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Crimes Legislation Amendment (Serious and Organised Crime) Bill 2010

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2008-2009

 

 

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

 

 

SENATE

 

 

 

 

CRIMES LEGISLATION AMENDMENT (SERIOUS AND ORGANISED CRIME) BILL 2009

 

 

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

 

Amendments to be Moved on Behalf of the Government

 

 

 

 

 

 

(Circulated by authority of the Attorney-General,

the Honourable Robert McClelland MP)

 

 

 



CRIMES LEGISLATION AMENDMENT (SERIOUS AND ORGANISED CRIME) BILL 2009

 

GENERAL OUTLINE

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

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

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

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

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

The purpose of these Government amendments is to insert an additional ground on which the court may grant a revocation of a preliminary unexplained wealth order or a restraining order.  The amendments would also insert a new provision allowing for the revocation of a freezing order.  These amendments will allow a court that is hearing a revocation order to have regard to matters that are relevant to the interests of justice. 

The amendments respond to the High Court’s decision in International Finance Trust Company Limited v New South Wales Crime Commission [2009] HCA 49.

 

FINANCIAL IMPACT STATEMENT

The amendments to the Bill will have no financial impact.

ACRONYMS

CDPP                          Commonwealth Director of Public Prosecutions

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



NOTES ON CLAUSES

Amendment (1)

 

This amendment provides that Parts 6 and 7 of the Bill will commence on the day after the Act receives Royal Assent.  This amendment is consequential on the insertion of Part 7 by amendment (6).

 

Amendment (2)

 

This amendment deletes the word ‘so’ in proposed paragraph 179C(5)(b) and replaces it with ‘so; or’.  This amendment is consequential to amendment (3), which inserts an additional ground for revoking a preliminary unexplained wealth order at proposed paragraph 179C(5)(c).

 

Amendment (3)

 

This amendment inserts an additional paragraph 179C(5)(c) at the end of proposed subsection 179C(5), which will allow the court to revoke a preliminary unexplained order where it is satisfied that it is in the interests of justice to do so.  Proposed paragraph 179C(5)(c) will operate in addition to the current grounds in proposed paragraphs 179C(5)(a) and 179C(5)(b).  This amendment will ensure that a court hearing a revocation application can have regard to other matters that are relevant to the administration of justice.

 

Amendment (4)

This amendment omits proposed section 15J and replaces it with a new section that sets out the service requirements that apply to freezing orders.

If a magistrate makes a freezing order, the authorised officer that applied for the freezing order must provide the following things to the financial institution and to each account holder:

·        a copy of the freezing order, and

·        a written statement of the name and contact details of the enforcement agency with which the authorised officer that applied for the freezing order is associated, as defined by section 338 of the Proceeds of Crime Act 2002 .

Section 338 of the Proceeds of Crime Act 2002 defines ‘authorised officer’ as a person that is employed by or otherwise linked to specific Commonwealth law enforcement agencies. 

The purpose of this amendment is to ensure that financial institutions and account holders are notified that a freezing order has been made.  The amendment ensures that the financial institution and account holders are provided with the name and contact details of the enforcement agency associated with the application for the order.  This will enable persons that apply for revocation of a freezing order to notify the relevant enforcement agency.

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.

Amendment (5)

This amendment inserts new Division 6 that sets out the process for revoking freezing orders. 

Subsection 15R(1) enables a person to apply to a magistrate to revoke a freezing order.

Subsection 15R(2) provides that the applicant for the revocation must give written notice of the application and the grounds on which revocation is sought to the enforcement agency with which the authorised officer that applied for the freezing order is associated.  The applicant for the revocation will be able to obtain the name and contact details of the relevant enforcement agency by referring to the written statement provided for in paragraph 15J(2)(b).

Subsection 15R(3) allows the following officers to introduce additional evidence at the hearing to revoke the order:

·        the authorised officer who applied for the freezing order

·        the authorised officer whose affidavit supported the application for the freezing order, and

·        an authorised officer that is associated with the same enforcement agency as the officer that applied for the freezing order.

 

Subsection 15R(4) provides that a magistrate may revoke the freezing order if satisfied that it is in the interests of justice to do so.  This amendment will ensure that a court that is hearing a revocation application can have regard to matters that are relevant to the administration of justice.

Section 15S provides that where a freezing order is revoked, the authorised officer that applied for the freezing order must give written notice of that revocation to the financial institution and account holders.  However, the section does not require the authorised officer to give notice to the person who applied for the revocation.

Amendment (6)

 

This amendment will insert proposed items 106 and 107 to the Bill.

 

Item 106 will repeal subsection 42(5) of the Proceeds of Crime Act 2002 , and replace it with a new section setting out the test for revoking a restraining order.  The proposed subsection will allow a court to revoke a restraining order if it is satisfied that there is no basis on which to make the restraining order at the time that the revocation application is considered, or if the court is satisfied that it is otherwise in the interests of justice to do so.  This amendment will ensure that, in addition to considering whether there is a basis for making a restraining order, a court that is hearing a revocation application will also be able to have regard to other matters that are relevant to the administration of justice.

 

Item 107 contains the application and transitional provisions in relation to item 106. The proposed amendments to section 42 will apply to proceedings for the revocation of a restraining order on or after the commencement of the amendment, whether the application for that revocation was made before, on or after commencement.  This is necessary to ensure that people who have applied for revocation of a restraining order, but are yet to have their application heard, are able to have their application determined in accordance with the new expanded grounds for revocation of a restraining order.

 

Where a person has applied for revocation of a restraining order but the order has not been determined, an applicant will be able to vary his or her application for revocation to take into account proposed paragraph 42(5)(b).  If an applicant varies his or her application, he or she must give a copy of the application as varied and written notice of the additional grounds that he or she intends to rely on, to the CDPP and Official Trustee.  The CDPP may adduce additional material to the court in response to an amended application for revocation.