Title Schedule 2—Amendments relating to mutual assistance in criminal matters
Database Bills & Legislation
Long Title a Bill for an Act to amend legislation relating to the criminal law, law enforcement and background checking, and for other purposes
Date 10-05-2018 01:17 PM
Source House of Reps
Parl No. 45
Bill Number 178/16
Bill Type Government
Portfolio Justice
Reps Bill Code O
Status Act
System Id legislation/bills/r5767_aspassed/0002


Schedule 2—Amendments relating to mutual assistance in criminal matters

Schedule 2—Amendments relating to mutual assistance in criminal matters

Part 1—Search warrants

Mutual Assistance in Criminal Matters Act 1987

1  Subsection 3(1)

Insert:

benefit has the same meaning as in the Proceeds of Crime Act.

2  Subsection 3(1) (definition of evidential material)

Repeal the definition, substitute:

evidential material means:

                     (a)  in Subdivision F of Division 2 of Part VI—evidence relating to:

                              (i)  property in relation to which a foreign forfeiture order or foreign restraining order has been or could be made; or

                             (ii)  property of a person in relation to whom a foreign pecuniary penalty order has been or could be made; or

                            (iii)  tainted property; or

                            (iv)  benefits derived from the commission of a foreign serious offence; or

                     (b)  otherwise—a thing relevant to a proceeding or investigation, including such a thing in electronic form.

3  Subsection 3(1)

Insert:

person assisting has the same meaning as in the Proceeds of Crime Act.

POCA search warrant means a search warrant issued under Part 3‑5 of the Proceeds of Crime Act in relation to a foreign serious offence.

4  Subsection 3(1) (definition of property‑tracking document)

Repeal the definition.

5  Subsection 3(1)

Insert:

responsible enforcement agency head means the head of the enforcement agency whose authorised officer is responsible for executing a POCA search warrant.

tainted property means:

                     (a)  proceeds of a foreign serious offence; or

                     (b)  an instrument of a foreign serious offence.

6  Subsection 34ZB(2)

Before “search”, insert “POCA”.

7  Subsection 34ZB(3)

Repeal the subsection, substitute:

             (3)  However, Part 3‑5 of the Proceeds of Crime Act applies as if:

                     (a)  a reference in that Part to tainted property were a reference to tainted property within the meaning of this Act; and

                     (b)  a reference in that Part to evidential material were a reference to evidential material as defined in subsection 3(1) of this Act for the purposes of this Subdivision; and

                     (c)  the words “or section 34ZD, 34ZE or 34ZF of the Mutual Assistance Act” were inserted after “this Act” in paragraph 254(1)(a) of the Proceeds of Crime Act; and

                     (d)  paragraphs 227(1)(a), (b), (h) and (ha) and 228(1)(d) and (da) and sections 256 to 262 of the Proceeds of Crime Act were omitted.

Note:          Sections 34ZC and 34ZCA of this Act also apply in relation to a POCA search warrant. Sections 34ZD to 34ZF of this Act also apply in relation to property or things seized under such a warrant.

8  Section 34ZC

Repeal the section, substitute:

34ZC  Contents of POCA search warrants

                   A POCA search warrant in relation to a foreign serious offence must state that the warrant authorises the seizure of property or a thing found by an authorised officer, or a person assisting in relation to the warrant, in the course of the search if the authorised officer or person assisting believes on reasonable grounds that:

                     (a)  the property or thing:

                              (i)  is tainted property of the foreign serious offence that is not of a kind specified in the warrant; or

                             (ii)  is evidential material relating to the foreign serious offence that is not of a kind specified in the warrant; or

                            (iii)  is tainted property of, or evidential material relating to, another foreign serious offence in relation to which a POCA search warrant is in force; or

                            (iv)  is relevant to a criminal proceeding in respect of the foreign serious offence in the foreign country that requested the assistance referred to in section 34ZG in relation to that offence; or

                             (v)  will afford evidence as to the commission of an Australian criminal offence; and

                     (b)  the seizure of the property or thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence.

Note:          Subject to paragraph 34ZB(3)(d), the POCA search warrant must also state the matters set out in section 227 of the Proceeds of Crimes Act.

34ZCA  Seizure of certain property or things found in the course of search

                   A POCA search warrant in relation to a foreign serious offence authorises an authorised officer, or a person assisting in relation to the warrant, to seize property or a thing found by the authorised officer or person assisting in the course of the search if the authorised officer or person assisting believes on reasonable grounds that:

                     (a)  the property or thing:

                              (i)  is tainted property of the foreign serious offence that is not of a kind specified in the warrant; or

                             (ii)  is evidential material relating to the foreign serious offence that is not of a kind specified in the warrant; or

                            (iii)  is tainted property of, or evidential material relating to, another foreign serious offence in relation to which a POCA search warrant is in force; or

                            (iv)  is relevant to a criminal proceeding in respect of the foreign serious offence in the foreign country that requested the assistance referred to in section 34ZG in relation to that offence; or

                             (v)  will afford evidence as to the commission of an Australian criminal offence; and

                     (b)  the seizure of the property or thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence.

Note:          Subject to paragraph 34ZB(3)(d), the POCA search warrant also authorises the things set out in section 228 of the Proceeds of Crimes Act.

9  Subsection 34ZD(1)

Omit “(other than a property‑tracking document) that has been seized under a search warrant issued under Part 3‑5 of the Proceeds of Crime Act”, substitute “that has been seized under a POCA search warrant”.

10  Subsection 34ZD(2)

Before “warrant”, insert “POCA search”.

11  Subsection 34ZD(3)

Omit “head of the authorised officer’s enforcement agency”, substitute “responsible enforcement agency head”.

12  Paragraph 34ZD(3)(b)

Omit “proceeds or an instrument”, substitute “tainted property”.

13  Subsection 34ZD(4)

Omit “head of the authorised officer’s enforcement agency”, substitute “responsible enforcement agency head”.

14  Subsection 34ZD(5)

Repeal the subsection, substitute:

             (5)  This section does not apply to property that has been seized under a POCA search warrant because:

                     (a)  it is evidential material; or

                     (b)  it is property of a kind referred to in subparagraph 34ZCA(a)(iv) or (v).

15  Section 34ZE (heading)

Repeal the heading, substitute:

34ZE  Dealing with certain seized property

16  Subsection 34ZE(1)

Repeal the subsection, substitute:

             (1)  Property must be dealt with in accordance with this section if:

                     (a)  it has been seized under a POCA search warrant in relation to a foreign serious offence; and

                     (b)  it is not:

                              (i)  evidential material; or

                             (ii)  property of a kind referred to in subparagraph 34ZCA(a)(iv) or (v).

17  Subsections 34ZE(2), (3) and (5)

Omit “head of the enforcement agency whose authorised officer seized the property”, substitute “responsible enforcement agency head”.

18  Subsection 34ZE(5)

Omit “head of the enforcement agency” (second and third occurring), substitute “responsible enforcement agency head”.

19  Subsection 34ZE(6)

Omit “head of the enforcement agency” (wherever occurring), substitute “responsible enforcement agency head”.

20  Subsection 34ZE(7)

Omit “head of the enforcement agency whose authorised officer seized it”, substitute “responsible enforcement agency head”.

21  Subsection 34ZE(7)

Omit “head of the enforcement agency must”, substitute “responsible enforcement agency head must”.

22  Section 34ZF

Repeal the section, substitute:

34ZF  Dealing with evidential material and certain property or things seized under POCA search warrants

             (1)  This section applies if:

                     (a)  property or a thing (the seized item) is seized under a POCA search warrant in relation to a foreign serious offence; and

                     (b)  the seized item is:

                              (i)  evidential material; or

                             (ii)  property or a thing of a kind referred to in subparagraph 34ZCA(a)(iv); and

                     (c)  the seized item is seized by a person (the seizing officer) who is:

                              (i)  an authorised officer; or

                             (ii)  a person assisting in relation to the warrant.

             (2)  The seizing officer may retain the seized item for a period not exceeding 1 month pending a written direction from the Attorney‑General as to how to deal with the seized item.

             (3)  Without limiting the directions that may be given under subsection (2), the Attorney‑General may direct the seizing officer to send the seized item to an authority of the foreign country that requested the assistance referred to in section 34ZG in relation to the foreign serious offence.

23  Application provisions

(1)       The amendments of the Mutual Assistance in Criminal Matters Act 1987 (the MACM Act) made by this Part apply in relation to an application made under Part 3‑5 of the Proceeds of Crime Act on or after the commencement of this item:

                     (a)  whether property or a thing to which the application relates was acquired before, on or after that commencement; and

                     (b)  whether the conduct to which the application relates occurred before, on or after that commencement; and

                     (c)  whether the authorisation relating to the application was given under section 34ZG of the MACM Act before, on or after that commencement.

(2)       The amendments of the Mutual Assistance in Criminal Matters Act 1987 (the MACM Act) made by this Part apply in relation to a POCA search warrant issued on or after the commencement of this item:

                     (a)  whether property or a thing to which the warrant relates was acquired before, on or after that commencement; and

                     (b)  whether the conduct to which the warrant relates occurred before, on or after that commencement; and

                     (c)  whether the application for the warrant was made before, on or after that commencement; and

                     (d)  whether the authorisation relating to the application for the warrant was given under section 34ZG of the MACM Act before, on or after that commencement.

Part 2—Production of documents or other articles

Mutual Assistance in Criminal Matters Act 1987

24  Paragraph 13(2)(b)

Omit “the Magistrate or Judge shall”, substitute “a Magistrate or eligible Federal Circuit Court Judge must”.

25  Paragraph 13(2)(b)

Omit “by the Magistrate”, substitute “by that Magistrate”.

26  Subsection 13(2D)

Omit “the Magistrate or Judge must”, substitute “a Magistrate or eligible Federal Circuit Court Judge must”.

27  Subsection 13(2D)

Omit “by the Magistrate”, substitute “by that Magistrate”.

28  Application provision

The amendments of the Mutual Assistance in Criminal Matters Act 1987 made by this Part apply in relation to the following:

                     (a)  a requirement to produce documents or other articles that is made on or after the commencement of this item;

                     (b)  a requirement to produce documents or other articles that is made before the commencement of this item if:

                              (i)  the documents or other articles had not been produced immediately before the commencement of this item; or

                             (ii)  the documents or other articles were produced before the commencement of this item but, immediately before that commencement, the documents (or copies of the documents) or other articles had not been sent to the Attorney‑General as required by paragraph 13(2)(b) or subsection 13(2D) of that Act.

Part 3—Other amendments

Mutual Assistance in Criminal Matters Act 1987

29  Subsection 3(1) (definition of carrier)

Repeal the definition, substitute:

carrier has the same meaning as in the Telecommunications (Interception and Access) Act 1979 (other than Part 5‑4 or 5‑4A of that Act).

30  Subsection 3(1) (paragraph (a) of the definition of foreign forfeiture order)

After “foreign country”, insert “by a court or other judicial authority”.

31  Subsection 3(1) (paragraph (b) of the definition of foreign forfeiture order)

Omit “made under the law of a foreign country”, substitute “direction, notice, decree or other decision (however described), made under the law of a foreign country by a court or other judicial authority”.

32  Subsection 3(1) (definition of foreign pecuniary penalty order)

After “foreign country”, insert “by a court or other judicial authority”.

33  Subsection 3(1) (paragraph (a) of the definition of foreign restraining order)

After “foreign country”, insert “(whether or not by a court)”.

34  After subsection 3(1)

Insert:

       (1AA)  A reference to an order in the definitions of foreign forfeiture order, foreign pecuniary penalty order and foreign restraining order in subsection (1) includes a reference to a declaration, direction, notice, decree or other decision (however described).

35  Paragraph 34P(3)(c)

Omit “and (iii) and (c)(ii) and (iii)”, substitute “and (c)(ii)”.

36  Section 34W

Before “A person”, insert “(1)”.

37  Section 34W (penalty)

Repeal the penalty, substitute:

Penalty:  Imprisonment for 2 years or 100 penalty units, or both.

38  Section 34W (note)

Repeal the note.

39  At the end of section 34W

Add:

             (2)  Subsection (1) does not apply if:

                     (a)  the person fails to comply with the notice only because the person does not provide information or a document within the period specified in the notice; and

                     (b)  the person took all reasonable steps to provide the information or document within that period; and

                     (c)  the person provides the information or document as soon as practicable after the end of that period.

Note 1:       A defendant bears an evidential burden in relation to the matters in subsection (2) (see subsection 13.3(3) of the Criminal Code).

Note 2:       Sections 137.1 and 137.2 of the Criminal Code also create offences for providing false or misleading information or documents.

40  Application provisions

(1)       The amendments of the Mutual Assistance in Criminal Matters Act 1987 made by items 30 to 34 of this Part apply in relation to a foreign forfeiture order, foreign pecuniary penalty order or foreign restraining order made before, on or after the commencement of this item.

(2)       Subsection 34W(2) of the Mutual Assistance in Criminal Matters Act 1987, as inserted by this Part, applies in relation to a notice given on or after the commencement of this item.