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

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2008-2009-2010

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

SENATE

 

 

 

 

 

 

 

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

 

 

 

 

 

REPLACEMENT EXPLANATORY MEMORANDUM

 

 

 

 

 

 

(Circulated by authority of the Attorney-General, 

the Honourable Robert McClelland MP)

 

 

 

THIS MEMORANDUM REPLACES THE EXPLANATORY MEMORANDUM PRESENTED TO THE HOUSE OF REPRESENTATIVES

ON 16 SEPTEMBER 2009

 

 

 

 

 



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

GENERAL OUTLINE

This Bill amends the Administrative Decisions (Judicial Review) Act 1977 , the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 , the Australian Crime Commission Act 2002 , the Crimes Act 1914 , the Criminal Code Act 1995 , the Customs Act 1901 , the Law Enforcement Integrity Commissioner Act 2006 , the Mutual Assistance in Criminal Matters Act 1987 , the Proceeds of Crime Act 2002 , the Surveillance Devices Act 2004 , the Telecommunications (Interception and Access) Act 1979 , and the Witness Protection Act 1994 .

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.  In June 2009, the Government introduced the Crimes Legislation Amendment (Serious and Organised Crime) Bill, which implements the Commonwealth’s commitment at the April SCAG meeting to enhance its legislation to combat organised crime.  In August 2009, SCAG agreed to further legislative and operational arrangements to support the national response to organised crime.

This Bill implements legislative aspects of the national response to organised crime that were not implemented by the first Bill, and includes additional measures to strengthen existing laws to more effectively prevent, investigate and prosecute organised crime activity, and target the proceeds of organised criminal groups.  The Bill: 

·          strengthens criminal asset confiscation and anti-money laundering laws (Schedule 1 and Schedule 5, Part 2)

·          enhances search and seizure powers and the ability of law enforcement to access data from electronic equipment (Schedule 2)

·          improves the operation of the National Witness Protection Program, including by increasing protection for current and former participants and officers involved in its operation (Schedule 3)

·          introduces new offences that would target persons involved in organised crime , and facilitates greater access to telecommunications interception for the investigation of new serious and organised crime offences (Schedule 4)

·          improves the operation and accountability of the Australian Crime Commission (Schedule 7)

·          improves money laundering, bribery, and drug importation offences (Schedule 5, Part 1, and Schedules 8 and 9), and

·          makes minor and consequential amendments to correct references to provisions dealing with the extension of criminal liability (Schedules 10 and 11).

The Bill also makes an urgent amendment to preserve the ability of federal defendants in Victoria to appeal a finding that they are unfit to plead (Schedule 6).

These measures are further described below. 

PURPOSE

 

The purpose of Schedule 1 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 on the Independent Review of the Operation of the Proceeds of Crime Act 2002 (Cth) , by Mr Tom Sherman AO, which was tabled in Parliament in October 2006. 

 

The amendments in Schedule 1 will:

·          make tests for exclusion and recovery of property fairer and more consistent, including by strengthening protections for third parties

·          improve the operation of examination provisions

·          increase the effectiveness of information gathering tools under the Proceeds of Crime Act

·          clarify the operation of orders ancillary to restraining orders

·          address technical recommendations with respect to the admission of evidence

·          ensure the correct calculation of pecuniary penalty orders

·          expand and clarify definitions used in the Act, and

·          make minor and technical amendments to the Act, including to enhance the effectiveness of the Confiscated Assets Account.

 

The overarching purpose of these amendments is to improve the operation of the Proceeds of Crime Act, to ensure that it can be used effectively to deprive persons involved in organised crime of the financial benefits of their criminal activity.

 

Schedule 2 contains search related amendments that will target two main aspects of the search warrant provisions in the Crimes Act 1914 .  Firstly, the reforms will allow material seized under Part IAA, and documents produced under Division 4B, to be used by, and shared between, Commonwealth, State and Territory and foreign law enforcement agencies.  This is necessary for the proper investigation of offences which cross jurisdictional boundaries.  The second component of the amendments will ensure that law enforcement agencies are able to effectively and efficiently access and search electronic equipment to keep up with technological advancements.

Schedule 3 will amend the Witness Protection Act 1994 to improve the operation of the National Witness Protection Program (NWPP).  The NWPP provides protection and assistance to people who are assessed as being in danger because they have given, or have agreed to give, evidence or a statement on behalf of the Crown in criminal or certain other proceedings , or because of their relationship to such a person.

The amendments include measures that draw on recommendations made in the Review of the National Witness Protection Program of December 2003 and are informed by operational experience with the NWPP.  The amendments will:

·          provide increased protection and security for witnesses and others included in the NWPP, as well as officers involved in the operation of the NWPP

·          allow protection and assistance available under the NWPP to be extended to former participants and other related persons where appropriate, and

·          ensure that State and Territory participants are afforded the same protection and have the same obligations as Commonwealth participants.

The purpose of Schedule 4 is to insert new offences targeting persons involved in serious and organised crime into the Criminal Code Act 1995 .  The proposed amendments implement resolutions agreed to by the Standing Committee of Attorneys-General (SCAG) in April and August 2009 as part of the national response to organised crime.  The SCAG resolutions included consideration of measures to enhance the legislative response to organised crime, including through the introduction of new criminal offences. 

The amendments will introduce new offences criminalising associating with persons involved in organised criminal activity, as well as those who support, commit crimes for or direct the activities of a criminal organisation.  The amendments will also facilitate greater access to telecommunications interception powers for the investigation of the new offences.

The purpose of Part 1 of Schedule 5 is to enhance the ability of law enforcement agencies to investigate and prosecute the money laundering offences in Division 400 of the Criminal Code.  The amendments are intended to address problems identified by the CDPP and AFP when investigating and prosecuting the money laundering offences in Division 400.  In particular, the amendments extend the geographical jurisdiction of those offences and remove limitations on the scope of the offences to enable them to apply to the full extent of the Commonwealth’s constitutional power in this area. 

The purpose of Part 2 of Schedule 5 is to address issues identified by AUSTRAC, the anti-money laundering and counter-terrorism financing regulator, when taking enforcement action against reporting entities that do not comply with their obligations under the AML/CTF Act. 

Schedule 6 will make an urgent amendment to the Crimes Act to ensure that federal defendants in Victoria can continue to appeal a finding that they are unfit to plead.  This will address changes to Victorian legislation that take effect from October 2009.  

Schedule 7 will amend the Australian Crime Commission Act 2002 to improve the operation and accountability of the Australian Crime Commission (ACC), including by enhancing the ACC’s powers to deal with uncooperative witnesses, clarifying procedural powers for issuing summons and notices to produce, and requiring regular, independent review of the ACC.

Schedule 8 will increase the penalties for the offences of bribing a foreign public official (section 70.2 of the Criminal Code Act 1995 ) and bribery of a Commonwealth public official (section 141.1 of the Criminal Code). 

Schedule 9 will extend the definition of ‘import’ in Division 300 of the Criminal Code to include ‘dealing with a substance in connection with its importation’.  The effect of this amendment is that the Commonwealth drug importation offences will capture a broader range of criminal activity. 

The purpose of Schedules 10 and 11 is to make minor and consequential amendments to ensure that references to the extensions of criminal responsibility provisions in Part 2.4 of the Criminal Code are correct. 

FINANCIAL IMPACT STATEMENT

 

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

ACRONYMS  

AD(JR) Act                Administrative Decisions (Judicial Review) Act 1977

ACC                            Australian Crime Commission

ACC Act                     Australian Crime Commission Act 2002

ACLEI                                    Australian Commission for Law Enforcement Integrity  

 

AFP                             Australian Federal Police

 

AFP Act                      Australian Federal Police Act 1979

 

CAA                           Confiscated Assets Account

 

CDPP                          Commonwealth Director of Public Prosecutions

 

CMIA                         Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic)

 

IGC-ACC                   Inter-Governmental Committee of the ACC

 

ITSA                           Insolvency and Trustee Service Australia

 

NWPP                         National Witness Protection Program

 

PJC-ACC                    Parliamentary Joint Committee on the ACC

Sherman Report          Report on the Independent Review of the Operation of the Proceeds of Crime Act 2002 (Cth)

TIA Act                      Telecommunications (Interception and Access) Act 1979

TP Act                         Trade Practices Act 1974



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 (No.2) 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.

 

Clause 4:  Regulation-making power

This clause will allow the Governor-General to make regulations necessary for, or prescribed by, the Crimes Legislation Amendment (Serious and Organised Crime) Act (No. 2) 2009 .  The regulation-making power will ensure that where necessary, matters of a transitional nature relating to amendments or repeals made by this Act may be prescribed.



Schedule 1 - Proceeds of Crime

GENERAL OUTLINE

 

Schedule 1 will amend the Proceeds of Crime Act 2002 (the Act) to implement the recommendations of law enforcement agencies and arising out of the Sherman Report.

 

Part 1 addresses the provisions in Chapter 2 of the Act, which enable a person whose property has been restrained or forfeited to apply to recover their property, have their property excluded from restraint or forfeiture, or be compensated for their legitimately obtained interest in the property.  Part 1 amends the tests for exclusion and recovery of property in order to achieve greater consistency and to ensure that tests are not harder for third parties to satisfy than for respondents.  Part 1 also introduces a new provision enabling a person to apply to be compensated for their legitimately obtained interest in the property if it was forfeited ‘automatically’ (that is, upon conviction of a serious offence). 

 

Part 1 introduces a new provision which requires the CDPP to provide notification of the date on which ‘automatic’ forfeiture will occur.  The provision will require the CDPP to notify all persons reasonably suspected to be affected by the forfeiture, so that these persons are aware of the date of forfeiture and have an opportunity to consider their rights in relation to the property.  

 

Part 1 also clarifies the definition of ‘conviction day’, as the current definition has proven to be ambiguous.  This clarification is essential as the date on which property is forfeited to the Commonwealth is determined by reference to the date of conviction. 

 

Part 2 addresses the provisions in Part 2-4 of the Act, which relate to pecuniary penalty orders.  Part 2 ensures that provisions governing the calculation of pecuniary penalty orders are clear.  It introduces the ability for the court to reconsider a pecuniary penalty order in certain circumstances (for example, where property that was excluded from forfeiture is subsequently excluded, recovered or in respect of which compensation is paid) and clarifies the way pecuniary penalty orders are calculated.  Part 2 also clarifies provisions relating to the jurisdiction of magistrates.

 

Part 3 expands the circumstances in which examination orders can be made.  This will enhance the ability to identify property for enforcement action and assist determination of whether applications for compensation and/or recovery and exclusion of property are legitimate.  Part 3 also clarifies that applications for examination orders can be made ex parte , strengthens existing penalties for offences relating to examinations and introduces a new offence of providing false or misleading answers or documents in connection with an examination.

 

Part 4 amends provisions relating to information gathering, to increase efficiency.  Electronic production of documents is now provided for, as is the ability to reduce the time in which documents and information must be produced in accordance with an order or notice.  This power is intended to apply only in urgent situations.  The definition of ‘account’ has been expanded to include credit card accounts, loan accounts and closed accounts, and a power to obtain information about stored value cards has also been included.

Part 5 clarifies the way in which orders ancillary to restraining orders are to be made and operate.  Part 5 removes the privilege against self-incrimination in relation to providing a sworn statement about particulars of, or dealings with, property.  The removal of the privilege is in response to a court decision which held that the privilege was impliedly removed.  The provision is designed to clarify the existing position, but provides a use immunity.

 

Part 6 implements technical recommendations of the Sherman Report about the use of transcripts of evidence from examination hearings in other proceedings under the Act.  Part 7 clarifies definitions used in the Act, including the definitions of ‘effective control’ and ‘serious offence’.  Part 8 also implements technical recommendations of the Sherman Report that relate to the circumstances in which the court can make certain orders.

 

Part 9 amends provisions relating to the Confiscated Assets Account.  These provisions are designed to increase the effective administration of the Account, and to make clear on the face of the legislation, the source of funds coming into, and out of, the account. 

 

Part 10 amends the Administrative Decisions (Judicial Review) Act 1977 to state that decisions of the CDPP to apply for an order under the Act are not subject to judicial review.  As with criminal proceedings, questions about the validity of proceedings under the Act can be examined during the course of proceedings under the Act and a separate stage of review is not necessary. 

Part 1 - Exclusion, recovery and compensation

Proceeds of Crime Act 2002

Item 1 - Subsection 29(1)

 

This item omits ‘may’ and inserts ‘must’ into subsection 29(1) of the Act. 

The effect of this amendment will be that a court is required to exclude property from a restraining order where certain criteria are satisfied.  This amendment aligns the requirement for a court to exclude property from a restraining order, with the court’s existing requirement for a court to exclude property from a forfeiture order under sections 73 and 94 (as amended by Item 50 ).

 

Item 2 - Subsection 29(1)

 

This item omits the term ‘specified’ and substitutes ‘a specified *interest in’.

 

The Act currently uses the terms ‘*property’ and ‘*interests’ interchangeably and with little uniformity.  This amendment is part of a broader set of amendments to the Act which will make the use of these terms more consistent.

 

Item 3 - Paragraph 29(1)(b)

 

This item omits the term ‘property’ from paragraph 29(1)(b) and substitutes that term with ‘interest’.

 

The Act currently uses the terms ‘*property’ and ‘*interests’ interchangeably and with little uniformity.  This amendment is part of a broader set of amendments to the Act which will make the use of these terms more consistent.

 

Item 4 - Subsection 29(2)

 

This item omits the term ‘specified’ and substitutes ‘a specified *interest in’.

 

The Act currently uses the terms ‘*property’ and ‘*interests’ interchangeably and with little uniformity.  This amendment is part of a broader set of amendments to the Act which will make the use of these terms more consistent.

 

Item 5 - Paragraphs 29(2)(a), (b), (c) and (d)

 

Item 5 will omit the term ‘property’ from paragraphs 29(2)(a), (b), (c) and (d) and substitutes that term with ‘interest’.

 

The Act currently uses the terms ‘*property’ and ‘*interests’ interchangeably and with little uniformity.  This amendment is part of a broader set of amendments to the Act which will make the use of these terms more consistent.

 

Item 6 - Subsection 29(3)

 

Item 6 inserts ‘a specified *interest in’ before ‘property’ in subsection 29(3) of the Act.

 

The Act currently uses the terms ‘*property’ and ‘*interests’ interchangeably and with little uniformity.  This amendment is part of a broader set of amendments to the Act which will make the use of these terms more consistent.

 

Item 7 - Paragraphs 29(3)(a) and (d)

 

Item 7 will omit the term ‘property’ from paragraphs 29(3)(a)and (d) and substitutes that term with ‘interest’.

 

The Act currently uses the terms ‘*property’ and ‘*interests’ interchangeably and with little uniformity.  This amendment is part of a broader set of amendments to the Act which will make the use of these terms more consistent.

 

Item 8 - Subsection 29(4)

 

Item 8 inserts ‘a specified *interest in’ before the first occurring reference to ‘property’ in subsection 29(4).

 

The Act currently uses the terms ‘*property’ and ‘*interests’ interchangeably and with little uniformity.  This amendment is part of a broader set of amendments to the Act which will make the use of these terms more consistent.

 

Item 9 - Paragraph 29(4)(a)

 

Item 9 omits the words ‘owns the property’ and substitutes ‘has the interest’.

The Act currently uses the terms ‘*property’ and ‘*interests’ interchangeably and with little uniformity.  This amendment is part of a broader set of amendments to the Act which will make the use of these terms more consistent.

 

Item 10 - Paragraph 29(4)(b)

 

Item 10 omits the terms ‘property is not owned’ and substitutes that term with ‘interest is not held’.

 

The Act currently uses the terms ‘*property’ and ‘*interests’ interchangeably and with little uniformity.  This amendment is part of a broader set of amendments to the Act which will make the use of these terms more consistent.

 

Item 11 - Section 29A

 

Item 11 omits ‘may’ and inserts ‘must’ into section 29A of the Act.  The effect of this amendment will be that a court is required to exclude property from a restraining order where certain criteria are satisfied.  This amendment aligns the requirement for a court to exclude property from a restraining order, with the requirement for a court to exclude property from a restraining order under section 29 and from a forfeiture order under sections 73 and 94 (as amended by Item 50 ).

 

Item 12 - Section 29A

 

Item 12 omits the term ‘specified’ and substitutes ‘a specified *interest in’.

 

The Act currently uses the terms ‘*property’ and ‘*interests’ interchangeably and with little uniformity.  This amendment is part of a broader set of amendments to the Act which will make the use of these terms more consistent.

 

Item 13 - Paragraph 29A(b)

 

Item 13 repeals paragraph 29A(b) and replaces it with a provision that refers to an ‘interest’ held by a person instead of ‘property of a person’.

 

The Act currently uses the terms ‘*property’ and ‘*interests’ interchangeably and with little uniformity.  This amendment is part of a broader set of amendments to the Act which will make the use of these terms more consistent.

 

Item 14 - Section 29A (note)

 

Item 14 omits the words ‘an examination of the applicant’ and substitutes ‘examinations in relation to the restraining order’.  This is a consequential amendment, necessary because of Item 18 which amends paragraph 32(1)(b).

 

Item 15 - Subsection 30(1)

 

This item repeals subsection 30(1) and substitutes a new subsection that removes the time limit requiring a person to make an application to exclude property from a restraining order within 14 days of being notified of the application for the order.

 

The effect of the new paragraph is that, if a restraining order could cover property in which a person claims an interest, that person may apply under section 30 up until the time the restraining order is made.  This amendment will encourage people who have an interest in property to apply for an order at an early stage in proceedings.  It also corrects the anomalous situation under the existing subsection, where a person who fails to make an application within the time limit has to wait for the restraining order to be made so that they can seek to have the property excluded from the restraining order under section 31.

 

This item also updates the heading to section 30 by omitting ‘after notice of the application for the order’ and substituting ‘before restraining order has been made’.

 

Item 16 - Subsection 31(1)

 

Item 16 repeals subsection 31(1) and inserts new subsections (1) and (1A).

Currently, a person can only apply under subsection 31(1) for an order to exclude property after he or she has been notified of the restraining order.  The effect of this subsection is that a person who has a lawfully obtained interest in property, but was not notified of the restraining order, may be ineligible to apply under this section to have their interest in the property excluded from the restraining order.

 

This amendment will allow any person, who claims an interest in the property specified in the restraining order, to apply for an exclusion order regardless of whether notice has been provided to the person.  Subsections 31(1) and (1A) provide that an application may be made at any time after the restraining order is made.  An application must be made to the court that made the restraining order.

 

This item also updates the heading to section 31 by omitting ‘notice of the order’ and substituting ‘restraining order has been made’.

 

Item 17 - At the end of subsection 31(6)

 

Item 17 inserts a new sentence at the end of subsection 31(6) to align this subsection with subsection 75(3).  This item implements recommendation D5 of the Sherman Report.

 

Under subsections 31(6) and 75(3) of the Act the CDPP is required to give notice of the grounds on which it proposes to contest an application to exclude property from a restraining order or forfeiture order respectively.  However, subsection 75(3) provides that notice need not be given until the CDPP has had a reasonable opportunity to examine the applicant.  This ensures the CDPP has an opportunity to explore an applicant’s property for any links to proceeds of crime, prior to a court considering whether to exclude that property from forfeiture.  There is no equivalent provision in subsection 31(6).

 

This item inserts a new sentence into subsection 31(6) which clarifies that the CDPP does not need to give notice of the grounds on which it proposes to contest an application until it has had a reasonable opportunity to conduct examinations in relation to the restraining order.

 

Item 18 - Paragraph 32(b)

 

Item 18 omits ‘an *examination of the applicant’ and substitutes ‘*examinations in relation to the application’.

 

Currently under the Act, a court must not hear an application to exclude specified property from a restraining order unless the CDPP has been given a reasonable opportunity to conduct an examination of the applicant.  However, there are some cases where the CDPP may need to examine not only the applicant but also one or more other persons prior to the hearing of the exclusion application.  This can arise for example, where property of a third party is restrained on the basis that it is subject to the effective control of the suspect, and the third party applies for the application for the property to be excluded on the basis that the property is not in fact subject to the suspect’s effective control.  In this case, it may be necessary for the CDPP to have the opportunity to examine not only the third party applicant, but also the suspect, prior to the hearing of the exclusion application.

 

This amendment will ensure the CDPP is given the opportunity to examine any person that may have information relevant to an application for an exclusion order, prior to the application being heard by a court.

 

Items 18 and 28 implement recommendation D6 of the Sherman Report.

 

Item 19 - Application

 

This item sets out the application of amendments to Division 3 of Part 2-1 of the Act (excluding property from restraining orders), that are contained in this Part.  The amendments apply in relation to restraining orders applied for on or after the commencement of this item, whether the conduct constituting the offence to which the restraining order relates occurs before, on, or after the commencement of this item. 

 

While this provision is retrospective in application, it does not create any retrospective criminal liability.  Rather, the provision creates a mechanism for determining whether the proposed amendments apply to a proceeds of crime proceeding, regardless of when the conduct constituting the criminal offence that led to the proceeds of crime proceedings occurred.  As the conduct constituting a criminal offence may continue over several years or may not be discovered immediately, this item will give certainty to persons whose property is subject to proceeds of crime action and legal practitioners who work with the Proceeds of Crime Act.

Item 20 - Subsection 73(1)

 

This item inserts the words ‘a specified *interest in’ before ‘property’ in subsection 73(1).

 

The Act currently uses the terms ‘*property’ and ‘*interests’ interchangeably and with little uniformity.  This amendment is part of a broader set of amendments to the Act which will make the use of these terms more consistent.

 

Item 21 - Paragraph 73(1)(b)

 

This item omits the reference to ‘the applicant’s property’ and substitutes ‘property in which the applicant has an interest.’

 

The Act currently uses the terms ‘*property’ and ‘*interests’ interchangeably and with little uniformity.  This amendment is part of a broader set of amendments to the Act which will make the use of these terms more consistent.

 

Item 22 - Paragraphs 73(1)(c), (d) and (e)

 

This item repeals paragraphs 73(1)(c), (d) and (e) and introduces new paragraphs 73(1)(c) and (d) in relation to excluding property from a forfeiture order.

 

Currently, paragraph 73(1)(d) specifies the test which allows a third party to apply for exclusion of property from a forfeiture order under sections 47 and 49.  Paragraph 73(1)(c) specifies the test that applies to a suspect. At present, the provisions are more onerous for a third party than for a suspect, as a third party must show that they were not involved in the commission of any of the offences to which the application relates. The same requirement does not apply to a suspect.  It is anomalous that a third party would face a more difficult test than a suspect.  This item ensures that all parties have the same test when they apply for an exclusion order.

 

This item repeals these provisions and inserts a new test in paragraph 73(1)(c) that applies equally to suspects and third parties in relation to exclusion from a forfeiture order under section 47 and 49.  Under this test, before granting an exclusion order, a court must be satisfied that the applicant’s interest is not proceeds of unlawful activity or, if the forfeiture order was based on a serious offence, an instrument, of that offence.

 

A new test is also added in subsection 73(1)(d) that applies to a forfeiture order under section 48.  Under this test, before granting an exclusion order, a court must be satisfied that the applicant’s interest in property is not proceeds, or an instrument of, any of the offences to which the forfeiture order or forfeiture application relates.

 

Items 23 and 24 - Paragraphs 73(2)(a),(b), (c) and (d)

 

These items omits the term ‘property’ from the above paragraphs and substitutes that term with ‘interest’.

 

The Act currently uses the terms ‘*property’ and ‘*interests’ interchangeably and with little uniformity.  These amendments are part of a broader set of amendments to the Act which will make the use of these terms more consistent.

 

Item 25 - Subsection 74(1)

 

This item omits the reference to ‘the *person’s property’ and substitutes ‘property in which the person claims an *interest.’

 

The Act currently uses the terms ‘*property’ and ‘*interests’ interchangeably and with little uniformity.  This amendment is part of a broader set of amendments to the Act which will make the use of these terms more consistent.

 

Item 26 - Subsections 74(2) and (3)

 

This item repeals subsections 74(2) and (3) and inserts new provisions governing when a person can make an application for an exclusion order after a forfeiture order has been made.

 

This item will ensure consistency between the application provisions for exclusion of property from a restraining order (section 31) and exclusion of property from a forfeiture order.

 

Under the new provisions, once a forfeiture order has been made, subsection 74(2) enables a person who claims an interest in property specified in that forfeiture order, to apply to have that interest in property excluded.

 

Subsection 74(3) restricts the ability for a person to apply for an order, if the person appeared at the hearing of the forfeiture application, or if the person was notified of the application for the forfeiture order and did not appear at the hearing of that application.  In these instances a person can only make an application where the court gives leave.

 

Where a person seeks the leave of the court, subsection 74(4) provides that the court may only grant leave if certain circumstances apply.  If the person was notified of the application for a forfeiture order and failed to appear at the hearing of that application, the court may grant leave if the person had a good reason for not appearing.  If the person did appear, the court may grant leave if that person now has new evidence (which was not available at the time of hearing).  Paragraph 74(4)(c) also provides the court with a discretion to grant leave if there are special grounds. 

 

The aim of this amendment is to encourage people to make an application for property to be excluded, prior to forfeiture of property.  This will assist in the timely administration of the Act, as a court can consider an application to exclude property within the context of the forfeiture proceedings.  The circumstances where a person is required to seek the court’s leave are limited to situations where a person has already had a reasonable opportunity to raise their claim to an interest in property prior to a forfeiture order being made (either because they have been given notice of the application for forfeiture and did not appear, or appeared at the hearing of the forfeiture application and new evidence is available that was not available at the time of hearing).

 

Items 27 - Subsection 75(3)

 

Item 27 omits the words ‘examine the applicant under Part 3-1” and substitutes ‘conduct *examinations in relation to the application’.  This item is consequential on the amendment of section 76 by Item 28 .

 

Item 28 - Section 76

 

Item 28 omits the words ‘examine the applicant under Part 3-1” and substitutes ‘conduct *examinations in relation to the application.’

 

Currently under the Act, the court must not hear an application to exclude specified property from a forfeiture order unless the CDPP has been given a reasonable opportunity to conduct an examination of the applicant.  However, there are some cases where the CDPP may need to examine not only the applicant but also one or more other persons prior to the hearing of the exclusion application.

 

Item 28 will ensure the CDPP is given the opportunity to examine any person that may have information relevant to an application for an exclusion order, prior to the application being heard by a court.

 

Items 18 and 28 implement recommendation D6 of the Sherman Report.

 

Item 29 - Subdivision C of Division 5 of Part 2-2 (heading)

 

This item repeals the current heading to Subdivision C of Division 5 of Part 2-2, and replaces it with ‘compensating for proportion of property not derived or realised from commission of any offence’.  This more accurately reflects the new wording of subsection 77(1), as amended by Item 30

 

Item 30 - Subsection 77(1)

 

Item 30 repeals subsection 77(1) and replaces it with a new subsection relating to making a compensation order.

 

Currently, section 77 refers to compensation being available if, when the property first became proceeds of that offence a proportion of the property was not acquired using the proceeds of an offence.  This limits a court’s consideration to a particular moment in time, which could frustrate the purpose of the Act.  For example, if a $500,000 house was purchased with a deposit of $50,000 derived from crime and a legitimate loan of $450,000, only 10% of the value was obtained with illegitimate funds when the property first became the proceeds of crime.  If mortgage payments are subsequently made entirely with proceeds of crime, a court might be prevented from considering the later use of illegitimate funds because they are not relevant to when the house first became proceeds.  This could result in compensation being paid where it should not be paid.

 

Under the new subsection 77(1), before making a compensation order, a court must be satisfied that the portion of the applicant’s interest that is to be compensated was not derived or realised, directly or indirectly, from the commission of any offence, and is not an instrument of any offence.

 

Item 31 - Paragraph 77(2)(b)

 

Item 31 inserts the words ‘once the property has vested absolutely in it’ into paragraph 77(2)(b).

 

This amendment clarifies that the Commonwealth is not required to carry out the directions specified by the court under paragraph 77(2)(b) until the property vests absolutely in the Commonwealth. The current phrasing of paragraph 77(2)(b) could arguably require the Commonwealth to handle property where it only has a limited ability to deal with that property in practice.  For example, for certain types of property the Commonwealth only gains an equitable interest on the making of a forfeiture order and the property does not vest absolutely in the Commonwealth until certain registration requirements have been complied with.  For the period that the Commonwealth only has an equitable interest, the Commonwealth is limited in its ability to dispose of property because it is not listed as the registered owner.  This amendment ensures that an obligation is not placed on the Commonwealth that is contrary to its actual ability to deal with property.

 

Item 32 - Section 78

 

Item 32 repeals section 78 and inserts a new section on applying for compensation orders.

 

This item aligns section 78 with the provisions relating to applying for an order to exclude property from a restraining order (under section 31) or a forfeiture order (under section       74, as amended by Item 26 ).

 

Under the new provisions, subsection 78(1) sets out the process for applying for a compensation order prior to forfeiture.  This subsection states that a person who claims an interest in property that is specified (or could be specified) in an application for a forfeiture order may apply to a court for a compensation order.

 

If a forfeiture order has been made, subsection 78(2) enables a person who claims an interest in property specified in that forfeiture order to apply to the court that made the forfeiture order, for a compensation order.

 

Subsection 78(3) restricts the ability of a person to apply under subsection 78(2), if a person was notified of the application for the forfeiture order and did not apply for a compensation order prior to forfeiture, or if they appeared at the forfeiture order hearing.  In these instances a person can only make an application where the court gives leave.

 

Where a person seeks the leave of the court, subsection 78(4) provides that the court may only grant leave if certain circumstances apply.  If the person was notified of the application for a forfeiture order and failed to make an application for compensation prior to forfeiture, the court may grant leave if a person had a good reason for not making an application.  The court may also grant leave if that person has new evidence (which was not available at the time of hearing) or if the court is satisfied that there are special grounds for granting leave. 

 

The aim of these amendments is to encourage people to make an application for property to be compensated, prior to forfeiture of property.  This will assist in the timely administration of the Act, as a court can consider an application for compensation within the context of the forfeiture proceedings.  The circumstances where a person is required to seek the court’s leave are limited to situations where a person has had a reasonable opportunity to exercise their claim to property prior to forfeiture (either because they have been given notice of the application for forfeiture or have appeared at the hearing of the forfeiture application and new evidence is now available), and have not done so.

 

Item 33 - At the end of subsection 79(3)

 

Item 33 amends subsection 79(3) to provide that the CDPP need not give notice of the reasons that it proposes to contest an application for compensation until it has had a reasonable opportunity to conduct examinations in relation to the application. This amendment is consequential on Item 103 , which inserts section 180B.

 

Item 34 - At the end of Subdivision C of Division 5 of Part 2-2

 

Item 34 inserts a new section 79A, which provides that a court must not hear an application for a compensation order until the CDPP has had a reasonable opportunity to conduct examinations in relation to the application.  This amendment is consequential on Item 103 , which inserts section 180B.

 

Item 35 - Application

 

This item sets out the application of amendments of this Part applying Subdivisions B and C of Division 5 of Part 2-2.  The application of these amendments is determined by reference to either the date of application for a restraining order, or the date of application for a forfeiture order.

 

Where the provisions relate to a forfeiture order that was or would be made under sections 47 or 49 of the Act, the date of application for the restraining order (upon which the forfeiture order relies) is the relevant date for determining when these amendments apply.  The restraining order must be applied for on or after the commencement of this item for these amendments to apply.  This is regardless of whether the conduct constituting the offence (which led to the commencement of confiscation action) occurred or occurs before, on or after the commencement.

 

Where the provisions relate to a forfeiture order that was or would be made under section 48 of the Act, the date of application for the forfeiture order is the relevant date for determining the application of the amendments.  The forfeiture order must be applied for on or after the commencement of these amendments to apply.  This is regardless of whether the conduct constituting the offence (which led to the commencement of confiscation action) occurred or occurs before, on or after the commencement.

 

While this provision is retrospective in application, it does not create any retrospective criminal liability.  Rather, the provision creates a mechanism for determining whether the proposed amendments apply to a proceeds of crime proceeding, regardless of when the conduct constituting the criminal offence that led to the proceeds of crime proceedings occurred.  As the conduct constituting a criminal offence may continue over several years or may not be discovered immediately, this item will give certainty to persons whose property is subject to proceeds of crime action and legal practitioners who work with the Proceeds of Crime Act.

 

Item 36 - Section 91 (simplified outline)

 

This item inserts a simplified outline that indicates there are cases in which compensation is payable bythe Commonwealth.

 

Item 37 - Paragraph 92(1)(a)

 

Item 37 omits the word ‘the’ and substitutes ‘a’ in paragraph 92(1)(a).

 

This amendment is to remove ambiguity as to the identity of ‘the person’.  Referring to ‘the person’ in section 92 may leave the provision open to being interpreted by reference to ‘the person’ in other sections.  This could have unintended consequences for the operation of the section.  By referring to ‘a person’ in paragraph 92(1)(a) it removes the possibility of this term being interpreted by reference to other sections. The reference to ‘a person’ in paragraph 92(1)(a) links all subsequent references to ‘the person’ in section 92 back to the person referred to in paragraph 92(1)(a).

 

Item 38 - Subparagraph 92(1)(b)(i)

 

Item 38 inserts the words ‘under section 17 or 18’ after ‘order’ in subparagraph 92(1)(b)(i).

 

This item clarifies that automatic forfeiture under section 92 is only intended to apply to property subject to a restraining order under sections 17 or 18.  By specifically referring to sections 17 and 18, it removes the possibility of property that is subject to restraining orders under sections 19, 20 and 20A being subject to automatic forfeiture.

 

Item 39 - Paragraph 92(3)(a)

 

Item 39 omits the reference to ‘day of the conviction’ and substitutes ‘*conviction day’.  This amendment is consequential on Item 66 , which amends the definition of ‘conviction day’ in paragraph 333(1)(a).

 

Item 40 - After section 92

 

Item 40 inserts section 92A after section 92 of the Act.  Section 92A will require the CDPP to take reasonable steps to give certain people notice of the date of automatic forfeiture.

 

Currently under the Act, there is no requirement that a defendant or any other person be notified of the potential for automatic forfeiture.  This creates a risk that a person may have their property forfeited to the Commonwealth without knowing the date that forfeiture is due to take place or having the opportunity to consider their rights in relation to the property.  The purpose of this amendment is to ensure that a person who may have an interest in property will be given notice of the automatic forfeiture and their associated rights in relation to that property.

 

Subsection 92A(1) sets out the people to whom the CDPP must give notice to including any person who has (or claims) an interest or whom the CDPP reasonably believes may have an interest in the property that will be subject to automatic forfeiture. Paragraphs 92A(1)(a),(b) and (c) state what the notice must contain, which includes the date that the property is due to be forfeited and the rights the person has to seek certain orders in relation to the property.  Those orders include extending the period before property is forfeited, exclusion of property from the restraining order or from forfeiture, and compensation.

 

Subsection 92A(2) provides that the CDPP does not need to give a notice to a person if that person has made an application for an exclusion order (under sections 30, 31 or 94) and an application under section 93 to extend the period before property is forfeited.

 

Item 41 - Paragraph 93(1)(a)

 

Item 41 omits the last occurring reference to ‘day of’ and substitutes ‘conviction day for’.  This amendment is consequential on Item 66 which amends the definition of ‘conviction day’ in paragraph 333(1)(a).

 

Items 42 and 43 - Paragraphs 93(1)(b) and (c)

 

These items omit the reference to ‘31’ and substitutes ‘references to sections 30, 31 or 94’.

 

If a person is convicted of a serious offence, section 92 of the Act provides that six months after the conviction is recorded, any property covered by a restraining order relating to that offence is forfeited to the Commonwealth. 

 

Currently under section 93, a court may extend the time period before property is forfeited under section 92, if a person has applied for property to be excluded from a restraining order under section 31.  However, it is also possible for a person to make an application for property to be excluded from a restraining order under section 30 or from forfeiture under section 94.  These items amend section 93 to provide that a court may also extend the time period before property is forfeited if a person has applied for property to be excluded under sections 30 and 94.

 

These items implement Recommendation D14 of the Sherman Report.

 

Item 44 - Subsection 93(1)

 

Item 44 omits the last occurring reference to ‘day of’ and substitutes ‘conviction day for’.  This amendment is consequential on Item 66 which amends the definition of ‘conviction day’ in paragraph 333(1)(a).

 

Item 45 - Subsection 93(2)

 

Item 45 omits the reference to ‘31’ and substitutes ’30, 31 or 94’. This item is consequential on Items 42 and 43 which amends paragraphs 93(1)(b) and (c).

 

Item 46 - Subsection 93(2)

 

Item 46 omits the reference to ‘day of’ and substitutes ‘conviction day for’.  This amendment is consequential on Item 66 which amends the definition of ‘conviction day’ in paragraph 333(1)(a).

 

Item 47 - Subsection 93(3)

 

Item 47 omits the reference to ‘31’ and substitutes ’30, 31 or 94’.  This item is consequential on Item 42 which amends paragraphs 93(1)(b) and (c).

 

Item 48 - At the end of section 93

 

Item 48 inserts new subsection 93(4).

 

The effect of this subsection is that, when an order extending the date of forfeiture is made under section 93, the CDPP will be required to give certain people a written notice.

 

Subsection 93(4) specifies whom the CDPP must provide notice to, including a person who has or claims an interest in the property that may be forfeited, and any person that the CDPP reasonably believes may have an interest in the property.

 

Paragraphs 93(4)(a) and (b) state what must be included in the contents of the notice. This includes the date on which the property is due to be forfeited and the effect of subsections 93(2) and (3).  This amendment ensures that people who have an interest in the property are made aware of the date of forfeiture.

 

Item 49 - Subsection 94(1)

 

This item omits ‘the *restraining’ and inserts ‘a *restraining’.  This is to maintain consistent wording with section 94A, which is inserted by Item 57

 

Item 50 - Subsection 94(1)

 

This item omits ‘may’ and inserts ‘must’ into subsection 94(1) of the Act.  The effect of this amendment will be that a court is required to exclude property from forfeiture where certain criteria are satisfied.  This amendment aligns the requirement for a court to exclude property from forfeiture, with the requirement for the court to exclude property from a restraining order and a forfeiture order under section 29 (as amended) and section 73 respectively.

 

Item 51 - Paragraphs 94(1)(a),(b) and (c)

 

Item 51 repeals paragraphs 94(1)(a),(b) and (c) and inserts two new paragraphs.

Under the current section 94, only a suspect can apply under the section to have property excluded from forfeiture.  Currently, where a third party claims an interest in property they can either apply for an order to exclude property from the restraining order, or wait until forfeiture has occurred and apply for recovery of the property.

This amendment corrects this anomaly and expands the provision so that it applies equally to third parties and suspects.  The effect of this amendment is that a court must exclude property from forfeiture where it is satisfied that a person has an interest in property covered by a restraining order that the interest is not proceeds of unlawful activity or an instrument of unlawful activity, and that the interest has been lawfully acquired.

 

Item 52 - Paragraph 94(1)(d)

 

Item 52 omits the word ‘the’ and substitutes ‘a’ in paragraph 94(1)(d).  This item is consequential on Item 51 , which amends section 94 to allow either the person convicted of the serious offence or a third party to make an application.

 

Item 53 - Paragraph 94(1)(e)

 

Item 53 inserts the words ‘applicant’s interest in the’ before ‘property’ in paragraph 94(1)(e).

 

The Act currently uses the terms ‘*property’ and ‘*interests’ interchangeably and with little uniformity.  This amendment is part of a broader set of amendments to the Act which will make the use of these terms more consistent.

 

Item 54 - Paragraph 94(1)(f)

 

Item 54 omits the term ‘defendant’s’ and replaces that term with ‘applicant’s’.  This item is consequential on Item 51 , which amends section 94 to allow either the person convicted of the serious offence or a third party to make an application.

 

Item 55 - At the end of subsection 94(5)

 

Item 55 inserts the words ‘However, the DPP need not do so until it has had a reasonable opportunity to conduct *examinations in relation to the application’.

This amendment clarifies that the CDPP does not need to give notice of the grounds on which it proposes to contest an application until it has had a reasonable opportunity to conduct examinations in relation to the restraining order.

 

This item aligns subsection 94(5) with similar provisions in subsections 31(6) (as amended) and 75(3).

 

Item 56 - At the end of section 94

 

Item 56 inserts subsection 94(6) at the end of section 94.

 

New subsection 94(6) provides that an application for an exclusion order must not be heard until the CDPP has had a reasonable opportunity to conduct examinations in relation to an application.  This amendment will ensure the CDPP has an opportunity to explore whether the relevant property has any links to proceeds of crime, prior to a court considering whether to exclude that property from forfeiture.

 

This item is based on similar provisions in sections 32 and 76.

 

Item 57 - After section 94

 

Item 57 inserts a new section 94A after section 94 of the Act.

 

This item corrects an anomaly in the Act, whereby compensation is available if property has been forfeited to the Commonwealth under a forfeiture order but not if it has been automatically forfeited under section 92.

 

Section 94A inserts a new provision relating to the granting of compensation where property has been forfeited under section 92.  This amendment will ensure that where property that was automatically forfeited was acquired with both the proceeds of an offence and legitimately obtained funds, the owner of the forfeited property is compensated for the legitimately obtained proportion of the property.  This provision has been modelled on section 77 of the Act, which allows for compensation where a forfeiture order has been made.

 

Under subsection 94A(1), the court must be satisfied that the applicant has an interest in the property, and that a proportion of the value of the applicant’s interest was not derived or realised, directly or indirectly, from the commission of any offence, and is not an instrument of any offence.  Once the court is satisfied of this, the court must make a compensation order.

 

Subsection 94A(2) provides that the order must specify the proportion of the value of that property that was not derived or realised from the commission of any offence and is not the instrument of any offence, and direct the Commonwealth to dispose of the property and pay the applicant that proportion of the sum received after the costs and disbursements of the Official Trustee are paid.

 

Subsection 94A(3) allows a person who claims an interest in property that is to be forfeited under section 92 to apply to the court for a compensation order at any time.

Subsection 94A(4) restricts the ability for a person to make an application for a compensation order if the person received notice of automatic forfeiture and did not apply for a compensation order prior to forfeiture occurring.  In these instances a person can only make an application where the court gives leave.

 

·          Where a person seeks the leave of the court, subsection 94A(5) provides that the court may only grant leave if it is satisfied that:the person had a good reason for not making a compensation application prior to forfeiture,

·          the person has evidence relevant to their application for compensation that was not available before forfeiture occurred, or

·          there are special grounds for granting the leave.

 

The aim of these amendments is to encourage people to make an application for property to be compensated, prior to forfeiture of property.  The circumstances where a person is required to seek the court’s leave are limited to situations where a person has either been given an indication of their right to seek certain orders in relation to their interest in property prior to forfeiture or their actions indicate that they are aware of their rights in this regard.  This includes when a person has been given a notice under subsection 92A(1).

 

Subsection 94A(6) provides that the person must give the CDPP notice of the application for compensation and the grounds on which compensation is being sought. Subsection 94A(8) requires the CDPP to give the applicant notice of any grounds on which it proposes to contest the application.  However, the CDPP does not need to provide this notice until it has had a reasonable opportunity to conduct examinations in relation to the order.

 

Subsection 94A(9) provides that a court must not hear an application for compensation until the CDPP has had a reasonable opportunity to conduct examinations in relation to the order.

 

Item 58 - Subsection 102(1)

 

Item 58 omits (1) from the start of subsection 102(1).  This amendment is a consequence of Item 62 which repeals subsections 102(2) and (3).

 

Item 59 - Subsection 102(1)

 

This item omits ‘may’ and inserts ‘must’ into subsection 102(1) of the Act. 

The effect of this amendment will be that a court is required to make an order directing the Commonwealth to transfer the applicant’s interest back to the applicant or requiring the Commonwealth to pay the applicant an amount equal to the value of their interest, where certain criteria are satisfied.  This amendment aligns the requirement for a court to make an order under section 102, with the requirement for a court to exclude property from a restraining order under section 29 (as amended by Item 1 ) or from a forfeiture order under sections 73 and 94 (as amended by

Item 50 ).

 

Item 60 - Paragraph 102(1)(b)

 

Item 60 repeals paragraph 102(1)(b) and substitutes a new paragraph 102(b).  The effect of this amendment is to change the test for recovery of property under section 102.

 

The purpose of this amendment is to align the test for recovery of property under section 102 with the test for exclusion of property under section 94.  Currently, the test for exclusion of property could be viewed as more difficult to prove than the test for recovery of property, as it contains an additional requirement that the court must be satisfied that the applicant’s interest in property was lawfully acquired.  This creates an anomalous situation where a person who unsuccessfully applies for exclusion of property may be able to apply for recovery of their property after forfeiture has occurred.

 

Under the new paragraph 102(b), before making an order a court must be satisfied that the applicant had an interest in the property that was forfeited and that the interest was not the proceeds of unlawful activity or an instrument of unlawful activity.  The court must also be satisfied that the applicant’s interest in the property was lawfully acquired.

 

Item 61 - Subparagraph 102(1)(d)(ii)

 

This item omits the words ‘declaring that there is payable by the Commonwealth’ and substitutes ‘directing the Commonwealth to pay’.

 

This amendment is to make subparagraph 102(1)(d)(ii) more consistent with the wording of subparagraphs 77(2)(b)(ii) and 94(2)(b)(ii), which contain similar directions.

 

Item 62 - Subsections 102(2) and (3)

 

Item 62 repeals subsections (2) and (3).  This item is a consequence of Item 60 , which inserts a new test for recovery of property into section 102.

 

Item 63 - Section 104

 

Item 63 repeals the existing section 104 and inserts a new section 104 in relation to applying for orders under sections 102 and 103.  This amendment will align the application provision under section 104 with similar provisions under sections 31, 74, 78, and 94A.

 

Under new subsection 104(1), a person who claims an interest in property that has been forfeited under section 92, may apply to the court at any time for an order to transfer the property back to the applicant (under section 102) or an order allowing the applicant to buy back the forfeited property (under section 103).

 

Subsection 104(2) limits the ability of a person to apply for an order under section 102 if they have previously been given a notice under subsection 94A(1) in relation to the property (or were not required to be given notice due to subsection 92A(2)), and they either did not make an application for the property to be excluded (under sections 29 or 94), or made and appeared at the hearing of an application under sections 29 or 94.  In these instances a person can only make an application where the court gives leave.

 

Where a person seeks the leave of the court, subsection 104(3) provides that the court may only grant leave if certain circumstances apply.  If the person received a notice under section 92A (or was not required to be provided with a notice due to subsection 92A(2)) and failed to make an application under section 29 or 94, the court may grant leave if the person had a good reason for not making an application.  If the person made an application and appeared at the hearing of the application, the court may grant leave if that person now has new evidence (which was not available at the time of hearing).  Paragraph 104(3)(c) also provides the court with a discretion to grant leave if there are special grounds. 

 

The aim of these amendments is to encourage people to make an application for exclusion of property prior to forfeiture of property, rather than waiting until after forfeiture.  The circumstances where a person is required to seek the court’s leave are limited to situations where a person has either been given an indication of their right to seek certain orders in relation to their interest in property prior to forfeiture (or their actions indicate that they are aware of their rights in this regard), and that person has either chosen not to make an application or made (and appeared at) that application.  A person is not required to seek the leave of the court if they are applying for an order under section 103.  This is because there is no equivalent pre-forfeiture provision to section 103.

 

Subsection 104(4) provides that the person must give the CDPP notice of the application for an order under sections 102 or 103 and the grounds on which the order is being sought.  Subsection 104(6) requires that the CDPP give the applicant notice of any grounds on which it proposes to contest the application.  However, the CDPP does not need to provide this notice until it has had a reasonable opportunity to conduct examinations in relation to the order.

 

Subsection 104(7) provides that a court must not hear an application for an order under section 102 until the CDPP has had a reasonable opportunity to conduct examinations in relation to the order.

 

Item 64 - Paragraph 106(b)

 

This item removes the reference to ‘subparagraph 102(1)(d)(i)’ and replaces it with ‘subparagraph 102(d)(i)’.  This is necessary because Item 58 omits subsection (1) from section 102.

 

Item 65 - Application

 

This item sets out the application of amendments to Part 2-3 of the Act (forfeiture on conviction of a serious offence) that are contained in this Part.  The amendments apply in relation to property covered by a restraining order made on or after the commencement of this item, whether the conduct constituting the offence occurred or occurs before, on, or after that commencement.  

 

While this provision is retrospective in application, it does not create any retrospective criminal liability.  Rather, the provision creates a mechanism for determining whether the proposed amendments apply to a proceeds of crime proceeding, regardless of when the conduct constituting the criminal offence that led to the proceeds of crime proceedings occurred.  As the conduct constituting a criminal offence may continue over several years or may not be discovered immediately, this item will give certainty to persons whose property is subject to proceeds of crime action and legal practitioners who work with the Proceeds of Crime Act.

 

Item 66 - Paragraph 333(1)(a)

 

This item amends the definition of ‘conviction day’ in paragraph 333(1)(a) of the Act.  Paragraph 333(1)(a) provides that ‘conviction day’ is the day on which a person was convicted of the offence.  Subsection 333(2) provides that the day on which a person was convicted of the offence is taken to be ‘the first day on which the court acted on the finding that the offence was proved against the person (whether or not the court passed sentence on that day in relation to the offence)’.

 

This definition reflects the common law position (see, for example, Griffiths v R (1977) 137 CLR 293; DPP (Vic) v McCoid [1988] VR 982; Della Patrona v DPP (Cth) (No.2) (1995) 38 NSWLR 257).  However, the common law position is complex and has created uncertainty as to the exact ‘conviction day’ in certain circumstances.  For example, if the court exercises discretion not to impose a penalty, can this be interpreted to be acting on a finding that the offence was proved?  It is imperative that the ‘conviction day’ is a clearly defined date, as the date that property is automatically forfeited is determined by reference to this date. 

 

The item amends paragraph 333(1)(a) to provide that the ‘conviction day’ is taken to mean the date at which the court passes sentence.  This will include circumstances where a person pleads or is found guilty, but the court does not impose a fine, term of imprisonment or other punishment.  The item will provide certainty for persons whose property is being forfeited, and to the CDPP in meeting its obligation to notify all relevant persons that property is to be forfeited on a certain day.

 

Item 67 - Application

 

This item sets out the application of amendments to paragraph 333(1)(a) of the Act, as contained in this Part.  The amendments apply in relation to a person about whom a court passes sentence on or after the commencement of this item, whether the conduct constituting the offence concerned occurred or occurs before, on or after the commencement.

 

This provision is retrospective in application, but does not create any retrospective criminal liability.  The new, more precise definition will provide certainty for a person whose property is being forfeited and assist the CDPP to meet its new obligations under the Act to notify relevant people that property is being forfeited on a certain day.  If this definition did not apply retrospectively, the existing definition in paragraph 333(1)(a) could continue to cause confusion and uncertainty for those involved in confiscation proceedings that are based on offences committed prior to commencement.

 

 

Part 2 - Pecuniary Penalty Orders

 

Proceeds of Crime Act 2002

 

Item 68 - Subparagraph 121(4)(a)(i)

 

This item amends subparagraph 121(4)(a)(i) to add a reference to property being subject to the effective control of a person.  Section 121 directs a court how to determine the value of a pecuniary penalty order.  Subparagraph 121(4)(a)(i) directs the court to consider a person’s property that is covered by a restraining order, but makes no reference to property of another person that is under the person’s effective control.  This omission can result in a court not taking into consideration the full range of criminal benefits a person has gained.

 

This item inserts a reference to property being under a person’s effective control, so that a pecuniary penalty order is determined by the court having regard to all benefits a person has derived. 

 

Items 69 and 70 - Paragraphs 122(1)(a) and (b)

 

These items amend paragraphs 122(1)(a) and 122(1)(b) by removing the references to a person’s ‘request or control’.  These items implement recommendation D17 of the Sherman Report.

 

The effect of paragraphs 122(1)(a) and 122(1)(b) (as they currently stand) is that, for the purpose of calculating a pecuniary penalty order, a payment that was made to a third party at the ‘request or direction’  of the defendant is treated as if it was a payment made to the defendant.  However, the Sherman Report identified that, in some cases, a payment will be made to a third party not because of anything the defendant has said or done, but because of the way a particular scheme operates.  For example, if a person lodges a fraudulent claim for payment on behalf of a company, the resulting payment will, as a matter of course, be made to the company and not the person.  The CDPP is therefore required to prove that the defendant impliedly requested or directed that money or a benefit went into the hands of a third party.  This creates an unnecessary hurdle for the CDPP which is contrary to the intention of the Act.   

 

These amendments address this potential loophole.

 

Item 71 - Paragraph 124(1)(c)

 

This item amends paragraph 124(1)(c) by inserting a reference to ‘other unlawful activity’.  Section 124 determines how a pecuniary penalty order is to be calculated.  Paragraph 124(1)(c) refers to evidence given about the value of the person’s property during or after the ‘illegal activity or other unlawful activity’.  However, at the end of the paragraph, only illegal activity is referred to.  The omission of ‘other unlawful activity’ appears to be a drafting error; there is no policy justification for mentioning ‘other unlawful activity’ in the subparagraphs contained in paragraph (c), but not at the end of paragraph (c).

 

This item corrects this unintended omission by inserting the reference to ‘other unlawful activity’ at the end of paragraph 124(1)(c).  This means that the full range of unlawful activity undertaken by the person can be taken into account by the court when determining a pecuniary penalty order. 

 

Item 72 - Paragraph 124(5)(a)

 

This item amends paragraph 124(5)(a) to add a reference to property being subject to the effective control of a person.  Section 124 directs a court how to determine the value of a pecuniary penalty order.  Paragraph 124(5)(a) directs the court to consider a person’s property that is covered by a restraining order, but makes no reference to property of another person that is under the person’s effective control.  This omission can result in a court not taking into consideration the full range of criminal benefits a person has gained.

 

This item inserts a reference to property under a person’s effective control, so that a pecuniary penalty order is determined by the court having regard to all benefits a person has derived. 

 

Items 73 and 74 - Section 130 and paragraph 130(a)

 

These items amend section 130 to ensure that the formula for calculating pecuniary penalty orders does not result in a person being required to account for criminal benefits twice. 

 

Section 130 provides that a pecuniary penalty order can be reduced by an amount equal to the value of any property that has been forfeited (or an application has been made for forfeiture).  This is to prevent the Commonwealth from penalising a person twice - once by forfeiting property, and again by imposing a pecuniary penalty order.  The current wording of section 130 requires that a pecuniary penalty order be reduced by an amount equal to the value of any property forfeited to the Commonwealth (or the subject to a forfeiture application) which is, or was, the proceeds of the offence to which the pecuniary penalty order relates.  However, under section 116, pecuniary penalty orders are calculated taking into account benefits obtained from the offence and any ‘unlawful activity’.  

 

These items insert references to ‘unlawful activity’ in section 130 to rectify a drafting error.  This means that pecuniary penalty orders can be reduced to take into account the value of property that has, or will be forfeited, the proceeds of any offence and any unlawful activity.

 

Items 75 and 76 - Subsection 133(1) and after subsection 133(2)

 

These items amend section 133, which relates to the ability to vary a pecuniary penalty order, and implement Recommendation D19 of the Sherman Report.

 

Section 130 provides that a pecuniary penalty order must be reduced by an amount equal to the value of any property forfeited to the Commonwealth, or subject to a forfeiture application.  However, if, after forfeiture, property is excluded or recovered or a person is compensated for a portion of the property that was not tainted with the proceeds of crime, there is currently no ability under section 133 to vary the pecuniary penalty order to take account of this.  This means that a person will not account for the full value of their offences, because the pecuniary penalty order would have been reduced to account for ‘forfeited’ property that a person does not, in the end, actually forfeit.

 

These items provide that the amount of a pecuniary penalty order may be increased if a property has, or will, be forfeited, and one of the following orders has been made:

·         an order to exclude an interest in property from forfeiture,

·         an order directing the Commonwealth to pay an amount of compensation to a person, or

·         an order to recover an interest in the property.

 

The court determines the amount of the increase to the pecuniary penalty order, taking into account:

·         the value of the interest at the time that the exclusion or recovery or was made

·         in the case of compensation, the amount the Commonwealth paid in compensation to the person, and

·         any other matter the court considers relevant.

 

Item 77 - Application

 

This item sets out the application of amendments by this Part to Division 2 of Part 2-4 of the Act (pecuniary penalty order amounts).  The amendments apply in relation to pecuniary penalty orders applied for on or after the commencement of this item, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement.

 

This provision is retrospective in application, but does not create any retrospective criminal liability.  Rather, it strengthens the provisions relating to pecuniary penalty orders by closing loopholes and addressing drafting errors in relation to the current provisions.  Retrospective application is necessary to ensure the integrity of the pecuniary penalty order provisions.  Without retrospective application, a person who committed offences prior to commencement could rely on existing loopholes in the Act to avoid having to account for the full value of their offences.

 

Item 78 - At the end of section 134

 

This item inserts new subsection 134(6), which empowers a court to hear an application of the CDPP for a pecuniary penalty order, outside of the time limits in section 134 if it is in the interests of justice to do so. 

 

Section 134 currently provides time limits in which applications for pecuniary penalty orders must be made.  However, there are certain circumstances in which these time limits can be contrary to the intention of the Act. 

 

If property is forfeited from a person and, at the time of forfeiture, the CDPP believes that the entire property was, or was obtained with, the proceeds of crime, the CDPP will not seek a pecuniary penalty order (as to do so would effectively punish the person twice). However, if that property, or a portion of that property, is later excluded from forfeiture, the CDPP might not be able to seek a pecuniary penalty order if the applicable time limits in subsections 134(2) and (3) have expired. 

 

By way of example, assume a person defrauds the Commonwealth of $1 million, and owns a house worth $1 million.  Following an investigation, it appears that the house was purchased using the proceeds of the fraud, so the house is restrained and then forfeited.  Subsequently, another person demonstrates that they contributed $250,000 in legitimate funds to purchase the house, and is therefore entitled to be compensated for this amount.  The person who committed the offence has therefore only forfeited 75% of the value of the offence.  If the CDPP was aware of this at the time of restraint, a pecuniary penalty order would have been issued for the $250,000.  However, if the CDPP became aware after forfeiture, it is prevented by section 134 from obtaining a pecuniary penalty order. 

 

This item amends section 134 to provide that the CDPP may apply to the court for a pecuniary penalty order despite the time limits in subsections 134(2) and (3), if the court is satisfied that it is in the interests of justice to allow the application.  This item ensures that persons are adequately held to account for the full amount of the benefits they have unlawfully derived.

 

Items 79 and 80 - Subsections 136(2), (3) and (4)

 

These items implement Recommendation D20 of the Sherman Report by amending section 136 so that the CDPP must provide a defendant with any affidavit that will be relied upon in a pecuniary penalty order hearing, within a reasonable time before the court conducts a hearing.

 

Section 136 currently provides that the CDPP must give a person written notice of the application for the pecuniary penalty order and any supporting affidavit.  In practice, however, applications for pecuniary penalty orders are often made at the time a restraining order is sought or shortly thereafter (to ensure that the restraining order does not lapse).  This makes it difficult for the CDPP to provide a person with notice of an application and supporting affidavits, as at an early stage of proceedings, the information stated in the affidavits might not yet be available. 

 

To better reflect the practical operation of the Act, these items amend section 136 to provide that the CDPP must give a copy of any affidavit supporting an application for a pecuniary penalty order to the affected person within a reasonable time before the hearing of the application.  This item also ensures fairness to the person affected by the application, so that they can receive complete information within a reasonable time before the hearing of the application. 

 

Item 81 - Application

 

This item sets out the application of amendments made by this Part to Division 3 of Part 2-4 of the Act (how pecuniary penalty orders are obtained).  The amendments apply in relation to applications made for pecuniary penalty orders on or after the commencement of this item, whether the conduct constituting the offence concerned occurred or occurs before, on or after the commencement.

 

This provision is retrospective in application, but does not create any retrospective criminal liability.  Rather, it strengthens the provisions relating to pecuniary penalty orders by closing loopholes in the current provisions.  Retrospective application is necessary to ensure the integrity of the pecuniary penalty order provisions.  Without retrospective application, a person who committed offences prior to commencement could rely on existing loopholes in the Act to avoid having to account for the full value of their offences.

 

Items 82, 83, 84, 85 - Subsections 146(1), (2) and (3)

 

These items implement Recommendation D21 of the Sherman Report by amending section 146 to allow a court to vary a pecuniary penalty order where the order was made on the basis of a number of convictions, and one conviction was subsequently quashed.  

 

Currently, section 146 provides that a pecuniary penalty order made in relation to a person’s conviction of a serious offence is discharged if that conviction is quashed (even if the pecuniary penalty order relates to a person’s conviction of other offences that have not been quashed) and the CDPP does not apply to have the pecuniary penalty order confirmed within 14 days of the quashing of the conviction.  If the CDPP does apply to have the order confirmed, under section 149 it is required to prove the quashed offence to a civil standard (that is, the balance of probabilities). 

 

The effect of the current subsection 146(1) is that if a pecuniary penalty order relates only to indictable offences (or a serious offence is not confirmed under section 149), the entire pecuniary penalty order will be discharged, even if the quashed offence only accounts for a small part of the total benefit.

 

For example, assume that a person is convicted of ten fraud offences, each involving a benefit of $5,000.  As a result, the CDPP obtains a pecuniary penalty order of $50,000.  If a person appeals one of those ten convictions and has their conviction set aside or quashed, the entire pecuniary penalty would be discharged.  This occurs even though convictions in relation to $45,000 worth of fraud still stand.

 

Item 82 amends subsection 146(1) to provide that if a conviction is quashed, a pecuniary penalty is discharged unless the CDPP applies to the court within 14 days to have the pecuniary order confirmed or varied.  Item 91 inserts a new section 149A which sets out the procedure for varying a pecuniary penalty order.

 

Items 86 - Section 147 (including the note)

 

This item is a consequential amendment arising from the introduction of new section 149A ( Item 91 ).  Section 147 currently provides that the CDPP must give written notice of an application for confirmation of a pecuniary penalty order.  This amendment includes the words ‘or variation’ so that the CDPP is now required to give written notice of an application for confirmation or variation of a pecuniary penalty order.  This item also amends the heading to section 147 by inserting ‘or variation’ after ‘confirmation’.  This ensures that the heading reflects that the provision relates to notice of an application for confirmation or variation of a pecuniary penalty order.

 

Items 87 - Subsection 148(1)

 

This item is a consequential amendment arising from the introduction of new section 149A ( Item 91 ).  Subsection 148(1) currently provides that a person may appear and adduce evidence at the hearing of the application for confirmation of the order.  This item inserts the words ‘or variation’ so that a person may appear and adduce evidence at the hearing of the application for confirmation or variation of the order.

 

Items 88, 89 and 90 - Subparagraphs 148(2)(a)(i) and (ii) and paragraph 148(2)(a)

 

These amendments clarify the operation of section 148, where a pecuniary penalty is made in relation to multiple offences.  Currently, section 148 could be narrowly interpreted to mean that the court could only have regard to the transcript of a single offence.  These amendments clarify that in determining an application to confirm or vary a pecuniary penalty order, the court may have regard to transcripts relating to any of the offences to which the pecuniary penalty relates.

 

Item 91 - After section 149

 

This item inserts new section 149A, which enables the court to vary a pecuniary penalty order.  The section provides that the court may vary a pecuniary penalty order by reducing the pecuniary amount if it is satisfied that the order relates to more than one offence, and one or more of those offences has not been quashed.  The section empowers a court to determine the amount of variation to the pecuniary penalty order, having regard to:

·         transcripts and evidence of the offence(s) for which the person was convicted

·         transcripts and evidence given in proceedings relating to the application for the pecuniary penalty order, or to vary the amount of the order, and

·         any other matter the court considers relevant.

 

The power to vary a pecuniary penalty order is necessary to ensure that a pecuniary penalty order can still be enforced against a person who has some (but not all) of their convictions quashed.

 

Item 92 and 93 - Subsections 150(1) and (2)

 

These items are consequential amendments arising from the introduction of new section 149A ( Item 91 ).  Section 150 provides that, if the court confirms a pecuniary penalty order, the order is taken not to be affected by the quashing of the person’s conviction of the offence.  It also provides that if a court decides not to confirm a pecuniary penalty order, the order is discharged. 

 

These items insert references to variation of a pecuniary penalty order under section 149A, so that section 150 now provides that, if the court confirms the pecuniary penalty order under section 149, or varies the order under section 149A, the order is taken not to be affected by the quashing of the person’s conviction of the offence.  It also provides that if a court decides not to confirm or vary a pecuniary penalty order, the order is discharged.

 

Item 94 - Application

 

This item sets out the application of amendments made by this Part to Division 5 of Part 2-4 of the Act (the effect on pecuniary penalty orders on convictions being quashed).  The amendments apply in relation to a conviction that is quashed on or after the commencement of this item, whether conduct constituting the offence concerned occurred or occurs before, on or after that commencement.

 

This provision is retrospective in application, but does not create any retrospective criminal liability.  Retrospective application is necessary to ensure that pecuniary penalty orders can still be enforced when some of the convictions to which the order relates are quashed, and the conduct constituting those offences occurred prior to the changes to the pecuniary penalty provisions.  Items 95, 96 and 97 - Paragraphs 335(6)(a), (b) and subsection 335(6)

 

These items implement Recommendation D31 of the Sherman Report by granting magistrates jurisdiction to determine conviction-based pecuniary penalty and forfeiture orders, if the conviction is dealt with summarily by a magistrate of the same court.

 

Subsection 335(6) provides that magistrates may exercise ‘proceeds jurisdiction (that is, the jurisdiction to make certain orders).  However, the present drafting of subsection 335(6) implies that only the magistrate who convicted the person has the appropriate jurisdiction.  This is an unintended consequence, which could create unnecessary delay for both parties and magistrates in trying to secure court time before the actual magistrate who convicted the person.  Accordingly, Items 96 and 97 amend subsection 335(6) to clarify that any magistrate belonging to the same court as the convicting magistrate may determine conviction-based pecuniary penalty and forfeiture orders.   

 

Item 95 amends paragraph 336(6)(a) to extend the jurisdiction of magistrates to apply to pecuniary penalty orders made under subparagraph 116(1)(b)(i).  This amendment is necessary because, presently, after a magistrate convicts a person, there is no ability for the magistrate to make a pecuniary penalty order in relation to that person.  The CDPP is therefore forced to apply to a superior court to commence fresh proceedings to apply for a pecuniary penalty order.  This amendment will benefit both the CDPP and the person to whom the pecuniary penalty order relates, as it enables an application to be heard and decided quickly and efficiently and without any additional costs incurred by bringing the application to a higher court. 

 

Item 98 - Application

 

This item sets out the application of amendments made by this Part to subsection 335(6) of the Act.  The amendments apply in relation to a person convicted before a magistrate on or after the commencement of this item, whether the conduct constituting the offence occurred or occurs before, on or after the commencement.

 

This provision is retrospective in application, but does not create any retrospective criminal liability.  Retrospective application will ensure that applications for conviction-based pecuniary penalty and forfeiture orders can be dealt with efficiently and expediently by magistrates, regardless of when the conduct constituting the offence occurred.  This will reduce unnecessary delays for parties, who would otherwise be required to wait to have their conviction-based forfeiture order listed before the actual magistrate who convicted the person or, in the case of a conviction-based pecuniary penalty order, for fresh proceedings to be commenced in a superior court.

Part 3 - Examinations

Proceeds of Crime Act 2002

 

Item 99 - Paragraph 180(1)(b)

 

This item amends the wording of paragraph 180(1)(b) to omit the reference to ‘a person whom the restraining order states to be a suspect…’ and replace it with ‘a person who is a suspect in relation to the restraining order’.  This is because, in practice, restraining orders do not name suspects.  Rather, suspects are named in the affidavit supporting the application for a restraining order.  This amendment implements Recommendation D22(a) of the Sherman Report. 

 

Item 100 - Subsection 180(1)

 

This item inserts an asterisk before ‘affairs’ in subsection 180(1), to indicate that the term has now been defined in the Dictionary to the Act contained in section 338. 

 

Item 101 - Subsection 180(1)

 

This item removes the reference to ‘the nature and location of any property’ from subsection 180(1).  Because the term ‘affairs’ is now defined in the Dictionary to the Act in section 338, there is no longer a need to refer to what may be included in the definition of ‘affairs’ in the subsection.

 

Item 102 - Application

 

This item sets out the application of amendments made by this Part to section 180 of the Act.  The amendments apply in relation to restraining orders applied for on or after the commencement of this item, whether the conduct constituting the offence concerned occurred or occurs before, on or after the commencement.

 

This provision is retrospective in application, but does not create any retrospective criminal liability.  Retrospective application is necessary to ensure that the term ‘affairs’ is defined consistently.  Without retrospective application, the common law (with its diverging definitions) would continue to apply to examination orders for offences that occurred prior to commencement of the changes to the examination order provisions.

 

Retrospective application is also necessary to ensure that the amended wording in new paragraph 180(1)(b), which more accurately reflects what appears in a restraining order in practice, applies regardless of when the unlawful conduct occurred.

 

Item 103 - After section 180

 

This item inserts new sections 180A - 180E after section 180, to permit the court to make an examination order in certain circumstances where a restraining order is not in place.  These circumstances are where:

 

·         an application is made to have property excluded from a forfeiture order

·         an application is made for compensation for the proportion of property that did not involve proceeds of an offence, after the property has been forfeited

·         an application is made to recover the interest in forfeited property that is neither the proceeds of unlawful activity nor an instrument of unlawful activity, and

·         a confiscation order has been made but not satisfied.

 

This item gives effect to Recommendation D22(b) of the Sherman Report and reflects the position in Western Australia, the Northern Territory and the Australian Capital Territory, that an examination order is not dependent on a restraining order being in force.  The item enables identification of property for enforcement action and to examine whether it is appropriate to provide compensation or permit recovery of property, without the requirement that a restraining order be in place.

 

180A Examination orders relating to applications for exclusion from forfeiture

 

Section 180A enables the court to which an application is made for an order to exclude property from forfeiture under sections 73 or 94, to make an order for the examination of any person, including a person who has or claims an interest in property (paragraph 180A(1)(a)) or the spouse or de facto partner of a person who has or claims an interest in the property (paragraph 180A(1)(b)).  It may also include persons such as lawyers, accountants, bankers and other advisers of the persons stated in paragraphs 180A(1)(a) and (b).  The examination is in relation to the ‘affairs’ of the persons stated in paragraphs 180A(1)(a) and (b).  ‘Affairs’ is defined in section 338 of the Act.

 

The examination order ceases to have effect when the application for an order to exclude property from forfeiture is either withdrawn or decided upon by the court. 

 

The insertion of section 180A overcomes an anomaly that currently exists in the Act.  Under section 76, an application for an order to exclude property from forfeiture must not be heard until the CDPP has had a reasonable opportunity to examine.  However, under section 180, an examination order cannot occur unless a restraining order is in place, and a restraining order ceases to have effect when a forfeiture order is made.  Thus, the CDPP is unable to obtain an examination order after forfeiture, but is also unable to participate in the hearing of an application to exclude property from forfeiture until it has had a reasonable opportunity to examine.  This amendment ensures that the CDPP has had the opportunity to examine relevant persons before an exclusion order is made.  

 

180B Examination orders relating to applications for compensation

 

Section 180B enables the court to which an application for an order for compensation is made under sections 77 or 94A, in relation to property that has or may be forfeited, to make an order for the examination of any person, including a person who has or claims an interest in property (paragraph 180B(1)(a)) or the spouse or de facto partner of a person who has or claims an interest in the property (paragraph 180B(1)(b)).  It may also include persons such as lawyers, accountants, bankers and other advisers of the persons stated in paragraphs 180B(1)(a) and (b).  The examination is in relation to the ‘affairs’ of the persons stated in paragraphs 180B(1)(a) and (b).  ‘Affairs’ is defined in section 338 of the Act.

 

The examination order ceases to have effect when the application for compensation is either withdrawn or decided upon by the court. 

 

This provision will address an anomaly in the Act.  Currently, if a person applies for compensation before property is forfeited (that is, when a restraining order is still in place), the CDPP can apply for an examination order.  However, if a person applies for compensation after property has been forfeited, a restraining order is no longer in place, so there is no basis on which to obtain an examination order.  This section will enable the CDPP to apply for examinations in relation to application for compensation when a restraining order is not in place.  These examinations are necessary to determine the circumstances giving rise to an application for compensation.

 

180C Examination orders relating to applications under section 102

 

Section 180C enables the court to which an application is made under section 104 to recover forfeited property under section 102, to make an order for the examination of any person, including a person who has or claims an interest in property (paragraph 180C(1)(a)) or the spouse or de facto partner of a person who has or claims an interest in the property (paragraph 180C(1)(b)).  It may also include persons such as lawyers, accountants, bankers and other advisers of the persons stated in paragraphs 180C(1)(a) and (b).  The examination is in relation to the ‘affairs’ of the persons stated in paragraphs 180C(1)(a) and (b).  ‘Affairs’ is defined in section 338 of the Act.

 

The examination order ceases to have effect when the application to recover forfeited property is either withdrawn or decided upon by the court. 

 

This provision will address an anomaly in the Act.  Currently, if a person applies to recover property before it is forfeited (that is, when a restraining order is still in place), the CDPP can apply for an examination order.  However, if a person applies to recover property after it has been forfeited, a restraining order is no longer in place, so there is no basis on which to obtain an examination order.  This section will enable the CDPP to apply for examinations in relation to recovery applications when a restraining order is not in place.  These examinations are necessary to determine the circumstances giving rise to an application for recovery.

 

180D Examination orders relating to enforcement of confiscation orders

 

Where a confiscation order has been made but not satisfied, the court that made the confiscation order may, under section 180D, make an order for the examination of any person, including a person against whom the confiscation order was made (paragraph 180D(1)(a)) or the spouse or de facto partner of a person against whom the confiscation order was made (paragraph 180D(1)(b)).  It may also include persons such as lawyers, accountants, bankers and other advisers of the persons stated in paragraphs 180D(1)(a) and (b).  The examination is in relation to the ‘affairs’ of the persons stated in paragraphs 180D(1)(a) and (b).  ‘Affairs’ is defined in section 338 of the Act.

 

The examination order ceases to have effect when the confiscation order is finally determined, withdrawn or otherwise disposed of.

 

This provision will assist to ensure that confiscation orders made under the Act are given effect.  It will enable the CDPP to locate any additional property which has been forfeited, or on which it is necessary to rely in order to satisfy a pecuniary penalty order or literary proceeds order.

 

180E Examination orders relating to restraining orders revoked under section 44

 

Section 180E enables a court that revoked a restraining order under section 44 to make an order for the examination of any person, including a person whose property is, or a person who has an interest in property that is, the subject of the restraining order (paragraph 180E(1)(a)) or the spouse or de facto partner of a person referred to in paragraph 180E(1)(a) (paragraph 180E(1)(b)).  It may also include persons such as lawyers, accountants, bankers and other advisers of the persons stated in paragraphs 180E(1)(a) and (b).  The examination is in relation to the ‘affairs’ of the persons stated in paragraphs 180E(1)(a) and (b).  ‘Affairs’ is defined in section 338 of the Act.

 

The examination order ceases to have effect when the restraining order would have ceased to have had affect, assuming it had not been revoked under section 44.

 

This provision will address an anomaly in the Act that is created by section 44.  Section 44 provides that, if a person provides security or an undertaking in relation to restrained property, then the restraining order is set aside.  However, the ability to conduct examinations is currently tied to the existence of a restraining order.  Without a restraining order in place, there is no ability to conduct an examination under the Act to determine relevant information about the nature and location of property which may be proceeds of crime. 

 

This provision will enable applications to be made for examinations despite the revocation of a restraining order under section 44.

 

Item 104 - Application

 

This item sets out the application of sections 180A and 180B (as inserted by Item 103 ).  The application of sections 180A and 180B is determined by reference to either the date of application for a restraining order, or the date of application for a forfeiture order.

 

Where the application for exclusion or compensation (under sections 73 or 77) relates to a forfeiture order that was or would be made under sections 47 or 49 of the Act, the date of application for the restraining order (upon which the forfeiture order relies) is the relevant date for determining the application of sections 180A and 180B.  The restraining order must be applied for on or after the commencement of this item for sections 180A and 180B to apply.  This applies regardless of whether the conduct constituting the offence (which led to the commencement of confiscation action) occurred or occurs before, on or after the commencement.

 

Where the application for exclusion or compensation (under sections 73 or 77) relates to a forfeiture order that was or would be made under section 48 of the Act, the date of application for the forfeiture order is the relevant date for determining the application of sections 180A and 180B.  The forfeiture order must be applied for on or after the commencement of this item for sections 180A and 180B to apply.  This applies regardless of whether the conduct constituting the offence (which led to the commencement of confiscation action) occurred or occurs before, on or after the commencement.

 

Where the application is for exclusion or compensation (under sections 94 or 94A), the date of application for the restraining order is the relevant date for determining the application of sections 180A and 180B.  The restraining order must be applied for on or after the commencement of this item, regardless of whether the conduct constituting the offence occurred or occurs before, on or after the commencement.

 

Sections 180C applies in relation to an application for recovery of property after forfeiture, where that forfeiture is based on a restraining order that is applied for on or after the commencement of this item, regardless of whether the conduct constituting the offence occurred or occurs before, on or after the commencement.

 

Section 180E applies in relation to restraining orders applied for on or after the commencement of this item, regardless of whether the conduct constituting the offence occurred or occurs before, on or after the commencement.

 

Section 180D applies in relation to confiscation orders applied for on or after the commencement of this item, whether the conduct constituting the offence concerned occurred or occurs before, on or after the commencement.

 

This provision is retrospective in application, but does not create any retrospective criminal liability.  Retrospective application is necessary to ensure that a person who claims an interest in property is not able to avoid examination about their affairs.  Without retrospective application, the court could not make an examination order in respect of applications for exclusion, compensation or recovery, or a confiscation that has not been satisfied, when there is no restraining order in place and the conduct constituting the offence occurred before the commencement of sections 180A - 180E. 

 

Item 105 - Subsection 181(1)

 

This item inserts an asterisk before ‘affairs’ in subsection 181(1), to indicate that the term has now been defined in the Dictionary to the Act contained in section 338. 

 

Item 106 - Subsection 181(1)

 

This item removes the reference to ‘the nature and location of any property’ from subsection 181(1).  Because the term ‘affairs’ is now being defined in the Dictionary to the Act in section 338, there is no longer a need to refer to what may be included in the definition of ‘affairs’ in the subsection.

 

Item 107 - Application

 

This item sets out the application of amendments to section 181 made by this Part.  Section 181 applies in relation to convictions quashed on or after the commencement of this item, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement.

 

This provision is retrospective in application, but does not create any retrospective criminal liability.  It is necessary for the amendment to have retrospective effect to ensure that the term ‘affairs’ is defined consistently. 

 

Item 108 - Section 182

 

This item inserts ‘(1)’ at the beginning of the section.  It is a consequential amendment arising from the insertion of new subsection 182(2).

 

Item 109 - At the end of section 182

 

This item inserts new subsection 182(2), which requires a court to consider an application made by the CDPP for an examination order e x  parte , if the CDPP requests that the court do so.  This item implements Recommendation D22(d) of the Sherman Report.  The Sherman Report noted the necessity to examine persons as soon as possible after restraining orders are obtained in order to preserve property and progress confiscation proceedings. 

 

Expressly allowing the CDPP to apply for examination orders ex parte will enable the CDPP to make such an application at the same time as an application for a restraining order.  This will reduce court burden and assist authorised examiners to conduct examinations early to ensure that all relevant property is identified quickly and, if appropriate, restrained early in an investigation.

 

Presently, the sole requirement for the DPP to satisfy in applying for an examination order under section 180 is that a restraining order is in force.  Thus, there currently exists an implied ability for the DPP to apply for an examination order ex parte .  This item expressly confirms the ability of the court to consider an application for an examination order ex parte .

 

Item 110 - Subsection 187(4)

 

This item inserts an asterisk before ‘affairs’ in subsection 187(4), to indicate that the term has now been defined in the Dictionary to the Act contained in section 338. 

 

Item 111 - After paragraph 187(4)(a)

 

This item inserts additional circumstances in which an examination must not relate to a person’s affairs.  The item states that an examination must not relate to a person’s affairs if the person is no longer a person whose affairs can be subject to examination under sections 180, 181, 180A, 180B, 180C, 180D or 180E.  This item is consequential on the inclusion of new sections 180A, 180B, 180C, 180D and 180E. 

 

Item 112 - Paragraph 187(5)(b)

 

This item is a consequential amendment.  It includes references to new sections 180A, 180B, 180C, 180D and 180E, it marks that the term ‘affairs’ is now defined in the Dictionary and it omits the reference to ‘the nature and location of any property’, as this is now included in the definition of ‘affairs’.  The effect of the paragraph is that an examined person may be required by an approved examiner to answer a question that is relevant to the affairs of persons in sections 180, 180A, 180B, 180C, 180D, 180E and 181.

 

Item 113 - Application

 

This item sets out the application of amendments to sections 182 and 187.  These sections apply in relation to an examination order applied for on or after the commencement of this item.

 

This provision is retrospective in application, but does not create any retrospective criminal liability.  It is necessary to apply the proposed amendments to section 182 retrospectively to ensure that examination orders may be obtained as soon as possible in proceedings.  This will ensure that property may be identified and located before it can be dissipated or moved outside of the reach of law enforcement.

 

The need for the amendments to subsections 187(4) and (5) to have retrospective effect is a consequence of the insertion of sections 180A - 180E, which allow for examination orders to be made in a broader range of circumstances and also apply retrospectively.  The amendments are necessary to ensure that an examiner can ask questions that are relevant to the affairs of a person who is the subject of the new examination order provisions.  The amendments will also protect people from having their affairs examined where those affairs can no longer be subject to examination under the new provisions.

 

Item 114 - Section 195 (penalty)

 

This item increases the penalty for the offence of failing to attend an examination from six months and/or 30 penalty units, to two years and/or 120 penalty units, and implements Recommendation D24 of the Sherman Report.   For example, the penalty for failing to attend an examination under the Australian Securities and Investments Commission Act 2001 is two years imprisonment and/or 100 penalty units.  The increase reflects the seriousness of the offence and is more likely to act as a deterrent for offenders who may be tempted to avoid examination questions in an attempt to protect illicit wealth.

 

Item 115 - Subsection 196(1) (penalty)

 

This item increases the penalty for offences relating to appearance at an examination from six months months and/or 30 penalty units, to two years and/or 120 penalty units.  These offences are:

·         refusing or failing to be sworn or affirmed

·         refusing or failing to answer a question that is required to be answered

·         refusing or failing to produce a document specified in the examination notice, or

·         leaving the examination before being excused by the approved examiner.

 

This item implements Recommendation D24 of the Sherman Report.  The increase ensures that the offences are commensurate with other equivalent Commonwealth offences.  For example, the penalty for failing to attend an examination under the Australian Securities and Investments Commission Act 2001 (ASIC Act) is two years imprisonment and/or 100 penalty units.  The increase reflects the seriousness of the offences and is more likely to act as a deterrent for offenders who may be tempted to avoid examination questions in an attempt to protect illicit wealth.

 

Item 116 - After section 197

 

This item introduces a new offence of giving false or misleading information at an examination.  A person commits this offence if they attend an examination and give an answer or produce a document and the answer or document is either false or misleading or omits a matter or thing, without which the answer or document is false or misleading.  The penalty of this offence is, consistent with the increased penalties for other examination offences, imprisonment of two years and/or 120 penalty units.

 

This item implements Recommendation D25 of the Sherman Report.  The Report considered that, while the Criminal Code 1995 (Cth ) (Criminal Code) offences for using false or misleading information or documents may be used in addition to the specified offences in Division 4 of the Act, the penalties attached to these offences (12 months imprisonment) were in a lower range than equivalent provisions in State and Territory confiscation legislation and other Commonwealth legislation (such as the ASIC Act referred to above).  The Sherman Report recognised that the Criminal Code offences were very general and intended to be used in a wide variety of circumstances, and recommended that, commensurate with the approach in the ASIC Act, a new offence should be created to address the particular circumstance of an examination order.

 

Item 117 - Subparagraph 269(a)(ii)

 

This item inserts an asterisk before ‘affairs’ in subparagraph 269(a)(ii), to indicate that the term has now been defined in the Dictionary to the Act contained in section 338. 

 

Item 118 - Section 338

 

This item inserts a new definition of ‘affairs’ in the Dictionary in section 338 of the Act, to clarify its meaning.  The term is used in the context of conducting examinations to elicit information about a person’s property. 

 

This amendment became necessary after diverging views in the interpretation of the term arose in judgments in NSW and QLD (legislation in those States contain provisions closely worded to section 180 of the Act).  In NSW, Greg James J held in NSWCC v Murchie (2000) 49 NSWLR 465, that the term ‘affairs’ encompassed matters which are relevant to the existence of serious crime related activity or illegal activity by a person to whom a restraining order relates.  In other words, ‘affairs’ can encompass the asking of questions solely relevant to the commission of criminal conduct by a person, if that conduct was potentially relevant to a confiscation outcome in the matter. 

 

By contrast, in QLD, in Meredith v State of Queensland [2007] 1 Qd R 334, the Queensland Court of Appeal held that there must be at least an arguable connection between the activity of a suspect and the property of the suspect to support the proposed line of questioning (in other words, ‘affairs’ meant ‘financial affairs’).

 

The new definition of ‘affairs’ is intended to pick up the interpretation in Murchie , by providing that the affairs of a person includes, but is not limited to, the nature and location of the person’s property (or property in which the person has an interest), and any of the person’s activities that are, or may be, relevant to whether or not the person has engaged in unlawful activity of a kind relevant to the making of an order under the Act.

 

Item 119 - Section 338 (definition of examination order )

 

This item is a consequential amendment to insert references to new sections 180A, 180B, 180C, 180D and 180E in the Dictionary definition of ‘examination order’.

Part 4 - Notices

Proceeds of Crime Act 2002

 

Item 120 - After paragraph 202(5)(c)

 

This item inserts new paragraph 202(5)(ca) in subsection 202(5), which defines the scope of a ‘property-tracking document’.  It will ensure that a document relevant to identifying, locating or quantifying property suspected of being proceeds of an indictable offence, foreign indictable offence or indictable offence of Commonwealth concern, or an instrument of a serious offence, is included in the definition of ‘property-tracking document’.  This item implements Recommendation D26(a) of the Sherman Review.

 

The current definition of ‘property-tracking document’ is person-directed.  That is, it is linked to ‘a person’ either being convicted of, charged with, being proposed to be charged with, or being reasonably suspected of having committed, one of the relevant types of offences.  There is no provision covering a situation where the identity of the person who committed the offence is not known.  This means that production orders are currently unavailable where property has been restrained or may be restrained under section 19 of the Act (which permits restraint of property without reference to ‘a person’).  This item remedies the gap in the definition and will allow production orders to be used where the identity of the person is not known. 

 

Item 121 - Paragraph 202(5)(d)

 

This item is a consequential amendment.  It includes a reference to new paragraph 202(5)(ca) in paragraph 202(5)(d), so that that paragraph now defines a ‘property-tracking document’ to include a document relevant to identifying or locating any document necessary for the transfer of property referred to in paragraph (c) or (ca).

 

Item 122 - Paragraph 202(5)(f)

 

This item is a consequential amendment.  It includes a reference to new paragraph 202(5)(ca) in paragraph 202(5)(f), so that that paragraph now defines a ‘property-tracking document’ to include a document that would assist in the reading or interpretation of a document referred to in paragraph (a), (b), (c), (ca), (d) or (e).

 

Item 123 - Subsection 202(6)

 

This item is a consequential amendment.  It includes a reference to new paragraph 202(5)(ca) in subsection 202(6).  This clarifies that, for the purposes of subparagraph 202(5)(c)(ii) and paragraph 202(5)(ca), it is sufficient that a document is relevant to identify, locating or quantifying proceeds of some offence or other of a kind referred to in that paragraph or subparagraph.  It does not need to be relevant to identifying, locating or quantifying proceeds of a particular offence. 

 

Item 124 - Subsection 202(6)

 

This item is a consequential amendment.  It changes the phrase ‘of a kind referred to in that subparagraph’ to ‘of a kind referred to in that provision’.  This is because new paragraph 202(5)(ca) is now referred to in subsection 202(6).  Thus, a reference to ‘that subparagraph’ is incorrect, as there are now references to a subparagraph and a paragraph.   

 

Item 125 - After paragraph 203(1)(c)

 

This item inserts new paragraph (ca) into subsection 203(1), which deals with the contents of production orders.  The new paragraph requires that the manner and form in which documents are to be produced must be specified in the production order. 

 

This item implements Recommendation D26(b) of the Sherman Report.  It is designed to enable documents produced under a production order to be received electronically.  As noted in the Sherman Report, electronic receipt of documents has the potential to be cost and time efficient, particularly when dealing with a large number of documents. 

 

Item 126 - Subsection 203(2)

 

This item repeals subsection 203(2) and replaces it with two new subsections governing the time in which documents, the subject of a production order, must be produced.  New subsection 203(2) provides a minimum period of 14 days after the production order is made before documents must be produced.  If a magistrate who made the production order is satisfied that it is appropriate, the time period may be shortened to no less than three days after the day on which the production order is made.

 

New subsection 203(3) provides the matters to which a magistrate must have regard when deciding whether to specify an earlier time for production under subsection 203(2).  These are: the urgency of the situation, and any hardship that may be caused to the person required to produce documents or make documents available under the production order.

 

This provision provides for situations where there is a genuinely urgent need for documents to be produced in less than 14 days.  The specified minimum of three days provides certainty for the person complying with the order by setting a clear parameter for the minimum time for compliance.

 

Item 127 - At the end of section 211

 

This item inserts new subsection (3) at the end of section 211, which is a defence to the offence of failing to comply with a production order.  It states that, if a person failed to comply with a production order only because they did not produce the specified document or documents within the time specified in the order, and the person took all reasonable steps to produce the document or documents within that time, it is a defence against the offence in subsection 211(1).

 

This new item provides a safeguard for those who may be required to comply with a shortened production time under subsection 203(2).

 

Item 128 - Application

 

This item sets out the application of amendments made by this Part to Part 3-2 of the Act (production orders).  The amendments apply in relation to production orders applied for on or after the commencement of this item, whether the conduct constituting the offence occurred or occurs before, on or after the commencement.

 

This provision is retrospective in application, but does not create any retrospective criminal liability.  Without retrospective application, access to the improved production order provisions would be limited to where the conduct constituting the offence occurred after the commencement of the changes to Parts 3-2.  It would also create a considerable burden for courts and authorised officers who would have to administer two schemes for the issuing of orders, potentially for several years.

 

Item 129 - Paragraphs 213(1)(a) and (b)

 

This item is a consequential amendment, resulting from the changed definition of ‘account’ (which is amended to include closed accounts).  The item introduces the past tense when referring to accounts.  Accordingly, paragraph 213(1)(a) is amended to refer to an account that ‘is or was’ held by a specified person, and paragraph 213(1)(b) is amended to refer to whether a person ‘is or was’ a signatory to an account.

 

Item 130 - Paragraph 213(1)(d)

 

This item is a consequential amendment, resulting from the changed definition of ‘account’ (which is amended to include closed accounts).  The item removes ‘such’, so that paragraph 213(d) is no longer linked to paragraph 213(c) (which refers to a current account).  This has the effect of removing the inference that the account referred to in paragraph 213(d) is an open account.

 

Item 131 - Paragraph 213(1)(e)

 

This item is a consequential amendment, resulting from the changed definition of ‘account’ (which is amended to include closed accounts).  The item introduces the past tense when referring to accounts.  Accordingly, paragraph (1)(e) is amended to refer to persons who ‘hold or held’ accounts.

 

Item 132 - After paragraph 213(1)(e)

 

This item introduces two new situations in which an authorised officer may provide written notice to a financial institution.  These are: to determine whether a stored value card was issued to a person by a financial institution, and to obtain details of transactions made using a stored value card over a specified period not exceeding six months.  A stored value card is defined in section 338 of the Act.  Enabling authorised officers to obtain information about stored value cards will assist in identifying proceeds of crime and ensuring these funds are not dispersed.  

 

Item 133 - At the end of subsection 213(3)

 

This item implements Recommendation 4 of the Sherman Report by expanding the list of officers who may give notices to financial institutions under section 213.  Section 213 notices require financial institutions to provide information about accounts held by them to authorised officers.  The expanded list names the Commissioner of Taxation, the Chief Executive Officer of Customs and the Chairperson of the Australian Securities and Investments Commission as officers who may give a notice to a financial institution. 

 

Including these officers in the list of authorised officers is necessary given the importance of section 213 notices as effective information gathering tools under the Act.  The limited number of authorised officers has meant that officers from named agencies have had to issue notices on behalf of other agencies, creating critical delays in identifying property that should be restrained.  This amendment will assist in overcoming the delays currently caused by the limited number of authorised officers.  The amendment does not allow the power to issue a notice to be delegated for the new specified officers, which safeguards against possible misuse of the power.

 

Item 134 - Section 214

 

This item inserts ‘(1)’ at the beginning of the section.  It is a consequential amendment arising from the insertion of new subsection 214(2).

 

Item 135 - Paragraph 214(d)

 

This item amends paragraph 214(1)(d) so that an authorised officer who issues a notice requiring a financial institution to provide information must have regard to the record-keeping capabilities of the financial institution, to the extent that those record keeping capabilities are known to the officer.  The intent of this provision is to place a positive obligation on the authorised officer to consider whether the financial institution is reasonably able to comply with the request being made.  This provision is included because the time in which information or documents must be produced has been amended to allow for production in less than 14 days (but no less than three days) after giving the notice.

 

Item 136 - Paragraph 214(e)

 

This item replaces paragraph (e), which provides that information must be provided by a financial institution to the authorised officer within 14 days of the notice, with a new paragraph which enables provision of information in less than 14 days (but not less than three days) if the authorised officer issuing the notice believes that a lesser timeframe is appropriate.  In forming the belief that it is appropriate to specify a lesser timeframe, the authorised officer must have regard to the matters in new subsection 214(2).  Receipt of information from financial institutions in a shortened timeframe will, in appropriate situations, ensure that property obtained with the proceeds of crime that is capable of restraint is quickly identified before it can be dissipated.

 

Item 137 - At the end of section 214

 

This item inserts new subsection 214(2), which specifies the matters to which an authorised officer must have regard in deciding whether to require production of information under a notice to a financial institution in less than 14 days.  The authorised officer must have regard to the urgency of the situation and any hardship that may be caused by the financial institution by the reduced timeframe.  Receipt of information from financial institutions in a shortened timeframe will, in appropriate situations, ensure that property obtained with the proceeds of crime that is capable of restraint is quickly identified before it can be dissipated.

 

This item sets the parameters for the use of shortened timeframes and ensures that adequate consideration is given by authorised officers in determining that a shorter time frame is necessary.  The item is intended for use in genuinely urgent situations only.  It does not exist to be used merely for matters of convenience for the authorised officer.  For example, if the investigating agency has been lax in drafting and giving a notice to a financial institution, it would not be sufficient justification to reduce the time in which a financial institution has to comply with the notice. 

 

Item 138 - Section 218

 

This item inserts ‘(1)’ at the beginning of the section.  It is a consequential amendment arising from the insertion of new subsection 218(2).

 

Item 139 - At the end of section 218

 

This item inserts new subsection 218(2), which provides a defence to the offence of failing to comply with a notice given under section 213.  If a person from a financial institution does not produce the required information or document within the specified period, and that person took all reasonable steps to provide the information, then, provided the information is produced as soon as practicable, the defence is made out. 

 

This item is a safeguard to ensure that persons who are genuinely unable to provide the required information within the specified time are not exposed to a penalty.

 

Item 140 - Application

 

This item sets out the application of amendments made by this Part to Part 3-3 of the Act (notices to financial institutions).  The amendments apply in relation to a notice given under section 213 of the Act on or after the commencement of this item, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement.

 

This provision is retrospective in application, but does not create any retrospective criminal liability.  Without retrospective application, access to the improved notices to financial institution provisions would be limited to where the conduct constituting the offence occurred after the commencement of the changes to Parts 3-3.  It would also create a considerable burden for officers who would have to administer two schemes for the issuing of notices to financial institutions, potentially for several years.

 

Item 141 - Subsection 219(1)

 

This item expands the subject matter about which a monitoring order may be made.  Currently, monitoring orders may only be made in respect of transactions conducted through an account.  This item expands the provision to enable monitoring orders to be made with respect to transactions made by using a stored value card.  ‘Stored value card’ is defined in the Dictionary to the Act in section 338; essentially, it is cash held in another form.  This provision enables a judge to make an order that a financial institution provide information about transactions made using a stored value card that was issued to a person by a financial institution.

 

This item closes a gap that currently exists in the information-gathering powers under the Act.  Information-gathering powers, such as monitoring orders and notices to financial institutions, are currently only exercisable with respect to ‘accounts’ held by financial institutions.  Because a stored value card is different to an ‘account’, there was no way in which to obtain information on transactions made using these cards.  Law enforcement agencies have identified that products falling within the definition of ‘stored value card’ have been known to be used to launder money from the proceeds of narcotics and pay drug couriers.

 

Item 142 - Paragraph 219(2)(a)

 

This is a consequential amendment arising from the introduction of the term ‘stored value card’.  The subsection provides the grounds on which a judge must be reasonably satisfied before making a monitoring order.  This item amends the phrase in paragraph 219(2)(a) from ‘the person in respect of whose account…’ to ‘the person in respect of whose account or card…’.

 

Item 143 - Paragraph 219(2)(b)

 

This is a consequential amendment arising from the introduction of the term ‘stored value card’.  Subsection 219(2) provides the grounds on which a judge must be reasonably satisfied before making a monitoring order.  This item amends the phrase in paragraph 219(2)(b) from ‘the account is being used…’ to ‘the account or card is being used…’.

 

Item 144 - Subsection 219(3)

 

This is a consequential amendment arising from the introduction of the term ‘stored value card’.  Subsection 219(3) provides that, if an account is being used to commit a money laundering offence, it does not matter whether the person holding that account is involved in the offence.  This subsection has been amended to refer to an account or stored value card.

 

Item 145 - Paragraph 220(1)(a)

 

This is a consequential amendment arising from the introduction of the term ‘stored value card’.  It amends paragraph 220(1)(a), which requires that the name in which an account is believed to be held must be specified in a monitoring order.  The paragraph now requires that the name in which an account is believed to be held, or the name of the person to whom the stored value card was issued, must be specified in the monitoring order.

 

Item 146 - Application

 

This item sets out the application of amendments made by this Part to Part 3-4 of the Act.  The amendments apply in relation to monitoring orders applied for on or after the commencement of this item, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement.

 

This provision is retrospective in application, but does not create any retrospective criminal liability.  Without retrospective application, access to the improved monitoring order provisions would be limited to where the conduct constituting the offence occurred after the commencement of the changes to Parts 3-4. 

 

Item 147 - Section 338 (definition of account )

 

This item amends the definition of ‘account’ in Dictionary to the Act, contained in section 338.  The new definition of ‘account’ is modelled on the definition in the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML-CTF Act), and includes credit card accounts, loan accounts, trust account and closed accounts.  The widened definition will enable investigating agencies to exercise greater information-gathering powers.

 

Item 148 - Section 338

 

This item inserts the definition of ‘stored value card’ in the Dictionary to the Act, contained in section 338.  The definition is adopted from the AML-CTF Act.  It is intended to cover instances where cash is held, not in an account, but in some other form.  Stored value cards may be loaded with purchased credit, to be redeemed at a place that honours the card.  The amendments will allow information to be obtained from E-Merchants who market gift cards to merchants such as Australia Post, Coles Myer, Woolworths and Travelocity.

Part 5 - Ancillary Orders

Proceeds of Crime Act 2002

 

Item 149 - After paragraph 39(1)(c)

 

This item implements Recommendation D7(b) of the Sherman Report by inserting new paragraph 39(1)(ca) to correct an ambiguity in paragraph 39(1)(d).  Paragraph 39(1)(d) currently empowers a court to make an order directing the owner of restrained property to give a sworn statement setting out particulars of, or dealing with, ‘the property’.  On a narrow reading of this provision, it could be argued that a sworn statement need only be in relation to the restrained property, and not other property owned by the person.  This argument was made (but ultimately not adjudicated on) in DPP v Loades [2004] SADC 158, and on appeal at [2005] SASC 227.

 

To put the matter beyond doubt, new paragraph 39(1)(ca) has been inserted to empower the court to make any order directing the suspect in relation to the restrained property to give a sworn statement setting out all of his or her interest in property, and his or her liabilities.  This will assist the CDPP, particularly at an early point in the investigation, to establish the suspect’s net asset position.  It is necessary to establish a person’s net assets in order to determine what property, if any, to make the subject of a restraining order.   

 

Items 150 and 151 - Paragraph 39(1)(d)

 

These items implement Recommendation D7(a) of the Sherman Report by inserting references to a ‘previous owner of property’ in paragraph 39(1)(d).  Paragraph 39(1)(d) currently provides that the court may make an order directing the owner of restrained property to give a sworn statement setting out particulars of, and dealings with, the property.  The CDPP has identified that, in order to avoid potential confiscation action under the Act, suspects will sometimes divest themselves of property to family members or associates.  This item addresses this situation by enabling the court to direct a previous owner of property (who may be the suspect) to give a sworn statement setting out particulars of, or dealings with, the property. 

 

Item 152 - After paragraph 39(1)(d)

 

This item builds upon Recommendation D7(a) of the Sherman Report.  It inserts new paragraph 39(1)(da), which empowers the court to direct a person other than the owner or previous owner of property, to give a statement within a specified period setting out particulars of, or dealings with, the property.  Like Items 150 and 151 , this item will enable the CDPP to obtain relevant information from persons who may have knowledge of circumstances in which property has been divested to another to avoid confiscation action.  This item goes beyond Recommendation D7(a) as it is not limited to a previous owner of the property, but applies to any other person whom the court reasonably suspects to have information relevant to identifying, locating or quantifying the property.  For example, it could apply to a mortgage broker or a real estate agent. 

 

Item 153 - Paragraph 39(1)(g)

 

This item expands the operation of paragraph 39(1)(g), and in doing so, implements Recommendation D7(c) of the Sherman Report.  Presently, paragraph 39(1)(g) enables a court to make an order requiring a person whose property is covered by a restraining order to do anything necessary or convenient to bring the property within the jurisdiction.  This item expands the operation of that paragraph to apply to persons who have effective control of property covered by a restraining order.

 

This item will apply to, for example, persons suspected of serious criminal activity that may hold property offshore through third party structures, such as companies and trusts. 

 

Item 154 - After subsection 39(3)

 

This item inserts new subsection 39(3A), which empowers the court to consider applications for ancillary orders made ex parte .

 

This provision has been included to clarify the ambiguity between subsections 39(3) and (4).  Subsection 39(3) provides that a person who applies for an ancillary order must give written notice of the application to all relevant parties.  However, paragraph (4)(a) suggests that an ancillary order may be made by a court at the same time that it makes a restraining order (which can be made ex parte under subsection 26(4) of the Act).

 

In DPP v Xu [2005] NSWSC 191, the court held that applications for ancillary orders can only ever be made following an application on notice.  In its submission to the Sherman Report, the CDPP noted several instances in which the interpretation taken by the court will delay ancillary orders being made, and might impede the proper operation of the Act.  These are where the DPP has to return to court for an order:

 

·         requiring the owner of restrained property to give a sworn statement about the particulars of, and their dealings with, the property

·         about the manner in which the Official Trustee is to exercise its power in respect of restrained property

·         directing persons to assist the Official Trustee to take custody and control of property, and

·         that a person whose property has been restrained take action to bring the restrained property within jurisdiction.

 

The Sherman Report recommended that the Act be amended to allow ancillary orders to be made ex parte (Recommendation D7(d)).  This item gives effect to that Recommendation, and in doing so, ensures the proper operation of the Act.

 

Item 155 - After subsection 39(4)

 

This item inserts new subsection 39(4A), which provides that the court may direct the CDPP to give notice of an application for an ancillary order to specified persons.  This item will ensure that persons who may be affected by an application for an ancillary order are notified of the application.  While subsection 39(3) requires a person who applies for an ancillary order to give written notice to all other persons entitled to make an application, this item will ensure that written notice is provided to all potentially affected persons (that is, third parties), not just those entitled to make an application.

 

This item also inserts new subsection 39(4B), which requires the CDPP to give written notice to any person affected by an ancillary order made ex parte.   This item is a consequential amendment arising from Item 154 (which specifically provides that applications for ancillary orders can be made ex parte ).  The item ensures that all persons whom the CDPP reasonably believes may be affected by an ancillary order made ex parte are notified of the order. 

 

Item 156 - After section 39

 

This item inserts new section 39A, which abrogates the privilege against self incrimination with respect to a sworn statement about particulars of, or dealings with, property given under paragraph 39(1)(d) or (da) of the Act.  This item implements recommendation D7 of the Sherman Report.

 

In DPP v Xu [2005] NSWSC 191, the court held that the privilege against self incrimination had been impliedly repealed by the requirement that a suspect declare an interest in property under paragraph 39(1)(d).  The purpose of this item is to reflect the court’s finding by making it express in the legislation that the privilege against self-incrimination does not apply to sworn statements made in relation to paragraphs 39(1)(d) or (da).

 

The provision contains direct use immunity, so that the sworn statement is not admissible in civil or criminal proceedings against the person who made the statement, except in certain specified circumstances.  These circumstances are:

 

·         criminal proceedings for false or misleading information

·         proceedings on an application under the Act

·         proceedings ancillary to applications under the Act, or

·         proceedings for enforcement of a confiscation order.

 

Derivative use immunity does not apply to this provision for operational reasons.  As criminal proceedings and proceeds of crime proceedings are often conducted simultaneously, a defendant could use a derivative use immunity (if it were included in this provision) to frustrate a prosecution. For example, if a defendant made certain admissions in a statement and provided similar information elsewhere, he or she could claim that the investigating agency or CDPP obtained the similar information from, for example, a statement about his or her interests in property or liabilities (made under paragraph 39(1)(ca)) and this similar information would then be inadmissible in a prosecution.

 

The investigating agency or CDPP would then face the very onerous task of proving the source of prosecution information (that is, proving it was not derived from the statement).  As a consequence, the CDPP and or investigating agency would be required to quarantine information in anticipation that an application to exclude might be made, which is not desirable.

 

This item also inserts new section 39B, which enables a person to apply to revoke an ancillary order.  This item will enable a person affected by an ancillary order heard ex parte , to apply to have the order revoked.  This item ensures that a person the subject of an ancillary order is not prejudiced by an order being made against them in their absence.

 

Under the provision, the effect of the ancillary order is stayed until the court hears the application for revocation, and if the ancillary order directed a person to do a thing within a specified period, the court may vary the order to extend that period.

 

Item 157 - Section 40 (note)

 

This item amends the note to section 40 to include a reference to a person who has effective control of property covered by a restraining order. 

 

Item 158 - Application

 

This item sets out the application of amendments made by this Part to Division 5 of Part 2-1 of the Act (further orders).  The amendments apply where ancillary orders relate to restraining orders applied for on or after the commencement of this item, whether the conduct constituting the offence concerned occurred or occurs before, on or after the commencement.

 

This provision is retrospective in application, but does not create any retrospective criminal liability.  Retrospective application is necessary to ensure the effectiveness of the ancillary order provisions.  Without retrospective application, the court would not be able to grant an ancillary order ex parte or make an ancillary order under the grounds in proposed paragraphs 39(1)(ca),(d) and (da), where the unlawful conduct occurred prior to the commencement of the proposed amendments to section 39.  Applying these provisions retrospectively will ensure that property can be identified and located before it can be dissipated or moved outside of the reach of law enforcement.  It will also save the court time by allowing ancillary orders to be made at the same time as ex parte restraining orders.  This item also applies a number of safeguards retrospectively.

 

Part 6 - Evidence

Proceeds of Crime Act 2002

 

Items 159, 160, 162 and 163 - Subsection 64(2), paragraph 64(2)(a), subsection 138(2) and paragraph 138(2)(a)

 

These items implement Recommendation D11 of the Sherman Report, which states that subsections 64(2) and 138(2) should be amended so that the court can have regard to the transcript of proceedings against the suspect for any offence which constitutes unlawful activity.  The Sherman Report considered that the current provision, which limits the court’s regard to transcripts of conviction-based proceedings, was unnecessarily constraining.  In its submission to the Sherman Report, the CDPP submitted that since non-conviction based confiscation proceedings now form an important part of the Commonwealth confiscation regime, it is appropriate that the court may have regard to transcripts of proceedings that do not result in conviction when determining applications for forfeiture and pecuniary penalty orders.  This submission was endorsed by the Sherman Report.

 

The following example was mentioned in the Sherman Report.  If a person was found not guilty because of a hung jury, and the CDPP applied for a forfeiture order or pecuniary penalty order against that person on the basis that his or her guilt was proven to a civil standard, current subsections 64(2) and 138(2) would not expressly permit a court to have regard to the transcript of the relevant proceedings. 

 

The Sherman Report noted that the court should not be restricted to looking only at transcripts of proceedings which relate to the specific offence which forms the basis of the forfeiture order or pecuniary penalty order.  The Report noted that there may be cases in which the alleged offence which forms the basis of a forfeiture order application or a pecuniary penalty order application is technically different from an offence of which a person has been convicted.  The Report argued that, in such circumstances, it would seem artificial if the wording of subsections 64(2) and 138(2) are interpreted so as not to permit the court to have regard to transcript from the relevant proceedings.

 

Further, the Sherman Report noted that evidence and convictions relating to other offences may be relevant to the determination of confiscation applications.  For example, where a person is alleged to have committed a ‘serious offence’ under the Act, the person will be liable to forfeit not only proceeds of the specific offence, but also property which represents proceeds of other ‘unlawful activity’.

 

These items, therefore, remove the references to conviction of an indictable offence (which limit the provisions), and permit the court to have regard to transcripts of any proceedings for an offence that constitutes unlawful activity.

 

Item 161 - Application

 

This item sets out the application of amendments made by this Part to section 64 of the Act.  The amendments apply in relation to forfeiture orders applied for on or after the commencement of this item, whether the conduct constituting the offence occurred or occurs before, on or after the commencement.

 

These provisions are retrospective in application but do not create any retrospective criminal liability.  Retrospective application is necessary to ensure that a court can have regard to the relevant transcripts when determining an application for a forfeiture order.      

 

Item 164 - Application

 

This item sets out the application of amendments made by this Part to section 138 of the Act.  The amendments apply in relation to pecuniary penalty orders applied for on or after the commencement of this item, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement.

 

These provisions are retrospective in application but do not create any retrospective criminal liability.  Retrospective application is necessary to ensure that a court can have regard to the relevant transcripts when determining an application for a pecuniary penalty order.     

 

Item 165 - After section 318

 

This item inserts new provision 318A, which allows statements made at an examination to be admissible as evidence in proceedings under the Act, in certain circumstances where the maker of those statements is absent or unavailable to appear as a witness (for example, if they are deceased).  This item also inserts new section 318B, which requires a party to give notice of their intention to adduce the statements as evidence and allows for objections to be made to the admission of such statements. 

 

Currently, subsection 318(2) provides that, in proceedings under the Act, the transcript of an examination is evidence of the answers given by a person to a question put to the person in the course of the examination.  On its face, subsection 318(2) makes the transcript of an examination directly admissible in the following proceedings:

·         on an application for an order

·         ancillary to an application for an order, or

·         for enforcement of an order.

 

However, this matter is not without doubt, as the hearsay rule could prevent admission of examination transcripts if the examinee is not available to support the transcript with testimony.  Because of the uncertainty surrounding this issue, the Sherman Report recommended that transcripts of an examination should be admissible as evidence of answers given by an examinee, as if the examinee was giving evidence in court (Recommendation D30).  New section 318A implements the effect of this recommendation, but contains two important safeguards. 

 

First, subsection 318A(4) lists matters to which a court should have regard in determining the weight given to a statement as evidence.  These matters include:

·         the length of time between the matters occurring and the making of the statement

·         any motive the absent witness may possess for concealing or misrepresenting a material matter, and

·         any other circumstances from which an inference may be reasonably drawn about the accuracy of the statement.

 

Second, evidence relevant to the credibility of the absent witness is admissible, but not if it would have been inadmissible had the absent witness been called and cross-examined. 

 

Section 318B provides that the party wishing to adduce the statements as evidence must give written notice to the other party at least 14 days prior to the hearing of the proceedings.  If the other party objects, they may give the adducing party a notice stating their objections.  If they do so, the court can either determine the objections or leave the determination until the hearing.  If the other party does not provide a notice stating their objections, they are not entitled to object to the adducing of the statements as evidence at the hearing unless the adducing party consents or the court gives leave.  This provision ensures that the procedure for adducing evidence is fair to both parties.

 

These two provisions are based on provisions contained in the Australian Securities and Investments Commission Act 2001 (Cth).  These provisions were preferred to those contained in the Evidence Act 1995 (Cth) (the Evidence Act) for two reasons: 

 

First, proceeds of crime proceedings are generally heard in either the court that convicted the defendant or a State Supreme Court.  As the Evidence Act has not been replicated in all jurisdictions, the provisions for an unavailable witness are not available uniformly in every State. 

 

Second, the provisions in this item are more comprehensive than those in the Evidence Act.  For example, section 318A deals with the weight to be given to the statement, which is desirable given the nature of applications made under the Act (that is, applications to deal with the property of a person who may not have been convicted of an offence).

 

Item 166 - Application

 

This item sets out the application of new sections 318A and 318B.  These sections apply in relation to statement made at an examination on or after the commencement of this item, whether the conduct constituting the offence concerned occurred or occurs before, on or after the commencement.

 

This provision is retrospective in application but does not create any retrospective criminal liability.  Retrospective application is necessary to avoid confusion in identifying when a statement made at an examination is admissible, the rules that apply to a statement that is admitted and on what grounds a person can object to the admissibility of a statement.  Without retrospective application, the current uncertainty as to the admissibility of these statements will continue to exist in proceedings where the unlawful conduct occurred prior to commencement of the new sections 318A and 318B.

  Part 7 - Definitions

Proceeds of Crime Act 2002

Item 167 - Subsection 19(4)

Item 167 omits the word, “indictable” in subsection 19(4) of the Act.  This will ensure consistent references to offences.

Section 19(1) of the Act permits a court to restrain property upon application by the CDPP, and if there are reasonable grounds to suspect that property is the proceeds of a “terrorism offence,” “indictable offence,” “foreign indictable offence” or “indictable offence of Commonwealth concern.” 

Section 19(4) of the Act provides that reasonable grounds do not need to be based on a finding of the commission of a particular “indictable offence.”  However, section 19(4) does not contain any reference to a “terrorism offence,” a “foreign indictable offence” or an “indictable offence of Commonwealth concern.”  The different references could suggest that reasonable grounds to suspect that property is the proceeds of these three types of offences must be based on the commission of a particular offence.  This is not the intended process for restraining orders.

Insertion of Note

A Note is inserted after section 19 of the Act to amend the heading to section 19.  Instead of reading, “Restraining orders - people suspected of committing indictable offences etc,” it will read, “Restraining orders - property suspected of being the proceeds of indictable offences etc.”

This will more accurately reflect the fact that section 19 of the Act allows restraint action to be taken directly against an asset, rather than as a result of the conduct of a specific and known suspect.

Item 168 - Application

This item sets out the application of amendments made by this Part to section 19 of the Act.  These amendments apply in relation to restraining orders applied for on or after the commencement of this item, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement.

 

This provision has retrospective application but does not create any retrospective criminal liability.  Retrospective application is necessary to ensure that the operation of section 19 is clear in all proceedings, regardless of when the relevant conduct occurred.

Items 169, 170 and 171 - Subsection 337(3), after subsection 337(4) and at the end of section 337

Items 169, 170 and 171 are related amendments to the definition of “effective control” under section 337 of the Act.  The Act specifies a number of circumstances where a person is taken to have “effective control” over property, even though the person may not have a legal or equitable interest in the property.  Concerns have arisen regarding potential gaps in the definition of “effective control.”  Items 169, 170 and 171 will address these concerns and were recommendation D32 of the Sherman Report.

Item 169 repeals subsection 337(3) of the Act.  That subsection described when property is under the effective control of a person where the person is one of two or more beneficiaries under a discretionary trust.  Although it was never intended that the presumption in subsection 337(3) was an absolute legal presumption, the existing wording may create unnecessary ambiguity where otherwise it would not arise. 

An absolute presumption that beneficiaries have effective control over equal shares, regardless of all of the circumstances, may result in a portion of illegitimate funds being placed outside the reach of law enforcement authorities.  It is for this reason that Item 169 repeals subsection 337(3) of the Act.  It will now be open to the CDPP to present the facts of each particular case, without a presumption operating in the background.

Item 170 inserts new subsection 337(5A) after subsection 337(5).  This amendment overcomes the difficulty created by the fact that, at different stages of proceedings under the Act, property will be subject to the “effective control” of different people. 

For example, before proceedings under the Act are commenced, property will likely be subject to the effective control of a suspect.  However, in deciding whether to make a pecuniary penalty order, it is most likely that the property to which the pecuniary penalty order relates will be restrained under a restraining order and is arguably no longer under the effective control of a suspect.

For the avoidance of doubt, Item 170 states that, in determining whether or not property is subject to the effective control of a person, the effect of any order made in relation to the property under the Act is to be disregarded.

Item 171 clarifies that the concept of “effective control” does not require ‘sole’ control of property.  This will ensure that “effective control” covers situations where property is under the control of more than one person.

This problem was identified in the context of jointly controlled bank accounts.  It is probable that evidence of effective control would displace a shared trust, but the Sherman Report advised it would be prudent to remove any doubt.  This amendment ensures that a court can determine that property is under the effective control of the suspect where property is controlled by more than one person.

Items 172 and 173 - paragraphs 337A(1)(a) and (2)(a)

Items 172 and 173 are related amendments concerning the definition of “foreign indictable offence.”  They amend the definition of “foreign indictable offence” so the definition will no longer be linked to an application for a restraining order or confiscation order.

The existing definition of “foreign indictable offence” states that “if an application is made for a restraining order or confiscation order…” and certain other criteria are satisfied, then unlawful conduct “is treated as having constituted a foreign indictable offence at all relevant times.”  Thus the definition appears to be predicated on an application for a restraining order or confiscation order under the Act having been made.

This has implications for investigative powers under the Act, which are designed to be used before a restraining order is applied for, such as production orders and search warrants under the Act.

Item 172 gives effect to the above by inserting the words, “production order, search warrant,” before “restraining” in paragraph 337A(1)(a) of the Act. 

Item 173 is required to enable law enforcement authorities to access production orders and search warrants, before a restraining order is obtained.  This amendment does this by inserting the words, “production order, search warrant,” after “freezing” in paragraph 337A(2)(a) of the Act. 

Item 174 - Subsection 337A(3)

Item 174 repeals subsection 337A(3) of the Act.  Subsection 337A(3) states that “offence against a law of a foreign country” includes an offence triable by a military commission of the United States of America established under a Military Order of 13 November 2001 made by the President of the United States of America and entitled “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism.”

On June 29 2006, the Supreme Court of the United States handed down its decision in Hamdan v Rumsfeld which found the military commissions established by the military order to be invalid.  In light of the Supreme Court’s decision, it is appropriate to remove subsection 337A(3) from the definition of “offence against a law of a foreign country.”

Item 175 - Application

This item sets out the application of amendments made by this Part to section 337A of the Act.  The amendments apply in relation to an application for a production order, search warrant, restraining order or confiscation order in relation to conduct that constituted an offence against a law of a foreign country.  The application must be made on or after the commencement of this item, whether the conduct constituting the offence concerned occurred or occurs before, on or after the commencement.

 

This provision has retrospective application but does not create any retrospective criminal liability.  Retrospective application of the definition of ‘foreign indictable offence’ is necessary to ensure that law enforcement authorities can access production orders and search warrants before a restraining order is obtained.  Applying these definitions retrospectively will ensure that law enforcement agencies have access to the same techniques to investigate these matters, regardless of when the criminal conduct occurred.

Item 176 - Section 338

This item repeals the definition of ‘discretionary trust’.  This is a consequential amendment arising from the repeal of section 337(3) ( Item 169 ), as that section referred to ‘discretionary trust’ as defined in the Dictionary in section 338.  Without this reference, a definition is no longer required in the Dictionary in section 338.

Item 177 - Section 338 (paragraph (b) of the definition of evidential material )

Item 177 amends paragraph (b) of the definition of “evidential material”, and is related to Item 180 .  This amendment is necessary because, currently, the CDPP is unable to seize evidential material with respect to benefits derived from the commission of a foreign indictable offence or an indictable offence of Commonwealth concern.

These shortcomings are of particular concern because these definitions could prevent search warrants being carried out to investigate the proceeds of foreign offences transferred to Australia, which could frustrate mutual assistance requests from Australia’s international partners.  The Sherman Report recommended that these changes be made (recommendations D37 and D39.)

Item 178 - Application

This item sets out the application of Item 177 , which amends the definition of ‘evidential material’.  The amendment applies in relation to search warrants applied for on or after the commencement of this item.

 

These provisions have retrospective application but do not create any retrospective criminal liability.  Retrospective application of the definition of ‘evidential material’ is necessary to ensure search warrants can operate effectively in relation to proceeds of a foreign indictable offence and indictable offences of Commonwealth concern. Item 179 - Section 338 (after paragraph (a) of the definition of serious offence )

Item 179 amends the definition of “serious offence” in section 338 of the Act by expanding it to cover two or more related fraud offences which, in aggregate, cause a benefit or loss of more than $10,000. 

The existing definition of “serious offence,” as it relates to fraud-type offences, refers to an indictable offence that causes a benefit or loss of at least $10,000, punishable by three or more years’ imprisonment.

The existing definition does not capture the situation where a person commits a series of related frauds which, in aggregate, cause a benefit/loss of more than $10,000.

A pattern of conduct involving systemic fraud is particularly problematic in areas such as social security, taxation and customs, where each individual fraud may involve less than $10,000, but the total pattern of fraud can involve much larger amounts.

Item 179 inserts paragraph (aa) after paragraph (a) of the definition of “serious offence” in section 338 of the Act.  New paragraph (aa) provides that where a person’s unlawful conduct consists of an indictable offence (the 3 years offence) punishable by imprisonment for 3 or more years and one or more other indictable offences that, taken together with the 3 years offence, constitute a series of offences that:

·         are founded on the same facts or are of a similar character; and

·         cause, or are intended to cause, a benefit to the value of at least $10,000 for that person or another person, or a loss to the Commonwealth or another person of at least $10,000

those offences constitute a “serious offence.”

Item 180 - Section 338 (paragraph (a) of the definition of tainted property )

This Item is related to Item 177 .  It amends the definitions of “tainted property” and “evidential material” under section 338 of the Act by including foreign indictable offences and indictable offences of Commonwealth concern.  The definitions of tainted property and evidential material are relevant to issuing and executing search warrants issued under Part 3-5 of the Act. 

Item 180 amends paragraph (a) of the definition of “tainted property.”  Tainted property is currently defined only as proceeds or an instrument of an “indictable offence.”  As a result, the proceeds of a “foreign indictable offence” or an “indictable offence of Commonwealth concern” do not constitute tainted property for the purposes of the Act and cannot be seized using search warrants under Part 3-5 of the Act.

Item 181 - Application

This item sets out the application of the amendment made by Item 180 (which amends the definition of ‘tainted property’).  This amendment applies in relation to search warrants applied for on or after the commencement of this item.

These provisions have retrospective application but do not create any retrospective criminal liability.  Retrospective application of the definition of ‘tainted property’ is necessary to ensure search warrants can operate effectively in relation to proceeds of a foreign indictable offence and indictable offences of Commonwealth concern.

Item 182 - Section 338 (paragraph (b) of the definition of unlawful activity )

Item 182 amends paragraph (b) of the definition of “unlawful activity” under section 338 of the Act by omitting the words, “that may be dealt with on indictment (even if it may be dealt with as a summary offence in some circumstances).”  The effect of this amendment is to extend the definition of “unlawful activity” to cover any offence against the law of a State or Territory. 

Currently, the definition of “unlawful activity” applies to any offences against Commonwealth law or the laws of a foreign country, but applies only to indictable offences under State and Territory law (excluding State/Territory summary offences).  This limit did not exist in the Proceeds of Crime Act 1987 and the Sherman Report recommended the definition be amended to encompass these offences (recommendation D38).

Without the amendments, it is possible that a person may avoid the effect of “person directed” forfeiture or automatic forfeiture following conviction by showing that property was derived from the commission of summary offences against State or Territory law.

Part 8 - Technical amendments relating to orders

Proceeds of Crime Act 2002

Item 183 - At the end of subsection 45(1)

Item 183 of Schedule 1 will allow a restraining order to remain in effect where an appeal against a conviction has been successful, but a new trial has been ordered.

Item 183 inserts new paragraph (h) into subsection 45(1) of the Act.  Paragraph 45(1)(c) of the Act provides that a restraining order based on a conviction ceases to be in force 28 days after a person’s conviction for the offence is quashed or set aside.

This is appropriate where the quashing order is the end of the matter, but a problem arises when a person’s conviction is set aside and the same matter is to be re-tried.  A lapsed order in this situation increases the risk of criminal proceeds being dissipated.

This amendment is supported by the Sherman Review and will save CDPP resources because it will no longer be required to return to court and obtain a new restraining order in relation to the same alleged offence where a new trial is ordered following a quashed or set aside conviction.

Insert of Note

The Note inserted after subsection 45(1) amends the heading to section 49 of the Act.  Instead of reading, “Forfeiture orders - conduct constituting indictable offences etc,” it will read, “Forfeiture orders - property suspected of being the proceeds of indictable offences etc.”

This will more accurately reflect the fact that section 49 of the Act allows confiscation action to be taken directly against an asset, rather than as a result of the conduct of a specific and known suspect. 

Item 184 - Application

 

This item sets out the application of the amendment made by this Part to section 45 of the Act.  The amendment applies in relation to restraining orders applied for on or after the commencement of this item, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement.

 

This provision has retrospective application but does not create any retrospective criminal liability.  Retrospective application of this provision is necessary to ensure that restraining orders do not lapse where a retrial is ordered, which would potentially allow criminal proceeds to be dissipated or put outside of the reach of law enforcement.

Items 185, 186, 190 and 191 - Section 84, at the end of section 84, section 110 and at the end of section 110

Items 185, 186, 190 and 191 remove certain technical requirements from sections 84 and 110 of the Act, to address unintended consequences that limit a court’s ability to issue orders confirming confiscation of criminal assets.

Sections 84 and 110 permit a court to confirm a conviction-based forfeiture order (under section 48) if a conviction is quashed or overturned on appeal.  A court is permitted to confirm conviction-based forfeiture if it is satisfied that it could have made a forfeiture order under sections 47 or 49 (which allow non-conviction-based forfeiture).  Without a confirmation order, conviction-based forfeiture becomes void if a conviction is quashed or overturned on appeal.

A problem arises because forfeiture orders are generally based on previously issued restraining orders and non-conviction forfeiture orders under sections 47 and 49 rely on restraining orders issued under different sections to conviction based forfeiture orders under section 48 of the Act.  Forfeiture under section 47 is based on a restraining order issued under section 18.  Forfeiture under section 49 is based on a restraining order issued under section 19.  However, conviction-based forfeiture under section 48 will usually flow from restraining orders issued under section 17.  Indeed, section 48 permits a court to order property forfeited without any previous restraining order if it is satisfied that a person obtained benefits from the crime for which they were convicted.

The result is that a court cannot be satisfied it could have made a forfeiture order under sections 47 or 49 of the Act, because the applicable restraining orders for those sections will likely not exist.

The Sherman Review recommended that these changes be made (recommendation D13.)  Mr Sherman noted that, “these proposals remove certain anomalies in the drafting of ss. 84 and 110 and do not raise issues of substance or questions of fairness.  The proposals are in accord with the intended grounds for, and effects of, confirmation orders.  The power to make confirmation orders remains at the discretion of the court.”

Item 185 is necessary because Item 186 inserts new subsection (2) into section 84.  Item 185 makes the existing section 84, new subsection 84(1).

Item 186 deems the requirements of paragraphs 84(1)(a) and 84(1)(b) to have been satisfied.  This overcomes the problem described above that a court cannot be satisfied it could have made a forfeiture order under sections 47 or 49, because the applicable restraining orders for those sections likely do not exist.

Item 190 is necessary because Item 191 inserts new subsection (2) into section 110.  Item 190 makes the existing section 110, new subsection 110(1).

Item 191 deems the requirements of paragraphs 110(1)(a) and 110(1)(b) to have been satisfied.  This overcomes the problem described above that a court cannot be satisfied it could have made a forfeiture order under sections 47 or 49, because the applicable restraining orders for those sections likely do not exist.

Item 187 - Application

This item sets out the application of amendments made by this Part to section 84 of the Act.  The amendments apply in relation to applications made to by the CDPP, on or after the commencement of this item, for a pecuniary penalty order to be confirmed.

 

This provision has retrospective application but does not create any retrospective criminal liability.  Retrospective application is necessary to ensure that the confiscation provisions can operate effectively.  It will ensure that persons are not able to benefit from their crimes, regardless of when the conduct constituting the offence occurred.

Items 188 and 189 - Subsections 85(1) and (2)

These items insert consequential amendments arising from the insertion of subsection 84(1) ( Item 185 ).  They amend the references in subsections 85(1) and (2) to paragraph 84(b), so that they now refer to paragraph 84(1)(b).

Item 192 - Application

This item sets out the application of amendments made by this Part to section 110 of the Act.  These amendments apply in relation to applications made by the CDPP, on or after the commencement of this item, for a forfeiture order to be confirmed.

 

This provision has retrospective application but does not create any retrospective criminal liability.  Retrospective application is necessary to ensure that the confiscation provisions can operate effectively.  It will ensure that persons are not able to benefit from their crimes, regardless of when the conduct constituting the offence occurred.

Items 193 and 194 - Subsections 111(1) and (2)

These items insert consequential amendments arising from the insertion of subsection 110(1) ( Item 190 ).  They amend the references in subsections 111(1) and (2) to paragraphs 110(a) and (b), so that they now refer to paragraphs 110(1)(a) and (b).

Item 195 - Paragraph 316(1)(b)

Item 195 amends subsection 316(1) of the Act so the court must seek the consent of all persons likely to be affected by an order when considering making orders by consent, not the people who have an ‘interest’ in the property.

Currently, a court may make an order with the consent of the applicant in the proceedings and ‘everyone whom a court has reason to believe has an interest in the property that is the subject of the proceeding’ (subsection 316(1)).  ‘Interest’ under the Act is very widely defined and, among other things, includes a ‘right, power or privilege in connection with the property or thing, whether present or future and whether vested or contingent’.

Under section 316, a court must seek the consent of every party with an interest, whether or not they will be affected by the order.  For example, an order for the Official Trustee to take custody and control of an item of real property will not affect the interests of a registered mortgagee (which are protected by a registered charge over the property) but this person has to be involved in the court process under existing section 316. 

The effect of existing section 316 is that, in some cases, a person who only has a ‘technical’ interest in the relevant property may prevent consent orders from being made, even where all persons with a real interest in the property have agreed.

A more appropriate basis for making consent orders is to require a court to seek the consent of those people whom a court has reason to believe would be affected by the orders.  Item G3A achieves this by omitting from paragraph 316(1)(b) the words, “has an interest in the property that is the subject of the proceeding,” and substituting, “would be affected by the order.”

Item 196 - Paragraph 316(2)(b)

Item 196 amends subsection 316(2) of the Act to overcome an anomaly whereby parties can consent to dispensing with the requirement under paragraph 47(1)(b) of the Act that property to be forfeited must have been subject to a restraining order under s 18 for at least 6 months, but cannot make a similar consent agreement with respect to paragraph 49(1)(b) of the Act (which states that property to be forfeited must have been subject to a restraining order under section 19 for at least 6 months.)

Given the nature of section 49 orders (forfeiture of proceeds and instruments) it would be useful for such orders to be able to be made without reference to a requirement that they be restrained for 6 months.  Item 196 enables this by inserting references to section 49 forfeiture orders relating to property suspected of being proceeds of indictable offences into paragraph 316(2)(b).

Both of these amendments were recommended by the Sherman Review (Recommendation D29).  Mr Sherman commented that the amendment of paragraph 316(1)(b), “seems to balance the various interests appropriately but reduces the prospect of “mischief” by third parties.”  In relation to 316(2)(b), Mr Sherman said, “it makes sense that parties can agree in a settlement to dispense with the six month requirement and the Act should make this clear.” 

Item 197 - Application

This item sets out the application of amendments made by this Part to section 316 of the Act.  The amendments apply to proceedings under Chapter 2 of the Act, whether commenced before, on or after the commencement of this item.

 

This provision has retrospective application but does not create any retrospective criminal liability.  Retrospective application is necessary to ensure that the system for granting consent orders is efficient and effective.  Item 197 will ensure that parties are able to make an agreement under the more effective new provisions, regardless of when the proceedings under Chapter 2 of the Act were commenced.

Part 9 - Confiscated Assets Account

Proceeds of Crime Act 2002

 

Items 198, 199, 200, 201, 202 and 203 - Subsections 296(2), 297(1), 297(2) and section 399 (definitions of distributable funds and suspended funds )

 

These items remove all references to ‘distributable’ and ‘suspended’ funds in Part 4-3 of the Act.  In doing so, they implement Recommendation 13(a) of the Sherman Report, which called for the abandonment of the distinction between distributable and suspended funds in the CAA. 

 

The distinction was originally included in the Act to allow the Inspector General in Bankruptcy to ‘quarantine’ funds to meet forthcoming payments to be made out of the CAA, to reduce the possibility of there being insufficient funds to make the required payments.

 

In practice, the distinction has placed an administrative burden on ITSA without having significant effect on managing the risk of there being insufficient funds when a payment needs to be made.  The Sherman Report noted ITSA’s submission that:

 

…in a contemporary accounting environment, [the process of determining suspended and distributable funds] is becoming less relevant…The provision of budgets, projections, commitments and accrual information may serve stakeholders better than a regular report of the balances for distributable and suspended moneys in the CAA.

 

The Sherman Report endorsed these comments, concluding that the distinction between distributable and suspended funds seemed ‘…to serve no purpose that ordinary prudent accounting measures cannot serve’. 

 

As the terms serve no practical purpose in the day to day administration of the CAA, these items remove them to facilitate efficient administration.

 

Item 204 - At the end of subsection 296(1)

 

This item inserts paragraph 296(1)(h) into subsection 296(1).  The effect of the amendment is to include amounts paid to the Commonwealth in settlement of proceedings connected with the Act as amounts that must be credited to the CAA. 

 

Subsection 296(1) of the Act identifies the source of funds credited to the CAA.  Presently, monies paid to the Commonwealth in the settlement of proceedings under the Act are not provided for in subsection 296(1).  This amendment expressly provides for such payments to be made into the CAA, to make clear on the face of the legislation the source of CAA funds.

 

Item 205 - Application

 

This item sets out the application of amendments made by this Division to paragraph 296(1)(h) of the Act.  The amendments apply to amounts paid to the Commonwealth on or after the commencement of this Division, in settlement of proceedings connected with this Act, whether the settlements occurred before, on or after that commencement.

 

This provision is retrospective in application but does not create any retrospective criminal liability.  Retrospective application is necessary to ensure that the legislation accurately reflects the source of funds that have been paid into the Confiscated Assets Account.

 

Item 206 - At the end of section 55

 

This item inserts a new subsection at the end of section 55 which clarifies what the court should have regard to when calculating an order under paragraph 55(2)(a). The new subsection provides that the amount specified in an order under paragraph 55(2)(a) should be determined either wholly or partly by reference to the difference between the amount received from disposing of all of the property and any payments (of a kind referred to in paragraph 70(1)(b)) which are incurred as a result of the disposal of the property. These payments include remuneration of the Official Trustee and any costs, charges and expenses that the Official Trustee incurs in connection with the disposal of the property.

 

This amendment will ensure that a court can make an order that takes into account the eventual sale price of a property and the costs incurred in disposing of the property.

 

Items 207 and 208 - After paragraph 297(1)(f), paragraph 297(g)

 

These items insert paragraph 297(1)(fa) into subsection 297(1) (which defines the purposes for which funds are paid out of the CAA), and make a consequential amendment to paragraph 297(1)(g).  These items implement Recommendation D10 of the Sherman Report.

 

The Sherman Report identified three sources of payments that are not expressly provided for in the Act.  The sources are payments to:

 

·         a person for their interest in property (section 55)

·         an amount to relieve hardship (section 72), and

·         a person who successfully obtains a compensation order (section 77)

 

The Sherman Report recommended that these payments be made out of the proceeds of the sale of forfeited property, and out of the CAA where the proceeds have been paid into that account.  As it raises constitutional issues for payments to be made out of the proceeds of the sale of forfeited property (as the Constitution requires that money be drawn by appropriation under law), subsection 297(1) has been amended to provide the above named sources of payment may be made out of the CAA. 

 

A consequential amendment has also been made to paragraph 297(1)(g).  Paragraph 297(1)(g) currently provides that  payments made under paragraph 73(2)(d) and subparagraph 102(d)(ii) are payments ‘by way of restitution’.  These payments are now included in paragraph 297(1)(fa), so that they are described as ‘payments the Commonwealth is directed to make by an order…’.  The remaining payments stated in paragraph 297(1)(g), paragraph 88(1)(b) and subsection 289(2) are now described as payments made ‘under arrangement’, as this is a more accurate description of the nature of these payments. 

 

Item 209 - Application

 

This item sets out the application of amendments made by this Division to paragraphs 297(1)(fa) and (g) of the Act.  The amendments apply in relation to orders and arrangements made on or after the commencement of this Division.

Part 10 - Other amendments

Administrative Decisions (Judicial Review) Act 1977

Item 210 - After paragraph (ya) of Schedule 1

Item 210 of Schedule 1 of the Bill amends Schedule 1 of the Administrative Decisions (Judicial Review) Act 1977 by adding a new class of decision that is not subject to judicial review under the AD(JR) Act.  The class of decision is decisions of the CDPP to apply for an order under the Act

Section 5 of the AD(JR) Act provides an aggrieved person with the right to have any decision of an administrative character made under an ‘enactment,’ reviewed in court.  This right is limited by other sections of the AD(JR) Act, in circumstances where judicial review of a decision is not appropriate. 

This includes decisions to prosecute criminal matters (paragraph (xa) of Schedule 1 to the AD(JR) Act) and ‘related criminal justice process decisions’ (section 9A of the AD(JR) Act.)  This is appropriate because judicial review can lead to fragmentation of criminal justice proceedings. 

As with criminal proceedings, questions about the validity of proceedings under the Act can be examined during the course of proceedings under the Act and a separate stage of review is not necessary.  Currently, the CDPP is exempt from the operation of the AD(JR) Act in the context of gathering information through examinations (paragraph (ya) of Schedule 1 to the AD(JR) Act).

Item 211 - Application

This item sets out the application of Item 210 .  The amendment made by the item applies in relation to decisions made on or after the commencement of this item.

Proceeds of Crime Act 2002

Items 212, 213, 215, 217 and 218 - Paragraphs 142(3)(a), 169(3)(a), 302(a), 302C(a) and 307(3)(a)

These items rectify an anomaly in the Act whereby a suspect’s ownership of property could defeat a charge placed over that property to enforce penalties or secure fees.  The amendment will ensure that charges created under the Act can be effectively enforced.

Charges are created against property subject to restraint under the Act to enforce penalties or secure fees (see sections 142, 169, 302A and 307 of the Act.)  These charges are expressed to be subject to every ‘encumbrance’ on the property that came into existence before the charge and that would otherwise have priority over the charge.  The charges have priority over all other ‘encumbrances.’

‘Encumbrance’ is defined under section 338 of the Act to include an ‘interest’, which is itself defined under section 338 to include ‘a legal or equitable interest’ in property.  This definition includes ownership of property.  It is arguable that this means that charges over property are subordinate to a suspect’s ownership of property and could never be enforced.  By this interpretation, a court might be powerless to enforce the pecuniary penalty order it has made.

Items 212, 213, 215, 217 and 218 address this situation.  They amend paragraphs 142(3)(a), 169(3)(a), 302(a), 302C(a) and 307(3)(a) by stating that, while a charge is subject to encumbrances that came into existence before the charge, this does not include a suspect’s encumbrance over his or her property.  The interests of third parties will still continue to have priority over charges created by the Act.

Item 214 - Part 4-4 (heading)

Item 214 repeals the heading to Part 4-4 of the Act.  The words, “Charges over restrained property for payment of certain amounts,” are deleted and replaced with, “Charges over restrained property to secure certain amounts payable to the Commonwealth.”

This new heading more accurately reflects the nature of Part 4-4, under which charges created under the Act secure property to pay amounts to the Commonwealth such as penalties or fees.

Item 216 - Division 2 of Part 4-4 (heading)

Item 216 repeals the heading of Division 2 of Part 4-4 of the Act.  This heading is no longer needed because the Crimes Legislation Amendment (Serious and Organised Crime) Bill (No 1) 2009 repealed sections 300-302 of the Act, which was Division 1 of Part 4-4 of the Act.  Sections 302A, 302B and 302C are the remaining sections of Part 4-4 and now come under Division 1 of Part 4-4 of the Act.

Item 219 - Application

This item sets out the application of amendments made by this Part to sections 142, 169, 302, 302C and 307 of the Act.  The amendments apply in relation to charges created on or after the commencement of this item.

Item 220 - After section 315

Item 220 inserts new section 315A into the Act.  It will remove any doubt about whether a court is able to hear and determine orders simultaneously, although a court is not required to do so.

There is no provision that expressly permits a court to simultaneously hear and determine more than one application under the Act.  This is in contrast to subsection 141(2) of the Confiscation Act 1997 (Vic).  This amendment will improve court processes by allowing a court to determine, for example, applications for forfeiture and exclusion of forfeiture, at the same time.

Item 221 - Application

This item sets out the application of amendments made by this Part to section 315A of the Act.  The amendments apply in relation to applications made on or after the commencement of this item. Schedule 2 - Search warrants

GENERAL OUTLINE

 

The amendments contained in this Schedule target two main aspects of the search warrant provisions in the Crimes Act 1914 .  Firstly, the reforms will allow material seized under Part IAA of the Crimes Act to be used by, and shared between, Commonwealth, State and Territory law enforcement agencies.  This is necessary for the proper investigation of offences which cross jurisdictional boundaries. 

The second component of the amendments will ensure that law enforcement agencies are able to effectively and efficiently access and search electronic equipment.

Crimes Act 1914

Items 1 and 2

 

Paragraph 3ZV(1)(b) and subsection 3ZV(2) deal with when things seized under section 3T (searches without warrant in emergency situations) must be returned.   Section 3ZW allows a magistrate to make an order that a thing seized under section 3T can be retained for a further period. 

Sections 3ZV and 3ZW will be repealed by Item 10 and replaced by the insertion of sections 3ZQY and 3ZQZ under Item 8.  New section 3ZQY will set out when things seized under Division 3 of Part IAA (eg section 3T) must be returned.  New section 3ZQZ will allow a magistrate to make an order that a thing seized under Division 3 can be retained for a further period.   

Item 9 will also insert new section 3ZQX which replaces the remainder of section 3ZV, dealing with things seized under provisions in Part IAA other than section 3T. 

Items 1 and 2 are necessary as a consequence of Items 9 and 10.    

 

A range of provisions in Part IAA confer powers and functions on magistrates.  Subsection 3C(1) provides that in certain sections (including section 3ZW) magistrate has a meaning affected by section 3CA.  This is because the functions under those sections (including section 3ZW) are not traditional functions of judicial officers.

Section 3CA provides, among other things, that: the function of making an order under section 3ZW is conferred on the magistrate in a personal capacity (subsection 3CA(1)); an order made by a magistrate under section 3ZW only has effect by virtue of this Act and the order not to be taken by implication to be made by a court (subsection 3CA(2)); a magistrate performing a function under section 3ZW has the same protection and immunity as if the magistrate were performing that function as a member of the Court to which they belong; and, the Governor-General may make arrangements for magistrates to perform the functions of making orders under section 3ZW (subsection 3CA(4)).

Item 1 will replace the reference to section 3ZW in subsection 3C(1) with new section 3ZQZ.  Item 2 will replace references to section 3ZW in subsections 3CA(1)-(4) with new section 3ZQZ. 

Item 3

Subsection 3F(5) currently provides that a thing that has been seized (seized material) can be made available to officers of other agencies if it is necessary to do so for the purpose of investigating or prosecuting an offence to which the things relate.  This provision limits the ability of Commonwealth law enforcement officers to share seized material with State or Territory officers for the purpose of investigating a State offence.  This has prevented effective law enforcement cooperation between the Commonwealth and the States and Territories.  The provision also prevents Commonwealth law enforcement agencies from sharing seized material with foreign agencies for the investigation of an Australian offence.

Item 9 will insert detailed rules governing the sharing of seized material under new section 3ZQU.  Accordingly, subsection 3F(5) is no longer necessary and will be repealed by Item 3.

Item 4

Section 3L governs the use of electronic equipment which is found on a search warrant premises.  Subsection 3L(1A) allows an executing officer to copy data and take it from the warrant premises. 

Subsection 3L(1B) outlines when data taken from electronic equipment at the premises must be destroyed.  Currently under subsection 3L(1B), data must be destroyed if the Commissioner of the AFP is satisfied that the data is not required, or no longer required, for:

·         investigating a Commonwealth, State or Territory offence

·         judicial proceedings or administrative review proceedings

·         investigating or resolving complaints under the Ombudsman Act about the AFP or under the Privacy Act, or

·         investigating or resolving AFP conduct or practices issues.

Item 9 will insert detailed rules governing the use of seized material under new section 3ZQU.  These uses generally include the purposes set out in subsection 3L(1B).

This item will repeal and replace paragraph 3L(1B)(b), and instead require data to be destroyed if the Commissioner is satisfied that the data is not required, or no longer required, for a purpose mentioned in new section 3ZQU (to be inserted by Item 9) or for other judicial or administrative review proceedings. 

The reference to judicial or administrative review proceedings will be retained, as things seized in certain circumstances may be needed for administrative review or judicial proceedings outside the scope of uses that will be listed in new section 3ZQU.  The other requirements currently in paragraph 3L(1B)(b) will be contained in section 3ZQU.

It would be inappropriate to include any judicial or administrative review proceedings as a reason for which something can be shared under subsection 3ZQU(1).  However, it is important that data is not required to be destroyed if it is required for judicial or administrative review proceedings.  An example of where a thing seized during the execution of a warrant may be needed for administrative or judicial review proceedings is where a challenge to the execution of the warrant is brought before a court.  In this instance, it may be necessary to produce the things seized as evidence in the proceedings as proof that they were properly seized under the warrant. 

Items 5 - 8

Division 3A of Part IAA sets out powers to stop, question and search persons in relation to terrorist acts.  Under Division 3A, police officers have search and seizure powers (sections 3UD and 3UE respectively). 

Section 3UF outlines how a thing seized under section 3UE is to be dealt with.  In particular, subsections 3UF(4)-(7) set out when a thing that has been seized needs to be returned.  Further, subsection 3UF(9) and section 3UG deal with applications and orders for things that are seized to be returned or retained for a further period (or otherwise dealt with).

Items 5, 6 and 7 will repeal subsections 3UF(4)-(7) and (9) and section 3UG respectively.  These provisions will be replaced by new sections 3ZQZA and 3ZQZB inserted by Item 9.  New sections 3ZQZA and 3ZQZB will set out when things seized under Division 3A must be returned.  New section 3ZQZA will allow a magistrate to make an order that a thing seized under Division 3A can be retained for a further period.  Under section 3UK, the powers and duties in Division 3A (other than the those in sections 3UF and 3UG which deal with the return of seized things) are subject to a 10 year sunset clause (from the date of commencement of the Division, which was 15 December 2005).  Item 8 will remove the reference to section 3UG from section 3UK as Item 7 will repeal section 3UG.

Item 9

Part IAA sets out the main search, information gathering and arrest powers that police use to investigate Commonwealth offences (as well as Territory offences and State offences with a federal aspect).  

Item 9 will insert a comprehensive regime for:

·          the use and sharing of things that are seized, and documents that are produced, under Part IAA (new section 3ZQU)

·          operating seized electronic equipment and compensation for damage to electronic equipment (new sections 3ZQV and 3ZQW), and

·          the return of things seized under Part IAA (new sections 3ZQX - 3ZQZB).

Subdivision A - using and sharing of seized things and documents produced

 

A search warrant for the investigation of Commonwealth offences can be obtained by applying to an issuing officer.  For a warrant to be issued, the issuing officer must be satisfied that there are reasonable grounds for suspecting that there is or will be in the next 72 hours evidential material on the premises (subsection 3E(1)).  Evidential material is defined in subsection 3C(1) of the Crimes Act to mean a thing relevant to an indictable or summary offence, including such a thing in electronic form.

A thing can be seized under a warrant if it is relevant to the offence stated in the warrant or if the executing officer believes it to be evidential material in relation to another offence.  This includes operating and seizing electronic equipment that is on a warrant premises.

Use and sharing of things seized and documents produced

The current provisions in Part IAA do not specify how things seized under Part IAA can be used.  As a result, there is uncertainty as to whether law enforcement agencies can use seized material for purposes other than those for which it was seized.  For example, it is not clear whether things seized for the investigation of a particular offence can be used for: the investigation or prosecution an unrelated offence; for proceedings under the Proceeds of Crime Act; or other law enforcement purposes such as applying for the use of a control order under Part 5.3 of the Criminal Code).  The legislation governing other investigative methods such as surveillance devices or telecommunications intercepts contain detailed rules about use of any information obtained.  It is therefore possible that a court could limit the uses of material seized to purposes specifically provided for in Part IAA.

Subsection 3F(5) currently provides that a thing that has been seized can be made available to ‘officers of other agencies’ if it is necessary to do so for the purpose of investigating or prosecuting an offence to which the things relate.  This provision limits the ability of the officer who seized the thing sharing the seized material with State or Territory police officers for the purpose of investigating a State offence.  This has prevented effective law enforcement cooperation between the Commonwealth and the States and Territories.  The provision also prevents seized things being shared with foreign agencies for the investigation of an Australian offence.

Sharing of seized things with a foreign agency for the investigation of a foreign offence is governed by the Mutual Assistance in Criminal Matters Act 1987 .

 

Division 4B provides authorised AFP officers with the power to request information or documents relating to terrorist acts and serious terrorism and non-terrorism offences.   Terrorist act is defined as having the same meaning as in subsection 100.1(1) of the Criminal Code.  A terrorism offence is defined in section 3 of the Crimes Act to mean an offence against Subdivision A of Division 72 of the Criminal Code or an offence against Part 5.3 of the Criminal Code.  A serious offence is offence is defined in section 3C of the Crimes Act as any Commonwealth or Territory offence or State offence with a federal aspect that is punishable by 2 or more years imprisonment that is not a serious terrorism offence (most terrorism offences).  Like things seized under Part IAA, Division 4B also does not specify how seized documents can be used and whether they can be used for purposes other than those for which they were produced.

To enable police to properly perform their duties, it is important that things or documents that are lawfully acquired (either by being seized under Part IAA or produced under Division 4B) are able to be used or shared for any necessary purpose connected with, or related to, law enforcement functions and activities.  Accordingly, this item will insert Division 4C which will comprehensively govern how things seized under Part IAA, or information and documents produced under Division 4B, can be used and shared.

However, the new Division will not expand or alter in any way the grounds on which a search warrant can be obtained or the grounds upon which things may be seized or the grounds on which documents can be required to be produced under Division 4B.  For example, under the amendments, it will still not be possible to seek a search warrant purely for the purpose of obtaining material to support control order or proceeds of crime proceedings, or to seize material for those purposes.

Section 3L currently details the powers of officers executing a warrant in relation to electronic equipment.  However, there are no provisions governing how equipment can be used after seizure, and what material may be accessed from electronic equipment after it has been seized.

Section 3ZQU

Section 3ZQU will govern the use and sharing of things seized under Part IAA and information and documents produced under Division 4B. 

Subsection 3ZQU(1) will set out the purposes for which things or information and documents (including copies of documents) can be used and shared by a constable or Commonwealth officer with another constable or Commonwealth officer.  

Constable is defined in subsection 3(1) as a member or special member of the AFP or a member of the police force or police service of a State or Territory.  Commonwealth officer is defined in subsection 3(1) as a person holding office under, or employed by, the Commonwealth (including Commonwealth public servants). 

This means, for example, that under subsection 3ZQU, a constable who is a member (or special member) of the AFP will be able to share a thing seized under Part IAA with another member (or special member) of the AFP, with a constable who is a member of a State or Territory police force or service, or with a Commonwealth officer. 

Enabling things that have been seized, or information or documents that have been produced, to be used by, or and shared, with constables is appropriate as both the AFP and a State or Territory police force or service may be involved in the investigation of Commonwealth offences (or Territory offences or State offences with a federal aspect) as part of a joint task force.  Enabling things that have been seized, or documents that have been produced, to be used by, or shared with, Commonwealth officers is also appropriate.  For example, it may be necessary to share a seized thing with a tax auditor for revenue enforcement purposes. 

 

Under subsection 3ZQU(1), the use and sharing of things that have been seized, or documents that have been produced, will be permitted if it is necessary to do so for the reasons below.  The provisions do not presuppose that these uses are not available currently, but puts the issue beyond doubt by providing a direct legislative basis for each of the following uses.



·          Preventing, investigating or prosecuting an offence (offence is defined in subsection 3C(1) as an offence against a law of the Commonwealth (other than the Defence Force Discipline Act 1982 ), an offence against a law of a Territory, or a State offence that has a federal aspect (defined in section 3AA).  For example, the AFP execute a search warrant on a premises as part of the investigation of a Commonwealth serious drug offence.  In conducting the search, evidence relevant to the suspected drug offences (such as banking records) is seized.  It is later discovered that the banking records reveal evidence of an unrelated offence (such as money-laundering).  It is appropriate that the bank records can be used as evidence to support a prosecution not only for the drug offences for which they were originally seized, but also for of the money-laundering offences.

 

·          Proceedings under the Proceeds of Crime Act 1987 or the Proceeds of Crime Act 2002 or a corresponding law within the meaning of either of these Acts.  For example, it is also appropriate that evidence seized in relation to a Commonwealth serious drug offence is able to be used in confiscation proceedings under the Proceeds of Crime Act for example, to seek an order to restrain the property of the suspect (section 18, Proceeds of Crime Act 2002).

 

·          Proceedings for the forfeiture of the thing under a law of the Commonwealth (for example, section 229 of the Customs Act 1901 ).  For example, if drugs are seized in relation to a Commonwealth serious drug offence, and those drugs were illegally imported, the inclusion of this purpose will allow the drugs, and any other evidence obtained, to be used as evidence in proceedings for the forfeiture of the drugs. 

 

·          Proceedings, applications, requests relating to control orders and preventative detention orders under Part 5.3 of the Criminal Code.  For example, if a search warrant is executed as part of the investigation of possible terrorism offences, it is appropriate that any evidence seized during the execution of that warrant be able to be used to support an application for, or proceedings related to, control orders and preventative detention orders.  This ensures the AFP has all evidence available to them when taking actions under Part 5.3 to prevent terrorist attacks. 

 

·          Investigating or resolving a complaint or an allegation of misconduct relating to an exercise of a power or the performance of a function or duty under this Part; investigating or resolving an AFP conduct or practices issue (which are dealt with under Part V of the AFP Act); investigating or resolving a complaint under the Ombudsman Act or the Privacy Act; and investigating or inquiring into a corruption issue under the Law Enforcement Integrity Commissioner Act 2006 .  These uses are all necessary to ensure the oversight mechanisms in place to monitor the exercise of police powers are able to operate effectively.  These provisions will also enable the use or sharing for proceedings in relation to any of the above issues.  For example, where the Integrity Commissioner is investigating an allegation of corruption, it may be necessary for him or her to be able to access things the person the subject of the allegation has seized.  Similarly, a thing that has been seized may also be relevant to the investigation of a complaint under the Privacy Act.

 

·          Deciding whether to institute proceedings, to make an application or request, or to take any other action mentioned in any of the preceding paragraphs of this subsection (for example, a document produced under Division 4B will be able to be used in deciding whether to make an application for an interim control order under section 104.3  of the Criminal Code)



·          The performance of the functions of the AFP under section 8 of the AFP Act. The AFP’s functions include the provision of police services, the safeguarding of Commonwealth interests and performing the functions conferred by the Witness Protection Act 1994 and the Proceeds of Crime Acts.  This purpose will ensure that the AFP have the legislative authority to use and share seized material, and information and documents, for all AFP purposes whether or not they are covered by another item in subsection 3ZQU(1). 

Subsection 3ZQU(2) will allow a constable or Commonwealth officer to use a thing seized under this Part, or the original or a copy of a document produced under Division 4B, for any other use that is required or authorised by or under a law of a State or a Territory.  Subsection 3ZQU(3) will also allow a constable or Commonwealth officer to make available to another constable or Commonwealth officer a thing seized under this Part, or the original or a copy of a document produced under Division 4B, to be used for any purpose for which the making available of the thing or document is required or permitted by a law of a State or Territory.  These provisions are necessary to ensure that they do not override any other provision in State or Territory legislation which allows seized material to be used for other purposes.

Subsection 3ZQU(4) states that this section will not limit any other law of the Commonwealth that requires or authorises the use of a document or other thing, or requires or authorises the making available (however described) of a document or other thing.  This also clarifies that these provisions, while providing direct legislative authority for certain uses, will not override any other uses authorised under another law of the Commonwealth.

All of these purposes for using and sharing things that are seized, and documents produced, are important in ensuring that law enforcement agencies are able to operate within a clear framework that enables them to properly carry out their designated functions. 

The use and sharing of things that have been seized, and documents that have been produced, is also necessary for the proper investigation of offences which cross jurisdictional boundaries.  Serious and organised criminal activity does not respect State and Territory borders, or the divide between Commonwealth, State and Territory legislative powers.  It is important that there are appropriate mechanisms in place to allow evidential material to be used and shared to combat multi-jurisdictional crime.  Under the current provisions, where the AFP discovers that things they have seized are relevant to a State offence, it is unclear whether there is scope for the AFP to share the item with the relevant State law enforcement agency.  One mechanism to facilitate sharing of physical items with State law enforcement agencies is for the AFP to notify the relevant State law enforcement agency about the seizure.  The State law enforcement agency would then execute a search warrant on the AFP in order to seize the material.  This amendment will ensure there is a direct basis for the sharing of material between agencies.

Subsection 3ZQU(5) will provide a clear legislative basis for things that have been seized under Part IAA, or information and documents produced under Division 4B, to be shared by a constable or Commonwealth officer with State and Territory law enforcement agencies.  State or Territory law enforcement agency will be defined in subsection 3ZQU(7) as the police force or police service of a State or Territory, and law enforcement bodies in New South Wales (Crime Commission, Independent Commission Against Corruption and Police Integrity Commission), Victoria (Office of Police Integrity), Queensland (Crime and Misconduct Commission) and Western Australia (Corruption and Crime Commission).  It is appropriate to allow sharing with these agencies as they are responsible for law enforcement in the States and Territories.  This definition is based on the definition of ‘law enforcement agency’ in section 6 of the Surveillance Devices Act 2004 .

Under subsection 3ZQU(5), a thing that has been seized, or a document (or copy of a document) that has been produced will be able to be shared for any or all of the purposes listed in subsection 3ZQU(1)-(3) (described above) as well as any or all of the following additional purposes (but not for any other purpose).



·          Preventing, investigating or prosecuting an offence against a law of a State or Territory.  It is appropriate to allow evidence to be shared with State and Territory law enforcement agencies to enable multi-jurisdictional criminal activity to be properly investigated and prosecuted.  Crimes crossing jurisdictional boundaries are becoming more prevalent due to increases in information and communication technology and the increasing sophistication of serious and organised crime groups.



·          Proceedings under a corresponding law for a State or Territory offence (within the meaning of the Proceeds of Crime Act 1987 or the Proceeds of Crime Act 2002).  These provisions will enable the seized things to be shared with the appropriate State or Territory law enforcement agency if needed for confiscation proceedings.



·          Proceedings for the forfeiture of things under a law of a State or Territory.



·          Deciding whether to institute proceedings or to take other action mentioned in any of the above.

Subsection 3ZQU(5) provides a framework governing the purposes for which constables and Commonwealth officers can share things that are seized or documents that are produced with State and Territory law enforcement agencies.  While this subsection will regulate the decision by a constable or Commonwealth officer to share material, it will not govern the process of how such material would be shared, or how the State or Territory law enforcement agency then uses the material.  This is because such matters are not within the scope of the Commonwealth’s legislative powers.

Subsection 3ZQU(5) will also allow material to be shared with foreign agencies that have responsibility for law enforcement, intelligence gathering, or security for the same purposes outlined for sharing with State and Territory law enforcement agencies.  These provisions will not enable the item to be shared for the investigation of a foreign offence.  This will continue to be governed by the Mutual Assistance in Criminal Matters Act 1987 .

It is appropriate to allow material to be shared with foreign agencies for the investigation of Commonwealth, State or Territory offences due to the international aspect of many modern offences.  For example, child pornography images are often shared by computer users across the globe.  Seizure of a hard drive from a computer can provide evidence of the distribution and origin of images.  The data seized from the hard drive (including images) may be required to be shared with foreign law enforcement agencies to determine the origin of images.

Subsection 3ZQU(6) will provide that new Division 4C will not prevent the Minister from entering into an arrangement (under his or her Executive power) with a State or Territory Minister to govern the sharing and disposal of things that are seized, or documents (or copies of documents) that are produced under Part IAA. 

A Ministerial arrangement could be used to set out the responsibilities and duties of both the sharing and receiving agency, including:

·          the process for when something is to be shared

·          the relevant record-keeping responsibilities of both jurisdictions, and

·          who bears responsibility for the loss of, or damage to, the shared material.

New South Wales is the only jurisdiction that currently allows material to be shared with the Commonwealth under a ministerial arrangement.  Section 29A of the Terrorism (Police Powers) Act 2002 (NSW) allows the relevant New South Wales and Commonwealth Ministers to enter into a ministerial arrangement allowing:

·          New South Wales to share things seized under the Terrorism (Police Powers) Act with the Commonwealth, if the material may be relevant to the investigation of an offence against the law of the Commonwealth, and

·          the Commonwealth to share things seized under the law of the Commonwealth with New South Wales, that may be relevant to the investigation of an offence against the law of New South Wales.

As the Terrorism (Police Powers) Act does not allow for a unilateral arrangement, New South Wales could not share material with the Commonwealth unless a ministerial arrangement is in place which also allows the Commonwealth to share material with New South Wales. 

This subsection will ensure that the Minister will be able to enter into a ministerial arrangement with a State or Territory, to enable sharing with a jurisdiction which requires a ministerial arrangement to govern when seized material can be shared by the particular State or Territory.  If a ministerial arrangement is not required under the State or Territory legislation, the Commonwealth would still be able to share seized material with a State or Territory under the legislative provisions in section 3ZQU.

Section 3ZQV

Under section 3L, an executing officer can operate equipment at the search warrant premises to access data held in, or accessible from, the equipment at the search warrant premises.  Section 3K allows a thing found at the warrant premises to be moved to another place for examination or processing to determine if it may be seized under the warrant.

However, if the executing officer seizes or moves the electronic equipment, it is not clear what can be done with the equipment when it is no longer on the warrant premises.  It is likely that an officer who seizes or moves a mobile phone, could operate that phone at any time, and at any premises, to access Short Message Service (SMS) messages which are stored on the memory contained within the handset.  However, it is unclear if officers have the power to access voicemail messages from the seized or moved mobile phone that is stored on computer servers held with a telecommunications company.

Subsection 3ZQV(1) will provide that the section will apply to all electronic seized under Part IAA of the Crimes Act or moved from warrant premises under section 3K.

Subsection 3ZQV(2) will recognise that an officer who seizes, or moves under section 3K, any electronic equipment (for example, a mobile phone) will be able to operate that equipment at any location after it has been seized or moved for the purpose of determining whether data held on or accessible from the electronic equipment is evidential material.  This is necessary to ensure officers are able to properly analyse all material seized or moved from a warrant premises in the same way they would further analyse documents taken a warrant premises.

Paragraph 3ZQV(3)(a) will allow data held on the electronic equipment to be accessed.  For example, word documents or photos saved on a computer’s hard drive.  This paragraph also extends to accessing data on the electronic equipment at the time of examination or processing that may not have been held on the electronic equipment at the time the electronic equipment was seized or moved.  For example, this will allow a phone to be operated to access an SMS that was sent to the phone after the phone was seized or moved. 

Paragraph 3ZQV(3)(b) will also allow data that is not held on the electronic equipment, but can be accessed by using the electronic equipment, to be accessed.  For example, accessing a voicemail message, stored on the computer server of a telecommunications company, made prior to the seizure of a mobile phone.

This paragraph also extends to data that was not accessible by using the electronic equipment at the time of the electronic equipment was seized or moved.  For example, after a mobile phone is seized (or moved), a voice mail message is recorded and stored on the computer server of a telecommunications company.  This voicemail message, even though it was made after the time of seizure, can be lawfully accessed under this section.   

The Telecommunications (Interception and Access) Act 1979 provides a warrant-based regime for covertly accessing stored communications.  For the purposes of that regime, a stored communication is a communication (such as a voice mail) that can only be accessed by the parties to the communication (eg the recipient of the voicemail) or a telecommunications company (upon whose computer server the voicemail is stored).  

Accessing voicemail or other electronic data under section 3ZQV (even where the voicemail was received after the mobile phone was seized) is different from accessing a stored communication because the data is being accessed overtly rather than covertly as the individual knows that his or her mobile phone has been seized.  Section 3Q of the Crimes Act requires the executing officer, or constable assisting, to provide a receipt of all things seized under a warrant. 

This section will not affect the time limits in section 3K which apply to how long electronic equipment can be moved for (to be amended in Items 14 and 15).

Section 3ZQW will provide for the payment of compensation for any damage resulting from the use of electronic equipment under section 3ZQV.  Compensation will be payable for any damage to the electronic equipment itself, to data recorded on, or accessed from the electronic equipment, or programs associated with the equipment.

If the owner and the Commonwealth cannot agree on a reasonable level of compensation, the owner or user can institute court proceedings.  The court will then determine what a reasonable amount of compensation will be in the circumstances.

This principle is consistent with existing provisions of Part IAA (eg section 3M) and the Commonwealth’s constitutional obligation to pay just terms for acquisition of property (including loss of property other than under forfeiture or penalty).

Subdivisions B, C and D

Part IAA currently has three different schemes governing when a thing that has been seized must be returned.  Paragraph 3ZV(1)(a) sets out when things seized under Part IAA must be returned.  Paragraph 3ZV(1)(b) and subsection 3ZV(2) deal with when things seized under section 3T (Division 3 - searches without warrant in emergency situations) must be returned.   Section 3ZW allows a magistrate to make an order that a thing seized under section 3T can be retained for a further period.  Further, subsections 3UF(4)-(7) provide when a thing that has been seized under Division 3A must be returned and subsection 3UF(9) and section 3UG deal with applications and orders for things that are seized to be returned or retained for a further period (or otherwise dealt with).

Sections 3ZV and 3ZW, subsections 3UF(4)-(7) and (9) and section 3UG will be repealed by Items 5-7 and 10, and will be replaced by the insertion of Subdivisions B, C and D under this item. 

While generally these new Subdivisions are based on the current provisions for returning things that are seized (or for making an order allowing further retention of the thing), there is substantive change relating to who must return things.

Section 3ZV and subsections 3UF(4)-(7) and (9) impose the obligation to return the thing that is seized on the constable who seized the thing.  Further, only the constable who seized the thing may apply for an order under section 3ZW or 3UG that the thing may be retained for a further period.  Constable is defined in subsection 3(1) to mean a member or special member of the AFP or a member of a State or Territory police force or police service. 

It is not operationally practicable to require the constable who seized the thing to continue to retain responsibility for the thing until it is returned.  This is because the officer may not continue to be involved with the operation, or the thing may be required to be used for a different purpose that the seizing officer is not involved in.

Subdivisions B, C and D will place the obligation to return a thing that has been seized, and the person who may make applications to magistrates, on the Commissioner of the AFP.  This power will be able to be delegated to any constable under Item 10 which inserts new s3ZW.  A ‘constable’ can include a State or Territory police officer (section 3C).

This delegation provision ensures that the officer who is the most appropriate to handle retention in each case will be tasked with that responsibility.   It is appropriate that there be capacity for the Commissioner to delegate to State or Territory police, given that they have access to the Part IAA search and seizure powers and will in some cases have immediate control over the handling of seized material. 

Subdivision B - Returning things seized under Division 2 or 4

Section 3ZQX

Section 3ZQX will replace current section 3ZV (which will be repealed by Item 10). 

Subsection 3ZQX(1) will outline when a thing seized under Divisions 2 or 4 needs to be returned to the person from whom it was seized, or to the owner of the thing.  This subsection will require the Commissioner of the AFP to take reasonable steps to return the thing: when it is not required, or no longer required, for a purpose set out in section 3ZQU (also inserted by this item) or for administrative or judicial review proceedings. 

Section 3ZQU, inserted by this item, sets out the purposes for which a thing that has been seized, or a document produced, under Part IAA can be used or shared.  These purposes include: investigating a Commonwealth, Territory or State offence with a federal aspect; proceedings under the Proceeds of Crime Act 1987 or Proceeds of Crime Act 2002; and proceedings for control orders or preventative detention orders. 

The reference to judicial or administrative review proceedings will be necessary as things seized in certain circumstances may be needed for administrative review or judicial proceedings outside the scope of uses that will be listed in new section 3ZQU.   An example of where a thing seized during the execution of a warrant may be needed for administrative or judicial review proceedings is where a challenge to the execution of the warrant is brought before a court.  In this instance, it may be necessary to produce the things seized as evidence in the proceedings as proof that they were properly seized under the warrant. 

However, under section 3ZQX, the Commissioner will not have to take reasonable steps to return the thing that has been seized if the thing:

·          may otherwise be retained, destroyed or disposed of under a law or an order of a court or tribunal of the Commonwealth or of a State or Territory, or

·          is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership.

Section 3ZQX differs from section 3ZV in three ways.  First, and for the reasons described above, it imposes the obligation to return the thing that has been seized on the Commissioner of the AFP rather than the constable who seized the thing.  Second, paragraph 3ZV(1)(a) only requires the thing to be returned if the reason for its seizure no longer exists or it is decided that it is not to be used in evidence.  Section 3ZQX will require the thing to be returned when it is not required, or no longer required, for a purpose set out in section 3ZQU (also inserted by this item) or for administrative or judicial review proceedings. 

Finally, subsection 3ZV(1) does not require the return of the thing if the thing is forfeited or forfeitable to the Commonwealth or is subject of a dispute as to ownership.  Section 3ZQX includes an additional scenario so that the thing will not have to be returned if the thing may otherwise be retained, destroyed or disposed of under a law, or an order of a court or tribunal, of the Commonwealth, or of a State or Territory.

Subdivision C - Returning things seized under Division 3

Sections 3ZQY and 3ZQZ

Sections 3ZQY and 3ZQZ will replace section 3ZV and 3ZW which will be repealed by item 10.

Section 3ZQY will require the Commissioner to take reasonable steps to return a thing seized under Division 3 when one of the following two things occur:

·         the seized thing is not required or no longer required for use or sharing for one of the purposes in section 3ZQU or for administrative or judicial review proceedings , or

·         60 days passes after the thing has been seized. 

Section 3ZQU, inserted by this item, sets out the purposes for which a thing that has been seized, or a document produced, under Part IAA can be used or shared.  These purposes include: investigating a Commonwealth, Territory or State offence with a federal aspect; proceedings under the Proceeds of Crime Act 1987 or Proceeds of Crime Act 2002; and proceedings for control orders or preventative detention orders. 

The reference to judicial or administrative review proceedings will be necessary as things seized in certain circumstances may be needed for administrative review or judicial proceedings outside the scope of uses that will be listed in new section 3ZQU.   An example of where a thing seized during the execution of a warrant may be needed for administrative or judicial review proceedings is where a challenge to the execution of the warrant is brought before a court.  In this instance, it may be necessary to produce the things seized as evidence in the proceedings as proof that they were properly seized under the warrant.

However, the thing will not have to be returned under section 3ZQY if the thing:

·          is likely to be used in evidence in proceedings in that have commenced

·          may otherwise be retained, destroyed or disposed of under a law or an order of a court or tribunal of the Commonwealth or of a State or Territory

·          may be retained because of an order under section 3ZQZ, or

·          is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership.

 

Section 3ZQY will differ from section 3ZV in three ways.  First, and for the reasons described above, it imposes the obligation to return the thing that has been seized on the Commissioner of the AFP rather than the constable who seized the thing.  Second, paragraph 3ZV(1)(b) only requires the thing to be returned if the reason for its seizure no longer exists, it is decided that it is not to be used in evidence or the period of 60 days after its seizure ends.  Section 3ZQY will differ from paragraph 3ZV(1)(b) in that the thing will have to be returned if it is not required, or no longer required, for a purpose set out in section 3ZQU (also inserted by this item) or for administrative or judicial review proceedings. 

 

Finally, subsection 3ZV(2) allows a thing to be retained if the thing is likely to be used in evidence in proceedings that have commenced; may otherwise be retained, destroyed or disposed of under a law or an order of a court or tribunal of the Commonwealth or of a State or Territory; or may be retained because of an order under section 3ZW.  Section 3ZQY will, as well as the reasons in subsection 3ZV(2), allow a thing to continue to be retained if the thing is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership.

Section 3ZQZ will allow the Commissioner to apply to a Magistrate for an order to retain the thing beyond the 60 days.  The Magistrate will be able to grant an order allowing the thing to be retained for the period specified in the order if satisfied that the thing is being used, or is required to be used for a purpose in section 3ZQU. 

Prior to making the application, the Commissioner will have to take reasonable steps to discover and notify each person who has an interest in the retention of the thing.

Section 3ZQZ will differ from section 3ZW in two ways.  Firstly, section 3ZW only allows the constable who seized the thing to apply for the order.  Section 3ZQZ, for the reasons described above, will allow the Commissioner of the AFP to make the application.  Secondly, section 3ZW only allows a magistrate to order that a thing continue to be retained if it is necessary for the purposes of an investigation as to whether an offence has been committed, or to enable evidence of an offence to be secured for the purposes of a prosecution.  Section 3ZQZ will allow a magistrate to order that a thing can continue to be retained if satisfied that the thing is being used, or is required to be used, for a purpose mention in section 3ZQU or for other judicial or administrative review proceedings.

Subdivision D - Returning things seized under Division 3A

Sections 3ZQZA and 3ZQZB

Sections 3ZQZA and 3ZQZB will replace subsections 3UF(4)-(7) and 3UF(9) and section 3UG which will be repealed by items 5 to 7.

Under section 3ZQZA, the owner of a thing seized under Division 3A will be able to request the return of a thing.  If a request is made, the Commissioner will be required to take reasonable steps to return the thing to the owner.

The Commissioner will not be required to take those steps if the Commissioner suspects on reasonable grounds that the thing, if returned, is likely to be used in the commission of a terrorist act, a terrorism offence or other serious offence.  Terrorist act will have the same meaning as in subsection 100.1(1) of the Criminal Code.  A terrorism offence is defined in section 3 of the Crimes Act to mean an offence against Subdivision A of Division 72 of the Criminal Code or an offence against Part 5.3 of the Criminal Code.  A serious offence is defined in subsection 3C(1) of the Crimes Act as any Commonwealth or Territory offence or State offence with a federal aspect that is punishable by 2 or more years imprisonment that is not a serious terrorism offence (most terrorism offences).

The Commissioner will also not have to take steps to return the thing if the thing is being used, or is required to be used for a purpose in section 3ZQU or for administrative or judicial review proceedings.

Section 3ZQU, inserted by this item, sets out the purposes for which a thing that has been seized, or a document produced, under Part IAA can be used or shared.  These purposes include: investigating a Commonwealth, Territory or State offence with a federal aspect; proceedings under the Proceeds of Crime Act 1987 or Proceeds of Crime Act 2002; and proceedings for control orders or preventative detention orders. 

The reference to judicial or administrative review proceedings will be necessary as things seized in certain circumstances may be needed for administrative review or judicial proceedings outside the scope of uses that will be listed in new section 3ZQU.   An example of where a thing seized during the execution of a warrant may be needed for administrative or judicial review proceedings is where a challenge to the execution of the warrant is brought before a court.  In this instance, it may be necessary to produce the things seized as evidence in the proceedings as proof that they were properly seized under the warrant.

The Commissioner will also be able to apply to a magistrate for an order under section 3ZQZB to retain the thing if he or she wishes to retain the thing beyond 90 days.

Section 3ZQZA will differ from subsection 3UF(4)-(7) and 3UF(9) in two ways.  First, section 3ZQZA will impose the obligation to return the thing that has been seized on the Commissioner of the AFP rather than on the police officer responsible for the thing for the time being.  This change is to ensure consistency with Subdivisions B and C which will refer to the Commissioner.  Second, subsections 3UF(6) and (7) outline that the thing does not need to be returned if the thing is likely to be used in the commission of a terrorist act or serious offence, or the thing is evidence of, or relating to, a terrorist act or serious offence.  Under section 3ZQZA, a thing will not have to be returned if the Commissioner suspects on reasonable grounds that the thing, if returned, is likely to be used in the commission of a terrorist act, a terrorism offence or other serious offence, or the thing is being used, or is required to be used for a purpose in section 3ZQU or for administrative or judicial review proceedings.

Section 3ZQZB will provide that if an application is made, the owner of the thing has the right to appear and be heard at the application.  The magistrate may order that the thing be retained if the thing is being used, or is required to be used for a purpose in section 3ZQU or for administrative or judicial review proceedings. 

If the magistrate is satisfied that the thing, if returned, is likely to be used in the commission of a terrorist act, a terrorism offence or other serious offence, he or she will be able to order that the thing:

·         continue to be retained

·         be forfeited to the Commonwealth, or

·         be sold or otherwise disposed of.

The magistrate must otherwise order the thing be returned to the owner.

 

This section will differ from section 3UG in three ways.  First, for the reasons outlined above, the Commissioner will be allowed to make the application.

Second, under subsection 3UG(3), the magistrate must order the thing be retained if satisfied that the thing is evidence of, or relating to, a terrorist act or serious offence.  Subsection 3ZQZB(3) will expand this to require the magistrate to order the thing be retained if satisfied that the thing is being used, or is required to be used for a purpose in section 3ZQU or for administrative or judicial review proceedings.

 

Third, subsection 3UG(4) only allows a magistrate to make an order if the magistrate suspects that, if the thing is returned to the owner, the thing is likely to be used in the commission of a terrorist act or serious offence.  Subsection 3ZQZB will expand this to also allow an order to be made if the magistrate suspects that, if the thing is returned to the owner, the thing is likely to be used in the commission of a terrorism offence.

Item 10

Part IAA currently has three different schemes governing when a thing that has been seized must be returned.  Two of those schemes are set out in section 3ZV and section 3ZW.  Those provisions will be replaced by Item 9, and since they will no longer be required, will be repealed by this item.  The new provisions inserted by Item 9 impose obligations on the Commissioner of the AFP to return things that have been seized under Part IAA, and allow the Commissioner to make applications to a magistrate for things to be retained for a further period (or otherwise dealt with). 

This item will also insert new 3ZW which will allow the Commissioner to delegate to a constable any or all of his or her powers under Part IAA.  Constable is defined in subsection 3(1) as a member or special member of the AFP or a member of the police force or police service of a State or Territory.  The only powers, functions and duties in Part IAA for which the Commissioner will be responsible are those relating to the use, sharing and retention of seized material (as inserted by Item 9) and the Commissioner’s related powers in relation to the removal or destruction of data on a computer under the existing section 3L and new section 3LAA (inserted by Item 20). 

It is necessary to confer the power on the Commissioner because the current approach of placing the responsibility on the officer who seized the item is not practicable.  The provision will allow the Commissioner to delegate the power to the officer most appropriately placed to be handling the returning of the item.  This is necessary due to the large amounts of seized material that police officers deal with.  State and Territory police officers have access to the Part IAA search and seizure powers and will in some cases have immediate control over the handling of seized material.  As such, it is necessary and appropriate for the Commissioner to be able to delegate the responsibility of returning seized items to State and Territory police officer officers (a ‘constable’ can include a State or Territory police officer).  

Item 11

This item is an application provision that provides that the amendments in this Part will apply in relation to things seized, or documents produced, before, on or after commencement of this Part.

This provision will be retrospective in application but will not create retrospective criminal liability.  The provision is necessary to allow law enforcement agencies to deal appropriately with evidence they have lawfully acquired prior to the commencement of the amendments.  In the absence of such a provision, law enforcement agencies would be required to separate material seized pre-amendment and material seized post-amendment, which would impose a considerable and impractical burden on the storage of evidence.

Part 2 - Use of equipment under warrant

Items 12-15

Where a warrant has been issued under Part IAA, section 3K allows an executing officer or constable assisting to move a thing to another place when it is significantly more practicable to do so and there are reasonable grounds to believe that the thing contains or constitutes evidential material (subsection 3K(2)).  Subsections 3K(3)-(3C) allow or require the executing officer to do certain things once a thing has been moved under subsection 3K(2). 

Executing officer and constable assisting are both defined in subsection 3C(1) and, to summarise, refer to the constable responsible for executing a warrant, a constable assisting in the execution of a warrant, or a person who is not a constable but who has been authorised to assist in executing the warrant.  Evidential material is defined in subsection 3C(1) to mean a thing relevant to an indictable or summary offence, including such a thing in electronic form. 

To seize an item, it needs to be relevant to the offence to which the warrant relates or the executing officer needs to believe it is relevant to another offence.  Seizure of a thing enables officers to retain that thing for the purposes listed in section 3ZQU (see Item 9).  Moving a thing is a separate process.  An officer is not able to use a thing which has been moved for the purposes in section 3ZQU.  They are only able to examine or process the thing for the purposes of determining whether or not it is able to be seized.

Item 12

This item will amend subparagraph 3K(2)(a)(ii) so that the executing officer or constable assisting only needs to have reasonable grounds to suspect that the thing contains or constitutes evidential material before being able to move it to another place for further examination.

Requiring an executing officer or constable assisting to determine that there are reasonable grounds to believe that the thing contains or constitutes evidential material’ is both conceptually and operationally problematic.  The test of ‘reasonable grounds to believe’ is the same test that the executing officer or constable assisting must apply in determining whether to seize a thing that is not specified in the warrant under paragraph 3F(1)(d).  If an executing officer or constable assisting genuinely holds ‘reasonable grounds to believe’ that the thing is evidential material, then it is questionable why they would elect to move the thing for further analysis under section 3K when they would already have grounds to seize the thing under section 3F.

A further example of where the ‘reasonable grounds to believe’ test in paragraph 3K(2)(a) creates operational difficulties for law enforcement agencies is where a significant amount of material written in a foreign language is located.   In these situations, the executing officer, due to their inability to understand its contents, may be unable to form a belief on reasonable grounds that the material contains or constitutes evidential material.  This amendment will address this difficulty by allowing the material to be moved if there is a suspicion, on the basis of other material seized or the context of the execution of the warrant, that the thing may contain or constitute such material. 

Item 13

Subsection 3K(3) requires the executing officer, if practicable to do so, to:

·          inform the occupier of the search warrant premises of the place and time at which the thing that has been moved under subsection 3K(2) will be examined or processed (paragraph 3K(3)(a), and

·          allow the occupier or his/her representative to be present during the examination or processing in the same way they are entitled to be present during the execution of a search warrant (paragraph 3K(b)). 

This provision can pose a security concern in some cases by allowing a person suspected of serious offences, including serious and organised crime, to be present with forensics and other police staff during an examination.  There is also a risk that sensitive information about investigative practices and procedures could be revealed.

This item will amend insert new section 3AA which will allow an executing officer not to comply with the requirements in paragraphs 3K(a) and (b) if the executing officer believes on reasonable grounds that having the person present might endanger the safety of a person or prejudice an investigation or prosecution.  This is similar to subsection 3P(2) under which the right to observe a search ceases if the person impedes the search.

Item 14 and 15

Subsection 3K(3A) currently provides that a thing can only be moved under subsection 3K(2) to another place for examination or processing for a maximum of 72 hours.  Subsection 3K(3B) allows an executing officer to apply to an issuing officer for one or more extensions of that time.  The executing officer must give notice of the application to extend to the occupier of the premises from where the thing has been moved and the occupier is entitled to be heard in relation to the application (subsection 3K(3C)).  Issuing officer  is defined in subsection 3C(1) as a magistrate or a justice of the peace or other person employed in a State or Territory court authorised to issue search/arrest warrants.

Item 14 will amend subsections 3K(3A) and 3K(3B) to increase the time period that a thing may be moved to another place for examination from 72 hours to 14 days.

The 72 hour limit for moving a thing for examination or processing poses operational difficulties where it is necessary to examine a large volume of both documentary and electronically stored material.   

 

Operational advice from the AFP indicates that the factors that have directly increased the time required to forensically search and examine data stored on electronic equipment include:

·          an increase in the types of electronic equipment that data is able to be stored on including ‘thumb’ and micro drives, personal organisers, mobile phones, smart cards (including stored value cards and controlled access cards), flash cards (as found in hand held devices and digital camera), GPS systems and navigation units

·          an increase in the complexity of electronic storage mediums

·          an increase in electronic storage capacity, and

·          an increase in the prevalence of security software and encryption technology.

 

Using current technology, the time required to comprehensively search a single computer hard drive is approximately one day.  However, it is not uncommon for multiple pieces of electronic equipment to be seized during a search.  For example, a search on a single premise could result in the seizure of two personal computers, two laptops, two external hard drives and two thumb drives.  It is not uncommon for an average household to have at least this range of electronic equipment.  It would take a computer forensic team, working exclusively on that project, an entire week to preview all the data seized (in excess of three terabytes).  

 

The time required to search the data can then be further exacerbated by factors such as:

·          the seizure of material located at multiple premises as part of the one operation which is often the case in the investigation of serious and organised crime offences

·          the time taken to decrypt an encrypted computer - on average it takes at least three days to decrypt a computer and longer depending on the complexity of the encryption system, and

·          data or material in a foreign language.

Accordingly, an increase from 72 hours to 14 days is necessary for electronic equipment to be properly examined. 

Extending the period for which a thing may be moved for examination or processing may potentially cause damage or inconvenience to the occupier of the premises from where the thing was removed.  To mitigate potential loss, new subsections 3LAA(2) and (4) (inserted by Item 20) will allow officers to make copies of the thing off-site, so that the original can be returned to the occupier.

Currently subsection 3K(3B) does not place a cap on the amount of time an issuing officer can further extend the period of time to examine or process the thing.  Item 15 will insert subsection 3K(3D) which will limit any extension to 7 days.  This will require law enforcement officers to continue to justify to an issuing officer why it is necessary for the thing to continue to be retained.

Items 16 - 19

These items will rationalise the various thresholds for examining and seizing material under Part IAA in a similar way to Item 12.  

Item 16

 

Section 3L(1) currently allows an executing officer or a constable assisting to operate electronic equipment at the warrant premises to access data (including data not held at the premises) if he or she believes on reasonable grounds that the data might constitute evidential material and the equipment can be operated without damaging it.  This test is operationally problematic.  A search warrant provides authority for the executing officer to search a premises for any evidential material specified in the warrant.  As electronic equipment forms part of the warrant premises, it is not necessary for an executing officer or constable assisting to have to form an additional level of belief before they are able to access/operate/examine electronic equipment.

 

This item will amend subsection 3L(1) to remove this additional threshold.  The subsection will simply state that when executing a warrant, an executing officer or a constable assisting to operate electronic equipment at the warrant premises to access data (including data not held at the premises).

 

This will enable an officer, when executing a warrant to search a computer in the same way a desk or filing cabinet would be searched for documents.  This item will not affect in any way the circumstances in which electronic equipment, including data, can be seized.

Items 17

Subsection 3L(1A) allows an executing officer to copy data and take it from the warrant premises if they believe on reasonable grounds that any data accessed by operating the equipment constitutes evidential material.

Requiring an executing officer or constable assisting to determine that there are reasonable grounds to believe that the thing contains or constitutes evidential material’ is both conceptually and operationally problematic.  The ‘reasonable grounds to believe’ test is the same test that the executing officer or constable assisting must apply in determining whether a thing that is not specified in the warrant may be seized under paragraph 3F(1)(d).  If an executing officer or constable assisting genuinely holds ‘reasonable grounds to believe’ the thing is evidential material, then it is questionable why they would elect to copy the thing for further analysis under section 3L(1A) when they would already have grounds to seize the thing under section 3F.

This item will amend subsection 3L(1A) to change the test for when data found on electronic equipment can be copied from the reasonable grounds to believe to a reasonable grounds to suspect test.  This amendment will bring the provision in line with subparagraph 3K(2)(a)(ii) (which will be amended by Item 12) and simplify and provide consistency across the Act. 

This item will also remove the reference to ‘might’ in subsection 3L(1A).  This change is in addition to lowering the test required in these provisions from belief to suspect.  If the word ‘might’ was kept in those provisions, there would still be uncertainty as to how the test was intended to operate.  The change will simplify the operation of these provisions and provide clarity to officers as to when they are able to be exercised.

Item 18

Subsection 3L(1A) currently states that if the executing officer or constable assisting suspects (see Item 17) on reasonable grounds that any data accessed by operating the electronic equipment might constitute evidential material, he or she may copy the data to a disk, tape or other associated device brought to, or at, the premises, and take the device from the premises.

This item will amend subsection 3L(1A) to clarify that where, after operating the equipment, the officer suspects (see Item 17) on reasonable grounds that some data constitutes evidential material, he or she will be able to copy any or all data accessed by operating the equipment.

This change will reflect the intention of this provision when it was inserted into the Crimes Act by the Cybercrime Act 2001 .  This is necessary as it is often not practicable for officers to search all the data for evidential material while at the search premises and to then copy only the evidential material which is found given the large amounts of data that can be held on electronic equipment.

The amendment will ensure that officers are able to copy all the data on a piece of electronic equipment where an initial search of the equipment uncovers some data which constitutes evidential material.

Item 19

 

Subsection 3L(4) currently allows an officer to do whatever is necessary to secure electronic equipment on the warrant premises (for example, by placing a guard) where they believe on reasonable grounds that:

·         evidential material may be accessible by operating electronic equipment,

·         expert assistance is required to operate the equipment, and

·         if action is not taken, the material may be destroyed, altered or otherwise interfered with.

Requiring an executing officer or constable assisting to determine that there are reasonable grounds to believe that evidential material may be accessible by operating the equipment is both conceptually and operationally problematic.  The ‘reasonable grounds to believe’ test is the same test that the executing officer or constable assisting must apply in determining whether a thing that is not specified in the warrant may be seized under paragraph 3F(1)(d).  If an executing officer or constable assisting genuinely holds ‘reasonable grounds to believe’ the thing is evidential material, then it is questionable why they would elect to guard the thing when they would already have grounds to seize the thing under section 3F.

This Item will amend subsection 3L(4) to change the test for equipment may be guarded from the reasonable grounds to believe to a reasonable grounds to suspect test.  This amendment will bring the provision in line with subparagraph 3K(2)(a)(ii) (which will be amended by Item 12), as well as paragraph 3LA(2)(a) (which will be amended by Item 20) and simplify and provide consistency across the Act. 

Item 20

Section 3L governs the use of electronic equipment at the search warrant premises.  Subsection 3K(2) allows a thing found at the warrant premises to be moved to another place for examination or processing to determine if it may be seized under the warrant.  However, there is no equivalent provision to section 3L governing the use of electronic equipment after it has been moved from the warrant premises under subsection 3K(2).

Section 3LA currently enables the officer responsible for executing a warrant to apply to a magistrate for an ‘assistance order’.  An assistance order requires a person to provide reasonable assistance to the officer to access data stored on a computer at the search warrant premises.  Officers may need assistance because data contained on a computer on the search warrant premises may be encrypted or access to the data on the computer may be password protected.  Once an order is granted, a person is required to provide such assistance as is reasonable.  The type of assistance can vary from providing passwords, giving details of encryption methods or explaining how to access the system.  It is an offence to fail to comply with the order.

Section 3LAA

Item 20 will insert new section 3LAA.  Section 3LAA is modelled on section 3L (as amended by Items 16-19) and will set out what the executing officer or constable assisting are able to do if they move things for further examination under subsection 3K(2).   

Subsection 3LAA(1) will allow an executing officer or constable assisting to operate equipment moved under subsection 3K(2) to access data from the equipment.  This will include operating electronic equipment to access data that may not be physically located on that particular electronic equipment.  This is necessary as computers are able to be networked to other computers and are able to access files held on other computers.  For example, a business’ computer networks can extend across different office locations.  Accordingly, it is critical that law enforcement officers are able to search material accessible from those computers but located elsewhere.

This subsection will enable the executing officer or constable assisting to operate equipment after it has been moved under section 3K.  The officer needs to have suspected on reasonable grounds that the equipment contained evidential material for it to be moved under subsection 3K(2) (which will be amended by Item 12). 

Executing officer and constable assisting are both defined in subsection 3C(1) and, to summarise, refer to the constable responsible for executing a warrant, a constable assisting in the execution of a warrant, or a person who is not a constable but who has been authorised to assist in executing the warrant.  Constable is defined in subsection 3(1) as a member or special member of the AFP or a member of a State or Territory police force or police service.  

Subsection 3LAA(2) will allow the executing officer, or constable assisting, to copy any or all data to a disk or tape if, after operating the equipment, they suspect any data constitutes evidential material. 



Data is defined in subsection 3C(1) as information in any form or any program (or part of a program).  Evidential material is defined in subsection 3C(1) to mean a thing relevant to an indictable or summary offence, including such a thing in electronic form.   

Subsection 3LAA(2) will permit officers to copy any or all data held on a computer hard drive or data storage device if after an initial search of the computer, the officer suspects on reasonable grounds that the equipment might contain evidential material.  This is necessary because it is not practicable to search entire computer hard drives where a large amount of data is stored.  Copying the data will enable the data/electronic equipment to be returned to the owner. 

Subsection 3LAA(3) will impose an obligation on the Commissioner to remove or destroy the data copied under subsection 3LAA(2) if it is no longer needed for the purposes specified in section 3ZQU (as inserted by Item 9) or for administrative or judicial review proceedings.  This mirrors the retention provisions in new subdivisions B, C and D of Division 4C (also inserted by Item 9) which ensure that seized material (including data) is held no longer than necessary.

Subsection 3LAA(4) will allow the equipment to be seized if the executing officer or constable assisting finds, after operating the equipment, that evidential material is on the equipment.  It will also allow the executing officer or constable assisting to put the material in documentary form.  For example, printing a photo that has been saved onto the equipment.  

Subsection 3LAA(5) is a safeguard for the occupier.  It will ensure that an executing officer or constable assisting is only able to seize the equipment under subsection 3LAA(4) if it would be impractical to copy the data from the equipment or put it in documentary form.  This provision will ensure that the occupier is given their equipment back, where possible, to cause minimal inconvenience to them.  However, the equipment is also able to be seized and not returned to the owner if possession of the equipment could constitute an offence.  An example of this would include a computer which contains child pornography or child abuse material, the possession of which is an offence under section 474.23 of the Criminal Code.   

Section 3LA

Operational experience with section 3LA has identified six limitations with the section: 

  • there is no provision allowing assistance to be sought to access data stored in places other than a computer (eg a USB drive)
  • there is no provision for seeking assistance when data needs to be converted into an intelligible form
  • there are restrictions on who can apply for an assistance order
  • there are restrictions on who can be required to provide assistance under an order
  • there is no provision for assistance when a computer or data has been seized or otherwise lawfully moved from warrant premises,
  • the penalty for failing to comply with an assistance order is not high enough to deter non­-compliance.

Item 20 repeals and replaces section 3LA to address these limitations and improve the effectiveness of the section. 

The changes to section 3LA are designed to ensure criminal investigation powers in Part IAA are sufficient to overcome challenges posed by technological developments such as encryption techniques. 

Self-incrimination

Requiring a person to provide assistance for officers to access evidence could be considered to threaten a person’s privilege against self-incrimination.  However, section 3LA (as it currently stands or as repealed and replaced by this item) does not impact on this privilege.  The privilege against self-incrimination arises when a person is required to provide documents or things, or answer questions that would tend to incriminate themselves.  This is not the case with section 3LA which only requires a person to provide information which will enable a constable to properly conduct a search of their computer or data.  The officer or constable still has to conduct the search to determine if there is evidential material on the computer.  The assistance order cannot require a person to assist an officer or constable to navigate through data on a computer, or to point to evidential material.  The assistance order only requires the person to provide an officer or constable with the assistance that is reasonable for them to have access to the data on a computer.

Subsection 3LA(1)

Currently, an executing officer can apply to a magistrate for an order requiring a specified person to provide information or assistance to the officer to enable them to access, take copies of and convert into documentary form any material stored on a computer held in or accessible from warrant premises

New subsection 3LA(1) will depart from existing subsection 3LA(1) in the following ways.

  • A constable, rather than the executing officer, will be able to apply for an assistance order.  It is often impracticable for the executing officer to go from the warrant premises where the computer or data storage device is located to get an order from a magistrate, and then back to the premises to execute the order.  Also, the executing officer may not be the most appropriate person to seek the order after the seizure of a computer or data storage device, as that person may have changed roles and a different person may be responsible for the computer or data storage device. Changing the person who may seek an assistance order to a constable will provide for better operational effectiveness for the scheme by ensuring that the person applying for the order is the most appropriate person at the time to do so. 
  • The source of material that an assistance order can apply to will be expanded to include data storage devices (including USB drives and external hard drives), rather than being limited to data held in, or accessible from, a computer.  This change is necessary to keep pace with changes in technology that allow data to be stored in places other than a computer on the premises.  A related change is that assistance can now be sought to copy data to a storage device (although assistance can already be sought to copy the data).
  • In addition to being able to seek assistance with converting data in documentary form, assistance will also be able to be sought to convert the data into another form intelligible to the constable.  For example, data on a computer or data storage device may be encrypted and not in a form which is intelligible.  This amendment will enable officers to obtain assistance to convert the encrypted data into a form that is intelligible to the officer.  For example, a computer that is encrypted, will present information in raw state with random characters.  Such a computer will require the input of a password to present the data in a non-encrypted state that is intelligible to the constable.  The decrypted data can then be saved in this form. 
  • An assistance order will compel assistance in accessing data held in, or accessible from, a computer or data storage device that has been moved or seized from the warrant premises.  This is important because it may not be clear that assistance will be necessary until after the computer or data storage device has been moved or seized from the warrant premises.

Subsection 3LA(2)

Currently, a magistrate can only make an assistance order against a specified person if satisfied that:

·          there are reasonable grounds for suspecting that evidential material is held in, or is accessible from, the computer or data storage device

·         the specified person is:

o    a person who is reasonably suspected of having committed the offence stated in the relevant warrant

o    an owner or lessee of the computer, or

o    an employee of the owner or lessee of the computer or a person who is reasonably suspected of having committed the offence stated in the relevant warrant, and

·          the specified person has relevant knowledge of the computer or computer network of which the computer forms a part, or knowledge of the measures applied to protect the data. 

There are no changes to the first and third grounds upon which a magistrate must be satisfied before issuing an assistance order, other than those changes necessary as a result of expanding the scope of orders to data storage devices.  Further, the assistance order will continue to need to specify the exact person who is required to provide assistance.  It will not be possible to obtain a generic assistance order which requires the assistance of any person the constable considers may be able to assist with accessing the computer or data storage device. 

However, new subsection 3LA(2) will expand the classes of persons who can be required to give assistance or information for accessing material stored on a computer or a data storage device.  An order will now be able to require assistance from:

·          a person engaged under a contract for services by the owner or lessee of the computer or device

·          a person who uses or has used the computer or device, or

·          a person who is or was a system administrator for the system including the computer or device.

The current categories of persons who can be ordered to provide assistance limit the utility of the provision.  In particular, it is possible that the only person who knows the password or encryption on a computer or data storage device is neither the suspect nor the owner of the computer or data storage device.  In such cases, an assistance order could not currently be sought against the person as they do not fall within any of the current categories.

There may be situations where the constable is not able to locate the suspect, the owner or an employee of the owner of the computer or data storage device.  However, if a nother user of the computer or data storage device can provide the necessary assistance, subsection 3LA(2) will also allow the constable to require these people to provide assistance.  For example, there may be other people in the owner’s household or work area that use the computer or data storage device and who are able to access the data on the computer or data storage device.   

Subsections 3LA(3) & 3LA(4)

Currently, when and for how long an assistance order is in force is not specified.  New subsections 3LA(3) and 3LA(4) will together clarify that a constable must obtain separate orders from a magistrate for requiring a person’s assistance before and after the seizure of a computer or data storage device.  Where an order requiring a person to provide assistance is issued before equipment is seized, the order will only be valid until the equipment is seized.  If the officer requires additional information or assistance after the equipment is seized, he or she will have to apply to the magistrate for another order.

After the equipment has been taken from the warrant premises, it is necessary to require a separate order to be sought, to ensure that the order specifies the timeframe in which assistance is to be provided, where it is to be provided and any other conditions the magistrate considers appropriate.

Subsection 3LA(5)

The current penalty for failing to comply with an assistance order is six months imprisonment.  However, this penalty is not sufficient when compared to the term of imprisonment the person may be subject to if they were to provide assistance.  For example, as person may possibly be subject to a longer term of imprisonment if providing assistance (such as the key to decrypt data) led to the discovery of child pornography images (that may not have been found because of encryption).  It is possible that the person subject to an order would choose not to comply with the order and be subject to six months imprisonment, rather than comply with the order and possibly be subject to a much higher penalty. 

The penalty under new subsection 3LA(5) will be two years imprisonment.  Given the serious nature of many of the offences for which an assistance order may need to be sought, it is appropriate that the penalty for failing to comply with an assistance order is set at a sufficiently high enough level.  The general defences to criminal responsibility in Part 2.3 of the Criminal Code will continue to apply to the offence.

Items 21 and 22

Section 3LB ensures that where electronic equipment is operated to access data not on the warrant premises, the occupier of the other premises must be notified that the data was accessed.

This item will ensure that where data is accessed under new subsection 3LAA(1) (inserted by Item 20), or will continue to be accessed under subsections 3LAA(2) or (4) (also inserted by Item 20), the executing officer or constable assisting will be required to notify the occupier of the other premises if it is practicable to do so.  This amendment will bring consistency to the provisions, so the same rules will apply whether the executing officer is accessing the data from a computer on or off the warrant premises.

Item 23

Section 3M provides for the payment of compensation for damage caused to equipment as a result of it being operated under sections 3K or 3L. 

This item will repeal and replace section 3M, and extend its application to ensure that if damage is caused to equipment as a result of it being operated under section 3LAA (inserted by Item 20), compensation will be available in the same circumstances as compensation is currently available in relation to sections 3K or 3L.

This item will also extend the scope of section 3M to ensure that compensation is available if there is damage to data recorded on, or accessed from the electronic equipment, or programs associated with the equipment as well as damage to the equipment itself.  This is consistent with new section 3ZQW (inserted by Item 9) which will provide compensation for damage done to seized electronic equipment operated under new section 3ZQV (also inserted by Item 9).

Item 24

Section 3N provides for copies of seized things to be provided to the occupier of the warrant premises or their representative.  This item will amend paragraph 3N(2)(a) of so that an executing officer or constable assisting is not required to provide a copy of material that has been put in documentary form in accordance with proposed paragraph 3LAA(4)(b).  Paragraph 3LAA(4)(b) will avoid the need to seize equipment as it will allow the seizable data to be put into documentary form and then the documents seized.  As the occupier will still have the data on the electronic equipment, it will not be necessary for the occupier to be provided with copies of the documents that were seized.

Item 25

This item contains application provisions relevant to the amendments in this Part.

Subitem 25(1) provides that the amendments in this Part will only apply to warrants issued on or after the commencement of this item.  This provision is subject to subitem 25(2).

Subitem 25(2) provides that the amendments to section 3LA will apply only in relation to orders under that section made after the commencement of the amendments.  However, an order may be made after commencement regardless of whether the relevant warrant was issued, or the data or computer which is the subject of the order was seized or moved from the warrant premises, before or on commencement.  This provision will be retrospective in application, but will not create retrospective criminal liability.  The provision is necessary to allow law enforcement agencies to deal appropriately with evidence they have lawfully acquired.



Schedule 3 - National Witness Protection Program

GENERAL OUTLINE

The Witness Protection Act 1994 provides a statutory basis for the NWPP.  The NWPP provides protection and assistance to people who are assessed as being in danger because they have given, or have agreed to give, evidence or a statement on behalf of the Crown in criminal or certain other proceedings, or because of their relationship to such persons.  For example, if a person gives evidence in a serious or high profile criminal trial, that person’s security, and that of their family, may be at risk as a result.

The NWPP is maintained by the Commissioner of the AFP, who has responsibility for deciding whether to include a witness in the NWPP or provide protection and assistance to a person under the NWPP.  The types of protection and assistance that may be provided under the NWPP include, but are not limited to:

·          providing a person with a new identity

·          relocating a person

·          assistance with accommodation, and

·          assistance with obtaining employment and access to education under a new identity or in a new location.

The amendments in this Schedule will provide increased protection and security to: people included in, or provided with assistance under, the NWPP; members of the AFP who serve in the Witness Protection Unit; and other AFP employees involved in the operation of the NWPP.  The amendments will make the following key changes to the Act.

·          Clarifying the application of the Act to witnesses involved in State and Territory matters.

·          Updating the concept of identity.

·          Extending the availability of protection under the NWPP to former participants and related persons.

·          Updating and extending the scope of non-disclosure offences.

Several concepts, and a range of terminology, are relevant to understanding the current operation of the NWPP, and the affect of the amendments made by this Schedule.

Scope of the term ‘participant’

This Schedule will amend the Act so that protection and assistance can be provided to former as well as current participants where such action is appropriate.  To give effect to this change, the new definition of ‘participant’ (someone included in the NWPP) will include a former participant (someone who has ceased to be included in the NWPP) unless the contrary intention appears.  As a result, most references to a participant will now include both current and former participants.

As outlined below, the amendments will also allow assistance to be extended to someone whose relationship with a former participant is such that the Commissioner is satisfied that it is appropriate to provide that assistance (under new subsection 13(5) inserted by Item 22).

New subsection 13(6) (also inserted by Item 22) will provide that if the Commissioner extends assistance or protection to someone other than a former participant under new subsection 13(5), the Act applies to that person as if they were a former participant.  Therefore, where a reference in the Act to a participant includes a former participant, it will also include such a person, unless otherwise specified.

Clarifying the application of the Act to witnesses involved in State and Territory matters

While the NWPP was established primarily for witnesses in Commonwealth matters, section 6 of the Act provides the Commissioner with authority to include witnesses in State or Territory proceedings in the NWPP.  However, there are parts of the Act that refer to a ‘Commonwealth participant’, and the definition of that term does not include State or Territory witnesses.  Commonwealth participant is defined at section 3 to mean a participant: in relation to an offence against a law of the Commonwealth; in relation to a Royal Commission or another commission or inquiry under a law of the Commonwealth; in relation to an inquiry instituted by Parliament; or under section 10 or 10A.  Sections 10 and 10A allow the Commissioner to include people in the NWPP at the request of a foreign law enforcement agency or the International Criminal Court respectively.  This means that potential gaps exist in the Act in relation to protection of State and Territory witnesses included in the NWPP, and their obligations under the NWPP.

The amendments will insert definitions of State participant and Territory participant into the Act (Items 10 and 11 respectively).  The Commonwealth’s legislative power differs with respect to Commonwealth and Territory participants on the one hand, and State participants on the other.  As a result, some provisions of the Act need to distinguish between these different classes of participant, and may include additional elements.

Updating the concept of identity under the Act

Currently, the Act distinguishes only between a person’s ‘former identity’ and their ‘new identity’.  Such a distinction is based on the assumption that a person will only be provided with one new identity under the NWPP, and that their former identity is equivalent to their original identity.  However, while they would only ever be using one identity at a particular point in time, NWPP participants may be provided with more than one identity in addition to their original identity.  This can happen if the first identity provided to the person under the NWPP is compromised in some way.  For example, if a person was relocated to a new location under a new identity, but was subsequently recognised by someone who knew the person before they were included in the NWPP, that person may need to be provided with a further new identity.

The amendments will insert definitions of ‘original identity’, ‘current NWPP identity’ and ‘former NWPP identity’ so that these three classes of identity can be distinguished for the purposes of the Act.  Original identity will mean the identity of a person at the time immediately before that person was first provided with an identity under the NWPP.  Current NWPP identity will mean an identity that a participant in the NWPP was provided under the NWPP and that the participant is actually using at that time.  Former NWPP identity will mean an identity that was provided to a participant in the NWPP that is no longer being used by the participant.  These definitions are explained in more detail at Items 2, 3 and 7 below.  Amendments will be made throughout the Act to ensure that a participant’s former identity is protected in the same way as their original identity.

Extending protection under the NWPP to former participants and related persons

Under the current provisions of the Act, once participants have left the NWPP, they are unable to obtain assistance without undergoing a formal assessment to rejoin the NWPP.  This delay could endanger former participants.  New provisions inserted by Item 22 will allow the Commissioner to provide assistance to former participants where it is necessary and reasonable for their protection, without formally re-including them in the NWPP.  These provisions will also allow assistance to be extended to someone whose relationship with a former participant is such that the Commissioner is satisfied that it is appropriate to provide that assistance.  This could include relatives, friends or other associates of the former participant, and would include people the former participant has met since leaving the program.

Updating and extending the scope of non-disclosure offences

Currently, section 22 of the Act makes it an offence to disclose information about the identity or location of a person who is or has been a Commonwealth participant or information that compromises the security of such a person.  This offence does not distinguish between instances where the person disclosing the information is reckless as to whether there is a risk that the disclosure will compromise the security of an individual and those not involving this aspect of potential harm.  Section 22 also makes it an offence for a person who is or has been a Commonwealth participant, or a person who has undergone assessment for inclusion in the NWPP as such a participant to disclose certain information about the NWPP.  In both cases, the offences apply only in relation to Commonwealth participants.

The amendments (Item 52) will repeal the existing offences at section 22 and replace them with three separate sets of offences, which will apply to disclosure of information about:

·          Commonwealth or Territory participants, and people undergoing assessment for inclusion in the NWPP as such participants

·          State participants, and people undergoing assessment for inclusion in the NWPP as such participants, and

·          the NWPP.

A higher maximum penalty will apply to offences where the person committing the offence is reckless as to whether there is a risk that the disclosure of the information will compromise the security of an individual involved in the NWPP.

One of the purposes of Item 52 is to extend those offences to apply also to State and Territory participants.  That item will also extend the scope of the non-disclosure offences in the Act to include disclosures relating to people undergoing assessment for inclusion in the NWPP.  This provides an important protection for witnesses who may be in a particularly vulnerable position as they have been identified as potentially being in danger but have not yet been included in the NWPP.

Witness Protection Act 1994

Item 1

This item will amend the definition of complementary witness protection law in section 3 to remove the requirement for such laws to be declared by notice in the Gazette, and instead provides that such laws are those State or Territory laws that are declared under new section 3AA of the Act (inserted by Item 13).

Item 2

Item 2 will insert a definition of ‘current NWPP identity’ in section 3.  While a person would only ever be using one identity at a particular point in time, NWPP participants may be provided with more than one identity in addition to their original identity.  Current NWPP identity will mean an identity that a participant in the NWPP was provided under the NWPP and that is being used by the participant at that time.  For example, if a person entered the NWPP with the identity of ‘Mr X’ and was given a new identity of ‘Mr Y’ under the NWPP, his current NWPP identity would be ‘Mr Y’.  If the person’s identity as ‘Mr Y’ was compromised in some way and he was subsequently required to adopt a further new identity of ‘Mr Z’, this would become his current NWPP identity.

Item 3

Item 3 will insert a definition of ‘former NWPP identity’ in section 3.  While a person would only ever be using one identity at a particular point in time, NWPP participants may be provided with more than one identity in addition to their original identity.  Former NWPP identity will mean an identity that was provided to a participant, but that is not being used by the participant at the time.  For example, if ‘Mr X’ was given the new identity of ‘Mr Y’ under the NWPP and was then required to adopt the further new identity of ‘Mr Z’, his former NWPP identity would be ‘Mr Y’.  This definition ensures that all identities previously held by the participant, and not just the participant’s original identity, will be protected under the Act.

Item 4

The Bill will amend the Act so that protection and assistance can be provided to former as well as current participants where such action is appropriate (see Item 22).  To give effect to this change, the new definition of ‘participant’ will include former participants in the NWPP unless the contrary intention appears.  Item 4 will insert a definition of ‘former participant’ in section 3.  Former participant will mean a person who was previously included in the NWPP but is no longer included.  This definition is required so that in instances where a provision is to apply only to current or only to former participants, that can be made clear.

Item 5

Item 5 will insert a definition of ‘Immigration Secretary’ in section 3.  Immigration Secretary will mean the Secretary of the Department administered by the Minister who administers the Migration Act 1958 .  This definition is necessary for provisions in the Act (as amended by Items 22 and 44) which deal with the notification of the Immigration Secretary where certain actions are taken in relation to foreign nationals included in the NWPP at the request of foreign law enforcement agencies and persons included in the NWPP at the request of the International Criminal Court under sections 10 and 10A.

Item 6

Item 6 will insert a definition of ‘information’ in section 3.  Information , where it relates to the identity of a person, will include information about a person’s appearance, voice quality or accent, mannerisms, address or location, particular skills and qualifications and personal history.  The definition will clarify but not limit what is meant by information in relation to the identity of a participant.  This amendment will make it clear that the concept of identity under the Act encompasses not just a name but all aspects of an identity.

Item 7

Item 7 will insert a definition of ‘original identity’ in section 3.   Original identity will mean the identity of a person at the time immediately before he or she was first provided with an identity under the NWPP.  If a person has lawfully changed their name since birth (for example, due to marriage, divorce or via a legal name change), his or her original identity will be the latest identity he or she had before first being provided with an identity under the NWPP.  For example, a person could be born ‘Ms Y’ and change her name to ‘Mrs X’ after marriage.  If that person was then provided with a new identity under the NWPP, her original identity would be ‘Mrs X’.

Item 8

Item 8 will amend the definition of ‘participant’ in section 3.  Participant will now be defined to mean a person included in the NWPP, and will include a former participant, except where a particular provision specifies otherwise.  This Schedule will amend the Act so that protection and assistance can be provided to former as well as current participants where it is appropriate to do so.  Amending the definition of participant will remove the need to refer separately to current participants and former participants in each provision that will apply to both.

A reference in the Act to a participant includes:

·          a Commonwealth participant (including a former participant unless otherwise specified)

·          a Territory participant (including a former participant unless otherwise specified), and

·          a State participant (including a former participant unless otherwise specified).

Item 9

New section 3AB (inserted by Item 13) will define what is meant by State offence that has a federal aspect’ for the purposes of the Act.  Item 9 will insert a cross-reference to section 3AB in section 3, which contains definitions that apply generally throughout the Act.

Items 10 and 11

Items 10 and 11 will insert definitions of ‘State participant’ and ‘Territory participant’ respectively into section 3.  While the NWPP was established primarily for witnesses in Commonwealth matters, section 6 of the Act provides the Commissioner with authority to include witnesses in State or Territory proceedings in the NWPP.  The Commonwealth’s legislative power differs with respect to Commonwealth and Territory participants on the one hand, and State participants on the other.  As a result, some provisions of the Act distinguish between these different classes of participant (for example, the offence provisions at new sections 22 and 22A, inserted by Item 52), and may include additional elements.

State participant will mean a participant included in the NWPP in relation to an offence against a law of a State that has a federal aspect, a law of a State that does not have a federal aspect or a commission of inquiry under a law of a State.

Territory participant will mean a participant in relation to an offence against a law of a Territory or a commission or inquiry under a law of a Territory.

Item 12

Item 12 makes a technical amendment to clarify the scope of the definition of ‘witness’ for the purposes of the Act.  Witness is currently defined in section 3 to include several classes of people at paragraphs (a), (b), (c) and (d).  The scope of paragraph (e) as currently drafted is ambiguous due to a reference to ‘such a person’, which could apply either to a person referred to in paragraph (d) only, or to a person referred to in any of the preceding paragraphs.  Paragraph (e) as amended will clearly extend the definition of witness to include people who, because of their relationship to, or association with, a person referred to in paragraph (a), (b), (c) and (d), may require protection or other assistance under the NWPP.

Item 13

Item 13 will insert definitions of ‘complementary witness protection law’ and ‘State offence that has a federal aspect’ for the purposes of the Act.

The current definition of complementary witness protection law in section 3 of the Act provides that the Minister may declare, by notice published in the Commonwealth of Australia Gazette , that a law of a State or Territory that makes provision for the protection of witnesses is a ‘complementary witness protection law’.  The effect of such a declaration is to allow the Commissioner to arrange or provide protection and other assistance for witnesses under the complementary laws.  For example, it allows the AFP to apply to the court of a State with a declared complementary witness protection law for the issue of State identity documents for a witness’s new identity.

Declarations under section 3 have been made in relation to all States and Territories.  The declarations made under the existing section are not ‘legislative instruments’ for the purposes of the Legislative Instruments Act 2003 .  Under the Legislative Instruments Act, legislative instruments must be registered on the Federal Register of Legislative Instruments (FRLI) in order for them to be valid and enforceable by or against the Commonwealth, or by or against another person or body.  As the declarations made under the Act are not legislative instruments, they are not registered on FRLI.  Instead they appear only in the Gazette.

FRLI is designed to improve public access to legislative instruments and establish mechanisms to ensure that legislative instruments are periodically reviewed and, if they no longer have a continuing purpose, repealed.  To facilitate straightforward public access to declarations made under the Act, this item will insert new section 3AA into the Act.  Section 3AA will allow the Minister to declare that a State or Territory law is a ‘complementary witness protection law’ by legislative instrument.  As a consequence, paragraph 3(b) of the definition of complementary witness protection law will be amended by Item 1 to remove the requirement for such laws to be declared by notice in the Gazette, and instead provide that such laws are those State or Territory laws that are declared under new section 3AA of the Act (inserted by this item).

Item 10 will insert a definition of State participant into section 3 that will include a participant included in the NWPP in relation to an offence against a law of a State that has a federal aspect.  To support that definition, this item will insert new section 3AB, which will provide a definition of ‘State offence that has a federal aspect’ for the purposes of the Act.  State offences with a federal aspect will be defined by reference to offences that would be taken to be such under the Australian Federal Police Act 1979 or the Australian Crime Commission Act 2002 .

Item 14

Section 8 contains provisions relating to the process for including a witness in the NWPP.  Item 8 will amend the definition of participant in section 3 to include a former participant unless the contrary appears.  Item 4 will insert a definition of former participant into section 3 to mean a person who has ceased to be included in the NWPP.  However, in section 8 the only references to a participant concern situations in which a witness who was included in the NWPP when he or she was under 18 years of age and remains in the NWPP until after they turn 18 may be required to sign a new memorandum of understanding.  These references could not logically include former participants.  For this reason, this item will provide that references to participants in section 8 do not include former participants.

Item 15

To be included in the NWPP, a witness must enter into a memorandum of understanding with the Commissioner.  Section 9 sets out conditions to apply to a memorandum of understanding between the Commissioner and a participant.  Item 8 will amend the definition of participant in section 3 to include a former participant unless the contrary appears.  Item 4 will insert a definition of former participant into section 3 to mean a person who has ceased to be included in the NWPP.  However, a former participant would not be required to enter into a memorandum of understanding. For this reason, this item will provide that references to participants in section 9 do not include former participants.

This item will also provide that despite references to participant in section 9 not including former participants, obligations under a memorandum of understanding that continue to apply after a participant has left the NWPP are not affected.

Items 16 - 19

Section 11 requires the Commissioner to maintain a Register of NWPP participants and sets out the details to be included in that Register.

Item 16

Item 16 will amend paragraph 11(3)(b) to clarify that the Commissioner must include in the Register the names for each new identity a participant has been provided under the NWPP.  Though only one identity would be in use at a particular point in time, NWPP participants may be provided with more than one identity in addition to their original identity.  For instance, if a participant’s security under an identity provided under the NWPP is compromised, they may be provided with another new identity.  This amendment is a consequence of Items 2 and 3 which will insert new definitions of current NWPP identity and former NWPP identity into section 3.

Item 17

Subsection 11(3) sets out details the Commissioner is required to include in a Register of NWPP participants.  The new definition of participant in section 3 (inserted by Item 8) will expressly include former participants unless the contrary intention appears.  Former participant will be defined in section 3 (inserted by Item 4) to mean a person who has ceased to be included in the NWPP.  As paragraph 11(3)(e) currently refers to a person ceasing to be a participant, Item 17 makes a technical amendment to that paragraph to accommodate the new definition of participant.  Item 17 makes no substantive change to the information that must be recorded on the Register by the Commissioner under section 11.

Item 18

Subsection 11(5) sets out information the Commissioner is required to keep in conjunction with a Register of NWPP participants.  Included in that list are documents returned by a participant to the Commissioner when a participant’s original identity or a former NWPP is being restored under section 19.  New subsections will be inserted at section 19 by Item 49, requiring an update to a cross-reference at subsection 11(5).  Item 18 will correct and update the existing cross-reference to section 19, which is to subsection 19(2), but should have been to 19(5).  The updated cross-reference will be to subsection 19(6).

Item 19

A definition of former participant will be inserted into section 3 by Item 4 to mean a person who has ceased to be included in the NWPP.  Item 8 will amend the definition of participant in section 3 to include a former participant, unless the contrary intention appears.

New subsection 13(5) (inserted by Item 22) will allow the Commissioner to provide assistance to a former participant or any other person whose relationship with a former participant is such that the Commissioner is satisfied that it is appropriate to take those actions.

New subsection 13(6) (also inserted by Item 22) will provide that if the Commissioner extends assistance or protection to someone other than a former participant under new subsection 13(5), the Act applies to that person as if they were a former participant.  This will mean that unless otherwise specified, references to a former participant will also include such a person.

This item will insert new subsection 11(6) to clarify that in section 11, references to ‘participant’ or ‘former participant’ do not include a person who is a former participant only because of the operation of subsection 13(6).  That is, they do not apply to a person, except for a former participant, to whom the Commissioner has provided assistance under new subsection 13(5).

Items 20 - 22

Section 13 provides that the Commissioner may take actions that he or she considers necessary and reasonable to protect a witness’s safety and welfare while also protecting the safety of the Commissioner, a Deputy Commissioner, AFP employees and special members of the Australian Federal Police. 

Item 20

In the list of actions at subsection 13(2), paragraph 13(2)(b) concerns permitting a person who holds a designated position to use an assumed name in carrying out their duties in relation to the NWPP and carry documentation supporting the assumed name.  ‘Designated person’ is defined at section 3, and includes the Commissioner, a Deputy Commissioner and certain AFP employees and special members of the Australian Federal Police whose duties relate to the NWPP.

Part 1AC of the Crimes Act makes provision for the acquisition and use of assumed identities by officers of certain Commonwealth agencies.  Item 20 will repeal existing paragraph 13(2)(b) and replace it with a new paragraph to replace references to using an assumed name with a reference to acquiring and using assumed identities in accordance with Part 1AC of the Crimes Act.

Item 21

Subsection 13(3) prohibits the Commissioner from obtaining documentation for a witness that represents the witness as having qualifications he or she does not have or as being entitled to benefits to which the witness would not be entitled if he or she were not included in the NWPP. 

Item 21 will amend paragraph 13(3)(b) to extend it to witnesses who have not yet been included in the NWPP.  This amendment will ensure the same prohibition applies to both participants and witnesses being assessed for inclusion in the NWPP.  As the Commissioner may take actions under section 13 to protect a witness undergoing assessment, this amendment brings the application of paragraph 13(3)(b) into line with the rest of that section.

Item 22

The operation of the current definitions in the Act relevant to section 13 precludes assistance from being provided to persons who have left the NWPP.

There can be circumstances, however, where a witness requires further protection or assistance after leaving the NWPP.  For example, a former participant may need to be relocated if he or she is recognised by someone who was aware of his or her original identity.  Under the current provisions of the Act, once participants have left the NWPP, they are unable to obtain assistance without undergoing a formal assessment to rejoin the NWPP.  This delay could endanger former participants.  Item 22 will insert new subsection 13(5) to enable the Commissioner to provide assistance to former participants where it is necessary and reasonable for their protection.  This amendment will also make it easier for former participants to access certain documents relating to a NWPP identity.  For example, if a former participant needs to replace a lost identity document, they would not need to be re-included in the NWPP to do so.

A definition of former participant will be inserted into section 3 by Item 4 to mean a person who has ceased to be included in the NWPP.  Item 8 will amend the definition of participant in section 3 to include a former participant, unless the contrary intention appears.  However, because the protection and assistance under section 13 is available to both current participants and witnesses undergoing assessment for inclusion in the NWPP who are not yet participants, it is not appropriate to rely on the expanded definition of participant in order to extend assistance to former participants.  Accordingly, the definition of participant, as inserted by Item 8, will not apply to section 13.  Instead, the amendments made by this item are necessary to extend the application of section 13 to former participants.

New subsection 13(5) will also allow assistance to be extended to someone whose relationship with a former participant is such that the Commissioner is satisfied that it is appropriate to provide that assistance, as if that person were a witness included in the NWPP.  This could include relatives, friends or other associates of the former participant, and would include people the former participant has met since leaving the program.  For example, if a former participant decides to marry, their spouse may at some stage require protection and assistance as a result of their relationship with the former participant.  This is consistent with the current operation of the Act which, through the definition of witness in section 3, extends assistance and protection to people who, because of their relationship to, or association with, a witness as otherwise described in that definition (eg current participants), may require protection or other assistance under the NWPP.

In the case of both former participants and others to whom new subsection 13(5) applies, the Commissioner may only provide assistance if he or she considers it is necessary and reasonable for the person’s protection and he or she has assessed the suitability of providing the assistance.  This will ensure that such assistance is only provided in appropriate circumstances.

Item 22 will also insert new subsection 13(6), which provides that if the Commissioner extends assistance or protection to someone other than a former participant under new subsection 13(5), the Act applies to that person as if they were a former participant.  This amendment is necessary to ensure that people given assistance or protection under new subsection 13(5) are afforded the same rights and are subject to the same obligations as others who receive assistance under the NWPP.

Item 22 will also insert new subsection 13(7) which will require the Commissioner to give the Immigration Secretary written notice when he or she first takes action under subsection 13(5) in respect of a former participant who was a participant under section 10 or 10A of the Act.  Section 10 allows the Commissioner to include a foreign national in the NWPP at the request of a foreign law enforcement agency.  Section 10A allows the Commissioner to include a person in the NWPP at the request of the International Criminal Court.  Under current section 18, the Commissioner must notify the Immigration Secretary if a decision is made under that section to terminate assistance to a person included in the NWPP under section 10 or 10A.  It is consistent to impose a similar requirement where a decision is made under subsection 13(5) to reinstate some form of assistance to such a person.  A definition of Immigration Secretary will be inserted into section 3 by Item 5.

Items 23 - 24

Items 23 and 24 make technical amendments that are necessary because of the changes that will be made to definitions in section 3 by Items 2, 3 and 7.  These changes will differentiate between a participant’s original identity, current NWPP identity and former NWPP identity.

Item 23 will replace the reference to ‘identity’ in paragraph 14(b)(ii) with a reference to ‘original identity’. 

Item 24 will replace the reference to ‘former identity’ at subsection 15(5) with a reference to ‘original identity’ or a ‘former NWPP identity’.

Items 25 - 30

Section 16 currently provides that a participant given a new identity under the NWPP who would otherwise be required to disclose his or her former identity by or under a law of the Commonwealth is not required to do so if he or she has permission from the Commissioner, in the prescribed form, not to disclose his or her former identity for that particular purpose.

Items 25 to 30 will replace references throughout section 16 to a participant’s former identity with references to a participant’s ‘original identity’ or a ‘former NWPP identity’, and a reference to a participant’s new identity with a reference to a participant’s ‘current NWPP identity’.  These amendments are required because the proposed changes to the definitions in section 3 of the Act made by Items 2, 3 and 7 will differentiate between a participant’s original identity, current NWPP identity and former NWPP identity.

Items 25 to 28 and 30 will clarify that current references to former identity will now apply to the identity the participant had at the time immediately before he or she was first provided with an identity under the NWPP and any identity provided to the participant under the NWPP that the participant is not currently using.

Item 29 will clarify that the current reference to new identity will now apply only to an identity provided to a participant under the NWPP that is being used by the participant at that time.

Item 31

Item 31 will repeal current subsection 16(6), which states that, for the purposes of section 16, a ‘participant’ includes a person who has been given a new identity under the NWPP but is no longer a participant.  Subsection 16(6) will no longer be necessary because the amended definition of participant in section 3 (inserted by Item 8) will encompass a former participant unless the contrary intention appears.  A definition of former participant will be inserted into section 3 by Item 4 to mean a person who has ceased to be included in the NWPP.  References in section 16 to participants will therefore automatically apply to former participants.

Item 32

Item 32 will replace the reference to ‘former identity’ at section 17 with a reference to ‘original identity’ or any ‘former NWPP identity’.  This amendment is required because proposed new definitions in section 3 (inserted by Items 2, 3 and 7) will differentiate between a participant’s original identity, current NWPP identity and former NWPP identity.  This item will clarify that section 17 applies with respect to the participant’s original identity (that which the person had at the time immediately before he or she was first provided with an identity under the NWPP) and any identity provided to the participant under the NWPP that the participant is not currently using.

Items 33 - 44

Section 18 is about decisions related to, and the process for, terminating assistance provided to a person under the NWPP.  Currently, section 18 conflates termination of protection and assistance under the NWPP with termination of a participant’s inclusion in the NWPP.  New subsection 13(5), inserted by Item 22, will provide that the Commissioner may provide assistance to a former participant or any other person whose relationship with a former participant is such that the Commissioner is satisfied that it is appropriate to take those actions.  That amendment requires separate provisions to be in place concerning terminating a participant’s inclusion in the NWPP and terminating assistance provided to a person under subsection 13(5).

Items 33-36 will amend subsections 18(1) and 18(2) so that they apply only to circumstances where the Commissioner must or may terminate a participant’s inclusion in the NWPP.

Item 37 will insert new subsection 18(2A) to apply to circumstances where the Commissioner must or may terminate assistance provided to a person (including a former participant) under new subsection 13(5).  Like subsection 18(1), subsection 18(2A) will provide that assistance must be terminated if a person requests in writing that it be terminated.  It will also list circumstances where assistance may be terminated by the Commissioner, based on the circumstances listed for the similar existing provision at subsection 18(1) that could also apply to people provided with assistance under new subsection 13(5).  These include that the person’s conduct is likely to compromise the integrity of the NWPP and that the situation that gave rise to the need for protection and assistance for the person no longer exists.  As with decisions under subsection 18(1)(b), there will be an obligation for the Deputy Commissioner to take reasonable steps to notify the person to whom assistance is being terminated under new paragraph 18(2A)(b) of the decision.  This requirement will be included in new subsection 18(2B), also inserted by Item 37.

Existing subsections 18(3) to 18(6) set out the process for review of decisions made under paragraph 18(1)(b), when such decisions take effect and a requirement for the Commissioner to notify the Immigration Secretary of a decision under that paragraph in relation to a participant included under section 10 or 10A of the Act.  Items 38-44 will amend these subsections so that they apply in the same way to decisions under new paragraph 18(2A)(b).  These amendments include amending references to ‘participant’ with references to ‘person’, as references in section 18 to a ‘participant’ will not include a former participant.  See Item 45 below.

Item 45

Section 18 as amended by Items 33 to 44 will outline when the Commissioner must or may terminate a participant’s inclusion in the NWPP or assistance provided to a person under new subsection 13(5), and the process to be followed in order to take such action.  Participant will be defined at section 3, by Item 8, to include a former participant unless the contrary appears.  A definition of former participant will be inserted into section 3 by Item 4 to mean a person who has ceased to be included in the NWPP.    However, in section 18 the only references to a participant relate to the termination of a participant’s inclusion in the NWPP.  These references could not logically apply to former participants.  For this reason, Item 45 will provide that references to participants in section 8 do not include former participants.

Item 46

Section 19 allows a Deputy Commissioner to restore a person’s previous identity, and outlines the process to be followed in order to take such action.  Subsection 19(1) currently allows the Commissioner to restore a former identity of a former participant, but not a former identity of a (current) participant.  There are instances where it may be appropriate to restore a former identity of a witness who is still included in the NWPP.  Item 46 will repeal existing subsection 19(1) and replace it with a new subsection to allow a Deputy Commissioner the discretion to restore a previous identity in such circumstances without first having to terminate the participant’s inclusion in the NWPP.  As the new definition of participant at section 3 (inserted by Item 8) will expressly include former participants unless the contrary intention appears, the new subsection will cover both current and former participants.  A definition of former participant will be inserted into section 3 by Item 4 to mean a person who has ceased to be included in the NWPP.

Proposed changes to the definitions in section 3 made by Items 2, 3 and 5 will differentiate between a participant’s original identity, current NWPP identity and former NWPP identity.  New subsection 19(1) will be worded consistently with those amendments.

This item will ensure that where it is proposed to terminate a participant’s inclusion in the NWPP, the participant’s original or former NWPP identity may be restored prior to assistance under the NWPP being terminated.  It will also provide flexibility for a Deputy Commissioner to restore a participant’s original or former NWPP identity where it not proposed to terminate a participant’s inclusion if circumstances arise where it is appropriate to do so.

While in most cases a Deputy Commissioner acting under subsection 19(1) would be restoring a participant’s original identity (that which the person had at the time immediately before he or she was first provided with an identity under the NWPP), the new subsection will provide flexibility by allowing restoration of either a participant’s original identity or any former NWPP identity of the participant.  Former NWPP identity will be defined at section 3 by Item 3 to mean any identity provided to the participant under the NWPP that the participant is not currently using.

Item 47

Item 47 will remove the reference to ‘former’ in subsection 19(2).  This is a technical amendment required because:

·          Item 46 will repeal and replace subsection 19(1) so that section 19 applies to current as well as former participants in the NWPP, and

·          the proposed new section 3 definition of participant (inserted by Item 8) expressly includes former participants unless the contrary intention appears.

Item 48

Item 48 will replace references to a former participant with references to a participant and a reference to a participant’s ‘former identity’ with a reference to the ‘original identity’ or any ‘former NWPP identity’ of the participant in subsection 19(3).  This is a technical amendment required for the following reasons.

·          Item 46 will repeal and replace subsection 19(1) so that section 19 applies to current as well as former participants in the NWPP.

·          The proposed new section 3 definition of participant (inserted by Item 8) expressly includes former participants unless the contrary intention appears.

·          Proposed changes to the definitions in section 3 made by Items 2, 3 and 7 will differentiate between a participant’s original identity , current NWPP identity and former NWPP identity .  This item will clarify that the current reference to former identity at subsection 19(3) will now encompass both the participant’s original identity (that which the person had at the time immediately before he or she was first provided with an identity under the NWPP) and any identity provided to the participant under the NWPP that the participant is not currently using.

Item 49

Proposed changes to the definitions in section 3 made by Items 2, 3 and 7 will differentiate between a participant’s original identity , current NWPP identity and former NWPP identity .  Items 46 to 48 will amend section 19 so that it will apply to current as well as former participants and that in each case, either a person’s original identity or a former NWPP identity may be restored.  The new subsections to be inserted by Item 49 are worded consistently with those amendments.

Section 19 as amended by Items 46 to 48 will allow a Deputy Commissioner to restore a person’s original identity or a former NWPP identity and outlines the process to be followed where such action is to be taken.  Under existing subsection 19(5) it is an offence to refuse or fail to return documents in response to a notice issued under that subsection as a result of action taken under section 19.  Existing subsection 19(6) provides that the offence does not apply if the person has a reasonable excuse.

Item 49 will repeal existing subsections 19(5) and 19(6) and insert three new subsections that will set out separately:

·          that if the Commissioner or a Deputy Commissioner takes action under section 19, he or she may give a notice to the participant concerned (new subsection 19(5))

·          that the notice must be in writing, and what the notice must require of the participant (new subsection 19(6)), and

·          the offence that applies if a person is given such a notice and refuses or fails to comply with the notice (new subsection 19(7)).

A notice under new subsection 19(6) must require the participant to return to the Commissioner all documents provided to him or her that relate to their current NWPP identity or any former NWPP identity that is not being restored, within 10 days of the notice being given.  The purposes of the notice are to ensure that a person does not retain documentation relating to an identity they will no longer be using and prevent illegitimate use of such documents.

Under new subsection 19(7) it will be an offence if a person is given a notice requiring them to return documents to the Commissioner under subsection 19(6) and the person refuses or fails to comply with the notice.  The offence will be punishable by a maximum penalty of ten penalty units.  This is the same penalty that applies to the offence at existing subsection 19(5).

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 he or she had been given a notice under subsection 19(6), and

·          intentionally refused or failed to comply with the notice.

Section 5.4 of the Criminal Code provides that a person is reckless with respect to a circumstance if he or she is aware of a substantial risk that the circumstance exists or will exist and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

The defence of reasonable excuse that is available for the current offence will not be available for the revised offence at new subsection 19(7).  This defence is open-ended and creates uncertainty for the prosecution as to what defence might be raised.  Exceptions to criminal responsibility thought to be caught by the defence of reasonable excuse are generally covered by the general defences in Part 2.3 of the Criminal Code, which include mistake or ignorance of fact and sudden or extraordinary emergency.  The offence at new subsection 19(7) will rely on the general defences available under the Criminal Code.

Item 50

Section 20 applies if a participant has been provided with a new identity or has been relocated under the NWPP, and is later under investigation for, or has been arrested for or charged with an offence that has a maximum penalty of more than one year.  If an approved authority , as defined at section 3 of the Act, or a member or special member of the Australian Federal Police, notifies the Commissioner of the investigation, arrest or charge, the Commissioner may take certain actions.  These actions include, at current paragraph 20(c), releasing the new identity or new location of the participant to the approved authority or member.

Item 50 will amend paragraph 20(c) to refer instead to the participant’s current NWPP identity or current location.  Current NWPP identity will be defined at section 3 (by Item 2) to mean an identity that a participant in the NWPP was provided under the NWPP and that the participant is actually using at that time.  This item will clarify that section 20 refers to the identity currently being used by a participant or the location at which the participant is located at the time.

Item 51

Section 21 protects officers involved in the operation of the NWPP from liability in relation to any action, suit or proceedings in relation to something done in good faith in the exercise or purported exercise of a power conferred by the Act.  Item 51 will amend section 21 to clarify that this protection extends also to the performance or purported performance of a function conferred or a duty imposed by the Act.  This will ensure that officers involved in the operation of the NWPP are provided adequate protection, as not all actions taken under the Act may be construed to be exercises of power.

Item 52

Item 52 will repeal the existing non-disclosure offences at section 22 and replace them with three separate sets of offences, which will apply to disclosure of information about:

·          Commonwealth or Territory participants, and people undergoing assessment for inclusion in the NWPP as such participants (new section 22)

·          State participants, and people undergoing assessment for inclusion in the NWPP as such participants (new section 22A), and

·          the NWPP (new section 22B).

These offences, and the penalties attached, are designed to protect the safety and welfare of NWPP participants, witnesses that are undergoing assessment for inclusion in the NWPP as participants and officers involved in administering the NWPP, as well as the effective operation of the NWPP. 

Section 6 provides the Commissioner with authority to include witnesses in State or Territory proceedings in the NWPP.  However, the offences currently at section 22 apply only to Commonwealth participants.  One of the purposes of Item 52 is to extend those offences to apply also to State and Territory participants.  This will ensure that information about the original identity or a former NWPP identity of a participant, or information that could reveal that the person is a participant, is appropriately protected.

Offences relating to disclosure of information about participants or people undergoing assessment for inclusion as participants will be separated into offences relating to Commonwealth or Territory participants and offences relating to State participants.  This is because the Commonwealth’s legislative power with respect to these classes of participant differs.

Item 52 will also extend the scope of the non-disclosure offences to include disclosures relating to people undergoing assessment for inclusion in the NWPP.  This provides an important protection for witnesses who may be in a particularly vulnerable position as they have been identified as potentially being in danger but have not yet been included in the NWPP.

Section 22 Offences relating to Commonwealth or Territory participants

New section 22 will create two offences relating to disclosures about Commonwealth or Territory participants and two equivalent offences relating to disclosure of information about people undergoing assessment for inclusion in the NWPP as such participants.

Under new subsection 22(1) it will be an offence for a person to disclose information about a Commonwealth or Territory participant where (if the participant has a current NWPP identity) the information is about the original identity or a former NWPP identity of the participant and/or (in any case) could reveal that the individual is a participant.  Information , in relation to the identity of a person, will be defined at section 3 (by Item 6) and will include, for example, information in relation to a person’s appearance and address or location.  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 paragraphs (a), (b) and (d) of the offence.  To establish this offence, the prosecution will need to prove beyond reasonable doubt that:

·          the person intentionally disclosed information about an individual

·          the person was reckless as to the circumstance that the individual was a participant (at the time the information was disclosed)

·          the individual was a Commonwealth participant or a Territory participant (at the time the information was disclosed), and

·          the person was reckless as to the circumstance that the participant had a current NWPP identity at the time the information was disclosed, and the information was about the original identity or a former NWPP identity of the individual, and/or

·          the person was reckless as to the result that there was a risk that the disclosure of the information would reveal that the individual was a participant.

Under new subsection 22(2) it will be an offence for a person to disclose information about an individual undergoing assessment for inclusion in the NWPP as a Commonwealth or Territory participant where the disclosure may reveal that the individual is undergoing such assessment.  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 paragraphs (a), (b) and (d) of the offence.  To establish this offence, the prosecution will need to prove beyond reasonable doubt that:

·          the person intentionally disclosed information about an individual

·          the person was reckless as to the circumstance that the individual was undergoing assessment for inclusion in the NWPP at the time the information was disclosed

·          if the individual were included in the NWPP following that assessment, he or she would be a Commonwealth participant or a Territory participant, and

·          the person was reckless as to the result that there was a risk that the disclosure of the information would reveal that the individual was undergoing such assessment.

Under subsection 22(3) it will be an offence for a person to disclose information about a Commonwealth or Territory participant where (if the participant has a current NWPP identity) the information is about the original identity or a former NWPP identity of the participant and/or (in any case) could reveal that the individual is a participant, and where there is a risk that the disclosure will compromise the security of the individual.  This offence will be punishable by a maximum penalty of ten years imprisonment.  This penalty is appropriate to ensure that there is a significant deterrent for disclosing information where the person is aware that there is a risk that the disclosure will compromise the security of a NWPP participant.  This penalty is consistent with the penalty for an offence against current subsection 22(1) of the Act, which will be repealed by Item 52.

Section 5.6 of the Criminal Code will apply automatic fault elements to the physical elements of paragraphs (a), (b), (d) and (e) of the offence.  To establish this offence, the prosecution will need to prove beyond reasonable doubt that:

·          the person intentionally disclosed information about an individual

·          the person was reckless as to the circumstance that the individual was a participant (at the time the information was disclosed)

·          the individual was a Commonwealth participant or a Territory participant (at the time the information was disclosed), and

·          the person was reckless as to the circumstance that the participant had a current NWPP identity at the time the information was disclosed, and the information was about the original identity or a former NWPP identity of the individual, and/or

·          the person was reckless as to the result that there was a risk that the disclosure of the information would reveal that the individual was a participant, and

·          the person was reckless as to whether there was a risk that his or her disclosure of the information would compromise the security of the individual.

Under subsection 22(4) it will be an offence for a person to disclose information about an individual undergoing assessment for inclusion in the NWPP as a Commonwealth or Territory participant where the disclosure may reveal that the individual is undergoing such assessment, and where there is a risk that the disclosure will compromise the security of the individual undergoing assessment.  This offence will be punishable by a maximum penalty of ten years imprisonment.  This penalty is appropriate to ensure that there is a significant deterrent for disclosing information where the person is aware that there is a risk that the disclosure will compromise the security of a person undergoing assessment to be included in the NWPP as a participant.  This penalty is consistent with that imposed for the equivalent offence of disclosing information that may compromise the security of a Commonwealth or Territory participant under subsection 22(3).

Section 5.6 of the Criminal Code will apply automatic fault elements to the physical elements of paragraphs (a), (b), (d) and (e) of the offence.  To establish this offence, the prosecution will need to prove beyond reasonable doubt that:

·          the person intentionally disclosed information about an individual

·          the person was reckless as to the circumstance that the individual was undergoing assessment for inclusion in the NWPP at the time the information was disclosed

·          if the individual were included in the NWPP following that assessment, he or she would be a Commonwealth participant or a Territory participant

·          the person was reckless as to the result that there was a risk that the disclosure of the information would reveal that the individual was undergoing such assessment, and

·          the person was reckless as to the result that there was a risk that his or her disclosure of the information would compromise the security of the individual.

Elements common to offences in section 22

Section 5.4 of the Criminal Code provides that a person is reckless with respect to a circumstance if he or she is aware of a substantial risk that the circumstance exists or will exist and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.  Section 5.4 of the Criminal Code provides that a person is reckless with respect to a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

Subsection 22(5) will provide that disclosure of information that would otherwise be an offence under subsections 22(1), 22(2), 22(3) or 22(4) is not an offence if the disclosure has been:

·          authorised by the Commissioner

·          made for the purpose of making a complaint or providing information to the Ombudsman

·          made to the Australian Commission for Law Enforcement Integrity for the purpose of referring to the Integrity Commissioner an allegation or information that raises a corruption issue

·          made for the purpose of giving information that raises an AFP conduct or practices issue, or investigating or resolving such an issue.

This safeguard will be included to ensure that a person is not unfairly penalised for making a disclosure in such circumstances.

A defendant will bear an evidential burden in relation to subsection 22(5).  Section 13.3 of the Criminal Code provides that in the case of a standard ‘evidential burden’ defence, the defendant bears the burden of 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 (section 13.1).  An evidential burden defence has been used because a defendant would be better placed to point to evidence that the disclosure had been made in one of the circumstances listed in this subsection.

The use of the evidential burden defence in subsection 22(5) is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers. The Guide refers to the principle that it is legitimate to cast a matter as an evidential burden defence where a matter is peculiarly within the defendant’s knowledge and is not available to the prosecution.

Subsection 22(7) will clarify that a person may be convicted of an offence against section 22 because of a risk that a disclosure will have a particular effect, even if the disclosure does not actually have that effect.  For example, with respect to the offences at subsections 22(3) and 22(4), it will not be necessary for the prosecution to prove that the security of an individual was in fact compromised.  However, the prosecution will need to adduce evidence that there was a risk that the disclosure could have compromised the individual.

The prosecution will not be required to prove that the person knew that the individual was a Commonwealth or Territory participant or was undergoing assessment for inclusion in the NWPP as such a participant.  Absolute liability will be applied to paragraphs 1(c), 2(c), 3(c) and 4(c).  The effect of applying absolute liability to these elements will be that no fault element needs to proved and the defence of mistake of fact will not be available.  Absolute liability is appropriate and required for these elements of the offences because the circumstance that the individual is a Commonwealth or Territory participant, or is undergoing assessment for inclusion in the NWPP as such a participant, is a jurisdictional element. 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 and those that do not. This is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers.

Section 22A Offences relating to State participants

Section 22A will create two offences relating to disclosures about State participants and two equivalent offences relating to disclosure of information about people undergoing assessment for inclusion in the NWPP as such participants.

Under new subsection 22A(1) it will be an offence for a person to disclose information about a State participant where (if the participant has a current NWPP identity) the information is about the original identity or a former NWPP identity of the participant and/or (in any case) could reveal that the individual is a participant.  If the person disclosing the information is someone other than a Commonwealth officer, Commonwealth participant or Territory participant, there must also be a risk that disclosure of the information will adversely affect the NWPP for the offence to apply.  This additional element has been included to ensure the offence has a sufficient link to Commonwealth legislative power.  Information , in relation to the identity of a person, will be defined at section 3 (by Item 6) and will include, for example, information in relation to a person’s appearance and address or location.  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 paragraphs (a), (b), (c), (e) and (f) 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 he or she is a Commonwealth officer, a Commonwealth participant, a State participant, a Territory participant or any other person

·          the person intentionally disclosed information about an individual

·          the person was reckless as to the circumstance that the individual was a participant (at the time the information was disclosed)

·          the individual was a State participant (at the time the information was disclosed), and

·          the person was reckless as to the circumstance that the participant had a current NWPP identity at the time the information was disclosed, and the information was about the original identity or a former NWPP identity of the individual, and/or

·          the person was reckless as to the result that there was a risk that the disclosure of the information would reveal that the individual was a participant.

If the person disclosing the information is someone other than a Commonwealth officer, Commonwealth participant or Territory participant, the prosecution will also need to prove beyond reasonable doubt that the person was reckless as to the result that there was a risk that the disclosure of the information would adversely affect the integrity of the NWPP.

Under new subsection 22A(2) it will be an offence for a person to disclose information about an individual undergoing assessment for inclusion in the NWPP as a State participant where the disclosure may reveal that the individual is undergoing such assessment.  If the person disclosing the information is someone other than a Commonwealth officer, Commonwealth participant or Territory participant, there must also be a risk that disclosure of the information will adversely affect the NWPP for the offence to apply.  This additional element has been included to ensure the offence has a sufficient link to Commonwealth legislative power.  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 paragraphs (a), (b), (c), (e) and (f) 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 he or she is a Commonwealth officer, a Commonwealth participant, a State participant, a Territory participant or any other person

·          the person intentionally disclosed information about an individual

·          the person was reckless as to the circumstance that the individual was undergoing assessment for inclusion in the NWPP at the time the information was disclosed

·          if the individual were included in the NWPP following that assessment, he or she would be a State participant, and

·          the person was reckless as to the result that there was a risk that the disclosure of the information would reveal that the individual was undergoing such assessment.

If the person disclosing the information is someone other than a Commonwealth officer, Commonwealth participant or Territory participant, the prosecution will also need to prove beyond reasonable doubt that the person was reckless as to the result that there was a risk that the disclosure of the information would adversely affect the integrity of the NWPP.

Under new subsection 22A(3) it will be an offence for a person to disclose information about a State participant where (if the participant has a current NWPP identity) the information is about the original identity or a former NWPP identity of the participant and/or (in any case) could reveal that the individual is a participant, and where there is a risk that the disclosure will compromise the security of the individual.  If the person disclosing the information is someone other than a Commonwealth officer, Commonwealth participant or Territory participant, there must also be a risk that disclosure of the information will adversely affect the NWPP for the offence to apply.  This additional element has been included to ensure the offence has a sufficient link to Commonwealth legislative power.  This offence will be punishable by a maximum penalty of ten years imprisonment.  This penalty is appropriate to ensure that there is a significant deterrent for disclosing information where the person is aware that there is a risk that the disclosure will compromise the security of a NWPP participant.  This penalty is consistent with the penalty for an offence against current subsection 22(1) of the Act, which will be repealed by Item 52.

Section 5.6 of the Criminal Code will apply automatic fault elements to the physical elements of paragraphs (a), (b), (c), (e), (f) and (g) 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 he or she is a Commonwealth officer, a Commonwealth participant, a State participant, a Territory participant or any other person

·          the person intentionally disclosed information about an individual

·          the person was reckless as to the circumstance that the individual was a participant (at the time the information was disclosed)

·          the individual was a State participant (at the time the information was disclosed), and

·          the person was reckless as to the circumstance that the participant had a current NWPP identity at the time the information was disclosed, and the information was about the original identity or a former NWPP identity of the individual, and/or

·          the person was reckless as to the result that there was a risk that the disclosure of the information would reveal that the individual was a participant, and

·          the person was reckless as to the result that there was a risk that his or her disclosure of the information would compromise the security of the individual.

If the person disclosing the information is someone other than a Commonwealth officer, Commonwealth participant or Territory participant, the prosecution will also need to prove beyond reasonable doubt that the person was reckless as to the result that there was a risk that the disclosure of the information would adversely affect the integrity of the NWPP.

Under new subsection 22A(4) it will be an offence for a person to disclose information about an individual undergoing assessment for inclusion in the NWPP as a State participant where the disclosure may reveal that the individual is undergoing such assessment, and where there is a risk that the disclosure will compromise the security of the individual undergoing assessment.  If the person disclosing the information is someone other than a Commonwealth officer, Commonwealth participant or Territory participant, there must also be a risk that disclosure of the information will adversely affect the NWPP for the offence to apply.  This additional element has been included to ensure the offence has a sufficient link to Commonwealth legislative power.  This offence will be punishable by a maximum penalty of ten years imprisonment.  This penalty is appropriate to ensure that there is a significant deterrent for disclosing information where the person is aware that there is a risk that the disclosure will compromise the security of a NWPP participant.  This penalty is consistent with the penalty for an offence against current subsection 22(1) of the Act, which will be repealed by Item 52.

Section 5.6 of the Criminal Code will apply automatic fault elements to the physical elements of paragraphs (a), (b), (c), (e), (f) and (g) 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 he or she is a Commonwealth officer, a Commonwealth participant, a State participant, a Territory participant or any other person

·          the person intentionally disclosed information about an individual

·          the person was reckless as to the circumstance that the individual was undergoing assessment for inclusion in the NWPP at the time the information was disclosed

·          if the individual were included in the NWPP following that assessment, he or she would be a State participant

·          the person was reckless as to the result that there was a risk that the disclosure of the information would reveal that the individual was undergoing such assessment, and

·          the person was reckless as to the result that there was a risk that his or her disclosure of the information would compromise the security of the individual.

If the person disclosing the information is someone other than a Commonwealth officer, Commonwealth participant or Territory participant, the prosecution will also need to prove beyond reasonable doubt that the person was reckless as to the result that there was a risk that the disclosure of the information would adversely affect the integrity of the NWPP.

Elements common to offences in section 22A

Section 5.4 of the Criminal Code provides that a person is reckless with respect to a circumstance if he or she is aware of a substantial risk that the circumstance exists or will exist and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.  Section 5.4 of the Criminal Code provides that a person is reckless with respect to a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

Subsection 22A(5) will provide that disclosure of information that would otherwise be an offence under subsections 22A(1), 22A(2), 22A(3) or 22A(4) is not an offence if the disclosure has been:

·          authorised by the Commissioner

·          made for the purpose of making a complaint or providing information to the Ombudsman

·          made to the Australian Commission for Law Enforcement Integrity for the purpose of referring to the Integrity Commissioner an allegation or information that raises a corruption issue

·          made for the purpose of giving information that raises an AFP conduct or practices issue, or investigating or resolving such an issue.

This safeguard will be included to ensure that a person is not unfairly penalised for making a disclosure in such circumstances.

A defendant will bear an evidential burden in relation to subsection 22A(5).  Section 13.3 of the Criminal Code provides that in the case of a standard ‘evidential burden’ defence, the defendant bears the burden of 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 (section 13.1).  An evidential burden defence has been used because a defendant would be better placed to point to evidence that the disclosure had been made in one of the circumstances listed in this subsection.

The use of the evidential burden defence in subsection 22A(5) is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers. The Guide refers to the principle that it is legitimate to cast a matter as an evidential burden defence where a matter is peculiarly within the defendant’s knowledge and is not available to the prosecution.

Subsection 22A(7) will clarify that a person may be convicted of an offence against section 22A because of a risk that a disclosure will have a particular effect, even if the disclosure does not actually have that effect.  For example, with respect to the offences at subsections 22A(3) and 22A(4), it will not be necessary for the prosecution to prove that the security of an individual was in fact compromised.  However, the prosecution will need to adduce evidence that there was a risk that the disclosure could have compromised the individual.

The prosecution will not be required to prove that the person knew that the individual was a State participant or was undergoing assessment for inclusion in the NWPP as such a participant.  Absolute liability will be applied to paragraphs 1(d), 2(d), 3(d) and 4(d).  The effect of applying absolute liability to these elements will be that no fault element needs to proved and the defence of mistake of fact will not be available.  Absolute liability is appropriate and required for these elements of the offences because the circumstance that the individual is a State participant, or is undergoing assessment for inclusion in the NWPP as such a participant, is a jurisdictional element. 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 and those that do not. This is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers.

Section 22B Offences relating to disclosure of information about the NWPP

Section 22B will replace the offence currently at subsection 22(2) concerning disclosure of information about the NWPP with two separate offences.  The first offence will apply to NWPP participants and those who are undergoing or have undergone assessment for inclusion in the NWPP as participants.  The second offence will apply to all other persons.

The offence currently at subsection 22(2) applies to current and former Commonwealth participants and those who have undergone assessment for inclusion as such participants.  Section 22B(1) will extend the application of that offence to State and Territory participants (including former participants, because of the revised definition of participant inserted by Item 8).  This will ensure that obligations imposed on Commonwealth participants are likewise imposed on State and Territory participants.  It will also extend the application of the offence to people undergoing assessment for inclusion in the NWPP as a Commonwealth, State or Territory participant.  This amendment recognises that a person who is not a participant, but who is undergoing assessment for inclusion in the NWPP, could during that process become aware of sensitive information about the operation of the NWPP.

Under subsection 22B(1), it will be an offence for a NWPP participant, or someone who is undergoing or has undergone assessment for inclusion in the NWPP as a participant, to disclose that fact, or other information about the NWPP.  Such people may have knowledge of the NWPP that, if disclosed, could adversely affect the integrity of the NWPP and endanger participants and others involved in the NWPP through their work.  This offence will be punishable by a maximum penalty of five years imprisonment.  This penalty is consistent with the penalty for an offence against current subsection 22(2) of the Act, which will be repealed by Item 52.

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 he or she is a Commonwealth participant, a Territory participant or a State participant, or

·          was reckless as to the circumstance that he or she was undergoing or had undergone assessment for inclusion in the NWPP as a Commonwealth participant, a Territory participant or a State participant, and

·          intentionally disclosed any of the information set out at subparagraphs 22B(1)(b)(i), (ii), (iii), (iv) or (v).

Section 5.4 of the Criminal Code provides that a person is reckless with respect to a circumstance if he or she is aware of a substantial risk that the circumstance exists or will exist and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

Subsection 22B(2) will extend the application of the offence currently at subsection 22(2) to people who are not participants and are not undergoing, and have not undergone, assessment for inclusion in the NWPP as a participant.  This amendment recognises that there could be instances of people not directly involved in the NWPP nevertheless finding out information about the NWPP that, if disclosed, could adversely affect the integrity of the NWPP and endanger participants and others involved in the NWPP through their work.

Under subsection 22B(2), it will be an offence for someone who is not a participant and is not undergoing and has not undergone assessment for inclusion in the NWPP as a participant to disclose certain information, where there is a risk that the disclosure will adversely affect the integrity of the NWPP and/or compromise the security of the Commissioner, a Deputy Commissioner or an AFP employee or special member of the AFP who is, or has been, involved in the NWPP.  This offence will be punishable by a maximum penalty of five years imprisonment.  This penalty is consistent with the penalty for an offence against current subsection 22(2) of the Act, which will be repealed by Item 52, and the offence at new subsection 22B(1).

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:

·          intentionally disclosed information, and

·          was reckless as to the circumstance that the information was about the way in which the NWPP operates, and/or

·          was reckless as to the circumstance that the information was about the Commissioner, a Deputy Commissioner or an AFP employee or special member of the AFP who was, or had been, involved in the NWPP, and

·          was reckless as to the result that there was a risk that his or her disclosure of the information would adversely affect the integrity of the NWPP, and/or

·          was reckless as to the result that there was a risk that his or her disclosure of the information would compromise the security of the Commissioner, a Deputy Commissioner or an AFP employee or special member of the AFP who was, or had been, involved in the NWPP.

Section 5.4 of the Criminal Code provides that a person is reckless with respect to a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

Subsection 22B(4) will clarify that a person may be convicted of an offence against subsection 22B(2) because of a risk that a disclosure will have a particular effect, even if the disclosure does not actually have that effect.  For example, in relation to 22B(2)(c)(i), it will not be necessary for the prosecution to prove that the integrity of the NWPP was in fact adversely affected.  However, the prosecution will need to adduce evidence that there was a risk that the disclosure could have adversely affected the integrity of the NWPP.

Subsection 22B(3) will provide that disclosure of information that would otherwise be an offence under subsections 22B(1) or 22B(2) is not an offence if the disclosure has been:

·          authorised by the Commissioner

·          made for the purpose of making a complaint or providing information to the Ombudsman

·          made to the Australian Commission for Law Enforcement Integrity for the purpose of referring to the Integrity Commissioner an allegation or information that raises a corruption issue

·          made for the purpose of giving information that raises an AFP conduct or practices issue, or investigating or resolving such an issue.

This safeguard will be included to ensure that a person is not unfairly penalised for making a disclosure in such circumstances.

A defendant will bear an evidential burden in relation to subsection 22B(3).  Section 13.3 of the Criminal Code provides that in the case of a standard ‘evidential burden’ defence, the defendant bears the burden of 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 (section 13.1).  An evidential burden defence has been used because a defendant would be better placed to point to evidence that the disclosure had been made in one of the circumstances listed in this subsection.

The use of the evidential burden defence in subsection 22B(3) is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers. The Guide refers to the principle that it is legitimate to cast a matter as an evidential burden defence where a matter is peculiarly within the defendant’s knowledge and is not available to the prosecution.

Section 22C Disclosures to courts, etc

Subsection 22C(1) will clarify that the non-disclosure offences at sections 22, 22A and 22B (as inserted by this Item) apply to disclosure of information to a court, tribunal, a Royal Commission of the Commonwealth, a State or a Territory or any other commission of inquiry.  Subsection 22C(2) provides that the application of subsection 22C(1) does not affect the operation of subsection 26(3).

Section 26 provides that the Commissioner, a Deputy Commissioner, AFP employees, special members of the Australian Federal Police, the Ombudsman and members of the Ombudsman’s staff are not generally to be required to disclose certain information in a court or before a Royal Commission of the Commonwealth, a State or a Territory or any other commission of inquiry.  Subsection 26(3) allows these people to disclose the relevant information if it is essential to the determination of legal proceedings that the judge or magistrate be advised of a NWPP participant’s location and circumstances.  The purpose of subsection 22C(2) is to ensure that it is clear that a person who discloses information in accordance with subsection 26(3) does not commit an offence under section 22, 22A or 22B.

Items 53 - 55

Section 25 allows the Commissioner to delegate, by writing, some of his or her powers under the Act to a person who holds a designated position.  ‘Designated person’ is defined at section 3 and includes the Commissioner, a Deputy Commissioner and certain AFP employees and special members of the Australian Federal Police whose duties relate to the NWPP.

Item 53

Item 55 will insert new subsection 25(4) to limit the delegation of the Commissioner’s powers under new subsections 13(5) and 13(7).  Item 53 will insert a cross-reference to that subsection at subsection 25(1).

Item 54

Subsection 25(3) provides that certain powers of the Commissioner under the Act may only be delegated to a Deputy Commissioner.  This ensures that there is an appropriate level of accountability for important powers such as deciding whether to include a witness in the NWPP.  This subsection currently applies to a Commissioner’s powers under a number of provisions, including section 27, which concerns actions the Commissioner may take if:

·          a participant is to be a witness in a criminal proceeding under his or her current NWPP identity, and

·          the participant has a criminal record under his or her original identity or any former NWPP identity.

Item 66 will insert new section 27A, which will be a similar provision relating to a participant being involved in civil proceedings.  Item 54 will provide that the Commissioner’s powers under section 27A may only be delegated to a Deputy Commissioner, consistent with the limitation on delegation of powers under section 27.

Item 55

Item 22 will insert new subsection 13(5), which will enable the Commissioner to provide assistance to a former participant or any other person whose relationship with a former participant is such that the Commissioner is satisfied that it is appropriate to take those actions, as if that person were a witness included in the NWPP.  Item 22 will also insert new subsection 13(7), which will require the Commissioner to give the Immigration Secretary written notice when he or she first takes action under subsection 13(5) in respect of a former participant who was a participant under section 10 or 10A of the Act.

Item 55 will insert new subsection 25(4) at section 25 to limit the delegation of a Commissioner’s powers under new subsections 13(5) and 13(7) to a Deputy Commissioner, Assistant Commissioner or a person occupying an equivalent or higher rank in the Australian Federal Police.  Decisions of the Commissioner to include a witness in the NWPP may only be delegated to a Deputy Commissioner.  Protection and assistance provided under new subsection 13(5) will need to be provided quickly to avoid endangering the relevant person.  It is appropriate in that context to allow decisions under that subsection to be delegated to an Assistant Commissioner or a person occupying an equivalent or higher rank in the Australian Federal Police to avoid delays.

Items 56 - 58

Subsection 26 (1) provides that except in certain circumstances, the Commissioner, a Deputy Commissioner, an AFP employee or a special member of the Australian Federal Police is not to be required to disclose particular information relating to the NWPP in certain proceedings.

Item 56

Item 56 will amend paragraph 26(1)(a) to clarify that subsection 26(1) applies to State and Territory Royal Commissions as well as Commonwealth Royal Commissions, and to refer to ‘any other commission of inquiry’ instead of ‘an approved authority’.  This amendment will ensure that the paragraph is consistent with other references to commissions of inquiry in the Act.  It also removes the potential for confusion arising from the current use of the term ‘approved authority’, which is defined at section 3 to have a different meaning to that intended in this section.

Item 57

Item 57 will clarify that paragraphs 26(1)(a) and 26(1)(b) apply to documents, matters and things that the Commissioner, a Deputy Commissioner, an AFP employee or a special member of the Australian Federal Police has come across in the exercise of powers under the Act as well as in the course of, or because of, the performance of functions or duties under the Act.  This amendment ensures that it is clear that such persons are not to be required to disclose such information in certain proceedings, unless subsection 26(3) applies or it is necessary to do so for the purposes of the Act.  Subsection 26(3) allows these people to disclose the relevant information if it is essential to the determination of legal proceedings that the judge or magistrate be advised of a NWPP participant’s location and circumstances.

Item 58

Item 58 will insert a new provision into subsection 26(1) to ensure the protection of the identity of AFP employees and special members of the Australian Federal Police who administer or are involved in the operation of the NWPP.  Protecting the identity of those involved in administering the NWPP is necessary to ensure the protection of NWPP participants.  For example, if a person knows the identity of an AFP employee involved in the operation of the NWPP and sees that employee interacting regularly with a witness, it could be revealed that the witness is a NWPP participant.

Subparagraph 26(1)(c)(i) will provide that the Commissioner, a Deputy Commissioner, an AFP employee or a special member of the Australian Federal Police is not generally to be required to provide information about the identity of, or information that would reveal the identity of, an AFP employee or a special member of the Australian Federal Police who is involved in the operation of the NWPP in certain proceedings, unless subsection 26(3) applies or it is necessary to do so for the purposes of the Act.  Subparagraph 26(1)(c)(ii) will provide that the restriction will generally apply if the person has the information as a result of the performance of functions or duties or the exercise of powers under the Act.  Subsection 26(3) allows these people to disclose the relevant information if it is essential to the determination of legal proceedings that the judge or magistrate be advised of a NWPP participant’s location and circumstances.

Items 59 - 60

Subsection 26 (2) provides that except in certain circumstances, the Commonwealth Ombudsman or a member of staff of the Commonwealth Ombudsman is not to be required to disclose particular information relating to the NWPP in certain proceedings.

Item 59

Item 59 will amend paragraph 26(2)(a) to clarify that subsection 26(2) applies to State and Territory Royal Commissions as well as Commonwealth Royal Commissions, and to refer to ‘any other commission of inquiry’ instead of ‘an approved authority’.  This amendment will ensure that the paragraph is consistent with other references to commissions of inquiry in the Act.  It also removes the potential for confusion arising from the current use of the term ‘approved authority’, which is defined at section 3 of the Act to have a different meaning to that intended in this section.

Item 60

Item 60 will insert a new provision into subsection 26(2) to ensure the protection of the identity of AFP employees and special members of the Australian Federal Police who administer, or are involved in, the operation of the NWPP.  Protecting the identity of those involved in administering the NWPP is necessary to ensure the protection of NWPP participants.  For example, if a person knows the identity of an AFP employee involved in the operation of the NWPP and sees that employee interacting regularly with a witness, it could be revealed that the witness is a NWPP participant.

Subparagraph 26(2)(c)(i) will provide that the Commonwealth Ombudsman or a member of staff of the Commonwealth Ombudsman is not generally to be required to provide information about the identity of, or information that would reveal the identity of, an AFP employee or a special member of the Australian Federal Police who is involved in the operation of the NWPP in certain proceedings, unless subsection 26(3) applies or it is necessary to do so for the purposes of the Act.  Subparagraph 26(2)(c)(ii) will provide that the restriction will generally apply if the person has the information as a result of the performance of functions or duties or the exercise of powers in relation to the Act.  Subsection 26(3) allows these people to disclose the relevant information if it is essential to the determination of legal proceedings that the judge or magistrate be advised of a NWPP participant’s location and circumstances.

Item 61

Item 61 will amend subsection 26(3) to extend the application of the exception to subsections 26(1) and (2), which are described above at items 56 to 60.  Subsection 26(3) currently provides that if it is essential to the determination of legal proceedings under or in relation to a law of the Commonwealth that the judge of magistrate be advised of a NWPP participant’s location and circumstances, information that could not otherwise be required to be disclosed except where the disclosure is necessary for the purposes of the Act may be disclosed.  The amendment will provide that the exception applies also to legal proceedings under or in relation to a law of a State or Territory.  Disclosure should be permitted in such circumstances regardless of whether the relevant proceedings concern a Commonwealth law or State or Territory law, particularly as witnesses in State or Territory cases may be included in the NWPP.

Items 62 - 63

Items 62 and 63 will make technical amendments to subsection 26(5) that are necessary because of a change that will be made to the definition of participant at section 3 inserted by Item 8.  The new definition of participant at section 3 will expressly include former participants unless the contrary intention appears.  These items will remove references to a former participant from subsection 26(5) as they will now be redundant.  These items do not make any substantive change to the operation of section 26, which concerns information disclosures which may or may not be required by a court, tribunal, Royal Commission of the Commonwealth, a State or a Territory or any other commission of inquiry.

Items 64 - 65

Items 64 and 65 will make technical amendments to section 27 as a result of changes to be made to the definitions at section 3 of the Act.  These amendments are required for the following reasons.

·          Proposed changes to the definitions in section 3 made by Items 2, 3 and 7 will differentiate between a participant’s original identity, current NWPP identity and former NWPP identity.  Item 64 will clarify that the current reference to former identity at subsection 27(1) will now encompass both the participant’s original identity (that which the person had at the time immediately before he or she was first provided with an identity under the NWPP) and any identity provided to the participant under the NWPP that the participant is not currently using.

·          The proposed new section 3 definition of participant inserted by Item 8 will expressly include former participants unless the contrary intention appears.  Item 65 will remove a reference to a former participant from subsection 27(2) as it will now be redundant.

Item 66

Item 66 will insert a new section 27A.  New subsection 27A(1) will require a participant to notify the Commissioner if he or she is to be involved in a civil proceeding, under his or her current NWPP identity, in which his or her identity is in issue.  New subsection 27A(2) will provide that after receiving such notification, the Commissioner may take any action that he or she considers appropriate in the circumstances.  This could include notifying the court of legal obligations the participant has relating to their original identity or a former NWPP identity.  Section 27A will create an obligation in relation a participant’s involvement in civil proceedings similar to the obligation existing section 27 imposes in relation to involvement in criminal proceedings.  However, in the case of civil proceedings, the obligation will only apply where the participant’s identity is in issue in those proceedings.  Section 27A will help to preserve the integrity of the NWPP and ensure that participants do not use their current NWPP identity to avoid legal obligations relating to their original identity or a former NWPP identity.  Such obligations could include, for example, child support payments or, if the participant owns a business, obligations to employees.

New subsection 27A(3) will define ‘civil proceeding’ for the purposes of section 27A.  ‘Civil proceeding’ will mean any proceeding in a court, tribunal, a Royal Commission of the Commonwealth, a State or a Territory or any other commission of inquiry other than a criminal proceeding.

Item 67

Section 28 currently provides that if the identity of a Commonwealth participant is in issue or may be disclosed in proceedings, the court, tribunal or commission, must, unless it considers that the interests of justice require otherwise, take certain actions to ensure the protection of the participant’s identity.  Item 67 will repeal existing section 28 and replace it with new sections 28 and 28A to extend the provision to State participants and Territory participants, update the provision so it is more consistent with similar provisions in Commonwealth legislation and insert a new offence.

Section 28

Subsection 28(1) will provide that new section 28 will apply if:

·          the original identity or a former NWPP identity of a Commonwealth, State or Territory participant (paragraph (1)(a))and/or

·          the fact that a person is such a participant (paragraph (1)(b)), and/or

·          the fact that a person has undergone or is undergoing assessment for inclusion in the NWPP as such a participant (paragraph (1)(c))

is in issue, or may be disclosed, in any proceedings before a court, tribunal, a Royal Commission of the Commonwealth, a State or a Territory or any other commission of inquiry.

Paragraph 28(2)(a) will require that the court, tribunal or commission must, unless it considers that it is not in the interests of justice to do so, hold in private that part of the proceedings that relates to one or more of the matters in paragraphs (1)(a), (b) or (c).

Paragraph 28(2)(b) will require the court, tribunal or commission to make such orders relating to the suppression of publication of evidence given before it as, in its opinion, will ensure that those matters are not made public.  Subsection 28(3) will clarify that paragraph 28(2)(b) does not prevent a transcript being taken of the relevant proceedings, but that the court may make an order for how the transcript is to be dealt with, including an order suppressing its publication.

Paragraph 28(2)(c) will require that the court, tribunal or commission must, unless it considers that it is not in the interests of justice to do so, make such orders as it considers appropriate to ensure that those matters, or information that may compromise the security of a person referred to in paragraph (1)(a), (b) or (c) are not made public.

Section 28A

Under section 28A it will be an offence for a person to engage in conduct that contravenes an order made by a court, tribunal or commission under section 28.  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 was in force under section 28

·          intentionally engaged in conduct

·          was reckless as to the result that the conduct contravened the order.

Section 5.4 of the Criminal Code provides that a person is reckless with respect to a circumstance if he or she is aware of a substantial risk that the circumstance exists or will exist and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.  Section 5.4 of the Criminal Code provides that a person is reckless with respect to a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

Subsection 28A(2) clarifies that section 28A does not limit any other powers of the body that made the order under section 28.  This would include the power of the court to punish a person for contempt.

Item 68

Section 30 requires the Commissioner to keep the Minister informed of the general operations, performance and effectiveness of the NWPP and, in particular, the exercise of powers under section 27.  Section 27 concerns actions the Commissioner may take if:

·          a participant is to be a witness in a criminal proceeding under his or her current NWPP identity, and

·          the participant has a criminal record under his or her original identity or any former NWPP identity.

Item 66 will insert new section 27A, which will be a similar provision relating to a participant being involved in civil proceedings.  Item 68 will amend section 30 to provide that the Commissioner must also keep the Minister informed about the exercise of powers under section 27A.

Item 69

This item is a saving provision that will clarify the status of declarations of complementary witness protection laws made under existing section 3 prior to the commencement of the amendments in items 1 and 13 of this Schedule.

Subitem 69(1) is included to assist readers.  It provides an explanation of the status of declarations made under existing section 3 of the Act - that is, that they are not legislative instruments as they do not come within the definition of ‘legislative instrument’ at section 5 of the Legislative Instruments Act. This item is not a declaration under section 7 of the Legislative Instruments Act that the declarations made under existing section 3 are not legislative instruments.  Instead, it is a clarification of the status of the declarations, included solely to assist readers.

Subitem 69(2) is a saving provision that will ensure that any declarations of complementary witness protection laws made under current section 3 of the Witness Protection Act that are in force at the commencement of this Schedule will continue to have effect, subject to subitem 69(1), as if they had been made under new section 3AA of the Act.

To facilitate public access, it is intended that existing declarations made under current section 3 of the Act will be remade under new section 3AA of the Act and registered on FRLI.

Items 70 - 71

Items 70 and 71 are application provisions in relation to new subsection 13(5) (inserted by Item 22) and section 16 as amended by Items 25-31.

Item 70

Item 70 will clarify that the Commissioner may take action under new subsection 13(5) on or after the commencement of this item, whether the former participant became a former participant before, on or after that commencement.  This item is included to ensure that it is clear that upon commencement, action may be taken under new subsection 13(5) to provide protection and assistance to a former participant regardless of when that former participant became a former participant.  A definition of former participant will be inserted into section 3 by Item 4 to mean a person who has ceased to be included in the NWPP.

Item 71

Item 71 will provide that section 16 as amended by this Schedule will apply on and after commencement of this item in relation to a permission given under paragraph 16(1)(b) before that commencement as if the permission had been given under that paragraph, as amended by Items 25-31, in relation to the participant’s original identity.  This will mean that if a participant has been given permission under existing paragraph 16(1)(b) not to disclose his or her former identity for a particular purpose, that permission will apply upon commencement of this item to the participant’s original identity but not any former NWPP identity of the participant.  Items 2, 3 and 7 will insert definitions of original identity , current NWPP identity and former NWPP identity into section 3.



Schedule 4 - Criminal organisation and association offences

GENERAL OUTLINE

The purpose of this Schedule is to insert new offences into the Criminal Code that will target persons involved in serious and organised crime.  Criminal offences are a useful law enforcement tool to deter and prosecute persons involved in serious and organised crime as part of a group. 

As part of the resolutions agreed to by SCAG in April 2009 on a national response to organised crime, Ministers agreed to consider measures which would enhance the legislative response, including through the introduction of new criminal offences.  In particular, the Commonwealth agreed to consider, to the extent practical and effective, and having regard to constitutional power, consorting or similar provisions that prevent a person from associating with another person who is involved in organised criminal activity as an individual or through an organisation.

At the August 2009 SCAG meeting, Minister’s also agreed to consider introducing a suite of additional offences aimed at criminalising varying levels of involvement in the activities of a criminal organisation.

Association offences

Consorting offences, and more modern association offences, criminalise persons associating with convicted criminals, and in some cases, members of criminal organisations.  Most States and Territories have general consorting or association offences which criminalise associating with convicted or reputed criminals.  Some jurisdictions have consorting or association offences specifically targeting organised crime.  Other jurisdictions have also introduced, or have indicated that they are considering introducing, legislation criminalising associating with members of organisations, declared or prescribed as illegal organisations, by either the Executive or a court.

The amendments in this Schedule introduce specific Commonwealth offences of associating with a person who is involved in criminal activity, where the association provides support to the person in committing organised criminal activity.

The Commonwealth’s association offences have two important features.  Firstly, the determination as to whether the people in question are involved in organised criminal activity will be a matter for the court on a case-by-case basis.  This is different to some State and Territory offences which are based on the declaration or prescription of certain organisations as illegal by the Executive or a court. 

Secondly, the offences will require, in addition to proof that the person associated with persons involved in serious and organised criminal activity, proof that the association supported the engagement by the other person in the serious organised criminal activity.  That is, there must be a causal link proven that the association helped, or enhanced the ability of, the other persons to engage in serious organised criminal activity. 

 



Criminal organisation offences

A common approach internationally to combating serious and organised crime is legislating for specific criminal offences that target the conduct of members of criminal groups.  One of the primary reasons many jurisdictions have adopted specific organised crime offences is to enable differentiation between lower level and higher level participants.  A sophisticated example of this is the Canadian Criminal Code, which provides separate offences to correspond with the offender’s level of involvement in the criminal organisation.

Accordingly, the amendments in this Schedule will introduce several new offences criminalising varying levels of involvement in a criminal organisation, with penalties that reflect the spectrum of less to more serious involvement.  The offences will target those:

·          supporting a criminal organisation to facilitate or commit serious offences

·          committing a serious offence for the benefit, or at the direction, of a criminal organisation, and

·          directing the activities of a criminal organisation.

The offences will require a determination by the court on a case-by-case basis that the particular group is a criminal organisation.  The offences are not based on involvement in particular declared or prescribed organisations.  While traditionally organised crime groups have been tightly structured, hierarchical groups, modern organised crime groups are increasingly loose, fluid networks who work together in order to exploit new market opportunities.  Given this trend towards looser, more transient networks, it can be difficult to declare or proscribe criminal groups with any degree of certainty.

Telecommunications Interception

This Schedule also amends the Telecommunications (Interception and Access) Act 1976 (TIA Act) to ensure that telecommunications interception warrants are available for the investigation of the new organised crime offences.  This reflects the growing effect of organised crime on the Australian community and the need for law enforcement agencies to have access to a full suite of powers to combat such crime.

Criminal Code Act 1995

Item 1

This item will insert new Division 390, Part 9.9 into the Criminal Code, which will deal with criminal associations and organisations.

Subdivision A - Definitions

Section 390.1 - Definitions

Subsection 390.1(1) will define terms associated with the new criminal organisation offences inserted by Item 1. 

The key definitions will be:

ancillary offence in relation to a State offence (the primary offence) is defined for the purposes of the definition of ‘State offences that have a federal aspect’ in section 390.2, which refers to State ancillary offences.

associate will be defined to mean meet or communicate (by electronic communication or otherwise).  This will ensure that the offence applies to associations which occur in person, but also communication by any means, including by post, fax, telephone, or by email or other electronic means.

child will be defined, without limiting the ordinary meaning of child, as someone who is the child of a person if he or she is a child of the person within the meaning of the Family Law Act 1975 .  The meaning of ‘child’ in the Family Law Act includes children:

·          born to a woman as the result of an artificial conception procedure while that woman was married to, or was a de facto partner of, another person (whether of the same or opposite sex), and

·          who are children of a person because of an order of a State or Territory court made under a State or Territory law prescribed for the purposes of section 60HB of the Family Law Act, giving effect to a surrogacy agreement.

This will ensure that the definition of child will include children born through artificial conception procedures and surrogacy arrangements.  It will also ensure that the children of same-sex couples are recognised in the definition of ‘close family member’.

close family member will be defined to mean:

·          the person’s spouse or de facto partner

·          a parent, step-parent or grandparent of the person

·          a child, stepchild or grandchild of the person

·          a brother, sister, step-brother or step-sister of the person, and

·          a guardian or carer of the person.

The purpose of this definition is to provide an exclusive list of the persons who will be a ‘close family member’ of a person for the purposes of a defence to the new association offences in section 390.3(6).  Section 390.3(6) provides for an exception where the association is with a close family member and relates only to a matter that could reasonably be regarded (taking into account the person’s cultural background) as a matter of family or domestic concern.

constitutionally covered offence punishable by imprisonment for at least 12 months is defined for the purposes of a particular element common to all of the new criminal organisation offences.  That is, that the offence which, for example under new section 390.5, is committed for the benefit of the criminal organisation, is a constitutionally covered offence punishable by imprisonment for at least 12 months.  The definition will serve two particular purposes. 

The first is to provide the Commonwealth connector in the new criminal organisation offences, by limiting the criminal conduct which the criminal organisation offences apply to conduct constituting an offence within Commonwealth power.  This includes Commonwealth offences, State offences that have a federal aspect (see below for a description of this definition), Territory offences and foreign offences that are constituted by conduct that, if engaged in Australia, would constitute an offence. 

The second is to limit the criminal conduct to which the criminal organisation offences apply to conduct constituting an offence punishable by imprisonment for at least 12 months or for life.  This ensures that a person will only be captured by the new criminal organisation offences where, for example, they are supporting a criminal organisation to commit serious offences.  The new criminal organisation offences will not apply to, for example under new section 390.4, supporting a criminal organisation to commit minor offences carrying penalties of less than 12 months.

constitutionally covered offence punishable by imprisonment for at least 3 years is defined for the purposes of a particular element common to both new association offences.  The definition will, similar to the above definition, serve two particular purposes.

The first is to provide the Commonwealth connector in the new association offences, by limiting the criminal conduct to which the association offences apply to conduct constituting an offence within Commonwealth power.  These include Commonwealth offences, State offences that have a federal aspect (see below for a description of this definition), Territory offences and foreign offences that are constituted by conduct that, if engaged in Australia, would constitute an offence. 

The second is to limit the criminal conduct to which the association offences apply to offences punishable by imprisonment for at least 3 years or for life.  This ensures that a person will only be captured by the new association offences where they associate with persons who are involved in committing serious organised crime.  Given that the association offences criminalise conduct which is further removed from the commission of actual offences by the persons involved in organised criminal activity, it is appropriate to limit the association offences to association in support of particularly serious offences, ie those punishable by imprisonment for at least 3 years.

de facto partner will be defined to have the meaning given by the Acts Interpretation Act 1901 .  That is, a person will be the de facto partner of another person (whether the same sex or different sex) if the person is in a registered relationship with the other person under section 22B, or the person is in a de facto relationship with the other person under section 22C, of the Acts Interpretation Act.

foreign offence will be defined to mean an offence against a law of a foreign country or part of a foreign country.  This will ensure that an offence against particular jurisdictions within a country, such as a State or a Province, will be captured by the definition.

for the benefit of in relation to an offence is, or would if committed be, for the benefit of a group if the offence results or is likely to result in the group or at least one of its members receiving directly or indirectly a significant benefit of any kind.

This definition draws on article 2(a) of the United Nations Convention against Transnational Organized Crime , which requires that the purpose of the group‘s activity be to obtain, directly or indirectly, a financial or other material benefit. 

The purpose of this definition is to recognise the profit-oriented business dimension of organised crime, but also the non-economic benefits which may result from organised criminal activity.  Examples of a significant benefit may include, but are not limited to, direct benefits such as financial benefits or profits from the trafficking and sale of drugs, or more indirect benefits such as instances where a criminal organisation provides protection or security for illegal activities such as illegal gambling or illegal brothels.

The definition will apply where the offence results in the group or one of its members receiving a benefit of any kind, and also where the offence is likely to result in the group or at least one of its members receiving a benefit of any kind.  Accordingly, the definition is not limited only to where an actual benefit is received.

Where it is a particular member of the organisation receiving the benefit, the member must receive the benefit in his or her capacity as such a member.  It will not be sufficient where the member receives the benefit in his or her personal capacity, where there is no link at all with the organisation.

offence against any law punishable by imprisonment for at least 3 years is defined for the purposes of a particular element common to all of the new criminal organisation offences.  That is, that the organisation’s aims or activities include facilitating the engagement in, or engagement in, conduct constituting offences against any law punishable by imprisonment for at least three years.

This phrase will be defined to mean any Australian offence (eg an offence against the law of the Commonwealth, a State or Territory) punishable on conviction by imprisonment for at least three years or for life, or a foreign offence punishable on conviction (however described) by imprisonment for at least three years or for life.

This will limit the types of organisations that are criminal organisations for the purposes of the criminal organisation offences to those which have as their aims the commission of more serious offences.  The definition of serious and organised crime for the purposes of the Australian Crime Commission Act 2002 (ACC Act) is limited to offences punishable by imprisonment for a period of three years of more.  Providing that an organisation will only be a criminal organisation if, amongst other things, it is involved in the commission of offences punishable by imprisonment for at least three years is consistent with the definition of serious and organised crime in the ACC Act. 

The use of the three year threshold as an indication of more serious offences is also used in provisions directed at law enforcement powers, such as for serious offences defined in the Crimes Act relating to the controlled operations regime, and for serious offences defined in the TIA Act relating to the use of telecommunications interception.

parent will be defined, without limiting who is a parent, with reference to the definition of child, in that someone will be a parent of a person if the person is his or her child because of the definition of child.  The new association offences in section 390.3 provide for a defence where the association is with a close family member.  The definition of close family member includes a parent of a person.

stepchild will be defined, without limiting who is step-parent of a person for the purposes of the Division, as a stepchild of a person if he or she would be the person’s step-child except that the person is not legally married to the person’s de facto partner.  The new association offences in section 390.3 provide for a defence where the association is with a close family member.  The definition of close family member includes a stepchild of a person.

The ordinary meaning of ‘stepchild’ is a ‘child of a husband or wife by a former union’.  As same-sex couples cannot marry, the child of one member of the couple by a former relationship cannot be considered to be the other member of the couple’s stepchild.  This is also the case for children of opposite-sex de facto partners by a former relationship. 

This definition extends the existing concept of step-child to include a child of an opposite-sex or same-sex de facto partner by a former relationship.  This is achieved by providing that a ‘step-child’ includes a child who would be the step-child of a person who is the de facto partner of a parent of the child, except that the person and the parent are not legally married. It is not necessary to establish that the person and the parent are capable of being legally married.

step-parent will be defined, without limiting who is a step-parent of a person for the purposes of the Division, as someone who is a de facto partner of a parent of the person is the step-parent of the person, if he or she would be the person’s step-parent except that he or she is not legally married to the person’s parent

Subsection 390.1(2) will provide that, for the purposes of the definition of ‘close family member’, if one person is the child of another person because of the definition of child in that subsection, relationships traced to or through the person are to be determined on the basis that the person is the child of the other person.

This tracing rule ensures that family relationships referred to in the definition of close family member include relationships that are traced through the child-parent relationship.

The following provides an example of where the tracing rule can be used to determine a relationship.

J is in a de facto relationship with S.  During the relationship J and S decide that S will undergo an artificial conception procedure using donated gametes.  The procedure takes place and S gives birth to H.  Later, J and S decide to have another child - S will again undergo an artificial conception procedure using donated gametes, but from a different source.  The procedure takes place and S gives birth to T.  Both procedures comply with the requirements of section 60H of the Family Law Act, and J and S are therefore both the parents of each of the children. Whilst T is the child of J and S, he is not the biological sibling of H.

The use of the tracing rule in this instance will allow T to be considered to be H’s brother because the relationship is traced through the child-parent relationship that each child has with J and S.  This will continue to be the case even if the relationship between J and S were to break down at a later time.  Without the tracing rule, T will only be considered to be H’s half brother.

Paragraph 390.1(3)(a) will provide that a reference in new Division 9.9 to an organisation is a reference to an organisation however it is organised.  This makes clear that an organisation need not have formal structures in place.  This reflects the modern nature of organised crime, which often involves groups that are loosely structured and transient.

Paragraph 390.1(3)(b) will provide that a reference in new Division 9.9 to a person includes a reference to a person outside Australia.  This makes clear that, for example in section 390.4 (which criminalises providing support to an organisation), the element that an organisation consists of two or more persons can include persons who are outside Australia.

Section 390.2 - State offences that have a federal aspect

Section 390.2 will define State offences that have a federal aspect .  This definition is relevant to the Commonwealth connector for the new association and criminal organisation offences which limits the criminal conduct to which the criminal organisation offences apply to those within Commonwealth power.  These include Commonwealth offences, State offences that have a federal aspect, Territory offences and foreign offences that are constituted by conduct that, if engaged in Australia, would constitute an offence. 

In summary, this definition will provide that a State offence has a federal aspect if the Commonwealth could have enacted a valid provision covering the State offence or the specific conduct involved in committing the State offence or, if the State offence is an ancillary offence, then the primary offence to which that ancillary offence relates.  This section will be consistent with section 3AA of the Crimes Act 1914 and section 4AA of the Australian Federal Police Act 1979 which both provide for State offences that have a federal aspect. 

Subdivision B - Offences

Section 390.3 - Associating in support of serious organised criminal activity

Section 390.3 will create two offences targeting association in support of serious and organised criminal activity.  The purpose of these offences is to deter persons from supporting organised criminal activity by criminalising their association with other persons involved in organised criminal activity.

Under subsection 390.3(1), it will be an offence to associate on two or more occasions with another person, where the association facilitates the engagement by the other person in serious and organised criminal activity.  This offence will be punishable by a maximum penalty of three years imprisonment.

An example of this type of offence is as follows.  Person A meets with person B on two or more occasions.  Person B is proposing to engage in an illegal operation with four other people involving the import into Australia of commercial quantities of border controlled drugs (which is an offence under section 307.1 of the Criminal Code punishable by imprisonment for life).  Person A works at the airport through which person B proposes to import the drugs, and knows that Person B proposes to engage in the illegal importation.  The purpose of person A’s meetings with person B is to provide advice on how person B may circumvent the airport security system as part of the operation.  In doing so, person A is reckless as to whether his advice will help person B to engage in the illegal importation.

Section 5.6 of the Criminal Code will apply automatic fault elements to the physical elements of the offence set out in paragraphs 390.3(1)(a), (c) and (d)).  Subsection 390.3(3) provides that the fault element for paragraph (1)(b) is knowledge.  To establish this offence, the prosecution will need to prove beyond reasonable doubt that:

·          a person (the first person) intentionally associated with another person (the second person) on two or more occasions

·          the first person knew that the second person engaged, or proposed to engage, in conduct that constitutes, or is part of conduct constituting, an offence against any law

·          the first person was reckless as to the circumstance that the associations facilitated the engagement, or proposed engagement, by the second person in the second person’s conduct

·          the first person was reckless as to the circumstance that the offence against any law mentioned in paragraph (b) involved two or more persons, and

·          the offence against any law mentioned in paragraph (b) is a constitutionally covered offence punishable by imprisonment for at least 3 years.

The repeat offence under subsection 390.3(2) will apply where a person has already been convicted of an offence under the basic offence.  It will require proof by the prosecution of the same elements as the basic offence, except that the prosecution need only prove that the first person associated with the second person one (or more) times.  This offence will also be punishable by a maximum penalty of three years imprisonment.

The rationale behind the repeat offence lies in the fact that if a person has already been convicted of the association offence in subsection 390.3(1), any further association (even if it is only once), warrants criminal sanction. 

Section 5.6 of the Criminal Code will apply automatic fault elements to the physical elements of the offence set out in paragraphs 390.3(2)(a), (b), (d) and (e).  Subsection 390.3(3) provides that the fault element for paragraph (2)(c) is knowledge.  To establish this offence, the prosecution would need to prove beyond reasonable doubt that:

·          the first person had previously been convicted of an offence against the basic offence

·          the first person intentionally associated with another person (the second person)

·          the first person knew that the second person engaged, or proposed to engage in conduct that constitutes an offence, or part of conduct constituting an offence

·          the first person was reckless as to the circumstance that the associations facilitated the engagement, or proposed engagement, by the second person in the second person’s conduct

·          the first person was reckless as to the circumstance that the offence against any law mentioned in paragraph (b) involved two or more persons, and

·          the offence against any law mentioned in paragraph (b) is a constitutionally covered offence punishable by imprisonment for at least 3 years.

Section 5.4 of the Criminal Code provides that a person is reckless with respect to a circumstance if he or she is aware of a substantial risk that the circumstance exists or will exist and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

As described above, associate will be defined in subsection 390.1(1) to mean meet or communicate (by electronic communication or otherwise).  Electronic communication will be given a broad definition in subsection 390.1(1) to capture all forms of electronic communication such as using a telephone or the Internet.   Accordingly, it is not necessary that the association be in person - it will still be sufficient if the association occurs, for example, through a mobile phone text message, or over email.

Offence against any law will be defined in subsection 390.1(1) to mean an Australian offence or a foreign offence .  The latter two terms will also be defined in subsection 390.1(1) to mean an offence against the law of the Commonwealth, a State or Territory, and an offence against the law of a foreign country.

It will be necessary for the prosecution to prove that the person knew that the second person was either engaged in, or proposing to engage in an offence against any law.  That is, the person must know that the person that they are associating with is either carrying out, or proposing to carry out, crime.

The association must facilitate the engagement or proposed engagement by the second person in crime.  This requirement is important in limiting the scope of the offence to associations that facilitate organised crime.  That is, it is intended that the association must in some way help, or enhance the ability of, the second person to engage in serious organised criminal activity.  It will not be sufficient that the association merely coincide temporally with the commission of criminal activity.  For example, the offence would not extend to providing a coat to a criminal going out to commit an offence on a cold night.  

Paragraphs 390.3(1)(d) and (e) and 390.3(2)(e) and (f) set out the elements which require proof that the crime which the second person is engaging in, or proposing to engage in (and that the person’s association facilitates), is serious organised criminal activity.

The offence against any law mentioned in paragraph (b) (the offence that the second person engaged, or proposes to engage in) must involve two or more persons (paragraphs 390.3(1)(d) and 390.3(2)(e)).  The number of persons required for criminal activity to become ‘organised criminal activity’ varies internationally, however it is generally described as involving a minimum of two or three persons.  To ensure consistency, the requirement that the offence which the second person is engaging in, or proposing to engage in, involves two or more persons draws on the existing Commonwealth definition of serious and organised crime.  ‘Serious and organised crime’ is defined in subsection 4(1) of the ACC Act as an offence that involves two or more offenders.  Several State and Territory jurisdictions also define organised criminal activity with reference to involving two or more persons.

It is intended that the term ‘involves’ be interpreted broadly.  It will capture circumstances where the persons have participated in (or proposed to participate in) the commission of the conduct constituting the physical elements of the offence.  However, it will also capture where the persons may not have been involved in (or have not proposed to be involved in) the actual commission of the physical elements of the offence, but were involved in the planning and organisation leading up to the commission of the offence.

Absolute liability will apply to paragraphs 390.3(1)(e) that the offence against any law mentioned in paragraph (b) and 390.3(2)(f) that the offence in paragraph (c) (the offence which the second person commits, or proposes to commit, which the association facilitates) is a constitutionally covered offence punishable by imprisonment for at least 3 years (subsection 390.3(4)).  A constitutionally covered offence punishable by imprisonment for at least 3 years will be defined in subsection 390.1(1) and is described in the section on definitions above.

Absolute liability is set out in section 6.2 of the Criminal Code.  The effect of applying absolute liability to an element of an offence means that no fault element needs to be proved and the defence of mistake of fact is not available.  Accordingly, the prosecution will not be required to prove that the person knew that the offence against any law mentioned in paragraph (b) is a constitutionally covered offence punishable by imprisonment for at least 3 years.

Absolute liability is appropriate and required for the element that the offence referred to in paragraph (b) is a constitutionally covered offence because this circumstance of the offence is a jurisdictional element.  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 and those that do not.  This is consistent with Commonwealth criminal law practice, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers .

Absolute liability is appropriate and required for the element that the offence referred to in paragraph (1)(b) or 2(c) is an offence punishable by imprisonment for at least three years because the circumstance that the offence is punishable by imprisonment for at least three years, similar to a jurisdictional element, is not an element going to the substance of the offence.  If it can be proven that the offence was a serious offence, it is not necessary to require proof that the person knew it was an offence carrying a certain number of years.

It will not be necessary for the prosecution to prove the identity of the two or more people involved in the organised criminal activity (subsection 390.3(5)).

Defences will be available to defendants for certain kinds of associations (subsection 390.3(6)).  This will ensure that the policy objectives of the offence are balanced with the need to protect certain fundamental civil liberties.  The association offences will not apply where the association is:

·          with a close family member

·          in a place being used for public religious worship and takes place in the course of practicing a religion

·          only for the purpose of providing aid of a humanitarian nature, or

·          only for the purpose of providing legal advice or legal representation in connection with:

o    criminal proceedings

o    proceedings relating to the actual or possible declaration of an organisation under State and Territory criminal organisation laws, or

o    proceedings for a review of a decision relating to a passport or other travel document, or a failure to issue such a passport or travel document.

In relation to the exception provided for where the association is with a close family member, the association must relate only to matters that could be regarded (taking into account the person’s cultural background) as matters of family or domestic concern. The definition of close family member will be set out in subsection 390.1(1) and the scope of this definition is described above. 

This exception, and the exception based on public religious worship, are based on similar exceptions provided for in both the comparable terrorism offence in section 102.8 of the Criminal Code (associating with terrorist organisations) and section 100A of the Crimes (Sentencing Procedure) Act 1999 No. 92 (NSW).  Exceptions relating to education, employment and residence are not included because of the potential for misuse of these kinds of exceptions by those with links to persons involved in serious organised criminal activity.

An exception is also provided for the case where the association is only for the purpose of providing aid of a humanitarian nature.  This exception is intended to apply to persons undertaking humanitarian aid who, through the course of providing such humanitarian aid, associate with a person who is involved in serious organised criminal activity.

Exceptions are also provided for where the association is only for the purpose of providing legal advice or legal representation in connection with certain specified proceedings.  These exceptions are designed to ensure that lawyers who provide advice to, or act on behalf of, a person who is involved in serious organised criminal activity are not liable under the provision.  It is important that those suspected of associating with organised criminals are not prevented from obtaining legal advice.  The three exceptions specified relating to legal advice or representation are as follows.

Firstly, the exceptions provide a defence where the association is only for the purpose of providing legal advice of legal representation in connection with criminal proceedings or proceedings related to criminal proceedings (including possible criminal proceedings in the future).  This is intended to be broad in its scope, covering any criminal proceedings, or any other proceedings related to criminal proceedings.

Secondly, the exceptions provide a defence where the association is only for the purpose of providing legal advice or legal representation in connection with proceedings relating to actual or possible declaration (however described) of an organisation under certain listed or prescribed State and Territory criminal organisation control laws.  Existing State Acts directed at the declaration of criminal organisations are listed in subparagraphs 390.3(6)(e)(i) and (ii), and provision is made in subparagraph 390.3(6)(3)(iii) for the prescription of State or Territory Acts of the same kind which may come into force in the future.  Given that the definition of constitutionally covered offence punishable by imprisonment for at least three years in subsection 390.1(1) will include State offences that have a federal aspect and Territory offences, it is important to ensure that lawyers providing advice to, or acting on behalf of, persons that are subject to State or Territory proceedings relating to the declaration of criminal organisations are not liable under the new association offences. 

Thirdly, the exceptions provide a defence where the association is only for the purpose of providing legal advice or representation in connection with proceedings for a review of a decision relating to a passport or other travel document, or to a failure to issue such a passport or other travel document.  This includes a passport or other travel document that was, or would have been, issued by or on behalf of the government of a foreign country.  Given the transnational nature of organised crime, it is possible that a person involved in organised criminal activity may also be involved in proceedings relating to passport or other travel documents.

A defendant wishing to rely on any of the exceptions in subsection 390.3(6) 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) of the Criminal Code and requires the defendant to adduce or point to evidence that suggests a reasonable possibility that the matter exists or does not exist.  The prosecution would then need to refute this beyond reasonable doubt.

The use of the evidential burden defence is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers. The Guide refers to the principle that it is legitimate to cast a matter as an evidential burden defence where a matter is peculiarly within the defendant’s knowledge and is not available to the prosecution.

A person who is convicted of an offence under subsections 390.3(1) or 390.3(2) in relation to the person’s conduct on two or more occasions is not liable to be punished for an offence under subsections 390.3(1) or 390.3(2) for other conduct of the person that takes place at the same time as that conduct or within 7 days before or after any of those occasions (subsection 390.3(7)).  This will avoid raising the prospect of a multiplicity of charges concerning the same course of conduct.

The offences are by necessity wide-ranging in terms of the type of activities or persons who might be subject to it.  For this reason, subsection 390.3(8) will be included to avoid impugning the implied constitutional freedom of political communication.  This will cover associations that are for purely political communication for the purposes of the Constitution.  For example, the exception could apply to a journalist interviewing a person involved in serious organised criminal activity for a documentary.

Sections 390.4 to 390.6 - Criminal organisation offences

Sections 390.4 to 390.6 set out three offences aimed at criminalising varying levels of involvement in the activities of a criminal organisation.  They criminalise supporting a criminal organisation, at the lower end of the spectrum of seriousness, to committing offences for a criminal organisation, and then to directing the activities of a criminal organisation, at the higher end of the spectrum of seriousness.

Section 390.4 - Supporting a criminal organisation

Section 390.4 will create an offence of supporting a criminal organisation.  The purpose of this section is to criminalise the provision of support or resources to a criminal organisation, in order to help the organisation commit criminal activity.  It is aimed at conduct more serious than that criminalised by the association offence, as it is intended to apply to supporting the activities of a criminal group (as opposed to supporting the commission of organised crime).  This offence differs from traditional aiding and abetting type offences, in that it is not a requirement that the offence which the support or resources helps the organisation to commit actually be committed.

Under subsection 390.4(1), it will be an offence to provide material support or resources to a criminal organisation, where the support or resources aids the organisation in committing serious offences.  This offence will be punishable by a maximum penalty of five years imprisonment.

An example of this type of offence is as follows. Person A is a financial expert.  Persons B, C and D are members of a criminal organisation.  Person A provides significant advice and training to persons B, C and D on how they might go about engaging in the money laundering of specific illicit profits of crime (in breach of an offence in section 400.4 of the Criminal Code of dealing in proceeds of crime etc - money or property worth $100,000 or more, which carries penalties of up to 20 years imprisonment).

Section 5.6 of the Criminal Code will apply automatic fault elements to the physical elements of the offence set out in paragraphs 390.4(1)(a) - (d).  To establish this offence, the prosecution would need to prove beyond reasonable doubt that:

·          the person intentionally provided material support or resources to an organisation or a member of an organisation

·          the person was reckless as to the circumstance that the provision of the support or resources aided, or there was a risk that the provision of the support or resources would aid, the organisation to engage in conduct constituting an offence against any law

·          the person was reckless as to the circumstance that the organisation consists of two or more persons

·          the person was reckless as to the circumstance that the organisation’s aims or activities include facilitating the engagement in conduct, or engaging in conduct, constituting an offence against any law that is, or would if committed be, for the benefit of the organisation

·          the offence against any law mentioned in paragraph (d) is an offence against any law punishable by imprisonment for at least 3 years, and

·          the offence against any law mentioned in paragraph (b) is a constitutionally covered offence punishable by imprisonment for at least 12 months.

Section 5.4 of the Criminal Code provides that a person is reckless with respect to a circumstance if he or she is aware of a substantial risk that the circumstance exists or will exist and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

The support or resources provided to the organisation or member of an organisation must be ‘material’.  The requirement that the support or resources must be ‘material’ is included to reflect certain recommendations made relating to the comparable terrorism offence in section 102.7 of the Criminal Code (providing support to a terrorist organisation).  Recent reviews of this provision by the Security Legislation Review Committee (Sheller Committee) and the Parliamentary Joint Committee on Intelligence and Security (PJCIS) concluded that the lack of clarity around the word ‘support’ may suggest that the offence could extend beyond its original intended application. 

The PJCIS recommended that the terrorism offence be amended to provide for ‘material support’ to remove any ambiguity.  Accordingly, the criminal organisation offence will include such a requirement.  This will make clear that the level of support required to commit the offence goes beyond mere support and is support that is real and concrete.

 

The support or resources may be provided to the organisation as a whole, however it will also be sufficient where the support or resources are provided to a specific member of the organisation.  It is intended that ‘member’ will take the ordinary common meaning.  Following a finding by the court that a criminal organisation existed for the purposes of the offence, it will be for the court to decide whether the person to which the support or resources was given was a ‘member’, in the ordinary sense of the word, of the criminal organisation. 

The support or resources must aid, or there must have been a risk that the support or resources would aid, the organisation to engage in conduct constituting an offence against any law.  That is, there must be a sufficiently strong link between the provision of the support or resources, and the commission of the offence by the organisation.  With reference to the above example, person A must be reckless as to the fact that his advice and training will be, or that there is a risk that it will be, used by persons B, C and D to commit an offence in relation to dealings with proceeds of crime.

To avoid doubt, subsection 390.4(3) states that a person may be convicted of an offence against subsection (1) where there is a risk that the provision of support or resources will aid the organisation to commit a crime, even if the support or resources does not actually aid the commission of a crime.

Paragraphs 390.4(1)(c) to (e) set out the elements which require proof that the organisation is a criminal organisation.

The organisation must consist of two or more persons (paragraph 390.4(1)(c)).  The number of persons required for criminal activity to become organised criminal activity varies internationally, however it is generally described as involving a minimum of two or three persons.  ‘Serious and organised crime’ is defined in subsection 4(1) of the ACC Act as an offence that involves two or more offenders.  Several State and Territory jurisdictions also define organised criminal activity with reference to involving two or more persons.  To ensure consistency, the offence reflects these existing Commonwealth, State and Territory definitions. 

The organisation’s aims or activities must include facilitating the engagement in conduct, or engaging in conduct, constituting an offence against any law (paragraph (d)).  This is directed at aims or activities which facilitate the commission of crime, and aims or activities which constitute crime, by the criminal organisation.  An example of the former may be where the organisation has as one of its activities the acquisition of weapons for the purpose of committing armed robberies.  An example of the latter may be where the organisation has as one of its aims the commission of armed robberies.  The offence against any law must, or would if committed be, for the benefit of the organisation (paragraph (d)).  Something is for the benefit of the organisation when it meets the definition of for the benefit of which will be defined in subsection 390.1(1) and is described above in the section on definitions.

Absolute liability will apply to paragraph 390.4(1)(e), that the offence against any law mentioned in paragraph (d) (the offence which the organisation has as one of its aims or activities to commit, or facilitate commission in) is an offence against any law punishable by imprisonment for at least three years.  An offence against any law punishable by imprisonment for at least 3 years will be defined in subsection 390.1(1) and is described above in the section on definitions.

Absolute liability is set out in section 6.2 of the Criminal Code.  The effect of applying absolute liability to an element of an offence means that no fault element needs to be proved and the defence of mistake of fact is not available.  Accordingly, the prosecution will not be required to prove that the person knew that the offence against any law mentioned in paragraph (d) is an offence punishable by imprisonment for at least 3 years.

Absolute liability is appropriate and required for the element that the offence referred to in paragraph (b) is an offence punishable by imprisonment for at least three years because the circumstance that the offence is punishable by imprisonment for at least three years, is not an element going to the substance of the offence.  If it can be proven that the offence was a serious offence (ie carrying a penalty of at least three years), it is not necessary to require proof that the person knew it was an offence carrying a certain number of years.

Absolute liability will also apply to paragraph 390.4(1)(f), that the offence against any law mentioned in paragraph (b) (the specific offence which the support or resources aids the organisation to commit) is a constitutionally covered offence punishable by imprisonment for at least 12 months.  A constitutionally covered offence punishable by imprisonment for at least 12 months will be defined in subsection 390.1(1) and is described above in the section on definitions.

Absolute liability is appropriate and required for the element that the offence referred to in paragraph (b) is a constitutionally covered offence because this circumstance is a jurisdictional element of the 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 and those that do not.  This is consistent with Commonwealth criminal law practice, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers .

Absolute liability is appropriate and required for the element that the offence referred to in paragraph (b) is an offence punishable by imprisonment for at least 12 months because the circumstance that the offence is punishable by imprisonment for at least 12 months, similar to a jurisdictional element, is not an element going to the substance of the offence.  If it can be proven that the offence was a serious offence, it is not necessary to require proof that the person knew it was an offence carrying a certain number of months or years.

Section 390.5 - Committing an offence for the benefit of, or at the direction of, a criminal organisation

Section 390.5 will criminalise committing an offence for the benefit of, or at the direction of, a criminal organisation.  This is more serious than the supporting offence in section 390.4, which is directed at the provision of support which helps the criminal organisation to commit offences.  The purpose of this offence is to criminalise the actual commission of offences by a person for a criminal organisation. 

Under subsection 390.5(1), it will be an offence to commit an offence for the benefit of a criminal organisation.  This offence will be punishable by a maximum penalty of seven years imprisonment.

An example of this type of offence is as follows.  Person A engages in trafficking commercial quantities of controlled drugs (an offence under section 302.2 of the Criminal Code, punishable by imprisonment for life).  The profits received from the trafficking of the drugs go to the criminal organisation, or members of the criminal organisation.

Section 5.6 of the Criminal Code will apply automatic fault elements to the physical elements of the offence set out in paragraphs 390.5(1)(b) - (d).  Subsection 390.5(3) provides that there is no fault element for the physical elements described in paragraph (a) other than the fault elements (however described), if any, for the underlying offence.   To establish this offence, the prosecution would need to prove beyond reasonable doubt that:

·          the person has committed an offence against any law (the underlying offence)

·          the person is reckless as to the result that the underlying offence is for the benefit of an organisation

·          the person is reckless as to the circumstance that the organisation consists of 2 or more persons

·          the person is reckless as to the circumstance that the organisations aims or activities include facilitating the engagement in conduct, or engaging in conduct, constituting an offence against any law that is, or would if committed be, for the benefit of the organisation

·          the offence against any law mentioned in paragraph (d) is an offence against any law punishable by imprisonment for at least 3 years, and

·          the underlying offence is a constitutionally covered offence punishable by imprisonment for at least 12 months.

Under subsection 390.5(2), it will be an offence to commit an offence at the direction of a criminal organisation.  This offence will be punishable by a maximum penalty of seven years imprisonment.

An example of this kind of offence is as follows.  Person A engages in the trafficking of illegal firearms across State and Territory borders (an offence under section 360.3 of the Criminal Code, punishable by up to 10 years imprisonment).  Person A engaged in the trafficking of the firearms at the direction of person B, who is a member of a criminal organisation.

Section 5.6 of the Criminal Code will apply automatic fault elements to the physical elements of the offence set out in paragraphs 390.5(2)(b) - (d).  Subsection 390.5(3) provides that there is no fault element for the physical elements described in paragraph (a) other than the fault elements (however described), if any, for the underlying offence.  To establish this offence, the prosecution would need to prove beyond reasonable doubt that:

·          the person has committed an offence against any law (the underlying offence)

·          the person is reckless as to the circumstance that they engaged in the conduct constituting the underlying offence at the direction of an organisation or a member of an organisation

·          the person is reckless as to the circumstance that the organisation consists of two or more persons

·          the person is reckless as to the circumstance that the organisations aims or activities include facilitating the engagement in conduct, or engaging in conduct, constituting an offence against any law that is, or would if committed be, for the benefit of the organisation

·          the offence against any law mentioned in paragraph (d) is an offence against any law punishable by imprisonment for at least 3 years, and

·          the underlying offence is a constitutionally covered offence punishable by imprisonment for at least 12 months.

Section 5.4 of the Criminal Code provides that a person is reckless with respect to a circumstance if he or she is aware of a substantial risk that the circumstance exists or will exist and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

Under the offence in subsection 390.5(1), the underlying offence must be for the benefit of a criminal organisation.  The definition of for the benefit of is set out in subsection 390.1(1) and is described above in the section on definitions.  An offence will be for the benefit of an organisation if the offence results or is likely to result in the organisation receiving directly or indirectly a significant benefit of any kind.  The definition covers offences which actually benefit the organisation, and offences that are likely to result in a benefit for the organisation.  Accordingly, it will be sufficient for the prosecution to prove that the offence could have benefited the organisation; it will not be necessary for the prosecution to prove that the offence actually did result in a benefit for the organisation.

Under the offence in subsection 390.5(2), the underlying offence must be committed at the direction of the organisation.  It is intended that the requirement that the underlying offence be ‘at the direction of’ a criminal organisation be interpreted broadly.  For the offence to be at the direction of a criminal organisation, it will not be necessary to prove that the organisation (or member of the organisation) has specifically instructed that the person commit the underlying offence.  It will be sufficient to prove that the organisation or member of the organisation encouraged, in any way, the commission of the underlying offence.

As described above in relation to the supporting offence in section 390.4, it is intended that ‘member’ will take the ordinary common meaning. 

Paragraphs 390.5(1)(c) to (e) and 390.5(2)(c) to (e) set out the elements which require proof that the organisation is a criminal organisation.

The organisation must consist of two or more persons (paragraph (c)).  The number of persons required for criminal activity to become organised criminal activity varies internationally, however it is generally described as involving a minimum of two or three persons.  In Australia, ‘serious and organised crime’ is defined in subsection 4(1) of the ACC Act as an offence that involves two or more offenders.  Several State and Territory jurisdictions also define organised criminal activity with reference to involving two or more persons.  To ensure consistency, the offence reflects these existing Commonwealth, State and Territory definitions. 

The organisation’s aims or activities must include facilitating the engagement in conduct, or engaging in conduct, constituting an offence against any law (paragraph (d)).  This is directed at aims or activities which facilitate the commission of crime by the organisation, and aims or activities which involve committing crime.  An example of the former may be where the organisation has as one of its activities the acquisition of weapons for the purpose of committing armed robberies.  An example of the latter may be where the organisation has as one of its aims the commission of armed robberies.  The offence against any law must, or would if committed be, for the benefit of the organisation (paragraph (d)).  Something is for the benefit of the organisation when it meets the definition of for the benefit of which will be defined in subsection 390.1(1) and is described above in the section on definitions.

Absolute liability will apply to paragraph (e), that the offence against any law mentioned in paragraph (d) (the offence which the organisation has as one of its aims or activities to facilitate commission in, or to commit) is an offence against any law punishable by imprisonment for at least three years.  An offence against any law punishable by imprisonment for at least 3 years will be defined in subsection 390.1(1) and is described above in the section on definitions.

Absolute liability is set out in section 6.2 of the Criminal Code.  The effect of applying absolute liability to an element of an offence means that no fault element needs to be proved and the defence of mistake of fact is not available.  Accordingly, the prosecution will not be required to prove that the person knew that the offence against any law mentioned in paragraph (d) is an offence punishable by imprisonment for at least 3 years.

Absolute liability is appropriate and required for the element that the offence referred to in paragraph (b) is an offence punishable by imprisonment for at least three years because the circumstance that the offence is punishable by imprisonment for at least three years, is not an element going to the substance of the offence.  If it can be proven that the offence was a serious offence (ie carrying a penalty of at least three years), it is not necessary to require proof that the person knew it was an offence carrying a certain number of years.

Absolute liability will also apply to paragraphs 390.5(1)(f) and 390.5(2)(f), that the underlying offence (the offence that is committed for the benefit, or at the direction, of a criminal organisation) is a constitutionally covered offence punishable by imprisonment for at least 12 months.  A constitutionally covered offence punishable by imprisonment for at least 12 months will be defined in subsection 390.1(1) and is described above in the section on definitions.

Absolute liability is appropriate and required for the element that the underlying offence is a constitutionally covered offence because this circumstance is a jurisdictional element of the 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 and those that do not.  This is consistent with Commonwealth criminal law practice, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers .

Absolute liability is appropriate and required for the element that the underlying offence is an offence punishable by imprisonment for at least 12 months because the circumstance that the offence is punishable by imprisonment for at least 12 months, similar to a jurisdictional element, is not an element going to the substance of the offence.  If it can be proven that the offence was a serious offence, it is not necessary to require proof that the person knew it was an offence carrying a certain number of months or years.

A person may commit an offence against subsections 390.5(1) or 390.5(2) even if the person has not been convicted of the underlying offence, or been subject to an order under section 19B (Discharge of orders without proceeding to conviction) of the Crimes Act, or a corresponding law of a State, Territory, or foreign country, relating to the underlying offence (subsection 390.5(5)).  This will make clear that the prosecution will not be required to prove that the person has been convicted (or an order made discharging the orders without proceeding to conviction) of the underlying offence.

The rules against double jeopardy will apply to the offences in section 390.5.  Section 4C of the Crimes Act automatically applies to prevent a person from being punished twice under two Australian offences for the same conduct.  This will mean that a person cannot be punished under an offence in section 390.5 and under the Commonwealth, State or Territory law creating the underlying offence, for the same conduct. 

Further, if a person has been convicted or acquitted of a foreign offence in respect of conduct, a person cannot be convicted of an offence against section 390.5 in respect of that conduct (subsection 390.5(6)).  This will ensure that where the underlying offence is a foreign offence, and the person has already been convicted or acquitted of that offence, the person cannot be convicted of an offence under section 390.5.

To avoid doubt, subsection 390.5(7) states that a person may be convicted of an offence against subsection 390.5(1) where the underlying offence is likely to result in the organisation or at least one member receiving benefits, even if the organisation or member does not actually receive such a benefit.  This will make clear that the prosecution does not have to prove that the organisation or a member of the organisation actually did receive a benefit.

Section 390.6 - Directing the activities of a criminal organisation

Section 390.6 will make it an offence to direct the activities of a criminal organisation.  This offence is aimed at conduct more serious than the previous offence of committing an offence for, or at the direction of, a criminal organisation.  The purpose of this section is to criminalise the conduct of those high up in the criminal organisation in positions of authority, who direct the activities of the organisation.  It recognises the particular seriousness of directing behaviour in relation to organised crime groups.

Under subsection 390.6(1), it will be an offence to direct one or more activities of a criminal organisation, where the activities directed aid, or there is a risk that they will aid, the criminal organisation to engage in the commission of an offence.  This offence will be punishable by a maximum penalty of ten years imprisonment.

An example of this type of conduct is as follows.  Persons A, B, C and D are all members of a criminal organisation.  Person A asks persons B, C and D to purchase various pieces of equipment that are necessary to cultivate commercial quantities of controlled plants.  The purchase of the equipment aids the organisation to engage in the cultivation of commercial quantities of controlled plants (an offence against section 303.4 of the Criminal Code, punishable by imprisonment for up to 10 years).

Section 5.6 of the Criminal Code will apply automatic fault elements to the physical elements of the offence set out in paragraphs 390.6(1)(a) - (d).  To establish this offence, the prosecution would need to prove beyond reasonable doubt that:

·          the person intentionally directed one or more activities of an organisation

·          the person is reckless as to the result that the activity or activities directed aided, or that there was a risk that the activity or activities would aid, the organisation to engage in conduct constituting an offence against any law

·          the person is reckless as to the circumstance that the organisation consists of 2 or more persons

·          the person is reckless as to the circumstance that the organisations aims or activities include facilitating the engagement in conduct, or engaging in conduct, constituting an offence against any law that is, or would if committed be, for the benefit of the organisation

·          the offence against any law mentioned in paragraph (d) is an offence against any law punishable by imprisonment for at least 3 years, and

·          the offence against any law mentioned in paragraph (b) is a constitutionally covered offence punishable by imprisonment for at least 12 months.

Under subsection 390.6(2), it will be an offence to direct the activities of a criminal organisation where the activities constitute an offence.  This offence will be punishable by a maximum penalty of 15 years imprisonment.

An example of this type of offence is as follows.  Persons A, B, C and D are all members of a criminal organisation.  Person A asks persons B, C and D to engage in the cultivation of commercial quantities of controlled plants.  The cultivation of commercial quantities of controlled plants is an offence under section 303.4 of the Criminal Code, punishable by imprisonment for up to 10 years.

Section 5.6 of the Criminal Code will apply automatic fault elements to the physical elements of the offence set out in paragraphs 390.6(2)(a) - (d).  To establish this offence, the prosecution would need to prove beyond reasonable doubt that:

·          the person intentionally directed one or more activities of an organisation

·          the person is reckless as to the result that the activity or activities directed constitute an offence against any law

·          the person is reckless as to the circumstance that the organisation consists of 2 or more persons

·          the person is reckless as to the circumstance that the organisations aims or activities include facilitating the engagement in conduct, or engaging in conduct, constituting an offence against any law that is, or would if committed be, for the benefit of the organisation

·          the offence against any law mentioned in paragraph (d) is an offence against any law punishable by imprisonment for at least 3 years, and

·          the offence against any law mentioned in paragraph (b) is a constitutionally covered offence punishable by imprisonment for at least 12 months.

Section 5.4 of the Criminal Code provides that a person is reckless with respect to a circumstance if he or she is aware of a substantial risk that the circumstance exists or will exist and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

Under both offences, a person must intentionally direct one or more activities of an organisation.  This is intended to apply broadly.  The element would be satisfied where a person has expressly requested that certain activities occur.  However, it would also be sufficient to prove that the activities were encouraged in any way, for example, where the direction was implied.  This element will be satisfied whether the person directs one or more specific members of the organisation, or directs the organisation generally (such as by sending an email or text message to many or all members of an organisation).

Under the offence in subsection 390.6(1), the activity or activities directed must aid, or there must be a risk that the activity or activities will aid, the organisation to engage in conduct constituting an offence.  With reference to the above example for subsection 390.6(1), where the person directed that members of the organisation purchase pieces of equipment, the prosecution would need to prove that the purchase of the equipment aided, or there was a risk that the purchase of the equipment aided the organisation in committing an offence relating to the cultivation of commercial quantities of controlled plants.

To avoid doubt, subsection 390.6(4) states that a person may be convicted of an offence against the offence in subsection 390.6(1) where there is a risk that the activity or activities directed will aid the organisation to engage in the commission of an offence, even if the activity or activities directed do not actually aid the commission of the offence.

Under the offence in subsection 390.6(2), the activity or activities directed must constitute an offence.  With reference to the above example for subsection 390.6(2), where the person directed that members of the organisation cultivate commercial quantities of controlled plants, the prosecution would need to prove that this constitutes an offence. 

Paragraphs 390.6(1)(c) to (e) and 390.6(2)(c) to (e) set out the elements which require proof that the organisation is a criminal organisation.

The organisation must consist of two or more persons (paragraph (c)).  The number of persons required for criminal activity to become organised criminal activity varies internationally, however it is generally described as involving a minimum of two or three persons.  In Australia, ‘serious and organised crime’ is defined in subsection 4(1) of the ACC Act as an offence that involves two or more offenders.  Several State and Territory jurisdictions also define organised criminal activity with reference to involving two or more persons.  To ensure consistency, the offence reflects these existing Commonwealth, State and Territory definitions. 

The organisation’s aims or activities must include facilitating the engagement in conduct, or engaging in conduct, constituting an offence against any law (paragraph (d)).  This is directed at aims or activities which facilitate the commission of crime by the organisation, and aims or activities which involve committing crime.  An example of the former may be where the organisation has as one of its activities the acquisition of weapons for the purpose of committing armed robberies.  An example of the latter may be where the organisation has as one of its aims the commission of armed robberies.  The offence against any law must, or would if committed be, for the benefit of the organisation (paragraph (d)).  Something is for the benefit of the organisation when it meets the definition of for the benefit of which will be defined in subsection 390.1(1) and is described above in the section on definitions.

Absolute liability will apply to paragraph (e), that the offence against any law mentioned in paragraph (d) (the offence which the organisation has as one of its aims or activities to commit, or facilitate commission in) is an offence against any law punishable by imprisonment for at least three years.  An offence against any law punishable by imprisonment for at least 3 years will be defined in subsection 390.1(1) and is described above in the section on definitions.

Absolute liability is set out in section 6.2 of the Criminal Code.  The effect of applying absolute liability to an element of an offence means that no fault element needs to be proved and the defence of mistake of fact is not available.  Accordingly, the prosecution will not be required to prove that the person knew that the offence against any law mentioned in paragraph (d) is an offence punishable by imprisonment for at least 3 years.

Absolute liability is appropriate and required for the element that the offence referred to in paragraph (b) is an offence punishable by imprisonment for at least three years because the circumstance that the offence is punishable by imprisonment for at least three years, is not an element going to the substance of the offence.  If it can be proven that the offence was a serious offence (ie carrying a penalty of at least three years), it is not necessary to require proof that the person knew it was an offence carrying a certain number of years.

Absolute liability will also apply to paragraphs 390.6(1)(f) and 390.6(2)(f), that the offence mentioned in paragraph (b) (the offence which is committed as a result of the activities directed, or as a result of the direction) is a constitutionally covered offence punishable by imprisonment for at least 12 months.  A constitutionally covered offence punishable by imprisonment for at least 12 months will be defined in subsection 390.1(1) and is described above in the section on definitions.

Absolute liability is appropriate and required for the element that offence mentioned in paragraph (b) is a constitutionally covered offence because this circumstance is a jurisdictional element of the 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 and those that do not.  This is consistent with Commonwealth criminal law practice, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers .

Absolute liability is appropriate and required for the element that the offence mentioned in paragraph (b) is an offence punishable by imprisonment for at least 12 months because the circumstance that the offence is punishable by imprisonment for at least 12 months, similar to a jurisdictional element, is not an element going to the substance of the offence.  If it can be proven that the offence was a serious offence, it is not necessary to require proof that the person knew it was an offence carrying a certain number of months or years.

Section 390.7 - Extended geographical jurisdiction - category C

Section 390.7 will apply extended geographical jurisdiction - category C to the offences created by sections 390.3, 390.4, 390.5 and 390.6.  This means that the offences will extend to conduct by an Australian citizen or an Australian body corporate outside Australia.  It will also allow the application of the offences to conduct by Australian residents or foreign nationals overseas where there is an equivalent offence in the law of the local jurisdiction.  Section 15.3 of the Criminal Code sets out the definition of extended geographical jurisdiction - category C.

The application of extended geographical jurisdiction (category C) reflects the increasingly transnational nature of organised crime, which often involves multiple participants in multiple countries.  In an operational example provided by the AFP, a global organisation believed to be controlled from Dubai provides money laundering services to a large number of Australian organised crime groups.  It is estimated that the group is moving over $150 million each year.  The application of extraterritorial jurisdiction to the offences will enhance the ability of Australian law enforcement agencies to collaborate with offshore partners in pursuance of a ‘top down’ strategy for dismantling such transnational money laundering syndicates.

Item 2 - Dictionary in the Criminal Code

Item 2 inserts a definition of federal aspect into the Dictionary of the Criminal Code which will refer to the definition of federal aspect set out in section 390.2 in the definition of state offences that have a federal aspect .

Item 3 - Application of sections 390.3, 390.4, 390.5 and 390.6 of the Criminal Code

Item 3 ensures that the new organised crime offences set out in sections 390.3, 390.4, 390.5 and 390.6 will only apply if all the relevant conduct was engaged in after the commencement of those sections.

Telecommunications (Interception and Access) Act 1979

Item 4

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 4 will amend section 5D of the TIA Act to include the new Commonwealth offences relating to involvement in serious and organised crime.  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 offences for which a telecommunications interception warrant may be applied for will include:

·          associating in support of serious organised criminal activity

·          supporting a criminal organisation

·          committing an offence for the benefit of, or at the direction of, a criminal organisation, and

·          directing the activities of a criminal organisation.



Schedule 5 - Money laundering

GENERAL OUTLINE

Part 1 of Schedule 5 amends the Criminal Code Act 1995 to enhance the ability of law enforcement agencies to investigate and prosecute the money laundering offences in Division 400.  The amendments will address a number of impediments to the investigation and prosecution of the money laundering offences identified by the Australian Federal Police and the Commonwealth Director of Public Prosecutions.  In particular, the amendments extend the geographical jurisdiction of those offences and remove limitations on the scope of the offences to enable them to apply to the full extent of the Commonwealth’s constitutional power in this area. 

Part 2 of Schedule 5 amends the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF Act) to improve its operation and enhance AUSTRAC’s ability to take enforcement action against reporting entities that do not comply with their obligations under the AML/CTF Act.   

Part 1 - Criminal Code Act 1995

Items 1, 2 and 3 - Subsection 400.1(1) of the Criminal Code (definition of instrument of crime and proceeds of crime )

Items 1 and 3 amend the definitions of ‘instrument of crime’ and ‘proceeds of crime’ to clarify that the money laundering offences in Division 400 of the Criminal Code apply to instruments or proceeds of crime in relation to all indictable offences.  This reflects the original policy intention of the amendments.

Instrument of crime and the proceeds of crime are defined for the purposes of Division 400 as including money or property that is related to “an offence that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence).” 

Offence is defined in the dictionary of the Criminal Code as “an offence against a law of the Commonwealth.”  The effect of the definition of offence is that ‘instrument of crime’ and ‘proceeds of crime’ may not apply in relation to a State, Territory or foreign indictable offence. 

Items 1 and 3 will remove that uncertainty. 

Item 2 amends the definition of proceeds of crime to include money or other property, wholly or partly derived or realised, whether directly or indirectly, by any person from the commission of a Commonwealth, State, Territory or foreign indictable offence even if it may be dealt with summarily in some circumstances.

These items will ensure consistency with the definitions of ‘instrument of crime’ and ‘proceeds of crime’ in the Proceeds of Crime Act 2002 .  

Item 4 - Section 400.2 of the Criminal Code

Item 4 repeals section 400.2 to introduce new sections which separate the conduct of ‘dealing with money or property’ and the circumstances that surround the dealing. 

In this amendment, section 400.2 focuses on the conduct of ‘dealing with money or other property’ and retains the conduct set out in the existing paragraph 400.2(1)(a). 

This item also amends the provisions in section 400.2 that deal with the application of the money laundering offences in Division 400. 

It is not necessary to include an application provision for the money laundering offences insofar as they relate to the laundering of proceeds of crime because these aspects of the offences are wholly supported under s 51(xxix) of the Constitution by reference to the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds of Crime (CoE Convention), to which Australia is a party. 

However, an application provision is necessary for the money laundering offences insofar as they relate to the laundering of instruments of crime as these aspects of the offences are not supported by the CoE Convention.

Item 4 therefore introduces section 400.2A, which sets out the circumstances in which the dealing with money or other property that is an instrument of crime must occur in order to attract the application of the offences.  This section limits the application of the offences, to the extent they apply to instruments of crime, to specified circumstances within Commonwealth legislative power.  Subsection 400.2A(3) provides that the offences apply where the money or other property is intended to become, or is at risk of becoming, an instrument of crime in relation to an offence within Commonwealth legislative power.  Subsection 400.2A(4) provides that the offences apply where the dealing with the money or other property that is intended to become, or is at risk of becoming, an instrument of crime occurs in the course of importation or exportation, by means of a postal, telegraphic or telephonic service, in the course of banking or outside Australia.

Subsection 400.2A(6) provides that absolute liability applies to subsections (3) and (4) as these subsections are both jurisdictional elements.  The effect of applying absolute liability to these elements will be that no fault element needs to proved and the defence of mistake of fact will not be available.  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 and those that do not.  Absolute liability is appropriate and required for these elements of the offences.  This is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers , and consistent with the approach taken in other offences in the Criminal Code. 

Items 5 - 15 - Insertion of a reference to s400.2A at the end of

sections 400.3 - 400.8

These items are consequential on Item 4 and introduce notes at the end of the offences at sections 400.3-400.8 which explain that section 400.2A affects the application of the money laundering offences so far as the offences relate to the instruments of crime. 

Item 16 - Subsection 400.9(1) of the Criminal Code - creation of a graduated offence with a $100,000 threshold for dealing with money or property reasonably suspected of being the proceeds of crime

Item 16 amends section 400.9 to introduce a higher penalty for dealing with money or property reasonably suspected of being the proceeds of crime worth $100,000 or more. 

The offences and penalties are as follows: 

·          Dealing with money or property reasonably suspected of being proceeds of crime worth under $100,000 continues to attract the existing penalty of 2 years imprisonment, or 120 penalty units, or both. 

·          Dealing with money or property reasonably suspected of being proceeds of crime worth $100,000 or more will attract a higher penalty of 3 years imprisonment, or 180 penalty units, or both.

A penalty of 3 years for the possession of money or property reasonably suspected of being the proceeds of crime worth more than $100,000 reflects the serious nature of possessing the proceeds of crime worth more that $100,000 and the significant criminal activity that has generated $100,000 or more. 

Items 17 and 20 - Section 400.9 of the Criminal Code

These items are consequential on the amendment in item 16 which creates a graduated offence for dealing with money or property reasonably suspected of being the proceeds of crime. 

Item 20 amends subsection 400.9(4) to provide that that absolute liability applies to paragraphs 400.9(1)(b) and 400.9(1A)(b) (which contain the element of the offence that it is reasonable to suspect that the money or property is proceeds of crime) and paragraphs 400.9(1)(c) and 400.9(1A)(c) (which set out the value of the money or other property that is the subject of the offence).  This is consistent with the application of absolute liability to these elements in the current money-laundering offences. 

As paragraph (b) establishes an objective standard of fault, being ‘reasonable to suspect’, it is appropriate to apply absolute liability to ensure that subjective fault elements, such as knowledge or recklessness, do not apply. 

It is also appropriate to apply absolute liability to paragraph (c), as this element does not relate to the substance of the offence but merely specifies the monetary threshold for the application of the offence.  Item 22 ensures that a person is not criminally responsible for the higher penalty offence in subsection 400.9(1), which applies where the value of the money or other property is $100,000 or more, if the person held a mistaken but reasonable belief that value of the money or property was less than $100,000.

Item 18 - Paragraph 400.9(2)(c) of the Criminal Code

Item 18 amends paragraph 400.9(2)(c) to attach a timeframe to the consideration of the conduct at paragraph 400.9(2)(c) of whether the value of money or property is grossly out of proportion to a defendant’s income and expenditure.  This amendment will ensure that consideration is given to the defendant’s income and expenditure over a reasonable period within which the conduct occurs. 

Item 19 - Subsection 400.9(3) of the Criminal Code

Item 19 repeals subsection 400.9(3) because it is not necessary to include an application provision for the offence in 400.9.  The offence is supported in its entirety under section 51(xxix) of the Constitution by reference to the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds of Crime, to which Australia is a party.

Item 21 - Subsection 400.9(6) of the Criminal Code

Item 21 repeals subsection 400.9(6) and is consequential on the amendment to the application provisions in item 4. 

Item 22 - Subsection 400.10(1) of the Criminal Code

Item 22 is consequential on the amendment in item 16 which creates a graduated offence for dealing with money or property reasonably suspected of being the proceeds of crime. 

This amendment will ensure that a person is not criminally responsible for the offence in subsection 400.9(1), which has a greater maximum penalty, if the person held a mistaken but reasonable belief that value of the money or property was less than $100,000, which is an offence with a lower maximum penalty in subsection 400.9(1A). 

Item 23 - Section 400.15 of the Criminal Code

Item 23 amends section 400.15 to extend the geographical jurisdiction for the money-laundering offences in Division 400.  The new provision will provide that a person is guilty of the money laundering offences in situations where that person:

  • engages in money laundering in circumstances covered by extended geographical jurisdiction - category B as set out in section 15.2 of the Criminal Code, or
  • engages in money laundering outside Australia, and the money or other property is the proceeds of crime, or could become an instrument of crime, in relation to an Australian offence (that is a Commonwealth indictable offence, a State indictable offence, an Australian Capital Territory indictable offence, or a Northern Territory indictable offence).

The existing provision applied extended geographical jurisdiction - category B to the money-laundering offences.  The effect of the new provision will be to extend the geographical jurisdiction of the offences to enable the prosecution of persons who launder money or property related to Australian offences overseas. 

Item 24 - Application

Item 24 sets out the application of the proposed amendments.  The amendments in Part 1 apply in relation to conduct engaged on or after the commencement of Part 1.  

Part 2 - Anti-Money Laundering and Counter-Terrorism Financing Act 2006

Item 25 - Section 5 (definition of non-financier)

Item 25 inserts a definition of non-financier to mean a person who is not an authorised deposit-taking institution (ADI), a bank, a building society, a credit union or a person specified in the Anti-Money Laundering and Counter-Terrorism Financing Rules (AML/CTF Rules).

Item 26 - Section 5 (definition of stored value card)

Item 26 amends the definition of stored value card to exclude debit cards and credit cards from the definition.  Item 26 also amends the definition of stored value card to include a portable device that is capable of being used to gain access to money value. 

This item will clarify the distinction between a stored value card, a debit or a credit card, and will provide greater certainty when considering the type of portable device that is capable of accessing monetary value.  It will ensure that a portable device capable of accessing value cannot be both a stored value card, and a debit or credit card. 

This item will clarify the definition of stored value cards and ensure that stored value cards that do not store the monetary value on the card itself are capable of being a stored value card for the purposes of the AML/CTF Act. 

Item 27 - Subsection 6(2) (table items 21, 22, 23 and 24)

Item 27 amends the designated services relating to stored value cards in subsection 6(2) (Table 1, items 21, 22, 23 and 24) to omit “stored on” and substitute “stored in connection with”. 

This item will clarify the operation of the designated services relating to stored value cards and ensure that stored value cards that do not store the monetary value on the card itself are capable of being a stored value card for the purposes of the AML/CTF Act. 

Item 28 - Subsection 6(2) (table items 31 and 32)

Table 1 in subsection 6(2) establishes designated services for the purposes of the AML/CTF Act. 

Item 28 amends the designated services relating to designated remittance arrangements (table items 31 and 32) to limit the provision of such a service to a person who is a non-financier that is carrying on a business of giving effect to remittance arrangements. 

The use of the term non-financier will ensure that an ADI, a bank, a building society, a credit union or a person specified in the AML/CTF Rules will not be able to provide the designated service at items 31 and 32. 

This amendment will also ensure that a non-financier can only provide a designated service at items 31 and 32 when the service is provided in the course of carrying on a business of giving effect to remittance arrangements.

Item 28 amends the designated service at item 31 to capture situations where a non-financier receives an instruction from a transferor entity for the transfer of money or property under a designated remittance arrangement. 

Item 28 amends the designated service at item 32 to capture situations where a non-financier arranges for money or property to be made available to an ultimate transferee entity as a result of a transfer under a designated remittance arrangement. 

Providers of remittance services that use the financial system to ‘accept’ or ‘make money or property available’ for customers appear to have been inadvertently excluded from both the definition of ‘designated remittance arrangement’ and the related designated services at items 31 and 32. 

This amendment will address this issue and implement the original policy intention by ensuring that remittance dealers who accept money from a customer, and make money available to a customer, through the financial system are providing designated services at items 31 and 32. 

Item 29 - Application

Item 29 sets out the application of the proposed amendments to section 6 of the AML/CTF Act.  The amendments to section 6 apply in relation to the provision of designated services on or after the commencement of this Part. 

Item 30 - Paragraphs 10(1)(a) and (b)

Item 30 amends the definition of designated remittance arrangement in section 10 to include situations where at least one of the parties to the transfer of money or property under a designated remittance arrangement is a non-financier. 

AUSTRAC has experienced difficulties relating to the taking of enforcement action against providers of designated remittance services in response to non-compliance with obligations under the AML/CTF Act.  It is difficult to prove that the entity located in a foreign country is not an ADI, a bank, a credit union, a building society or a person specified in the AML/CTF Rules to satisfy the definition in section 10.

This amendment will remove the requirement to prove that the entity located in a foreign country is not an ADI, a bank, a building society, a credit union or a person specified in the AML/CTF Rules, when proving the existence of a designated remittance arrangement.

Item 30 also amends the definition of designated remittance arrangement to capture arrangements where a person receives an instruction from a transferor entity for the transfer of money or property under a designated remittance arrangement, or arranges for money or property to be made available to an ultimate transferee entity as a result of a transfer under a designated remittance arrangement. 

Providers of remittance services that use the financial system to ‘accept’ or ‘make money or property available’ for customers appear to have been inadvertently excluded from both the definition of ‘designated remittance arrangement’ and the related designated services at items 31 and 32. 

This amendment will address this issue and implement the original policy intention by ensuring that remittance dealers who accept money from a customer, and make money available to a customer, through the financial system are providing a service under a designated remittance arrangement. 

Item 31 - Transitional Provisions for AML/CTF Rules

Item 31 introduces transitional provisions to ensure that existing AML/CTF Rules made under subparagraph 10(1)(a)(v) or (b)(v) apply to the definition of non-financier. 

Item 32 - Paragraph 10(3)(a)

Item 32 is consequential to the amendment in items 28 and 30 and amends paragraph 10(3)(a) to capture arrangements where a person receives an instruction from a transferor entity for the transfer of money or property under a designated remittance arrangement.  This amendment will implement the original policy intention and will address the issue outlined above in Item 30. 

Item 33 - Section 46 (table items 3 and 4)

Item 33 amends section 46 by omitting “person in Australia” and substituting “non-financier in Australia”.  This amendment is consequential to the amendments in items 28 and 30 and will ensure that an ADI, a bank, a building society, a credit union or a person specified in the AML/CTF Rules is not required to report an international funds transfer under table items 3 and 4 of section 46. 

Item 34 - Subsection 59(1)

Item 34 amends subsection 59(1) to clarify that a person who is required to provide a report about a movement of a bearer negotiable instrument (BNI) into or out of Australia, must do so immediately. 

This amendment will address problems encountered by AUSTRAC, Customs and the AFP when issuing an infringement notice for the failure to provide a report about the movement of a BNI.  The requirement to report a BNI ‘as soon as possible’ has created uncertainty over when a report must be provided. 

This amendment will provide greater certainty over when a report must be provided and ensure consistency with the timing of the requirement to report the movement of physical currency. 

Item 35 - Subsection 123(3)

Item 35 amends subsection 123(3) to prohibit a reporting entity from disclosing to a person information relating to a request for further information under subsection 49(1).

Specified persons or officials are permitted under subsection 49(1) to obtain further information about threshold transaction reports, international funds transfer instruction reports, and suspicious matter reports from a reporting entity. 

Section 123 establishes an offence of ‘tipping off’.  In particular, subsection 123(3) prohibits a reporting entity that has given information or produced a document to a person under subsection 49(1) from disclosing to anyone else that the information or document was provided. 

However, this prohibition only operates if the reporting entity gives information or produces a document.  The prohibition does not exist prior to the giving of information or production of a document and section 123 does not prohibit a reporting entity from disclosing to another person that it has received a request for information. 

This amendment will protect the integrity of the collection of AUSTRAC information by strengthening the tipping off offence in the AML/CTF Act and ensuring that there are no gaps in the offence.  This reflects the original policy intention of the tipping off offence.

Item 36 - Application

Item 36 sets out the application of the proposed amendment to subsection 123(3).  Item 36 will apply in relation to requirements made under subsection 49(1) before, on or after the commencement of this item. 

Item 36 does not create retrospective criminal liability.  Rather, it provides that the proposed prohibition on disclosure by reporting entities that are or have been required to provide information or produce a document under subsection 49(1) of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF Act) applies where that requirement arose before, on or after the commencement of the provision. 

 



Schedule 6 - Unfitness to plead

GENERAL OUTLINE

The purpose of this Schedule is to preserve the right of a person accused of a federal offence in Victoria to appeal a finding that he or she is unfit to plead.  This right of appeal is currently given to criminal defendants in Victoria by section 570C of the Crimes Act 1958 (Vic).  This section applies to federal defendants due to the operation of section 68 of the Judiciary Act 1903 (Cth), which applies State and Territory laws relating to the arrest and custody of offenders, or people charged with an offence, and procedures for their bail, committal, trial, conviction and appeal, to people who have committed, or are accused of, a Commonwealth offence. 

However, the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (CMIA) changed the Victorian law in this area by introducing a new scheme for dealing with defendants who have been found unfit to plead.  Prior to the CMIA, a jury’s finding that a person was unfit to plead operated, in effect, as a finalisation of criminal proceedings.  The CMIA provides that criminal proceedings continue even if a person is not fit to stand trial, and that appeal powers exist in relation to the outcomes of those proceedings. 

As section 570C of the Victorian Crimes Act no longer serves any purpose in relation to offences against Victorian law, the section was repealed, with effect from October 2009, by section 369 of the Criminal Procedure Act 2009  (Vic). 

The Commonwealth provisions relating to the fitness of a federal defendant to be tried are set out at Division 6 of Part 1B of the Commonwealth Crimes Act.  In accordance with sections 68 and 79 of the Judiciary Act, these provisions apply in concert with the relevant State and Territory provisions, unless the State or Territory provisions are incompatible with the Crimes Act provisions.

The scheme provided in the CMIA does not apply to people accused of a federal offence in Victoria as it is incompatible with Division 6 of Part 1B of the Commonwealth Crimes Act.

The Commonwealth Crimes Act does not provide federal defendants with a right of appeal equivalent to that in current section 570C of the Victorian Crimes Act.  As a result, although that section is no longer required for people accused of offences against Victorian law, it retains relevance for federal offenders.  If the appeal mechanism provided by section 570C of the Victorian Crimes Act is not maintained in some form, a federal defendant in Victoria would not be able to appeal a finding that he or she is unfit to plead.  Such a finding may, under subsection 20(2) of the Commonwealth Crimes Act, result in the detention of the defendant in a hospital or prison for a period not exceeding the maximum term of imprisonment for the offence.  Due to the potential serious consequences of a finding that a person is unfit to plead to a Commonwealth offence, it is critical that federal defendants are able to challenge such decisions.

Accordingly, this Schedule amends Division 6 of Part 1B of the Commonwealth Crimes Act to provide federal defendants with the ability to appeal a finding that they are unfit to plead, in a manner that reflects current section 570C of the Victorian Crimes Act. 

Commencement

Current sections 570A and 570C of the Victorian Crimes Act were repealed by section 369 of the Victorian Criminal Procedure Act.  However, the provisions of the Victorian Criminal Procedure Act that repeal sections 570A and 570C of the Victorian Crimes Act have not yet commenced and, at the time of preparing this Explanatory Memorandum, a firm date for their commencement had not been advised.  The Commonwealth has been advised that the repeal will take effect in October 2009. 

Given that federal defendants in Victoria will lose their ability to appeal a decision that they are unfit to plead when the relevant provisions of the Victorian Criminal Procedure Act come into effect, the commencement of this Schedule is linked to the commencement of subsection 369(4) of that Act.

Accordingly, item 2 of this Bill provides that items 1 and 2 of this Schedule commence at the later of:

·   the day after this enacted Bill receives Royal Assent, or

·   immediately after the commencement of subsection 369(4) of the Victorian Criminal Procedure Act.

This will ensure that there is no overlap between the operation of new section 20BI of the Commonwealth Crimes Act and sections 570A and 570C of the Victorian Crimes Act.

Item 2 of this Bill further provides that item 3 of this Schedule, which sets out transitional arrangements, commences immediately after the commencement of subsection 369(4) of the Victorian Criminal Procedure Act.  If that provision commences before this Schedule, item 3 of this Schedule will commence retrospectively.  This is necessary to preserve the rights of federal defendants in Victoria to appeal findings of unfitness to plead, to ensure the ability to conduct such appeals is maintained without interruption.   

Crimes Act 1914

Item 1 - At the end of Division 6 of Part 1B

This item inserts new section 20BI into Division 6 of Part 1B of the Commonwealth Crimes Act.  Division 6 sets out the Commonwealth provisions relating to the fitness of a federal defendant to be tried.  In accordance with sections 68 and 79 of the Judiciary Act, Division 6 applies in concert with the relevant State and Territory provisions, unless the State or Territory provisions are incompatible with the Crimes Act provisions.

New section 20BI will reflect current section 570C of the Victorian Crimes Act to preserve the right of a person accused of a federal offence in Victoria to appeal a jury’s finding that he or she is unfit to plead. 

Current section 570C of the Victoria Crimes Act applies to federal defendants due to the operation of section 68 of the Judiciary Act.  

As set out in the General Outline of this Schedule, above, Victoria has introduced a new scheme for dealing with defendants who have been found unfit to plead.  This scheme is set out in the CMIA.  As a result of the existence of the new scheme, section 570C of the Victorian Crimes Act no longer serves any purpose in relation to offences against Victorian law.  Accordingly, the section was repealed, with effect from October 2009, by section 369 of the Victorian Criminal Procedure Act. 

However, the new scheme set out in the CMIA does not apply to federal defendants as it is not compatible with the Commonwealth provisions set out at Division 6 of Part 1B of the Commonwealth Crimes Act.  As a result, although section 570C of the Victorian Crimes Act is no longer required for people accused of offences against Victorian law, it retains relevance for federal offenders.  As the Commonwealth Crimes Act does not provide a federal defendant with a right to appeal a decision that they are unfit to plead, if the appeal mechanism provided by section 570C of the Victorian Crimes Act is not maintained in some form, a federal defendant in Victoria would not be able to appeal a finding that he or she is unfit to plead. 

Subsection 20BI(1) will explain that section 20BI will apply if, in the prosecution of a federal offence in the Trial Division of the Supreme Court of Victoria or in the County Court of Victoria, a jury has found that the person accused of the federal offence is unfit to be tried.  This reflects the position in current subsection 570C of the Victorian Crimes Act .

Subsection 20BI(2) will provide that a federal defendant who comes within the parameters of subsection 20BI(1) (that is, that, in proceedings for a federal offence in the Trial Division of the Supreme Court of Victoria or in the County Court of Victoria for a federal offence, a jury has found that he or she is unfit to be tried) may appeal the jury’s finding to the Court of Appeal of Victoria.  Paragraphs 20BI(2)(a) to (c) set out the grounds on which such an appeal may be based.  The ability to appeal to the Court of Appeal of Victoria reflects the position in current section 570C of the Victorian Crimes Act.  The grounds of appeal reflect the grounds on which appeals under current section 570C may be based.  These grounds are set out in current subsection 570A(1) of the Victorian Crimes Act.          

Subsection 20BI(3) will set out the circumstances where the Court of Appeal must allow an appeal under subsection 20BI(2).  The circumstances where an appeal must be allowed are the same as those set out in current subsection 507A(2) of the Victorian Crimes Act.

Under subsection 20BI(5), the Court of Appeal may dismiss an appeal under subsection 20BI(2) if it considers that no substantial miscarriage of justice has occurred.  This provision applies even in circumstances where the Court would otherwise be required, by subsection 20BI(3) to allow the appeal.  Subsection 20BI(5) reflects current subsection 507A(3) of the Victorian Crimes Act.

Subsection 20BI(6) will set out the action that may be taken if the Court of Appeal allows an appeal under subsection 20BI(2).  It reflects current subsection 507C(2) of the Victorian Crimes Act.

Subsection 20BI(7) provides that the rules of court for the Court of Appeal of Victoria, which are made under the Supreme Court Act 1986 (Vic), may make provision for appeals under subsection 20BI(2) and proceedings relating to orders for the custody or bail of the accused applicant, under paragraph 20BI(6)(b).  Sections 570A and 570C of the Victorian Crimes Act do not specifically refer to the ability of the Court of Appeal of Victoria to make rules about the conduct of appeals under those sections, as the authority for the Court of Appeal to make such rules is given by section 25 of the Supreme Court Act.  Accordingly, subsection 20BI(7) continues the arrangements in relation to rules of court that apply under current sections 570A and 570C of the Victorian Crimes Act.  It is intended to clarify that the Supreme Court has the ability to make such rules, even though the proceedings will arise from federal, rather than Victorian legislation.     

 

Item 2 - Application of section 20BI of the Crimes Act 1914

 

This item clarifies that new section 20BI of the Commonwealth Crimes Act, as inserted by item 1 of this Schedule, applies to findings made before, on or after the commencement of that section.  This will assist individuals by ensuring that all federal defendants will retain the ability to appeal a finding that they are unfit to plead, regardless of whether that finding was made before or after the commencement of these amendments.  Item 3 of this Schedule further clarifies the arrangements that apply to appeals against findings of unfitness to plead that are commenced, but not concluded, before the commencement of new section 20BI.

Item 2 is retrospective in application but does not create retrospective criminal liability. 

 

Item 3 - Transitional provision

 

Item 3 applies if a federal defendant had commenced an appeal, under section 570C of the Victorian Crimes Act, against a jury’s finding that he or she was unfit to plead to a Commonwealth offence, but that appeal had not been finalised (including, if the appeal was allowed, by the court making orders for the defendant’s safe custody or bail under subsection 570C(2) of the Act) before section 570C was repealed. 

 

Subitem 3(1) provides that, in such a case, new section 20BI of the Commonwealth Crimes Act does not apply to the defendant (despite item 2 of this Schedule).  Instead, sections 570A and 570C of the Victorian Crimes Act (and any other provisions of that Act in so far as they relate to sections 570C or 570A as applied by section 570C) as in force immediately before their repeal, continue to apply to the appeal proceedings of the federal defendant.  This ensures that a federal defendant is able to continue and complete the process of appealing a decision that they are unfit to plead under the legislation under which those proceedings were instigated.  This should be simpler and less confusing for defendants and their legal representatives.     



Schedule 7 - Amendments relating to the Australian Crime Commission

GENERAL OUTLINE

 

The ACC, established under the ACC Act, is a statutory body that works collaboratively with Commonwealth, State and Territory agencies, to counter serious and organised crime in Australia.  Using intelligence and investigative strategies, the ACC endeavours to better position Australia to meet and respond to the threats posed by serious and organised crime groups.

This Schedule will amend to the ACC Act t o improve the operation and accountability of the ACC, including enhancing the ACC’s powers to deal with uncooperative witnesses, clarifying procedural powers for issuing summons and notices to produce, and requiring regular independent review of the ACC.

Items 1 - 5

 

Section 4(1) sets out definitions that are relevant to the operation of the Act.  Items 1 to 5 will amend existing, or insert new, definitions relevant to the changes that will be made by this Schedule.

Item 1

Item 18 will provide the ACC with the power to refer an uncooperative witness in an examination to a superior court to be dealt with as if the witness was in contempt of that court. 

Under the new contempt provisions inserted by Item 18 (in particular under new section 34D), an examiner will be able to direct a constable to detain an uncooperative witness for the purpose of bringing that witness before the court to be dealt with for contempt.

This Item will insert a definition of constable into subsection 4(1) to mean a member or special member of the AFP or a member of the police force or police services of a State.  Under subsection 4(1) State includes a Territory.  This definition is the same as the definition of constable in subsection 3(1) of the Crimes Act.

Item 2

 

Division 1 of Part II establishes the governance arrangements for the ACC , and in particular sets out matters relevant to the conduct of ACC Board meetings.  Sections 7E, 7G and 7J - which deal with who may preside over Board meetings, voting and resolutions of Board meetings - refer to eligible Commonwealth Board member , which in turn is defined in subsection 4(1).  This item will amend the definition of eligible Commonwealth Board member in subsection 4(1) to include the Commissioner of Taxation.  This amendment is necessary as a result of Item 7, which will amend subsection 7B(2), to include the Commissioner of Taxation as a member of the ACC Board.

Item 3

Item 18 will provide the ACC with the power to refer an uncooperative witness in an examination to a superior court to be dealt with as if the witness were in contempt of that court.  The phrase ‘in contempt of the ACC’ will be relevant to the new provisions inserted by Item 18.  This item will insert a definition of in contempt of the ACC in subsection 4(1) to have the meaning given by section 34A (inserted by Item 18).  New section 34A will list the actions that will constitute contempt.  These actions are based on offences in the ACC Act (including as amended by this Schedule) for conduct that occurs during an examination.



Item 4



Under section 7C, the ACC Board can authorise the ACC to undertake intelligence operations or to investigate federally relevant criminal activity, and can determine that an intelligence operation or investigation is a special operation or special investigation.  A determination that an operation/investigation is a special operation/investigation allows the ACC to use its coercive information gathering powers. 

Intelligence operation is defined in subsection 4(1) as the collection, correlation, analysis or dissemination of criminal information and intelligence relating to federally relevant criminal activity.  Although investigation is not defined in the ACC Act, an investigation is generally directed towards obtaining evidence that can be used to disrupt the activities of particular criminal groups (eg through criminal prosecution or confiscation proceedings).  In practice, however, gathering intelligence and conducting investigations are not always distinct activities.  For example, if the ACC were to conduct an intelligence operation into the production of amphetamines they may, in the course of that operation undercover particular instances where drug offences have been committed and in doing so may be conducting what constitutes an investigation. 

This item will amend the definition of intelligence operation in subsection 4(1) so that it will also include the investigation of federally relevant criminal activity.  This amendment will recognise that a specific investigation can be a part of an intelligence operation, and will allow the ACC to undertake actions which may otherwise be reserved for an ‘investigation’.  For example, a search  warrant under section 3E of the Crimes Act can only be obtained for the investigation of an offence.  A search warrant cannot be obtained under the Crimes Act for an intelligence operation or intelligence gathering in general.  This amendment will mean that while conducting an intelligence operation, the ACC will be able to obtain a search warrant under the Crimes Act if it is conducting an investigation into an offence which is a necessary part of the operation.

A determination by the ACC Board that an intelligence operation is a special operation, and that an investigation is a special investigation, are separate processes.  The changes to the definition of intelligence operation made by this item will not result in an ‘investigation’ that forms part of a ‘special operation’ acquiring ‘special investigation’ status.  For that particular investigation to be a ‘special investigation’, the Board will still be required to make a specific determination under subsection 7C(3).  There will be no scope, following the amendment, for an investigation to be deemed to be a ‘special investigation’ simply because the investigation forms part of a ‘special operation’.  This is appropriate as the special powers under the ACC Act are only available if something has been authorised to be a special investigation or special operation.

 

Item 5

Section 28 provides examiners with the power to summons witnesses to appear before an examiner at an examination to give evidence, and to produce such documents or other things, as outlined in the summons.  Section 29 provides examiners with the power to require persons to produce a document or thing to a specified person.

Section 29A allows an examiner to include a non-disclosure notation in a summons or notice issued under sections 28 or 29 to prohibit the disclosure of information about the summons or notice or any official matter connected with it.

Section 29B makes it an offence to disclose the existence of, or any information relating to any official matter connected with, the summons or notice where a non-disclosure notation has been included.  Section 29B also sets out the circumstances in which a disclosure may be made despite the inclusion of a non-disclosure notation.

Items 15 and 17 will expand the exceptions to the non-disclosure offences to allow disclosure to the Ombudsman for the purpose of making a complaint under the Ombudsman Act 1976 .  This item will define Ombudsman as the Commonwealth Ombudsman.

 

This item will also clarify that all references in the ACC Act to the Ombudsman are references to the Commonwealth Ombudsman.

 

Item 6

 

Item 6 makes changes to the definition of intelligence operation in subsection 4A(6) in the same way, and for the same reasons, as the changes to the definition of intelligence operation in subsection 4(1) as amended by Item 4.  The definition of intelligence operation in subsection 4A(6) is necessary as it relates to when an offence has a federal aspect, which in turn is relevant to the definition of federally relevant activity in section 4(1).    

 

Item 7



Division 1 of Part II establishes the governance arrangements for the ACC.  In particular, Section 7B establishes the ACC Board, and sets out who is a member of the ACC Board.  This item will amend subsection 7B(2) to include the Commissioner of Taxation as a member of the ACC Board.  This amendment is in accordance with recommendations from four separate PJC-ACC reports: Report of the Review of the Australian Crime Commission Act 2002 ; Examination of the Annual Report for 2004-2005 of the Australian Crime Commission; Examination of the Australian Crime Commission Annual Report 2006-2007; and, Examination of the Australian Crime Commission Annual Report 2007-08 These reports indicated that there would be considerable merit in the Commissioner of Taxation being added to the ACC Board. 

The current membership of the Board provides for a diverse range of issues and views to be considered in setting the ACC’s priorities.  The benefits of adding the Commissioner of Taxation as a Board member is that it will further enhance the ACC Board’s expertise and, in light of significant taxation related activity identified in ACC investigations and intelligence operations, increase the ACC’s capability to counter the impact of serious and organised crime. 

Item 8

 

Division 1 of Part II establishes the governance arrangements for the ACC, and in particular establishes and sets out the functions of the ACC Board and the IGC-ACC.  

Section 7C outlines the functions of the ACC Board, which include authorising the ACC to undertake intelligence operations or to investigate matters relating to federally relevant criminal activity.  Under subsections 7C(2) and 7C(3) of the ACC Act, the Board may determine, in writing, that an operation is a special operation and that an investigation is a special investigation.  These determinations allow the ACC to access its coercive information gathering powers.

Subsection 7C(5) currently requires that a Board determination made under subsection 7(C)(2) or subsection 7C(3) be provided to the IGC-ACC within three days.  This requirement ensures that the IGC-ACC is made aware when the Board determines an operation or investigation is a special operation or special investigation.  It also ensures that the IGC-ACC is provided with information relating to the general nature of the circumstances or allegations constituting the federally relevant criminal activity that is to be the subject of the operation or investigation.

This item will amend subsection 7C(5) so that copies of Board determinations relating to special operations and special investigations will be required to be provided to the IGC-ACC within a period of seven days beginning on the day a determination is made.  A timeframe of seven days is more administratively practicable than three days, and balances operational and administrative restraints without compromising the need to keep the IGC-ACC informed.  For example, if a Board determination is made on Friday, currently the ACC would effectively have only one working day to prepare copies of a determination and provide them to the IGC-ACC.

Items 9 - 14

 

The ACC has access to coercive information gathering powers where the ACC Board has authorised an intelligence operation or investigation, and has determined that the operation/investigation is a special operation/investigation.  In particular, section 28 provides examiners with the power to summons witnesses to appear before an examiner at an examination to give evidence and to produce such documents or other things, as outlined in the summons.  Section 29 provides examiners with the power to require persons to produce a document or thing to a specified person. 

Subsections 28(1A) and 29(1A) require an examiner, when issuing a summons or notice, to be satisfied that it is reasonable in all the circumstances to do so.  The examiner is also required to record in writing the reasons for the issue of the summons or notice.

In August 2007, Justice Smith of the Victorian Supreme Court in ACC v Brereton [2007] VSC 297, held that for a summons issued under section 28 to be valid, reasons for issuing the summons must have been recorded prior to the time the summons was actually issued.  While Justice Smith’s findings in Brereton were confined to the issuing of summons, his reasoning also had implications for notices to produce issued under section 29.  

Justice Smith’s findings in Brereton were the basis for the Australian Crime Commission Amendment Act 2007 (ACC Amendment Act), which amended the ACC Act to:

·          clarify that an examiner could record reasons for issuing a summons or notice, before, at the same time, or as soon as practicable after issuing a summons or notice (subsections 28(1A) and 29(1A))

·          validate summonses and notices issued prior to the commencement of the ACC Amendment Act which would otherwise be invalid because an examiner did not records their reasons for issuing the summons or notice prior to the summons or notice being issued, and

·          provide that summonses or notices were not invalid merely because it fails to comply with the technical requirements of the Act (subsection 28(8) and 29(5)).

As a result of the findings of Justice Smith in Brereton , there was at the time a pressing risk of collateral challenge to the validity of summons and notices issued by examiners.  Had the amendments not been made urgently, significant prosecutions would have continued to be at risk of being derailed or delayed, based on challenges to the validity of summons and notices. 

Notwithstanding its passage, the ACC Amendment Act was examined by the PJC-ACC in 2008.  The report of the PJC-ACC, Inquiry into the Australian Crime Commission Act Amendment Act 2007 , was published on 4 September 2008 (2008 Report)

In its 2008 Report, the PJC-ACC noted at pages 16-17 and 20 that:

[A] body invested with intrusive coercive powers should not be permitted to exercise those powers without appropriate audit and record mechanisms. Some form of checks and balances is required, and this is what is envisaged and supplied in subsections 28(1A) and 29(1A) of the Act.  [T]he PJC believes that the making of a written record is crucial in the process of issuing either a summons or a notice: the requirement to record reasons in writing evidences the examiners’ compliance with subsections 28(1A) and 29(1A) of the Act.

The requirement to record reasons in writing provides a means for testing whether the examiners have properly exercised the ACC’s coercive powers, including having had due regard to statutory safeguards…And the committee's recommendations will clarify and strengthen the intention and expectations of the Parliament.

On that basis, the PJC-ACC recommended that subsections 28(1A) and 29(1A) should be amended to ensure that the reasons for the decision to issue a summons or notice be recorded in writing before the issuing of a summons or notice (Recommendation 2). 

The PJC-ACC report also noted (at page 22) that the operation of subsections 28(8) and 29(5) ‘ could negate the safeguards contained in subsections 28(1A) and 29(1A), as well as eliminate a means of accountability. ’  That is, subsections 28(8) and 29(5) preserved the validity of summonses and notices despite a failure to ever record reasons (and not just a failure to comply with the requirements of when those reasons could be recorded).  Accordingly, t he PJC-ACC also recommended that subsections 28(8) and 29(5) be repealed (Recommendation 3)

Items 9-14 will respond to the PJC-ACC report to require an examiner to record reasons in writing at or before the time a summons or notice is issued.  A failure to do this will invalidate the summons or notice.  These amendments will only operate prospectively, that is, the requirements to records reasons before or at the time a summons or notice is issued will only apply to summons or notices issued after the commencement of this Schedule.  Accordingly, a failure to comply with such requirements will only invalidate summons or notices issued after the commencement of this Schedule. 

Items 9 and 10

 

These items will narrow the operation of subsection 28(1A) so that the reasons for issuing a summons must be recorded by the examiner at or before the time the summons was issued.  An examiner will no longer be able to record the reasons why a summons was issued after the summons has been issued.  This will implement Recommendation 2 of the PJC-ACC in its 2008 Report.

Item 11

 

Subsection 28(8) states that an examiner’s failure to:

·          comply with the requirement t o record reasons for issuing the summons (subsection 28(1A))

·          attach the relevant Board determination establishing the special operation/investigation to which the summons relates (subsection 28(2)), and

·          issue a non-disclosure notation when required (under section 29A)

do not invalidate the summons.

This item will repeal subsection 28(8) and replace it with a new subsection stating that a failure to comply with requirements set out in section 29A will not invalidate the summons. As such, a failure to comply with the requirement to record reasons and attach the relevant Board determination (subsections 28(1A) and 28(2)) will invalidate the summons.

Recommendation 3 of the PJC-ACC in its 2008 Report was that all of subsection 28(8) be repealed.  However, the new subsection 28(8) will state that a failure to issue a non-disclosure notation under section 29A will not invalidate the summons.  The 2008 Report focused on ensuring that an examiner be properly satisfied prior to issuing a summons or notice, and that the reasons for issuing the summons or notice be recorded.  The requirement to include a non-disclosure notation under section 29A is not related to the decision of whether or not to issue a summons or notice.

Items 12 and 13

 

These items will narrow the operation of subsection 29(1A) so that the reasons for issuing a notice must be recorded by the examiner at or before the time the notice was issued.  An examiner will no longer be able to record the reasons why a notice was issued after the notice has been issued.  This will implement Recommendation 2 of the PJC-ACC in its 2008 Report.

Item 14

 

Subsection 29(5) states that an examiner’s failure to:

·          comply with the requirement t o record reasons for issuing the notice (subsection 29(1A)); and

·          issue a non-disclosure notation when required (under section 29A)

do not invalidate the notice.

This item will repeal subsection 29(5) and replace it with a new subsection stating that a failure to comply with requirements set out in section 29A will not invalidate the notice.  The effect of this amendment will be that a failure to comply with the requirement to record reasons in subsection 29(1A) will invalidate the summons.

Recommendation 3 of the PJC-ACC in its 2008 Report was that all of subsection 29(5) be repealed.  However, the new subsection 29(5) will state that a failure to issue a non-disclosure notation under section 29A will not invalidate the summons.  The 2008 Report focused on ensuring that an examiner be properly satisfied prior to issuing a summons or notice, and that the reasons for issuing the summons or notice be recorded.  The requirement to include a non-disclosure notation under section 29A is not related to the decision of whether or not to issue a summons or notice.

Items 15 - 17

 

The ACC has access to coercive information gathering powers where the ACC Board has authorised an intelligence operation or investigation, and has determined that the operation/investigation is a special operation/investigation.  In particular, section 28 provides examiners with the power to summons witnesses to appear before an examiner at an examination to give evidence and to produce such documents or other things, as outlined in the summons.  Section 29 provides examiners with the power to require persons to produce a document or thing to a specified person.

Section 29A requires or allows (depending upon the circumstances) an examiner to include a non-disclosure notation in a summons or notice issued under sections 28 or 29 to prohibit the disclosure of information about the summons or notice or any official matter connected with it.  The purpose of a non-disclosure notation is to protect the safety or reputation of a person, the fair trial of a person who has been or may be charged with an offence, and the effectiveness of an operation or investigation.

Subsection 29B(1) makes it an offence to disclose the existence of, or any information relating to any official matter connected with, the summons or notice where a non-disclosure notation has been issued.

Subsection 29B(2) sets out the circumstances in which the person issued with the summons or notice may make a disclosure despite the existence of a non-disclosure notation.  These circumstances are:

·         in accordance with the circumstances, if any, specified in the notation

·         to a legal practitioner for the purpose of obtaining legal advice or representation relating to the summons or notice

·         to a legal aid officer for the purpose of obtaining assistance relating to the summons or notice

·         if the person is a body corporate - to an officer or agent of the body corporate for the purpose of ensuring compliance with the summons or notice, or

·         if the person is a legal practitioner - to another person for the purpose of obtaining their agreement to disclose something covered by legal professional privilege. 

Subsection 29B(4) outlines the only circumstances in which a person notified of the summons or notice (whether under subsection 29B(2) or 29B(4)) can further disclose the existence of the summons or notice.  A person who is notified of the summons or notice must not disclose the summons or notice except for the following reasons:

·         if the person is an officer or agent of a body corporate, to:

o    another officer or agent of the body corporate for the purpose of ensuring compliance with the summons or notice

o    a legal practitioner for the purpose of obtaining legal advice or representation relating to the summons, notice or matter, or

o    a legal aid officer for the purpose of obtaining assistance under section 27 relating to the summons, notice or matter

·         if the person is a legal practitioner - for the purpose of giving legal advice, making representations, or obtaining assistance relating to the summons, notice or matter, or

·         if the person is a legal aid officer - for the purpose of obtaining legal advice or representation relating to the summons, notice or matter.

In its 2008 Report, the PJC-ACC, in examining oversight of the ACC, noted that:

The Commonwealth Ombudsman (Ombudsman) has some oversight of the ACC and its examiners. But the committee suggests that there is some confusion regarding whether the Ombudsman can receive a complaint without the complainant being in breach of a non-disclosure order.

Accordingly, the PJC-ACC recommended that subsection 29B(4) of the ACC Act be amended to allow disclosure to the Commonwealth Ombudsman (Recommendation 4).  Items 15 and 17 will respond to the PJC-ACC recommendation to allow disclosure to the Ombudsman.

The non-disclosure provisions in paragraph 29B(2)(b) currently allows the person who is issued with a summons or notice to disclose the summons or notice to a legal practitioner for the purpose of obtaining legal advice or representation in relation to the summons or notice.  Paragraph 29B(4)(b) then allows that legal practitioner to further disclose the notice or summons for the purpose of giving legal advice, making representations, or obtaining assistance relating to the summons, notice or matter

Item 15

This item will expand the circumstances in subsection 29B(2) to include making disclosures to the Ombudsman for the purpose of making a complaint under the Ombudsman Act 1976 , or to the ACLEI for the purpose of referring to the Integrity Commissioner an allegation or information that raises a corruption issue.   

Recommendation 3 of the PJC-ACC in its 2008 Report was limited to amending subsection 29B(4).  Item 17 will implement this recommendation.  However, it is appropriate that all people who are aware of the summons or notice (either under subsection 29B(2) or 29B(4)) will be able to disclose matters connected to the summons or notice to the Ombudsman where appropriate.

ACLEI is responsible for responsible for preventing, detecting and investigating serious and systemic corruption issues in the AFP and the ACC.  As such, it is appropriate that a person is able to disclose a summons or notice to ACLEI for the purpose of referring to the Integrity Commissioner an allegation, or information that raises a corruption allegation.

Item 16

 

This item will amend paragraph 29B(4)(b) so that the legal practitioner notified of the summons or notice under paragraph 29B(2)(b) will be able to disclose the summons or notice f or the purposes of obtaining legal advice or representation as well as the current reasons listed in paragraph 29B(4)(b).  For example, this amendment will allow a solicitor to refer the matter to counsel.

Item 17

 

This item will expand the circumstances in subsection 28B(4) to include making disclosures to the Ombudsman for the purpose of making a complaint under the Ombudsman Act 1976 or to the ACLEI for the purpose of referring to the Integrity Commissioner an allegation or information that raises a corruption issue.  This item implements Recommendation 3 of the PJC-ACC in its 2008 Report.    

ACLEI is responsible for responsible for preventing, detecting and investigating serious and systemic corruption issues in the AFP and the ACC.  As such, it is appropriate that a person is able to disclose a summons or notice to ACLEI for the purpose of referring to the Integrity Commissioner an allegation, or information that raises a corruption allegation.

Item 18

 

This item will enable the ACC to refer an witness who is not cooperating with an ACC examination to a court to be dealt with as if the person was in contempt of that court.  This will respond to recommendations made by the PJC-ACC and an independent review of the ACC Act by Mr Mark Trowell QC.

The ACC has access to coercive information gathering powers where the ACC Board has authorised an intelligence operation or investigation, and has determined that the operation/investigation is a special operation/investigation.  In particular, section 28 provides examiners with the power to summons witnesses to appear before an examiner at an examination to give evidence and to produce such documents or other things, as outlined in the summons.  Section 29 provides examiners with the power to require persons to produce a document or thing to a specified person.

Process for dealing with an uncooperative witness

The Act contains a number of criminal offences aimed at ensuring that a person issued with a notice or summons complies with that notice or summons.  These offences target:

·         failing to attend an examination

·         failing to take an oath or affirmation

·         failing to produce a document

·         failing to answer questions

·         giving false or misleading evidence, and

·         obstructing or hindering an examiner or the ACC.

These offences are punishable by up to five years imprisonment or a fine not exceeding 200 penalty units. 

An examination will usually occur at an early or critical stage of the investigation or operation.  As such, it is crucial that the ACC is able to obtain the information it is seeking at that stage. 

There are two issues with the offences as they currently operate.  Firstly, there is no immediate threat of detention.  At present, if a person is summonsed to appear as a witness and attends the examination but refuses to cooperate, the matter is referred to the CDPP and the prosecution proceeds by way of summons.  As a result, there is no immediate detention or threat of immediate detention to the person.  Arresting the person is not available as it is not necessary to arrest a witness in order to achieve any of the purposes set out in paragraph 3W(1)(b) of the Crimes Act.

Secondly, the effectiveness of these offences is often compromised by the delay in the commencement of court proceedings.  It can often take a long time before a matter is brought before a court and even longer before the court is able to deal with the matter.  Witnesses have been prepared to not cooperate with examiners, knowing that no penalty will be imposed for at least 12-18 months.  Witnesses are aware that they may also be able to avoid criminal conviction (and therefore any penalty) by eventually agreeing to give evidence prior to the completion of the criminal process knowing that the evidence will have lost its value to the investigation by that stage.  By delaying when information is provided, a witness is able to effectively delay and frustrate the operation of an ACC investigation.

Reviews of ACC powers to deal with uncooperative witnesses

In 2001, the National Crime Authority Legislation Amendment Act 2001 (the NCA Amendment Act) amended various provisions of the then National Crime Authority Act 1984 (the NCA Act) to improve the operation of the coercive powers.  Section 4 of the NCA Amendment Act imposed an obligation that the operation of the NCA Act be reviewed after a period of five years to monitor the effect of the amendments.  The ACC Act replaced the NCA Act, with the ACC replacing the National Crime Authority.  The requirement to review the operation of the NCA Amendment Act continued under the ACC Act.

In 2006, the then Minister for Justice and Customs commissioned an independent review and report on the operation of certain provisions in the NCA Act and the ACC Act.  The independent review was conducted by Mr Mark Trowell QC.  Mr Trowell’s report (the Trowell Report) was presented in the House of Representatives on 21 February 2008.

The terms of reference of Mr Trowell’s review included analysing, among other matters, whether the ACC Act should be amended to provide the ACC with a contempt power to deal with witnesses who did not fulfil their obligations under the ACC Act.

The Trowell Report found that the lack of a contempt power for dealing with uncooperative witnesses in examinations is a significant impediment to its capacity to combat serious and organised crime.  The Trowell Report recommended that the ACC Act be amended to give examiners the capacity to refer an alleged contempt to a superior court to consider and deal with as though it were contempt of that court.  The Trowell Report went on to recommend that if, after hearing a contempt application, a court finds the person to be in contempt, the court would have the power to deal with the person as if they were in contempt of court (for instance, the court would have the power to imprison the person). 

The issue of including a contempt power for the ACC has since been considered by the PJC-ACC on four occasions. 

In its Inquiry into the future impact of serious and organised crime on Australian society , completed on 19 September 2007, the PJC-ACC recommended that the issue of failure to cooperate with the Australian Crime Commission examination process be resolved immediately and that the Commonwealth Government release the Trowell Report as a matter of priority (Recommendation 2).  In its Examination of the ACC Annual Report 2006-07 , tabled on 18 June 2008, the PJC-ACC recommended that the Government address the emerging problem that refusal to cooperate with the examiners and examination process is being employed as a delaying tactic to thwart or frustrate ACC operations (Recommendation 2) .  In its 2008 Report, the PJC-ACC again recommended that the ACC Act be amended to include a contempt power (Recommendation 6).  In its Examination of the ACC Annual Report 2007-08 , the PJC-ACC further reiterated its recommendation that the ACC be provided with the power to refer uncooperative witnesses to court to be dealt with for contempt (Recommendation 1).

Rationale for changes

This item will implement the key recommendation of the Trowell Report, and respond to the recommendations of the PJC-ACC, by providing an examiner with the power to refer uncooperative witness to a superior court to be dealt with as if the witness was in contempt of that court. 

Under the new contempt provisions, the ACC, where appropriate, will be able to deal promptly with an uncooperative witness, while avoiding the delays which are a part of the prosecution process. 

Allowing an examiner to refer a person to a court to be dealt with for contempt will provide a swift mechanism for dealing with uncooperative witnesses contempt proceedings bring with them the threat of immediate detention.  It is anticipated that the new contempt provisions will motivate an uncooperative witness to reconsider his or her position and comply with the requirements of an examination, and avoid the immediate threat of detention.

Allowing a person to be dealt with through contempt provisions will maintain the integrity of the examination process as an important investigative and intelligence-gathering tool in combating serious and organised crime.  The new contempt procedures will bring the ACC into line with other State and Territory agencies similar to the ACC who have had contempt provisions for some time.  The experience of those agencies is that the power to cite an uncooperative witness for contempt is used sparingly, and that the threat of such action will be often sufficient to secure compliance.

Section 34A



Section 34A will provide that a person is in contempt of the examiner if he or she:

·         refuses or fails to take an oath/affirmation when required

·         refuses or fails to answer a question when required

·         refuses or fails to produce a document or thing when required under a notice to produce, a summons or otherwise as part of an examination

·         if a claim of legal professional privilege is made by a legal practitioner - refuse or fail to reveal the name and the address of the person to whom the privilege applies

·         provides false or misleading information to an examiner

·         obstructs or hinders an examiner in the performance of his or her functions

·         disrupts an examination before an examiner, or

·         threatens a person present at an examination before an examiner.

These elements of being ‘in contempt of the ACC’ mirror offences currently in the Act which relate to not cooperating with an ACC examination.   



Section 34B

Section 34B will set out the process for an examiner to refer an uncooperative witness to the Federal Court or the Supreme Court of a State or Territory, and for the court to determine whether the person is in contempt of the ACC, and if so, to deal with that person if he or she was in contempt of that court.

Subsection 34B(1) will provide that where an examiner is of the opinion that a person is in contempt of the ACC (within the meaning of section 34A), the examiner can make an application to either the Federal Court or the Supreme Court of the State or Territory in which the examination to is being conducted, to be dealt with for contempt.  As an examiner presides over an examination, it is appropriate that the examiner form the initial (but not conclusive) opinion that a person is in contempt.  It is the court (under subsection 34B(5)) that determines whether a person is in contempt, and determines the consequences of being in contempt.

Subsection 34B(2) will require the examiner, before making an application under subsection 34B(1) to inform the person they intend to refer them to a court to be dealt with for contempt.  This subsection will ensure that a person is given early notification of the consequences of his of her non-compliance, giving him or her an opportunity to comply with the requirements of the examination.

Subsection 34B(3) will provide that the application to the court under subsection 34B(1) must be accompanied by a certificate that sets out the grounds for making the application and the evidence in support of the application.  The certificate is necessary to set out the matters relevant to the court’s determination of whether a person was in contempt of the ACC.  Ordinarily, the certificate would contain a summary of the alleged contempt, and a detailed statement from the examiner outlining why he or she is of the opinion that the person is in contempt.  Any additional evidence or statements that become necessary will be able to be adduced under subsection 34B(5).

Subsection 34B(4) will require that a copy of the certificate referred to in subsection 34B(3) is given to the person who is the subject of the contempt proceedings before, or at the same time as, the application is made.  This is a necessary and important safeguard to ensure that the person is made aware of the reasons why the examiner believes them to be in contempt and is given an opportunity to prepare their own case that he or she is not in contempt.

Subsection 34B(5) will allow the court to determine that a person was in contempt of the ACC after considering the certificate, and any evidence or statements in support of the ACC or the person.  If a court does find that a person was in contempt of the ACC, the Court may deal with the person as if he or she were in contempt of that court. 

Subsection 34B(6) will state that the rules and principles in Chapter 2 of the Criminal Code Act 1995 apply to proceedings under the contempt provisions.  This section is necessary to ensure that the court can apply the general principles of criminal responsibility in Chapter 2 of the Criminal Code to the contempt proceeding as if it was a proceeding for a criminal offence.  For example, this will mean that the circumstances in which there is no criminal responsibility, set out in Part 2.3 of Chapter 2 of the Criminal Code, will apply to the contempt proceeding.  This is necessary because the contempt provisions are not statutory offences to which Chapter 2 would ordinarily apply.

Section 34C



Section 34C will provide that contempt proceedings are to be conducted in accordance with the ordinary rules and procedures of the Court to which the examiner applies.  This will ensure that the court will retain overall control of the contempt proceedings from the time the person is brought before that court until the application is disposed of.  The examiner will simply be a party to the proceeding.

Subsection 34C(3) will also provide that the certificate submitted under subsection 34B(3) by the examiner stating the grounds for making the application and evidence in support of that application is prima facie evidence showing contempt of the ACC.  This will allow the court to find the facts of the alleged contempt without necessarily having to rely on any oral testimony.  This does not prevent the defendant from challenging the evidence.  However, if there is no dispute as to the facts, the certificate will expedite the contempt proceedings. 

Section 34D



While it is anticipated that in most instances, uncooperative witnesses will voluntarily attend court, there may be some instances where the assistance of law enforcement is necessary to bring the alleged contemnor to the court.  The power to detain a person can also be an effective mechanism to secure compliance from a non-cooperative witnesses because it enables the examiner make an instant and enforceable threat to that witness’s liberty.  Anecdotal evidence from State coercive bodies, which have the power to cite witnesses for contempt, indicates that this power is an invaluable tool held in reserve for conducting coercive inquiries.

Section 34D will provide an examiner, who proposes to make an application to the court under subsection 34B(1), to direct a constable to detain a person for the purposes of bringing him or her before a court for contempt proceedings.  The definition of constable will be inserted by Item 1 to mean a member or special of the AFP or a member of the police of a State.  Under subsection 4(1) State includes a Territory.   

If a person is detained, the ACC will be required, under subsection 34D(2), to apply to the court under subsection 34B(1) as soon as practicable.  Further, there will be a requirement that the person who has been detained be brought before the court as soon as practicable.  The court will then be able to, under subsection 34D(3):

·          direct that the person be released from detention on the condition that he or she will appear before the court in relation to the application (paragraph 34D(3)(a)), or

·          order that the person continue to be detained until the contempt proceedings are completed (paragraph 34D(3)(b)).

Subsection34D(4) will allow a court to impose other conditions on a person’s release under paragraph 34D(3)(b), including for example, that they surrender their passport, give an undertaking as to their living arrangements, or that they report to a law enforcement agency.  Conditions may be necessary as a person unwilling to cooperate with an ACC examiner may also be unwilling to cooperate fully with a contempt hearing.  Subsection 34D(5) will allow the court to vary or revoke the conditions made under subsection 34D(4) at any time.

Section 34E

 

Subsection 34E(1) will enable an examiner to withdraw a contempt application made under subsection 34B(1) at any time.  If a person is in detention under section 34D when a contempt application is withdrawn, subsection 34E(2) will require the person to be released from detention immediately.

 

This section will give a person who initially refuses to comply with an ACC examination a further opportunity to cooperate.  It also provides a safeguard measure, ensuring that a person who is not required to appear before a court is released immediately.

 

Section 34F

 

Subsection 12(1) provides that if the ACC obtains evidence that would be admissible in a prosecution of an offence, the ACC must give that evidence to either the relevant Commonwealth or State or Territory Attorney-General, a relevant law enforcement agency or any other Commonwealth or State or Territory agency authorised to prosecute the offence. 

If a person is dealt with for contempt, it is not appropriate for them to be prosecuted for an offence arising out of the same conduct.  Section 34F will provide that the ACC is not required to give evidence relating to the contempt application to a prosecuting authority under subsection 12(1) if the examiner makes an contempt application under subsection 34B(1).

This provision will avoid the person being dealt with twice for the same conduct and respects the principle of double jeopardy.  See also Items 21 and 22.

Item 19

 

The Act contains a number of criminal offences aimed at ensuring that a person issued with a notice or summons, complies with that notice or summons.  In particular, under section 35 it is an offence to obstruct or hinder an examiner or the ACC in the performance of their functions or to disrupt an examination before an examiner.

This item will amend section 35 to make it an offence to threaten any person present at an examination.  This will include threatening behaviour directed at the examiner.  This amendment will ensure that all uncooperative behaviour directed towards not complying with an examination is captured under section 35. 

There is precedent for extending the offence in section 35 in this way.  For example, subsection 118(d) of the NSW Police Integrity Commission Act 1996 and subsection 9(c) of the Queensland Commissions of Inquiry Act 1950 make it an offence to wilfully threaten or insult any officer of the Commission, any witness or person summoned to attend before the Commission, or any person authorised to appear before, or on behalf of, the Commission. 

Section 34C, inserted by Item 60, which will set out when a person is in contempt of the ACC will reflect the conduct captured by section 35 as amended by this item.

Items 20 and 21



Section 35A provides that a person can be prosecuted for his or her conduct constituting an offence either under the Act or under a law of a State or Territory, but not under both.  This amendment will extend the operation of section 35A to take into account the possibility of having a person dealt with under the contempt provisions inserted by Item 18.

Items 20 and 21 will add subsections 35A(2) and (3) which will respectively provide that if:

·          a contempt application is made under subsection 34B(1) in respect of conduct of a person, and the court deals with the person under section 34B for that conduct, the person is not liable to be prosecuted for an offence in respect of the same conduct, or

·          a person is prosecuted for an offence in relation to conduct referred to in an application under subsection 34B(1), and application under section 34B(1) in respect of that same conduct cannot be made. 

As the proposed contempt regime will overlap with existing criminal offences relating to obstruction of the ACC, an examiner will be able to choose the most appropriate enforcement tool in each circumstance.  However, once a person’s conduct has been dealt with by one route, proceedings under the other will be barred, consistent with the ‘double jeopardy’ rule in section 4C of the Crimes Act 1914 .

Item 22

 

Section 61A requires the Minister to cause independent review of the operation of the Act to be undertaken as soon as practicable after 1 January 2006.  Section 61A does not apply if a parliamentary committee has started a review of the Act before that time.  The requirement for a review under section 61A was met through the PJC-ACC’s Review of the Australian Crime Commission Act 2002 , completed on 10 November 2005.  As part of its 2008 Report, the PJC-ACC stated at page 58 that ‘legislation that governs an agency such as the ACC, and which grants that agency substantial powers, including intrusive coercive powers, should be regularly reviewed so as to ensure its appropriateness and effectiveness.’

This item repeals section 61A, which is no longer necessary as the review required by that section has been completed.  This item then inserts new section 61A to provide for regular, five-yearly review of the operation of the Act.  The first five year period for review will begin on the commencement of this Schedule.  A review will not have to be conducted in a particular five year period if a parliamentary committee commences a review of the ACC Act in that period.

Part 2 - Consequential amendments

Administrative Decisions (Judicial Review) Act 1977

 

Item 23



The Administrative Decisions (Judicial Review) Act 1977 (AD(JR) Act) allows a person to seek review of an administrative decision.  Section 5 of AD(JR) Act provides a list of the grounds on which decisions may be challenged under the Act.  The AD(JR)Act applies to all administrative decisions made under federal laws except decisions made by the Governor-General or decisions that are specifically excluded by Schedule 1 to the Act or regulations made under the Act.

This item will amend Schedule 1 of the AD(JR) Act so that decisions made under sections 34B and 34D (inserted by Item 18) will be exempt from the operation of the AD(JR) Act.  This will mean that an administrative decision to apply to a court for a person to be dealt with for contempt, or to direct a constable to detain a person for the purpose of bringing the person before the court, cannot be the subject of an application for judicial review under the AD(JR) Act. 

It is appropriate to exempt these decisions from the operation of the AD(JR) Act as the court will already be supervising the matter in determining whether the person should continue to be detained and in hearing the contempt application.  Constitutional judicial review, which is available through s 39B of the Judiciary Act 1903 , will not be affected.

Telecommunications (Interception and Access) Act 1979 and Surveillance Devices Act 2004

Item 24

The Surveillance Devices Act 2004 enables law enforcement officers to obtain authorisations for the installation and use of surveillance devices in relation to criminal investigations.  The Surveillance Devices Act also restricts the use, communication and publication of information that is obtained through the use of surveillance devices.  Section 45 of the Surveillance Devices Act outlines when information obtained under the Act can be disclosed or used in evidence.  This includes disclosure for ‘relevant proceedings’ as defined in subsection 6(1).

This item will add a proceeding in relation to an application under subsection 34B(1) (inserted by Item 18) to the definition of ‘relevant proceeding’ in subsection 6(1) of the Surveillance Devices Act.   

This amendment will allow an agency to provide information obtained under the Surveillance Devices Act to the ACC for the purposes of having a person dealt with under the new contempt provisions (inserted by Item 18).  Given that examinations take place in relation to the investigation of defined offences, it is desirable that information obtained under the Surveillance Devices Act be admissible in the contempt hearing. 

Item 25

The Telecommunications (Interception and Access) Act 1979 (TIA Act) prohibits the interception of, and other access to, telecommunications except where authorised under the TIA Act.  There are exceptions for obtaining and using information in the course of investigations into a defined serious offence and using that information as evidence in defined court proceedings.    

This item will add a proceeding in relation to an application under subsection 34B(1) (inserted by Item 60) to the definition of ‘exempt proceeding’ in section 5B of the TIA Act.

This amendment will allow lawfully intercepted information to be used in evidence in a contempt proceeding (inserted by Item 60).  Given that examinations take place in relation to investigations, agencies may need information obtained under the TIA Act to be admissible in the contempt hearing.

 

Part 3 - Application provisions

 

Item 26

 

Items 3 and 18 will provide the ACC with the power to refer someone to court to be dealt with for contempt.  Item 19 wi ll amend section 35 to make it an offence to threaten any person present at an examination.  Items 20 and 21 will ensure a person can only be dealt with for contempt or for an offence, but not both.

 

Item 26 provides that the amendments in items 3 and 18 to 21 will apply only in relation to an examination that commenced on or after the commencement of this item.  This will ensure a person cannot be referred to a court for contempt, or punished for threatening an examiner, in relation to conduct that occurred before the commencement of this item.

 

Item 27

 

Item 4 will amend the definition of intelligence operation in subsection 4(1) to clarify that it may involve the investigation of federally relevant criminal activity.  This amendment will recognise that a specific investigation can be part of an intelligence operation and will allow the ACC to undertake actions which may otherwise be reserved for ‘an investigation’.

 

This item provides that the change to the definition of intelligence operation in Item 4 will apply in relation to operations that began before, on or after commencement of this item.  This item will be retrospective in application, but will not create any retrospective criminal liability.  It is appropriate for the amended definition to apply to operations which began before commencement of this item, as it will allow the ACC to make immediate use of the changes.  The ACC Board would otherwise be required to issue new authorisations for all current intelligence operations in order for the new definition to apply to them.

 

Item 28

 

This item will provide that the amendments made by items 9 to 14 of this Schedule will apply to a summons or notice issued on or after the commencement of this item.  Therefore any summons or notice that was issued prior to commencement will not be invalidated if the reasons were recorded after the time the summons or notice was issued.

 

Item 29

 

Item 24 will amend the definition of relevant proceedings in the Surveillance Devices Act to include a contempt proceeding under proposed provision 34B(1) of the ACC Act. This would have the effect of permitting protected information (as defined in section 44 of the Surveillance Devices Act) in the contempt proceedings.

 

Item 25 will amend the definition of an exempt proceeding in section 5B(1) of the Telecommunication (Interception and Access) Act to include a contempt proceeding under proposed provision 34B(1) of the ACC Act. This will  have the effect of permitting lawfully accessed or intercepted information in the contempt proceeding.

 

This item provides that the amendments made by items 24 and 25 will apply to information obtained under the Surveillance Devices Act and the Telecommunication (Interception and Access) Act before, on, or after commencement of this item.  This item is retrospective in application but does not impose any retrospective criminal liability.  It is appropriate that information obtained before commencement of this item be available for contempt proceedings initiated after commencement.  It would undermine the effect of the provisions if they could not be applied to information already lawfully obtained.  In the case of current

investigations the amount of information already obtained would be substantial.



Schedule 8 - Penalties for bribery

GENERAL OUTLINE

This Schedule amends the Criminal Code Act 1995 (the Criminal Code).  The amendments increase the penalties for the offences of bribing a foreign public official (section 70.2 of the Criminal Code) and bribery of a Commonwealth public official (section 141.1 of the Criminal Code).  The amendments ensure that penalties for these offences are sufficiently high to deter and punish bribery in the domestic and international spheres.

The existing penalty for both offences is 10 years imprisonment.  Section 4B of the Crimes Act 1914 allows the court to impose, instead of, or in addition to, a penalty of imprisonment, a pecuniary penalty calculated in accordance with the formula under that section.  In the case of both offences, this equates to a maximum fine of $66,000 for an individual and $330,000 for a body corporate.

These penalties have been criticised as insufficient.  The Organisation for Economic Cooperation and Development (OECD), in the Phase 2 review of Australia’s implementation of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (the Convention) in 2006, considered the penalties were not ‘effective, proportionate and dissuasive’ as required by the Convention. 

Items 1 - 6

Item 1 of Schedule 8 repeals the penalty of 10 years imprisonment for the offence of bribing a foreign public official at section 70.2 of the Criminal Code 1995 (the Criminal Code).

Item 2 of Schedule 8 repeals the notes at the end of subsection 70.2(1) of the Criminal Code.  Existing Note 2 is no longer necessary in light of the changes being made to the penalty.  As a result of the removal of existing Note 2, Note 1 is no longer needed, but the substance of existing Note 1 is retained under the new Note at the end of subsection 70.2(1) of the Criminal Code.

Item 3 of Schedule 8 inserts new penalties at the end of section 70.2 for individuals and bodies corporate found guilty of the offence of bribing a foreign public official.

The penalty for an individual will be a maximum of 10 years imprisonment, a fine of 10,000 penalty units ($1,100,000), or both.  The inclusion of a significant monetary penalty for individuals is to deter bribery of foreign public officials where the existing financial penalty may be perceived as “a cost of doing business” when international transactions worth millions of dollars occur.

The ratio between the term of imprisonment and penalty units is inconsistent with other provisions in the Criminal Code where, generally, there is a ratio of five penalty units for every month of imprisonment.  As explained above, however, the existing fine of $66,000 for an individual is not ‘effective, proportionate and dissuasive.’  The increased pecuniary penalty will ensure Australia’s compliance with OECD recommendations, as well as promoting good governance, the rule of law and confidence in government.

The maximum penalty for a body corporate will be the greatest of the following:

(a)     100,000 penalty units ($11,000,000)

(b)     three times the value of any benefit that was directly or indirectly obtained and that is reasonably attributable to the conduct constituting the offence (including any body corporate related to the body corporate)

(c)     if the court cannot determine the value of the benefit under paragraph 70.2(5)(b), 10% of the annual turnover of the body corporate during the 12 months ending at the end of the month in which the conduct constituting the offence occurred.

This formulation is based on the penalty available under section 76 of the Trade Practices Act 1974 (the TP Act) in relation to breaches of Part IV of the TP Act.

The amendments mean that a body corporate found guilty of bribing a foreign public official will face a maximum penalty of at least a $11,000,000 fine, an increase of $10,650,000 from the existing fine of $330,000.  This increase will have a significant deterrent effect on those bodies corporate tempted to bribe a foreign public official.

The temptation to bribe a foreign public official increases with the size of a potential transaction/benefit.  The alternative sanctions available under subsection 70.2(5) have the effect of penalising a body corporate proportionately to either the benefit obtained, or 10% of the annual turnover of the body corporate, so that the risk of being successfully prosecuted for this offence outweighs the potential benefit from the transaction/benefit procured through the bribe.

The corporate multiplier outlined in subsection 4B(3) of the Crimes Act 1914 , does not apply to this corporate penalty because a contrary intention is expressed that the penalty for a body corporate is 100,000 penalty units.

Subsection 70.2(6) explains what the annual turnover of a body corporate is.  It is the sum of all the supplies the body corporate and any body corporate related to the body corporate have made or are likely to make, with some exceptions.  Those exceptions include supplies made between related bodies corporate, input taxed supplies, supplies that are not for consideration and supplies that are not made in connection with an enterprise that the body corporate carries on.  Those exceptions are necessary because otherwise the assessment of a body corporate’s annual turnover would not be accurate.

Subsection 70.2(7) clarifies that expressions used in subsection 70.2(6) that are also used in the A New Tax System (Goods and Services Tax) Act 1999 (the GST Act) have the same meaning in 70.2(6) as they do in the GST Act.

Subsection 70.2(8) provides guidance on how to determine whether two bodies corporate are related to each other.  This concept is relevant to determining a penalty amount under paragraph 70.2(5)(b) and subsection 70.2(6). 

Subsection 70.2(8) states that the question of whether two bodies corporate are related to each other is to be determined in the same way as for the purposes of the Corporations Act 2001 .  Section 50 of the Corporations Act provides that two bodies corporate are related where one body corporate is a holding company, or a subsidiary or a subsidiary of a holding company of another body corporate.

Item 4 of Schedule 8 repeals the penalty of 10 years imprisonment for the offence of giving a bribe to a Commonwealth public official under subsection 141.1(1) of the Criminal Code.

Item 5 of Schedule 8 repeals the penalty of 10 years imprisonment for the offence of a Commonwealth public official receiving a bribe under subsection 141.1(3) of the Criminal Code.

Item 6 of Schedule 8 inserts new penalties at the end of section 141.1 for individuals and bodies corporate found guilty of the offences of bribing a Commonwealth public official and a Commonwealth public official receiving a bribe.

The penalty for an individual will be a maximum of 10 years imprisonment, a fine of 10,000 penalty units ($1,100,000), or both.  The inclusion of a significant monetary penalty for individuals is to deter bribery of Commonwealth public officials where the existing financial penalty may be perceived as “a cost of doing business” when transactions worth millions of dollars occur.  Bribery damages good governance and undermines the rule of law and confidence in the government.

The ratio between the term of imprisonment and penalty units is inconsistent with other provisions in the Criminal Code where, generally, there is a ratio of five penalty units for every month of imprisonment.  As explained above, however, the existing maximum fine of $66,000 for an individual is not ‘effective, proportionate and dissuasive.’  The increased pecuniary penalty will ensure Australia’s compliance with OECD recommendations.

The maximum penalty for a body corporate will be the greatest of the following:

(d)    100,000 penalty units ($11,000,000)

(e)     three times the value of any benefit that was directly or indirectly obtained and that is reasonably attributable to the conduct constituting the offence (including any body corporate related to the body corporate)

(f)      if the court cannot determine the value of the benefit under paragraph 141.1(6)(b), 10% of the annual turnover of the body corporate during the 12 months ending at the end of the month in which the conduct constituting the offence occurred.

This formulation is based on the penalty available under section 76 of the TP Act in relation to breaches of Part IV of the TP Act.

The amendments mean that a body corporate found guilty of bribing a Commonwealth public official will face a maximum penalty if at least a $11,000,000 fine, an increase of $10,650,000 from the existing maximum fine of $330,000.  This increase will have a significant deterrent effect on those bodies corporate tempted to bribe a foreign public official.

The temptation to bribe a Commonwealth public official increases with the size of a potential transaction/benefit.  The alternative sanctions available under subsection 141.1(6) have the effect of penalising a body corporate proportionately to either the benefit obtained, or 10% of the annual turnover of the body corporate, so that the risk of being successfully prosecuted for this offence outweighs the potential benefit from the transaction/benefit procured through the bribe.

The corporate multiplier outlined in subsection 4B(3) of the Crimes Act, does not apply to this corporate penalty because a contrary intention is expressed that the penalty for a body corporate is 100,000 penalty units.

Subsection 141.1(7) explains what the annual turnover of a body corporate is.  It is the sum of all the supplies the body corporate and any body corporate related to the body corporate have made or are likely to make, with some exceptions.  Those exceptions include supplies made between related bodies corporate, input taxed supplies, supplies that are not for consideration and supplies that are not made in connection with an enterprise that the body corporate carries on.  Those exceptions are necessary because otherwise the assessment of a body corporate’s annual turnover would not be accurate.

Subsection 141.1(8) clarifies that expressions used in subsection 141.1(7) that are also used in the GST Act have the same meaning in 141.1(7) as they do in the GST Act.

Subsection 141.1(9) provides guidance on how to determine whether two bodies corporate are related to each other.  This concept is relevant to determining a penalty amount under subparagraph 141.1(6)(b) and subsection 141.1(7). 

Subsection 141.1(9) states that the question of whether two bodies corporate are related to each other is to be determined in the same way as for the purposes of the Corporations Act.  Section 50 of the Corporations Act provides that two bodies corporate are related where one body corporate is a holding company, or a subsidiary or a subsidiary of a holding company of another body corporate.



Schedule 9 - Drug importation

 

Item 1

 

Item 1repeals the definition of import in section 300.2 of the Criminal Code Act 1995 and substitutes it with a new definition.  The new definition is as follows:

 

import , in relation to a substance, means import the substance into Australia and includes:

 (a)  bring the substance into Australia, and

(b)  deal with the substance in connection with its importation.

Whereas the old definition provided:

 

  import includes bring into Australia.

 

This amendment extends the definition of import to bring the current drug importation offences into line with earlier drug importation offences.  The amendment reverses any inadvertent narrowing of the provisions that occurred when the previous drug offences in the Customs Act 1901 were replaced by new drug offences inserted into Division 300 of the Criminal Code Act 1995 through the Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005 (Cth).

Scope of the definition of ‘import’

The New South Wales Criminal Court of Appeal decision in Campbell v R [2008] NSWCCA 214, compared the scope of the term ‘import’ used in the current Commonwealth drug importation offences with the scope of the term ‘importation’ that was used in the previous Commonwealth drug offences in the Customs Act 1901 .    

The CCA held that the statutory context of the 307.11 offence, in contrast with earlier offence provisions ‘suggests a precise rather than expansive, sense of the word ‘imports’’.  The Court held:

‘imports’ under Division 307 of the Criminal Code Act 1995 , requires the controlled drugs and precursors to arrive in Australia from abroad and to be delivered to a point which would result in the goods remaining in Australia.

This point would generally be when the goods first arrive in Australia. 

Effect of the new definition

The definition of import has been extended to include dealing with a substance in connection with its importation.  As such, the new definition of import relates to a process that extends before and beyond the period of the goods being landed in Australia. 

The effect of this amendment is that the Commonwealth drug importation offences will capture criminal activity related to the bringing of drugs into Australia and subsequent criminal activity connected with the importation of drugs. 

The terms ‘deal with the substance in connection with its importation’ paragraph (b) of the definition are intended to be broad their application.  For example, paragraph (b) would capture the following dealings with the substance:

(a)     packaging the goods for importation into Australia

(b)    transporting the goods into Australia

(c)     recovering the imported goods after landing in Australia

(d)    making the imported goods available to another person

(e)     clearing the imported goods

(f)     transferring the imported goods into storage

(g)    unpacking the imported goods

(h)    arranging for payment of those involved in the importation process.

 

The examples above are not exhaustive.



Schedule 10 - Amendments consequential on enactment of joint commission offence

GENERAL OUTLINE

 

Schedule 10 contains consequential amendments that ensure that references to the extensions of criminal responsibility provisions in Part 2.4 of the Criminal Code Act 1995 are correct. 

 

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).

 

Amendments consequential upon the enactment of joint commission

The Crimes Legislation Amendment (Serious and Organised Crime) Bill introduced a new joint commission provision to be inserted into section 11.2A 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 has been inserted into Part 2.4 of the Criminal Code, alongside other provisions that extend criminal responsibility to persons who were not wholly responsible for committing an offence.

Schedule 10 contains consequential amendments that include a reference to this new provision in other pieces of Commonwealth legislation, alongside existing references to the current extensions of criminal responsibility provisions in the Criminal Code. 

A reference to joint commission has been added to each existing provision that refers to the complicity and common purpose provision in 11.2 of the Criminal Code because joint commission is a closely related extension of criminal responsibility.

 

Item 1

 

This item inserts a reference to section 11.2A of the Criminal Code into subparagraph 199(9)(b)(ii) of the Aboriginal and Torres Strait Islander Act 2005 .

 

This is a consequential amendment, which includes a reference to the new joint commission provision inserted into section 11.2A of the Criminal Code through the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009. 

 

Subparagraph 199(9)(b)(ii) currently refers to the complicity and common purpose provision in section 11.2 of the Criminal Code and as joint commission is a closely related extension of criminal responsibility, it is appropriate to also include a reference to the new provision.

 

Items 2 and 3

 

These items insert a reference to section 11.2A of the Criminal Code into subparagraph 75(c)(i) and paragraph 188(a) of the A New Tax System (Family Assistance)(Administration) Act 1999 .

 

These items are consequential amendments, which include a reference to the new joint commission provision inserted into section 11.2A of the Criminal Code through the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009. 

 

Subparagraph 75(c)(i) and paragraph 188(a) currently refer to the complicity and common purpose provision in section 11.2 of the Criminal Code and as joint commission is a closely related extension of criminal responsibility, it is appropriate to also include a reference to the new provision.

 

Item 4

 

This item inserts a reference to section 11.2A of the Criminal Code into subparagraph 47(9)(b)(ii) of the Australian Institute of Aboriginal and Torres Strait Islander Studies Act 1989 .

 

This is a consequential amendment, which includes a reference to the new joint commission provision inserted into section 11.2A of the Criminal Code through the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009. 

 

Subparagraph 47(9)(b)(ii) currently refers to the complicity and common purpose provision in section 11.2 of the Criminal Code and as joint commission is a closely related extension of criminal responsibility, it is appropriate to also include a reference to the new provision.

 

Item 5

 

This item inserts a reference to section 11.2A of the Criminal Code into paragraph 496-20(1)(a) of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 .

 

This is a consequential amendment, which includes a reference to the new joint commission provision inserted into section 11.2A of the Criminal Code through the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009. 

 

Paragraph 496-20(1)(a) currently refers to the complicity and common purpose provision in section 11.2 of the Criminal Code and as joint commission is a closely related extension of criminal responsibility, it is appropriate to also include a reference to the new provision.

 

Item 6

 

This item inserts a reference to section 11.2A of the Criminal Code into paragraph 1042F(2)(b) of the Corporations Act 2001 .

 

This is a consequential amendment, which includes a reference to the new joint commission provision inserted into section 11.2A of the Criminal Code through the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009. 

 

Paragraph 1042F(2)(b) currently refers to the complicity and common purpose provision in section 11.2 of the Criminal Code and as joint commission is a closely related extension of criminal responsibility, it is appropriate to also include a reference to the new provision.

 

Items 7 and 8

 

These items insert a reference to section 11.2A of the Criminal Code into paragraph 50AA(2)(b) and subsection 50AA(3) of the Crimes Act 1914 .

 

These items are consequential amendments, which include a reference to the new joint commission provision inserted into section 11.2A of the Criminal Code through the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009. 

 

Paragraph 50AA(2)(b) and subsection 50AA(3) currently refer to the complicity and common purpose provision in section 11.2 of the Criminal Code and as joint commission is a closely related extension of criminal responsibility, it is appropriate to also include a reference to the new provision.

 

Item 9

 

This item inserts a reference to section 11.2A of the Criminal Code into subsection 10(1) of the Crimes (Biological Weapons) Act 1976 .

 

This is a consequential amendment, which includes a reference to the new joint commission provision inserted into section 11.2A of the Criminal Code through the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009.

 

Subsection 10(1) currently refers to the complicity and common purpose provision in section 11.2 of the Criminal Code and as joint commission is a closely related extension of criminal responsibility, it is appropriate to also include a reference to the new provision.

 

Item 10

 

This item inserts a reference to section 11.2A of the Criminal Code into subsection 8(5) of the Crimes (Internationally Protected Persons) Act 1976 .

 

This is a consequential amendment, which includes a reference to the new joint commission provision inserted into section 11.2A of the Criminal Code through the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009. 

 

Subsection 8(5) currently refers to the complicity and common purpose provision in section 11.2 of the Criminal Code and as joint commission is a closely related extension of criminal responsibility, it is appropriate to also include a reference to the new provision.

 

Items 11 - 16

 

These items insert a reference to section 11.2A of the Criminal Code into the following provisions of the Crimes (Ships and Fixed Platforms) Act 1992 :

·        Subsection 5A(3)

·        Subsection 18(5) (definition of offence against this Division)

·        Subsection 20(6) (definition of offence against Division 1)

·        Subsection 29(5) (definition of offence against this Part)

·        Paragraph 30(1)(b)

·        Paragraph 31(b)

 

These items are consequential amendments, which include a reference to the new joint commission provision inserted into section 11.2A of the Criminal Code through the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009.

 

The provisions listed above currently refer to the complicity and common purpose provision in section 11.2 of the Criminal Code and as joint commission is a closely related extension of criminal responsibility, it is appropriate to also include a reference to the new provision.

 

Item 17

 

This item inserts a reference to section 11.2A of the Criminal Code into paragraph 16AA(1)(b) of the Customs Administration Act 1985.

 

This is a consequential amendment, which includes a reference to the new joint commission provision inserted into section 11.2A of the Criminal Code through the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009.

 

Paragraph 16AA(1)(b) currently refers to the complicity and common purpose provision in section 11.2 of the Criminal Code and as joint commission is a closely related extension of criminal responsibility, it is appropriate to also include a reference to the new provision.

 

Item 18

 

This item inserts a reference to section 11.2A of the Criminal Code into subsection 54A(6) of the Defence Force Discipline Act 1982.

 

This is a consequential amendment, which includes a reference to the new joint commission provision inserted into section 11.2A of the Criminal Code through the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009.

 

Subsection 54A(6) currently refers to the complicity and common purpose provision in section 11.2 of the Criminal Code and as joint commission is a closely related extension of criminal responsibility, it is appropriate to also include a reference to the new provision.

 

Item 19

 

This item inserts a reference to section 11.2A of the Criminal Code into paragraph 87AA(b) of the Excise Act 1901 .

 

This is a consequential amendment, which includes a reference to the new joint commission provision inserted into section 11.2A of the Criminal Code through the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009.

 

Paragraph 87AA(b) currently refers to the complicity and common purpose provision in section 11.2 of the Criminal Code and as joint commission is a closely related extension of criminal responsibility, it is appropriate to also include a reference to the new provision.

 

Item 20

 

This item inserts a new subsection (8A) into section 61B of the Great Barrier Reef Marine Park Act 1975.  Subsection (8A) refers to section 11.2A of the Criminal Code.

 

This is a consequential amendment, which includes a reference to the new joint commission provision inserted into section 11.2A of the Criminal Code through the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009.

 

Subsection 61B(8) currently refers to the complicity and common purpose provision in section 11.2 of the Criminal Code and as joint commission is a closely related extension of criminal responsibility, it is appropriate to also include a reference to the new provision.

 

Item 21

 

This item inserts a reference to section 11.2A of the Criminal Code into subsection 3(1) (paragraph (b) of the definition of offence against this Act ) of the Historic Shipwrecks Act 1976 .

 

This is a consequential amendment, which includes a reference to the new joint commission provision inserted into section 11.2A of the Criminal Code through the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009.

 

The paragraph (b) of the definition of offence against this Act currently refers to the complicity and common purpose provision in section 11.2 of the Criminal Code and as joint commission is a closely related extension of criminal responsibility, it is appropriate to also include a reference to the new provision.

 

Item 22

 

This item inserts a reference to section 11.2A of the Criminal Code into paragraph 225(5)(b) of the Patents Act 1990 .

 

This is a consequential amendment, which includes a reference to the new joint commission provision inserted into section 11.2A of the Criminal Code through the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009.

 

Paragraph 225(5)(b) currently refers to the complicity and common purpose provision in section 11.2 of the Criminal Code and as joint commission is a closely related extension of criminal responsibility, it is appropriate to also include a reference to the new provision.

 

Item 23

 

This item inserts a reference to section 11.2A of the Criminal Code into subsection 99A(9) of the Privacy Act 1988 .

 

This is a consequential amendment, which includes a reference to the new joint commission provision inserted into section 11.2A of the Criminal Code through the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009.

 

Subsection 99A(9) currently refers to the complicity and common purpose provision in section 11.2 of the Criminal Code and as joint commission is a closely related extension of criminal responsibility, it is appropriate to also include a reference to the new provision.

 

Item 24

 

This item inserts a reference to section 11.2A of the Criminal Code into section 338 (paragraph (g) of the definition of serious offence ) of the Proceeds of Crime Act 2002 .

 

This is a consequential amendment, which includes a reference to the new joint commission provision inserted into section 11.2A of the Criminal Code through the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009.

 

The paragraph (g) of the definition of serious offence currently refers to the complicity and common purpose provision in section 11.2 of the Criminal Code and as joint commission is a closely related extension of criminal responsibility, it is appropriate to also include a reference to the new provision.

 

Item 25 and 26

 

These items insert a reference to section 11.2A of the Criminal Code into subparagraph 56(2)(a)(ii) and subsection 62(14) of the Sea Installations Act 1987 .

 

These are consequential amendments, which include a reference to the new joint commission provision inserted into section 11.2A of the Criminal Code through the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009.

 

Subparagraph 56(2)(a)(ii) and subsection 62(14) currently refer to the complicity and common purpose provision in section 11.2 of the Criminal Code and as joint commission is a closely related extension of criminal responsibility, it is appropriate to also include a reference to the new provision.

 

Item 27

 

This item inserts a reference to section 11.2A of the Criminal Code into paragraph 1224AB(b) of the Social Security Act 1991 .

 

This is a consequential amendment, which includes a reference to the new joint commission provision inserted into section 11.2A of the Criminal Code through the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009.

 

Paragraph 1224AB(b) currently refers to the complicity and common purpose provision in section 11.2 of the Criminal Code and as joint commission is a closely related extension of criminal responsibility, it is appropriate to also include a reference to the new provision.

 

Item 28

 

This item inserts a reference to section 11.2A of the Criminal Code into paragraph 288(a) of the Social Security (Administration) Act 1999 .

 

This is a consequential amendment, which includes a reference to the new joint commission provision inserted into section 11.2A of the Criminal Code through the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009.

 

Paragraph 288(a) currently refers to the complicity and common purpose provision in section 11.2 of the Criminal Code and as joint commission is a closely related extension of criminal responsibility, it is appropriate to also include a reference to the new provision.

 

Item 29

 

This item inserts a reference to section 11.2A of the Criminal Code into subsection 66(8) of the Superannuation (Resolution of Complaints) Act 1993 .

 

This is a consequential amendment, which includes a reference to the new joint commission provision inserted into section 11.2A of the Criminal Code through the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009.

 

Subsection 66(8) currently refers to the complicity and common purpose provision in section 11.2 of the Criminal Code and as joint commission is a closely related extension of criminal responsibility, it is appropriate to also include a reference to the new provision.

 

Item 30

 

This item inserts a reference to section 11.2A of the Criminal Code into subsection 150(2) of the Trade Marks Act 1995 .

 

This is a consequential amendment, which includes a reference to the new joint commission provision inserted into section 11.2A of the Criminal Code through the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009.

 

Subsection 150(2) currently refers to the complicity and common purpose provision in section 11.2 of the Criminal Code and as joint commission is a closely related extension of criminal responsibility, it is appropriate to also include a reference to the new provision.

 

Item 31

 

This item inserts a reference to section 11.2A of the Criminal Code into subsection 9(2) of the War Crimes Act 1945 .

 

This is a consequential amendment, which includes a reference to the new joint commission provision inserted into section 11.2A of the Criminal Code through the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009.

 

Subsection 9(2) currently refers to the complicity and common purpose provision in section 11.2 of the Criminal Code and as joint commission is a closely related extension of criminal responsibility, it is appropriate to also include a reference to the new provision.

 

 



Schedule 11 - References to repealed provisions of the Crimes Act 1914

GENERAL OUTLINE

 

Schedule 11 contains minor and consequential amendments that ensure that references to the extensions of criminal responsibility provisions in Part 2.4 of the Criminal Code Act 1995 are correct.  For more information on Part 2.4 of the Criminal Code, see general outline of Schedule 10, above.

 

Item 4 of Schedule 51 to the Law and Justice Legislation Amendment (Application of the Criminal Code) Act 2001 , repealed sections 3BB, 4, 5, 7, 7A, 14, 15D and 86 of the Crimes Act 1914 .  In particular, sections 5, 7, 7A and 86 were repealed because equivalent provisions were inserted in to Part 2.4 of the Criminal Code as set out in the table below:

 

Repealed Crimes Act provision

Equivalent extension of criminal responsibility provision in Part 2.4 of the Criminal Code

Section 5 - aiding and abetting

Section 11.2 - complicity and common purpose

Section 7 - attempt

11.1 - attempt

Section 7A - inciting or urging the commission of an offence

11. 4 - incitement

Section 86 - conspiracy

11.5 - conspiracy

 

However, other Commonwealth legislation was not amended at that time to incorporate the changes made by the Law and Justice Legislation Amendment (Application of the Criminal Code) Act 2001

Schedule 11 contains minor and consequential amendments that amend other Commonwealth legislation to:

·        omit references to repealed provisions in the Crimes Act

·        replace references to repealed provisions in the Crimes Act with references to the corresponding extension of criminal responsibility provision in the Criminal Code, and

·        include a reference to the new joint commission provision in section 11.2A of the Criminal Code, consistent with amendments in Schedule 10.

 

Item 1

 

This item repeals paragraphs (a) and (b) of the definition of offence against this Act in subsection 16(7) of the Aircraft Noise Levy Collection Act 1995 , and substitutes new paragraphs that refer to section 6 of the Crimes Act and sections 11.1, 11.4 and 11.5 of the Criminal Code.

 

This is a minor amendment, which ensures that references to repealed sections of the Crimes Act are replaced by references to corresponding sections in the Criminal Code.

 

Item 2

 

This item amends subsection 225(6) of the Airports Act 1996 by omitting the words ‘created by section 6, 7 or 7A or subsection 86(1) of the Crimes Act 1914 ’, and substituting the words ‘against section 6 of the Crimes Act 1914 , or against section 11.1, 11.4 or 11.5 of the Criminal Code ’.

 

This is a minor amendment, which ensures that references to repealed sections of the Crimes Act are replaced by references to the corresponding sections in the Criminal Code.

 

Item 3

 

This item amends subsection 3(3) of the Antarctic Marine Living Resources Conservation Act 1981 by omitting the words ‘created by section 6, 7 or 7A of the Crimes Act 1914 ’, and substituting the words ‘against section 6 of the Crimes Act 1914 , or against section 11.1 or 11.4 of the Criminal Code ’.

 

This is a minor amendment, which ensures that references to repealed sections of the Crimes Act are replaced by references to corresponding sections in the Criminal Code.

 

Item 4

 

This item amends subsection 3(3) of the Antarctic Treaty (Environment Protection) Act 1980 by omitting the words ‘created by section 6, 7 or 7A or 86 of the Crimes Act 1914 ’, and substituting the words ‘against section 6 of the Crimes Act 1914 , or against section 11.1, 11.4 or 11.5 of the Criminal Code ’.

 

This is a minor amendment, which ensures that references to repealed sections of the Crimes Act are replaced by references to corresponding sections in the Criminal Code.

 

Item 5

 

This item amends subsection 15B(1B) of the Crimes Act by omitting the words ‘arising under section 5, or under’ and substituting the words ‘that is taken to have been committed because of section 11.2 or 11.2A of the Criminal Code , or against’.

 

This is a minor amendment, which ensures that references to repealed sections of the Crimes Act are replaced by references to corresponding sections in the Criminal Code.

 

This item also inserts a reference to section 11.2A of the Criminal Code into subsection 15B(1B) because joint commission is an extension of criminal responsibility closely related to section 11.2 of the Criminal Code.  The new joint commission provision was inserted into section 11.2A of the Criminal Code by the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009. 

 

Item 6

 

This item repeals the definition of offence against this Part in section 51 of the Crimes Act and substitutes a new definition.  The new definition refers to section 6 of the Crimes Act and sections 11.1, 11.2, 11.2A, 11.4 and 11.5 of the Criminal Code.

 

This is a minor amendment, which ensures that references to repealed sections of the Crimes Act are replaced by references to corresponding sections in the Criminal Code.

 

This item also inserts a reference to section 11.2A of the Criminal Code into the definition because joint commission is an extension of criminal responsibility closely related to section 11.2 of the Criminal Code.  The new joint commission provision is to be inserted into section 11.2A of the Criminal Code Act by the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009. 

 

Item 7

 

This item amends paragraph 108(b) of the Defence Act 1903  by omitting the words ‘created by section 6, 7 or 7A or 86(1) of the Crimes Act 1914 ’, and substituting the words ‘section 6 of the Crimes Act 1914 , or against section 11.1, 11.4 or 11.5 of the Criminal Code ’.

 

This is a minor amendment, which ensures that references to repealed sections of the Crimes Act are replaced by references to corresponding sections in the Criminal Code.

 

Item 8

 

This item amends subsection 4(2) of the Environment Protection (Sea Dumping) Act 1981  by omitting the words ‘created by section 6, 7 or 7A of the Crimes Act 1914 ’, and substituting the words ‘against section 6 of the Crimes Act 1914 , or against section 11.1 or 11.4 of the Criminal Code ’.

 

This is a minor amendment, which ensures that references to repealed sections of the Crimes Act are replaced by references to corresponding sections in the Criminal Code.

 

Item 9

 

This item repeals paragraph (d) of the definition of relevant offence in subsection 16(2) of the Export Markets Development Grants Act 1997 and substitutes a new definition that refers to section 6 of the Crimes Act and sections 11.1, 11.2, 11.2A, 11.4 and 11.5 of the Criminal Code.

 

This is a minor amendment, which ensures that references to repealed sections of the Crimes Act are replaced by references to corresponding sections in the Criminal Code.

 

This item also inserts a reference to section 11.2A of the Criminal Code into paragraph (d) because joint commission is an extension of criminal responsibility closely related to section 11.2 of the Criminal Code.  The new joint commission provision is to be inserted into section 11.2A of the Criminal Code by the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009.

 

Item 10

 

This item repeals paragraph 78(1)(d) of the Export Markets Development Grants Act 1997 and substitutes new provisions that refer to section 6 of the Crimes Act and sections 11.1, 11.2, 11.2A, 11.4 and 11.5 of the Criminal Code.

 

This is a minor amendment, which ensures that references to repealed sections of the Crimes Act are replaced by references to corresponding sections in the Criminal Code.

 

This item also inserts a reference to section 11.2A of the Criminal Code into paragraph (d) because joint commission is an extension of criminal responsibility closely related to section 11.2 of the Criminal Code.  The new joint commission provision is to be inserted into section 11.2A of the Criminal Code by the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009. 

 

Item 11

 

This item repeals subsection 189(4) of the Gene Technology Act 2000 and substitutes new provisions that refer to section 6 of the Crimes Act 1914 and sections 11.1, 11.2, 11.2A, 11.4 and 11.5 of the Criminal Code.

 

This is a minor amendment, which ensures that references to repealed sections of the Crimes Act are replaced by references to corresponding sections in the Criminal Code.

 

This item also inserts a reference to section 11.2A of the Criminal Code into subsection 189(4) because joint commission is an extension of criminal responsibility closely related to section 11.2 of the Criminal Code.  The new joint commission provision was inserted into section 11.2A of the Criminal Code by the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009. 

 

Item 12

 

This item repeals subparagraphs (c)(i) and (ii) of the definition relevant offence in subsection 23DA(1) of the Health Insurance Act 1973 , and substitutes new paragraphs that refer to section 6 of the Crimes Act and sections 11.1, 11.4 and 11.5 of the Criminal Code.

 

This is a minor amendment, which ensures that references to repealed sections of the Crimes Act are replaced by references to corresponding sections in the Criminal Code.

 

Item 13

 

This item repeals paragraphs 378(7)(a) and (b) of the Offshore Minerals Act 1994 and substitutes new paragraphs that refer to section 6 of the Crimes Act and sections 11.1, 11.2, 11.2A, 11.4 and 11.5 of the Criminal Code.

 

This item is a minor amendment, which ensures that references to repealed sections of the Crimes Act are replaced by references to corresponding sections in the Criminal Code.

 

This item also inserts a reference to section 11.2A of the Criminal Code into paragraphs 378(7)(a) and (b) because joint commission is an extension of criminal responsibility closely related to section 11.2 of the Criminal Code.  The new joint commission provision is to be inserted into section 11.2A of the Criminal Code by the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009. 

 

Item 14

 

This item repeals paragraph 65(9)(b) of the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 and substitutes new paragraphs that refer to section 6 of the Crimes Act and sections 11.1, 11.2, 11.2A, 11.4 and 11.5 of the Criminal Code.

 

This is a minor amendment, which ensures that references to repealed sections of the Crimes Act are replaced by references to corresponding sections in the Criminal Code.

 

This item also inserts a reference to section 11.2A of the Criminal Code into paragraph 65(9)(b) because joint commission is an extension of criminal responsibility closely related to section 11.2 of the Criminal Code.  The new joint commission provision is to be inserted into section 11.2A of the Criminal Code by the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009. 

 

Item 15

 

This item repeals subsection 76(9) of the Plant Breeder’s Rights Act 1994 and substitutes new paragraphs that refer to section 6 of the Crimes Act and sections 11.1, 11.2, 11.2A, 11.4 and 11.5 of the Criminal Code.

 

This is a minor amendment, which ensures that references to repealed sections of the Crimes Act are replaced by references to corresponding sections in the Criminal Code.

 

This item also inserts a reference to section 11.2A of the Criminal Code into subsection 76(9) because joint commission is an extension of criminal responsibility closely related to section 11.2 of the Criminal Code.  The new joint commission provision is to be inserted into section 11.2A of the Criminal Code by the Crimes  Legislation Amendment (Serious and Organised Crime) Bill 2009. 

 

Item 16

 

This item amends subsection 3(7) of the Shipping Registration Act 1981 by omitting the words ‘created by section 6, 7 or 7A of the Crimes Act 1914 ’, and substituting the words ‘against section 6 of the Crimes Act 1914 , or against section 11.1 or 11.4 of the Criminal Code ’.

 

This is a minor amendment, which ensures that references to repealed sections of the Crimes Act are replaced by references to corresponding sections in the Criminal Code.

 

Item 17

 

This item repeals the definition of offence against this Act in subsection 4(1) of the South Pacific Nuclear Free Zone Treaty Act 1986 and substitutes a new definition that refers to section 6 of the Crimes Act and sections 11.1, 11.4 and 11.5 of the Criminal Code.

 

This is a minor amendment, which ensures that references to repealed sections of the Crimes Act are replaced by references to corresponding sections in the Criminal Code.

 

Item 18 and 19

 

These items repeal paragraphs 32(2)(a) and (b), and paragraphs 33(5)(a) and (b) of the South Pacific Nuclear Free Zone Treaty Act 1986 and substitutes new paragraphs that refer to section 6 of the Crimes Act and sections 11.1, 11.4 and 11.5 of the Criminal Code.

 

This is a minor amendment, which ensures that references to repealed sections of the Crimes Act are replaced by references to corresponding sections in the Criminal Code.

 

Item 20

 

This item repeals subsection 8J(6) of the Taxation Administration Act 1953 and substitutes a new paragraph that refers to section 11.1 of the Criminal Code.

 

This is a minor amendment, which ensures that references to repealed sections of the Crimes Act are replaced by references to corresponding sections in the Criminal Code.

 

Item 21

 

This item amends subsection 8J(8) of the Taxation Administration Act 1953 by omitting the words ‘section 7 of the Crimes Act 1914 ’, and substituting the words ‘section 11.1 of the Criminal Code ’.

 

This is a minor amendment, which ensures that references to repealed sections of the Crimes Act are replaced by references to corresponding sections in the Criminal Code.

 

Item 22

 

This item repeals subsection 32(8) of the Tobacco Advertising Prohibition Act 1992 and substitutes a new subsection that refers to section 6 of the Crimes Act and sections 11.1, 11.2, 11.2A, 11.4 and 11.5 of the Criminal Code.

 

This is a minor amendment, which ensures that references to repealed sections of the Crimes Act are replaced by references to corresponding sections in the Criminal Code.

 

This item also inserts a reference to section 11.2A of the Criminal Code into subsection 32(8) because joint commission is an extension of criminal responsibility closely related to section 11.2 of the Criminal Code.  The new joint commission provision is to be inserted into section 11.2A of the Criminal Code by the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009. 

 

Item 23

 

This item amends subsection 79(5) of the Trade Practices Act 1974 by omitting the words ‘Sections 5, 7 and 7A of the Crimes Act 1914 and section 11.1 of the Criminal Code ’, and substituting the words ‘Subsections 11.1(1), 11.2(1), 11.2A(1) or 11.4(1) of the Criminal Code ’.

 

This item is a minor amendment, which ensures that references to repealed sections of the Crimes Act are replaced by references to corresponding sections in the Criminal Code.

 

This item also inserts a reference to section 11.2A of the Criminal Code into subsection 79(5) because joint commission is an extension of criminal responsibility closely related to section 11.2 of the Criminal Code.  The new joint commission provision is to be inserted into section 11.2A of the Criminal Code by the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009. 

 

Item 24

 

This item amends the definition of offence against this Act in section 4 of the Tradex Scheme Act 1999 by omitting the words ‘section 6, 7 or 7A or subsection 86(1) of the Crimes Act 1914 ’, and substituting the words ‘section 6 of the Crimes Act 1914 , or against section 11.1, 11.4 or 11.5 of the Criminal Code ’.

 

This item is a minor amendment, which ensures that references to repealed sections of the Crimes Act are replaced by references to corresponding sections in the Criminal Code.

 

Item 25

 

This item repeals paragraphs (a) and (b) of the definition of offence against this Act in section 3 of the Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 and substitutes new paragraphs that refer to section 6 of the Crimes Act and sections 11.1, 11.4 and 11.5 of the Criminal Code.

 

This is a minor amendment, which ensures that references to repealed sections of the Crimes Act are replaced by references to corresponding sections in the Criminal Code.