disclosure was made:

·       in connection with the administration or execution of this Part IAB of the Crimes Act

·       for the purposes of any legal proceeding arising out of, or otherwise related to this Part, or of any report of any such proceedings

·       to a legal practitioner for the purpose of obtaining legal advice in relation to the controlled operation

·       in accordance with any requirement imposed by law

·       in connection with the performance of functions or duties, or the exercise of powers, of a law enforcement agency, or

·       to the Ombudsman or ACLEI, about potential misconduct during controlled operations.

As will be the case with the non-aggravated offence under new section 15HK, the person who disclosed the information will need to prove that these factors exist.  This is consistent with the Commonwealth criminal law policy that, where a matter is peculiarly within the knowledge of the defendant, and it is significantly more difficult for the prosecution to disprove that matter than for the defendant to establish it, it is appropriate to require the defendant to adduce evidence on the matter.  In this case, the ‘standard evidential burden’ defence is used, making the defendant bear the burden of adducing, or pointing to, evidence that suggests a reasonable possibility that the defence is made out.  If this is done, the prosecution must refute the defence beyond reasonable doubt.

The maximum penalty for this offence will be ten years imprisonment.

15HM Chief Officers’ 6 monthly reports to Ombudsman and Minister

Subsection 15HM(1) will provide that the chief officers of the authorising agencies (that is, the AFP, the ACC and ACLEI) must report, every six months, to the Commonwealth Ombudsman and the Minister.  The report must include details of all controlled operations authorised by the agency during the previous six months. This is consistent with a recommendation made by the Standing Committee on Legal and Constitutional Affairs in its report on the Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006.

Subsection 15HM(2) will require the following information to be included in each six monthly report:

·       the number of formal and urgent authorities applied for, granted and refused and the number of variations applied for, granted and refused, including the dates of those applications and decisions (paragraphs 15HM(2)(a)-(f) and (j)-(k))

·       the number of formal and urgent variations of authorities by nominated AAT members applied for, made and refused, including the dates of those applications and decisions (paragraphs 15HM(2)(g)-(h) and (l)-(m))

·       the nature of the criminal activities against which the authorised operations were directed (paragraph 15HM(2)(n))

·       the identities of the persons targeted (paragraph 15HM(2)(o))

·       the nature of controlled conduct engaged in (paragraph 15HM(2)(p))

·       details about the involvement of illicit goods in the operation (paragraph 15HM(2)(q))

·       details of any loss of or serious damage to property or personal injury (paragraphs 15HM(2)(r)-(s)), and

·       the number of expired or cancelled authorities (paragraph 15HM(2)(t)).

The final five categories of information set out above will not need to be included where the operation has not been completed.  These particulars must be included in the report for the period of six months in which the operation is completed.

Subsection 15HM(2) will also require the report to contain the following details of controlled operations occurring during the six month period, by reference number:

·       date commenced (paragraph 15HM(2)(i))

·       date of formal or urgent variation (paragraph 15HM(2)(j))

·       date of formal or urgent extension (paragraphs 15HM(2)(j) and (l)), and

·       date ceased or expiry date if the operation has not ceased (paragraph 15HM(2)(i)).

These details will enable the Ombudsman and the Minister to effectively follow operations from report to report.

Subsection 15HM(3) will empower the Ombudsman to require the chief officer of each agency to furnish additional information on any authorised operation contained in the report.

15HN Chief officers’ annual report to Minister and Ombudsman

Section 15HN will require the chief officer of each authorising agency (that is, the AFP, the ACC or 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 this new Part IAB of the Crimes Act.  The report will be required to contain the details set out at subsection 15HM(2) for all the controlled operations authorised by the agency during the previous 12 months.

Subsection 15HN(4) will provide that the report must not disclose any information that identifies, or is likely to identify, any person involved in the controlled operation.  This requirement is designed to protect innocent third parties who provide assistance to a controlled operation and who, if mentioned in the report, may be incorrectly presumed to be involved in criminal activity.

Subsection 15HN(5) will provide that the report is not required to disclose any information that gives particulars of an authorised operation that is not yet completed.  Those particulars must instead be included in the report for the year in which the operation is completed.

Subsection 15HN(3) will require the Minister to table the report in both Houses of the Australian Parliament within 15 days of receiving the report.  However, subsection 15HN(2) will require the chief officer of each authorising agency to advise the Minister of any information that should be excluded from the report before it is tabled in Parliament, because it could reasonably be expected to endanger a person’s safety, prejudice an investigation or prosecution, compromise operational activities or methodologies, or be contrary to the public interest for any other reason.  If the Minister is satisfied that the information should be excluded on any of those grounds, he or she must exclude the information before tabling the report in Parliament.

Subsection 15HN(6) will provide that, if the report refers to the activities of the ACC under a corresponding State or Territory controlled operation law (as defined at section 15GC) the Minister must send a copy of the tabled report to the State or Territory Minister with responsibility for the corresponding law.

15HO Annual report by Ombudsman

Section 15HO will require the Commonwealth Ombudsman to prepare an annual report, as soon as practicable after 30 June each year, on the work and activities of the Ombudsman under this new Part IAB of the Crimes Act.  The Commonwealth Ombudsman will also be required to prepare a separate annual report on its activities in relation to controlled operations conducted by the ACC under corresponding State controlled operations laws (as defined at section 15GC). 

The Ombudsman’s function under this Part of the Crimes Act will be to ensure that authorising agencies (that is, the AFP, the ACC and ACLEI) are accountable for the conduct of controlled operations and comply with the requirements of the legislation.  The Ombudsman’s powers are exercised independently and with sensitivity to police operational security and other operational matters.

The Ombudsman must give a copy of the reports required under this section to the Minister and to the chief officer of the law enforcement agency (as defined at section 15GC) to which the report relates.

Subsection 15HO(2) will provide that the report must not include information that could reasonably be expected to endanger a person’s safety, prejudice an investigation or prosecution, or compromise operational activities or methodologies.

Subsection  15HO(4) will provide that the report must include comments on the comprehensiveness and adequacy of the chief officer’s six-monthly and annual reports provided under new sections  15HM and 15HN. 

Subsection  15HO(5) will provide that the report must not disclose any information that identifies, or is likely to identify, any person involved in the controlled operation.  This requirement is designed to protect innocent third parties who provide assistance to a controlled operation and who, if mentioned in the report, may be incorrectly presumed to be involved in criminal activity. 

Subsection 15HO(6) will provide that the report is not required to disclose any information that gives particulars of an authorised operation that is not yet completed.  Those particulars must instead be included in the report for the year in which the operation is completed.

Subsection 15HO(3) will require the Minister to table the report in Parliament within 15 sitting days of receiving the report. 

Subsection 15HO(7) will provide that, if the report refers to the activities of the ACC under a corresponding State controlled operations law (as defined at section 15GC) the Minister must send a copy of the tabled report to the State or Territory Minister with responsibility for the corresponding law.

15HP Keeping documents connected with authorised operations

Section 15HP will set out a list of documents that must be kept by the chief officer of each authorising agency (that is, the AFP, ACC and ACLEI).  These documents will include:

·       controlled operations applications, authorities and variations, whether formal or urgent (paragraphs 15HP(a)-(i)), and 

·       cancellations of authorities (paragraph 15HP(j)).

These documents will form the basis of the six-monthly, and annual, reports that the chief officer of each authorising agency will be required to submit to the Ombudsman and the Minister under new sections 15HM and 15HN.  They will also assist the Ombudsman to assess the agency’s compliance with the requirements of this new Part of the Crimes Act.

15HQ General register

Section 15HQ will oblige the chief officer of each authorising agency (that is, the AFP, ACC and ACLEI) to ensure that a general register is kept of all controlled operations applications and authorities. 

Subsection 15HQ(2) will specify the information that must be recorded in the register.  This information will create a detailed profile of each authority, including critical factors such as:

·       when the authority was issued (paragraph 15HQ(2)(b))

·       whether (and when) it has been varied (paragraph 15HQ(2)(c))

·       the offences targeted by each operation (subparagraph 15HQ(2)(b)(iv))

·       the duration of the operation (subparagraph 15HQ(2)(b)(v))

·       the identity (whether a true identity, an assumed identity, or a code name or number) of each participant in the operation (subparagraph 15HQ(2)(b)(vi)) 

·       details of any illicit goods involved in the controlled operation (subparagraph 15HQ(2)(b)(xi)), and

·       details of any loss of, or damage to, property or any personal injury (subparagraphs 15HQ(2)(b)(xii)-(xiii)).

This provision will recognise the importance of keeping appropriate records to facilitate proper accountability and oversight of controlled operations.  This will greatly assist the Ombudsman in its oversight role.

Subsection 15HQ(3) will clarify that a controlled operations register is not a legislative instrument.  A ‘legislative instrument’ is defined at section 5 of the Legislative Instruments Act.  In general terms, a legislative instrument is a written document that is of a legislative character and that is made in the exercise of a power designated by Parliament.  Requirements relating to registering, tabling, scrutinising and sunsetting all Commonwealth legislative instruments are imposed under the Legislative Instruments Act.  Subsection 15HQ(3) will assist readers of the Crimes Act, so that they are aware that the requirements imposed by the Legislative Instruments Act do not apply to the register established under this section.

15HR Appointment of inspecting officers

Section 15HR will allow the Ombudsman to appoint members of the Ombudsman’s staff to be inspecting officers for the purposes of this new Part IAB of the Crimes Act.  An appointment must be in writing.

15HS Inspection of records by the Ombudsman

Section 15HS will require the Commonwealth Ombudsman to inspect the records kept by each authorising agency (that is, the AFP, the ACC and ACLEI) to determine the agency’s compliance with the requirements of this new Part IAB of the Crimes Act. 

Under subsection 15HS(2), the Ombudsman will also have responsibility for overseeing the ACC’s exercise of functions and powers conferred under corresponding State or Territory controlled operations laws (as defined at section 15GC), if the State or Territory law does not provide for oversight of the ACC by a State or Territory body, such as the NSW Ombudsman.

Subsection 15HS(3) will set out the powers of the Ombudsman in relation to the inspection of an authorising agency’s records.  This provision will specify that the Ombudsman may enter AFP, ACC or ACLEI premises at any reasonable time after notifying the chief officer of that agency (as defined at section 15GC).  The Ombudsman will then be entitled to full and free access at all reasonable times to all relevant records of these agencies, and may make copies of those records.  The Ombudsman will also have the power to require a member of staff of the agency to provide any information relevant to the inspection that is in their possession or to which the member has access.

Subsection 15HS(4) will provide that the chief officer of the relevant agency is obliged to ensure that members of the agency’s staff provide the Ombudsman with any assistance that the Ombudsman reasonably requires to enable it to perform its functions.

Subsection 15HS(5) will provide that the Ombudsman is not obliged to inspect agency records that relate to ongoing investigations.  This is to avoid interfering in a current operation and to ensure the safety of inspecting officers. 

15HT Power to obtain relevant information

Section 15HT will empower the Commonwealth Ombudsman to require a law enforcement officer of any law enforcement agency (defined at section 15GC), whether or not the agency is able to authorise controlled operations under this Part IAB of the Crimes Act, to provide written information to the Ombudsman, at a specified place and within a specified period of time, if the Ombudsman has reason to believe that the law enforcement officer is able to give the requested information. 

Subsection 15HT(2) will provide that the Ombudsman must inform the law enforcement officer that he or she is required to provide this information by writing to him or her.  In most cases, law enforcement officers from whom information is sought will be officers who are, or have been, involved in the conduct of the controlled operation, or who have authorised or varied a controlled operation under section 15GI or 15GQ.

Subsection 15HT(3) will provide that the Ombudsman may also require a law enforcement officer to answer questions before a specified inspecting officer (as defined at section 15HR, this will be a member of the Ombudsman’s staff) at a specified place and within a specified period, or at a particular time on a specified day.  The Ombudsman must inform the law enforcement officer that he or she is required to answer questions by writing to him or her. 

Subsection 15HT(4) will also authorise the Ombudsman to require the chief officer of a law enforcement agency (as defined at section 15GC), or a person nominated by the chief officer, to answer questions before a specified inspecting officer, at a specified place and within a specified period, or at a particular time on a specified day.  The Ombudsman must inform the chief officer that he or she is required to answer questions by writing to him or her. 

The Ombudsman will only be permitted to require the chief officer to answer questions under subsection 15HT(4) if he or she has reason to believe that a law enforcement officer of the chief officer’s agency, whose identity is unknown to the Ombudsman, is able to give information relevant to an inspection.

Subsection 15HT(5) will provide that the place, period and time of the day specified in any written notification of a requirement to provide information or answer questions must be reasonable having regard to the circumstances.

15HU Offence

Section 15HU will create an offence of refusing to attend before an inspecting officer (as defined at section 15HR, this will be a member of the Ombudsman’s staff) to give information, or to answer questions, when required to do so under new section 15HT.  The maximum penalty for this offence will be imprisonment for six months.

15HV Ombudsman to be given information and access despite other laws

Section 15HV will provide that a person is not excused from giving information, answering a question, or giving access to a document, as and when required under this Division 4 of new Part IAB of the Crimes Act, on the ground that doing so:

·       would contravene a law

·       would be contrary to the public interest

·       might incriminate the person or make him or her liable to a penalty, or 

·       would disclose information that is protected by legal professional privilege.

However, any information provided by a person under this new Division will not be admissible in evidence against the person, except in the prosecution of the person for an offence against new sections 15HK or 15HL (which relate to the unauthorised disclosure of information relating to a controlled operation) or Parts 7.4 or 7.7 of the Criminal Code (which create offences relating to making false and misleading statements and forgery).

Subsection 15HV(3) will clarify that new sections 15HK or 15HL, or any other law, do not prevent an officer of a law enforcement agency from giving information to an inspecting officer (as defined at section 15HR, this will be a member of the Ombudsman’s staff) for the purposes of an inspection of the agency’s records under this Division.

Subsection 15HV(4) will build on subsection 15HV(3) by providing that nothing in sections 15HK or 15HL, or any other law, prevents an officer of a law enforcement agency from making a record of information, or causing a record of information to be made, for the purposes of giving the information to an inspecting officer as permitted by subsection 15HV(3).

Subsection 15HV(5) will clarify that where a person has provided information, produced a document or answered a question under this new  Division, this does not otherwise affect a claim of legal professional privilege that anyone may make in relation to that information, document or answer.

15HW Exchange of information between Ombudsman and State inspecting authorities

Sections 15HW and 15HX will allow the Commonwealth to develop more effective and consistent inspection arrangements with other inspecting bodies, particularly State Ombudsman.

Subsection 15HW(1) will define State or Territory agency and State or Territory inspecting authority for the purposes of section 15HW.

Subsection 15HW(2) will authorise the Ombudsman to give information that relates to a State or Territory agency, that was obtained by the Ombudsman under this Division, to the relevant State or Territory inspecting authority. 

Subsection 15HW(3) will provide that information can only be provided to a State or Territory inspecting authority if  the Ombudsman believes that the information is necessary for the inspecting authority to perform its functions in relation to the State or Territory agency.

Subsection 15HW(4) will allow the Ombudsman to receive information relevant to the performance of the Ombudsman’s functions under this Division from a State or Territory inspecting authority.

15HX Delegation by Ombudsman

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. 

Subsection 15HX(1) will provide that the delegation may be to an APS employee responsible to the Ombudsman, or to a person having similar oversight functions to the Ombudsman under the law of a State or Territory (or an employee of that person).  For example, the Ombudsman could delegate his or her powers to the Parliamentary Crime and Misconduct Commissioner in Queensland or an independent member of the controlled operations committee established under the Police Powers and Responsibilities Act 2000 (Qld).  The delegation can be of a general nature or be exercised within terms provided by an instrument of delegation.

Subsection 15HX(2) will provide that a delegate under this Division is to provide a copy of the delegation instrument for inspection by a person who is affected by the exercise of any delegated power, if that person asks to see it.

15HY Ombudsman not to be sued

Section 15HY will give the Ombudsman, an inspecting officer (as defined at section 15HR, this will be a member of the Ombudsman’s staff), or a person acting under an inspecting officer’s direction or authority, immunity from any action, suit or proceeding for an act or omission that was done in good faith in the performance or exercise of a function or power conferred under this new Division.

Division 5—Miscellaneous

15HZ Evidence of authorities

Section 15HZ will enable an authority granted under new section 15GI, or under a corresponding State controlled operations law (as defined at section 15GC) to be tendered in evidence in legal proceedings. 

Paragraph 15HZ(b) will provide that, in the absence of evidence to the contrary, the authority will be proof that the person who granted the authority was satisfied of the facts that he or she was required to be satisfied of to grant the authority.

15J Chief Executive Officer of Customs to be notified of certain authorities

Section 15J will ensure that Customs is notified of any authorised controlled operation where it is believed that the operation will involve illicit goods passing through the customs barrier.  The applicant for the controlled operation must forewarn Customs in such cases.

Subsection 15J(1) will require Customs to be notified if:

·       an authority to conduct a controlled operation is granted under new section 15GI, and

·       the applicant for the authority believes that illicit goods involved in the conduct of the operation may be dealt with by Customs.

In such cases, subsection 15J(2) will require the applicant, as soon as the authority is granted, to notify the Chief Executive Officer of Customs, in writing, of:

·       the applicant’s name

·       the date on which the authority was granted, and

·       to the extent to which it is known, the place/s and time/s at which the illicit goods will pass into the control of Customs.

Subsection 15J(3) will provide that a failure to comply with this section does not affect the validity of an authority to conduct a controlled operation issued under section 15GI.

Part IAC - Assumed Identities

 

15K Definitions

Section 15K will define terms associated with the new assumed identities regime.  The key definitions will be:

 

authorised civilian will be defined as a person, who is not a foreign officer, or an officer of a law enforcement agency or an intelligence agency, who is authorised, by an authority granted under new section 15KB, to acquire or use an assumed identity. 

An assumed identity is a false identity that is used, most commonly by law enforcement officers and intelligence officers, but sometimes by security officers and civilians, for the purpose of investigating an offence, gathering intelligence or conducting other security activities.

New subsection 15KB(3) will provide that if a civilian is authorised to acquire and use an assumed identity, a law enforcement officer or an intelligence officer must be appointed to supervise the civilian.

‘Foreign officer’, ‘intelligence agency’, ‘law enforcement agency’ and ‘supervisor’ will also be defined in this section.

 

authorised foreign officer    - a ‘foreign officer’ will be defined in this section as an officer of a law enforcement, intelligence or security agency of a foreign country.  An ‘authorised foreign officer’ will be a foreign officer who is authorised, by an authority granted under new section 15KB, to acquire or use an assumed identity. 

‘Law enforcement agency’ and ‘intelligence agency’ will also be defined in this section.

 

authorised intelligence officer   - an intelligence officer’ will be defined in this section as an officer of the Australian Security Intelligence Organisation (ASIO), or a staff member of the Australian Secret Intelligence Service (ASIS).  An ‘authorised intelligence officer’ will be an intelligence officer who is authorised, by an authority granted under new section 15KB, to acquire or use an assumed identity.

 

authorised law enforcement officer   - a ‘law enforcement officer’ will be defined in this section as an officer or staff member of a ‘law enforcement agency’, which will be defined in this section as the Australian Federal Police (AFP), Customs, the Australian Crime Commission (ACC), the Australian Commission for Law Enforcement Integrity (ACLEI), the Australian Taxation Officer (ATO), or another Commonwealth agency that is specified in regulations.

An ‘authorised law enforcement officer’ is a law enforcement officer who is authorised, by an authority granted under new section 15KB, to acquire or use an assumed identity.

 

authorised person will be defined as a person who is authorised, by an authority granted under new section 15KB, to acquire or use an assumed identity.  An authorised person will usually be a law enforcement officer or an intelligence officer, but in some cases may be a civilian or a foreign officer.  

‘Law enforcement officer’, ‘intelligence officer’, ‘foreign officer’, and ‘authorised civilian’ will also be defined in this section.

 

chief officer will be defined as the head of an intelligence agency, an issuing agency or a law enforcement agency.

 

Chief officers of law enforcement agencies or intelligence agencies will have a number of responsibilities in the new assumed identities regime, including:

·       authorising the acquisition and use of an assumed identity (section 15KB)

·       varying or cancelling an authority to acquire and use an assumed identity (section 15E), and

·       arranging audits, keeping appropriate records and submitting reports on their agency’s use of assumed identities (sections 15LD to 15LG).  

 

A chief officer may delegate functions that relate to the granting, variation, transfer or cancelling of authorities, in accordance with section 15LH. 

‘Intelligence agency’, ‘issuing agency’ and ‘law enforcement agency’ will be defined in this section.

 

Commonwealth government issuing agency will be defined as a Commonwealth agency that issues evidence of identity (such as passports, tax file numbers etc) and that is named in an authority to acquire and use an assumed identity that is granted under section 15KB. 

 

corresponding assumed identity law will mean a law, or a part of a law, of a State or Territory that is prescribed by the regulations to be a corresponding assumed identity law.  

The mutual recognition provisions in Division 5 of this new Part IAC of the Crimes Act will allow Commonwealth law enforcement agencies and intelligence agencies to make requests for assumed identity documents to a participating jurisdiction, and for a participating jurisdiction to make requests for assumed identity documents to a Commonwealth agency. 

‘Participating jurisdiction’ will be defined in this section as a jurisdiction in which a ‘corresponding assumed identity law’ is in force.  As a result, the prescription of such laws under the regulations will facilitate the seamless acquisition and use of an assumed identity throughout Australia.

 

corresponding authority will mean an authority to acquire and use, or request the production of evidence of, an assumed identity, which is granted under a ‘corresponding assumed identity law’ (explained above). 

The mutual recognition provisions in Division 5 of this new Part IAC of the Crimes Act will provide for corresponding authorities to be recognised as if they were granted under new Part IAC.

 

evidence of identity will be defined broadly to cover a variety of documents or other things that can be used to indicate a person’s identity.  The definition illustrates the types of documents or things that are commonly used to establish a person’s identity, such as driver’s licences and passports.  The list contained in the definition is non-exhaustive, that is, it does not purport to include all the documents or things that might be regarded as evidence of identity.

 

foreign officer will be defined as an officer of a law enforcement, intelligence or security agency of a foreign country.  

intelligence agency will be defined as ASIO and ASIS.

 

issuing agency means an agency that issues evidence of identity.  Persons authorised to acquire or use assumed identities may be authorised to acquire documentation from both Commonwealth government issuing agencies (such as Medicare or the ATO), non-Commonwealth government issuing agencies (such as banks or other financial institutions) and/or State and Territory issuing agencies (such as the NSW Roads and Traffic Authority).

 

law enforcement agency will be defined as the AFP, Customs, the ACC, ACLEI, the ATO, or another Commonwealth agency that is specified in regulations.

 

National Witness Protection Program means the program established by the Witness Protection Act 1994 for the protection of people who are perceived to be in danger by reason of their testimony, or by having made a statement, and those who are related to, or associated with, such people.  This new Part IAC of the Crimes Act will specifically allow AFP officers to obtain assumed identities for the purpose of performing their roles under the National Witness Protection Program (NWPP).

 

supervisor will be defined as the person in a law enforcement agency or an intelligence agency who is appointed, under subsection 15KB(3), to supervise a civilian who is authorised to acquire or use an assumed identity.  All authorised civilians will have an appointed supervisor.

 

Division 2—Authority for Assumed Identity

 

15KA Application for authority to acquire or use assumed identity

 

Section 15KA will provide a formal application process for acquiring or using an assumed identity.  Specifically, it will provide that a law enforcement or intelligence officer may apply in writing to a chief officer of a law enforcement or intelligence agency for an authority to acquire and/or use an assumed identity.  (‘Law enforcement officer’, ‘intelligence officer’, ‘chief officer’, ‘law enforcement agency’ and ‘intelligence agency’ will be defined at section 15K.)

 

Law enforcement and intelligence officers will be able to make an application to acquire and use an assumed identity on behalf of themselves, a colleague, a foreign officer, or a civilian.  (A ‘foreign officer’ will be defined at section 15K as an officer of a law enforcement, intelligence or security agency of a foreign country.) 

 

If the assumed identity is to be acquired and/or used in Australia by someone other than a foreign officer, the applicant will be able to make the application to the chief officer of his or her own agency. 

 

Any application by a law enforcement officer (other than ACC officer) for the use of an assumed identity in a foreign country, or on behalf of a foreign officer, must be made to the chief officer of the AFP.  The AFP’s established relationships with foreign law enforcement agencies means that it can obtain the appropriate authorisations to protect Australian officers using an assumed identity in a foreign country from criminal prosecution or civil liability.  For similar reasons, ACC officers and intelligence officers will be able to apply to the chief officers of their agencies to use an assumed identity in a foreign country or for a foreign officer to use an assumed identity in Australia.

 

Subsection 15KA(5) will specify the information that must be contained in an application to acquire or use an assumed identity.  The application will be required to provide the name of the person making the application, as well as the name of the person to be authorised to acquire or use the assumed identity.  This is necessary because the applicant may not always be the person who is to acquire and use the assumed identity.  For example, it may be necessary in an investigation for a civilian to acquire and use an assumed identity.  In such cases, the application will also be required to provide details of the law enforcement or intelligence officer who will be appointed as the civilian’s supervisor. 

 

New subsection 15KB(3) will provide that if a civilian is authorised to acquire and use an assumed identity, a law enforcement officer or an intelligence officer must be appointed to supervise the civilian.  The supervisor will manage the civilian’s acquisition and use of the assumed identity.  This requirement reflects the need for persons who are not law enforcement, intelligence, or foreign officers to be under the command and direction of a professional with relevant expertise and experience.  Subparagraph 15KA(5)(b)(iii) will also require applications seeking an authority for a civilian to acquire or use an assumed identity to justify why it is necessary for a person who is not a law enforcement officer, intelligence officer or foreign officer to acquire or use an assumed identity. 

 

All applications will have to explain why the assumed identity is needed (subparagraph 15KA(5)(b)(v)). 

 

If the assumed identity is sought for the purpose of investigating or gathering intelligence about criminal activity, subparagraph 15KA(5)(b)(vi) will provide that the application must include details of the investigation or intelligence-gathering exercise in which the assumed identity will be used (to the extent that this information is known at the time).  In some cases, it may not be possible for the information sought by subparagraph 15KA(5)(b)(vi) to be provided in the application. The operational realities of undercover work often require an operative to obtain one or more assumed identities prior to using the identity in the field.  This is necessary to allow sufficient time for the operative to create a realistic history for the assumed identity.  As a result, at the time of the application, the specific context in which the assumed identity will be used may be unknown.

 

Applications will be required to set out the type of identity evidence that is needed to support the assumed identity and the agencies from which the identity evidence will be sought.  Additionally, the application will be required to contain information about any proposal to apply to have an entry recorded in a register of births, deaths and marriages under a corresponding assumed identity law of a State or Territory (subparagraph 15KA(5)(b)(viii)).  This will enable all entries to be tracked to  ensure that any entry is justified and necessary in the circumstances.

 

To ensure that applications are determined on the basis of all relevant material, subsection 15KA(6) will allow the chief officer (or his or her delegate) to require the applicant to provide any additional information that the chief officer (or delegate) deems necessary.

 

The requirements that will be imposed by this section, as well as the compliance and monitoring provisions in Division 6 of this new Part IAC of the Crimes Act, will provide the checks and balances necessary to prevent abuse of the power to obtain and use an assumed identity and ensure that use of assumed identities is confined to proper purposes.

 

15KB Determination of applications

 

Section 15KB will permit the chief officer to whom an application is made under section 15KA (or his or her delegate) to grant an ‘authority’ to acquire or use an assumed identity, and to impose conditions on the authority. 

 

Subsection 15KB(2) will provide that the chief officer may not grant an authority to acquire or use an assumed identity unless he or she is satisfied on reasonable grounds that the assumed identity is necessary for one or more of the following purposes:

·       investigation of, or intelligence gathering in relation to, criminal activity

(In considering whether the authority is necessary for the purposes of an investigation or for gathering intelligence in relation to criminal activity, it will not be necessary to point to a specific criminal activity.  The operational realities of undercover work often require an operative to obtain one or more assumed identities prior to using an identity in the field.  This is necessary to allow sufficient time for the operative to create a realistic history for the assumed identity.  As a result, at the time of the application, the specific context in which the assumed identity will be used may be unknown.)

·       the exercise of powers and the performance of functions of an intelligence agency

·       the exercise of powers and the performance of functions of the NWPP

·       training people for any of the above-mentioned purposes, or

(Considerable training is required to prepare a person to use an assumed identity before they are sent into an undercover situation.  This training is done covertly, and both the instructors and students may use assumed identities for all, or part of, the training.) 

·       providing an administrative function to support any of the above-mentioned purposes (including training).

(It is important to ensure that certain administrative functions cannot be traced back to the law enforcement agency, for example, depositing money into an undercover operative’s bank account.  If transactions are able to be traced to an account operated by the law enforcement agency, the operative could be placed in significant danger.  As such, a number of these administrative functions are undertaken using an assumed identity.)

 

The chief officer must also be satisfied on reasonable ground that the person who would be authorised to acquire and/or use an assumed identity would be unlikely to abuse that identity.

 

In addition, if the assumed identity is to be acquired or used by a civilian, the chief officer must also be satisfied on reasonable grounds that the circumstances necessitate a civilian acquiring or using an assumed identity rather than a law enforcement or intelligence officer.  This will ensure that the use of civilians, who would usually not have the same high level of training as law enforcement or intelligence officers, is carefully considered by authorising officers.

 

If the chief officer authorises a civilian to acquire or use an assumed identity, he or she will be required to appoint a law enforcement or intelligence officer as a supervisor.  Subsection 15KB(4) will set out the minimum rank or position that a supervisor will need to hold in each agency.

 

Subsection 15KB(5) will provide that, in granting the authority, the chief officer may also authorise:

·         an application, under a corresponding law, to a State or Territory Supreme Court for an entry to be made in the relevant register of births, deaths and marriages

·         a request to an issuing agency (as defined at section 15K, this may be a government or non-government agency) for evidence to support an assumed identity (eg a passport or a driver’s licence), or

·         the use of an assumed identity in a foreign country.

 

Subsection 15KB(6) will provide that a chief officer may only approve a request to use an assumed identity in a foreign country if he or she is satisfied that it is reasonably necessary to do so.  This requirement is in addition to the other requirements that will need to be considered when deciding whether to issue an authorisation for an assumed identity.  This reflects the need to ensure that an assumed identity is not used in a foreign country unless all relevant matters (eg the inability to exempt an Australian from the operation of the laws of a foreign country) have been taken into account and there is a clear need for the assumed identity to be used that way.  It should be noted that this will not affect any obligation to obtain authority in the foreign country to use the assumed identity in that jurisdiction.

 

A separate approval will be required for every assumed identity.  This will facilitate the audit process under new section 15LG.  It will also ensure that the chief officer gives appropriate consideration to the need for the acquisition and use of each assumed identity.

Subsection 15KB(8) will clarify that an authority to acquire or use an assumed identity granted under this section is not a legislative instrument.  A ‘legislative instrument’ is defined at section 5 of the Legislative Instruments Act 2003 .  In general terms, a legislative instrument is a written document that is of a legislative character and that is made in the exercise of a power designated by Parliament.  Requirements relating to registering, tabling, scrutinising and sunsetting all Commonwealth legislative instruments are imposed under the Legislative Instruments Act.  Subsection 15KB(8) has been included to assist readers of the Crimes Act, so that they are aware that the requirements imposed by the Legislative Instruments Act do not apply to authorities issued under this section.

 



15KC Form of authority

 

Section 15KC will specify the form that an authority to acquire or use an assumed identity must take, and the details to be included in each authority. 

 

Subsection 15KC(1) will provide that an authority must be in writing and signed by the person granting the authority (i.e. the chief officer, or his or her delegate). 

 

Subsection 15KC(2) will set out the detail that each authority must contain.

 

If the person authorised to use the assumed identity is a civilian, the authority must contain the name of the law enforcement or intelligence officer who has been appointed as the civilian’s supervisor under the authority.  This requirement reflects new subsection 15KB(3), which will provide that if a civilian is authorised to acquire and use an assumed identity, a law enforcement officer or an intelligence officer must be appointed to supervise the civilian.  The supervisor will manage the civilian’s acquisition and use of the assumed identity.  This recognises the need for persons who are not law enforcement, intelligence, or foreign officers to be under the command and direction of a professional with relevant expertise and experience.  Subparagraph 15KA(5)(b)(iii) will also require applications seeking an authority for a civilian to acquire or use an assumed identity to justify why it is necessary for a person who is not a law enforcement officer, intelligence officer or foreign officer to acquire or use an assumed identity. 



Where the authority relates to a civilian, it must also state the period that it will remain in force.  In the case of a civilian whose supervisor is a law enforcement officer, this period may not exceed three months (subparagraph 15KC(2)(h)(iii)).  The authority for a civilian whose supervisor is an intelligence officer will remain in force until cancelled (see new section 15KD). This difference reflects the different operational contexts for civilians involved in law enforcement and intelligence operations. Law enforcement agencies are likely to require the assistance of a civilian in the context of a specific investigation of more defined duration, while intelligence agencies may require the assistance of a civilian in intelligence activities occurring over many years.

 

Paragraph 15KC(2)(d) will require the authority to detail the evidence of the assumed identity that may be acquired under the authority (eg driver’s licence, passport etc).  Once these initial documents of identity have been created and provided to the authorised person, he or she will then be able to use the assumed identity as if it was their true identity.  In other words, once primary identification documents such as a passport have been obtained, they will be able to be used to obtain other documents and things to substantiate an identity without notifying the agency providing that secondary document or thing that the identity is an assumed identity.  For example, the initially obtained documents of identity could be able to be used to open a bank account, obtain a video/DVD rental card, or to apply for benefits, such as social security payments from Centrelink, in the assumed name.  The requirement that the form of authority be required to specify each issuing agency that can be requested to produce evidence to substantiate the assumed identity is an important mechanism for tracking the identity documents acquired and safeguarding the regime from abuse.

 



15KD Period of authority

 

Section 15KD will set out the period of time for which an authority for an assumed identity is valid. 

 

An authority for a law enforcement, intelligence, or foreign officer or a civilian whose supervisor is an intelligence officer will remain in force until it is cancelled (an authority will be able to be cancelled under new section 15KE).  This will allow flexibility for operational purposes.  For example, during an undercover operation, it may be necessary to acquire and use an assumed identity for a certain period of time.  However, it may be necessary to discontinue the assumed identity at some stage in the operation before starting to use that identity again at a later date.

 

To ensure that there is a sufficient level of oversight and accountability for each authority, new section 15KF will require the chief officer of the law enforcement agency to annually review each authority for which the agency has responsibility.  That provision will also require the chief officer of an intelligence agency to review an authority for which they have responsibility every three years. 

 

An authority in relation to a civilian whose supervisor is a law enforcement officer will remain in force for the period of time specified in the authority under new subparagraph 15KC(3)(h)(iii).  This period of time may not be longer than three months.  An assumed identity will only be granted to a civilian in circumstances where it is impossible or impracticable for a law enforcement officer to acquire or use the assumed identity.  As such, it is appropriate that civilians only act under the assumed identity for a limited period of time.

 

For a civilian whose supervisor is an intelligence officer, the authority will remain in force until it is cancelled.  However, these authorities will be reviewed annually, as the agency will have an obligation to ensure the continued protection and supervision of the civilian operative.  In conducting the review, the chief officer will have a responsibility to terminate the assumed identity as soon as the particular operation, or role of the civilian, has concluded. 

 

15KE Variation or cancellation of authority

 

Section 15KE will permit the chief officer of an agency to vary or cancel any authority granted by his or her agency.  In addition, paragraph 15KW(3)(a) will provide that an authority may also be cancelled by the chief officer of an agency to which the authority has been transferred under section 15KV. 

 

It is important that a chief officer is able to vary an authority, as this flexibility is needed to address any contingencies that might arise.  For example, the need might arise to obtain assumed identity evidence from additional government or non-government agencies that were not listed on the original authority.

 

Section 15KE will require the chief officer to cancel the authority where it is no longer needed.

 

The provision will specify the process to vary or cancel an authority, namely by written notice, and when it is deemed to take effect.  Subsection 15KE(4) will clarify that the notice to vary or cancel an authority will take effect either on a date specified in the notice, or on the day it is given to the person who is authorised to acquire or use an assumed identity, or that person’s supervisor (if the authorised person is a civilian), whichever is the later of the two. 

 

It is important that authorised persons are properly notified of any changes to authorities, where practicable, as the protection from civil and criminal liability in new sections 15KS and 15KQ will only apply to acts done in accordance with an authority.

 

In some cases it will not be practicable for the authorised person to be notified of the variation or cancellation, for example if the person is missing.  In these circumstances, the agency will have to decide whether to cancel the authority.  However, the authorised person will still have protection from civil and criminal liability with respect to their assumed identity as long as they are not reckless about the existence of the cancellation of this identity (see new section 15KU).

Subsection 15KE(5) will clarify that a variation or cancellation of an authority to acquire or use an assumed identity  granted under this section is not a legislative instrument.  A ‘legislative instrument’ is defined at section 5 of the Legislative Instruments Act 2003 .  In general terms, a legislative instrument is a written document that is of a legislative character and that is made in the exercise of a power designated by Parliament.  Requirements relating to registering, tabling, scrutinising and sunsetting all Commonwealth legislative instruments are imposed under the Legislative Instruments Act.  Subsection 15KE(5) has been included to assist readers of the Crimes Act, so that they are aware that the requirements imposed by the Legislative Instruments Act do not apply to authorities issued under this section.

 

Section 15KE will reflect the policy of the model law provision, with some adjustments in drafting to further clarify when a variation of an authority is deemed to take effect.

 

15KF Yearly review of authority

 

Section 15KF will require the chief officer of a law enforcement agency to review, every 12 months, each authority that was either granted by the chief officer, or his or her delegate, or is in the control of the law enforcement agency as a result of a transfer under new section 15KV.  The purpose of the annual review is to assess whether the use of the assumed identity is still necessary. 

 

Section 15KF will also impose a requirement on the chief officer of an intelligence agency to review each authority that was either granted by the chief officer, or his or her delegate, or is in the control of the agency as a result of a transfer under new section 15KV.  However, an intelligence agency will only need to review an authority every three years, except authorities granted to civilians or foreign officers, which must be reviewed at least once every 12 months.  Intelligence agencies use of assumed identities is also subject to oversight by the Inspector-General of Intelligence and Security.

 

If the chief officer is satisfied that the assumed identity is no longer needed, he or she will be required to cancel the authority under new section 15KE.  If the chief officer determines that the assumed identity is still necessary, he or she will have to record the reasons for that decision in writing.  Requiring the recording of reasons will support the integrity of the review process by ensuring that the person reviewing the authority is aware of the justification for the continuation of the authority.

 

Section 15KF will adopt the model provision, with an extension to cover authorisations issued by chief officers of intelligence agencies.  This provision was included in the model laws to safeguard against authorisations continuing in force for an unlimited period.  However, subsection 15KF(6) will clarify that any failure on the part of the chief officer (or their delegate) to either conduct a review, determine whether a particular authority should be cancelled or not, or record reasons for continuing an authority does not effect the status of the authority.

 

15KG Making entries in register of births, deaths or marriages

 

To facilitate the creation of a credible identity, section 15KG will authorise chief officers of law enforcement or intelligence agencies to apply, under a corresponding assumed identity law (as defined at section 15K) to a State or Territory Supreme Court for an order for an entry to be made in the relevant register of births, deaths and marriages (BDM register). 

 

There is no BDM register at the Commonwealth level.  The Commonwealth will therefore have to rely on the power provided under the mutual recognition provisions of State and Territory corresponding laws to request the relevant Supreme Court to authorise the required entry in that jurisdiction’s BDM register.  As BDM registers contain essential identifying information, it is important to have the additional safeguard of judicial oversight before an entry can be made in the register for the purpose of creating an assumed identity.

 

As part of the process of creating a robust assumed identity, it may also be necessary to create entries in a BDM register for fictitious ‘parents’ or other ‘relatives’ of the assumed identity.  This will assist in substantiating the background and credibility of the assumed identity.  The model laws intend that such entries should be allowed to be made where appropriate.



15KH Effect of authority ceasing to be in force on register of births, deaths or marriages

 

Section 15KH will apply where:

·         there is an entry in the BDM register of a State or Territory that relates to an assumed identity authorised under this new Part IAC of the Crimes Act, and

·         the authority for that assumed identity ceases to be in force (for example, the authority is cancelled under new section 15KE).

In these circumstances, the chief officer of the relevant agency will be required to apply, under the corresponding assumed identity law (as defined at section 15K) of the State or Territory, for an order authorising the cancellation of the relevant entry in the relevant BDM register.  This application must be made within 28 days of the authority ceasing to be in force. 

 

Division 3-Evidence of Assumed Identity

 

15KI Request for evidence of an assumed identity 

 

An authority to acquire or use an assumed identity issued under section 15KB may authorise a request to be made to an issuing agency under this provision.  If the authority includes such an authorisation, the chief officer who granted the authority may request the chief officer of an issuing agency to produce evidence to support the creation of the assumed identity.  A request to an issuing agency may only be made if the authority authorises a request to that agency.  ‘Issuing agency’ will be defined at section 15K to mean any government or non-government agency, such as a bank, that issues evidence of identity.  ‘Evidence of the assumed identity’ will be defined broadly at section 15K to cover a variety of documents including passports, tax file numbers, credit/bank cards and Medicare cards.

 

Section 15KI will implement the model law provision, with a modification so that it also covers intelligence agencies. 

 

Section 15KI will also specify the information that must be contained in the request to the issuing agency, including:

·         details about when the authority was made

·         details of the assumed identity, and

·         the evidence sought, to assist the issuing agency in producing the appropriate identity evidence.

 

To ensure the safety of the person who is authorised to acquire or use an assumed identity, and avoid compromising the operation in which they are involved, the information required to be included in a request to an issuing agency may be quite general.

 

The model laws only provide for the evidence to be given to the person who has been authorised to acquire or use an assumed identity.  Section 15KI will also allow the evidence to be given to a law enforcement or intelligence officer, in order to protect the true identity of the authorised person.  Issuing agencies will not need to, and indeed often should not, know the true identity of the authorised person. In addition, the authorised person may not, for operational reasons, be able to personally collect the evidence.    

 

Section 15KI will not authorise a request to a State or Territory agency for evidence such as a false marriage certificate or birth certificate.  This type of evidence will be dealt with at section 15KG, which will set out the process for requesting entries in State and Territory registers of births, deaths and marriages.  

 

15KJ Government issuing agencies to comply with request

 

Section 15KJ will require the chief officer of a Commonwealth government issuing agency to comply with a request for assumed identity documents made under section 15KI.  This provision mirrors the model law provision. 

 

Compelling Commonwealth government agencies to comply with requests from law enforcement or intelligence agencies makes it clear that the decision to create an assumed identity rests with the law enforcement or intelligence agency, rather than the issuing agency.  This has the advantage of simplifying the position of Commonwealth government issuing agencies by obviating the need for them to have a decision-making role in the assumed identity process.

 

15KK Non-government issuing agencies may comply with request

 

Section 15KK will apply to non-Commonwealth government agencies that issue evidence of identity, such as financial institutions.  This provision will provide that the chief officer of a non-Commonwealth government issuing agency who receives a request for assumed identity documents under section 15KI may comply with the request, but is not required to do so.  It would not be appropriate for non-Commonwealth government bodies to be compelled to comply with requests to provide evidence of an assumed identity. 

 

For operational and security reasons, law enforcement and intelligence agencies may acquire identity evidence from non-government organisations covertly.  For example, government issued sources of identity, such as a passport, will be able to be used to acquire other identifying documents from non-government agencies.  This method of obtaining identity evidence will avoid alerting the non-government agency to the fact that the documentation is being acquired for an assumed identity.  Information relating to an assumed identity is extremely sensitive and relates directly to the personal security and safety of covert operatives and their families.  Some non-government issuing agencies will not be able to meet a reasonable level of security and confidentiality, or be able to provide adequate vetting of staff, to safely permit access to assumed identity information.

 

15KL Cancellation of evidence of assumed identity



Section 15KL will require the chief officer of any issuing agency (whether government or non-government) that has produced identity evidence pursuant to a request under this Part IAC of the Crimes Act, to cancel that evidence when directed to do so, in writing, by the chief officer of the agency that requested the evidence.  Subsection 15KL(2) will clarify that cancelling evidence includes deleting or altering an entry in a record of information. 

 

Paragraph 15KW(3)(c) will provide that if an authority has been transferred under new section 15KV, the chief officer of the agency to which the authority was transferred will be regarded, for the purposes of section 15KL, as the chief officer who requested the issuing agency to produce identity evidence.  As a result, that chief officer will be responsible for directing an issuing agency to cancel evidence under this section.  Note 2 to section 15KL directs the reader to section 15KW.

 

Section 15KL will mirror the model law provisions and is intended to terminate the effect of the evidence of identity that was issued. 

 

For logistical reasons, there is no requirement imposed on an issuing agency to physically retrieve the evidence of identity.  For example, cancelling a passport means that although the person may still possess the passport document, they cannot rely on it to travel into, and out of, Australia.

 

15KM Return of evidence of assumed identity

 

Section 15KM will allow the chief officer of a law enforcement or intelligence agency to request a person who was authorised to acquire or use an assumed identity to return any evidence of the assumed identity that was acquired under the authority, when the authority ceases to be in force.  An authority may cease to be in force because it has been cancelled, or, in the case of an authority granted to a civilian, because it has expired. 

 

Failure to comply with a request made under this provision will be an offence, which will be punishable by a fine.

 

Section 15KM is not a model law provision.  This offence has been created to guard against the misuse of assumed identities.  It will act as a deterrent to civilians or other authorised persons who may wish to retain, and continue to use, documentation or other evidence that substantiates false identities after the authority for the identity has ceased. 

 

15KN Protection from criminal liability-officers of issuing agencies

 

Officers and employees of issuing agencies who issue evidence that supports an assumed identity are essentially providing a person with false documentation, which may constitute a Commonwealth, State or Territory offence.  Section 15KN will protect these people from criminal liability for conduct that they have undertaken in response to a request under section 15KI or a direction under section 15KL.  Sections 15KI and 15KL will authorise a chief officer to request, or direct, an issuing agency to produce evidence of the type that is normally produced by that agency.

 

Section 15KN modifies the model law provision by clarifying that the protection from criminal liability applies to Commonwealth, State and Territory offences. 

 

15KO Indemnity for issuing agencies and officers

 

Section 15KO will require the Commonwealth to protect any issuing agency, and its officers, from any liability incurred as a result of responding to any request or direction under sections 15KI or 15KL.  Sections 15KI and 15KL will authorise a chief officer to request, or direct, an issuing agency to produce evidence of the type that is normally produced by that agency.  In both circumstances, the Commonwealth will be required to indemnify the issuing agency and its officers for any reasonable civil debt or cost incurred as a result of action to comply with the request or direction.

 

The extent of the Commonwealth’s liability will be limited to liability that arises as a direct result of the officer or agency complying with a request in the course of their duties and pursuant to the authority.  Further limitations may be set out in regulations.

 

Division 4 - Effect of Authority

 

15KP Assumed identity may be acquired and used

 

Section 15KP will allow a person to obtain and use an assumed identity if they have been authorised to do so under this new Part IAC of the Crimes Act and certain requirements are met. 

 

Authorised persons will only be able to obtain and use an assumed identity within the terms and scope of the particular authority.  For example, the authority specifies the type of evidence that may be obtained to substantiate the assumed identity and the purposes for which the assumed identity is to be used. 

 

Subparagraph 15KP(a)(ii) will also provide that law enforcement officers, intelligence officers and foreign officers may only acquire and use an assumed identity in the course of duty.  This requirement will not unnecessarily restrict covert operations but clarifies that the operative is only able to use the assumed identity in a manner consistent with their professional duties (i.e. not for personal reasons or gain). 

 

In the case of an authorised civilian, in addition to acting in accordance with the authority, the civilian must act in accordance with any direction issued by their supervisor.  This requirement will provide an extra level of protection and supervision by enhancing the level of control over the actions of the civilian. (New subsection 15KB(3) will provide that if a civilian is authorised to acquire and use an assumed identity, a law enforcement officer or an intelligence officer must be appointed to supervise the civilian.) 

 

Section 15KP reflects the model law provision.

 

 15KQ Protection from criminal liability-authorised persons

 

Section 15KQ will provide people who are authorised to acquire or use an assumed identity with protection from criminal liability for an act which, but for this provision, would be an offence.  This protection only applies if the act is done in the course of acquiring or using an assumed identity in accordance with the lawful authority.

 

In the case of an authorised law enforcement, intelligence or foreign officer, in order to be protected from criminal liability, the act must be done in the course of the officer’s duty.  In the case of an authorised civilian, in order to be protected from criminal liability the act must be done in accordance with any directions given by the civilian’s supervisor.

 

For example, it is an offence for a person to receive a government unemployment benefit if they are not unemployed.  However, in order to substantiate an assumed identity, the authorised officer may be authorised to receive unemployment benefits despite being employed by the relevant law enforcement or intelligence agency.  This provision will ensure that the authorised person is not criminally liable for claiming benefits while receiving a salary.

 

However, paragraph 15KQ(c) will clarify that the protection from criminal liability is only available for conduct that would not constitute an offence if the assumed identity was the person’s real identity.  In other words, acting under an assumed identity will not authorise the commission of other offences, or de-criminalise conduct that is not authorised, as a matter of law, by the use of any identity.  For example, it is an offence for anyone to take protected fauna out of Australia.  If an authorised officer who has acquired a passport to substantiate their assumed identity takes protected fauna out of Australia while travelling on that passport, he or she will still be criminally responsible for removal of the fauna from Australia (unless the conduct is authorised under another law, for example, under a controlled operation).

 

Other provisions will also limit or remove the protection provided in section 15KQ, for example, section 15KT (acting without possessing the appropriate qualifications).

 

Section 15KQ reflects the model law provision.

 

15KR Protection from criminal liability - third parties

 

Section 15KR will provide protection from criminal liability to Commonwealth officers who have engaged in conduct that would otherwise constitute a Commonwealth, State or Territory offence.  The officers will be regarded as not criminally responsible for the offence if: 

·         the conduct constituting the offence was engaged in in the course of the officer’s duty

·         the chief officer who granted the authority to acquire or use an assumed identity authorised the conduct, and

·         if the person who is authorised to acquire or use an assumed identity under the authority had engaged in the conduct in accordance with the authority, he or she would not have been criminally liable for the offence because of the application of section 15KQ.

 

This will protect Commonwealth officers who are responsible for creating a complete history for the assumed identity (known as ‘backstopping’).  These officers will often create fictitious background information to validate the assumed identity, eg create false family history information, false school records etc.  In some cases the Commonwealth officers may need to create a fictitious company in which the authorised person is a director under their assumed identity.  In filling in the relevant forms needed to establish a company, these officers would need to provide details of the assumed identity (knowing these details were not those of a 'real' person).  In doing so, they would knowingly provide false or misleading information to the Commonwealth .  Without the protection provided by section 15KR, these officers could be liable to prosecution for a Commonwealth criminal offence. 

 

Paragraph 15KR(d) is not intended to remove a Commonwealth officer’s protection from criminal liability due to an authorised person engaging in conduct for which the authorised person is not protected from criminal responsibility.  For example, if the authorised officer does something for which he or she is not qualified, eg flies a plane when he or she does not have a pilot’s licence, the authorised officer will not be protected from criminal liability, due to section 15KT.  However, if a Commonwealth officer, with the authorisation of the chief officer, had created a false pilot’s licence for the authorised person, the Commonwealth officer would still be protected from criminal liability for creating that licence.  Preparing a false qualification, in accordance with the authority granted by the chief officer, is clearly distinguishable from engaging in conduct that the false qualification purports to authorise or enable a person to undertake.

 

Section 15KR is not in the model laws.  It extends the protections provided in the model law for authorised persons and issuing agencies to other Commonwealth officers involved in the creation of an assumed identity.

 

15KS Indemnity for authorised persons

 

Section 15KS will provide people who are authorised to acquire or use an assumed identity with  protection from civil liability arising from an act done in the course of acquiring or using an assumed identity in accordance with the lawful authority.

 

In the case of an authorised law enforcement, intelligence or foreign officer, in order to be protected from civil liability the act must be done in the course of the officer’s duty.  In the case of an authorised civilian, in order to be protected from civil liability the act must be done in accordance with any directions given by the civilian’s supervisor.

 

Where these conditions are met, the Commonwealth will have to indemnify the authorised person against any loss or damage suffered by other persons as a result of the authorised person’s conduct.

 

Other provisions in this new Part IAC of the Crimes Act may also limit or remove the Commonwealth’s obligation to indemnify the authorised person, for example, subsection 15KT (acting without possessing the appropriate qualifications).

 

Section 15KS reflects the model law provision.

 

 15KT Particular qualifications

 

Section 15KT will have the effect of removing any protection from criminal or civil liability that will be provided to an authorised person under this new Part IAC of the Crimes Act, for anything done by the person that requires a particular qualification that the person does not possess.  This will ensure that authorised persons cannot use an assumed identity to engage in activities in which they are not qualified to engage.  This will be so even if the person has acquired a document that indicates that he or she has the relevant qualification.

 

For example, a law enforcement officer who is not medically qualified will not receive any protection from criminal liability for prescribing medication as a medical doctor, despite acting as a doctor under an authorised assumed identity and holding false medical qualifications that authorise the prescription of medication.

 

Section 15KT reflects the model law provision.

 

15KU Effect of being unaware of variation or cancellation of authority

 

A chief officer, or his/her delegate, will have the power to vary or cancel an authority under section 15KE.  There may be occasions where the chief officer varies an authority by reducing its scope, or cancels an authority, and there is a delay in informing the authorised person of the variation or cancellation. In such cases the authorised person will be acting under a false identity that is no longer authorised, or may be engaging in conduct that is no longer authorised. 

Section 15KU will provide that if an authority is varied or cancelled, but an authorised person is unaware of the variation or cancellation (and is not reckless about the existence of a variation or cancellation) then he or she is still protected from criminal and civil liability, as if the variation or cancellation had not been made.

 

This protection will apply for as long as the person is unaware of the variation or cancellation, but only if the person is not reckless about the existence of the variation or cancellation.  Subsection 15KU(3) describes when a person is reckless for the purposes of this provision.

 

Section 15KU reflects the model law provision.

 

15KV Transfer of control of authorities

 

There may be occasions where, for operational or other reasons, control of an authority for an assumed identity will need to be transferred from one agency to another agency.  Section 15KV will authorise the transfer of assumed identity authorities between agencies. 

 

Subsections 15KV(1) and (2) will clarify that a transfer may be authorised by either the chief officer who originally granted the authority under section 15KB, or the chief officer who has control of an authority as a result of a previous transfer under this provision.  This clarifies that there are no restrictions on the number of times that an authority may be transferred between agencies.  This flexibility is necessary to ensure that control of an assumed identity rests with the appropriate agency at all times.  For the same reason, section 15KV will not restrict the reasons for which an authority may be transferred.

 

However, section 15KV will restrict the types of authorities that can be transferred and the agency to which an authority may be transferred.  Subsection 15KV(1) provides that an intelligence agency may only transfer or receive an authority from another intelligence agency, while subsection 15KV(2) provides that a law enforcement agency may only transfer or receive an authority from another law enforcement agency.  In addition, subsection 15KV(6) will provide that the AFP and ACC may not transfer authorities that authorise the acquisition or use of an assumed identity in a foreign country or that have been made on behalf of a foreign officer.  (Subsection 15KA will provide that only the chief officer of the AFP or the ACC may authorise the acquisition or use of an assumed identity in a foreign country or by a foreign officer.)    

 

The purpose of restricting the type of authorities that can be transferred between agencies is to protect the operation of the rules that govern the granting of authorities by law enforcement and intelligence agencies.  It is important that an authority may only be transferred to an agency that would have been capable of granting the authority in the first place.  For example, an authority granted by a chief officer of an intelligence agency that allows the acquisition or use of an assumed identity by a civilian will have an unlimited operating period.  In comparison, an authority granted by a chief officer of a law enforcement agency that authorises a civilian to acquire or use an assumed identity has a maximum duration of three months (see paragraph 15KC(2)(h)).  Accordingly, it would be inappropriate if the chief officer of an intelligence agency was allowed to transfer an authority relating to a civilian to a chief officer of a law enforcement agency. 

 

The process of transferring an authority will involve both the chief officer of the agency transferring the authority and the chief officer of the agency who will receive the authority (or their delegates) agreeing to the transfer in writing. 

 

The chief officer of the agency transferring the authority (or his or her delegate) will also have a responsibility to provide the chief officer of the receiving agency with details of whether the authority has previously been reviewed and whether the authority has previously been transferred.

 

A transfer will be deemed to have occurred when the chief officer of the agency receiving the authority (or his or her delegate) signs and dates a copy of the authority.  However, where an authority relates to an authorised civilian, the transfer will only take place when the receiving agency appoints a new supervisor for the civilian.  These rules will be important for establishing the point at which responsibility and control for the assumed identity transfers, particularly in relation to civilians who will be under the direction of a new supervisor. 

 

Subsection 15KV(6) will require the chief officer of the receiving agency (or his or her delegate) to vary the transferred authority, in accordance with new section 15KE, to state the name of the new supervisor. (New section 15E will set out how authorities may be cancelled or varied). 

 

Section 15KV is not a model law provision.  However, it recognises that agencies often work closely together and for operational reasons it may be appropriate for an authority issued by one agency to be transferred to another.  A transfer may be necessary if the focus of the operation or investigation has changed.  For example, a general intelligence gathering exercise may lead to an investigation of specific criminal activity.

 

15KW Consequences of transfer of control of authorities



Section 15KW will clarify the effect of a transfer of an assumed identity authority between agencies under section 15KV.  It will provide that a transfer does not affect the status of the authority (i.e. it continues to be in force as if the transfer had not occurred). 

 

To avoid doubt, subsection 15KW(3) will state that the powers, responsibilities and obligations that attach to the chief officer who granted the authority will transfer to the chief officer who receives the authority if a transfer occurs under section 15KV.  As a result, the chief officer of the receiving agency will have:

·         the power to vary or cancel the authority

·         an obligation to review the authority

·         an obligation to report and keep records on the authority

·         an obligation to audit their records in relation to that authority every 6 months, and

·         the power to request evidence of an assumed identity.

 

Section 15KW will have the same effect no matter how many times an authority is transferred.  For example, any obligation to audit, report on or review the granting of the authority will rest with the agency that has control of the authority at the time that the obligation must be met. 

 

Subsection 15KW(4) will clarify that a transfer does not change the timeframe in which a review of an authority must be conducted in accordance with section 15KF.  For example, if an authority granted by a law enforcement agency has been transferred a number of times in a 12 month period, only the agency that has control over the authority at the expiry of the 12 month period will be obliged to review the authority under section 15KF. 

 

Subsection 15KW(5) will clarify that section 15KL will operate as if the receiving agency chief officer was the chief officer that made the initial request for evidence of an assumed identity.

 

To ensure that agencies are able to track when an authority is due to be reviewed, the chief officers will be required to record specific details of the transfer, such as the date on which the transfer was effected and when it is due to be reviewed (see sections 15KV and 15LF).

 

Section 15KW is not based on the model laws and has been included to clarify the operation of a transfer under section 15KV.

 

Division 5-Mutual Recognition under Corresponding Laws

 

15KX Requests to a participating jurisdiction for evidence of an assumed identity

 

An authority to acquire or use an assumed identity issued under section 15KB may authorise a request to be made to an issuing agency under this provision.  If the authority includes such an authorisation, the chief officer who granted the authority may request the chief officer of an issuing agency of a participating jurisdiction to produce evidence to support the creation of the assumed identity.  Such a request may only be made if the authority authorises a request to that agency. 

 

A ‘participating jurisdiction’ is any State or Territory that has corresponding assumed identity laws in force.  ‘Evidence of the assumed identity’ will be defined broadly at section 15K to cover a variety of documents including passports, tax file numbers, credit/bank cards and Medicare cards.

 

Section 15KX is the equivalent, for issuing agencies of States and Territories, of new section 15KI, which will authorise a chief officer to obtain identity evidence from Commonwealth government agencies and non-government agencies.

 

As with section 15KI, the model law provision has been extended to allow the evidence of the assumed identity to be given to a law enforcement or intelligence officer, in order to protect the true identity of the authorised person.  The rationale for allowing an alternative person to receive the evidence is the same as applies to section 15KI - that is, to protect the true identity of the authorised person and because the authorised person may not, for operational reasons, be able to personally collect the evidence.

 

Section 15KX will not authorise a request to a State or Territory agency for evidence such as a false marriage certificate or birth certificate.  This type of evidence will be dealt with at section 15KG, which will set out the process for requesting entries in State and Territory registers of births, deaths and marriages.  

 

15KY Requests from a participating jurisdiction for evidence of assumed identity

 

Section 15KY will require the chief officer of a Commonwealth government issuing agency (other than four specified agencies that are discussed below) to comply with a request for assumed identity documents made by the chief officer of a participating State and Territory law enforcement agency.  The requested identity document must be provided if:

·         it relates to an assumed identity authority that is made in accordance with a ‘corresponding assumed identities law’ (which will be defined at section 15K to mean a law, or a part of a law, of a State or Territory that is prescribed by the regulations)  

·         that assumed identity authority authorises identity documents being obtained from a Commonwealth government agency and given to the person authorised under the authority

·         the request states a reasonable time for providing the requested documents, and

·         the request is made to the chief officer of a Commonwealth government issuing agency.

 

ASIO, ASIS, the Defence Signals Directorate and the Defence Imagery and Geospatial Organisation will not be required to comply with a request under this section.  It would be inappropriate to oblige these agencies to produce false identity cards for State and Territory law enforcement personnel as it could jeopardise their operations.

 

15KZ Directions from a participating jurisdiction to cancel evidence of assumed identity

 

Section 15KZ will require a chief officer of a Commonwealth government issuing agency that has produced identity evidence in accordance with a request under section 15KY, to cancel that evidence when directed to do so, in writing, by the chief officer of the State or Territory agency that requested the evidence.  Subsection 15KZ(2) will clarify that cancelling evidence includes deleting or altering an entry in a record of information. 

 

Section 15KZ will adopt the model law provision.  It mirrors section 15KL, which requires issuing agencies to comply with a similar direction from chief officers of Commonwealth law enforcement and intelligence agencies.  Like proposed section 15KL, the purpose of the provision is to ensure that evidence of an assumed identity is cancelled when it is no longer required.

 

15L Indemnity for issuing agencies and officers

 

Section 15L will require any law enforcement or intelligence agency that makes a request to an issuing agency in a participating State or Territory to protect the issuing agency and its officers from any civil liability incurred as a result of complying with a request to produce identity evidence under section 15KX.

 

Section 15L will reflect the model laws and the position in section 15KO, which requires the Commonwealth to indemnify Commonwealth government issuing agencies and non-government issuing agencies from any liability incurred as a result of responding to any request or direction under sections 15KI or 15KL. 

 

15LA Application of this Part to authorities under corresponding laws

 

Section 15LA will enable an assumed identity authority that was granted by a law enforcement agency in a participating State or Territory to be recognised under this new Part IAC of the Crimes Act as if the authority had been granted under section 15KB. 

 

Section 15LA will list the provisions that are deemed to apply to an authority issued under a corresponding law.  For example, an authority validly granted under a New South Wales corresponding law would be recognised as a corresponding authority by the Commonwealth, and the provisions referred to in section 15LA would apply to acts done pursuant to that corresponding authority as if it was an authority granted under section 15KB.  

 

Section 15LA will implement the policy of the model law provision, but modifies it slightly in order to apply the additional protection from criminal liability provided to third parties under this Part of the Crimes Act (see section 15KR) to an authority granted under a corresponding law. 

 

Division 6-Compliance and Monitoring

 

Subdivision A-Misuse of Assumed Identity and Information

 

15LB Misuse of assumed identity

 

Subsection 15LB(1) will create an offence for law enforcement, intelligence or foreign officers who are authorised to acquire or use evidence of an assumed identity, but do so in a manner that is inconsistent with, or falls outside, the scope of the authority and is not within the course of their duties.  The provision will specify that the offence only requires the authorised officer to be reckless about whether or not they are acting in accordance with their authority or in the course of duty.

 

Subsection 15LB(2) will create a separate offence in relation to the misuse of an assumed identity by a civilian.  This provision will make it an offence for an authorised civilian to acquire or use evidence of an assumed identity and be reckless about whether the acquisition or use is not in accordance with the authority, or not in accordance with the directions of a supervisor.

 

Both offences will carry a maximum penalty of two years imprisonment.

 

Examples of misuse of an assumed identity include:

·         obtaining a financial advantage by deception

·         evasion of fines or other penalties (such as driving demerit points), or

·         credit card fraud.

 

The inclusion of specific offences for misuse of an assumed identity will make it clear to those using assumed identities that the improper use of identity documents will not be tolerated.  Both offences give effect to the model law offences for misuse of an assumed identity.

 

In addition, a person who misuses an assumed identity may also be subject to other criminal penalties because misuse of the assumed identity would result in the person losing the protection from criminal responsibility provided by section 15KQ. 

 

15LC Disclosing information about assumed identity

 

Section 15LC will create three offences relating to the disclosure of information about an assumed identity.

 

The first offence will apply to conduct involving the disclosure of information that either reveals, or is likely to reveal, that another person has acquired, will acquire, is using or has used an assumed identity (subsection 15LC(1).  This offence will carry a maximum penalty of two years imprisonment.

 

Subsections 15LC(2) and (3) will create two more serious disclosure offences where the conduct described in subsection 15LC(1) is aggravated because the person who makes the disclosure is reckless as to whether the disclosure would:

·         endanger the health or safety of any person (subsection 15LC(2)), or

·         prejudice the effective conduct of an investigation or intelligence-gathering in relation to criminal activity (subsection 15LC(3)).  

 

These offences will be indictable offences and carry a maximum penalty of 10 years imprisonment.  The maximum penalty for this offence reflects the serious consequences that a disclosure of this kind could bring to the operatives involved. 

 

Subsection 15LC(4) will provide exceptions to the offences created under subsections 15LC(1), (2) and (3), for disclosures made in specific circumstances or for specific purposes.  For example, a person will not commit an offence under 15LC(1),(2) or (3) if their role or function requires them to disclose information that reveals that a person has used an assumed identity.  This would be the case for people responsible for administering assumed identities laws or undertaking related legal proceedings.  For example, an officer of the Commonwealth Director of Public Prosecutions may be required to make such disclosures in prosecutions or proceeds of crime proceedings. 

 

Note 2 will clarify that any disclosure made about the use or acquisition of an assumed identity that does not constitute an offence because of the operation of subsection 15LC(4) may still constitute an offence under other laws, such as the Intelligence Services Act 2001 .   Subsection 15LC(4) only provides exceptions to the offences set out at subsections 15LC(1), (2) and (3).  It does not affect the operation of any other offences in the Crimes Act or any other Act.

 

Section 15LC will reflect the policy intention behind the model law provisions, which contain the three tiered offences relating to disclosure of information about an assumed identity.  However, section 15LC has been modified to broaden the exceptions to the offences and apply the exceptions to all three offences, rather than only the less serious offence, as is the case in the model law. This ensures that a person will not commit an offence if they disclose information on an assumed identity if the disclosure is required or authorised under law and/or undertaken as a legitimate element of the discloser’s work. 

 

Subdivision B—Reporting and Record-keeping

 

15LD Reports about authorities for assumed identities etc - law enforcement agencies

 

Section 15LD will place an obligation on chief officers of law enforcement agencies to submit an annual report to the Minister about their agency’s use of assumed identities.  Subsection 15LD(1) will specify the information that must be contained in the report, which will include:

·         numbers of assumed identity authorities granted

·         a general description of the activities that were undertaken by authorised persons

·         whether any fraud or other unlawful activity was identified by an audit under section 15LG, and

·         any other information relating to assumed identities that the Minister considers appropriate.

Subsection 15LD(3) will require the Minister to table the report in both Houses of the Australian Parliament within 15 days of receiving the report.  However, subsection 15LD(2) will require the chief officer of the law enforcement agency to advise the Minister of any information that should be excluded from the report before it is tabled in Parliament, because it could reasonably be expected to endanger a person’s safety, prejudice an investigation or prosecution, or compromise operational activities or methodologies.  If the Minister is satisfied that the information should be excluded on any of those grounds, he or she must exclude the information before tabling the report in Parliament.

The legislation will permit, but not require, the report to be tabled as a stand alone document.  For example, as long as all legislative time limits are met, a report on assumed identities could be included in the law enforcement agency’s annual report. 

Section 15LD implements the model law provision.

 

15LE Reports about authorities for assumed identities etc - intelligence agencies

 

Section 15LE will require the chief officers of ASIO and ASIS to submit an annual report to the Inspector-General of Intelligence and Security about their agency’s use of assumed identities. 

 

Subsection 15LE(1) will specify the information that must be contained in the report, which will include:

·         statistical information about assumed identity authorities

·         a general description of the activities that were undertaken by authorised persons

·         whether any fraud or other unlawful activity was identified by an audit under section 15LG, and

·         any other information relating to assumed identities that the Inspector-General considers appropriate.

 

This proposed provision is not a model law provision because the model law provisions only cover law enforcement agencies.  However, it is based on the model law provision that imposes a reporting requirement on law enforcement agencies (see section 15LD).  This provision ensures that intelligence agencies are also held accountable for their use of assumed identities.

 

15LF Record keeping

 

Section 15LF will set out the records that law enforcement and intelligence agencies must keep in relation to assumed identities.  The requirements will apply to all authorities granted, varied, cancelled or transferred under this new Part IAC of the Crimes Act.  Section 15LF will require the recording of all the key details of each authority for the purpose of tracking the use of the authorised assumed identity.

 

The provision will also ensure that all appropriate records for every authority that is transferred are kept by both the originating and receiving agency.  This will ensure that responsibility for every authority can be tracked. 

 

Section 15LF will implement the model law.

 

15LG Audit of records

 

Section 15LG will require the chief officer of a law enforcement or intelligence agency to arrange for the assumed identity records for each authority, which will be required to be kept under section 15LF, to be audited at least once every six months while the authority is in force, and at least once in the six months after the cancellation or expiry of the authority.  Results of audits must be reported to the chief officer of the law enforcement or intelligence agency.

 

Subsection 15LG(3) will allow the audit to be undertaken internally to minimise the risk of an undercover operative’s real identity being disclosed.  This will avoid endangering the lives of the operative and his/her family.  However, to protect the integrity of the audit process, although the person conducting the audit may be a law enforcement or intelligence officer, the auditor must not be a person who:

·         granted, varied or cancelled any of the authorities to be audited

·         received control of any of the authorities to be audited, due to a transfer of an authority under section 15KV

·         was or is an authorised person under any of the authorities to be audited, 

This will ensure that the person conducting the audit has no personal involvement in the relevant authority.



Division 7-General

 

15LH Delegation of chief officer’s functions

 

Section 15LH will specify which functions under this new Part IAC of the Crimes Act a chief officer is able to delegate, and to whom a delegation can be made.  ‘Chief officer’ is defined at section 15K.

 

Subsection 15LH(1) will provide that any other delegation provision, under any other legislation, does not apply to the delegation of a chief officer’s functions under Part IAC of the Crimes Act.  A chief officer may only delegate those powers in accordance with this section. 

 

Subsection 15LH(2) will state that the chief officer can delegate any function under this Part IAC that relates to the granting, variation, transfer or cancelling of authorities.  A delegation may only be made to a senior officer of the chief officer’s agency.  ‘Senior officer’ is defined in subsection 15LH(3).

 

The delegation power in section 15LH strikes a balance between allowing the person who is best equipped to make certain decisions about assumed identity authorities to do so, while ensuring that the chief officer of each agency retains responsibility for certain functions, particularly those that are essential for facilitating oversight of, and accountability for, the agency’s use of assumed identities.  This provision will also avoid practical problems that might arise if the chief officer was required to make all decisions, particularly at short notice, as he or she may not be always be available to do so.

Part IACA - Witness identity protection for operatives

Division 1 - Preliminary

15M Definitions

Section 15KD will define terms associated with the new witness identity protection regime.  The key definitions will be:

assumed name will mean the name, other than the operative’s real name, that the operative is known by to a party to the proceeding or a party’s lawyer (this will be defined in subparagraph 15MG(1)(a)(i)).  A ‘party to the proceeding’ will be defined in subsection 15M(1).

chief officer will mean the head of a ‘law enforcement agency’ or an ‘intelligence agency’ (which will also be defined in this section).  The chief officers will be as follows:

·          in relation to ASIO, the Director-General of Security

·          in relation to ASIS, the Director-General of ASIS

·          in relation to the AFP, the Commissioner of the AFP

·          in relation to Customs, the Chief Executive Officer of Customs

·          in relation to the ACC, the Chief Executive Officer of the ACC

·          in relation to ACLEI, the Integrity Commissioner, and

·          in relation to the Australian Taxation Officer, the Commissioner of Taxation.

The chief officer will have certain functions under this Part.  These include the:

·          power to give a witness identity protection certificate in certain circumstances (see section 15ME)

·          responsibility to make all reasonable enquiries to make sure that all required information is included in the certificate (see subsection 15ME(2))

·          responsibility to cancel the certificate if it is no longer necessary or appropriate (see section 15MQ)

·          power to give permission to disclose information about the operative’s true identity, despite the certificate (see proposed section 15MR), and

·          responsibility to report to the Minister or the Inspector-General of Intelligence and Security on the use of witness identity protection certificates (see sections 15MU and 15MV).

Under section 15MX, the chief officer will be able to delegate any of his or her functions (except the powers of delegation) and responsibilities to a ‘senior officer’ (which will be defined in subsection 15MX(3))

court name will mean the name, other than the operative’s real name or code, that the operative is to be known as in the proceedings where the operative is not known to any party to the proceeding or a party’s lawyer.  A ‘party to the proceeding’ will be defined in subsection 15M(1).

operative will mean someone who is authorised, either under an assumed identity authorisation (see Part IAC above) or as a participant under a controlled operations authorisation (see Part IAB above). The witness identity protection regime is only available for operatives.

An operative will usually be a law enforcement officer or an intelligence officer, but in some cases an operative may be a civilian acting under an authorisation. This is necessary because under the assumed identities provisions, a civilian will be able to acquire and use an assumed identity in limited circumstances.

witness identity protection certificate will mean the certificate that is given in order to protect the identity of an operative.  Section 15ME will set out the circumstances in which the certificate can be given, and section 15MG will prescribe the form of the certificate.

Subsection 15M(2) will provide that things permitted or required to be done by a party to a proceeding in this Part may be done or satisfied by a party’s lawyer.  This recognises that in most cases, legal counsel will be acting on behalf of a party.

15MA Meaning of criminal proceeding

The witness identity protection provisions will apply to a proceeding in which an operative is, or may be required to give evidence obtained as an operative (see section 15MD below).

A ‘proceeding’ will be defined in subsection 15M(1) (see above) to include a criminal or civil proceeding.  Section 15MAwill define a criminal proceeding as a proceeding for the prosecution, whether summarily or on indictment, of an offence or offences.  To avoid doubt, subsection 15MA(2) will include a list of proceedings which constitute part of a criminal proceeding. 

The model laws do not provide a definition of a criminal or civil proceeding.  The definition of criminal proceeding in section 15MA is based on section 13 of the National Security Information (Criminal and Civil Proceedings) Act 2004 (NSI Act). 

15MB Meaning of civil proceeding

Similarly, section 15MB will define a civil proceeding (for the same purpose as described above) as any proceeding in a court of the Commonwealth, a State or Territory, other than a criminal proceeding.  To avoid doubt, subsection 15MB(2) will include a list of proceedings which constitute part of a civil proceeding. 

For the same reasons described above, this definition is based on section 15A of the NSI Act.  It is noted that proceedings for control orders or preventative detention under Part 5.3 of the Criminal Code Act 1995 are civil proceedings under this definition.

15MC­ When a charge is outstanding or pending

Before a witness identity protection certificate is given, the operative will be required to make a statutory declaration setting out matters that go to his or her credibility (see section 15MF below).  In particular, paragraph 15MF(1)(b) will require the operative to declare whether any charges against the operative for an offence are pending or outstanding.  Further, paragraph 15MF(1)(c)(ii) will require the operative (who is or was a law enforcement officer or intelligence officer) to declare whether any allegations of professional misconduct against him or her are outstanding.

Paragraphs 15MC(1)(a) and (b) will define when a charge is considered pending or outstanding.  A charge will be outstanding until it is finally dealt with by being withdrawn, dismissed or discharged by a court, or the person has been acquitted or found guilty of the offence.  A charge will be pending if the person has not yet been charged with an offence but has been arrested for the offence, or the person has been served with a summons to appear before a court to answer a charge for the offence.  A charge will not be pending if a person was arrested but then later released without charge.  These definitions are based on the definition included in the model laws.

Paragraph 15MC(c) will define when an allegation of professional misconduct is outstanding. An allegation is outstanding if the allegation has not been finally dealt with in accordance with the normal procedures that apply for dealing with such allegations.  The model laws do not include a definition of when a professional misconduct allegation is outstanding.  This definition has been developed to take into account that procedures for handling allegations for professional misconduct will vary between law enforcement and intelligence agencies.

Division 2 - Witness Identity Protection Certificates for Operatives

15MD Application of Part

Section 15MD will provide that the witness identity protection provisions will apply to a proceeding in which an operative is, or may be required to give evidence obtained as an operative.  ‘Operative’ and ‘proceeding’ will be defined in subsection 15M(1) (see above and also sections 15MA and 15MB).

The witness identity protection provisions in this Part are concerned only with protecting the true identity of operatives for reasons of personal safety or to avoid prejudicing operations.  The provisions are not intended to affect witnesses who are not operatives or to affect other laws which may apply to protect the safety of a witness (eg the use of physical screens or voice modification).  To avoid doubt, subsection 15MD(2) will make this clear.

15ME Witness identity protection certificate

Section 15ME sets out: who can 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.

Under subsection 15ME(1), only a chief officer of a law enforcement agency or an intelligence agency will be able to give a certificate for an operative who is, or may be required, to give evidence in a proceeding.  ‘Chief officer’, ‘law enforcement agency’, ‘intelligence agency’, ‘operative’ and ‘proceeding’ will be defined in subsection 15M(1) (see above). 

A certificate will only be able to be given if the chief officer is satisfied on reasonable grounds that disclosure of the operative’s identity or address is likely to: endanger the safety of the operative or another person (such as a family member), or prejudice any current or future investigation or activity relating to security. 

‘Identity’ will not be defined, as what could identify a person will differ depending on the circumstance.  As the Joint Working Group Discussion Paper notes,

An operative who is a police officer could state this as his occupation, and this alone would not lead to the identification of him personally.  However, if the operative was required to state his rank, and the current location of his work, his identity could well be revealed. [page 159]

‘Investigation’ will be given a broad definition in subsection 15M(1) as an investigation relating to criminal activity, including an investigation extending beyond the reach of the Commonwealth.  This definition recognises the Commonwealth’s unique role for investigating offences with a foreign aspect. 

‘Activity relating to security’ could include protecting Australia from espionage or preventing attacks on Australia’s defence system.  ‘Security’ (defined in subsection 15M(1)) has the meaning given by section 4 of the Australian Security Intelligence Organisation Act 1979 (the ASIO Act).  This definition has been used as it is directly relevant to the intelligence agencies whose operatives are covered by this Part.

The Joint Working Group Discussion Paper recognised that allowing the chief officer of a law enforcement agency to make the decision about when an operative’s identity should be protected would be a shift from the practice in most jurisdictions which this decision is made by the court.  The Joint Working Group Discussion Paper noted that:

Disclosure, for example, in an application to a court seeking protection of identity and in filing court documents with the operative’s true name, may place the investigation and the safety of law enforcement or intelligence officers and civilians associated with the operation at serious risk. [page 151] 

The chief officer of a law enforcement agency or intelligence agency is well placed to make an informed decision about the need to protect an operative’s identity to ensure his or her safety or avoid prejudicing operations.  In most cases, the information about undercover operative is highly sensitive and disclosing or filing this information could increase the risk to personnel and compromise operations.  Where there is no objection to the witness’ identity being disclosed then it will have been an unnecessary risk to disclose this information.   Further, allowing a chief officer to make the decision to protect identity in the first instance is appropriate given that the court retains the discretion to reveal the operative’s true identity (see section 15MM below).

The form of a certificate (that is, the matters to be included) will be prescribed in section 15MG (see below) and includes matters going to the operative’s credibility.  Before giving a certificate the chief officer will be required to make all reasonable inquiries to ascertain the information required by section 15MG.  In recommending this requirement the Joint Working Group Report noted that:

The integrity of the certificate is crucial to the effectiveness of the model legislation.  Therefore … an express requirements for the person issuing the certificate to undertake inquiries … [r]ather than relying on the implicit obligation of the issuer to undertake inquiries. [page 275] 

Making this an express requirement ensures that the power to grant certificates is exercised with the highest degree of care. 

Under subsection 15ME(3) the chief officer will not be able to give a certificate until the operative completes the requirements set out in section 15MF.  Section 15MF will require an operative to make a statutory declaration setting out matters relevant to his credibility (see below for more detail).  This statutory declaration will assist the chief officer in his or her decision to give a certificate.  

Subsection 15ME(4) will provide that a decision to give a certificate is final, and cannot be appealed against, reviewed, called into question, quashed or invalidated in any court.  Preventing a decision to give a certificate from being challenged or reviewed is part of the model laws as it would defeat the purpose of the witness identity protection regime.  That is, a challenge or review would require highly sensitive operational information to be disclosed, which may risk the safety or an operative or the integrity of an operation.  This provision will not prevent a court from exercising its discretion to override the certificate (see section 15MM).     

Subsection 15ME(5) will clarify that subsection 15KI(4) will not prevent a decision to give a certificate being called into question in the course of a disciplinary proceeding against the person who made the decision.  Proceedings for professional misconduct are, for the most part internal or conducted by agencies familiar with handling and protecting highly sensitive operational information.  

Subsection 15ME(6) will provide that a certificate is required to be taken to have been properly issued and is prima facie evidence of the matters in the certificate.  This will allow the operative to produce evidence to support that their identity was protected without having to reveal information that may disclose his or her true identity.  

Section 15ME(7) will clarify that the instrument is not a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003

15MF Statutory declaration by operative

Subsequent to the release of its Report in 2003, the Joint Working Group recommended a number of modifications to the model laws (which were the endorsed by SCAG).  One of those modifications was that the operative provide a sworn statement setting our matters relevant to his or her credibility.  

Section 15MF will reflect this modification and will require an operative to make a statutory declaration, setting out certain matters, before a certificate can be given.  Subsection 15MF(1) sets out the matters that must be included in the statutory declaration.  These are:

·          Details of any offence for which the operative has been convicted or found guilty.

·          Details of any pending or outstanding charges against the operative (section 15MC defines when a charge is pending or outstanding).

·          If the operative is a law enforcement officer or an intelligence officer, details of any findings of, or outstanding allegations of, professional misconduct.  In this context, a law enforcement officer or an intelligence officer means an officer who is or was an officer of a ‘law enforcement agency’ or ‘intelligence agency’ as defined in subsection 15M(1).  ‘Professional misconduct’ is defined in subsection 15M(1), and section 15MC defines when an allegation is outstanding.

·          Any adverse comments made by a court about the operative’s credibility (this is limited to comments within the operative’s knowledge).

·          Any false representations that have been made by the operative when the truth was required (subsection 15M(1) makes it clear that false representations made in the course of a controlled operation or as part of an assumed identity are not included; undercover operations by their very nature may require the operative to lie).

·          Any other matters relevant to the operative’s credibility (again, this is limited to matters within the operative’s knowledge).

These matters will then be reflected in the certificate, which will be filed in court and a copy will be given to each party to a proceeding (for example, defence counsel) (see sections 15MG and 15MH below).

Subsections 15MF(2) will provide that, subject to subsection 15MF(3), a person cannot be compelled to disclose or produce a statutory declaration made under this section.  Subsection 15MF(3) will set out the circumstances in which a statutory declaration may be required to be disclosed or produced.  These circumstances will be:

·          proceedings, including for perjury, for any falsity in the statutory declaration (that is, where the operative has not told the truth about matters concerning his or her credibility)

·          proceedings of a disciplinary nature against a law enforcement officer or intelligence officer, or

·          investigations or inquiries into the conduct of a law enforcement officers or intelligence officer (for example, an investigation by the Integrity Commissioner into alleged corruption by an AFP or ACC officer).

It is important to allow the statutory declaration to be disclosed or produced in these circumstances to ensure a certificate is not misused to shield an operative whose integrity is in question. 

It is an offence under section 11 of the Statutory Declarations Act 1959  to intentionally make a false statement in a statutory declaration.  This offence will apply to statutory declarations made by operatives under this section.

15MG Form of witness identity protection certificate

Subsection 15MG(1) will set out the information that will be required to be included in a witness identity protection certificate. 

The certificate will be required to contain matters going to the operative’s credibility.  These are the same matters that will be required to be included in the operative’s statutory declaration (see section 15MF above).  Section 15MH will require that the certificate be filed in court and a copy is given to each party to a proceeding (for example, defence counsel).  This will enable the operative’s credibility to be challenged in the proceeding without disclosing his or her true identity.  This will be an important safeguard to ensure the fairness of proceedings when a witness’ identity is protected under this Part. 

In addition to matters going to the operative’s credibility, the certificate will be required to include:

·          the operative’s assumed name or court name

·          details about the length of time the operative was involved in the investigation to which the proceeding relates and the name of the agency giving the certificate

·          the date on which the certificate is given, and

·          the grounds for issuing the certificate.

The operative’s assumed name is the name by which he or she is known to a party to a proceeding (or a party’s lawyer) but is not his or her real name.  For example, if an operative has an assumed identity of Anne Smith, and she is known by the accused person as Anne Smith, the certificate will need to state her name as Anne Smith.  Using the assumed name that is known to a party will allow, for example, a defendant to place to witness. 

In some cases, an operative may be using the same assumed identity in a number of operations.  Including this assumed name on the certificate could prejudice ongoing operations that are separate from the proceeding in which the operative is giving evidence.  However, the assumed name will still need to be included if it is known to a party to a proceeding.  In these cases, the court will be able to make a suppression order to prevent the disclosure of the assumed name outside of the court, which may help to prevent the other ongoing operations from being compromised (see section 15MK below). This example has been drawn from the Joint Working Group Discussion Paper (page 163).

A court name will be able to be used where the operative is not known to a party to the proceedings.  The operative’s name could be recorded, for example, as Mr Z.  There will also be some situations in which the operative is using an assumed identity, but is not personally known to a party to a proceeding (or a party’s lawyer).  In this case, a court name could also be used, which would also avoid the ongoing use of the assumed identity being compromised.  When a court name is used, a party to the proceeding (including for example the defendant) will be able to place the witness from the evidence he or she gives and by seeing the witness in court. 

The grounds on which a certificate may be given will be set out in subsection 15ME(1) (see above).  For example, the chief officer could record at the certificate is issue because disclosing the operative’s real name could put her in danger.

Subsection 15MG(2) will make it clear that the certificate must not include any information that could reveal the operative’s true identity or address.  This will mean, for example, that in describing the grounds upon which the certificate has been issued the chief officer will need to ensure that this does not include information that could identify the operative.   



15MH Filing and notification

This section will set out the requirements for filing, and giving copies of, the certificate ahead of the operative giving evidence.  These requirements are necessary to ensure that other parties to the proceeding have sufficient notice that there will be a witness whose true identity will be protected. This will enable other parties to the proceeding to consider whether they need to apply to the court for leave to ask questions that may lead to disclosure of the witness’ identity.

Subsection 15MH(1) will require the certificate to be filed in court before the operative gives evidence in the proceeding.  Under subsection 15MH(2), once filed, a copy of the certificate will be required to 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.  A ‘party to a proceeding’ will be defined in subsection 15M(1) to mean, for a criminal proceeding - the prosecutor and each accused person, and for a civil proceeding - each person who is a party to the proceeding.  ‘Criminal proceeding’ and ‘civil proceeding’ will be defined respectively in sections 15MA and 15MB (see above).

Subsection 15MH(3) will allow the court to make an order that a copy of the certificate is to be provided to another person.  The onus for providing copies of the certificate under subsections 15MH(2) and (3) will lie on the person who files the certificate.

This section will be subject to section 15KM (see below). 

15MI Leave for non-compliance

There may be circumstances in which a person who has filed, or proposes to file, a certificate is not able to comply with the requirements in section 15MH above. 

For example, a person is arrested and charged with an offence, and is brought before a court to hear bail.  Ordinarily, a bail hearing will take place within a time period much shorter than 14 days.  Accordingly, a copy certificate given for a bail proceeding will not be able to be provided within the time frame that will be set out in subsection 15MH(2), and the other parties to the proceeding may not agree to a shorter period for a copy of the certification to be given to them. 

Subsection 15MI(1) will allow the court to give leave for the person to not comply with one or more of the requirements of section 15MH.  In granting leave, the court will need to be satisfied that it was not reasonably practicable to comply with the requirement or requirements in respect of which leave is sought (subsection 15MI(2)).  

Under subsection 15MI(3), where a court has granted leave for a certificate not be filed in accordance with subsection 15MH(1) (which requires certificates to be filed before an operative gives evidence) the certificate is to be taken as having been filed in accordance with that subsection.

15MJ Effect of witness identity protection certificate

Section 15MJ will set out the effect of a certificate that has been filed in accordance with (or taken to have been filed in accordance with) subsection 15MH(1) (see above). 

The effective of a certificate will be that the operative is permitted to give evidence under the assumed name or court name provided for in the certificate.  The assumed name or court name is explained above in subsection 15MG(1).

The certificate will prevent a witness (including the operative whose identity is protected by the certificate) from being asked a question, or being required to answer a question, that may disclose or lead to the operative’s true identity or address, being revealed.  Further, a person involved in the proceeding will not be able to make a statement that discloses, or may reveal the operative’s true identity or address. 

For the purposes of this section, ‘a person involved in a proceeding’, will be defined in subsection 15MJ(3).  This definition will include parties to the proceeding, legal counsel and officers of the court.

It is recognised that one of the consequences of a certificate being filed in a proceeding is that a party to a proceeding (for example defence counsel) will be prevented from asking questions that could otherwise be asked if the certificate was not in place. 

It is considered that in most cases, the credibility of an operative will be able to be tested while the operative is present in court.  For example, the operative’s general demeanour can be assessed regardless of whether a certificate in place. 

Further, the credibility of a witness can also be tested against their criminal or professional history which will be required to be is included in the certificate, a copy of which will be required to be given to other parties to a proceeding (see sections 15MG and 15MH above).  This would mean, for example, that where an operative has a prior conviction for an offence or perjury, defence counsel will be able to point to this in order to discredit the operative and argue that he or she cannot be relied upon to tell the truth. 

The model laws for witness identity protection, which will be implemented by this Part, provide greater access to information about the operative than is currently available where a witness (who has an assumed identity) is protected under section 15XT of the Crimes Act.  Currently, under section 15XT there is no requirement for matters going to the credibility of the operative to be disclosed to the court or any other party to the proceeding.  Accordingly, the requirements in sections 15MG and 15MH that matters relevant to credibility are to be included in the certificate which is given, for example to defence counsel, will place accused persons in a much better position to place the witness and test the witnesses credibility.

Further, the court will be able to grant leave or make an order that may lead to the operative’s identity being revealed in exceptional circumstances where it is in the interests of the justice to do so (see 15MM below). 

Section 15MQ will allow a chief officer to cancel a certificate where he or she considers that it is no longer necessary or appropriate to prevent the disclosure of the operative’s real identity or address (see below).  A chief officer may consider it inappropriate for the operative’s identity to be protected by a certificate where it is discovered that the operative lied in his or her statutory declaration made under section 15MF.

Further, as discussed above, an operative who makes an intentionally false statement in his or her statutory declaration (under section 15MF) could be subject to an offence under the Statutory Declarations Act.

15MK Orders to protect operative’s identity etc

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 the operative.

It will be an offence for a person to engage in conduct that contravenes an order made by the court under section 15MK.  This offence will be punishable by a maximum penalty of two years imprisonment.  The penalty for this offence is consistent with other non-disclosure offences in Commonwealth legislation.  Section 5.6 of the Criminal Code Act 1995 will apply automatic fault elements to the physical elements of the offence.  To establish this offence, the prosecution will need to prove beyond reasonable doubt that the person:

·          was reckless as to the circumstance that an order has been made under subsection 15MK(1)

·          intentionally engaged in conduct, and

·          was reckless as to the result of that conduct that the order is contravened.

Subsection 15MK(3) will make it clear that the offence that will be inserted by subsection 15MK(2) will  not limit the court’s inherent power to punish a person who contravenes an order with contempt of court.

Subsection 15MK(4) will require the court to make an order suppressing the publication of anything said when an order is made under subsection 15MK(1).  This is a further safeguard to protect the witness’ true identity.  This subsection will not prevent a transcript of court proceedings to be taken.  The court will be able to make an order for how the transcript is to be dealt with, including an order suppressing its publication (subsection 15MK(5)).

15ML Disclosure of operative’s identity to presiding officer

As described above, the Joint Working Group recommended a number of modifications to the model laws (which were the endorsed by SCAG).  One of those modifications was to allow the judge to require the operative to disclose his or her true identity to the judge.  This was to address concerns that if a judge did not know the witness’ true name, he or she may be unaware of any potential bias in relation to that witness.  This could arise in a number of ways including where the judge was previously practising as counsel, and the operative was a client.

Section 15ML will reflect this modification and will allow a presiding officer in a proceeding to require the operative to disclose his or her real identity to the presiding officer, provide the presiding officer with photographic evidence of that identity, or both.  ‘Presiding officer’ in relation to a proceeding will be defined in subsection 15M(1).

Subsection 15ML(3) will provide that the presiding officer must not record information disclosed under subsection 15ML(2) or retain a copy of a document or other thing provided to the presiding officer under subsection 15ML(2).  That is, a presiding officer will be prevented from taking notes about the operative’s true identity or taking a copy of photographic evidence of that identity (such as a driver’s licence or passport).

Subsection 15ML(3) does not form part of the model laws for witness identity protection.  However, it has been included to further ensure the confidentiality of the operative’s real identity.  Specifically, this subsection implements a recommendation of the Senate Standing Committee of Legal and Constitutional Affairs report on the Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 (the 2006 Bill).  The 2006 Bill included measures to implement the model laws for witness identity protection, but lapsed when Parliament was prorogued in 2007.  



15MM Disclosure of operative’s identity etc despite certificate

Subsection 15MM(1) will allow a party to a proceeding, or a lawyer assisting the court in the proceeding, to apply to the court for leave:

·          to ask a question of a witness (including the operative) that may lead to the disclosure of the operative’s real identity or address

·          for a person involved in the proceeding to make a statement that discloses, or may lead to the disclosure of, the operative’s real identity or address

·          for an order requiring the witness (including the operative) to answer a question, give evidence or provide information that discloses, or may lead to the disclosure of, the operative’s real identity or address. 

See subsection 15MM(1) for a definition of a ‘party to a proceeding’ and also sections 15MA and 15MB above.  For the purposes of this section, a ‘person involved in the proceeding’ will have the same meaning as will set out in subsection 15MJ(3). 

Under subsection 15MM(3), the court will be able to give leave for the party or lawyer to ask the question of the witness, or for a person to make a statement, that was requested under subsection 15MM(1).  The court will also be able to make an order requiring a witness to answer a question, give evidence or information as sought under subsection 15MM(1). 

Subsection 15MM(5) will provide that the court is not to give leave or make an order (as described above) unless the court is satisfied that:

·          there is evidence that, if accepted, would substantially call into question the operative’s credibility

·          it would be impractical to test properly the credibility of the operative without allowing the risk of disclosure of, or disclosing, the operative true identity or address, and

·          it is in the interests of justice for the operative’s credibility to be able to be tested. 

The Joint Working Group Report notes that provisions for granting leave do not require the court to ‘balance’ competing interests.  Rather, the question of risk posed by disclosure is one that a law enforcement agency is best placed to answer; what is in the interests of justice is appropriately matter for the court to consider [page 299].

The Joint Working Group Discussion Paper acknowledges the high threshold imposed by the model provisions but notes that the public interest in protecting undercover operatives is of such importance that “…there must be a substantial reason for the ‘balancing exercise’ to be adjusted to allow disclosure.” [page 167]    The Joint Working Group Discussion Paper further emphasises the need for a higher threshold to avoid a situation in which a defendant applies for the identity of the operative to be disclosed as a ‘tactic’ to discourage the witness for giving evidence.

The relevant of the true identity of an operative to his or her credibility will vary depending on the nature of the evidence to be given by the witness.  The Joint Working Group Report provides useful examples of how a witness’ credibility can still be tested with disclosing his or her true identity.

For example, an undercover operative may be called to give evidence about her role in an investigation in which she wore a concealed recording device and taped conversations between the defendant and herself and between the defendant and third parties in her presence.  The defendant has seen transcripts of the tapes, and does not dispute that the conversations took place.  The defendant may argue that credibility is in issue and the real identity of the operative must be revealed to allow the defendant to fully test her credibility.  However, leave should not be granted unless the defence can show the court some reason why credibility is in fact in issue (given that the defence does not dispute that the conversations took place as taped) and that credibility can only be tested if the operative’s identity is revealed.  Aspects of the operative’s credibility, in the ‘wide sense’, could still be tested without revealing her identity.  For example, questions about the context surrounding the conversations could be asked and answered without the operative’s identity being disclosed. [page 295]

…there may be circumstances where a witness’ credit in the ‘narrow sense’ is in issue, but can be tested without revealing the witness’ true identity.  For example, an undercover police officer may be giving evidence in an assumed name used in an investigation in which he acted as a buyer, purchasing heroin from the defendant.  The defendant may admit that he sold heroin to the undercover operative, but dispute the amount of heroin which was sold.  In this case, where the operative and the defendant were the only people present at the transaction, whether the operative’s evidence is accepted as credible will affect the outcome, and so credibility is in issue.  However, it may not be necessary to reveal the identity of the operative to test credibility.  The defendant may wish to pursue questioning about the operative’s bias, and motive to lie in order to secure a conviction for the serious offence of trafficking in a commercial quantity of heroin (as opposed to the sale of a smaller amount of heroin, to which the defendant will admit).  It may be possible for questioning along this line to proceed without revealing the operative’s identity.  It is then up to the jury or judge to decide whether the argument about bias is convincing. [page 295]

Subsection 15MM(6) will provide that in jury trials, applications (under subsection 15KQ(1)) must be heard in the absence of a jury. 

Subsection 15MM(7) will further provide that, unless the court considers that the interests of justice require otherwise, the court must be closed when an application is made (under subsection 15MM(1)) and if, leave is given or an order made, when a question is asked (and answered), evidence is given, information is provided or a statement is made.

Subsection 15MM(8) will also require the court to make a suppression order in relation to applications, and questions, evidence, information or statements made as a consequence of applications.  This subsection will not prevent a transcript of court proceedings to be taken.  The court will be able to make an order for how the transcript is to be dealt with, including an order suppressing its publication (subsection 15MM(9)).  Further, the court will also be able to make any other order it considers appropriate to protect the operative’s true identity or address (subsection 15MM(10)).

It will be an offence for a person to engage in conduct that contravenes an order made by the court under subsections 15MM(8) - (10).  This offence will be punishable by a maximum penalty of two years imprisonment.  The penalty for this offence is consistent with other non-disclosure offences in Commonwealth legislation.  Section 5.6 of the Criminal Code will apply automatic fault elements to the physical elements of the offence.  To establish this offence, the prosecution will need to prove beyond reasonable doubt that the person:

·          was reckless as to the circumstance that an order has been made under subsections 15MM(8) - (10)

·          intentionally engaged in conduct, and

·          was reckless as to the result of that conduct that the order is contravened.

Subsection 15MM(12) will make it clear that the offence that will be inserted by subsection 15MM(11) will  not limit the court’s inherent power to punish a person who contravenes an order with contempt of court.

15MN Application for leave-joinder as respondent

There may be situations where an operative, whose identity is protected by a certificate, may not have standing to be heard by the court in determining whether his or her identity should be disclosed.  For example, an operative may have infiltrated a group of people involved in organised criminal activity under an assumed identity.  One of the persons involved in the group has a dispute over an alleged breach of contract.  The operative appears for the plaintiff in a civil proceeding, in order to give evidence about the alleged breach.  A certificate is given protecting the operative identity, but opposing counsel applies to the court for leave to ask a question that may disclose the operative’s true identity under section.  If the plaintiff’s lawyer does not object, there will be no avenue for the operative (or their agency) to be heard by the court deciding whether or not to permit the disclosure.

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 to the application for leave as a respondent. Once joined as a respondent, the operative or chief officer will be entitled to appear and be heard on the application.  This will enable the operative or chief officer to provide the court with relevant information about why the operative’s identity should not be disclosed.

15MO Directions to jury

Section 15MO will apply if an operative, who has been given certificate, gives evidence in a proceeding that has a jury.  The court will be required, unless it considers it inappropriate, to direct the jury not to give the evidence of the operative any more or less weight, or draw any adverse inferences against the defendant, because of the certificate, or as a result of any orders made to protect the witness.  This is to ensure that verdict of the jury is not affected because of the need to protect the identity of an operative. 

15MP Adjournment for appeal decision

Section 15MP will allow a party to seek an adjournment to allow time for that party to decide whether to appeal a decision of the court (under sections 15MI, 15MK or 15MM) and to then make the appeal.  Where an application is made under this section, the court will be required to grant the adjournment.  The proceedings cannot continue until either a decision has been made by the party not to appeal or the appeal has been heard. 

If the appeal on these issues was to wait until after the conclusion of the proceedings, the operative’s true identity would already have been revealed.  By allowing an appeal at the time the original decision is made by the Court, the matter can be heard by the appeal court before the operatives true identity is revealed.  To wait until after the proceeding has concluded to hear the appeal would frustrate the objectives of the witness identity protection regime. 

15MQ Witness identity protection certificate-cancellation

Witness identity protection certificates protect the operative’s true identity and address on an ongoing basis.  However, there is no need for a certificate to remain in place if there is no longer any requirement to protect the operative’s identity.

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.  If a certificate has already been filed in a court, the chief officer will be required to immediately give written notice to the court and each party to the proceeding that the certificate has been cancelled.

This will provide a safeguard against the certificate being used as a shield against investigation or prosecution in the event of any improper conduct.  For example, an operative whose identity is protected by a certificate might give false evidence in a proceeding.  In such cases, it is important that the operative be prosecuted for an offence of perjury.  This may require revealing the operative’s identity, and would clearly be in the interests of justice to do so.

15MR Permission to give information disclosing operative’s identity etc

There may be circumstances in which information that discloses, or may lead to the disclosure of, the operative’s true identity or address needs to be given outside the context of the proceeding for which the certificate has been filed.  The Joint Working Group Discussion Paper gives the example of an operative who is giving under an assumed or court name in a criminal proceeding, who is required to give evidence at a disciplinary hearing of another police officer (page 181). 

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.  This will only be able to be done if the chief officer believes it is necessary or appropriate for the information to be given.

The written permission will be required to include certain matters, including: the name the person who may give the information, the name of the person to whom the information may be given, the information that may be given and how the information may be given.  The certificate would otherwise remain in force and the operative’s true identity or address could not be disclosed for any other reason.

15MS Disclosure offences

These offences, and the penalties attached, are intended to protect the safety of operatives, and assist the effective conduct of undercover operations.  While the certificate relates to only one proceeding, the protection of the operative’s identity is ongoing and it may be important to continue to protect the operative’s true identity even after that proceeding has finished.

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 subsection 15MS(1), 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.  This offence will be punishable by a maximum penalty of two years imprisonment.  The penalty for this offence is consistent with other non-disclosure offences in Commonwealth legislation.

Section 5.6 of the Criminal Code will apply automatic fault elements to the physical elements of the offence.  To establish this offence, the prosecution will need to prove beyond reasonable doubt that the person:

·          was reckless as to the circumstance that a certificate has been given

·          was reckless as to the circumstance that the certificate has not been cancelled

·          intentionally engages in conduct, and

·          was reckless as to the result of that conduct that the operative’s true identity or address is disclosed.

Paragraph 15MS(1)(e) is an exception to the offence, and subsection 13.3(3) of the Criminal Code will apply.  That is, it will be an exception to the offence if the conduct that the person engaged in was required, authorised or permitted under sections 15ML, 15MM or 15MR.  A defendant wishing to rely on the exceptions in paragraph 15MS(1)(e) to avoid criminal responsibility bears the evidential burden in relation to that matter.  The evidential burden of proof is set out in subsection 13.3(6) and requires the defendant to adduce or point to evidence that suggests a reasonably possibility that the matter exists or does not exist.  The prosecution would then need to refute this beyond reasonable doubt.

Under subsection 15MS(2), 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 and the person is reckless as to whether their conduct will endanger the health or safety of another person.  This offence will be punishable by a maximum penalty of 10 years imprisonment.  Setting the penalty at 10 years imprisonment is appropriate to ensure a significant deterrent for disclosing an operative’s true identity, where such a disclosure will endanger the health or safety of that operative or another person.  This penalty is consistent with the penalty recommended in the model laws.

Section 5.6 of the Criminal Code will apply automatic fault elements to the physical elements of the offence set out in paragraphs 15MS(2)(a) - (d).  Paragraph 15MS(2)(f) provides that the fault element for that physical element is recklessness.  To establish this offence, the prosecution will need to prove beyond reasonable doubt that the person:

·          was reckless as to the circumstance that a certificate has been given

·          was reckless as to the circumstance that the certificate has not been cancelled

·          intentionally engages in conduct

·          was reckless as to the result of that conduct that the operative’s true identity or address is disclosed, and

·          was reckless as to whether his or her conduct will endanger the health or safety of a person.

It will not be necessary for the prosecution to prove that the health or safety of a person was in fact endangered.

Similar to the offence described above, paragraph 15MS(2)(e) is an exception to the offence, and subsection 13.3(3) of the Criminal Code will apply.  That is, it will be an exception to the offence if the conduct that the person engaged in was required, authorised or permitted under sections 15ML, 15MM or 15MR.  A defendant wishing to rely on the exceptions in paragraph 15MS(2)(e) to avoid criminal responsibility bears the evidential burden in relation to that matter.  The evidential burden of proof is set out in subsection 13.3(6) and requires the defendant to adduce or point to evidence that suggests a reasonably possibility that the matter exists or does not exist.  The prosecution would then need to refute this beyond reasonable doubt.

Under 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 and 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. 

 

This offence will be punishable by a maximum penalty of 10 years imprisonment. Setting the penalty at 10 years imprisonment is appropriate to ensure a significant deterrent for disclosing an operative’s true identity, where such a disclosure will prejudice an investigation or intelligence-gathering in relation to a criminal activity.  The penalty is consistent with the penalty found in the model laws. 

Section 5.6 of the Criminal Code will apply automatic fault elements to the physical elements of the offence set out in paragraphs 15MS(3)(a) - (d).  Paragraph 15MS(3)(f) provides that the fault element for that physical element is recklessness.  To establish this offence, the prosecution will need to prove beyond reasonable doubt that the person:

·          was reckless as to the circumstance that a certificate has been given

·          was reckless as to the circumstance that the certificate has not been cancelled

·          intentionally engages in conduct

·          was reckless as to the result of that conduct that the operative’s true identity or address is disclosed, and

·          was reckless as to whether his or her conduct will prejudice the effective conduct of an investigation or intelligence-gathering in relation to criminal activity.

It will not necessary for the prosecution to prove that the effective conduct of an investigation or intelligence-gathering in relation to criminal activity was in fact prejudiced.

Similar to the offences described above, paragraph 15MS(3)(e) is an exception to the offence, and subsection 13.3(3) of the Criminal Code will apply.  That is, it will be an exception to the offence if the conduct that the person engaged in was required, authorised or permitted under sections 15ML, 15MM or 15MR.  A defendant wishing to rely on the exceptions in paragraph 15MS(3)(e) to avoid criminal responsibility bears the evidential burden in relation to that matter.  The evidential burden of proof is set out in subsection 13.3(6) and requires the defendant to adduce or point to evidence that suggests a reasonably possibility that the matter exists or does not exist.  The prosecution would then need to refute this beyond reasonable doubt.

15MT Evidentiary certificates

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 (see above). 

For each of the offences in section 15MS, the prosecution will need to prove, beyond reasonable doubt, that the person was reckless as to the circumstance that the certificate has not been cancelled.  Exceptions to each of the offences in section 15MS will apply where a person has engaged in conduct that was required, authorised or permitted under sections 15ML, 15MM or 15MR.

Section 15MT will allow a chief officer to sign a certificate stating, for the purposes of the matters described above, whether a certificate has not been cancelled, or whether the conduct that is the subject of the offence was required, authorised by or permitted under sections 15ML, 15MM or 15MR.

This certificate will be able to be used as prima facie evidence of the matters that are certified in it.  This would avoid the need for the chief officer to attend and give evidence in person.  The defendant will still be able to raise evidence to rebut the certificate.

15MU Reports about witness identity protection certificates-law enforcement agencies

As witness identity protection certificates should only be given in exceptional circumstances in order to protect the safety of persons or avoid compromising operations, it will be important to have appropriate accountability mechanisms in place.

Section 15MU will require the chief officer of law enforcement agency to submit an annual report to the Minister about the certificates given by the chief officer during that year.  Subsection 15MU(2) will set out the information that must be included in the report. 

Section 15MU(3) will make it clear that the report is not to contain information that discloses, or may lead to the disclosure of, the operative’s true identity or address, unless the certificate in relation to that operative has been cancelled.

The Minister must cause a copy of the report to be laid before each House of Parliament within 15 sitting days of that House after the day on which the Minister receives the report.

There is no requirement that the annual report on witness identity protection certificates be tabled as a stand alone document.  This means that provided the requirements in section 15MU are met, a report on witness identity certificates could be included in the agency’s annual report.

15MV Reports about witness identity protection certificates-intelligence agencies

As witness identity protection certificates should only be given in exceptional circumstances in order to protect the safety of persons or avoid compromising operations, it will be important to have appropriate accountability mechanisms in place.

Section 15MV will require the chief officer of an intelligence agency to submit an annual report to the Inspector-General of Intelligence and Security about the certificates given by the chief officer during that year.  Subsection 15MV(2) will set out the information that must be included in the report. 

Unlike the annual reporting requirements for certificates given by the chief officer of a law enforcement agency (see above), the report on certificates given by the chief officer of an intelligence agency will not be required to be tabled in Parliament.  Accordingly, there is no need for a requirement similar to subsection 15MU(3) - which requires certain information not to be included - as the report will not be made publicly available.

This is consistent with the reporting requirements for intelligence agencies under the assumed identity provisions in Part IAC.

Division 3 - Mutual Recognition under Corresponding Laws

15MW Recognition of witness identity protection certificates under corresponding laws

The model laws include provisions which provide for the recognition of witness identity protection certificates issued under corresponding laws.  This is to enable undercover operatives - who often have to work across jurisdictions - to be protected by a certificate issued by their home agency that is recognised in proceedings which may be held in another jurisdiction. 

Section 15MW will allow certificates issued under corresponding State or Territory laws as if they were issued under this Part.  For example, this will mean that the non-disclosure offences in section 15MS would apply regardless of the jurisdiction in which the certificate was given (provided the law under which the certificate was given is recognised as a corresponding law). 

A ‘corresponding witness identity protection law’ will be defined in subsection 15M(1) as a law or provision of a State or Territory that is prescribed by the regulations.

Division 4 - General

15MX Delegation

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.  ‘Senior Officer’ will be defined in subsection 15MX(3) for each of the law enforcement and intelligence agencies to which this Part applies.  This delegation is appropriately limited to very senior officials within the agency and is necessary to facilitate the effective use of the witness identity protection certificates. 

Part 2: Provisions relating to pre-commencement authorisations under State controlled operations law

Subdivision B of Division 3 of new Part IAB of the Crimes Act will provide protection from criminal liability for participants in controlled operations authorised under a corresponding controlled operations law of a State or Territory.  This protection will operate prospectively (that is, it will apply to relevant operations authorised on or after commencement of the new Part).

The recent High Court case of Gedeon v Commissioner of New South Wales Crime Commission [2008] HCA 43 highlighted the vulnerability of evidence arising from controlled operations that had been validly authorised under a State or Territory law and involved the commission of a Commonwealth offence. 

It is not uncommon for a State or Territory controlled operation to involve the commission of a Commonwealth offence as most controlled operations relate to drug offences, and most State or Territory drug offences are also offences against Commonwealth law.  It has not been the practice of State and Territory law enforcement agencies to seek additional Commonwealth authority for their controlled operations.  Officers of those agencies may therefore still be liable for any Commonwealth offences, and evidence obtained from these operations may be at risk of challenge.

Following Gedeon , there is a real risk that a court could exclude evidence obtained in such a controlled operation if that operation had not also been authorised under Commonwealth law. 

To address this issue, this Part 2 of Schedule 3 to the Bill seeks to provide retrospective protection for State and Territory controlled operations authorised prior to commencement of Schedule 3.

The items in this Part will operate to provide retrospective protection for evidence obtained from, and participants in, operations authorised under a State or Territory controlled operations law which may have involved the commission of Commonwealth offences.

Item 11 - Relationship to other laws and matters

Item 11 is the equivalent, for controlled operations validly authorised under a State controlled operations law before commencement of this Schedule 3, of new section 15GA of the Crimes Act, which applies to controlled operations authorised under State or Territory law after commencement of this Schedule 3. 

This item will protect evidence obtained under a State controlled operations law, which, in this context, means a law of a State or Territory, or a provision of a law of a State or Territory, prescribed by regulation.  This means that the protection offered by this item will not be limited to corresponding controlled operations laws, but will cover any controlled operations law that is, or has been, in force in a State or Territory.

The reason for the broader definition is that ‘corresponding controlled operation laws’ could only have been in place since 2003 at the earliest, when the Joint Working Group published its model controlled operation laws.  However, controlled operations laws have existed since at least 1996.

Subitem 11(3) provides that the protection given by this item will apply to controlled operations authorised prior to the commencement of this Schedule 3, whether the conduct otherwise constituting the Commonwealth offence occurred before, on or after commencement of the Schedule.  Subitem 11(3) provides that the protection will also apply to proceedings, including appeals, instituted before, on or after commencement of this Schedule 3.

However, subitem 11(5) provides that one exception to this application is that the Crown will not be permitted to appeal a ruling that a court made, prior to commencement of this Schedule 3, to exclude evidence on the basis that it was illegally obtained.  This restriction is included to ensure that where an accused person has had a ruling made in his or her favour, these retrospective amendments will not provide a ground of appeal for the prosecution.

Item 12 - Protection from criminal responsibility for conduct engaged in before, on or after commencement under a pre-commencement State authorisation

Item 12 is the equivalent (for conduct engaged in before, on or after commencement of these amendments, in a controlled operation validly authorised under a State or Territory law before commencement of these amendments) of new section 15HH of the Crimes Act (which applies to controlled operations authorised under State or Territory law after commencement of this Schedule 3).  

As with the prospective protection which will be provided by section 15HH, this item will ensure that participants who have engaged in conduct that has been authorised under a controlled operation are not criminally liable.

Item 13 - Effect of item 12 on other laws relating to criminal investigation

Item 13 is the equivalent, for controlled operations validly authorised under a State or Territory law before commencement of these amendments, of new section 15HI of the Crimes Act, which applies to controlled operations authorised under a State or Territory law after commencement of this Schedule 3.  It provides that the protection from criminal liability does not extend to other investigative conduct that is, or could have been, authorised under Commonwealth, State or Territory law.

Item 14 - Protection from criminal responsibility for certain ancillary conduct

Item 14 is the equivalent, for controlled operations validly authorised before commencement, of new section 15HJ of the Crimes Act, which applies to controlled operations authorised under a State or Territory law after commencement of this Schedule 3.  It provides protection from criminal liability for ancillary conduct (within the meaning of the Criminal Code) that relates to conduct protected by item 12.

This provision will only provide protection from criminal liability for Commonwealth ancillary offences.  The relevant State or Territory law would have included protection against State or Territory ancillary offences.

Item 15 - Evidence of authorities

Item 15 is the equivalent, for controlled operations validly authorised before commencement, of new section 15J of the Crimes Act, which applies to controlled operations authorised under a State or Territory law after commencement of this Schedule 3. 

It provides that an authority issued, before commencement of these amendments, under a State or Territory controlled operations law is, in the absence of evidence to the contrary, proof that the person who granted the authority was satisfied of the facts that he or she was required to be satisfied of to grant the authority.

Item 16 - Definitions

Item 16 will provide definitions for this Part 2 of Schedule 3. 

It should be noted that a State controlled operations law , which will be defined under this Part is different to a corresponding State controlled operations law , which will be defined in Part 1 of Schedule 3. 

A ‘State controlled operations law’ is a State or Territory law, or provisions of a State or Territory law, prescribed by regulation. A State controlled operations law will include legislation and provisions that are not based on the model legislation.  This will ensure that there is retrospective protection for evidence obtained from, and participants in, all operations validly authorised under State or Territory laws which may have involved the commission of Commonwealth offences.

Part 3 General application and transitional provisions

Item 17 - Controlled operations authorised before commencement continue under old law

This item is a transitional provision that will ensure that controlled operations authorised under the current Part IAB of the Crimes Act continue in force.  The current Part IAB, although repealed, will continue to apply to those operations as though it had not been repealed.

Item 18 - Controlled operations - continuation of Division 3 of Part IAB

This item is a savings provision that will ensure that controlled operations authorised prior to the commencement of the current Part IAB of the Crimes Act, which were continued in force by Division 3 of that Part, are not be deemed invalid because of the repeal of current Part IAB.  In the absence of this provision, controlled operations authorised prior to the commencement of the current Part IAB (in 1996) could be invalidated.  This could lead to challenges against evidence obtained from those operations being introduced in court proceedings.

 

Item 19 - Assumed identities - authorisations taken to be authority under new law

This item is a transitional provision that will ensure that any assumed identity authorities granted under the current Part IAC of the Crimes Act continue in force.  The current Part IAC, although repealed, will continue to apply to those authorities as though it had not been repealed.

 

Item 20 - Assumed identities - continuation of old law in relation to States without corresponding laws

 

This item will ensure that current section 15XH of the Crimes Act will continue to operate in relation to a State or Territory that is not a participating jurisdiction. 

 

Section 15XH states that the head of a participating State or Territory agency (defined at existing section 15XA of the Crimes Act) may authorise a person to acquire evidence of an assumed identity from any Commonwealth agency.  This means that, despite the repeal of section 15XH, any State or Territory that is not a participating jurisdiction (which will be defined at new section 15K as a jurisdiction that has a corresponding assumed identity law that is prescribed in regulations) can still acquire evidence of an assumed identity from a Commonwealth agency.

 

This item will also ensure that current Part IAC of the Crimes Act, and any other provision of the Crimes Act that relates to current Part IAC, continues to have effect in relation to authorisations granted under current Part IAC, as if Part IAC had not been repealed.

Part 4 - Consequential amendments of other legislation

Customs Act 1901

Item 11 - Section 219ZJA of the Customs Act 1901

This item will update a reference in the Customs Act 1901 to a current provision of the Crimes Act, to ensure that the Customs Act contains a reference to a provision in new Part IAB of the Crimes Act.

 

 

 

 



Schedule 4 - Other Amendments

 

Schedule 4, Part 1 - Criminal Code Act 1995

 

Introduction

Part 1 of Schedule 4 amends the extension of criminal liability provisions in Part 2.4 of the Criminal Code Act 1995 (the Criminal Code) to insert a new provision that extends criminal liability to persons who jointly commit an offence (joint commission).  This Part also contains minor and technical amendments, and consequential amendments, to Part 2.4. 

Part 2.4 of the Criminal Code (sections 11.1 - 11.6) contains provisions designed to extend criminal responsibility to persons who do not actually commit an offence, but:

·          attempt to commit an offence (attempt at 11.1)

·          are accomplices to the commission of an offence (complicity and common purpose at 11.2)

·          procure the commission of an offence by an agent (innocent agency at 11.3)

·          incite the commission of an offence, (incitement at 11.4) or

·          conspire with another person to commit an offence (conspiracy at 11.5).

 

Item 1 - Subsection 11.1(7)

 

This item inserts a reference to new section 11.2A (joint commission) and section 11.3 (commission by proxy) into subsection 11.1(7) of the Criminal Code. 

 

The insertion of a reference to section 11.2A into section 11.1(7) is a consequential amendment arising from the insertion of new section 11.2 A into Part 2.4.  The effect of this amendment is that a person cannot be charged with attempting to engage in conduct that meets the requirements of section 11.2A.  This is appropriate because joint commission only applies to completed offences.

 

The insertion of a reference to section 11.3 into section 11.1(7) is a minor and technical amendment that clarifies that a person cannot be charged with attempting to engage in conduct that meets the requirements of section 11.3.  The note in Item 4 of this Part, renames section 11.3 from ‘innocent agency’ to ‘commission by proxy’ (see item 4 for further explanation).  This is appropriate because commission by proxy only applies to completed offences.

 

Item 2 - Subsection 11.2(5)

 

This item omits the term ‘principal offender’ from subsection 11.2(5) and substitutes that term with ‘other person’.

 

This is a minor and technical amendment that ensures that section 11.2 is internally consistent.  As outlined above, section 11.2 extends criminal responsibility to persons who are accomplices to the commission of an offence by another person.  In most subsections in section 11.2, the person who is assisted by the accomplice is referred to as ‘other person’ whereas in subsection 11.2(5), that person is referred to as the ‘principal offender’.  Therefore, the reference to the term ‘principal offender’ is inconsistent with the rest of subsection 11.2, and potentially misleading. 

 

This amendment does not change the substantive effect of subsection 11.2(5).  The subsection continues to ensure that a person may be found guilty of aiding, abetting, counselling or procuring the commission of an offence even if the ‘other person’ has not been prosecuted or has not been found guilty.

 

Item 3 - Subsection 11.2(6)

 

This item omits the words ‘to the offence of aiding, abetting, counselling or procuring the commission of that offence’ from subsection 11.2(6) and substitutes those words with ‘for the purposes of determining whether a person is guilty of that offence because of the operation of subsection (1)’.

This minor and technical amendment ensures that 11.2(6) does not mistakenly refer to section 11.2 as an independent offence.  The words ‘to the offence of aiding, abetting, counselling or procuring the commission of that offence’ mistakenly suggest section 11.2 is an offence.  Section 11.2 is not an offence, because liability under this provision is derived from a connection to a principal offence.  Liability depends on proof that another person or persons committed the offence. 

This amendment does not change the substantive effect of subsection 11.2(6). 

Item 4 - After subsection 11.2

 

This item inserts a new section 11.2A (joint commission) into Part 2.4 of the Criminal Code. 

 

Joint commission applies when two or more people agree to commit an offence together, and an offence is committed under that agreement.  The effect of joint commission is that responsibility for criminal activity engaged in under the agreement by one member of the group is extended to all other members of the group.  Given that joint commission is a provision that extends criminal responsibility for offences, it is being inserted into Part 2.4, alongside other provisions that extend criminal responsibility to persons who were not wholly responsible for committing an offence.

 

People who jointly commit an offence under this provision are to be known as ‘joint offenders’, as distinct from accomplices, to reflect joint responsibility for the commission of an offence. 

 

Reasons for inserting joint commission into Part 2.4

 

The new joint commission provision addresses a gap in Part 2.4 of the Criminal Code by introducing into the Code the common law principle of ‘joint criminal enterprise’ (sometimes referred to as offenders ‘acting in concert’ in the commission of an offence). 

 

None of the existing grounds for extending criminal responsibility in Part 2.4 capture circumstances where there is an agreement to commit an offence, and the offence is committed under that agreement. 

Prior to the enactment of the Criminal Code, the prosecution would have relied upon the common law principle of joint criminal enterprise to capture offenders who acted together in the commission of an offence. 

The view that joint criminal enterprise is not available under the Criminal Code has been confirmed in cases prosecuted after the enactment of the Criminal Code.  For example, in the unreported case of R v Pui Man Liu and Sin Chun Wong , Justice Keleman of the New South Wales District Court held that joint criminal enterprise did not exist under the Code. 

Subsection 11.2A(1)

 

Subsection 11.2A(1) sets out the circumstances in which joint commission applies, and its effect.

 

The threshold requirements for the application of joint commission are:

 

  • a person and at least one other person enter into an agreement to commit an offence, and either
  • an offence is committed in accordance with that agreement, or
  • an offence is committed in the course of carrying out the agreement. 

 

The other requirements for the application of joint commission are set out in subsections 11.2A(2) - 11.2A(8).  The meaning of agreement is set out in 11.2A(5).  The detail of how an offence may be committed in accordance with the agreement, or committed in the course of carrying out the agreement are set out in subsections 11.2A(2) and 11.2A(3).  Offences committed under an agreement are known as ‘joint offences’.

 

Where these threshold requirements are met, the effect of joint commission is to extend criminal responsibility for joint offences to each party to the agreement.  A person that is convicted of a joint offence is liable to receive the penalty prescribed for that offence. 

The default fault elements in section 5.6 of the Criminal Code do not apply to subsection 11.2A(1).  The fault element for entering into an agreement to commit an offence is provided in subsection 11.2A(2). 

Subsection 11.2A(2)

 

Subsection 11.2A(2) sets out the requirements for how a joint offence may be committed ‘in accordance with’ an agreement to commit an offence, referred to in subparagraph 11.2A(1)(b)(i). 

 

If the requirements of this subsection are met, joint commission will apply to extend criminal responsibility to a person for a joint offence committed in accordance with the agreement. 

 

The first requirement is that the joint offence that is actually committed must be an offence of the same type as the offence agreed to.  The requirement is broad enough to cover situations where the exact offence agreed to may not have been committed by the parties to the agreement, but a joint offence of the same type was committed.  This is particularly relevant where people agree to commit a specific drug offence, but the quantity of the drugs, or the type of drug varies from the offence agreed to.  For example, if two people agree to import 1 kilogram of cocaine (marketable quantity), and instead import 1.5 kilograms of heroin (commercial quantity), this definition is broad enough to capture the offence of importing 1.5 kilograms of heroin, because it is an offence of the same type as the offence agreed to. 

 

The other requirements that this subsection imposes are:

 

  • the conduct of one or more parties must make up the physical elements consisting of conduct of the joint offence
  • where an element of the joint offence consists of a result of conduct, that result arises from the conduct engaged in, and
  • where an element of the joint offence consists of a circumstance, the conduct engaged in, or a result of the conduct engaged in, occurs in that circumstance.

 

These other requirements work together to ensure the prosecution is required to demonstrate the existence of all the physical elements of the joint offence.  The structure of the subsection is designed to address the three types of physical elements that may be present in a Commonwealth offence (as set out in section 4.1 of the Criminal Code), and recognises that offences commonly contain more than one physical element. 

 

The key paragraph is 11.2A(2)(a) which provides that the physical elements of conduct of the joint offence may be proved by demonstrating that one or more parties to the agreement engaged in that conduct.  This allows the prosecution to aggregate the criminal conduct of parties to the agreement.  This aggregation is consistent with the common law formulation of joint criminal enterprise found in  McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108 at 118; and confirmed in Clayton v R [2006] HCA 58; (2006) 231 ALR 500.

The ability to aggregate the conduct of parties to the agreement is the central point of joint commission.  This enables the prosecution to target groups who divide criminal activity between them.  For example, the prosecution would be able to charge two offenders with robbery by aggregating their conduct where one offender makes a threat and the other offender appropriates the Commonwealth property (section 132.2 of the Criminal Code). 

Further, the ability aggregate the conduct of the parties to the agreement means that it is not necessary for the prosecution to specify which party to the agreement engaged particular conduct.  This is helpful in situations where it is not possible to determine with precision the role of each party to the agreement.

The ability to aggregate the conduct of parties to the agreement also enables the prosecution to charge more serious offences.  This is particularly relevant for drug offences, where the penalties are linked to the quantity of drugs dealt with (section 314.1 of the Criminal Code sets out the quantity of controlled drugs required for a trafficable quantity, marketable quantity and commercial quantity). 

For example, the prosecution would be able to charge three defendants with importing a commercial quantity of heroin (1.5 kilograms of heroin) by aggregating the conduct of each offender where they import 500 grams each.  The offence of importing a commercial quantity of heroin carries a penalty of life imprisonment or 7,500 penalty units (section 307.1 Criminal Code).  Without aggregation, each party to the agreement to import 1500 grams of heroin could only be charged with importing a marketable quantity, attracting a maximum penalty of 25 years imprisonment. 

Subsection 11.2A(3)

 

Subsection 11.2A(3) sets out the requirements for how a joint offence may be committed ‘in the course of carrying out’ an agreement to commit an offence, referred to in 11.2A(1)(b)(ii). 

 

If the requirements of this subsection are met, joint commission will apply to extend criminal responsibility to a person for a joint offence committed in the course of carrying out the agreement. 

 

This subsection provides that a joint offence is committed in the course of carrying out the agreement where:

  • an offence, other than the offence agreed to, was committed by another party to the agreement (also known as a collateral offence)
  • in the course of carrying out the agreement, and
  • the person was reckless as to the commission of that collateral offence by the other party.

 

Recklessness is a fault element defined in section 5.4 of the Criminal Code.  In accordance with section 5.4, the person will be reckless with respect to the commission of a collateral offence by another party to the agreement, if he or she is aware of a substantial risk that the offence will be committed, and having regard to the circumstances known to him or her, it is unjustifiable to take that risk.

 

The operation of this subsection is explained through the following example.

For example, persons A and B agree to commit the Commonwealth offence of people smuggling by bringing two non-citizens into Australia (section 73.1 Criminal Code).  In the course of transporting the non-citizens to Australia, person B conceals 500 grams of heroin and imports it into Australia.  Here, the collateral offence would be importing a marketable quantity of drugs (section 307.2 Criminal Code).

 

If the prosecution can prove that person A was aware of a substantial risk that person B would import drugs into Australia and it was unjustifiable to take that risk, then this subsection will apply to extend criminal responsibility for the collateral offence to person A. 

 

This subsection slightly modifies the common law principle of extended common purpose to ensure consistency with the Criminal Code.  The common law principle provides that if a party to an agreement to commit an offence foresees the possibility that a collateral offence will be committed, and, despite that foresight, continues to participate in the agreement, that party will be held criminally responsible for the collateral offence: McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108 at 118; Gillard v The Queen [2003] HCA 64; (2003) 219 CLR 1 at 36 [112].  In this subsection, the possible foreseeability test is replaced with a test of recklessness, as recklessness is the appropriate fault element in the Criminal Code and is most consistent with the common law. 

The rationale for this provision is:

  • it will act as a deterrent for people who are considering whether to participate in group criminal activity, and
  • people who choose to commit crimes in concert with others, should share responsibility for criminal activity that occurs during the course of carrying out the agreement to commit an offence.

 

These arguments are expressed by Justice Kirby in Gillard v The Queen (2003) 219 CLR 1, [62].  

Those who participate in activities highly dangerous to life and limb share equal responsibility for the consequences of the acts that ensue. This is because, as the law’s experience shows, particularly when dangerous weapons are involved in a crime scene, whatever the actual and earlier intentions of the secondary offender, the possibility exists that the primary offender will use the weapons, occasioning death or grievous bodily harm to others. The law then tells the secondary offender not to participate because doing so risks equal inculpation in such serious crimes as ensue.

 

Subsection 11.2(4)

 

Subsection 11.2(4) provides that joint commission will apply where the person and one other party to the agreement intended to commit an offence under the agreement.

 

Intention is a fault element defined in section 5.2 of the Criminal Code.  This subsection requires the person to have intention with respect to a physical element of conduct (conduct that would constitute the commission of an offence in accordance with the agreement).  Section 5.2 provides that a person has intention with respect to conduct if he or she means to engage in that conduct.

 

Joint commission will only apply to a party to an agreement to commit an offence, if that person means to engage in conduct that would bring that offence about.  For example, joint commission will not apply to people who joked about impersonating a Commonwealth public official, but did not intend to actually commit that offence (section 148.1 Criminal Code). 

 

Subsection 11.2(4) does not have the effect of altering the fault elements applicable to the joint offence. 

 

Subsection 11.2(5)

 

Subsection 11.2(5) ensures that a non-verbal understanding is covered by the term ‘agreement’, and provides a temporal requirement for when an agreement to commit an offence can occur for the purpose of joint commission.

 

‘Agreement’ is intended to be broad in its meaning and to capture any agreement, arrangement or understanding that can be implied or inferred taking into account all of the circumstances.  This is consistent with case law on the application of the common law principle of joint enterprise: McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108 at 118 [12].  For example, ‘agreement’ is intended to include:

 

  • express agreements - verbal or written understandings, communicated in person or through electronic means such as phone or internet, and
  • implied agreements - non-verbal understandings communicated through a person’s actions, gestures, or implied through other means.

 

Subsection 11.2(5)(b) provides that the agreement may be entered into before, or at the same time as, the conduct constituting any of the physical elements of the joint offence was engaged in.  This timing ensures that joint commission applies to agreements made before the joint offence was completed and also at the time the joint offence was being committed.  For example, if two separate burglars meet while breaking into one Commonwealth building, they may assist each other and share the stolen property without communicating verbally or making any prior agreements or arrangements about the burglary (see section 132.4 Criminal Code).

 

Subsection 11.2(6)

 

Subsection 11.2(6) provides that a person cannot be found guilty of a joint offence if, before the offence was committed, the person terminated his or her involvement and took all reasonable steps to prevent the commission of the offence.

 

This section acts as a safeguard to prevent joint commission from applying to a person who genuinely withdraws from an agreement to commit an offence.  The person is required to ‘take all reasonable steps to prevent the commission of the offence’.  What will amount to taking all reasonable steps will vary according to the case, but examples may include:

 

  • discouraging the other parties to the agreement
  • alerting the proposed victim
  • withdrawing goods necessary for committing the crime (for example, a getaway car or weapon), and
  • giving a timely warning to law enforcement authorities, before the offence is committed. 

 

The withdrawal provision acts a defence to the application of joint commission, since a person ‘cannot be found guilty’ if they withdraw from the commission of an offence.  Therefore, by virtue of subsection 13.3(3) of the Criminal Code, the defendant will bear an evidential burden of proof to point to evidence that suggests a reasonable possibility that the requirements of subsection 11.2A(6) are satisfied. 

 

This paragraph is consistent with subsection 11.2(4) in the complicity and common purpose provision. 

 

Subsection 11.2(7)

 

Subsection 11.2(7) provides that a person can be convicted of a joint offence even where the following circumstances exist:

 

  • one other party to the agreement has not been prosecuted or found guilty, or
  • where the person was not present when any of the conduct that made up the joint offence occurred.

 

Paragraph 11.2(7)(a) provides that joint commission will apply regardless of the status of criminal proceedings against other parties to the agreement.  This reflects the position that criminal responsibility under joint commission is not dependent on whether other parties to the agreement are found guilty of the joint offence.  This paragraph is consistent with subsection 11.2(5) in the complicity and common purpose provision. 

 

Paragraph 11.2(7)(b) provides that joint commission will apply regardless of whether a person was absent when conduct making up the physical elements of the joint offence occurred.  This provision recognises that offences can be committed by offenders, acting in pursuance of an agreement, who may not be in close physical proximity to each other, or to their victim (if applicable).  Further, given that many offences can be committed through electronic communication such as telephones or the internet, it is appropriate that joint commission apply in circumstances where parties to the agreement were not present when conduct making up the physical elements of the joint offence occurred. 

 

Subsection 11.2A(8)

 

Subsection 11.2A(8) provides that any ‘special liability provisions’ which apply to the joint offence also apply to joint commission. 

 

The Dictionary to the Criminal Code provides a definition of special liability provisions.  There are three types of special liability provisions:

  • a provision that provides that absolute liability applies to one or more (but not all) of the physical elements of an offence; or
  • a provision that provides that, in a prosecution for an offence, it is not necessary to prove that the defendant knew a particular thing; or
  • a provision that provides that, in a prosecution for an offence, it is not necessary to prove that the defendant knew or believed a particular thing.

 

Special liability provisions in the Criminal Code are often used to relieve the prosecution from the need to prove fault with respect to jurisdictional elements of an offence.  A jurisdictional element of an offence is an element that does not relate to the substance of the offence, but marks a jurisdictional boundary between matters that fall within the legislative power of the Commonwealth, States or Territories.  Generally, absolute liability applies to jurisdictional elements of Commonwealth offences.

 

The effect of this subsection is to ensure that any special liability provisions that apply to the joint offence also apply for the purposes of determining whether a person is guilty of that offence through joint commission.

 

This subsection is consistent with the following provisions: attempt at 11.1(6A), complicity and common purpose at 11.2(6), incitement at 11.4(4A), and conspiracy at 11.5(7A).  

 

Note below subsection 11.2A(8)

 

The note below subsection 11.2A(8) replaces the current heading to section 11.3 of the Criminal Code, ‘Innocent Agency’, with ‘Commission by Proxy’.  This amendment is not related to joint commission.

 

This is a minor and technical amendment which ensures that the heading to section 11.3 reflects its purpose and operation.  Section 11.3 applies to defendants who use another person as their agent or instrument to commit an offence.  A defendant can be convicted of an offence if they procure another person to engage in conduct that would amount to that offence or part of that offence.  The provision can apply both where the agent unwittingly engages in conduct that constitutes an offence (sometimes referred to as an ‘innocent agent’) and where the agent has some knowledge of the offence they have committed.  

The title ‘Innocent Agency’ is therefore misleading as it does not capture situations where the agent has some knowledge of the crime for which they acted as an agent.  ‘Commission by proxy’ more accurately reflects the operation of the section.

Item 5 - Subsection 11.6(4)

 

This item amends the note beneath subsection 11.6(4) of the Criminal Code to omit a reference to section 11.3 (innocent agency) and substitute it with a reference to sections 11.2A (joint commission) and 11.3 (commission by proxy).

 

This is a consequential amendment that updates subsection 11.6(4) to refer to new section 11.2A, and the new heading to section 11.3. 

 

The effect of this amendment is that section 11.6(4) will not refer to 11.2A or 11.3 as offences against a law of the Commonwealth.  This is appropriate because these sections are extension of criminal responsibility provisions rather than independent offences. 

 

Item 6 - Subsection 14.1(1)

 

This item amends the note beneath subsection 14.1(1) of the Criminal Code to omit a reference to subsection 11.2(1) and substitute it with a reference to subsections 11.2(1) and 11.2A(1).

 

This is a consequential amendment that updates subsection 14.1(1) to refer to the new joint commission provision. 

 

The effect of the amendment is that references to ‘offence’ in section 14.1(1) will be supported by a note indicating that subsection 11.2A(1) and other relevant provisions give the expression ‘offence’ an extended meaning.  This is appropriate because section 11.2A extends criminal responsibility for joint offences.

 

Item 7 - Subsection 15.1(1)

 

This item amends the note beneath subsection 15.1(1) of the Criminal Code to omit a reference to subsection 11.2(1) and substitute it with a reference to subsections 11.2(1) and 11.2A(1).

 

This is a consequential amendment that updates subsection 15.1(1) to refer to the new joint commission provision.  

 

The effect of the amendment is that references to ‘offence’ in section 15.1(1) will be supported by a note indicating that subsection 11.2A(1) and other relevant provisions give the expression ‘offence’ an extended meaning.  This is appropriate because section 11.2A extends criminal responsibility for joint offences.

 

Item 8 - Subsection 15.2(1)

 

This item amends the note beneath subsection 15.2(1) of the Criminal Code to omit a reference to subsection 11.2(1) and substitute it with a reference to subsections 11.2(1) and 11.2A(1).

 

This is a consequential amendment that updates subsection 15.2(1) to refer to the new joint commission provision.  

 

The effect of the amendment is that references to ‘offence’ in section 15.2(1) will be supported by a note indicating that subsection 11.2A(1) and other relevant provisions give the expression ‘offence’ an extended meaning.  This is appropriate because section 11.2A extends criminal responsibility for joint offences.

 

Item 9 - Subsection 15.3(1)

 

This item amends the note beneath subsection 15.3(1) of the Criminal Code to omit a reference to subsection 11.2(1) and substitute it with a reference to subsections 11.2(1) and 11.2A(1).

 

This is a consequential amendment that updates subsection 15.3(1) to refer to the new joint commission provision.  

 

The effect of the amendment is that references to ‘offence’ in section 15.3(1) will be supported by a note indicating that subsection 11.2A(1) and other relevant provisions give the expression ‘offence’ an extended meaning.  This is appropriate because section 11.2A extends criminal responsibility for joint offences.

 

Item 10 - Section 15.4

 

This item amends the note beneath section 15.4 of the Criminal Code to omit a reference to subsection 11.2(1) and substitute it with a reference to subsections 11.2(1) and 11.2A(1).

 

This is a consequential amendment that updates subsection 15.4 to refer to the new joint commission provision.  

 

The effect of the amendment is that references to ‘offence’ in section 15.4 will be supported by a note indicating that subsection 11.2A(1) and other relevant provisions give the expression ‘offence’ an extended meaning.  This is appropriate because section 11.2A extends criminal responsibility for joint offences.

 

Item 11 - Subsection 70.5(1)

 

This item amends the note beneath subsection 70.5(1) of the Criminal Code to insert a reference to subsection 11.2A.

 

This is a consequential amendment that updates subsection 70.5(1) to refer to the new joint commission provision.

 

The effect of the amendment is that references to ‘offence’ in section 70.5(1) will be supported by a note indicating that subsection 11.2A(1) and other relevant provisions give the expression ‘offence’ an extended meaning.  This is appropriate because section 11.2A extends criminal responsibility for joint offences.

 

Item 12 - Paragraph 302.6(a)

 

This item amends paragraph 302.6(a) of the Criminal Code to insert a reference to subsection 11.2A.

 

This is a consequential amendment that updates paragraph 302.6(a) to refer to the new joint commission provision.  The effect of this amendment is that joint commission cannot apply to hold a person criminally responsible for an offence against Division 302 of the Criminal Code merely because the person purchases or intends to purchase a controlled drug from another person. 

 

This amendment is consistent with the policy behind this provision.  The other extensions of criminal responsibility provisions (including section 11.2, 11.4 or 11.5) are also excluded from operating to make a person responsible for an offence against the Division because the person purchases, or intends to purchase, a controlled drug from another person.

 



Item 13 - Dictionary in the Criminal Code (paragraph (b) of the definition of ancillary offence )

 

This item amends paragraph (b) the definition of ancillary offence in the dictionary of the Criminal Code to insert a reference to subsection 11.2A.

 

This is a consequential amendment that updates the definition of ancillary offence to refer to the new joint commission provision.  This is appropriate because joint commission is an extension of criminal responsibility provision rather than an independent offence. 

 



Schedule 4, Part 2 - Amendments to the Telecommunications (Interception and Access) Act 1979

Introduction

Schedule 4 Part 2 amends the definition of “serious offence” within section 5D of the Telecommunications (Interception and Access) Act 1979 (the TIA Act) to include particular conduct that would target associating with, contributing to, aiding and conspiring with a criminal organisation or a member of that organisation for the purpose of supporting the commission of prescribed offences. 

The purpose of the amendments is to allow telecommunications interception to be available for the investigation of these offences by State and Territory law enforcement agencies.  Schedule 4 Part 2 also includes amendments to defined “associate”, “criminal organisation” and “member”.

The amendments respond to the growing effect of organised crime on the Australian community and recent legislative action from State and Territory Governments who have introduced new serious and organised crime offences.

Item 14 - Subsection 5(1)

 

Item 14 of Part 2 of Schedule 4 inserts a definition of “associate” in relation to the new offences that will be included in the definition of “serious offence” in section 5D of the TIA Act by Item 17.  The definition draws on the definition of associate in the Crimes (Criminal Organisations Control) Act 2009 of New South Wales (the NSW Act) and the Serious and Organised Crime (Control) Act 2008 of South Australia (the SA Act).   This definition will ensure an individual is taken to “associate” with a criminal organisation if they are in communication with the organisation, or a member of the organisation, even if they are not involved in face to face contact with the organisation or one of its members.

Item 15 - Subsection 5(1)

 

Item 15 inserts a definition of “criminal organisation” into the TIA Act.  The definition will provide greater clarity for both interception agencies and issuing authorities when applying for and assessing applications for telecommunications interception warrants for the investigation of serious and organised crime offences. 

 

The definition makes reference to organisations which have been declared under either the NSW or SA Acts. 

 

The definition will also provide for the Attorney-General to prescribe certain State and Territory laws which define a criminal organisation to ensure that the TIA Act provides for a national approach to combating serious and organised crime and encompasses any new laws enacted by States and Territories.

Item 16 - Subsection 5(1)

 

Item 16 inserts a definition of “member” into subsection 5(1) of the TIA Act to clarify which individuals will be considered members of criminal organisations.  The definition of member is based on the NSW and SA Acts and includes prospective members of an organisation, as well as individuals who identify themselves as members of a criminal organisation or individuals who are perceived as members.  This provision will ensure that all persons who participate in the activities of a criminal organisation which generally do not have any formal structure, as in a body corporate or registered corporation, fall within the term ‘member’.

Item 17 - New subsection 5D(9)

 

Interception agencies can apply for a telecommunications interception warrant in relation to the investigation of a serious offence.

 

“Serious offence” is defined in section 5D of the TIA Act and is an offence which generally carries a maximum penalty of at least seven years’ imprisonment.  Some serious offences carry a penalty lower than the seven year imprisonment threshold, often for offences where telecommunications play an important role in the commission of the offence (such as cybercrime offences or offences relating to the production and distribution of child pornography).

 

Item 17 amends section 5D of the TIA Act to include offences relating to an individual’s involvement in serious and organised crime.

 

The conduct targeted includes:

·          associating with a criminal organisation, or a member of a criminal organisation;

·          contributing to the activities of a criminal organisation;

·          aiding, abetting, counselling or procuring the commission of a prescribed offence for a criminal organisation;

·          being, by act or omission, in any way, directly or indirectly, knowingly concerned in, or party to, the commission of a prescribed offence for a criminal organisation; or

·          conspiring to commit a prescribed offence for a criminal organisation.

 

Telecommunications interception needs to be available for the investigation of these offences to ensure that law enforcement agencies can obtain the most effective evidence of an individual’s involvement with serious and organised crime.

 

The provisions refer to the commission and facilitation of “prescribed offences”.  A prescribed offence is defined in the TIA Act as either a serious offence, or an offence which carries a maximum penalty of at least three years’ imprisonment.  This measure recognises the invasive nature of telecommunications interception and ensures that the community’s expectations of both operational effectiveness and appropriate protections for privacy are balanced.

Item 18 - Application

 

Item 18 is a new provision which enables conduct within the meaning of the new provisions to be investigated whether or not the conduct in question occurred before or after the conduct was included in the definition of “serious offence”.

 



Part 3 - Regulations

Item 19  Regulations

Item 19 will allow the Governor-General to make regulations necessary for, or prescribed by, the TIA Act.  In particular, this power is necessary to ensure that State controlled operations and assumed identity laws can be prescribed for the purposes of the retrospective protection set out in Schedule 3.