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2009
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
CRIMES LEGISLATION AMENDMENT (SERIOUS AND ORGANSED CRIME) BILL 2009
EXPLANATORY MEMORANDUM
(Circulated by authority of the Attorney-General,
the Honourable Robert McClelland MP)
CRIMES LEGISLATION AMENDMENT (SERIOUS AND ORGANISED CRIME) BILL 2009
GENERAL OUTLINE
This Bill amends the Crimes Act 1914, the Criminal Code Act 1995, the
Customs Act 1901, the Family Law Act 1975, the Proceeds of Crime Act 2002
and the Telecommunications (Interception and Access) Act 1979.
In April 2009, the Standing Committee of Attorneys-General (SCAG) agreed to
a set of resolutions for a comprehensive national response to combat
organised crime. The SCAG resolutions dealt with both the legislative and
operational response to organised criminal activity. This Bill implements
the Commonwealth's commitment as part of the SCAG agreement to enhance its
legislation to combat organised crime by:
. strengthening criminal asset confiscation, including introducing
unexplained wealth provisions (Schedules 1 and 2)
. enhancing police powers to investigate organised crime by implementing
model laws for controlled operations, assumed identities and witness
identity protection (Schedule 3)
. addressing the joint commission of criminal offences (Schedule 4,
Part 1), and
. facilitating greater access to telecommunications interception for
criminal organisation offences (Schedule 4, Part 2).
These measures are further described below.
PURPOSE
The purpose of Schedules 1 and 2 is to amend the Proceeds of Crime Act 2002
to strengthen the Commonwealth criminal assets confiscation regime. The
proposed amendments respond to recommendations of law enforcement agencies
and to the Report of the Independent Review of the Operation of the
Proceeds of Crime Act by Mr Tom Sherman AO, which was tabled in Parliament
in October 2006.
Schedule 1 will introduce unexplained wealth provisions which target wealth
that a person cannot demonstrate that he or she has lawfully acquired.
The amendments in Schedule 2 will:
. introduce freezing orders to ensure assets are not dispersed
. remove time limitations on orders
. provide for non-conviction-based restraint and forfeiture of
instruments of serious crime
. enhance information sharing under the Proceeds of Crime Act 2002, and
. reimburse legal aid commission legal costs from the Confiscated Assets
Account.
The overarching purpose behind these amendments is to improve the ability
of law enforcement agencies to target upper-echelon organised crime figures
that derive the greatest financial benefit from offences, but are seldom
linked by evidence to the commission of an offence.
The purpose of Schedule 3 is to implement model laws for controlled
operations, assumed identities and witness identity protection. The model
laws were developed following the 2002 Leaders Summit on Multi-
jurisdictional Crime by the Joint Working Group of SCAG and the then
Australasian Police Ministers Council. The Joint Working Group's Report,
Cross-border investigative powers for law enforcement, was released in
2003, and the model laws endorsed by implementation by SCAG in 2004.
The model laws are intended to enhance the ability of law enforcement
agencies to investigate and prosecute multi-jurisdictional criminal
activity. This type of crime is becoming increasingly common due to
advances in information and communication technology, and the increasing
sophistication of organised criminal groups, particularly those involved in
terrorism or transnational crime, including drug trafficking.
Implementation of the model laws will enable authorisations issued under a
regime in one jurisdiction to be recognised in other jurisdictions.
Schedule 3 will replace the existing provisions in the Crimes Act 1914 for
controlled operations, assumed identities and witness identity protection
with the model laws, taking into account the unique role of Commonwealth
agencies for national security and the investigation of crimes with a
foreign aspect.
The purpose of Schedule 4, Part 1 is to amend the Criminal Code Act 1995 to
include a new ground for extending criminal liability in relation to
persons who jointly commit offences. Extending criminal liability to cover
the joint commission of criminal offences would also target persons who
engage in criminal activity as part of a group. The amendments will enable
the prosecution to obtain higher penalties for offenders who commit crimes
in organised groups by aggregating the conduct of offenders who operate
together.
Part of the national response to organised crime includes offences that
target criminal organisations (for example, associating with a member of a
criminal organisation or instructing the commission of an offence for a
criminal organisation). Some of these offences may carry a maximum penalty
that falls below the threshold for the use of telecommunications
interception. The purpose of Schedule 4, Part 2 is to amend the
Telecommunications (Interception and Access) Act 1979 to facilitate greater
access to telecommunications interception for criminal organisation
offences.
FINANCIAL IMPACT STATEMENT
The amendments in this Bill have no financial impact on Government revenue.
ACRONYMS
AAT Administrative Appeals Tribunal
ACC Australian Crime Commission
ACLEI Australian Commission for Law Enforcement Integrity
AFP Australian Federal Police
ASIO Australian Security Intelligence Organisation
ASIS Australian Secret Intelligence Service
ATO Australian Taxation Office
BDM register Register of births, deaths and marriages
Customs Australian Customs and Border Protection Service
DPP Commonwealth Director of Public Prosecutions
NWPP National Witness Protection Program
NOTES ON CLAUSES
Clause 1: Short Title
This clause provides that when the Bill is enacted, it is to be cited as
the Crimes Legislation Amendment (Serious and Organised Crime) Act 2009.
Clause 2: Commencement
This clause sets out when the various parts of the Act are to commence.
Clause 3: Schedule(s)
This is a formal clause that enables the Schedules to amend Acts by
including amendments under the title of the relevant Act.
Schedule 1 - Unexplained Wealth
Schedule 1 amends the Proceeds of Crime Act 2002 to strengthen the
Commonwealth criminal assets confiscation regime in Chapter 2 of the Act by
introducing unexplained wealth orders to the suite of confiscation
processes. Unexplained wealth orders target wealth that a person cannot
demonstrate that he or she has lawfully acquired.
While the Act contains existing confiscation mechanisms, these are not
always effective in relation to those who remain at arm's length from
the commission of offences, as most of the other confiscation
mechanisms require a link to the commission of an offence. Senior
organised crime figures who fund and support organised crime, but
seldom carry out the physical elements of crimes, are not always able
to be directly linked to specific offences.
Under the unexplained wealth provisions introduced by Schedule 1, once
a court is satisfied that an authorised officer has reasonable grounds
to suspect that a person's total wealth exceeds the value of the
person's wealth that was lawfully acquired, the court can compel the
person to attend court and prove, on the balance of probabilities, that
their wealth was not derived from offences with a connection to
Commonwealth power. If a person cannot demonstrate this, the court
must order them to pay to the Commonwealth the difference between their
total wealth and their legitimate wealth (the unexplained wealth
amount). Schedule 1 also provides for restraining orders in relation
to unexplained wealth.
Unexplained wealth provisions have been successfully used in Italy in
recent years in relation to the Mafia. The Northern Territory and
Western Australia also have unexplained wealth schemes. It is
estimated that more than $40 million in alleged criminal assets has
been seized in the Northern Territory and Western Australia under
unexplained wealth provisions since 2003. Article 20 of the United
Nations Convention Against Corruption encourages parties to the
Convention to consider creating an 'illicit enrichment' offence for
public officials who have intentionally increased the value of their
assets and cannot link the whole value of their assets to a lawful
source of income.
The Commonwealth unexplained wealth regime draws on the Northern
Territory and Western Australia experience. There main differences
between the Commonwealth's unexplained wealth scheme and those of the
Northern Territory and Western Australia is that the Commonwealth is
limited to confiscating unexplained wealth derived from offences within
Commonwealth Constitutional power.
Part 1 - Main amendments
Proceeds of Crime Act 2002
Items 1-4
Items 1 - 4 are consequential on the insertion of new Part 2-6 into the
Act. Part 2-6 establishes a new confiscation scheme in the Act for
unexplained wealth.
Item 1 - After paragraph 5(b)
Item 1 inserts a new object into the Act. It provides that one of the
principal objects of the Act is to deprive persons of 'unexplained
wealth amounts' that they cannot satisfy a court were not derived from
certain offences.
An unexplained wealth amount is the difference between a person's total
wealth (defined at 179G(2)) and the amount of a person's wealth that he
or she can satisfy a court was not derived from certain offences (see
subsection 179E(2)). The offences that a person must show were not the
source of his or her wealth are an offence against a law of the
Commonwealth, a foreign indictable offence or a State offence that has
a federal aspect.
Item 2 - Paragraph 5(d)
Item 2 amends paragraph 5(d) of the Act by inserting 'unexplained
wealth amounts.' This makes one of the principal objects of the Act
the prevention of the reinvestment of 'unexplained wealth amounts' in
further criminal activities.
Item 3 - Paragraph 5(e)
Item 3 amends paragraph 5(e) of the Act by inserting 'unexplained
wealth amounts.' It will be a principal object of the Act to enable
law enforcement authorities to effectively trace unexplained wealth
amounts.
Item 4 - At the end of section 7
Item 4 amends the outline of how Chapter 2 (the confiscation scheme)
operates. It inserts a new process relating to confiscation:
unexplained wealth orders requiring payment of unexplained wealth
amounts in Part 2-6 of the Act.
Item 5 - After section 20
20A Restraining orders - unexplained wealth
Item 5 inserts section 20A after section 20 of the Act. Section 20A
requires a court with proceeds jurisdiction to make a restraining order
in relation to unexplained wealth if certain conditions have been met.
The restraining order for unexplained wealth is modelled on the
existing restraining orders at sections 17-20 of the Act.
The restraint of property suspected of being an unexplained wealth
amount is a crucial part of the confiscation scheme and a condition
precedent to the court issuing an examination order. An examination
order is an important tool that the DPP may employ to locate further
property. These provisions ensure that property is preserved and cannot
be dealt with to defeat an ultimate unexplained wealth order.
Paragraphs 20A(1)(a) and (b) will enable the court to prohibit a person
from dealing with certain property, or specify that the property may
only be dealt with in ways set out in the order. For example, a
restraining order may prohibit a person from selling or mortgaging a
business, but allow him or her to continue to run the business.
There are several conditions that must be met before a court with
proceeds jurisdiction may make a restraining order. These are set out
in subparagraphs 20A(1)(c)-(g). The DPP must first have applied for a
restraining order for unexplained wealth and met the affidavit
requirements of subsection 20A(3) (20A(1)(c) and (e).
Subparagraph 20A(1)(d) requires there to be reasonable grounds to
suspect that a person's total wealth exceeds the value of the person's
wealth that was lawfully acquired. The court must be satisfied that
the authorised officer who made the affidavit holds the requisite
suspicion(s) stated in the affidavit on reasonable grounds
(subparagraph 20A(1)(f)).
Lastly, subparagraph 20A(1)(g) requires the court to be satisfied
either that:
. the person has committed an offence against a law of the Commonwealth,
a foreign indictable offence or a State offence that has a federal
aspect, or
. the whole or any part of the person's wealth was derived from an
offence against a law of the Commonwealth, a foreign indictable
offence or a State offence that has a federal aspect.
Subsection 20A(2) sets out what property may be covered by a restraining
order. The restraining order may cover all of the property of the person
(the suspect) suspected of having unexplained wealth amounts, or specified
parts of that person's property. In addition, the order can extend to
property of another person if the property is suspected of being under the
effective control of the suspect, as well as bankruptcy property.
Bankruptcy property is property that used to belong, or be under the
effective control of, the suspect but which is now vested in another person
under either subsection 58(1) or 249(1) of the Bankruptcy Act 1966.
The DPP is not required, at the time of applying for a restraining order
for unexplained wealth, to prove that the property is effectively
controlled by the person, or is an unexplained wealth amount. However,
under subparagraph 20A(3)(b), if the application is to restrain property of
a person other than the suspect, but not to restrain bankruptcy property of
the suspect, the authorised officer must state in his or her affidavit that
he or she suspects that the property is subject to the effective control of
the suspect. For example, if a person places a property in his or her
spouse's name but effectively controls the property.
The authorised officer must also state in his or her affidavit his or her
suspicions that the total wealth of the person identified in the affidavit
exceeds the value of the person's wealth that was lawfully acquired
(subparagraph 20A(3)(a).)
The affidavit requirement of subparagraph 20A(3)(c) also requires an
authorised officer to state that he or she suspects either that the person
identified in the affidavit has committed an offence against a law of the
Commonwealth, a foreign indictable offence or a State offence that has a
federal aspect; or that the whole or any part of the property was derived
from an offence against a law of the Commonwealth, a foreign indictable
offence or a State offence that has a federal aspect.
Subsection 20A(4) will allow a court to refuse to make the restraining
order if it is not in the public interest to do so.
A court may also refuse to make a restraining order if the Commonwealth
refuses to give an undertaking with respect to the payment of damages or
costs, or both, for the making and operation of the order under section 21
of the Act.
Subsection 20A(5) provides that a court must make a restraining order even
if there is no risk that the property will be disposed of or dealt with.
This is because a restraining order must be in force before a court may
make an examination order and examinations are a particularly useful
investigative tool for uncovering proceeds of crime.
Subsection 20A(6) enables a restraining order to operate in relation to
property which is not yet in the possession of the suspect at the time the
order is made. For example, the suspect's bank account may be restrained,
and the court may order that any other amounts paid into that account after
the making of the order are also restrained.
Item 6 - Subsection 29(1) (note)
Item 6 amends the note that follows subsection 29(1) by omitting '31A' and
substituting '32.' This is to correct an incorrect existing cross
reference.
This item also alters the heading to section 29 by omitting 'a restraining
order' and substituting 'certain restraining orders.' This is necessary to
differentiate between property that be excluded from a restraining order
made under section 20A and other restraining order situations in which
property may be excluded under section 29.
Item 7 - After section 29
29A Court may exclude property from a restraining order made under section
20A
Item 7 inserts section 29A into the Act and will enable a person whose
property is the subject of a restraining order under section 20A to have
specified property excluded from that order, if certain conditions have
been met.
The first condition is that the person must apply under either section 30
or 31 of the Act for an order to exclude property from a restraining order
(a person applies under section 30 after receiving notice of an application
for a restraining order but before a restraining order is made, and under
section 31 if the restraining order has already been made).
The second condition is that the court hearing the application to exclude
property from a restraining order must be satisfied that the property is
property of a person other than the suspect and the property is not subject
to the effective control of the suspect.
Item 8 - Paragraph 35(1)(a)
Item 8 amends paragraph 35(1)(a) by inserting '29A' after '29.' This is
consequential to the insertion of section 29A by Item 6
Section 35 states that, if the DPP has previously applied to a registration
authority for the recording in a register of particulars of a restraining
order covering particular property, the DPP must notify the registration
authority if certain circumstances change.
One of the existing circumstances is if the property is no longer covered
by the restraining order because it is excluded from the order under
section 29 or because the property covered by the order is varied under
section 39. Inserting the reference to section 29A means that the DPP will
need to notify the registration authority if property is excluded from a
restraining order under section 29A.
Item 9 - Section 39(1)(note)
Item 9 inserts '1' after 'Note' at the end of subsection 39(1) of the
Act. This amendment is necessary because of item 8. Item 8 inserts a
second note after subsection 39(1) of the Act. Therefore, the existing
note after subsection 39(1) of the Act needs to be labelled 'Note 1.'
Item 10 - At the end of subsection 39(1)(after the note)
Item 10 inserts a second note at the end of subsection 39(1) of the
Act. Subsection 39(1) of the Act relates to ancillary orders a court
that has made a restraining order, or any other court that could have
made the restraining order, may make.
Note 2 states that, if there is an unexplained wealth order that
relates to a restraining order under section 20A, the court may also
order the Official Trustee to pay an amount equal to the relevant
unexplained wealth amount out of property covered by the restraining
order. This means that, in certain circumstances a court may direct
the Official Trustee to pay the Commonwealth an amount up to a person's
unexplained wealth amount, out of property that is subject to a
restraining order under section 20A.
Item 11 - At the end of subsection 45
Item 11 inserts a new subsection to section 45 of the Act. Section 45
of the Act deals with cessation of restraining orders. Subsection
45(7) clarifies that section 45 does not apply to a restraining order
made under section 20A.
Cessation of section 20A restraining orders will be governed by section
45A at item 10.
A note after subsection 45(7) alters the heading to section 45 by
inserting 'certain' before 'restraining.' This is necessary to
differentiate between cessation of restraining orders relating to
unexplained wealth orders under section 45A inserted by Item 10, and
other restraining orders under section 45.
Item 12 - At the end of Division 6 of Part 2-1
45A Cessation of restraining orders relating to unexplained wealth
Item 12 inserts section 45A after section 45 of the Act. Section 45A
establishes the three ways in which a section 20A restraining order
will cease to operate. It is important that a person to whom a section
20A restraining order relates, knows when the order ceases to operate
so that they can deal in their property.
The first way in which a section 20A restraining order will cease to
operate is if, within 28 days after the order was made, the DPP has not
applied for an unexplained wealth order in relation to the person to
who the restraining order relates.
The second way in which a section 20A restraining order will cease to
operate is if a court refuses to make an unexplained wealth order and
all appeal avenues are closed. This could be because either the time
for an appeal against the refusal has expired without an appeal being
lodged, or an appeal against the refusal has lapsed or an appeal
against the refusal has been dismissed and finally disposed of.
The third way in which a section 20A restraining order will cease to
operate is if an unexplained wealth order is made and either the order
is complied with or an appeal against the order has been upheld and
finally disposed of.
Item 13 - At the end of Chapter 2
Item 13 inserts new Part 2-6 into Chapter 2 of the Act. Chapter 2 of
the Act is the confiscation scheme and currently includes restraint and
forfeiture of property, pecuniary penalty and literary proceeds orders.
Part 2-6 will add unexplained wealth orders to the suite of
confiscation processes in the Act.
179A Simplified outline of this Part
Section 179A gives a basic outline of the unexplained wealth
provisions. The DPP must apply for an unexplained wealth order. A
court with proceeds jurisdiction must then decide whether to make a
preliminary unexplained wealth order requiring a person to attend court
for the purpose of enabling the court to decide whether to make an
unexplained wealth order.
Division 1 - Making unexplained wealth orders
179B Making an order requiring a person to appear.
The process for obtaining an unexplained wealth order is divided into
three steps, but requires only one application (an application for an
unexplained wealth order.) Section 179B is the first and prerequisite
step in obtaining an unexplained wealth order.
This initial step has been inserted to act as a gate keeping provision.
Before a court with proceeds jurisdiction embarks on the hearing of an
unexplained wealth order, it has an opportunity to assess whether an
authorised officer has demonstrated reasonable grounds to suspect that
the total value of the person's wealth exceeds the value of the
person's wealth that was lawfully acquired. If the court does not
consider that the authorised officer has reasonable grounds to hold
that suspicion, it can refuse to make the preliminary unexplained
wealth order and the application for an unexplained wealth order does
not proceed any further.
Subsection 179B(1) requires a court with proceeds jurisdiction to make
a preliminary unexplained wealth order requiring a person to appear
before the court in relation to an unexplained wealth order if three
conditions have been met.
The first condition is that the DPP must have applied for an
unexplained wealth order in relation to the person. The second
condition is that the court is satisfied that an authorised officer has
reasonable grounds to suspect that the person's total wealth exceeds
the value of the person's wealth that was lawfully acquired. Section
179G explains how to determine a person's wealth, total wealth and the
value of property. Wealth is all the property that the person has
owned, effectively controlled or disposed of at any time. The third
condition is the affidavit requirements of section 179B(2) must be met.
Section 179B(2) requires an authorised officer to state in his or her
affidavit the identity of the person to whom the application for the
unexplained wealth order relates. The authorised officer must state
that he or she suspects that the total value of the person's wealth
exceeds the value of the person's wealth that was lawfully acquired.
An authorised officer is also required to state the property he or she
knows or reasonably suspects was lawfully acquired by the person and
the property he or she knows or reasonably suspects is owned by the
person or is under the effective control of the person and the grounds
for that knowledge or suspicion.
179C Application to revoke a preliminary unexplained wealth order
Section 179C provides a person to whom a preliminary unexplained wealth
order relates, an opportunity to have the order requiring them to
appear before the court revoked. There may be instances where a person
can quickly and easily demonstrate that his or her total wealth does
not exceed the value of his or her wealth that was lawfully acquired
because, for example, the authorising officer was not aware of wealth
that was lawfully acquired by the person. In such cases, it is in the
interests of justice that the matter be disposed of quickly without
resorting to a full hearing for an unexplained wealth order under 179E.
To have a preliminary unexplained wealth order revoked, a person must
apply to the court, within 28 days after he or she is notified of the
preliminary unexplained wealth order or within such longer period as
the court allows but not exceeding 3 months, to revoke the order
(subsections 179C(1) and (2).) The person must give written notice to
the DPP of the application to revoke the preliminary unexplained wealth
order and the grounds on which the revocation is sought (subsection
179C(3).) Under subsection 179C(5) the DPP has the right to adduce
additional material to the court relating to the application to revoke
the preliminary unexplained wealth order.
The court may revoke the preliminary unexplained wealth order if
satisfied that there were no grounds on which to make the order at the
time the order was made. This could occur where the person
demonstrates that his or her total wealth does not exceed the value of
his or her wealth that was lawfully acquired. For example, an
authorised officer's affidavit may state that a person's total wealth
exceeds their lawfully acquired wealth by $100,000.00. The person,
however, has proof that the $100,000.00 came from a lawful source and
thus that there were no grounds for making the preliminary unexplained
wealth order.
Under subsection 179C(4) a preliminary unexplained wealth order remains
in force until the court revokes the order.
179D Notice of revocation of a preliminary unexplained wealth order
Section 179D is a notice provision. If a court revokes a preliminary
unexplained wealth order under subsection 179C(6), the DPP must give
written notice of the revocation to the person who applied for the
revocation. Requiring the DPP to provide written notice to an
applicant will ensure that an applicant is made aware of the outcome of
an application.
179E Making an unexplained wealth order
Subsection 179E(1) requires a court with proceeds jurisdiction to make
an unexplained wealth order, requiring a person to pay an amount to the
Commonwealth, if two requirements have been met. The first requirement
is that the court has made a preliminary unexplained wealth order in
relation to the person under section 179B. The second requirement is
that the person has failed to satisfy the court that his or her total
wealth was not derived from an offence against a law of the
Commonwealth, a foreign indictable offence or a State offence that has
a federal aspect (a specified offence). The courts that have proceeds
jurisdiction for a preliminary unexplained wealth order or an
unexplained wealth order are those of any State or Territory with
jurisdiction to deal with criminal matters on indictment.
The amount that the person must pay to the Commonwealth is his or her
unexplained wealth amount. A person's unexplained wealth amount is the
amount that, in the court's opinion, is the difference between the
person's total wealth, and the sum of the values of the property that
the court is not satisfied was not derived from a specified offence.
Under subsection 179E(3) a person bears the legal burden of proving, on
the balance of probabilities, that his or her wealth is not derived
from one or more of the specified offences. Subsection 179E(4)
clarifies that section 317 of the Act does not affect the burden in
subsection 179E(3). Section 317 states that an applicant (which would
be the DPP for an unexplained wealth order) in any proceedings under
the Act bears the onus of proving the matters necessary to establish
the grounds for making the order applied for. In this case, however,
it is the person against whom an order is sought that bears the burden
of proving that his or her wealth is not derived from one or more of
the specified offences.
Subsection 179E(4) clarifies that, when considering whether to make an
unexplained wealth order, the court may have regard to information not
included in the application, including information that could not
reasonably have been ascertained before the application was made.
The effect of this subsection is that, if the DPP discovers further
property owned or under the effective control of the person, after the
application for an unexplained wealth order was lodged (and that
information could not reasonably have been ascertained before the
application was made), the DPP can lead that evidence at a hearing for
an unexplained wealth order.
179F Ancillary orders
Subsections 179F(1) and (2) will allow a court that makes a preliminary
unexplained wealth order or an unexplained wealth order, or any other court
that could have made the preliminary unexplained wealth order or the
unexplained wealth order, to make any ancillary orders to the preliminary
unexplained wealth order or the unexplained wealth order that it considers
appropriate. The court may make the ancillary orders either when the
preliminary unexplained wealth order or the unexplained wealth order is
made or at a later time.
Examples of ancillary orders that a court might make include an order
varying the property covered by the restraining order or an order varying a
condition to which a restraining order is subject.
Division 2 - Unexplained wealth amounts
179G Determining unexplained wealth amounts
Subsection 179G(1) explains what a person's 'wealth' is for the purpose
of Part 2-6. A person's wealth is property owned, effectively
controlled, consumed or disposed of by the person at any time.
Importantly, this includes property owned, effectively controlled,
consumed or disposed of before the commencement of Part 2-6.
It is necessary to include property owned, effectively controlled,
consumed or disposed of by the person at any time so that the person
accounts for the entirety of his or her wealth over time and not just
property he or she currently owns or controls. If a person's wealth
were limited to a particular period of time, a person could escape
accounting for large amounts of unexplained wealth derived from a
potential lifetime of crime. Similarly, if wealth did not include
property disposed of, a person could funnel significant amounts of
proceeds of crime through extravagant gifts or personal consumption.
Subsection 179G(2) explains what 'total wealth' is. A person's total
wealth is the sum of all of the values of the person's property that
constitute a person's wealth. This means that the value of every item
of property owned, effectively controlled, consumed or disposed of by
the person at any time is added together to give the person's total
wealth.
Subsections 179G(3) and (4) state how the value of property is to be
established. For property that has been disposed of, consumed or is no
longer available (179G(3)), the value of the property is the greater of
the value of the property at the time it was acquired or the value of
the property immediately before it was disposed of, consumed or stopped
being available.
Subsection 179G(4) relates to property that is available to be valued
and is, again, the greater of the value of the property at the time it
was acquired or the value of the property on the day that the
application for the unexplained wealth order was made.
This is necessary to prevent a person from not fully accounting for
their wealth. For example a house purchased for $100,000.00 and sold
for $150,000.00 will be valued at $150,000.00 in any unexplained wealth
order. Similarly, if a house is purchased for $100,000.00 and
depreciates to $50,000.00, it will still be valued at $100,000.00 under
the unexplained wealth order provisions.
179H Effect of property vesting in an insolvency trustee
Section 179H provides that, in limited but well recognised
circumstances, property that would not normally be considered a
person's property may still be treated as if it were the person's
property for the purpose of assessing the value of a person's property.
These circumstances are if the property vests in the trustee of the
estate of a bankrupt, the trustee of a composition or scheme
arrangement, the trustee of a personal insolvency agreement or the
trustee of a deceased person's estate. If such property were not
included in the value of a person's property, a person could avoid
accounting for their unexplained wealth by declaring themselves
bankrupt.
179J Reducing unexplained wealth amounts to take account of
forfeiture, pecuniary penalties etc.
When a court determines a person's total wealth under 179E(2), it could
include amounts that a person has previously forfeited under a
forfeiture order, an interstate forfeiture order or a foreign
forfeiture order. A person's total wealth could also include amounts
payable under a pecuniary penalty order, literary proceeds order, an
order under section 243B of the Customs Act 1901, an interstate
pecuniary penalty order or a foreign pecuniary penalty order.
To counteract this effect, section 179J requires a court, in
determining a person's unexplained wealth amount, to deduct an amount
equal to the value of any property forfeited by the person (at the time
the order was made) or an amount equal to the sum of any amounts
payable by the person listed in subparagraphs 179J(b)(i)-(v).
This provision is an important safeguard to ensure that a person will
not be required to forfeit the same unlawfully acquired property twice.
179K Varying unexplained wealth orders to increase penalty amounts
Section 179K allows a court, in either of two situations, to increase
the unexplained wealth amount determined under subsection 179E(2). The
DPP must make an application to the court to vary an unexplained wealth
order and increase the penalty amount. The DPP's application may deal
with more than one increase to the same unexplained wealth amount.
The first situation in which an unexplained wealth amount may be
increased is if the value of property the person forfeited under
179J(a) was deducted from the unexplained wealth amount and an appeal
against the forfeiture or the order is allowed. In such a case, the
amount of the increase able to be sought by the DPP is equal to the
value of the property.
The second situation in which an unexplained wealth amount may be
increased is if an amount the person forfeited under 179J(b) was
deducted from the unexplained wealth amount and an appeal against the
amount payable or the order is allowed. In such a case, the amount of
the increase able to be sought by the DPP is equal to the amount that
was payable.
Section 179K is necessary because, if a court deducts an amount from a
person's unexplained wealth amount to take account of property
forfeited or an amount paid, and the person successfully appeals
against a forfeiture or pecuniary penalty type order, they will not pay
to the Commonwealth the full extent of their unexplained wealth.
179L Relieving certain dependants from hardship
Section 179L enables a dependant of a person whose property is the
subject of an unexplained wealth order to seek payment from the
Commonwealth to compensate that person for the hardship that would be
caused by the unexplained wealth order.
Such an order must specify the amount to be paid, and the court must be
satisfied that the amount would relieve the hardship. The specified
amount cannot exceed the unexplained wealth amount.
Where the dependant is aged 18 or over, the court must also be
satisfied that the dependant did not have any knowledge of the conduct
the subject of the order. The court may make an order in respect of
more than one dependant.
Division 3 - How unexplained wealth orders are obtained
179M DPP may apply for an unexplained wealth order
Section 179M states that the Director of Public Prosecutions (DPP) may
apply for an unexplained wealth order. This is consistent with other
application processes in the Act which empower the DPP to apply for
restraining, forfeiture, pecuniary penalty and literary proceeds
orders. Although a number of Commonwealth agencies will investigate
and be involved in unexplained wealth order actions, only the DPP may
apply for an unexplained wealth order.
179N Notice of application
Section 179N sets out the notice provisions for obtaining an
unexplained wealth order. The DPP may apply for an unexplained wealth
order without initially providing notice to the person to whom the
unexplained wealth order would relate, if it were made.
However, once a court is satisfied that a preliminary unexplained
wealth order should be made under 179B, subsection 179N(2) requires the
DPP, within 7 days of the order being made, to give written notice of
the preliminary unexplained wealth order to the person, as well as
provide a copy of the application for the unexplained wealth order and
any affidavit supporting the application.
The DPP must provide a copy of the affidavit supporting an application,
whether the affidavit was provided with the application or prepared
after the application was made. In effect, this means that the DPP
must provide the person with any updated affidavit in support of the
application, not just the affidavit provided with the application.
To protect an investigation or the prosecution of a person for an
offence, or if it is otherwise appropriate, the court may make an order
allowing the DPP to delay giving a copy of an affidavit to the person.
The court may only make such an order if it is satisfied that providing
a copy of the affidavit would prejudice the investigation of, or the
prosecution of a person for, an offence or that it is for any other
reason appropriate to make the order.
179P Additional application for an unexplained wealth order
Section 179P prohibits the DPP from applying for an unexplained wealth
order in particular circumstances without the leave of the court. The
prohibition prevents the DPP from seeking to make an application for an
unexplained wealth order under this Division if an application has already
been made and finally determined. Similarly, if an application for an
unexplained wealth order has been made and finally determined under another
law of the Commonwealth or a law of a non-governing Territory, the DPP
cannot apply for an unexplained wealth order in relation to the person
without the leave of the court.
Subsection 179P(2) only allows the court to give leave in particular
circumstances - namely if the court finds that the wealth to which the new
application relates was identified only after the first application was
determined, necessary evidence became available only after the first
application was determined, or it is in the interests of justice to grant
the leave.
It is not fair to subject a person to multiple unexplained wealth order
applications that relate to the same 'wealth,' unless there are
exceptional circumstances for doing so. If further unexplained wealth
orders are made in relation to property that was already the subject of
such an application, the court must be satisfied that the further
application should be allowed.
179Q Procedure on application
Section 179Q provides for matters of procedure in the hearing of an
application for an unexplained wealth order. The person who would be
subject to an unexplained wealth order, were it made, may appear and
adduce evidence at the hearing of an application under section 179C
(application to revoke a preliminary unexplained wealth order) and 179E
(making an unexplained wealth order).
The purpose of this section is to clarify, in case there is any doubt,
that the person who would be subject to an unexplained wealth order,
were it made, may appear and adduce evidence at the hearings under
sections 179C and 179E.
Division 4 - Enforcement of unexplained wealth orders
179R Enforcement of an unexplained wealth order
Where an unexplained wealth order is made against a person for the
payment to the Commonwealth of a specified amount of money, subsection
179R(1) provides that that amount is a debt due by that person to the
Commonwealth.
Subsection 179R(2) provides that the unexplained wealth order may be
enforced by the Commonwealth as if it were an order made by a court to
recover a debt due by that person to the Commonwealth. By operation of
subsection 170R(3), that debt is taken to be a judgment debt.
Subsection 179R(4) has the effect that, if an unexplained wealth order
is made against a person after they die, the order is treated as having
been made the day before the person died.
179S Property subject to a person's effective control
Where the court has made an unexplained wealth order in relation to a
person, the DPP may apply to the court for an order under subsection
179S, declaring that all or part of property within the effective
control of that person be made available to satisfy the unexplained
wealth order. The court may make such an order where it is satisfied
that the property is subject to the effective control of the person.
Subsection 179S(2) provides that where the court makes such an order,
the order may be enforced as if the property under the effective
control of the person were the property of that person.
In addition, the court may make a restraining order over that property,
as if the requirements to obtain a section 20A restraining order had
been met (subsection 179S(3)).
Subsection 179S(4) requires the DPP to provide notice of an application
to the person in respect of whom the unexplained wealth order was made,
and any other person who the DPP believes has an interest in the
property. Those people may appear at the hearing of the application,
and adduce evidence (subsection 179S(5)).
This provision is necessary to ensure a person does not avoid paying
their unexplained wealth amount to the Commonwealth by claiming that
they do not control property that would assist in satisfying the debt
to the Commonwealth. If a court is satisfied that particular property
is subject to the effective control (defined in section 337 of the Act)
of the person to whom an unexplained wealth order relates, subsection
179S(1) will empower a court to declare that property as being
available to satisfy the unexplained wealth amount.
179T Penalty amounts exceeding the court's jurisdiction
Subsections 179T(1)-(3) clarify jurisdictional issues that may arise
and ensure that courts have the ability to enforce orders made under
Part 2-6.
The DPP may apply for an unexplained wealth order in a State or
Territory County or District Court, on the basis that the authorised
officer suspected that a person's unexplained wealth was $200,000.00,
for example. However, after conducting further investigations and/or
examination hearings, it may become apparent that a person's
unexplained wealth is considerably more - $2,000,000.00, for example.
In such a situation, most State and Territory County or District Courts
would not have jurisdiction with respect to recovery of debts for the
larger amount.
In such a situation, subsection 179T(1) will allow the registrar of the
court to issue a certificate containing certain particulars specified
in the regulations. The certificate may then by registered in a court
that has jurisdiction with respect to the recovery of debts of an
amount equal to the amount in the relevant order (subsection 179T(2).)
In practice, this will most likely be the Supreme Court. Subsection
179T(3) provides that, once the certificate is registered, it is
enforceable as a final judgment of the court in favour of the
Commonwealth and the Commonwealth can recover the unexplained wealth
amount.
Item 14 - After paragraph 202(5)(e)
Item 14 amends the definition of 'property tracking document' in
subsection 202(5) of the Act to ensure this definition encompasses
documents relevant to unexplained wealth orders.
The definition of property tracking document will be amended to include
a document relevant to identifying, locating or quantifying property if
it is reasonable to suspect the total value of a person's wealth
exceeds the value of wealth that was lawfully acquired. The definition
will also be amended to include a document relevant to identifying or
locating any document necessary for the transfer of property to such a
person.
If the definition of 'property tracking document' were not amended as
described above, production orders used to gather information about a
person's unexplained wealth might be frustrated.
Item 15 - Paragraph 202(5)(f)
Item 15 will omit the words 'or (e)' from paragraph 202(5)(f) and
substitute the words '(e), (ea) or (eb)'. This will ensure the
definition of property tracking document includes documents that would
assist in the interpretation of a document referred to in the new
paragraphs (ea) and (eb), in addition to documents referred to in
existing paragraphs.
Law enforcement agencies will be assisted in their investigation of
unexplained wealth by being able to access and inspect documents that
may assist in the interpretation of other documents relevant to
identifying, locating or quantifying the property of a person.
A note is inserted after subsection 202(5) amending the heading to
section 282 by adding at the end of the heading the words, 'in relation
to certain restraining orders.' This is necessary to differentiate
directions by a court to the Official Trustee of those orders, and
section 282A, inserted by Item 14, that permits a court to direct the
Official Trustee in relation to unexplained wealth orders.
Item 16 - After section 282
282A Direction by court to Official Trustee
Item 16 will insert section 282A.
Section 282A will permit a court, in certain circumstances, to direct
the Official Trustee to pay the Commonwealth an amount up to a person's
unexplained wealth amount, out of property that is subject to a
restraining order under section 20A.
This will ensure that courts have the discretion to enforce unexplained
wealth orders directly from the property of a person named in the order
or by requiring the person to pay an amount to the Commonwealth.
There are three circumstances in which a court may make such a
direction. The first circumstance is that the court that makes the
unexplained wealth order may include such a direction if the
restraining order has already been made against the person and relates
to property that constitutes part of the person's total wealth. The
second circumstance is that the court that makes the restraining order
may include such a direction in the order if the unexplained wealth
order has been made against the person and the restraining order is
made against the person's property under section 20A or property the
person effectively controls under section 179S. The third circumstance
is that the court that made the unexplained wealth order or the
restraining order, may, on application by the DPP, make the direction
if the unexplained wealth order has been made and the restraining order
is made against the person under section 20A or another person under
section 179S.
Item 17 - Subsections 283(1) and 284(1)
Item 17 will amend subsections 283(1) and 284(1) by adding references
to new section 282A, in addition to section 282.
The powers in section 282A are substantially similar to the powers in
section 282, although they are applicable to unexplained wealth orders
instead of pecuniary penalty orders. Sections 283-285 provide guidance
on the application of the directions that may be made under section
282. It is appropriate to ensure this guidance also applies to section
282A, which is intended to operate in a similar way to existing section
282.
Item 18 and 19 - Subsection 284(2) and Paragraph 284(2)(a)
Items 18 and 19 amend subsection 284(2) and paragraph 284(2)(a) by
adding the words 'or unexplained wealth amount' after literary proceeds
amount. This amendment is consequential to the insertion of the
unexplained wealth provisions. It will allow the Official Trustee,
where it is to credit an amount to the Confiscated Assets Account and
the available amount of restrained property exceeds the unexplained
wealth amount, to pay to the Confiscated Assets Account an amount equal
to the unexplained wealth amount and to pay the balance to the person
whose property was subject to the restraining order.
Items 20-22 - Subsection 285(1), Paragraphs 285(2)(a) and 285(2)(b)
Items 20, 21 and 22 amend subsection 285(1) and paragraphs 285(2)(a)
and 285(2)(b) by inserting the words 'or 282A' after '282.' This is
necessary to prevent the Official Trustee from carrying out the
directions of a court that are subject to appeal. Because Item 14
inserted section 282A that allows a court to give directions to the
Official Trustee in relation to unexplained wealth orders, it is
necessary that section 285 also refers to section 282A.
Item 23 - At the end of section 286
Item 23 inserts subsection (3) to section 286. Section 286 is
concerned with the discharge of a person's pecuniary, literary proceeds
or unexplained wealth order to the extent that the Official Trustee
credits money to the Confiscated Assets Account.
Subsection 286(3) has the effect that, if a court makes an unexplained
wealth order requiring a person to pay an unexplained wealth amount of
$50,000.00 and the Official Trustee credits money to the Confiscated
Assets Account out of that person's restrained property to the value of
$40,000.00, the person's liability under the unexplained wealth order
is discharged to the extent of the $40,000.00. The person will still
have to pay the remaining $10,000.00 debt to the Commonwealth.
Item 24 - After paragraph 296(3)(f)
Item 24 will insert paragraph (fa) into subsection 296(3). This will
ensure that unexplained wealth amounts paid to the Commonwealth in
accordance with an unexplained wealth order must be deposited into the
Confiscated Assets Account.
Money in the Confiscated Assets Account is used for a number of
purposes, including funding programs approved by the Minister for the
purposes of crime prevention, law enforcement, treatment of drug
addiction and diversionary measures relating to illegal use of drugs.
Thus, wealth that a person has derived from illegal activities can be
channelled into programs aimed at preventing crime.
Item 25 - Paragraph 322(1)(c)
Item 25 will amend paragraph 322(1)(c) to ensure that a person who has
an interest in property that has been declared available to satisfy an
unexplained wealth order may appeal the making of the order. The
person may be the person against who the unexplained wealth order was
made (the first person), or could be a person who has an interest in
property that is subject to the first person's effective control
(section 179S).
Item 26 - Subsection 322(1)
Item 26 will amend the words at the end of subsection 322(1) to ensure
these words encompass the right to appeal against an unexplained wealth
order or an order that property is available to satisfy an unexplained
wealth order.
Item 27 - After subsection 322(4)
Item 27 inserts subsection (4A) after subsection 322(4). Subsection
322(4A) allows a person to appeal against an unexplained wealth order
or an order made under section 179S (that property subject to a
person's effective control is available to satisfy an unexplained
wealth order).
The way in which a person may appeal either of those orders is as if
the person had been convicted of one of the specified offences in
subparagraph 20A(g)(i) (an offence against a law of the Commonwealth, a
foreign indictable offence or a State offence that has a federal
aspect) and the targeted order were, or were part of, the sentence
imposed on the person in respect of the offence.
This ensures the manner of appeal is kept consistent with other appeal
mechanisms under section 322.
Item 28 - Subsection 335(1)
Item 28 will amend subsection 335(1) to provide that 'proceeds
jurisdiction' for an unexplained wealth order or a preliminary
unexplained wealth order does not depend on the circumstances of the
offence or offences to which the order would relate as it does for the
other types of orders under the Act.
A court's jurisdiction to hear and determine unexplained wealth orders
and preliminary unexplained wealth orders falls within the definition
of 'proceeds jurisdiction' but such orders do not relate directly to an
offence or offences as do other orders in the Act. It is therefore not
appropriate for the references to the circumstances of an offence or
offences in subsection 335(1) to apply to unexplained wealth orders and
preliminary unexplained wealth orders.
Item 29 - At the end of subsection 335
Item 29 will amend section 335 by inserting subsection 335(7).
Subsection 335(7) provides that a court of a State or Territory with
jurisdiction to deal with criminal matters on indictment will have
jurisdiction to make unexplained wealth orders and preliminary
unexplained wealth orders.
A court's ability to hear and determine unexplained wealth orders and
preliminary unexplained wealth orders has been incorporated into the
definition of 'proceeds jurisdiction' for two reasons. The first is
consistency and readability throughout the Act because all of the other
provisions in the Act that refer to a court's jurisdiction refer to a
court with proceeds jurisdiction. Secondly, unexplained wealth orders
and preliminary unexplained wealth orders are not intended to have a
separate jurisdiction. Rather, they are one of several types of
confiscation orders available under Chapter 2 of the Act.
Items 30-31 - Section 336
Items 30 and 31 amend the meaning of 'derived' by inserting 'wealth'
after 'literary proceeds.' These amendments are consequential to the
inclusion of unexplained wealth provisions and are necessary to ensure
their effective operation.
Item 32 - After section 336
336A Meaning of property being lawfully acquired
Item 32 will insert section 336A.
Section 336A will provide a definition of 'lawfully acquired' property
and wealth. Property and wealth will only be lawfully acquired if the
property or wealth was lawfully acquired and the consideration given
for the property or wealth was lawfully acquired.
This definition will ensure that a court may include in the assessment
of a person's lawfully acquired wealth any lawfully acquired
consideration given in exchange for property or wealth. It will ensure
a court cannot include in the assessment of a person's lawfully
acquired wealth, the value of any consideration that was not lawfully
acquired or the value of property purchased wholly or partially with
consideration that was not acquired lawfully. This will ensure a
person retains their lawfully acquired consideration but does not
retain unlawfully acquired consideration or capital gains made on
property that was not lawfully acquired.
For example, a person who purchases a house for $100,000.00 with
$50,000.00 of lawfully acquired wealth and $50,000.00 of unlawfully
acquired wealth, and whose house appreciates so that it is worth
$200,000.00, will only be entitled to the initial lawfully acquired
$50,000.00. They will not be entitled to half of the appreciation that
might be argued to be attributable to the initial lawfully acquired
$50,000.00. This is because the person would not have been able to
purchase the house without the initial unlawfully acquired portion of
$50,000.00 and should not gain the benefit of appreciation made
possible through partially unlawfully acquired wealth.
Item 33 - Section 338 (definition of confiscation order)
Item 33 will amend the definition of 'confiscation order' in section
338 of the Act to include an unexplained wealth order.
The definition of confiscation order will be amended to include
unexplained wealth orders to ensure proper interaction between this
form of confiscation order and existing provisions providing guidance
on the operation of confiscation orders.
Item 34 - Section 338
Item 34 will insert a definition of 'lawfully acquired' into section
338 that cross references the definition in section 338 to the
definition of this term provided in section 336A.
Item 35 - Section 338
Item 35 will insert a definition of 'preliminary unexplained wealth
order' into section 338, meaning an order under section 179B requiring
the person to appear before a court.
Item 36 - Section 338 (definition of restraining order)
Item 36 will amend the definition of 'restraining order' in section 338
to include the unexplained wealth restraining orders under section 20A.
The definition of restraining order is being amended to include
unexplained wealth restraining orders to ensure proper interaction
between this restraining order and existing provisions providing
guidance on the operation of restraining orders. Provisions that
depend on the existence of a restraining order for application, such as
examination orders under section 180, will apply to orders under
section 20A in the same manner they apply to other restraining orders.
Item 37 - Section 338
Item 37 will insert a definition into section 338 of 'State offence
that has a federal aspect', which will have the same meaning as section
3AA of the Crimes Act 1914. A State offence that has a federal aspect
is an offence that is not an ancillary offence and, had it been enacted
by the Parliament of the Commonwealth instead of by the Parliament of a
State, it would have been a valid law of the Commonwealth.
This definition is relevant to unexplained wealth orders because a
person against whom the DPP seeks an unexplained wealth order has to
satisfy the court that his or her total wealth was not derived from
certain offences, including State offences that have a federal aspect.
After the definition of 'State offence that has a federal aspect' a
Note is inserted to alert the reader that section 3AA of the Crimes Act
1914 sets out when a State offence has a federal aspect.
Item 38 - Section 338 (definition of suspect)
Item 38 will amend the definition of 'suspect' in section 338 to
include a person, in relation to an unexplained wealth order, whose
total wealth is suspected of exceeding the value of wealth that was
lawfully acquired.
This will ensure that existing provisions that apply to a 'suspect'
will also apply to a person suspected of possessing unexplained wealth.
By retaining and amending the term 'suspect' the Act will remain
consistent. It also reflects the fact that unexplained wealth orders
are similar to other types of confiscation orders.
Item 39 - Section 338
Item 39 will insert a definition of 'total wealth' into section 338,
cross referencing the definition provided in subsection 179G(2),
inserted by Item 13.
Item 40 - Section 338
Item 40 will insert a definition of 'unexplained wealth amount' into
section 338, cross referencing the definition in subsection 179E(2),
inserted by Item 13.
Item 41 - Section 338
Item 41 will insert a definition of 'unexplained wealth order' into
section 338. An unexplained wealth order will mean an order under
subsection 179E(1) that is in force.
Item 42 - Section 338
Item 42 will insert a definition of 'wealth' into section 338, cross
referencing the definition in subsection 179G(1), inserted by Item 13.
Part 2 - Related Amendments
Bankruptcy Act 1966
Item 34 - Subsection 5(1) (at the end of the definition of pecuniary
penalty order)
Item 34 will insert paragraph (c) at the end of 5(1) of the Bankruptcy
Act 1966 to include explained wealth orders in the definition of
'pecuniary penalty order'. This will ensure that any reference to
'pecuniary penalty order' in the Bankruptcy Act 1966 will pick up
unexplained wealth orders.
Crimes Act 1914
Item 35 - Subparagraph 3(2)(a)(ii)
Item 35 will amend subparagraph 3(2)(a)(ii) of the Crimes Act 1914 to
include a reference to unexplained wealth orders.
Subparagraph 3(2)(a)(ii) states that a reference to a 'fine' in the
Crimes Act is a reference to a pecuniary penalty, other than a
pecuniary penalty imposed under several pieces of legislation,
including the Proceeds of Crime Act 2002. Item 35 will replace the
words 'or a literary proceeds order' with ', a literary proceeds order
or an unexplained wealth order'. This will clarify that a 'fine' in
the Crimes Act is a pecuniary penalty, other than a pecuniary penalty
imposed by a pecuniary penalty order, literary proceeds order or
unexplained wealth order made under the Proceeds of Crime Act.
Schedule 2 - Other amendments to the Proceeds of Crime Act 2002
This Schedule will amend the Proceeds of Crime Act 2002 to enhance and
extend the Commonwealth asset confiscation regime by:
. introducing freezing orders to ensure assets are not dispersed (Part 1)
. removing the six year time limitation on orders for non-conviction-based
restraint and forfeiture of proceeds of crime (Part 2)
. providing for non-conviction-based restraint and forfeiture of
instruments of serious crime (Part 3)
. enhancing information sharing under the Act (Part 4), and
. reimbursing legal aid commission legal costs from the Confiscated Assets
Account (Part 5).
The Act provides a scheme to trace, restrain and confiscate proceeds of
crime. With its passage in 2002, the Act introduced a civil based
confiscation regime alongside the more traditional conviction based
confiscation. The ability to deprive criminals of the proceeds of their
criminal activity is an essential law enforcement tool. It deters criminal
behaviour and prevents proceeds of crime from being used to fund further
criminal activity.
In April 2006, Mr Tom Sherman AO undertook an independent review of the
Act. Report on the Independent Review of the Operation of the Proceeds of
Crime Act 2002 (the Sherman Report) was tabled in Parliament on 18 October
2006. The Report contained 18 major recommendations and 39 technical
recommendations to increase the effectiveness of the Act.
In June 2007, the Attorney-General's Department convened a senior level
working group of Commonwealth agencies to review the Sherman Report. In
addition to examining the recommendations, the working group identified
additional proposals to improve the operation of the Act based on their
experience and research since the time of the Sherman Report.
A number of the amendments in Schedule 2 respond to recommendations made in
the Sherman Report, including the amendments removing the six year time
limit on non-conviction-based asset recovery, providing for the restraint
and forfeiture of instruments of serious offences without conviction and
enhancing information sharing under the Act. Other amendments were
identified by the senior level working group convened by the Attorney-
General's Department.
Recommendations of the Sherman Report that are not dealt with in this Bill
are being considered for possible amendments in future legislation.
Freezing orders
Part 1 of Schedule 2 will introduce freezing orders into the Act to limit
the risk of criminal funds being dissipated. Freezing orders are an
interim asset restraint measure and will be strictly limited in their
application and duration.
Law enforcement agencies have identified that the time between identifying
criminal funds in an account and obtaining a restraining order can result
in criminal funds being moved. Even where restraining orders are obtained
ex parte, significant documentation and a court hearing are required, which
can provide more than enough time for funds in an account to be
transferred. South Australia and Victoria have provisions for interim
freezing of suspected criminal proceeds held in bank accounts.
Freezing orders will enable the temporary restraint of liquid assets held
in accounts with financial institutions. The application process for
freezing orders will be simpler than for restraining orders and an
expedited application process will be available in circumstances where the
time taken to obtain a formal restraining order increases the risk that
suspected proceeds or instruments of crime will be transferred to frustrate
confiscation proceedings.
The amendments contain a number of safeguards. Before making a freezing
order, a magistrate must be satisfied there are reasonable grounds to
suspect that the balance of an account is wholly or partly proceeds, or an
instrument, of an offence and that there is a risk the balance of the
account will be reduced. A freezing order will only continue in force for
three working days. The person affected by the order can apply to a
magistrate to have the order varied to meet the reasonable living expenses
of the person or their dependants, the reasonable business expenses of the
person or a specified debt incurred in good faith by the person. Offences
will apply to support the integrity of the freezing order regime.
Protection from liability is provided for institutions and individuals
acting in good faith to comply with a freezing order.
Removal of time limitations for non-conviction based asset confiscation
Part 2 of Schedule 2 will amend the Act to remove the restriction on non-
conviction-based orders that currently limits their application to offences
occurring in the six years prior to the application for an order. The six
year limitation on non-conviction-based asset confiscation was identified
as an issue that needed to be addressed in the Sherman Report. Currently
under the Act, non-conviction-based asset recovery (with the exception of
literary proceeds orders) may only confiscate the proceeds or instruments
of crimes committed in the six years prior to recovery action commencing.
This limitation precludes confiscation if relevant offences are not
detected until more than six years after the offence was committed. It may
also interfere with confiscation when extended criminal conduct is
considered to be one offence stretching over more than six years. As
criminals routinely attempt to conceal offences, and crimes such as fraud
and money laundering may occur over extended periods, the time limit can
pose significant obstacles for non-conviction-based recovery.
The removal of the six year time limitation for non-conviction-based asset
recovery will ensure that criminals are not able to benefit from their
crimes, regardless of when they occurred.
The Sherman Report recommended extending the time limitation to twelve
years, however, the report also stated that any limit would pose
difficulties. In view of these difficulties, it is considered appropriate
to remove the time limit altogether.
Non-conviction-based confiscation of instruments of serious offences
Part 3 of Schedule 2 will amend the Act to enable the restraint and
forfeiture of instruments of serious offences without conviction.
The non-conviction-based confiscation scheme is important to the overall
success of the Act. Since its introduction in 2003, it has proven to be an
effective mechanism to remove the proceeds of unlawful activity, preventing
criminals profiting from their crimes and reinvesting in further criminal
activity.
The amendments will enable the restraint and forfeiture of instruments of
serious offences without conviction, similar to the way proceeds of crime
can be confiscated without conviction. This amendment responds to a
recommendation of the Sherman Report. It also brings Commonwealth
legislation into line with legislation in South Australia, Western
Australia and Victoria that permits non-conviction-based confiscation of
property used (or intended to be used) in, or in connection with, an
offence.
Currently, the Act permits the proceeds of a wide variety of offences to be
confiscated on a civil standard of proof but instruments of indictable
offences (other than terrorism offences) may only be confiscated where a
person is convicted of the offence.
The Sherman Report recommended that instruments of indictable offences
should be subject to non-conviction-based restraining orders and forfeiture
orders under the Act. However, as a safeguard the amendments have been
limited to the confiscation of serious offences only (defined in the Act to
be offences carrying a penalty of 3 or more years imprisonment).
As a further safeguard the proposed amendments will permit a court
discretion to make or amend a civil forfeiture order to take into account
potential hardship to any person, the use ordinarily made of the property
and the gravity of the offences concerned. This is consistent with the
discretion afforded a court when considering an order to forfeit
instruments of indictable offences following conviction.
Information sharing
Part 4 of Schedule 2 will amend the Act to clarify the use and sharing of
information gathered under the Act.
The Act contains a range of information-gathering powers, including
coercive examination, document production, and search and seizure
mechanisms. The Act contains no specified limit on the use and sharing of
information obtained under the Act. However, judicial decisions have
created doubt regarding the extent to which information can be shared.
In DPP (Cth) v Hatfield [2006] NSWSC 195, the NSW Supreme Court ruled that
information obtained in an examination under Part 3-1 of the Act could only
be used for the purpose of proceedings under the Act, and could not be used
or disclosed for any other purpose. Whether the decision in Hatfield would
apply to material obtained using the other information-gathering powers
contained in the Act is unclear.
The Sherman Report discussed this limit on the use of information and
raised concerns it could prevent agencies sharing information vital to the
prevention and investigation of serious criminal incidents. The Sherman
Report highlighted that the decision in Hatfield would, for example,
prevent sharing information of a planned murder or terrorist attack. The
limit expressed in Hatfield may also require agencies to internally
'quarantine' information to avoid the argument that examination material
had tainted other investigations.
The Sherman Report recommended a clear mandate in the Act that information
relating to any serious offence can be passed to any agency having a lawful
function to investigate that offence and to the Insolvency and Trustee
Service Australia (ITSA) and Australian Tax Office to assist in their
functions under the Act.
The amendments ensure that information obtained under the regime can be
disclosed when that information will assist in the prevention,
investigation or prosecution of criminal conduct.
Legal Aid payments
Part 5 of Schedule 2 will amend the Act to simplify arrangements for
legal aid commissions to recover costs incurred by people who have
assets restrained under the Act. The simplified process will see legal
aid costs paid directly from the Confiscated Assets Account, instead of
from restrained assets.
The existing scheme, which requires legal aid commissions to recover
legal costs directly from a person's restrained assets, has proven
complex and, at times, subject to delay. The New South Wales Legal Aid
Commission has advised that it has encountered a range of problems with
having its costs reimbursed under the existing scheme.
Under the new scheme, legal aid commissions will be able to invoice the
Official Trustee for legal costs incurred by a person with restrained
assets. The Official Trustee will then pay the costs from the
Confiscated Assets Account and the Commonwealth will then recover the
amount from the person who received the legal aid, up to the value of
the restrained assets.
This amendment responds to the Sherman Report recommendation that all
claims for legal expenses which have been certified as fair, reasonable and
duly expended by legal aid commissions on proceedings relating to property
that has been restrained under the Act, should be paid directly out of the
Confiscated Assets Account.
The Commonwealth Legal Aid Priorities and Guidelines award a high priority
to legal aid in cases where a person has assets restrained under the Act
and direct legal aid commissions to disregard merits tests in certain
circumstances and to disregard assets that are subject to a restraining
order for the purposes of means tests.
When the Act was enacted, a commitment was made by the then Government to
ensure legal aid commissions did not suffer detriment by taking on matters
that may not usually pass the means and merits test. These amendments will
address the problems with existing procedures and ensure that commitment by
the then Government to legal aid commissions is met.
Part 1 - Freezing orders
Item 1 - Section 7
This item inserts a consequential amendment to section 7 of the Act, which
provides a general outline of the confiscation scheme, to omit reference to
'5' and substitute 'a number of'. Section 7 currently states that Chapter 2
sets out five processes relating to confiscation. The inclusion of
unexplained wealth orders and freezing orders increases the number of
processes relating to confiscation to more than five.
Item 2 - Before paragraph 7(a)
This item inserts a consequential amendment to section 7 of the Act to
include a new subsection 7(aa) which includes freezing orders in the
outline of the confiscation scheme, contained in Chapter 2 of the Act.
Item 2 - Before Part 2-1
This item inserts Part 2-1A in the Proceeds of Crime Act.
Part 2-1A - Freezing orders
Part 1 of Schedule 2 will insert new Part 2-1A into the Proceeds of Crime
Act. Part 2-1A will introduce freezing orders into the Act to limit the
risk of criminal funds being dissipated. Freezing orders are an interim
asset restraint measure and will be strictly limited in their application
and duration.
Law enforcement agencies have identified that the time between identifying
criminal funds in an account and obtaining a restraining order can result
in criminal funds being moved. Even where restraining orders are obtained
ex parte, significant documentation and a court hearing are required, which
can provide more than enough time for funds in an account to be
transferred. South Australia and Victoria have provisions for interim
freezing of suspected criminal proceeds held in bank accounts.
'Freezing orders' will enable the temporary restraint of liquid assets held
in accounts with financial institutions. The application process for
freezing orders will be simpler than for restraining orders and an
expedited application process will be available in circumstances where the
time taken to obtain a formal restraining order increases the risk that
suspected proceeds or instruments of crime will be transferred to frustrate
confiscation proceedings.
The amendments contain a number of safeguards. Before making a freezing
order, a Magistrate must be satisfied there are reasonable grounds to
suspect that the balance of an account is wholly or partly proceeds, or an
instrument of an offence, and that there is a risk the balance of the
account will be reduced. A freezing order will only continue in force for
three working days. The person affected by the order can apply to a
magistrate to have the order varied to meet the reasonable living expenses
of the person or their dependants, the reasonable business expenses of the
person or a specified debt incurred in good faith by the person. Offences
will apply to support the integrity of the freezing order regime.
Protection from liability is provided for institutions and individuals
acting in good faith to comply with a freezing order.
Division 1 - Making freezing orders
15A Simplified outline of this Part
Section 15A provides a simplified outline of Part 2-1A and specifies when a
freezing order can be made against a financial institution. A freezing
order can be obtained where there are grounds to suspect the account
balance reflects proceeds or an instrument of a serious offence and when a
magistrate is satisfied that, unless a freezing order is made, there is a
risk that the balance will be reduced.
15B Making freezing orders
Section 15B sets out the circumstances in which a freezing order can be
made.
A freezing order can be made when an authorised officer applies for an
order and a magistrate is satisfied there are reasonable grounds to suspect
that the balance of an account is wholly or partly proceeds, or an
instrument of an offence. The magistrate must also be satisfied there is a
risk the balance of the account will be reduced and that this reduction
would frustrate confiscation proceedings.
The requirement that a magistrate be satisfied there is a risk of the funds
being reduced, ensures freezing orders will only be made in situations
where it is necessary to ensure funds are not moved or dissipated.
Division 2 - How freezing orders are obtained
15C Affidavit supporting application made in person
Section 15C sets out the information that must be contained in an
affidavit, supporting an application for a freezing order, where that
application is made in person.
An affidavit must include sufficient information to identify the account(s)
to be frozen and identify the financial institution with which the account
is held. The affidavit must set out the grounds to suspect that the
balance of the account is, wholly or partly, proceeds or an instrument of a
serious offence.
The affidavit must also set out the grounds on which a person could be
satisfied there is a risk that the balance of the account will be reduced,
so that a person is not deprived of proceeds or an instrument of an
offence, if a freezing order is not made.
15D Applying for freezing orders by telephone or other electronic means
Section 15D outlines the circumstances in which an authorised officer may
apply for a freezing order by telephone, fax or other electronic means.
An authorised officer may apply for a freezing order by electronic means in
an urgent case or, if the time involved in making an application in person
would frustrate the effectiveness of the freezing order. For example, a
freezing order may be granted where the authorising officer is concerned
that the person who owns the assets targeted, is aware of an investigation.
An electronic application must include all the information required in an
application for an order made in person.
This item provides that where an application is made by telephone or other
electronic means, a magistrate may require communication by voice to the
extent practical and may require any other further information. This
additional safeguard ensures that a magistrate can satisfy themselves of
the need for the order to be made by telephone or electronic means, at the
time the application is made.
15E Making order by telephone etc
Section 15E outlines the circumstances in which a magistrate may make a
freezing order by telephone or other electronic means, and details the
procedures that must be followed when a magistrate does so.
A magistrate will be permitted to make the same form of freezing order
available under proposed section 15B by telephone or other electronic means
if they are satisfied an order should be issued urgently and the time taken
to apply in person would frustrate the order.
If a magistrate makes an order by telephone or other electronic means, the
magistrate must inform the applicant of the terms of the order and the day
and time when the order was made.
The applicant must complete a form of freezing order in terms corresponding
to those given by the magistrate and include on the form the name of the
magistrate who made the order and the day and time when the order was made.
The applicant must then give the magistrate the completed form of freezing
order, and lodge a written copy of any affidavit supporting the application
not previously lodged, within the relevant timeframes.
A freezing order will be taken never to have had effect if the applicant
does not provide an affidavit supporting the application (if one was not
provided before the application was made) to the magistrate by the end of
the second day after the order was made.
15F Unsigned freezing orders in court proceedings
Section 15F provides that, if it is material in any proceedings that a
court be satisfied that a freezing order applied for under section 15D was
duly made, and the signed freezing order is not produced, the court must
assume the order was not duly made (unless the contrary is proved).
15G Offence for making false statements in applications
This item inserts an offence to support the integrity of the freezing order
regime. A person will commit an offence if they make a statement that is
false or misleading, or omit any information without which the statement is
misleading, if the statement is made in, or in connection with, an
application for a freezing order. Further offences relating to freezing
orders are set out in section 15H.
This offence is necessary to deter people from making false statements, or
providing inaccurate information in an application, or in connection with
an application for a freezing order. An offence under this section is
punishable by 2 years imprisonment and/or a fine of 120 penalty units.
15H Offences relating to orders made under section 15E
Section 15H inserts four offences relating to freezing orders made under
section 15E by telephone, fax or other electronic means. These offences
match existing offences in the Proceeds of Crime Act 2002 designed to
support the operation of search warrants.
A person will commit an offence if they state the name of a magistrate in a
form of freezing order and the name is not the name of the magistrate who
made the order.
A person will commit an offence if they state a matter in a freezing order
made under 15E and the matter departs in a material way from the order made
by the magistrate.
A person will also commit an offence if they serve a freezing order that
has not been approved by a magistrate or that departs materially from the
terms authorised by the magistrate.
A person will commit an offence if, after serving a freezing order on a
financial institution, they give the magistrate a form of freezing order
that is not in the same form as the document provided to the financial
institution.
These offences provide safeguards to ensure that penalties are attached to
a breach of the conditions in relation to the application for, and service
of, freezing orders. It is necessary to ensure that when an application for
a freezing order is made by telephone, fax or other electronic means, all
necessary processes are adhered to.
Offences under this section are punishable by 2 years imprisonment, and/or
a fine of 120 penalty units.
Division 3- Giving effect to orders
15J Service of freezing order on financial institution and account-holder
Section 15J outlines the service requirements applicable to freezing
orders. If a magistrate makes a freezing order, the applicant must give a
copy of the order to the financial institution, and to each person whose
account(s) will be affected by the order.
A copy of a freezing order must be given to a financial institution before
the end of the first working day after the order was made. A freezing
order will not come into force if this condition is not satisfied. This
requirement ensures that financial institutions are made aware of the
existence of a freezing order as soon as practicable after the order is
made.
15K Freezing order does not prevent withdrawal to enable financial
institution to meet its liabilities
Section 15K provides that the existence of a freezing order does not
prevent a financial institution from processing withdrawals on the account
to meet a liability imposed by or under a written law of the Commonwealth,
a State or a Territory.
This will ensure that transactions mandated by law are not affected by
freezing orders. These transactions could include, but are not limited to,
payments mandated by family law or other court orders. The section is not
intended to permit a financial institution to process withdrawals for the
purpose of meeting the expenses of a person affected by the order.
15L Offence for contravening freezing orders
This item inserts an offence to support the enforcement of freezing orders.
A financial institution will commit an offence if it allows a withdrawal
from an account, which is subject to a freezing order, where the withdrawal
contravenes the terms of the order.
This item is necessary to ensure that financial institutions comply with
the terms of a freezing order.
This offence is punishable by 5 years imprisonment, or a fine of 300
penalty units.
15M Protection from suits etc for those complying with orders
This item provides protection from legal proceedings for a financial
institution, or an agent or officer of a financial institution, for any
action taken in complying with the order or in the mistaken belief that
action was required under a freezing order.
This will ensure that institutions and individuals acting in good faith to
comply with a freezing order are not exposed to liability for those
actions.
Division 4 - Duration of freezing orders
15N When a freezing order is in force
Section 15N outlines the circumstances in which a freezing order is in
force.
For a freezing order to have effect, a copy of the order must be given to
the financial institution before the end of the first working day after the
order was made. If a copy is not provided to a financial institution
within this timeframe, the freezing order does not come into effect.
A freezing order will remain in force for the period specified in the order
unless a court makes a decision on a restraining order covering the account
before the end of that period. A freezing order is limited to a maximum
duration of three working days. A freezing order can be extended if,
before the end of the three day period, an application for a restraining
order to cover the amount has been made and an order is made under section
15P extending the freezing order.
15P Order extending a freezing order
Section 15P outlines the circumstances in which a magistrate may make an
order extending a freezing order beyond the time specified in the original
order.
A magistrate may make an order extending a freezing order if an application
for a restraining order, relating to the accounts specified in the freezing
order, has been made but not yet determined by a court. The extension may
be for a specified number of working days, or the period ending when the
court decides the application for the restraining order.
The extension of a freezing order will not have effect unless a copy of the
order for the extension is given to the financial institution before the
time the original freezing order would have ceased.
Allowing for the extension of a freezing order in these limited
circumstances recognises the intended operation of a freezing order as an
interim measure, specifically designed to address risks that proceeds of
crime will be dissipated before a restraining order can be obtained.
15Q Magistrate may vary freezing order to allow for withdrawal to meet
reasonable expenses
Section 15Q allows a magistrate to vary a freezing order, on application by
a person in whose name the account is held, if the magistrate is satisfied
certain criteria have been met.
A freezing order may be varied to meet the reasonable living expenses of
the person or their dependants, the reasonable business expenses of the
person or a specified debt incurred in good faith by the person.
A freezing order may only be varied by a magistrate if: the person in whose
name the account is held applies for a variation; the applicant has
notified the DPP of the application and the grounds for making it; the
magistrate is satisfied that the expense or debt is not related to legal
costs and the magistrate is satisfied the person cannot meet the expense or
debt out of property that is not covered by a freezing or restraining
order.
A variation will not take effect until written notice of the variation is
provided to the financial institution.
Allowing for a freezing order to be varied recognises that in certain
situations it will be necessary to allow for withdrawals from a frozen
account. For example, it would be inequitable that employees of a business
which had its accounts frozen would not be paid if a regular pay day fell
within the period the account was frozen. Similarly, it may be necessary to
allow a withdrawal to ensure that a person can provide food and other
necessities for his or her family.
Item 4 - Paragraph 337A(1)(a)
This item inserts a reference to a 'freezing order' into section 337A(1)(a)
of the Act, which deals with the meaning of the term foreign indictable
offence.
This is a consequential amendment which arises because new section 15C
refers to a foreign indictable offence.
Item 5 - Paragraph 337A(2)(a)
This item insert a reference to a 'freezing order' into section 337A(2)(a)
of the Act, which deals with the meaning of the term foreign indictable
offence.
This is a consequential amendment which arises because new section 15C
refers to a foreign indictable offence.
Item 6 - Section 338
This item inserts a definition of freezing order into section 338 of the
Proceeds of Crime Act 2002.
This is a consequential amendment that arises out of the introduction of
Part 2-1A into the Proceeds of Crime Act 2002.
Item 7 - Section 338
This item inserts a definition of 'working day' into section 338 of the
Proceeds of Crime Act 2002.
This provides certainty as to the aspects of the operation of a freezing
order that rely on working days. A working day does not include a Saturday
or Sunday or a public or bank holiday in the place concerned.
Item 8 - Application
This item sets out the application of new Part 2-1A of the Proceeds of
Crime Act 2002. Part 2-1A will apply to an account if there are reasonable
grounds to suspect the balance of the account is proceeds of an offence or
wholly or partly an instrument of an a serious offence, regardless of
whether the conduct constituting the offence occurs before, on or after the
commencement of Part 2-1A.
Item 9 - Subsection 21E(4) (paragraph (a) of the definition of confiscation
proceedings) in the Crimes Act 1914
This item is a consequential amendment to Subsection 21E(4) of the Crimes
Act 1914 to include a reference to freezing orders in the definition of
confiscation proceedings under this section.
Item 10 - Subsection 4(1) (before paragraph (a) of the definition of
proceeds of crime order) in the Family Law Act 1975
This item is a consequential amendment to Subsection 4(1) of the Family Law
Act 1975. Subsection 4(1) contains a definition of proceeds of crime order
that currently includes restraining and forfeiture orders. It is necessary
to include a reference to new freezing orders to ensure that the existence
of a freezing order can be made known to a Court when necessary in family
law proceedings.
Part 2 - Removal of six year time limit on non-conviction-based
confiscation
Part 2 of Schedule 2 will amend the Proceeds of Crime Act to remove the
restriction on non-conviction-based orders that currently limits their
application to offences occurring in the six years prior to the application
for an order. The six year limitation on non-conviction-based asset
confiscation was identified as an issue that needed to be addressed in the
Sherman Report. Currently under the Act, non-conviction-based asset
recovery (with the exception of literary proceeds orders) may only
confiscate the proceeds or instruments of crimes committed in the six years
prior to recovery action commencing.
This limitation precludes confiscation if relevant offences are not
detected until more than six years after the offence was committed. It may
also interfere with confiscation when extended criminal conduct is
considered to be one offence stretching over more than six years. As
criminals routinely attempt to conceal offences, and crimes such as fraud
and money laundering may occur over extended periods, the time limit can
pose significant obstacles for non-conviction-based recovery.
The removal of the six year time limitation for non-conviction based asset
recovery will ensure that criminals are not able to benefit from their
crimes, regardless of when they occurred. It also ensures that those who
are able to successfully hide their criminal conduct for a sufficiently
long period of time are not rewarded by being able retain the proceeds.
The Sherman Report recommended extending the time limitation to twelve
years, however, the report also stated that any limit would pose
difficulties. In view of these difficulties, it is considered appropriate
to remove the time limit altogether.
The Proceeds of Crime Act contains other references to six-year time limits
that will be retained because they do not constrain the commencement of
confiscation proceedings but are relevant, for example, to calculating
penalty amounts or providing certainty to family law orders.
Item 11 - Paragraph 18(1)(d)
This item repeals paragraph 18(1)(d) which requires that the offence was
committed within the six years preceding the application, and inserts a
paragraph which removes this time limit for a restraining order made under
section 18.
The effect of amended 18(1)(d) will be to ensure that restraining orders
under section 18 are available to restrain property of a person reasonably
suspected of committing a serious offence, or property of a person who is
suspected of possessing proceeds or instruments of a serious offence,
regardless of when that offence occurred.
Item 12 - Paragraph 18(3)(a)
This item repeals paragraph 18(3)(a) which requires that an affidavit of an
authorised officer state the officer's suspicion that the offence was
committed within six years preceding the application, and inserts a new
paragraph which removes this time limit.
The effect of amended paragraph 18(3)(a) will be to permit an authorised
officer to complete an affidavit supporting an application for a
restraining order under section 18 with reference to all offences relevant
to the restraining order, regardless of when the offence occurred.
Item 13 - At the end of subparagraph 19(1)(d)(ii)
The item inserts the word 'and' at the end of subparagraph 19(1)(d)(ii).
This is a consequential amendment that ensures proper interaction between
subparagraph 19(1)(d)(ii) (as it is amended by item 212), and paragraph
19(1)(e).
Item 14 - Paragraph 19(1)(d)
This item omits the sentence at the end of paragraph 19(1)(d) that limits
the operation of restraining orders under section 19 to offences suspected
to have been committed within the six years preceding an application for an
order under section 19.
The effect of amended paragraph 19(1)(d) will ensure that restraining
orders under section 19 can be obtained where there are reasonable grounds
to suspect property is the proceeds or an instrument of a relevant offence,
regardless of when that offence occurred.
Item 15 - Application of amendments of sections 18 and 19
This item provides guidance on the application of the amendments to
sections 18 and 19 that remove the six-year time limit.
The amendments to sections 18 and 19 of the Act will apply to any
applications for a restraining order that are made on or after the
commencement of the amendments, regardless of whether the conduct
constituting an offence relevant to the order occurred before or after
commencement of these sections.
Item 16 - Paragraph 47(1)(c)
This item repeals paragraph 47(1)(c) and replaces it with a paragraph that
does not require a court to be satisfied the conduct, or suspected conduct
that formed the basis of the order, occurred in the six years preceding an
application for a forfeiture order under section 47.
The effect of the amended paragraph 47(1)(c) will be to ensure that
forfeiture orders are available under section 47 regardless of when the
suspected offence occurred, if a court is satisfied an order should be
made.
Item 17 - Paragraph 49(1)(d)
This item repeals paragraph 49(1)(d) which limits forfeiture orders under
section 49 to offences, that are not terrorism offences, which occurred in
the six years preceding application for an order under section 49.
Repealing this paragraph ensures that forfeiture orders under section 49
are available regardless of when a relevant offence occurred, if a court
considers an order should be made.
Item 18 - Application of amendments of sections 47 and 49
This item provides guidance on the application of the amendments to section
47 and 49 which remove the six-year time limit.
The amendments to sections 47 and 49 will apply to any applications for a
forfeiture order that are made on or after the commencement of the
amendments, regardless of whether the conduct constituting an offence
relevant to the order occurred before or after commencement of these
sections.
Item 19 - Subsection 84(1)
Item 19 will omit '(1)' from section 84 of the Proceeds of Crime Act 2002.
This is a consequential amendment that arises because Item 20 repeals
subsection 84(2), leaving only one provision under section 84 and removing
the need to divide section 84 into subsections.
Item 20 - Subsection 84(2)
This item repeals subsection 84(2) which directs a court to treat any
conduct that is relevant to making an order under section 84, confirming a
forfeiture order, as having occurred within the period of six years
referred to in paragraph 47(1)(c).
This is a consequential amendment that arises because Item 16 removes the
reference to the period of six years in paragraph 47(1)(c).
Item 21 - Subsection 85(1)
This item omits '84(1)(a)' from subsection 85(1) and substitutes '84(a)'.
This is a consequential amendment that arises because Item 19 removes '(1)'
from section 84.
Item 22 - Subsection 85(2)
This item omits '84(1)(b)' from subsection 85(2) and substitutes '84(b)'.
This is a consequential amendment that arises because item Item 19 removes
'(1)' from section 84
Item 23 - Subsection 110(1)
This item omits '(1)' in section 110.
This is a consequential amendment that arises because Item 24 repeals
subsection 110(2), leaving only one provision in section 110 and removing
the need to divide section 84 into subsections.
Item 24 - Subsection 110(2)
This item repeals subsection 110(2). Subsection 110(2) directs a court to
treat any conduct that is relevant to making an order under section 110,
confirming a forfeiture order, as having occurred within the period of six
years referred to in paragraph 47(1)(c).
This is a consequential amendment that arises because Item 16 removes the
reference to the period of six years in paragraph 47(1)(c).
Item 25 - Subsection 111(1)
This item omits '110(1)(a)' from subsection 111(1) and substitutes
'110(a)'.
This is a consequential amendment that arises because Item 24 repeals
subsection 110(2), leaving only one provision in section 110 and removing
the need to divide section 84 into subsections.
Item 26 - Subsection 111(2)
This item omits '110(1)(b)' from subsection 111(2) and substitutes
'110(b)'.
This a consequential amendment that arises because Item 24 repeals
subsection 110(2), leaving only one provision in section 110 and removing
the need to divide section 84 into subsections.
Item 27 - Subparagraph 116(1)(b)(ii)
This item omits the words 'subject to subsection (2)' from subparagraph
116(1)(b)(ii).
This is a consequential amendment that arises because Item 28 repeals
subsection 116(2).
Item 28 - Subsection 116(2)
This item repeals subsection 116(2). The effect of subsection 116(2) is to
limit a court's ability to consider offences, when making a pecuniary
penalty order, to considering offences that occurred within the six years
preceding application for a pecuniary penalty order.
This is a consequential amendment that ensures that pecuniary penalty
orders are available in relation to offences regardless of when the offence
occurred, if a court considers an order should be made.
Item 29 - Application of amendments of section 116
This item provides guidance on the application of the amendments of section
116.
These amendments will apply to applications for a pecuniary penalty order
that are made on or after commencement, regardless of whether the conduct
constituting an offence relevant to the order occurred before or after the
commencement of these sections.
Item 30 - Section 149
This item repeals section 149, and replaces it with new section 149. This
is a consequential amendment that arises because Item 28 repeals subsection
116(2). Existing section 149 limits a court's ability to confirm a
pecuniary penalty order relating to non-terrorism offences, to offences
occurring within the six-year time period referred to in subsection 116(2).
New section 149 will permit a court to make an order confirming a pecuniary
penalty order without reference to offences within a six-year time period,
if a court considers a confirmation order should be made.
Item 31 - Application of new section 149
This item provides guidance on the application of the amendments of section
149.
The amendments to section 149 will apply to pecuniary penalty orders
applied for on or after the commencement of proposed section 149, whether
the conduct constituting an offence relevant to the order occurred before,
on or after the commencement of new section 149.
Item 32 - Subparagraphs 202(5)(a)(ii) and (iii)
This item repeals subparagraph 202(5)(a)(ii) which refers to terrorism
offences, and also repeals subparagraph 202(5)(s)(iii) which refers to a
serious offence committed within 6 years. The item substitutes a new,
single subparagraph 202(5)(a)(ii).
The distinction between terrorism offences, and serious offences that
occurred within the last six years, is no longer relevant because of the
application of Parts 2 and 3 which remove the six year limitation for
serious offences other than terrorism offences and allow for the
confiscation of instruments of serious offences.
Item 33 - Subparagraphs 202(5)(c)(ii) and (iii)
This item repeals subparagraph 202(5)(c)(ii) which contains reference to a
terrorism offence and, also repeals 202(5)(c)(iii) which refers to a
serious offence committed within 6 years. The item substitutes a new,
single, subparagraph 202(5)(c)(ii).
The distinction between terrorism offences, and other serious offences
limited to those that occurred within the last six years, is no longer
relevant because of the application of Parts 2 and 3 which remove the six
year limitation for serious offences other than terrorism offences and
allow for the confiscation of instruments of serious offences.
The new subparagraph 202(5)(c)(ii) will define 'property tracking document'
to include a document relevant to identifying, locating or quantifying
proceeds of a serious offence, or an instrument of any other serious
offence, that a person is reasonably suspected of having committed.
Item 34 - Subsection 202(6)
This item omits the words 'or (iii)' from subsection 202(6), which is a
reference to subparagraph 202(5)(c)(iii).
This is a consequential amendment that arises because Item 33 repeals
subparagraph 202(5)(c)(iii).
Item 35 - Application of amendments to section 202
This item provides guidance on the application of the amendments of section
202 of the Proceeds of Crime Act 2002.
These amendments will apply to production orders applied for on or after
the commencement of the amendments, whether the conduct constituting an
offence relevant to the production order occurred before, on or after
commencement.
Item 36 - Section 338 (paragraph (g) of the definition of serious offence)
Item 36 will insert the words 'or former section 5, 7, 7A or 86 of the
Crimes Act 1914', after the words 'Criminal Code' in paragraph (g) of the
definition of 'serious offence' in section 338.
This is a consequential amendment arising out of the removal of the six-
year time limits that constrain the commencement of confiscation action.
Former sections 5, 6, 7, 7A and 86 of the Crimes Act 1914 provided
extensions of criminal responsibility equivalent to sections 11.1, 11.2,
11.4 and 11.5 of the Criminal Code, which are included in the definition of
'serious offence'. The removal of the 6 year time limit, makes it possible
to commence confiscation action in relation to the former sections of the
Crimes Act. It is therefore appropriate to include these sections in the
definition of 'serious offence'.
Part 3 - Non-conviction-based confiscation of instruments of serious
offences
Part 3 of Schedule 2 will amend the Proceeds of Crime Act to enable the
restraint and forfeiture of instruments of serious offences without
conviction.
The non-conviction-based confiscation scheme is important to the overall
success of the Act. Since its introduction in 2003, it has proven to be an
effective mechanism to remove the proceeds of unlawful activity, preventing
criminals profiting from their crimes and reinvesting in further criminal
activity.
The amendments will enable the restraint and forfeiture of instruments of
serious offences without conviction, similar to the way proceeds of crime
can be confiscated without conviction. This amendment responds to a
recommendation of the Sherman Report. It also brings Commonwealth
legislation into line with legislation in South Australia, Western
Australia and Victoria that permits non-conviction-based confiscation of
property used (or intended to be used) in, or in connection with, an
offence.
Currently, the Act permits the proceeds of a wide variety of offences to be
confiscated but instruments of indictable offences (other than terrorism
offences) may only be confiscated where a person is convicted of the
offence. Only the instruments of terrorism offences can be confiscated
under non-conviction-based confiscation provisions.
Part 3 amends various provisions relevant to non-conviction-based
confiscation action, to ensure instruments of serious offences can be
confiscated. It replaces the references to instruments of terrorism
offences in provisions that provide for non-conviction-based confiscation
with references to instruments of serious offences.
A serious offence is defined under the Act as an indictable offence
punishable by at least 3 years imprisonment and involving certain other
elements such as unlawful conduct relating to narcotic substances or
serious drug offences, money laundering and certain people smuggling
offences.
The effect of these changes will mean that the DPP could apply to a court
with proceeds jurisdiction to confiscate the premises of a person used as a
laboratory to make narcotics, because the premises would be treated as an
instrument of a serious offence.
These changes will ensure that the assets persons use in the commission of
serious crimes can be confiscated.
The Sherman Report recommended that instruments of indictable offences
should be subject to non-conviction-based restraining orders and forfeiture
orders under the Act. However, as a safeguard the amendments have been
limited to the confiscation of serious offences only (defined in the Act to
be offences carrying a penalty of 3 or more years imprisonment).
As a further safeguard the proposed amendments will permit a court
discretion to make or amend a civil forfeiture order to take into account
potential hardship to any person, the use ordinarily made of the property
and the gravity of the offences concerned. This is consistent with the
discretion afforded a court when considering an order to forfeit
instruments of indictable offences following conviction.
Items 37 - 41 - Subparagraphs 18(2)(d)(ii), 18(3)(b)(iii), 19(1)(d)(ii),
19(1)(e)(ii) and paragraph 19(2)(b)
Items 37 - 41 will omit the references to 'terrorism' offences from
subparagraphs 18(2)(d)(ii), 18(3)(b)(iii), 19(1)(d)(ii), 19(1)(e)(ii) and
paragraph 19(2)(b) and substitute references to 'serious' offences.
Item 42 - Application of amendments to sections 18 and 19
Item 42 provides guidance on the application of amendments to sections 18
and 19 of the Act to permit confiscation of instruments of serious
offences.
The amendments will apply to applications for a restraining order that are
made on or after the commencement of these amendments, regardless of
whether the conduct constituting an offence relevant to the restraining
order occurred before, on or after commencement.
Items 43 - 47 - Subparagraphs 29(2)(c)(ii), 29(2)(d)(ii) and paragraph
45(6)(ca)
Items 43 - 47 will omit the references to 'terrorism' offences from
subparagraphs 29(2)(c)(ii) and 29(2)(d)(ii) and paragraph 45(6)(ca) and
substitute references to 'serious' offences.
Item 48 - Application of amendments of sections 29 and 45
Item 48 provides guidance on the application of amendments to sections 29
and 45 to permit confiscation of the instruments of serious offences.
These amendments apply to restraining orders made as a result of an
application made on or after commencement of the amendments to sections 29
and 45, regardless of whether the conduct constituting an offence relevant
to an order occurred before, on or after commencement.
Item 49 - At the end of section 47
Item 49 inserts a subsection (4) to section 47.
Subsection 47(4) will permit a court to refuse to make a forfeiture order
under section 47 in relation to property that is an instrument of a serious
offence that is not a terrorism offence, if the court is satisfied it is
not in the public interest to make the order.
This will retain the mandatory confiscation of instruments of terrorism
offences while providing courts with discretion not to make orders relating
to other serious offences, if the order is not in the public interest.
Item 50 - Application of new subsection 47(4)
Item 50 provides guidance on the application of subsection 47(4).
Subsection 47(4) applies to orders that are made on or after the
commencement of subsection 47(4), regardless of whether the conduct
constituting an offence relevant to an order under section 47 occurred
before, on or after commencement of subsection 47(4).
Item 51 - Subparagraph 49(1)(c)(iv)
Item 51 omits the reference to 'terrorism' offences from subparagraph
49(1)(c)(iv) and substitutes a reference to 'serious' offences.
Item 52 - Application of amendment of subparagraph 49(1)(c)(iv)
Item 52 provides guidance on the application of the amendment to section 49
of the Act.
The amendment to section 49 applies to applications for a forfeiture order
that are made on or after the commencement of the amendment to section 49,
regardless of whether the conduct constituting an offence relevant to an
order under section 49 occurred before, on or after commencement of that
amendment.
Item 53 - At the end of section 49
Item 53 inserts a subsection (4) to section 49.
Subsection 49(4) will permit a court to refuse to make a forfeiture order
under section 49 in relation to property that is an instrument of a serious
offence, that is not a terrorism offence, if the court is satisfied it is
not in the public interest to make the order.
This will retain the mandatory confiscation of instruments of terrorism
offences while providing courts with discretion not to make orders relating
to other serious offences, if the order is not in the public interest.
Item 54 - Application of new subsection 49(4)
Item 54 provides guidance on the application of the amendment to section 49
of the Act.
Subsection 49(4) applies to orders that are made on or after the
commencement of subsection 49(4), regardless of whether the conduct
constituting an offence relevant to an order under section 49 occurred
before, on or after commencement of subsection 49(4).
Items 55 - 59 - Subparagraphs 73(1)(c)(ii), 73(1)(d)(iii), 85(2)(a)(ii),
85(2)(b)(ii)
Items 55 - 59 omit the references to 'terrorism' offences from
subparagraphs 73(1)(c)(ii), 73(1)(d)(iii), 85(2)(a)(ii) and 85(2)(b)(ii)
and substitute references to 'serious' offences.
Item 60 - Application of amendments of sections 73 ad 85
Item 60 provides guidance on the application of amendments to sections 73
and 85.
The amendments will apply to forfeiture orders applied for on or after the
commencement of the amendments, regardless of whether the conduct
constituting an offence relevant to an order occurred before, on or after
commencement.
Item 61 - 62 - Subparagraphs 111(2)(a)(ii) and 111(2)(b)(ii)
Items 61 - 62 omit the references to 'terrorism' offences from
subparagraphs 111(2)(a)(ii) and 111(2)(b)(ii) and substitute references to
'serious' offences.
Item 63 - Application of amendments of section 111
Item 63 provides guidance on the application of the amendments to section
111 of the Act.
These amendments will apply in relation to the quashing, on or after the
commencement of the amendments, of a conviction of an offence, whether the
conviction occurred before, on or after commencement.
Part 4 - Disclosure of information
Part 4 of Schedule 2 will amend the Proceeds of Crime Act to clarify the
use and sharing of information gathered under the Act.
The Act contains a range of information-gathering powers, including
coercive examination, document production, and search and seizure
mechanisms. The Act contains no specified limit on the use and sharing of
information obtained under the Act. However, judicial decisions have
created doubt regarding the extent to which information can be shared.
In DPP (Cth) v Hatfield [2006] NSWSC 195, the NSW Supreme Court ruled that
information obtained in an examination under Part 3-1 of the Act could only
be used for the purpose of proceedings under the Act, and could not be used
or disclosed for any other purpose. Whether the decision in Hatfield would
apply to material obtained using the other information-gathering powers
contained in the Act is unclear.
The Sherman Report discussed this limit on the use of information and
raised concerns it could prevent agencies sharing information vital to the
prevention and investigation of serious criminal incidents. The Sherman
Report highlighted that the decision in Hatfield would, for example,
prevent sharing information of a planned murder or terrorist attack. The
limit expressed in Hatfield may also require agencies to internally
'quarantine' information to avoid the argument that examination material
had tainted other investigations.
The Sherman Report recommended a clear mandate in the Act that information
relating to any serious offence can be passed to any agency having a lawful
function to investigate that offence and to the Insolvency and Trustee
Service Australia (ITSA) and Australian Taxation Office (ATO) to assist in
their functions under the Act.
The amendments ensure that information obtained under the regime can be
disclosed when that information will assist in the prevention,
investigation or prosecution of criminal conduct.
It was never the intention of the Act that information obtained in an
examination could only be used for the purposes of confiscation proceedings
under the Act and could not be shared for any other reason. It is
desirable that, if during the course of an examination hearing, information
about planned serious criminal activity is uncovered, such information is
able to be passed on to relevant law enforcement agencies.
Item 64 - Section 8
Item 64 amends section 8 by including the existing information in section 8
in a new subsection 8(1). This is necessary because Item 65 will insert
subsection 8(2).
Item 65 - At the end of section 8
Item 65 inserts subsection 8(2) after subsection 8(1). Subsection 8(2)
indicates that Chapter 3, which sets out ways to obtain information, also
authorises certain authorities to disclose information obtained under
Chapter 3 for certain purposes.
Item 66 - At the end of subsection 223(4)
Item 66 inserts paragraph (e), (f) and (g) after subsection 223(4).
Section 223 contains offences for disclosing the existence or operation of
a monitoring order. Subsection 223(4) contains a list of persons to whom
the existence or the operation of a monitoring order may be disclosed (for
certain purposes).
Paragraphs 223(4)(e)-(f) add three further persons to who such information
may be disclosed. They reflect the people with whom information may be
shared under Item 67. These people are a person who is or forms part of an
authority with functions under the Act, a person who is or forms part of an
authority of the Commonwealth, or of a State, Territory or foreign country
and a person in the Australian Taxation Office.
Item 67 - At the end of Chapter 3
Item 67 inserts Part 3-6 at the end of Chapter 3 of the Act.
Part 3-6 consists of section 266A, which allows authorities to disclose
certain information obtained under certain circumstances to the authorities
and for the purposes described in the table in section 266A.
Subsection 266A(1) sets out the types of information that can be disclosed
under section 266A. Information obtained as a direct result of paragraph
39(1)(d), Parts 3-1, 3-2, 3-3, 3-4, or 3-5, Division 2 of Part 4-1 or as a
result of a disclosure, or a series of disclosures, under section 266A may
be disclosed.
Part 3-2 of the Act relates to production orders. The AFP may obtain a
person's bank statements under a production order that reveal significant
amounts of income. If the AFP had reasonable grounds to suspect that the
person had not declared all of their income in their Income Tax Returns, it
is highly desirable that the AFP be able to pass the information obtained
under the production order to the Australian Taxation Office for the
purpose of protecting public revenue.
Similarly, if the AFP executed a search warrant under part 3-5 of the Act
and discovered evidence of State offences, the AFP should be able to pass
this information to their State Police counterparts for investigation.
The information outlined above may be disclosed to an authority with one or
more functions under the Act, whether those functions involve
investigation, conducting confiscation action, dealing with property or any
other function under the Act. Information may only be disclosed to such an
authority when the person disclosing the information believes, on
reasonable grounds, that the disclosure would facilitate the authority's
performance of its functions under the Act.
Information may also be disclosed to an authority of the Commonwealth, a
State, Territory or foreign country that has a function investigating or
prosecuting crimes against a law of the Commonwealth, State, Territory or
foreign country. Information may only be disclosed when the person
disclosing the information believes, on reasonable grounds, that the
disclosure would assist in the prevention, investigation or prosecution of
a crime against the law of the relevant jurisdiction.
To avoid doubt, this section does not alter existing procedures applicable
to disclosure of information to foreign countries but provides a mandate to
provide information obtained under the Act in accordance with those
procedures.
Information may be disclosed to the Australian Taxation Office if the
person disclosing the information believes, on reasonable grounds, that the
disclosure would assist the Australian Taxation Office discharge its
function of protecting public revenue.
Section 266A also provides that any applicable existing immunity in
relation to the information continues to apply to any information disclosed
in accordance with this section. For example, a document, or information
from the document that is produced or made available by a person, is not
admissible in evidence in criminal proceedings against the person, except
in proceedings under, or arising out of, section 137.1 or 137.2 of the
Criminal Code (false or misleading information or documents) in relation to
producing the document or making it available.
Part 5 - Legal aid costs
Part 5 of Schedule 2 will amend the Proceeds of Crime Act to simplify
arrangements for legal aid commissions to recover costs incurred by
people who have assets restrained under the Act. The simplified
process will see legal aid costs paid directly from the Confiscated
Assets Account, instead of from restrained assets.
The existing scheme, which requires legal aid commissions to recover
legal costs directly from a person's restrained assets, has proven
complex and at times, subject to delay. The New South Wales Legal Aid
Commission has advised that it has encountered a range of problems with
having its costs reimbursed under the existing scheme.
Under the new scheme, legal aid commissions will be able to invoice the
Official Trustee for legal costs incurred by a person with restrained
assets. The Official Trustee will then pay the costs from the
Confiscated Assets Account and the Commonwealth will then recover the
amount from the person who received the legal aid, up to the value of
the restrained assets.
This amendment responds to the Sherman Report recommendation that all
claims for legal expenses which have been certified as fair, reasonable and
duly expended by legal aid commissions on proceedings relating to property
that has been restrained under the Act, should be paid directly out of the
Consolidated Assets Account.
The Commonwealth Legal Aid Priorities and Guidelines award a high priority
to legal aid in cases where a person has assets restrained under the Act
and direct legal aid commissions to disregard merits tests in certain
circumstances and to disregard assets that are subject to a restraining
order for the purposes of means tests.
When the Proceeds of Crime Act 2002 was enacted, a commitment was made by
the then Government to ensure legal aid commissions did not suffer
detriment by taking on matters that may not usually pass the means and
merits test. These amendments will address the problems with existing
procedures and ensure that commitment by the then Government to legal aid
commissions is met.
Item 68 - Section 292
Item 68 repeals section 292. Section 292 obliged the Official Trustee to
pay legal aid commissions' costs from assets covered by a restraining
order. Under the new arrangements legal aid commissions' costs will be
paid from the Confiscated Assets Account.
Item 69 - Subsections 293(1),(2) and (3)
Item 69 repeals subsections 293(1), 293(2) and 293(3) and substitutes new
subsections 293(1), 293(2) and 293(3).
Existing subsections 293(1) and 293(2) provided guidance on the procedure
for paying legal aid costs when those costs exceeded the value of assets
subject to a restraining order or when it took a considerable time to
dispose of the assets. This procedure will not be needed under the new
arrangements.
The new arrangements for paying a legal aid commission's costs apply where
a legal aid commission incurs costs representing someone whose assets are
or were subject to a restraining order at the time of representation and
where the person was also a suspect (defined under section 338 of the Act)
at the time of representation.
The legal aid commission must give a bill for the costs to the Official
Trustee and the Official Trustee must be satisfied the bill is true and
correct for payment. Once these conditions are satisfied, the Official
Trustee must pay the legal costs to the legal aid commission out of the
Confiscated Assets Account, subject to subsection 293(2A).
Subsection 293(2A) provides that, if the Official Trustee is satisfied that
the balance of the Confiscated Assets Account is insufficient to pay the
legal costs, and there is a restraining order in place, the Official
Trustee must, to the extent possible, pay the legal costs out of the
property covered by the order.
If the Official Trustee does pay an amount to a legal aid commission under
section 293 and property of the person is covered by a restraining order,
the person must pay to the Commonwealth an amount equal to the lesser of
the amount paid to the legal aid commission or the value of the person's
property covered by the restraining order (subsection 293(3)).
This means that, if a legal aid commission incurs costs of $5,000.00 in
representing a person whose property was covered by a restraining order and
only $2,000.00 of the person's property is covered by the restraining
order, the person need only pay $2,000.00 to the Commonwealth, not the full
$5,000.00.
Item 70 - Division 1 of Part 4-4
Item 70 repeals Division 1 of Part 4-4 of the Act. This Division is no
longer necessary because the system of charges to secure amounts payable to
legal aid commissions is not needed under the new costs payment scheme.
Item 71 - Application of amendments of Chapter 4
Item 71 states that the changes in relation to costs made by Part 5 of the
Bill apply to costs that were incurred by legal aid commissions before, on
or after the commencement of the amendments and, if they were incurred
before commencement, had not been paid to the commission before that
commencement.
Part 6 - Technical amendments
Items 72 - 102
Items 72 - 102 make technical amendments to various offence provisions in
the Act to ensure these provisions reflect current drafting practice.
Specifically, items 72 - 102 replace the references to 'Maximum penalty' in
all offence provisions to 'Penalty'. These amendments do not make any
substantive changes to the offence provisions concerned.
Item 103
Item 103 amends subsection 274(1) by omitting '(1) A person' and replacing
it with 'A person.' This is a technical amendment. It is not necessary to
number the section as '(1)' because there is only one subsection in section
274.
Items 104 - 105
Items 104 - 105 make technical amendments to subsections 274(1) and section
275 to ensure these provisions reflect current drafting practice.
Specifically, these items replace the references to 'Maximum penalty' with
'Penalty'. These amendments do not make any substantive changes to the
offence provisions.
Schedule 3 - Amendments relating to controlled operations, assumed
identities and witness identity protection
GENERAL OUTLINE
The purpose of this Schedule is to replace the existing controlled
operations, assumed identities and witness identity protection regimes in
the Crimes Act 1914 with new regimes based on national model legislation.
The laws were developed following the 2002 Leaders Summit on Multi-
jurisdictional Crime by the Joint Working Group of the Standing Committee
of Attorneys-General (SCAG) and the then Australasian Police Ministers
Council. The Joint Working Group Report, Cross-border Investigative Powers
for Law Enforcement, was released in November 2003, and the model laws
endorsed for implementation by SCAG in 2004.
The intent of the model legislation is to harmonise, as closely as
possible, the controlled operations, assumed identities and protection of
witness identity regimes across Australia and enable authorisations issued
under a regime in one jurisdiction to be recognised in other jurisdictions.
The model laws are intended to enhance the ability of law enforcement
agencies to investigate and prosecute multi-jurisdictional criminal
activity. This type of crime is becoming increasingly common due to
advances in information and communication technology, and the increasing
sophistication of organised criminal groups, particularly those involved in
terrorism or trans-national crime, including drug trafficking. State and
Territory adoption of the model laws will:
. allow an authority for a cross-border controlled operation issued in
one jurisdiction to be recognised in other participating jurisdictions,
which will permit the movement of State or Territory controlled
operatives across the State or Territory border without the need to
make a separate application for a controlled operation in the second
jurisdiction
. enable a person authorised to acquire and use an assumed identity in
one jurisdiction to lawfully acquire evidence of that assumed identity
in another jurisdiction, and
. enable a witness identity protection certificate that is issued in one
jurisdiction to be recognised in proceedings held in another
jurisdiction, which will protect the identity of operatives as they
move across State or Territory borders without the need to seek
separate certificates.
Controlled operations
A controlled operation is a law enforcement operation in which a person is
authorised to engage in unlawful conduct in order to obtain evidence of a
serious criminal offence.
The purpose of controlled operations is described on page 1 of the Joint
Working Group's February 2003 Discussion Paper on Cross-border
investigative powers for law enforcement as follows:
In a controlled operation, instead of seeking to terminate immediately
a criminal scheme, law enforcement officers allow the scheme to unfold
under controlled conditions. During the process of allowing the scheme
to unfold ... [an authorised person] ... may themselves need to commit
offences.
Controlled operations are a valuable tool for investigating organised
criminal activity because they enable law enforcement officers to
infiltrate criminal organisations and to target those in the higher
echelons of those organisations.
The new controlled operation regime, which this Schedule will insert as new
Part IAB of the Act, will recognise corresponding State and Territory
controlled operation laws and provide protection against liability for
Commonwealth offences for participants in operations that have been validly
authorised under those laws, without requiring a separate Commonwealth
authority to be sought for the controlled operation.
As set out above, protection from liability for State and Territory
offences will be provided to State and Territory participants in cross-
border controlled operations as part of the mutual recognition provisions
contained in State and Territory laws implementing the model legislation.
However, as these provisions cannot provide protection from liability under
Commonwealth law, it is important that Commonwealth laws be enacted to
ensure State and Territory operatives engaged in lawful controlled
operations are protected against criminal liability for Commonwealth
offences.
Differences to the model laws
The new controlled operations regime introduced by this Schedule will
differ from the model laws by:
. allowing foreign law enforcement officers, under the control and
supervision of an Australian law enforcement agency, to participate in
controlled operations. This recognises the unique role of Commonwealth
agencies in the investigation of crimes with a foreign aspect
. providing a stronger oversight regime, including a requirement for the
Ombudsman to report on its own monitoring of controlled operations, in
addition to reporting on the controlled operations activities of law
enforcement agencies
. requiring external approval for extensions of operations beyond three
months and providing that the maximum duration for a controlled
operation is 24 months
. requiring close consultation with Customs in relation to any illicit
goods that may be dealt with by that agency, and
. other minor differences to provide additional accountability and take
into account the Commonwealth's unique role in national and
international law enforcement.
Differences to the existing regime
The new regime will differ from the existing regime in Part IAB of the Act
by:
. providing protection from criminal and civil liability to informants
who participate in a controlled operation in circumstances where a law
enforcement officer could not perform the function to be performed by
the informant
. providing for recognition of State and Territory controlled operation
laws
. extending the timeframes for controlled operations (though to a more
limited degree than under the model laws) to reflect the need for
operational flexibility
. streamlining reporting requirements
. increasing the Ombudsman's inspection powers, and
. prescribing offences for the unauthorised disclosure of information,
including aggravated offences where the disclosure endangers the safety
of others.
Retrospective protection
The need for reforms to the controlled operations regime was highlighted by
the recent High Court decision in Gedeon v Commissioner of the New South
Wales Crime Commission [2008] HCA 43.
Following the decision in Gedeon, there is real risk that there is
insufficient protection for evidence obtained from, and participants in,
operations authorised under a State or Territory controlled operations law
that may involve the commission of a Commonwealth offence. The new regime
introduced by this Schedule will recognise controlled operations
authorities issued under corresponding State and Territory laws. This will
remove the need to seek separate Commonwealth approval of State and
Territory controlled operations that may involve the commission of a
Commonwealth offence. The new regime will also provide retrospective
protection for evidence obtained from, and participants in, past and
existing controlled operations authorised under a State or Territory law
that may have involved the commission of a Commonwealth offence.
Assumed identities
An assumed identity is a false identity that is used for the purpose of
investigating, or gathering intelligence on, criminal activity, or
conducting other intelligence or security activities.
The importance of assumed identities is described on page 85 of the Joint
Working Group Discussion Paper as follows:
Assumed identities provide vital protection for undercover operatives
engaged in infiltrating organised crime groups or collecting
information relevant to national security. Officers need to be able to
substantiate an assumed identity with proper identification documents
[such as birth certificates, drivers' licence or passport] ... In the
absence of a verifiable identity the safety of undercover operatives
can be jeopardised.
The new assumed identities regime, which this Schedule will insert as new
Part IAC of the Crimes Act, will recognise corresponding State and
Territory assumed identities laws and enable a person authorised to acquire
and use an assumed identity in one jurisdiction to lawfully acquire
evidence of that assumed identity in another jurisdiction. Those laws will
also ensure that officers who are authorised under a corresponding State or
Territory law to use an assumed identity will be protected from criminal
liability under Commonwealth law when using that identity.
The model laws contain mutual recognition provisions to enable a person
authorised to acquire and use an assumed identity in one jurisdiction to
lawfully acquire evidence of that assumed identity in another jurisdiction.
Those laws will also ensure that officers who are authorised under a
corresponding State or Territory law to use an assumed identity will be
protected from criminal liability under Commonwealth law when using that
identity.
Schedule 3 will expand the operation of the model assumed identity laws by
extending the legislative scheme beyond law enforcement officers to include
intelligence officers and other authorised people (such as foreign law
enforcement officers). This recognises the unique role of Commonwealth
agencies in national security and intelligence operations, as well as in
the investigation of crimes with a foreign aspect.
Schedule 3 will also specifically allow officers of the AFP to obtain
assumed identities for the purpose of performing their roles under the
NWPP. This is crucial to the operation of the NWPP, as AFP officers are
required to assume an alternate identity to protect a witness under the
NWPP without bringing attention to the fact that the person is being
protected by police.
The new assumed identity provisions will also differ from the model laws by
allowing the control of an authority to be transferred between agencies.
This is necessary because there may be occasions where, for operational or
other reasons, control of an authority for an assumed identity will need to
be transferred from one agency to another agency.
Witness identity protection
Undercover operatives may need to give evidence in criminal and civil
proceedings. In some cases, it will be necessary to protect the true
identity of the operative to ensure their safety (or the safety of his or
her family). In other cases, it may be necessary to conceal the
operative's real identity to avoid prejudicing current or future
investigations or activity relating to security (for example the prevention
of espionage or politically motivated violence).
The Joint Working Group Report makes it clear that the model witness
identity protection provisions - which allow evidence to be given under a
pseudonym - do not result in the operative becoming 'anonymous' or
'secret':
A witness who appears in person to give evidence, who can be cross-
examined, whose demeanour can be assessed by the court but whose true
name and address are withheld is significantly different from a truly
anonymous witness who does not appear and who the defendant cannot
place. [page 245]
This is an important distinction to make, as the protection of the witness
(or the integrity of an investigation or security activity) must be
balanced with an accused person's right to a fair trial in which the
credibility of the witness can be properly tested.
In most cases, the credibility of the witness will not depend on the
disclosure of his or her real name and address. However, there may
exceptional situations in which the credibility of the witness cannot be
tested without disclosing their real identity. Accordingly, the court will
be able to allow, for example, defence counsel to ask questions which may
reveal the witness' true identity in specific circumstances and where it is
in the interests of justice to do so.
This Schedule replaces section 15XT of the Act - which provides a broad
discretion for a court, tribunal or royal commission to protect the real
identity of a witness who is or was using an assumed identity - with a more
comprehensive witness identity protection regime based on the model laws.
The new witness identity protection regime, which this Schedule will insert
as new Part IACA of the Act, will recognise corresponding State and
Territory witness identity protection laws and enable certificates issues
in one jurisdiction to be recognised in proceedings held in another
jurisdiction. Those laws will ensure that undercover operatives - who
often have to work across jurisdictions - will be protected by a
certificate issued by their home agency that is recognised in proceedings
which may be held in another jurisdiction.
The new regime for witness identity protection will:
. govern the procedures and requirements for giving a witness
identification certificate, and the form for that certificate
. allow the court to make orders protecting the witness' identity and for
the disclosure of the witness' true identity
. introduce offences for unauthorised disclosures of the witness' identity
. provide for annual reporting requirements on agencies that give
certificates, and
. facilitate the mutual recognitions of certificates given under
corresponding State and Territory laws.
One of the key differences between the old and new regimes is that the
protections will extend to operatives who are participants in a controlled
operation authorised under Part IAB of the Act. This recognises the need
to protect operatives who are involved in covert investigations who may not
use an assumed identity.
While the new regime for witness identity protection is substantially based
on the model laws, some modifications have been made. This includes
extending the witness identity protection provisions to security and
intelligence officers and other authorised people (such as foreign law
enforcement officers) granted an assumed identity. This reflects the
expansion of the assumed identity regime (also introduced by this Schedule)
to include persons other than domestic law enforcement officers.
The witness identity protection provisions will only apply to operatives
and will not affect the protections available to other types of witnesses.
Part 1 - Main amendments
Crimes Act 1914
Items 1 to 9 - Subsection 3(1)
This item will repeal definitions from the Crimes Act that apply to the
current controlled operations regime and are not required for other
purposes in the Crimes Act.
Item 10 - Parts IAB and IAC
This item will repeal the current Parts IAB and IAC of the Crimes Act,
which contain the current controlled operations and assumed identities
regimes. In substitution, it will insert new Parts IAB, IAC and IACA,
which set out the revised controlled operations, assumed identities and
witness identity protection regimes.
Part IAB - Controlled operations
Division 1-Preliminary
15G Objects of Part
This section will set out the main objects of the new controlled operations
regime, which are:
. to establish a comprehensive regulatory scheme for authorising,
conducting and monitoring Commonwealth controlled operations
. to exempt law enforcement and civilian participants in controlled
operations from criminal liability, and to indemnify them from civil
liability, for conduct engaged in as part of an authorised controlled
operation, and
. to ensure protection for participants in, and evidence obtained from,
operations authorised under a State or Territory law that may have
involved the commission of a Commonwealth offence.
15GA Relationship to other laws and matters
Courts have a general discretion to exclude evidence that was obtained
through unlawful conduct. A crucial feature of controlled operations is
that they often involve conduct that would otherwise amount to the
commission of an offence. Section 15GA will prevent evidence obtained as a
result of criminal activity undertaken as part of a controlled operation
from being automatically excluded in court proceedings. This provision is
necessary to ensure that evidence obtained from a properly authorised
controlled operation can be used in prosecutions without being subject to
challenge on the ground that it was obtained through the commission of an
offence.
Subsection 15GA(1) will preserve the general judicial discretion to admit
or exclude evidence or stay proceedings, except to the extent that these
discretions are expressly restricted as part of the new controlled
operations regime.
Subsection 15GA(2) will clarify that a court should not apply its
discretion to exclude evidence obtained during a controlled operation
solely because it was obtained through the commission of an unlawful act,
provided that the unlawful act was undertaken within the scope of the
controlled operation authority.
Paragraph 15GA(2)(a) will protect evidence obtained through controlled
operations validly authorised under this new Part IAB of the Crimes Act.
Paragraph 15GA(2)(b) reflects the mutual recognition elements of the model
legislation and protects evidence obtained through controlled operations
validly authorised under 'a corresponding State controlled operations law'.
'A corresponding State controlled operations law' will be defined at
section 15GC as a law of a State or Territory that is prescribed in
regulations made under the Crimes Act. The prescribed laws will be State
and Territory laws that are based on, or are substantially similar to, the
model legislation.
This recognition of State and Territory controlled operations laws is
necessary to ensure that, following the High Court Decision in Gedeon,
State and Territory law enforcement agencies are not required to seek
simultaneous Commonwealth authority for controlled operations authorised
under the State or Territory laws. This would be administratively complex
and burdensome and defeat the purpose of the legislation, which is to allow
separate regimes for State and Territory controlled operations.
Retrospective protection will also be provided for evidence obtained
from controlled operations authorised under State or Territory
controlled operations law before the commencement of the new regime
(see Part 2 of this Schedule).
15GB Concurrent operation of State and Territory laws
Section 15GB will provide that this new Part IAB of the Crimes Act is not
to apply to the exclusion of a law of a State or Territory to the extent
that the State or Territory law is capable of operating concurrently with
this Part. This is important to enable cross-recognition of State and
Territory controlled operations laws and ensure that States and Territories
are able to independently conduct their own controlled operations.
15GC Definitions
Section 15GC will define terms associated with the new controlled
operations regime. The key definitions will be:
appropriate authorising officer - A number of agencies can be involved in
controlled operations under this Part of the Crimes Act. However, only
certain agencies - the Australian Federal Police (AFP), the Australian
Crime Commission (ACC) and the Australian Commission for Law Enforcement
Integrity (ACLEI) - can grant the authority that allows a controlled
operation to commence.
'Authorising officer' will be defined at section 15GF. An authorising
officer will be responsible for granting or refusing an authority to
conduct a controlled operation, where the investigation of the offence to
which the controlled operation relates comes within the functions of that
authorising officer's agency (i.e. the AFP, the ACC or ACLEI).
An 'appropriate authorising officer' will be an authorising officer from
the same agency as the authorising officer. An appropriate authorising
officer will be able to authorise a variation of the conditions of a
controlled operation or extend its duration up to three months if the
controlled operation was originally authorised by an officer of the same
agency. For example, if the controlled operation relates to the functions
of the ACC and was originally authorised by an ACC authorising officer, an
authorising officer from the ACC would be an appropriate authorising
officer for the controlled operation, while an officer from ACLEI would
not. This will ensure that the agency that initially authorised the
controlled operation maintains responsibility and accountability for the
operation.
authorising agency for an authorised controlled operation will be the
agency whose authorising officer (defined at new section 15GF) granted the
authority for the controlled operation (defined at new section 15GI). For
example, if an AFP authorising officer granted the authority, the AFP would
be the authorising agency.
Only the AFP, the ACC and ACLEI will be authorising agencies under the new
controlled operation regime.
authority will mean an authority granted under new section 15GI. The
authority will be the document or communication issued by an authorising
officer (defined at new section 15GF) that authorises the controlled
operation and any conduct that, in the absence of the authority, would be
unlawful.
chief officer will mean the head of a 'law enforcement agency' (as defined
in this section 15GC). The chief officers will be as follows:
. in relation to the AFP, the Commissioner
. in relation to the police force of a State or Territory, the
Commissioner of Police in that police force or the person holding
equivalent rank
. in relation to Customs, the Chief Executive Officer of Customs
. in relation to the ACC, the Chief Executive Officer of the ACC, and
. in relation to the ACLEI, the Integrity Commissioner.
A chief officer of an 'authorising agency' (as defined in this section
15GC, only the AFP, the ACC and ACLEI are authorising agencies) will have
the following responsibilities under the new controlled operations regime:
. authorising controlled operations (along with other authorising
officers) (section 15GI)
. ensuring that record keeping requirements are met (section 15HP)
. submitting a six-monthly report on controlled operations to the
Commonwealth Ombudsman and the Minister (section 15HM)
. submitting an annual report on controlled operations to the Minister
(section 15HN), and
. notifying a person who suffers loss of or serious damage to property,
or personal injury, that the loss, damage or injury was caused in the
course of or as a direct result of a controlled operation (section
15HG).
civilian participant will be a person, other than a law enforcement
officer, who has been authorised to participate in the controlled operation
by an authorising officer under new section 15GI or15GO. This will include
informants, and people who have specialised expertise or hold particular
positions, such as people who are responsible for critical infrastructure
(such as airports). Paragraphs 15GI(2)(h) and 15GQ(2)(h) will provide that
civilians may only be authorised to participate in a controlled operation
where the authorising officer (defined at section 15GF) is satisfied on
reasonable grounds that a law enforcement officer could not adequately
perform the role that the civilian will perform.
The current controlled operation regime allows civilians, including
informants, to participate in controlled operations. However, it does not
provide protection from criminal and civil liability for authorised conduct
engaged in by informants as part of a controlled operation. This has
hampered the ability of law enforcement agencies to use informants to
perform controlled conduct, which has presented a significant obstacle to
law enforcement agencies in successfully conducting controlled operations.
As organised criminal groups have developed sophisticated counter
intelligence capability to protect their criminal activity, and are
increasingly aware of law enforcement methods and technical capability, the
use of informants has become critical to the successful investigation of
some criminal groups, particularly those involved in terrorism and
transnational crime.
As organised criminal groups may only trust established members of their
group, infiltration by undercover officers may only be possible with the
ongoing assistance of an informant. In these cases, the members of the
criminal organisations may trust an informant to carry out certain acts,
such as sourcing a warehouse for storing illicit goods, in circumstances
where they would not trust an undercover operative. It is also often
necessary for informers to participate in criminal conduct in order to
maintain the trust of, and their position in, the criminal group. These
acts could be as simple as moving a suitcase containing drugs from the boot
of a car to a premises. Informants who might be willing to assist law
enforcement agencies if they were protected from liability for certain
approved conduct are unlikely to provide that assistance if they cannot
receive any protection from criminal liability.
Allowing informants to assist law enforcement officers in a controlled
operation enables ongoing monitoring of the activities of the target
criminal groups and is more likely to result in law enforcement obtaining
key information and evidence from the controlled operation. This
legislation will not provide immunity for past criminal offences that
informants may have committed. Informants will only receive protection
from liability for conduct that they have been authorised to undertake as
part of a controlled operation.
For operational efficiency, the decision about whether to include
informants and other civilians in a controlled operation will rest with the
law enforcement agency.
New section 15GK will provide that an authority to conduct a controlled
operation must detail the particular 'controlled conduct' (if any) that a
civilian may undertake, but is only required to state the 'nature' of the
controlled conduct in which a law enforcement officer may engage. This
will ensure that the behaviour of civilian participants is tightly
controlled, while allowing some latitude to law enforcement officers to
address operational contingencies as they arise.
Whereas law enforcement officers can be authorised to engage in 'controlled
conduct' (defined at section 15GC) of a specified 'nature', the particular
controlled conduct in which a civilian may engage as part of the controlled
operation will be required to be specified in the authority to conduct a
controlled operation (as set out at new section 15GK). This will ensure
that the behaviour of civilian participants is tightly controlled.
Informants and civilians will have the same obligations as law enforcement
participants and will be under the supervision of law enforcement officers.
The new provisions allowing the participation of informants will bring the
Commonwealth into line with the model legislation.
controlled conduct will mean conduct constituting an offence for which a
person would, but for new section 15HA, be criminally responsible. During
a controlled operation, a participant may need to engage in unlawful
conduct. For example, in a controlled operation investigating a drug
trafficking syndicate, a participant may purchase illegal drugs to gather
required evidence. Only criminal conduct that the participant has been
authorised to participate in will be covered by 'controlled conduct'.
corresponding State controlled operations law will mean a law of, or
provisions of a law of, a State or Territory prescribed in regulations made
under the Crimes Act. These laws will be State and Territory laws that are
based on, or are substantially similar to, the model legislation.
law enforcement agency will mean the AFP, the ACC, Customs, ACLEI or the
police force of a State or Territory. Officers of each of these agencies
will be able apply to an authorising agency (as defined in this section
15GC) to conduct a controlled operation. This definition will be differ
from the definition of 'law enforcement officer' in section 3 of the Crimes
Act as it does not include foreign police or foreign law enforcement
agencies. This has been done intentionally as, while foreign officers may
assist and participate in controlled operations, it would not be
appropriate to allow them to independently apply for an authorisation to
conduct a Commonwealth controlled operation (see also the definition of
Australian law enforcement officer in current section 3 of the Crimes Act).
While officers of each 'law enforcement agency' will be able to apply for a
controlled operation, only the AFP, the ACC and ACLEI will be able to
authorise a controlled operation. Accordingly, one of these three agencies
will ultimately be responsible for each controlled operation authorised
under this regime.
law enforcement participant in an authorised controlled operation will be a
participant authorised by an authorising officer (as defined in this
section 15GC) under section 15GI or 15GO, who is a law enforcement officer.
Law enforcement officers are differentiated from civilian participants, as
it is appropriate, in some respects, to impose different requirements on
the two groups. For example, new section 15GK will provide that an
authority to conduct a controlled operation must detail the particular
'controlled conduct' (if any) that a civilian may undertake, but is only
required to state the 'nature' of the controlled conduct in which a law
enforcement officer may engage. This will ensure that the behaviour of
civilian participants is tightly controlled, while allowing more latitude
to law enforcement officers to provide greater operational flexibility.
nominated Tribunal member will mean an Administrative Appeals Tribunal
(AAT) member who is nominated by the Minister under new section 15GG to
deal with applications under new section 15GU to extend the period of
effect of a controlled operation authority beyond three months.
participant will be any person who is authorised, under new section 15GI or
15GO, to engage in 'controlled conduct' for the purposes of a controlled
operation. This will include both law enforcement and civilian
participants (including informants).
principal law enforcement officer will be the law enforcement officer who
is responsible for the conduct of the controlled operation. New section
15GK provides that an authority to conduct a controlled operation must
nominate the law enforcement officer responsible for the controlled
operation.
15GD Meaning of controlled operation and major controlled operation
Subsection 15GD(1) will define controlled operation as an operation
authorised under this Part of the Crimes Act which involves law enforcement
officers, and may involve other people, to obtain evidence that may lead to
the prosecution of a person for a 'serious Commonwealth offence' (defined
at new section 15GE) or a 'serious State offence that has a federal aspect'
(defined at new subsection 15GE(4)). To obtain the required evidence,
participants in a controlled operation may need to engage in conduct that
may constitute a criminal offence, or for which they may be civilly liable.
To protect participants, Division 3 of this Part of the Crimes Act will
provide that participants are not criminally responsible, and are
indemnified against civil liability, for conduct that they have been
authorised to undertake as part of a controlled operation.
Subsection 15GD(2) will define major controlled operation as a controlled
operation that is likely to involve infiltration of an organised crime
group by a law enforcement officer for a period of more than seven days, or
continue for more than three months, or be directed against suspected
activity which includes a threat to human life. The term 'organised crime
group' will not be separately defined - it is intended to cover any group
of people engaged in criminal activity in a structured way.
The purpose of this definition will be to distinguish between major
controlled operations and other controlled operations, as authorities for
major controlled operations can only be authorised by the Commissioner or
Deputy Commissioner of the AFP. Other AFP controlled operations will be
able to be authorised by an 'appropriate authorising officer', as defined
at new sections 15GC and 15GF.
The distinction between major controlled operations and other controlled
operations will only apply to the AFP. Because the AFP authorises the
majority of controlled operations, this will ensure that only the most
senior officers in the AFP authorise long operations, or operations
directed against activity involving threat to life.
15GE Meaning of serious Commonwealth offence and serious State offence that
has a federal aspect
New section 15GD will provide that a controlled operation may only be
carried out to obtain evidence that may lead to the prosecution of a person
for a 'serious Commonwealth offence' or a 'serious State offence that has a
federal aspect'. Section 15GE will define these terms.
The definition of serious Commonwealth offence will reflect the definition
in existing section 15HA of the Crimes Act, including offences listed in
Regulation 4A of the Crimes Regulations 1900. It will be defined as a
Commonwealth offence carrying a maximum penalty of imprisonment for three
years or more that falls within the categories of offences specified in
subsections 15GE(2) and (3). This will ensure that controlled operations
are only authorised for the most serious Commonwealth offences. In
accordance with the recommendation made by the Standing Committee on Legal
and Constitutional Affairs in its report on the Crimes Legislation
Amendment (National Investigative Powers and Witness Protection) Bill 2006,
offences carrying a penalty of less than three years imprisonment cannot be
included in the definition of 'serious offence' by regulation.
A serious State offence that has a federal aspect will mean an offence
against a law of a State or Territory that has a federal aspect and that is
punishable on conviction by imprisonment for a period of three years or
more. This will allow Commonwealth law enforcement agencies to investigate
State offences that are incidental to Commonwealth crime.
A State offence will have a federal aspect if the subject matter of the
offence is a subject on which the Commonwealth has constitutional power to
legislate. A State offence will also have a federal aspect if the
investigation of that State offence is incidental to an investigation of a
Commonwealth or Territory offence (existing section 3AA of the Crimes Act
explains when a State offence has a federal aspect).
In practice, where a Commonwealth law enforcement agency, such as the AFP,
is investigating Commonwealth crimes, it may become apparent that State
offences have also been committed. Allowing controlled operations
authorised under the Crimes Act to be used for the investigation of serious
State offences that have a federal aspect will enable the AFP to
investigate the totality of the criminal conduct involved in the offending.
15GF Meaning of authorising officer etc.
Section 15GF will set out who may authorise a controlled operation under
the new regime. Only senior officers within each 'authorising agency'
(defined at new section 15GC) will be able to authorise a controlled
operation. These officers will be 'authorising officers'.
For the purposes of the definition of authorising officer, there will be
four categories of controlled operations:
. where the operation is a major controlled operation and the
investigation of the offence is within the functions of the AFP
. where the operation is not a major controlled operation and the
investigation of the offence is within the functions of the AFP
. where the investigation of the offence is within the functions of the
ACC, and
. where the investigation relates to a corruption issue within the
meaning of the Law Enforcement Integrity Commissioner Act 2006.
The reason for the distinction between types of controlled operations
conducted by the AFP is to ensure that the controlled operations which may
involve more serious risks for operatives, both in terms of time spent
undercover and safety, will only be approved by the Commissioner or Deputy
Commissioner of the AFP (paragraph 15GF(1)(a)). This distinction only
applies to the AFP.
Where the operation is an AFP controlled operation other than a 'major
controlled operation', paragraph 15GF(1)(b) will provide that it may be
authorised by an AFP authorising officer, which will be defined at
subsection 15GF(3) as the AFP Commissioner, a Deputy Commissioner or a
senior executive AFP employee authorised in writing by the Commissioner to
perform the function.
Where the investigation of the offence is within the functions of the ACC,
paragraph 15GF(1)(c) will provide that it may be authorised by an ACC
authorising officer, which will be defined at subsection 15GF(4) as the
Chief Executive Officer of the ACC or an SES employee of the ACC authorised
in writing by the Chief Executive Officer to perform the function.
Where the investigation is of a corruption issue within the meaning of the
Law Enforcement Integrity Commissioner Act, paragraph 15GF(1)(d) will
provide that it may be authorised by an ACLEI authorising officer, which
will be defined at subsection 15GF(5) as the Integrity Commissioner, the
Assistant Integrity Commissioner, or a staff member of ACLEI who is an SES
employee and is authorised in writing by the Integrity Commissioner to
perform the function.
Authorising officers will only be officers of the AFP, the ACC or ACLEI.
Other law enforcement agencies, such as Customs, will need to make any
application to conduct a controlled operation to an authorising officer in
the AFP, the ACC or ACLEI. The vast majority of controlled operations
conducted at the federal level are undertaken by the AFP. A smaller, but
significant number of operations are conducted by the ACC. As a result,
these agencies have the relevant operational experience to appropriately
determine when a controlled operation should be authorised. As ACLEI has
the specific role of investigating corruption issues that relate to the AFP
and the ACC, it would not be appropriate to require ACLEI to ask the AFP or
the ACC to authorise a controlled operation into this conduct.
15GG Minister may nominate AAT members
Section 15GG will allow the Minister to nominate AAT members to deal with
applications under new section 15GU to extend the period of effect of a
controlled operation authority beyond three months.
The Minister will be able to nominate an AAT Deputy President, full-time
senior member, part-time senior member or member for this purpose, but a
part-time senior member or member will only be able to be nominated if he
or she has been enrolled as a legal practitioner of the High Court or
another federal court, or of the Supreme Court of a State or of the
Australian Capital Territory, for not less than five years.
Subsection 15GG(4) will provide that a nominated Tribunal member has, in
relation to the performance of a function under this Part of the Crimes
Act, the same protection and immunity as a Justice of the High Court in
relation to proceedings in that Court.
Division 2 - Authorisation of controlled operations
Division 2 of new Part IAB of the Crimes Act will set out how controlled
operations can be authorised and varied, including how applications are
made, who can issue authorities and the procedural requirements that must
be followed.
Subdivision A - Authorities to conduct controlled operations
15GH Applications for authorities to conduct controlled operations
Section 15GH will provide that only an 'Australian law enforcement officer'
(defined at existing section 3 of the Crimes Act) of a 'law enforcement
agency' (defined at new section 15GC) may apply for an authority to conduct
a controlled operation. A foreign law enforcement officer will be able to
participate in a controlled operation under the Crimes Act, but cannot
apply for authority to conduct the operation. This section will also
outline the requirements and process for an application for an authority to
conduct a controlled operation.
Subsection 15GH(2) will provide that there are two types of application for
an authority to conduct a controlled operation:
A formal application will be the standard method of applying for an
authority. A formal application will be required to be in writing and
signed by the law enforcement officer who is applying for the
authority. It will be required to state the proposed duration of the
authority, which must not exceed three months.
An urgent application will be the method of applying for an authority
when time is of the essence or when the means of communication
available to the law enforcement officer who is applying for the
authority are limited. An urgent application will only be able to be
made if the applicant has reason to believe that the delay caused by
making a formal application may affect the success of the operation.
Urgent applications will be able to be made orally in person, or by
telephone, or by any other means of communication. An urgent
application will be required to state the proposed duration of the
authority, which must not exceed seven days.
Both formal and urgent applications to conduct a controlled operation will
be required to be made to an authorising officer (as defined in section
15GF).
Subsection 15GH(3) will provide that an application can be made in relation
to a controlled operation which has been the subject of a previous
application, but in those circumstances only a formal application can be
made.
The most important aspect of an urgent application is that it enables
information to be presented to an authorising officer without the need to
prepare a formal document, which facilitates the grant of an authority
within a tight timeframe. However, to ensure appropriate record keeping
and assist oversight mechanisms, subsection 15GH(6) will provide that if an
urgent application was not made in writing, the applicant must make a
written record of the application as soon as practicable and provide a copy
to the authorising officer. This will assist the authorising officer, who
is required under new section 15GL to provide a written record of an urgent
authority to the principal law enforcement officer (who is defined at
section 15GC as the law enforcement officer who is responsible for the
conduct of the controlled operation) within seven days of granting the
application.
Subsection 15GH(4) will set out the information that all applications
(whether formal or urgent) must include. Applications will be required to
provide sufficient information to enable the authorising officer to decide
whether or not to authorise the proposed controlled operation.
Applications will also be required to specify the proposed duration of the
operation, and provide details of any previous applications that have been
made, or authorities that have been granted, in respect of the proposed
operation or another controlled operation that investigated the same the
criminal activity as the proposed operation.
Subsection 15GH(5) will provide that an authorising officer may ask the
applicant to provide further information about the proposed controlled
operation, where this is required for a proper consideration of the
application.
15GI Determination of applications
Subsection 15GI(1) will provide that after considering the application and
any additional information, the 'authorising officer' (defined at section
15GF) may authorise the controlled operation, subject to, or without,
conditions, or refuse the application.
Subsection 15GI(2) will provide that an authorising officer must not
authorise a controlled operation unless he or she is satisfied, on
reasonable grounds, of a number of specified matters, including that:
. a serious Commonwealth offence or a serious State offence with a
federal aspect has been (as defined at section 15GE), is being or is
likely to be committed
. the nature and extent of the suspected criminal activity are such as to
justify the conduct of a controlled operation
. any unlawful conduct will be limited to the maximum extent necessary to
conduct an effective controlled operation
. the operation will be conducted in a way that ensures that, to the
maximum extent possible, any illicit goods will be under the control of
Australian law enforcement officers at the end of the controlled
operation
. the operation will be conducted in such a way as to enable the
oversight and accountability arrangements in Division 4 of this Part
IAB to be complied with
. the operation will not be conducted in a way that would induce a person
to commit any offence that they would not otherwise have intended to
commit. This would ensure that a controlled operation does not involve
conduct that would constitute entrapment (i.e. where a suspect is
induced to commit an offence that they would not otherwise have
intended to commit). It does not apply to authorised participants, who
will be provided with protection from criminal responsibility for
authorised criminal conduct engaged in during a controlled operation
(new section 15HA)
. the operation will not involve conduct that will:
- seriously endanger the health or safety of any person
- cause the death of, or serious injury to, any person
- involve the commission of a sexual offence against a person, or
- result in significant loss of or damage to property (other than
illicit goods).
The regime recognises that it is never appropriate for conduct of the
nature specified to be undertaken, or authorised by, law enforcement
officers.
. any role assigned to a civilian could not be adequately performed by a
law enforcement officer. For example, it would be appropriate to
authorise the participation of a civilian in a controlled operation if
that person speaks a language or dialect that is spoken by the people
under investigation but is not spoken by any available law enforcement
officer. Alternatively, the civilian may be an informant who is a
member of a crime syndicate that police are either unable, or would not
have sufficient time, to infiltrate without the informant's assistance.
The original authorisation process for controlled operations is internal to
the AFP, the ACC and ACLEI. This is appropriate, as the conduct of
controlled operations is essentially an operational matter and internal
authorisation provides operational efficiency and protects the security of
the investigation.
New Division 4 of this new Part IAB of the Crimes Act will set out the role
of the Ombudsman in reporting on compliance by the AFP, the ACC and ACLEI
with the application and authorisation requirements provided in this
Division. This will ensure appropriate oversight and monitoring of the
process.
Subsection 15GI(4) will clarify that an authority to conduct a controlled
operation granted under this section is not a legislative instrument. A
'legislative instrument' is defined at section 5 of the Legislative
Instruments Act 2003. In general terms, a legislative instrument is a
written document that is of a legislative character and that is made in the
exercise of a power designated by Parliament. Requirements relating to
registering, tabling, scrutinising and sunsetting all Commonwealth
legislative instruments are imposed under the Legislative Instruments Act.
Subsection 15GI(4) has been included to assist readers of the Crimes Act,
so that they are aware that the requirements imposed by the Legislative
Instruments Act do not apply to authorities issued under this section.
15GJ Manner of granting authority
Section 15GJ will set out the forms in which an authority for a controlled
operation can be granted.
Subsection 15GJ(1) will provide that there are two types of authority:
A formal authority, which will be required to be in writing and signed
by the authorising officer.
An urgent authority, which will be able to be given orally in person
or by telephone, or any other means of communication.
A formal authority will only be able to be granted in response to a formal
application (as defined at paragraph 15GH(2)(a)). An urgent authority will
be able to be granted in response to an urgent application (as defined at
paragraph 15GH(2)(b)) or, if the authorising officer (as defined at
section 15GF) is satisfied that the delay caused by granting a formal
application may affect the success of the operation, in response to a
formal application. The maximum duration of an urgent authority will be
seven days.
Subsection 15GJ(2) will provide that the authorising officer can only grant
a formal authority for a controlled operation that has been the subject of
a previous authority. As a result, if an operation that was authorised by
an urgent authority needs to be continued, a new formal application will
need to be made, and a formal authority granted. This section will also
maintain the current position of allowing a new authority to be granted for
a controlled operation which has previously ended due to it reaching the
maximum duration. This is necessary to provide law enforcement agencies
with the flexibility to reopen or continue long and complex investigations
into organised crime groups.
15GK Form of authority
Section 15GK will set out the details that must be included in an
authority. Subsection 15GK(1) will set out the details to be included in a
formal authority and subsection 15GK(2) will set out the details to be
included in an urgent authority. These requirements are designed to ensure
that the authority provides comprehensive information about the planned
operation. The following information will be required to be included in
both formal and urgent authorities:
. the name and rank or position of the authorising officer (paragraphs
15GK(1)(a) and 15GK(2)(a))
. the principal law enforcement officer - as defined at section 15GC,
this will be the law enforcement officer who is responsible for the
conduct of the controlled operation (paragraphs 15GK(1)(b) and
15GK(2)(b))
. the applicant for the authority, if different to the principal law
enforcement officer (paragraphs 15GK(1)(b) and 15GK(2)(b))
. whether the application was formal or urgent - noting that section 15GJ
will provide that a formal authority can only be granted in response to
a formal application (paragraphs 15GK(1)(c) and 15GK(2)(c))
. the nature of the criminal activity (including the suspected serious
Commonwealth offences (defined at section 15GE) and serious State
offences that have a federal aspect (defined at subsection 15EG(4)) in
respect of which the controlled conduct is to be engaged in (paragraphs
15GK(1)(d) and 15GK(2)(d))
. the identity of the individual people authorised to participate in the
controlled operation - this includes law enforcement officers and
civilians (paragraphs 15GK(1)(e) and 15GK(2)(e)). Subsection 15GK(3)
will provide that a person may be identified by an assumed name, or a
code name or number, provided that the chief officer of the authorising
agency can match this name or number to the person's real identity.
This will provide protection for a person who is participating in a
controlled operation, as their life may be at risk if the criminals
targeted by the controlled operation discovered that the person was
conducting or assisting an investigation into their criminal activity.
. the nature of the controlled conduct in which authorised participants
may engage (paragraphs 15GK(1)(f) and 15GK(2)(f)). 'Controlled
conduct' will be defined at section 15GC as conduct constituting an
offence for which a person would, but for new section 15HA, be
criminally responsible. Paragraphs 15GK(1)(f) and 15GK(2)(f) will
specify that different levels of detail must be provided for law
enforcement officers and civilian participants. For civilian
participants, the particular 'controlled conduct' (if any) in which
they are authorised to participate will be required to be detailed,
whereas for law enforcement participants, the authority will only be
required to state the 'nature' of the controlled conduct in which they
are authorised to engage. This will ensure that the behaviour of
civilian participants is tightly controlled, while allowing more
latitude to law enforcement officers to provide greater operational
flexibility.
. the person/s to be targeted by the controlled operation - to the extent
that this is known (paragraphs 15GK(1)(g) and 15GK(2)(g))
. the period of the authority - for a formal authority this period will
not be able to exceed three months, for an urgent authority this period
will not be able to exceed seven days (paragraphs 15GK(1)(h) and
15GK(2)(h))
. any conditions to which the conduct of the operation is subject
(paragraphs 15GK(1)(i) and 15GK(2)(i)), and
. the time and date that the authority was granted (paragraphs 15GK(1)(j)
and 15GK(2)(j)).
In addition, paragraph 15GK(1)(k) will provide that a formal authority
must also include, to the extent known and applicable, details about
any illicit goods (eg illegal drugs) that will be involved in the
operation, including any international movements of those goods and
details of when the goods will be dealt with by Customs. These details
will not be required to be contained in an urgent application because
it is likely to be unfeasible for an applicant to ascertain this
information in a limited timeframe.
15GL Written record of urgent authority must be issued
Section 15GL will require an authorising officer (as defined at section
15GF) to provide the principal law enforcement officer (as defined at
section 15GC, this is the law enforcement officer who is responsible for
the conduct of the controlled operation) with a written record of the
urgent authority to conduct a controlled operation within seven days of
granting that authority under section 15GI. The written record will be
required to contain all the information set out at subsection 15GK(2).
15GM Change of principal law enforcement officer
Section 15GM will allow an authorising officer (as defined at section 15GF)
to nominate a new principal law enforcement officer for a controlled
operation where the current principal law enforcement officer ceases for
any reason to have responsibility for the controlled operation. This will
ensure that if a principal law enforcement officer resigns or transfers to
a new area of responsibility, the controlled operation can continue under
the direction of another appropriate officer.
15GN Commencement and duration of authorities
Section 15GN will set out when an authority to conduct a controlled
operation commences and expires.
Subsection 15GN(1) will provide that a controlled operation is taken to
commence at the time that an authority is granted under section 15GI.
Subsection 15GN(2) will clarify that an urgent authority is granted when
the authorising officer (as defined at section 15GF) tells the applicant
that the authority is granted.
The maximum duration of a formal authority for a controlled operation will
be three months. However, the duration of a controlled operation will be
able to be extended up to a total of 24 months (see new sections 15GQ and
15GV).
The maximum duration of an urgent authority will be seven days. This
period cannot be extended. However, the controlled operation authorised by
an urgent authority will be able to continue beyond seven days if a formal
application is made, and a formal authority given, to allow this to occur
(see subsections 15GH(3) and 15GJ(2)).
A controlled operation will have effect for the period specified in the
authority granted under section 15GI, unless it is cancelled before the end
of that period (under section 15GY) or, in the case of a formal authority,
the period is extended under section 15GQ or 15GV. In that case, the
controlled operation ends once the final period of extension is completed.
Under the existing legislation, the maximum duration of a controlled
operation is six months (existing section 15OB of the Crimes Act). Under
the new controlled operation regime, the maximum duration for a controlled
operation will be 24 months. This change recognises that some controlled
operations, particularly those investigating organised crime, may extend
for a long period of time and it would cause significant disruption to the
investigation, and possible risk to participants, if the operation was
interrupted at a sensitive state.
Subdivision B - Variation of authorities by appropriate authorising
officers
Subdivision B of Division 2 of new Part IAB of the Crimes Act will
establish a regime for varying authorities where the variation will not
result in the duration of the operation exceeding three months. Such
variations will be able to be made by an 'appropriate authorising officer',
who, as defined at section 15GC, is an authorising officer (defined at
section 15GF) of the original authorising agency. For example, if the
controlled operation was originally authorised under section 15GI by an ACC
authorising officer (defined at subsection 15GF(4)) the authority to
conduct the controlled operation will be able to be varied by that person,
or any other ACC authorising officer, provided that the variation will not
extend the total period of the controlled operation beyond three months.
Authorities will be able to be varied to allow a controlled operation to
extend beyond three months, but these variations will only be able to be
made by a nominated member of the AAT (as defined at section 15GG) acting
under Subdivision C of Division 2 of new Part IAB of the Crimes Act. This
will provide additional, external oversight for long controlled operations,
while retaining flexibility for shorter operations.
15GO Variation of authority by appropriate authorising officer
Section 15GO will set out when an authority for a controlled operation may
be varied by an 'appropriate authorising officer'. 'Appropriate
authorising officer' will be defined at section 15GC as an authorising
officer (defined at section 15GF) of the original authorising agency. For
example, if the controlled operation was originally authorised under
section 15GI by an ACC authorising officer (defined at subsection 15GF(4))
that person, and any other ACC authorising officer, is an 'appropriate
authorising officer'. Allowing variations to be made by authorising
officers other than the officer who originally authorised the controlled
operation will allow flexibility in circumstances where the original
authorising officer is not available, while ensuring that the same agency
remains responsible for each controlled operation approved by its
authorising officers.
Both formal authorities and urgent authorities will be able to be varied
under section 15GO.
Subsection 15GO(1) will provide that an appropriate authorising officer may
vary an authority at any time on their own initiative or in response to an
application made under new section 15GP. An authority may be varied in a
number of ways. Subsection 15GO(2) will provide that a variation may:
. allow participants to engage in controlled conduct that is additional
to, or different from, the controlled conduct that the original
authorisation allowed them to engage in.
'Controlled conduct' will be defined at new section 15GC as conduct
constituting an offence for which a person would, but for new section
15HA, be criminally responsible. As with the original authorisation
(as set out at new paragraphs 15GK(1)(f) and 15GK(2)(f)) a variation of
this kind will be required to provide different levels of detail for
law enforcement officers and civilian participants.
For civilian participants, the particular 'controlled conduct' in which
the variation is authorising them to participate will be required to be
detailed, whereas for law enforcement participants, the variation will
only be required to specify the 'nature' of the controlled conduct in
which the variation authorises them to engage. This will ensure that
the behaviour of civilian participants is tightly controlled, while
allowing more latitude to law enforcement officers to provide greater
operational flexibility.
. provide that participants are no longer authorised to engage in
controlled conduct that the original authorisation allowed them to
engage in
. authorise new people (law enforcement officers and/or civilians,
including informants) to participate in the controlled operation,
and/or
. extend a controlled operation up to a total duration of three months.
Subsection 15GO(3) will provide that the period of effect of an urgent
authority cannot be extended. As a result, if an operation that was
authorised by an urgent authority needs to be extended, a new formal
application to conduct the controlled operation will be required to be made
under new section 15GH.
Under the current Crimes Act, appropriate authorising officers are able to
vary an authorisation to conduct a controlled operation, except to extend
the duration of the controlled operation. Under existing section 15OB of
the Crimes Act, only a nominated member of the AAT may extend the duration
of a controlled operation. The period of effect of an authority to conduct
a controlled operation may only be extended once, for a period of no more
than three months. This means that currently a controlled operation may
run for a maximum of six months.
As with the current provisions, appropriate authorising officers will not
be able to authorise a controlled operation to extend beyond three months.
Authorities will be able to be varied to allow a controlled operation to
extend beyond three months, but these variations will only be able to be
made by a nominated member of the AAT (as defined at section 15GG) acting
under Subdivision C of Division 2 of new Part IAB of the Crimes Act. The
requirement for extensions beyond three months to be authorised by a
nominated AAT member will ensure that these decisions are subject to
external, independent scrutiny.
Allowing an appropriate authorising officer, who is internal to the
authorising agency, to vary the period of effect of a controlled operation
authority, provided that the variation does not result in the controlled
operation extending beyond three months, is appropriate as it provides
operational efficiency and protects the security of the investigation.
However, to ensure a proper balance between operational flexibility and
accountability, the new regime will contain additional safeguards to ensure
that this new function is appropriately oversighted and monitored.
The Ombudsman will have the power to inspect the records of the AFP, the
ACC and ACLEI at any time (new section 15HS) and obtain relevant
information from any law enforcement officer, including an officer from an
agency other than the AFP, the ACC or ACLEI (new section 15HT). In
addition, the chief officers of the AFP, ACLEI and the ACC (as defined at
section 15GC) will be required, under new section 15HP, to keep a copy of
all formal variation applications and authorisations. If the Ombudsman
finds any irregularity in these records, the Ombudsman will be able to
report these concerns to the Minister.
Subsection 15GO(5) will provide that a variation cannot be granted unless
the appropriate authorising officer is satisfied on reasonable grounds that
the variation will not authorise a significant alteration of the nature of
the controlled operation. This will be a safeguard against the use of
variation applications to authorise entirely new and different operations.
The authorising officer will be required to consider whether the variation
is consistent with the character of the originally authorised controlled
operation. If a significant change to the nature of the operation is
required, an application for a new controlled operation should be made
under new section 15GH.
Subsection 15GO(6) will clarify that the variation of an authority to
conduct a controlled operation granted under this section is not a
legislative instrument. A 'legislative instrument' is defined at section 5
of the Legislative Instruments Act. In general terms, a legislative
instrument is a written document that is of a legislative character and
that is made in the exercise of a power designated by Parliament.
Requirements relating to registering, tabling, scrutinising and sunsetting
all Commonwealth legislative instruments are imposed under the Legislative
Instruments Act. Subsection 15GO(6) has been included to assist readers of
the Crimes Act, so that they are aware that the requirements imposed by the
Legislative Instruments Act do not apply to authorities issued under this
section.
15GP Application to appropriate authorising officer
Section 15GP will provide that the principal law enforcement officer for an
authorised operation (that is, as defined at section 15GC, the law
enforcement officer who is responsible for the conduct of the controlled
operation) or any other Australian law enforcement officer acting on behalf
of the principal law enforcement officer, may apply to an appropriate
authorising officer for a variation of an authority to conduct a controlled
operation. 'Appropriate authorising officer' will be defined at section
15GC as an authorising officer (defined at section 15GF) of the original
authorising agency. For example, if the controlled operation was
originally authorised under section 15GI by an ACC authorising officer
(defined at subsection 15GF(4)) that person, and any other ACC authorising
officer, will be an 'appropriate authorising officer'.
Subsection 15GP(1) will provide that an authority may be varied as set out
at subsection 15GO(2), which provides that variations may:
. allow participants to engage in controlled conduct that is additional
to, or different from, the controlled conduct that the original
authorisation allowed them to engage in.
'Controlled conduct' will be defined at new section 15GC as conduct
constituting an offence for which a person would, but for new section
15HA, be criminally responsible. As with the original authorisation
(as set out at new paragraphs 15GK(1)(f) and 15GK(2)(f)) a variation of
this kind will be required to provide different levels of detail for
law enforcement officers and civilian participants.
For civilian participants, the particular 'controlled conduct' in which
the variation is authorising them to participate will be required to be
detailed, whereas for law enforcement participants, the variation is
only required to specify the 'nature' of the controlled conduct in
which the variation authorises them to engage. This ensures that the
behaviour of civilian participants will be tightly controlled, while
allowing more latitude to law enforcement officers to provide greater
operational flexibility.
. provide that participants are no longer authorised to engage in
controlled conduct that the original authorisation allowed them to
engage in
. authorise new people (law enforcement officers, civilians and/or
informants) to participate in the controlled operation, and/or
. extend a controlled operation up to a total duration of three months.
Subsection 15GP(2) will provide that an application cannot be made to an
appropriate authorising officer to vary an authorisation if the variation
would result in the total period of effect of the authority extending
beyond three months. Authorities will be able to be varied to allow a
controlled operation to extend beyond three months, but these variations
will only be able to be made by a nominated member of the AAT (as defined
at section 15GG) acting under Subdivision C of Division 2 of this new Part
IAB of the Crimes Act. The requirement for extensions beyond three months
to be authorised by a nominated AAT member will ensure that these decisions
subject to external, independent scrutiny. While this departs from the
model laws, it accords with the recommendation made by the Standing
Committee on Legal and Constitutional Affairs in its report on the Crimes
Legislation Amendment (National Investigative Powers and Witness
Protection) Bill 2006.
Only formal authorities will be able to be extended. If a controlled
operation that was authorised by an urgent authority needs to be extended,
a new formal application to conduct the controlled operation will need to
be made under new section 15GH.
There will be two types of applications for variations to an authority to
conduct a controlled operation:
A formal variation application will be the standard method for
applying for a variation. A formal variation application will be
required to be in writing and signed by applicant. If the application
is seeking a variation of the period of effect of the authority it
must state the proposed period of the extension, which must not result
in the total duration of the controlled operation exceeding three
months.
An urgent variation application will be the method of applying for a
variation when time is of the essence or when the means of
communication available to applicant are limited. An urgent variation
application may only be made if the applicant has reason to believe
that the delay caused by making a formal variation application may
affect the success of the operation. Urgent variation applications
will only be able to be made orally in person, or by telephone, or by
any other means of communication. If the urgent variation application
is seeking a variation of the period of effect of an authority it will
be required to state the proposed period of the extension, which must
not exceed the lesser of seven days or the period that would result in
the total duration of the controlled operation exceeding three months.
The most important aspect of an urgent variation application is that it
enables information to be presented to an authorising officer without
the need to prepare a formal document, which facilitates the grant of
an authority to within a tight timeframe. However, to ensure
appropriate record keeping and assist oversight mechanisms, subsection
15GP(8) will provide that if an urgent variation application was not
made in writing, the applicant must make a written record of the
application as soon as practicable and provide a copy to the
authorising officer. This will assist the authorising officer, who
will be required under new section 15GR to provide a written record of
any variation of an authority to the principal law enforcement officer,
or the law enforcement who applied for the variation, as soon as
practicable.
Subsection 15GP(5) will provide that a variation application must provide
details of any previous variation applications that have been made in
respect of the controlled operation. This information is important as
subsection 15GP(4) will provide that more than one variation application
may be made in respect of the same authority, but if an urgent variation
was granted as a result of an application, the next variation application
must be a formal variation application.
Subsection 15GP(7) will provide that an authorising officer may ask the
applicant to provide further information, where this is required for a
proper consideration of the variation application.
Agencies will be required, under new subsection 15HM(2) to include, in
their six-monthly report to the Ombudsman and Minister, information on the
number of formal variation applications and urgent variation applications
that were made in the reporting period. This will provide an external
check on the use of variation applications.
15GQ Determination of application to vary authority
Subsection 15GQ will provide that, after considering the application and
any additional information, the 'authorising officer' (defined at section
15GF) may vary the authority to conduct the controlled operation, subject
to, or without, conditions, or refuse to vary the authority.
Subsection 15GQ(2) will provide that the authorising officer must not grant
the requested variation unless he or she is satisfied, on reasonable
grounds, of a number of criteria, equivalent to the criteria in subsection
15GI(2). This will require the authorising officer who is determining the
application for a variation to consider the same range of factors as must
be considered when an authorising officer is considering whether to grant
the original authority to conduct a controlled operation. This will mean
that the variation application process will effectively function as a full
internal review of the controlled operation in question.
Agencies will be required, under new subsection 15HM(2) to include, in
their six-monthly report to the Ombudsman and Minister, information on the
number of formal variations and urgent variations that were granted or
refused in each six-month reporting period. This will provide an external
check on the use of variation powers.
15GR Manner of varying authority
Section 15GR will set out the forms in which an authority for a controlled
operation can be varied by an appropriate authorising officer (defined at
section 15GC), either as a result of a variation application or on his or
her own initiative.
Subsection 15GR(2) will provide for two types of variation:
A formal variation of authority, which must be in writing and signed
by the appropriate authorising officer.
An urgent variation of authority, which may be given orally in person
or by telephone or any other means of communication.
A formal variation of authority will be able to be granted in response to a
formal variation application (as defined at paragraph 15GP(3)(a)) or on the
initiative of the appropriate authorising officer.
An urgent variation of authority will be able to be granted on the
appropriate authorising officer's own initiative, in response to an urgent
application (as defined at paragraph 15GP(3)(b)) or, if the appropriate
authorising officer is satisfied that the delay caused by granting a formal
variation of authority may affect the success of the operation, in response
to a formal variation application. Paragraph 15GP(5)(b) will provide that
the maximum duration of an urgent variation of authority is seven days.
Subsection 15GP(4) will provide that more than one variation application
may be made in respect of the same authority, but if an urgent variation
was granted as a result of an application, the next variation application
must be a formal variation application.
Subsection 15GR(2) will require the authorising officer, as soon as
practicable, to prepare and give to the applicant (or, where the variation
is made on the initiative of the authorising officer, to the principal law
enforcement officer, as defined at section 15GC) a written document that
complies with new section 15GS.
15GS Form of variation of authority
Section 15GS will set out the details that must be included in a variation
of an authority, whether formal or urgent. Subsection 15GS(1) will provide
that a variation of an authority must:
. identify the controlled operation to which the variation relates
. identify the appropriate authorising officer (defined at section 15GC)
varying the authority
. if relevant, identify the person who made the application for the
variation and whether that application was formal or urgent
. state the date and time that the authority was varied, and
. describe the variation, taking into account the restrictions on how an
authority can be varied (which will be set out at new section 15GO).
Subdivision C - Variations of authorities by nominated Tribunal member:
extensions beyond 3 months
Subdivision C of Division 2 of new Part IAB of the Crimes Act will
establish a regime for varying authorities where the variation will result
in the duration of the operation exceeding three months. Such variations
can only be made by a nominated member of the AAT (defined at section 15GG)
on the application of the principal law enforcement officer for an
authorised operation (which will be defined at new section 15GC as the law
enforcement officer who is responsible for the conduct of the controlled
operation) or any other Australian law enforcement officer acting on behalf
of the principal law enforcement officer.
Variations of authorities that will not result in the duration of the
operation exceeding three months will be able to be made, under Subdivision
B of Division 2 of new Part IAB of the Crimes Act, by an 'appropriate
authorising officer', which will be defined at section 15GC, as an
authorising officer (defined at section 15GF) of the original authorising
agency. For example, if the controlled operation was originally authorised
under section 15GI by an ACC authorising officer (defined at subsection
15GF(4)) the authority to conduct the controlled operation may be varied by
that person, or any other ACC authorising officer, provided that the
variation will not extend the total period of the controlled operation
beyond three months.
Variations extending the duration of an operation beyond three months will
be able to be planned and prepared for. Determination of applications for
these variations will provide the nominated AAT member with an opportunity
to review the operation as a whole.
Unlike the position in relation to variations that will be able to be made
by appropriate authorising officers, nominated AAT members will not be able
to vary an authority to conduct a controlled operation on their own
initiative.
15GT Variations of authorities by nominated Tribunal member: extensions
beyond 3 months
Section 15GT will provide that a formal authority to conduct a controlled
operation may be varied by a nominated member of the AAT. A nominated
member of the AAT is the only person who will be able to vary an authority
to extend the period of effect of that authority beyond three months. This
requirement will ensure the external oversight of any decision to extend a
controlled operation beyond this timeframe. The Minister will be able to
nominate AAT members under new section 15GG.
Subsection 15GT(3) will provide that each variation made by a nominated AAT
member must not extend the period of effect of an authority to conduct a
controlled operation for more than three months at a time, or so that the
total duration of the controlled operation (including any extensions
previously granted by an appropriate authorising officer under section 15GQ
or by a nominated AAT member under section 15GV) would exceed 24 months.
Subsection 15GT(4) will provide that a nominated AAT member may only vary
an authority to extend the period of operation of a controlled operation in
the two weeks prior to the end of the period of effect of the authority.
This will ensure that AAT member is considering the most recent events in
the controlled operation before making the decision to extend the
operation.
Agencies will be required, under new subsection 15HM(2), to include, in
their six-monthly report to the Ombudsman and Minister, information on the
number of formal variation applications and urgent variation applications
that were made in the reporting period. This will provide an external
check on the use of variation applications.
15GU Application to nominated Tribunal member
Section 15GU will provide that the principal law enforcement officer for an
authorised operation (that is, as defined at section 15GC, the law
enforcement officer who is responsible for the conduct of the controlled
operation) or any other Australian law enforcement officer acting on behalf
of the principal law enforcement officer, may apply to a nominated AAT
member (defined at section 15GG) to vary an authority to conduct a
controlled operation to extend the period of effect of that authority
beyond three months.
Subsection 15GU(2) will provide that an application cannot be made to
extend the period of effect of an authority to conduct a controlled
operation if the extensions would result in the total duration of the
controlled operation (including any extension previously granted by an
appropriate authorising officer under section 15GQ or by a nominated AAT
member under section 15GV) exceeding 24 months.
Subsection 15GU(3) will set out the two types of applications that may be
made to a nominated AAT member for variations to an authority to conduct a
controlled operation:
A formal variation application will be the standard method for
applying for a variation. A formal variation application will be
required to be in writing and signed by the person who is applying for
the variation. It will be required to state the proposed extension to
the period of effect of the authority, which must not exceed three
months.
An urgent variation application will be the method of applying for a
variation when time is of the essence or when the means of
communication available to the applicant are limited. An urgent
variation application will only be able to be made if the applicant
has reason to believe that the delay caused by making a formal
variation application may affect the success of the operation. An
urgent variation application will be able to be made orally in person,
or by telephone, or by any other means of communication. It will be
required to state the proposed extension to the period of effect of an
authority, which must not exceed seven days.
Subsection 15GU(5) will provide that a variation application must provide
details of any previous variation applications that have been made in
respect of the controlled operation. This information is important as
subsection 15GU(4) will provide that more than one variation application
may be made in respect of the same authority, but if an urgent variation
was granted as a result of an application, the next variation application
must be a formal variation application.
The most important aspect of an urgent variation application is that it
enables information to be presented to a nominated AAT member without the
need to prepare a formal document, which facilitates the grant of a
variation to an authority within a tight timeframe. However, to ensure
appropriate record keeping and assist oversight mechanisms, subsection
15GU(7) will provide that if an urgent variation application was not made
in writing, the applicant must make a written record of the application as
soon as practicable and provide a copy to the nominated AAT member. This
will assist the nominated AAT member, who will be required under new
section 15GW to provide a written record of any variation of an authority
to the applicant as soon as practicable.
Subsection 15GU(6) will provide that the nominated AAT member may ask the
applicant to provide further information, where this is required for a
proper consideration of the variation application.
Agencies will be required, under new subsection 15HM(2) to include, in
their six-monthly report to the Ombudsman and Minister, information on the
number of formal variation applications and urgent variation applications
that were made in the reporting period. This will provide an external
check on the use of variation applications.
15GV Determination of application
Section 15GV will provide that, after considering the application and any
additional information, the nominated AAT member (defined at section 15GG)
may vary the authority to conduct the controlled operation, subject to, or
without, conditions, or refuse to vary the authority.
Subsection 15GV(2) will provide that the nominated AAT member must not
grant the requested variation unless he or she is satisfied, on reasonable
grounds, of a number of specified criteria. These criteria reflect the
criteria relevant to the determination of an initial application for an
authority under new section 15GI. As a request for variation requires the
nominated AAT member to consider the same range of factors as must be
considered when an authorising officer is considering whether to grant an
original authority, this process effectively functions as a full external
review of the controlled operation if an application is made to continue
the operation beyond three months, and at least every three months
thereafter if further extensions are sought.
Agencies will be required, under new subsection 15HM(2) to include, in
their six-monthly report to the Ombudsman and Minister, information on the
number of formal variations and urgent variations that were granted or
refused in each six-month reporting period. This will provide an external
check on the use of variation powers.
Subsection 15GV(3) will clarify that a variation of an authority to conduct
a controlled operation granted under the section is not a legislative
instrument. A 'legislative instrument' is defined at section 5 of the
Legislative Instruments Act. In general terms, a legislative instrument is
a written document that is of a legislative character and that is made in
the exercise of a power designated by Parliament. Requirements relating to
registering, tabling, scrutinising and sunsetting all Commonwealth
legislative instruments are imposed under the Legislative Instruments Act.
Subsection 15GV(3) will assist readers of the Crimes Act, so that they are
aware that the requirements imposed by the Legislative Instruments Act do
not apply to variations of authorities issued under this section.
15GW Manner of varying formal authority
Section 15GW will set out the forms in which an authority for a controlled
operation can be varied by a nominated AAT member (as defined at section
15GG).
Subsection 15GW(1) will provide for two types of variation:
A formal variation of authority, which must be in writing and
signed by the authorising officer.
An urgent variation of authority, which may be given orally in person
or by telephone or any other means of communication.
A formal variation of authority will only be able to be granted in response
to a formal variation application (as defined at paragraph 15GU(3)(a)). An
urgent variation of authority will be able to be granted in response to an
urgent variation application (as defined at paragraph 15GU(3)(b)) or, if a
nominated AAT member is satisfied that the delay caused by granting a
formal variation of authority may affect the success of the operation, in
response to a formal variation application.
Subsection 15GW(2) will require the nominated AAT member, as soon as
practicable, to prepare and give to the applicant a written document that
complies with new section 15GX.
15GX Form of variation of formal authority
Section 15GX will set out the details that must be included in a variation
of a formal authority by a nominated AAT member, whether formal or urgent.
Subsection 15GX(1) will provide that a variation of an authority must:
. identify the controlled operation to which the variation relates
. identify the nominated AAT member (defined at section 15GG) varying the
authority
. identify the person who made the application for the variation and
whether that application was formal or urgent
. state the date and time that the authority was varied, and
. state the period by which the authority was extended, taking into
account the restrictions on the length of each extension, and on the
total duration of the controlled operation (which will be set out at
new section 15GT).
Subdivision D - Other matters
15GY Cancellation of authorities
Section 15GY will provide for the cancellation of authorities.
Subsection 15GY(1) will provide that an appropriate authorising officer (as
defined at section 15GC) may cancel an authority at any time and for any
reason.
Subsection 15GY(2) will provide that an appropriate authorising officer may
also cancel an authority at the request of the principal law enforcement
officer (who will be defined at section 15GC as the law enforcement officer
who is responsible for the conduct of the controlled operation).
Subsection 15GY(3) will provide that a cancellation of an authority to
conduct a controlled operation takes effect from the time the cancellation
order is made, or at a later time specified in the order.
15GZ Effect of authorities
Section 15GZ will describe the effect of an authority to conduct a
controlled operation.
Subsection 15GZ(1) will provide that an authority authorises a participant
(whether a law enforcement officer or a civilian, including an informant)
to engage in the controlled conduct specified in the authority, or a
variation to such an authority, issued under new sections 15GI or 15GO.
'Controlled conduct' is defined at section 15GC as conduct constituting an
offence for which a person would, but for new section 15HA, be criminally
responsible.
Subsection 15GZ(1) will be consistent with new paragraphs 15GK(1)(f),
15GK(2)(f) and subsection 15GO(2), which require the authority for a
controlled operation, or a variation to such an authority, to identify the
nature of the controlled conduct which may be engaged in by the
participants during the controlled operation.
Subsection 15GZ(2) will clarify that a participant in a controlled
operation who has been authorised to engage in controlled conduct is
authorised to engage in that conduct for the period of effect of the
authority to conduct the controlled operation unless:
. the authority states that the person is authorised to engage in the
controlled conduct for a shorter period
. the authority is varied (under new section 15GQ) to state that the
person is no longer authorised to participate in controlled conduct for
the purpose of the controlled operation, or
. the authority is cancelled (under new section 15GY) before the expiry
of the period of effect specified in the authority.
Subsection 15GZ(2) will specify that the authority to engage in controlled
conduct will not be able to be delegated to any other person.
15H Defect in authority
Section 15H will provide that:
. an application for an authority to conduct a controlled operation
(under new section 15GH)
. an application for a variation to an authority (under new sections 15GP
or 15GU)
. an authority (under new section 15GI), or
. a variation of an authority (under new sections 15GQ or 15GV)
are not invalidated by defects, unless the defect materially affects the
application, the authority or the variation of an authority.
This provision will recognise that it would be inefficient and
unreasonable if such documents were invalidated by minor matters that
relate to form or process.
Division 3-Protection from criminal responsibility and related provisions
Division 3 of new Part IAB of the Crimes Act will be the critical component
of the new controlled operations regime, as it will provide protection from
criminal liability for participants (law enforcement officers and
civilians, including informants) in controlled operations.
Subdivision A of new Division 3 will provide protection from criminal
liability for participants in controlled operations authorised under this
new Part IAB of the Crimes Act.
Subdivision B will give effect to the mutual recognition provisions in the
model laws and provide protection from criminal liability for participants
in controlled operations authorised under a corresponding controlled
operations law of a State or Territory.
Subdivision A - Controlled operations under this Part
15HA Protection from criminal responsibility for controlled conduct during
controlled operations
Section 15HA will protect a participant in a controlled operation (who may
be a law enforcement officer or a civilian, including an informant) from
criminal responsibility for controlled conduct that he or she is authorised
(under sections 15GI, 15GO or 15GQ) to engage in during a controlled
operation. 'Controlled conduct' will be defined at new section 15GC as
conduct constituting an offence for which a person would, but for this
section, be criminally responsible. For example, in a controlled operation
investigating a drug trafficking syndicate, a participant may be authorised
to purchase illicit drugs to gather evidence of drug trafficking.
The effect of this section will be that, while the controlled conduct will
remain unlawful in nature, a participant who meets the requirements of the
section will not be criminally responsible for the offence.
Subsection 15HA will provide that this protection from criminal
responsibility only applies if:
. the participant engages in the conduct in accordance with the authority
to conduct the controlled operation. New paragraphs 15GK(1)(f),
15GK(2)(f) and 15GO(2)(b) will provide that when a controlled operation
is authorised, or varied, the nature of the controlled conduct in which
participants are authorised to engage must be specified. Those
provisions require different levels of detail for law enforcement
officers and civilian participants. For civilian participants, the
particular 'controlled conduct' in which the authority or variation is
authorising them to participate must be detailed, whereas for law
enforcement participants, the authority or variation is only required
to specify the 'nature' of the controlled conduct in which they are
authorised to engage. This will ensure that the behaviour of civilian
participants is tightly controlled, while allowing more latitude to law
enforcement officers to provide address operational contingencies as
they arise.
. the participant is authorised under new sections 15GK or 15GO to engage
in that conduct
. the conduct does not involve the participant intentionally inducing
another person to commit an offence that the person would not otherwise
have intended to commit. New sections 15GI and 15GQ will provide that
an authority to conduct a controlled operation, or a variation to a
controlled operation, must not be granted unless the authorising
officer (defined at section 15GF) is satisfied on reasonable grounds
that the controlled operation will not be conducted in such a way that
a person will be induced to commit an offence in this way
. the participant does not engage in conduct that is likely to cause the
death of, or serious injury to, any person, or involve the commission
of a sexual offence against any person. New sections 15GI and 15GQ
will provide that an authority to conduct a controlled operation, or a
variation to a controlled operation, must not be granted unless the
authorising officer (defined at section 15GF) is satisfied on
reasonable grounds that any conduct involved in the controlled
operation will not result in these outcomes or offending, and
. if the participant is a civilian participant, he or she acts in
accordance with the instructions of a law enforcement officer.
This section will apply to offences against Commonwealth, State or
Territory law.
This provision will extend the protection from criminal liability that is
currently provided to controlled operation participants under existing
section 15I of the Crimes Act by providing protection from criminal
responsibility to informants. This will reflect the model laws.
It is considered necessary to extend protection from criminal liability to
informants as in some circumstances the participation of informants will be
crucial to the success of a controlled operation, such as where informants
would be able to perform actions in a controlled operation that law
enforcement officers, or other civilians, could not undertake without
compromising the success of the operation.
As an additional safeguard, paragraph 15GI(2)(h) will limit the use of
informants in controlled operations, as it will provide that the
authorising officer must be satisfied that the role intended for the
civilian participant (which includes an informant) could not be adequately
performed by a law enforcement officer.
The new controlled operation regime will not provide immunity for past
criminal offences that informants may have committed. Informants will only
receive protection from liability for conduct that they have been
specifically authorised to undertake as part of a controlled operation.
15HB Indemnification of participants against civil liability
Section 15HB will provide that the Commonwealth must indemnify a
participant in an authorised controlled operation (who may be a law
enforcement officer or a civilian, including an informant) against any
civil liability incurred because of conduct that the participant engages
in, provided the following requirements are met:
. the conduct is in the course of, and for the purposes of, the
controlled operation and in accordance with the authority to conduct
the controlled operation
. the participant is authorised under proposed sections 15GK or 15GO to
engage in that conduct
. the conduct does not involve the participant intentionally inducing
another person to commit an offence that the person would not otherwise
have intended to commit. New sections 15GI and 15GQ will provide that
an authority to conduct a controlled operation, or a variation to a
controlled operation, must not be granted unless the authorising
officer (defined at section 15GF) is satisfied on reasonable grounds
that the controlled operation will not be conducted in such a way that
a person will be induced to commit an offence in this way
. the participant does not engage in conduct that is likely to cause the
death of, or serious injury to, any person or involve the commission of
a sexual offence against any person. New sections 15GI and 15GQ will
provide that an authority to conduct a controlled operation, or a
variation to a controlled operation, must not be granted unless the
authorising officer (defined at section 15GF) is satisfied on
reasonable grounds that any conduct involved in the controlled
operation will not result in these outcomes or offending
. if the participant is a civilian participant, he or she acts in
accordance with the instructions of a law enforcement officer, and
. any further requirements specified in the regulations.
As with the extension of protection of informants from criminal liability
under new section 15HA, this provision will extend the indemnity from civil
liability that is currently provided to controlled operation participants
by existing section 15IA of the Crimes Act, by indemnifying informants.
This will reflect the model laws.
15HC Effect of sections 15HA and 15HB on other laws relating to criminal
investigation
Section 15HC will provide that participants in controlled operations (who
may be law enforcement officers or civilians, including informants) will
not be protected from criminal or civil liability (under new sections 15HA
and 15HB) if they undertake conduct which could be authorised under other
laws relating to criminal investigation. This ensures that the provisions
in this new Part IAB of the Crimes Act cannot be used as substitutes for
other laws.
For example, it is unlawful to forcibly enter a person's home and take
private property. However, in certain circumstances this can be authorised
by a search warrant. Section 15HC will ensure that the new controlled
operations regime cannot be used to authorise such conduct, rather than the
relevant search warrant legislation.
This provision covers conduct relating to:
. the arrest or detention of individuals
. searches of individuals
. entry onto, or searches or inspection of, premises
. searches, inspections or seizures of other property
. forensic procedures
. electronic surveillance devices or telecommunications interception
. identification procedures
. the acquisition or use of assumed identities, and
. any other matter concerning powers of criminal investigation.
15HD Effect of being unaware of variation or cancellation of authority
An authority to conduct a controlled operation will be able to be varied
under new sections 15GQ or 15GV, or cancelled under new section 15GY. New
section 15HD provides that if an authority is varied or cancelled, but a
participant in the controlled operation (who may be a law enforcement
officer or a civilian, including an informant) is unaware of the variation
or cancellation (and is not reckless about the existence of a variation or
cancellation), then he or she is still protected under new sections 15HA
and 15HB, as if the variation or cancellation had not been made.
This provision will also ensure that evidence collected by the participant
will continue to be protected against exclusion (under new section 15GA)
for as long as the participant is unaware of the variation or cancellation
and is not reckless as to the existence of the variation or cancellation.
Subsection 15HD(3) will provide that a person is reckless about the
existence of a variation or cancellation if he or she is aware of a
substantial risk that the authority to conduct the controlled operation has
been cancelled or varied and, taking into account the circumstances known
to the person, it is unjustifiable for him or her to take the risk that the
authority has not been cancelled or varied.
This provision will be narrower than the current Crimes Act provision
(existing section 15PA) as it does not provide protection for a participant
who is unaware that the authorisation to conduct a controlled operation has
expired at the end of the period of three months after the day on which it
was given. It was considered that this existing protection was too broad
and could potentially excuse poor operational practices.
It is incumbent on participants in a controlled operation to be aware of
the start and end dates of the initial authority to conduct the operation.
However, as decisions relating to authorities can be made without the
knowledge of participants, it is necessary to include limited protection
for activities that are undertaken after a cancellation or variation,
especially in situations where it may be difficult for the participant to
contact the principal law enforcement officer.
This provision will require participants to take necessary steps to
determine whether a cancellation or variation has occurred. This position
is consistent with the model laws.
15HE Protection from criminal responsibility for certain ancillary conduct
Section 15HE will provide protection from criminal responsibility for a
person who is connected with the controlled operation but is not
necessarily an authorised participant in the operation, if that person has
a belief that the activities in which they are engaging are ancillary, or
related, to the authorised controlled operation. Although section 15HA
will provide that participants will not be criminally responsible for
authorised controlled conduct, that conduct remains unlawful in nature, so
a person who assists or encourages another person to engage in that
unlawful activity may be committing an offence such as aiding and abetting,
or conspiracy.
For example, it might be argued that other law enforcement officers
involved in authorising or overseeing a controlled operation, such as an
authorising officer (defined at section 15GF) or a principal law
enforcement officer (defined at section 15GC) have counselled, procured,
aided or abetted the commission of an offence, or have conspired to commit
an offence, thereby committing an offence themselves.
This provision is necessary to ensure that a person who engages in this
'ancillary conduct' will not be criminally responsible if he or she
believed that the 'related controlled conduct' was authorised for an
operation.
This section will apply to offences against Commonwealth, State or
Territory law.
15HF Compensation for property loss or serious damage
Section 15HF will provide for compensation to be paid to a person who
suffers loss of, or serious damage to, property, or personal injury, in the
course of, or as a direct result of, an authorised controlled operation.
This compensation is not accessible by a person who was involved in the
commission of an offence (other than a person who is undertaking
'controlled conduct', as defined at section 15GC) or who is a law
enforcement participant. These classes of people may have recourse to
compensation through other avenues including court action, but cannot make
a claim under this provision.
This section is intended to facilitate claims for compensation by people
who suffer property loss, serious damage to property, or personal injury
because of a controlled operation. Where a person can show that their loss
is a direct result of an authorised operation, the Commonwealth is liable
to pay compensation. An example of this is where a law enforcement
participant engaged in a controlled operation loses control of a car he is
driving and hits a member of the public walking on the footpath. The
amount of compensation will be as agreed between the claimant and the
Commonwealth, or if an agreement cannot be reached, an amount determined by
a court.
This provision will be broader than the model laws as it extends
compensation to persons who suffer personal injury as well as property
damage. This is consistent with the current position, as existing section
15ID of the Crimes Act provides for the compensation of people who suffer
personal injury or loss as a result of a controlled operation. Inclusion
of personal injury in the new regime makes plain the legal position that
would exist in any event, that where the Commonwealth would be tortiously
liable for personal injury arising from a controlled operation, it is to
pay the compensation for which it is liable at law, or otherwise a settled
amount. The provision is not intended to give rise to a cause of action,
or to render the Commonwealth liable in circumstances where it would not
otherwise be liable.
This provision will clarify that only actions that are directly connected
to the controlled operation would be compensable. Compensation payments
required to be paid under this section would generally come from the
operating budget of law enforcement agencies conducting the controlled
operation.
15HG Notification requirements
Section 15HG will require a principal law enforcement officer (defined at
section 15GC as the law enforcement officer who is responsible for the
conduct of the controlled operation) to report any loss or serious damage
to property, or injury to a person, occurring in the course of, or as a
direct result of, an authorised controlled operation to the chief officer
of the law enforcement agency (defined at section 15GC) as soon as
practicable.
Given the covert nature of controlled operations, a person who suffers
injury, or property loss or damage, is unlikely to know that the person who
caused the injury, loss or damage was a law enforcement officer or an
authorised participant in a controlled operation, and therefore that the
loss or damage was the direct result of a controlled operation. In
particular, as new section 15HF will permit a claim of compensation in
these circumstances, it is important that a person is notified as soon as
possible that the injury, damage or loss was a result of a controlled
operation. Subsection 15HG(2) will place this notification obligation on
the chief officer of the relevant agency.
However, the chief officer will not be required to notify the injured
person or property owner until he or she is satisfied that notification
would not:
. compromise or hinder the controlled operation or any related
investigation (paragraph 15HG(4)(a))
. compromise the identity of a participant in the controlled operation
(paragraph 15HG(4)(b))
. endanger the life or safety of any person (paragraph 15HG(4)(c))
. prejudice any legal proceeding (paragraph 15HG(4)(d)), or
. otherwise be contrary to the public interest (paragraph 15HG(4)(e)).
Subsection 15HG(5) will allow the chief officer to delegate his or her
functions under this section to certain other officers of the agency.
Subdivision B-Controlled operations under a corresponding State controlled
operations law
Subdivision B of Division 3 of new Part IAB of the Crimes Act will give
effect to the mutual recognition provisions in the model laws and provide
protection from criminal liability for participants in controlled
operations authorised under a corresponding controlled operations law of a
State or Territory.
15HH Protection from criminal responsibility for conduct under a
corresponding State controlled operations law
Section 15HH will provide equivalent protection from criminal liability for
participants (whether law enforcement officers or civilians) in controlled
operations authorised under a corresponding State controlled operations
law, as will be provided to participants in a Commonwealth controlled
operation by section 15HA. 'Corresponding State controlled operations law'
will be defined in new section 15GC to mean a law of, or provisions of a
law of, a State or Territory prescribed by the regulations to be a
corresponding State controlled operations law.
While the State or Territory laws would provide protection to participants
for liability for State or Territory offences, those laws cannot provide
protection from liability for Commonwealth offences.
Consistent with the mutual recognition component of the model laws, this
section will provide this protection. It will also ensure that State and
Territory agencies are not required to seek simultaneous Commonwealth
approval for their controlled operations.
The effect of this section will be that, while the relevant conduct will
remain unlawful in nature, a participant who meets the requirements of the
section will not be criminally responsible for the offence.
The limitations on the protection of participants from criminal liability
will be the same as those that will be set out in new section 15HA.
15HI Effect of section 15HH on other laws relating to criminal
investigation
Section 15HI will be the equivalent, for controlled operations authorised
under a corresponding State controlled operations law, of section 15HC,
which applies to controlled operations authorised under this Part of the
Crimes Act. 'Corresponding State controlled operations law' will be
defined in new section 15GC to mean a law of, or provisions of a law of, a
State or Territory prescribed by the regulations to be a corresponding
State controlled operations law.
Section 15HI will provide that participants in controlled operations (who
may be law enforcement officers or civilians, including informants) will
not be protected from criminal liability under new section 15HH if they
undertake conduct which could be authorised under other laws relating to
criminal investigation. This ensures that section 15HH will not be used as
a substitute for other laws.
For example, it is unlawful to forcibly enter a person's home and take
private property. However, in certain circumstances this can be authorised
by a search warrant. Section 15HI will ensure that the new controlled
operations regime cannot be used to authorise such conduct, rather than the
relevant search warrant legislation.
The conduct covered by this provision will be the same as that covered
under section 15HC.
15HJ Protection from criminal responsibility for certain ancillary conduct
Section 15HJ will be the equivalent, for controlled operations authorised
under a corresponding State controlled operations law, of section 15HE,
which applies to controlled operations authorised under this Part of the
Crimes Act. 'Corresponding State controlled operations law' will be
defined in new section 15GC to mean a law of, or provisions of a law of, a
State or Territory prescribed by the regulations to be a corresponding
State controlled operations law.
This provision will provide protection from criminal liability for
ancillary conduct (within the meaning of the Commonwealth Criminal Code)
that relates to conduct that will be protected by new section 15HH.
This provision will only provide protection from criminal liability for
Commonwealth ancillary offences. The relevant State or Territory law will
provide protection from criminal liability for State or Territory ancillary
offences.
Subdivision B of Division 3 of new Part IAB of the Crimes Act does not
provide indemnity against civil liability arising out of any conduct
engaged in under a State or Territory controlled operation. That indemnity
would need to be provided by the relevant State or Territory.
Division 4-Compliance and Monitoring
Division 4 of new Part IAB of the Crimes Act will deal with the
unauthorised disclosure of information relating to a controlled operation
and establish recordkeeping, reporting and oversight obligations for the
new controlled operation regime.
The purpose of this independent oversight process is to increase
accountability and transparency, and to maintain public confidence in the
conduct of controlled operations.
15HK Unauthorised disclosure of information
Section 15HK will create an offence of disclosing information relating to a
controlled operation. A person will be guilty of this offence if he or she
intentionally discloses any relevant information and knows that, or is
reckless as to whether, the information relates to an authorised controlled
operation.
However, the disclosure of information relating to a controlled operation
will not be an offence if the disclosure was made:
. in connection with the administration or execution of this Part IAB of
the Crimes Act
. for the purposes of any legal proceeding arising out of, or otherwise
related to this Part, or of any report of any such proceedings
. to a legal practitioner for the purpose of obtaining legal advice in
relation to the controlled operation
. in accordance with any requirement imposed by law
. in connection with the performance of functions or duties, or the
exercise of powers, of a law enforcement agency, or
. to the Ombudsman or ACLEI, about potential misconduct during controlled
operations.
As is the case with the model laws, the person who disclosed the
information will need to prove that these factors exist. This is
consistent with the Commonwealth criminal law policy that, where a matter
is peculiarly within the knowledge of the defendant, and it is
significantly more difficult for the prosecution to disprove that matter
than for the defendant to establish it, it is appropriate to require the
defendant to adduce evidence on the matter. In this case, the 'standard
evidential burden' defence is used, making the defendant bear the burden of
adducing, or pointing to, evidence that suggests a reasonable possibility
that the defence is made out. If this is done, the prosecution must refute
the defence beyond reasonable doubt.
The maximum penalty for this offence will be two years imprisonment. This
offence will help protect participants in controlled operations and ensure
the integrity of investigations.
Section 15HL: Unauthorised disclosure of information-endangering safety,
etc.
Section 15HL will create an aggravated form of the offence that will be
created by new section 15HK. The offence created by this section will be
an indictable offence that will be committed if a person discloses
information relating to a controlled operation and he or she:
. intends that the disclosure of the information will endanger the health
or safety of any person or prejudice the effective conduct of a
controlled operation, or
. is reckless as to whether the disclosure of the information could
endanger the health or safety of any person or prejudice the effective
conduct of a controlled operation.
As will be the case under new section 15HK, the disclosure will not be an
offence if the disclosure was made:
. in connection with the administration or execution of this Part IAB of
the Crimes Act
. for the purposes of any legal proceeding arising out of, or otherwise
related to this Part, or of any report of any such proceedings
. to a legal practitioner for the purpose of obtaining legal advice in
relation to the controlled operation
. in accordance with any requirement imposed by law
. in connection with the performance of functions or duties, or the
exercise of powers, of a law enforcement agency, or
. to the Ombudsman or ACLEI, about potential misconduct during controlled
operations.
As will be the case with the non-aggravated offence under new section 15HK,
the person who disclosed the information will need to prove that these
factors exist. This is consistent with the Commonwealth criminal law
policy that, where a matter is peculiarly within the knowledge of the
defendant, and it is significantly more difficult for the prosecution to
disprove that matter than for the defendant to establish it, it is
appropriate to require the defendant to adduce evidence on the matter. In
this case, the 'standard evidential burden' defence is used, making the
defendant bear the burden of adducing, or pointing to, evidence that
suggests a reasonable possibility that the defence is made out. If this is
done, the prosecution must refute the defence beyond reasonable doubt.
The maximum penalty for this offence will be ten years imprisonment.
15HM Chief Officers' 6 monthly reports to Ombudsman and Minister
Subsection 15HM(1) will provide that the chief officers of the authorising
agencies (that is, the AFP, the ACC and ACLEI) must report, every six
months, to the Commonwealth Ombudsman and the Minister. The report must
include details of all controlled operations authorised by the agency
during the previous six months. This is consistent with a recommendation
made by the Standing Committee on Legal and Constitutional Affairs in its
report on the Crimes Legislation Amendment (National Investigative Powers
and Witness Protection) Bill 2006.
Subsection 15HM(2) will require the following information to be included in
each six monthly report:
. the number of formal and urgent authorities applied for, granted and
refused and the number of variations applied for, granted and refused,
including the dates of those applications and decisions (paragraphs
15HM(2)(a)-(f) and (j)-(k))
. the number of formal and urgent variations of authorities by nominated
AAT members applied for, made and refused, including the dates of those
applications and decisions (paragraphs 15HM(2)(g)-(h) and (l)-(m))
. the nature of the criminal activities against which the authorised
operations were directed (paragraph 15HM(2)(n))
. the identities of the persons targeted (paragraph 15HM(2)(o))
. the nature of controlled conduct engaged in (paragraph 15HM(2)(p))
. details about the involvement of illicit goods in the operation
(paragraph 15HM(2)(q))
. details of any loss of or serious damage to property or personal injury
(paragraphs 15HM(2)(r)-(s)), and
. the number of expired or cancelled authorities (paragraph 15HM(2)(t)).
The final five categories of information set out above will not need to be
included where the operation has not been completed. These particulars
must be included in the report for the period of six months in which the
operation is completed.
Subsection 15HM(2) will also require the report to contain the following
details of controlled operations occurring during the six month period, by
reference number:
. date commenced (paragraph 15HM(2)(i))
. date of formal or urgent variation (paragraph 15HM(2)(j))
. date of formal or urgent extension (paragraphs 15HM(2)(j) and (l)), and
. date ceased or expiry date if the operation has not ceased (paragraph
15HM(2)(i)).
These details will enable the Ombudsman and the Minister to effectively
follow operations from report to report.
Subsection 15HM(3) will empower the Ombudsman to require the chief officer
of each agency to furnish additional information on any authorised
operation contained in the report.
15HN Chief officers' annual report to Minister and Ombudsman
Section 15HN will require the chief officer of each authorising agency
(that is, the AFP, the ACC or ACLEI) to prepare an annual report to the
Minister and the Ombudsman, as soon as practicable after 30 June each year,
on the work and activities of the agency under this new Part IAB of the
Crimes Act. The report will be required to contain the details set out at
subsection 15HM(2) for all the controlled operations authorised by the
agency during the previous 12 months.
Subsection 15HN(4) will provide that the report must not disclose any
information that identifies, or is likely to identify, any person involved
in the controlled operation. This requirement is designed to protect
innocent third parties who provide assistance to a controlled operation and
who, if mentioned in the report, may be incorrectly presumed to be involved
in criminal activity.
Subsection 15HN(5) will provide that the report is not required to disclose
any information that gives particulars of an authorised operation that is
not yet completed. Those particulars must instead be included in the
report for the year in which the operation is completed.
Subsection 15HN(3) will require the Minister to table the report in both
Houses of the Australian Parliament within 15 days of receiving the report.
However, subsection 15HN(2) will require the chief officer of each
authorising agency to advise the Minister of any information that should be
excluded from the report before it is tabled in Parliament, because it
could reasonably be expected to endanger a person's safety, prejudice an
investigation or prosecution, compromise operational activities or
methodologies, or be contrary to the public interest for any other reason.
If the Minister is satisfied that the information should be excluded on any
of those grounds, he or she must exclude the information before tabling the
report in Parliament.
Subsection 15HN(6) will provide that, if the report refers to the
activities of the ACC under a corresponding State or Territory controlled
operation law (as defined at section 15GC) the Minister must send a copy of
the tabled report to the State or Territory Minister with responsibility
for the corresponding law.
15HO Annual report by Ombudsman
Section 15HO will require the Commonwealth Ombudsman to prepare an annual
report, as soon as practicable after 30 June each year, on the work and
activities of the Ombudsman under this new Part IAB of the Crimes Act. The
Commonwealth Ombudsman will also be required to prepare a separate annual
report on its activities in relation to controlled operations conducted by
the ACC under corresponding State controlled operations laws (as defined at
section 15GC).
The Ombudsman's function under this Part of the Crimes Act will be to
ensure that authorising agencies (that is, the AFP, the ACC and ACLEI) are
accountable for the conduct of controlled operations and comply with the
requirements of the legislation. The Ombudsman's powers are exercised
independently and with sensitivity to police operational security and other
operational matters.
The Ombudsman must give a copy of the reports required under this section
to the Minister and to the chief officer of the law enforcement agency (as
defined at section 15GC) to which the report relates.
Subsection 15HO(2) will provide that the report must not include
information that could reasonably be expected to endanger a person's
safety, prejudice an investigation or prosecution, or compromise
operational activities or methodologies.
Subsection 15HO(4) will provide that the report must include comments on
the comprehensiveness and adequacy of the chief officer's six-monthly and
annual reports provided under new sections 15HM and 15HN.
Subsection 15HO(5) will provide that the report must not disclose any
information that identifies, or is likely to identify, any person involved
in the controlled operation. This requirement is designed to protect
innocent third parties who provide assistance to a controlled operation and
who, if mentioned in the report, may be incorrectly presumed to be involved
in criminal activity.
Subsection 15HO(6) will provide that the report is not required to disclose
any information that gives particulars of an authorised operation that is
not yet completed. Those particulars must instead be included in the
report for the year in which the operation is completed.
Subsection 15HO(3) will require the Minister to table the report in
Parliament within 15 sitting days of receiving the report.
Subsection 15HO(7) will provide that, if the report refers to the
activities of the ACC under a corresponding State controlled operations law
(as defined at section 15GC) the Minister must send a copy of the tabled
report to the State or Territory Minister with responsibility for the
corresponding law.
15HP Keeping documents connected with authorised operations
Section 15HP will set out a list of documents that must be kept by the
chief officer of each authorising agency (that is, the AFP, ACC and ACLEI).
These documents will include:
. controlled operations applications, authorities and variations, whether
formal or urgent (paragraphs 15HP(a)-(i)), and
. cancellations of authorities (paragraph 15HP(j)).
These documents will form the basis of the six-monthly, and annual,
reports that the chief officer of each authorising agency will be
required to submit to the Ombudsman and the Minister under new sections
15HM and 15HN. They will also assist the Ombudsman to assess the
agency's compliance with the requirements of this new Part of the
Crimes Act.
15HQ General register
Section 15HQ will oblige the chief officer of each authorising agency (that
is, the AFP, ACC and ACLEI) to ensure that a general register is kept of
all controlled operations applications and authorities.
Subsection 15HQ(2) will specify the information that must be recorded in
the register. This information will create a detailed profile of each
authority, including critical factors such as:
. when the authority was issued (paragraph 15HQ(2)(b))
. whether (and when) it has been varied (paragraph 15HQ(2)(c))
. the offences targeted by each operation (subparagraph 15HQ(2)(b)(iv))
. the duration of the operation (subparagraph 15HQ(2)(b)(v))
. the identity (whether a true identity, an assumed identity, or a code
name or number) of each participant in the operation (subparagraph
15HQ(2)(b)(vi))
. details of any illicit goods involved in the controlled operation
(subparagraph 15HQ(2)(b)(xi)), and
. details of any loss of, or damage to, property or any personal injury
(subparagraphs 15HQ(2)(b)(xii)-(xiii)).
This provision will recognise the importance of keeping appropriate records
to facilitate proper accountability and oversight of controlled operations.
This will greatly assist the Ombudsman in its oversight role.
Subsection 15HQ(3) will clarify that a controlled operations register is
not a legislative instrument. A 'legislative instrument' is defined at
section 5 of the Legislative Instruments Act. In general terms, a
legislative instrument is a written document that is of a legislative
character and that is made in the exercise of a power designated by
Parliament. Requirements relating to registering, tabling, scrutinising
and sunsetting all Commonwealth legislative instruments are imposed under
the Legislative Instruments Act. Subsection 15HQ(3) will assist readers of
the Crimes Act, so that they are aware that the requirements imposed by the
Legislative Instruments Act do not apply to the register established under
this section.
15HR Appointment of inspecting officers
Section 15HR will allow the Ombudsman to appoint members of the Ombudsman's
staff to be inspecting officers for the purposes of this new Part IAB of
the Crimes Act. An appointment must be in writing.
15HS Inspection of records by the Ombudsman
Section 15HS will require the Commonwealth Ombudsman to inspect the records
kept by each authorising agency (that is, the AFP, the ACC and ACLEI) to
determine the agency's compliance with the requirements of this new Part
IAB of the Crimes Act.
Under subsection 15HS(2), the Ombudsman will also have responsibility for
overseeing the ACC's exercise of functions and powers conferred under
corresponding State or Territory controlled operations laws (as defined at
section 15GC), if the State or Territory law does not provide for oversight
of the ACC by a State or Territory body, such as the NSW Ombudsman.
Subsection 15HS(3) will set out the powers of the Ombudsman in relation to
the inspection of an authorising agency's records. This provision will
specify that the Ombudsman may enter AFP, ACC or ACLEI premises at any
reasonable time after notifying the chief officer of that agency (as
defined at section 15GC). The Ombudsman will then be entitled to full and
free access at all reasonable times to all relevant records of these
agencies, and may make copies of those records. The Ombudsman will also
have the power to require a member of staff of the agency to provide any
information relevant to the inspection that is in their possession or to
which the member has access.
Subsection 15HS(4) will provide that the chief officer of the relevant
agency is obliged to ensure that members of the agency's staff provide the
Ombudsman with any assistance that the Ombudsman reasonably requires to
enable it to perform its functions.
Subsection 15HS(5) will provide that the Ombudsman is not obliged to
inspect agency records that relate to ongoing investigations. This is to
avoid interfering in a current operation and to ensure the safety of
inspecting officers.
15HT Power to obtain relevant information
Section 15HT will empower the Commonwealth Ombudsman to require a law
enforcement officer of any law enforcement agency (defined at section
15GC), whether or not the agency is able to authorise controlled operations
under this Part IAB of the Crimes Act, to provide written information to
the Ombudsman, at a specified place and within a specified period of time,
if the Ombudsman has reason to believe that the law enforcement officer is
able to give the requested information.
Subsection 15HT(2) will provide that the Ombudsman must inform the law
enforcement officer that he or she is required to provide this information
by writing to him or her. In most cases, law enforcement officers from
whom information is sought will be officers who are, or have been, involved
in the conduct of the controlled operation, or who have authorised or
varied a controlled operation under section 15GI or 15GQ.
Subsection 15HT(3) will provide that the Ombudsman may also require a law
enforcement officer to answer questions before a specified inspecting
officer (as defined at section 15HR, this will be a member of the
Ombudsman's staff) at a specified place and within a specified period, or
at a particular time on a specified day. The Ombudsman must inform the law
enforcement officer that he or she is required to answer questions by
writing to him or her.
Subsection 15HT(4) will also authorise the Ombudsman to require the
chief officer of a law enforcement agency (as defined at section 15GC), or
a person nominated by the chief officer, to answer questions before a
specified inspecting officer, at a specified place and within a specified
period, or at a particular time on a specified day. The Ombudsman must
inform the chief officer that he or she is required to answer questions by
writing to him or her.
The Ombudsman will only be permitted to require the chief officer to answer
questions under subsection 15HT(4) if he or she has reason to believe that
a law enforcement officer of the chief officer's agency, whose identity is
unknown to the Ombudsman, is able to give information relevant to an
inspection.
Subsection 15HT(5) will provide that the place, period and time of the day
specified in any written notification of a requirement to provide
information or answer questions must be reasonable having regard to the
circumstances.
15HU Offence
Section 15HU will create an offence of refusing to attend before an
inspecting officer (as defined at section 15HR, this will be a member of
the Ombudsman's staff) to give information, or to answer questions, when
required to do so under new section 15HT. The maximum penalty for this
offence will be imprisonment for six months.
15HV Ombudsman to be given information and access despite other laws
Section 15HV will provide that a person is not excused from giving
information, answering a question, or giving access to a document, as and
when required under this Division 4 of new Part IAB of the Crimes Act, on
the ground that doing so:
. would contravene a law
. would be contrary to the public interest
. might incriminate the person or make him or her liable to a penalty, or
. would disclose information that is protected by legal professional
privilege.
However, any information provided by a person under this new Division will
not be admissible in evidence against the person, except in the prosecution
of the person for an offence against new sections 15HK or 15HL (which
relate to the unauthorised disclosure of information relating to a
controlled operation) or Parts 7.4 or 7.7 of the Criminal Code (which
create offences relating to making false and misleading statements and
forgery).
Subsection 15HV(3) will clarify that new sections 15HK or 15HL, or any
other law, do not prevent an officer of a law enforcement agency from
giving information to an inspecting officer (as defined at section 15HR,
this will be a member of the Ombudsman's staff) for the purposes of an
inspection of the agency's records under this Division.
Subsection 15HV(4) will build on subsection 15HV(3) by providing that
nothing in sections 15HK or 15HL, or any other law, prevents an officer of
a law enforcement agency from making a record of information, or causing a
record of information to be made, for the purposes of giving the
information to an inspecting officer as permitted by subsection 15HV(3).
Subsection 15HV(5) will clarify that where a person has provided
information, produced a document or answered a question under this new
Division, this does not otherwise affect a claim of legal professional
privilege that anyone may make in relation to that information, document or
answer.
15HW Exchange of information between Ombudsman and State inspecting
authorities
Sections 15HW and 15HX will allow the Commonwealth to develop more
effective and consistent inspection arrangements with other inspecting
bodies, particularly State Ombudsman.
Subsection 15HW(1) will define State or Territory agency and State or
Territory inspecting authority for the purposes of section 15HW.
Subsection 15HW(2) will authorise the Ombudsman to give information that
relates to a State or Territory agency, that was obtained by the Ombudsman
under this Division, to the relevant State or Territory inspecting
authority.
Subsection 15HW(3) will provide that information can only be provided to a
State or Territory inspecting authority if the Ombudsman believes that the
information is necessary for the inspecting authority to perform its
functions in relation to the State or Territory agency.
Subsection 15HW(4) will allow the Ombudsman to receive information relevant
to the performance of the Ombudsman's functions under this Division from a
State or Territory inspecting authority.
15HX Delegation by Ombudsman
Section 15HX will authorise the Ombudsman to delegate some or all of his or
her powers under this Division, except the power to report to the Minister.
Subsection 15HX(1) will provide that the delegation may be to an APS
employee responsible to the Ombudsman, or to a person having similar
oversight functions to the Ombudsman under the law of a State or Territory
(or an employee of that person). For example, the Ombudsman could delegate
his or her powers to the Parliamentary Crime and Misconduct Commissioner in
Queensland or an independent member of the controlled operations committee
established under the Police Powers and Responsibilities Act 2000 (Qld).
The delegation can be of a general nature or be exercised within terms
provided by an instrument of delegation.
Subsection 15HX(2) will provide that a delegate under this Division is to
provide a copy of the delegation instrument for inspection by a person who
is affected by the exercise of any delegated power, if that person asks to
see it.
15HY Ombudsman not to be sued
Section 15HY will give the Ombudsman, an inspecting officer (as defined at
section 15HR, this will be a member of the Ombudsman's staff), or a person
acting under an inspecting officer's direction or authority, immunity from
any action, suit or proceeding for an act or omission that was done in good
faith in the performance or exercise of a function or power conferred under
this new Division.
Division 5-Miscellaneous
15HZ Evidence of authorities
Section 15HZ will enable an authority granted under new section 15GI, or
under a corresponding State controlled operations law (as defined at
section 15GC) to be tendered in evidence in legal proceedings.
Paragraph 15HZ(b) will provide that, in the absence of evidence to the
contrary, the authority will be proof that the person who granted the
authority was satisfied of the facts that he or she was required to be
satisfied of to grant the authority.
15J Chief Executive Officer of Customs to be notified of certain
authorities
Section 15J will ensure that Customs is notified of any authorised
controlled operation where it is believed that the operation will involve
illicit goods passing through the customs barrier. The applicant for the
controlled operation must forewarn Customs in such cases.
Subsection 15J(1) will require Customs to be notified if:
. an authority to conduct a controlled operation is granted under new
section 15GI, and
. the applicant for the authority believes that illicit goods involved in
the conduct of the operation may be dealt with by Customs.
In such cases, subsection 15J(2) will require the applicant, as soon as the
authority is granted, to notify the Chief Executive Officer of Customs, in
writing, of:
. the applicant's name
. the date on which the authority was granted, and
. to the extent to which it is known, the place/s and time/s at which the
illicit goods will pass into the control of Customs.
Subsection 15J(3) will provide that a failure to comply with this section
does not affect the validity of an authority to conduct a controlled
operation issued under section 15GI.
Part IAC - Assumed Identities
15K Definitions
Section 15K will define terms associated with the new assumed identities
regime. The key definitions will be:
authorised civilian will be defined as a person, who is not a foreign
officer, or an officer of a law enforcement agency or an intelligence
agency, who is authorised, by an authority granted under new section 15KB,
to acquire or use an assumed identity.
An assumed identity is a false identity that is used, most commonly by law
enforcement officers and intelligence officers, but sometimes by security
officers and civilians, for the purpose of investigating an offence,
gathering intelligence or conducting other security activities.
New subsection 15KB(3) will provide that if a civilian is authorised to
acquire and use an assumed identity, a law enforcement officer or an
intelligence officer must be appointed to supervise the civilian.
'Foreign officer', 'intelligence agency', 'law enforcement agency' and
'supervisor' will also be defined in this section.
authorised foreign officer - a 'foreign officer' will be defined in this
section as an officer of a law enforcement, intelligence or security agency
of a foreign country. An 'authorised foreign officer' will be a foreign
officer who is authorised, by an authority granted under new section 15KB,
to acquire or use an assumed identity.
'Law enforcement agency' and 'intelligence agency' will also be defined in
this section.
authorised intelligence officer - an 'intelligence officer' will be
defined in this section as an officer of the Australian Security
Intelligence Organisation (ASIO), or a staff member of the Australian
Secret Intelligence Service (ASIS). An 'authorised intelligence officer'
will be an intelligence officer who is authorised, by an authority granted
under new section 15KB, to acquire or use an assumed identity.
authorised law enforcement officer - a 'law enforcement officer' will be
defined in this section as an officer or staff member of a 'law enforcement
agency', which will be defined in this section as the Australian Federal
Police (AFP), Customs, the Australian Crime Commission (ACC), the
Australian Commission for Law Enforcement Integrity (ACLEI), the Australian
Taxation Officer (ATO), or another Commonwealth agency that is specified in
regulations.
An 'authorised law enforcement officer' is a law enforcement officer who is
authorised, by an authority granted under new section 15KB, to acquire or
use an assumed identity.
authorised person will be defined as a person who is authorised, by an
authority granted under new section 15KB, to acquire or use an assumed
identity. An authorised person will usually be a law enforcement officer
or an intelligence officer, but in some cases may be a civilian or a
foreign officer.
'Law enforcement officer', 'intelligence officer', 'foreign officer', and
'authorised civilian' will also be defined in this section.
chief officer will be defined as the head of an intelligence agency, an
issuing agency or a law enforcement agency.
Chief officers of law enforcement agencies or intelligence agencies will
have a number of responsibilities in the new assumed identities regime,
including:
. authorising the acquisition and use of an assumed identity (section
15KB)
. varying or cancelling an authority to acquire and use an assumed
identity (section 15E), and
. arranging audits, keeping appropriate records and submitting reports on
their agency's use of assumed identities (sections 15LD to 15LG).
A chief officer may delegate functions that relate to the granting,
variation, transfer or cancelling of authorities, in accordance with
section 15LH.
'Intelligence agency', 'issuing agency' and 'law enforcement agency' will
be defined in this section.
Commonwealth government issuing agency will be defined as a Commonwealth
agency that issues evidence of identity (such as passports, tax file
numbers etc) and that is named in an authority to acquire and use an
assumed identity that is granted under section 15KB.
corresponding assumed identity law will mean a law, or a part of a law, of
a State or Territory that is prescribed by the regulations to be a
corresponding assumed identity law.
The mutual recognition provisions in Division 5 of this new Part IAC of the
Crimes Act will allow Commonwealth law enforcement agencies and
intelligence agencies to make requests for assumed identity documents to a
participating jurisdiction, and for a participating jurisdiction to make
requests for assumed identity documents to a Commonwealth agency.
'Participating jurisdiction' will be defined in this section as a
jurisdiction in which a 'corresponding assumed identity law' is in force.
As a result, the prescription of such laws under the regulations will
facilitate the seamless acquisition and use of an assumed identity
throughout Australia.
corresponding authority will mean an authority to acquire and use, or
request the production of evidence of, an assumed identity, which is
granted under a 'corresponding assumed identity law' (explained above).
The mutual recognition provisions in Division 5 of this new Part IAC of the
Crimes Act will provide for corresponding authorities to be recognised as
if they were granted under new Part IAC.
evidence of identity will be defined broadly to cover a variety of
documents or other things that can be used to indicate a person's identity.
The definition illustrates the types of documents or things that are
commonly used to establish a person's identity, such as driver's licences
and passports. The list contained in the definition is non-exhaustive,
that is, it does not purport to include all the documents or things that
might be regarded as evidence of identity.
foreign officer will be defined as an officer of a law enforcement,
intelligence or security agency of a foreign country.
intelligence agency will be defined as ASIO and ASIS.
issuing agency means an agency that issues evidence of identity. Persons
authorised to acquire or use assumed identities may be authorised to
acquire documentation from both Commonwealth government issuing agencies
(such as Medicare or the ATO), non-Commonwealth government issuing agencies
(such as banks or other financial institutions) and/or State and Territory
issuing agencies (such as the NSW Roads and Traffic Authority).
law enforcement agency will be defined as the AFP, Customs, the ACC, ACLEI,
the ATO, or another Commonwealth agency that is specified in regulations.
National Witness Protection Program means the program established by the
Witness Protection Act 1994 for the protection of people who are perceived
to be in danger by reason of their testimony, or by having made a
statement, and those who are related to, or associated with, such people.
This new Part IAC of the Crimes Act will specifically allow AFP officers to
obtain assumed identities for the purpose of performing their roles under
the National Witness Protection Program (NWPP).
supervisor will be defined as the person in a law enforcement agency or an
intelligence agency who is appointed, under subsection 15KB(3), to
supervise a civilian who is authorised to acquire or use an assumed
identity. All authorised civilians will have an appointed supervisor.
Division 2-Authority for Assumed Identity
15KA Application for authority to acquire or use assumed identity
Section 15KA will provide a formal application process for acquiring or
using an assumed identity. Specifically, it will provide that a law
enforcement or intelligence officer may apply in writing to a chief officer
of a law enforcement or intelligence agency for an authority to acquire
and/or use an assumed identity. ('Law enforcement officer', 'intelligence
officer', 'chief officer', 'law enforcement agency' and 'intelligence
agency' will be defined at section 15K.)
Law enforcement and intelligence officers will be able to make an
application to acquire and use an assumed identity on behalf of themselves,
a colleague, a foreign officer, or a civilian. (A 'foreign officer' will
be defined at section 15K as an officer of a law enforcement, intelligence
or security agency of a foreign country.)
If the assumed identity is to be acquired and/or used in Australia by
someone other than a foreign officer, the applicant will be able to make
the application to the chief officer of his or her own agency.
Any application by a law enforcement officer (other than ACC officer) for
the use of an assumed identity in a foreign country, or on behalf of a
foreign officer, must be made to the chief officer of the AFP. The AFP's
established relationships with foreign law enforcement agencies means that
it can obtain the appropriate authorisations to protect Australian officers
using an assumed identity in a foreign country from criminal prosecution or
civil liability. For similar reasons, ACC officers and intelligence
officers will be able to apply to the chief officers of their agencies to
use an assumed identity in a foreign country or for a foreign officer to
use an assumed identity in Australia.
Subsection 15KA(5) will specify the information that must be contained in
an application to acquire or use an assumed identity. The application will
be required to provide the name of the person making the application, as
well as the name of the person to be authorised to acquire or use the
assumed identity. This is necessary because the applicant may not always
be the person who is to acquire and use the assumed identity. For example,
it may be necessary in an investigation for a civilian to acquire and use
an assumed identity. In such cases, the application will also be required
to provide details of the law enforcement or intelligence officer who will
be appointed as the civilian's supervisor.
New subsection 15KB(3) will provide that if a civilian is authorised to
acquire and use an assumed identity, a law enforcement officer or an
intelligence officer must be appointed to supervise the civilian. The
supervisor will manage the civilian's acquisition and use of the assumed
identity. This requirement reflects the need for persons who are not law
enforcement, intelligence, or foreign officers to be under the command and
direction of a professional with relevant expertise and experience.
Subparagraph 15KA(5)(b)(iii) will also require applications seeking an
authority for a civilian to acquire or use an assumed identity to justify
why it is necessary for a person who is not a law enforcement officer,
intelligence officer or foreign officer to acquire or use an assumed
identity.
All applications will have to explain why the assumed identity is needed
(subparagraph 15KA(5)(b)(v)).
If the assumed identity is sought for the purpose of investigating or
gathering intelligence about criminal activity, subparagraph 15KA(5)(b)(vi)
will provide that the application must include details of the investigation
or intelligence-gathering exercise in which the assumed identity will be
used (to the extent that this information is known at the time). In some
cases, it may not be possible for the information sought by subparagraph
15KA(5)(b)(vi) to be provided in the application. The operational realities
of undercover work often require an operative to obtain one or more assumed
identities prior to using the identity in the field. This is necessary to
allow sufficient time for the operative to create a realistic history for
the assumed identity. As a result, at the time of the application, the
specific context in which the assumed identity will be used may be unknown.
Applications will be required to set out the type of identity evidence that
is needed to support the assumed identity and the agencies from which the
identity evidence will be sought. Additionally, the application will be
required to contain information about any proposal to apply to have an
entry recorded in a register of births, deaths and marriages under a
corresponding assumed identity law of a State or Territory (subparagraph
15KA(5)(b)(viii)). This will enable all entries to be tracked to ensure
that any entry is justified and necessary in the circumstances.
To ensure that applications are determined on the basis of all relevant
material, subsection 15KA(6) will allow the chief officer (or his or her
delegate) to require the applicant to provide any additional information
that the chief officer (or delegate) deems necessary.
The requirements that will be imposed by this section, as well as the
compliance and monitoring provisions in Division 6 of this new Part IAC of
the Crimes Act, will provide the checks and balances necessary to prevent
abuse of the power to obtain and use an assumed identity and ensure that
use of assumed identities is confined to proper purposes.
15KB Determination of applications
Section 15KB will permit the chief officer to whom an application is made
under section 15KA (or his or her delegate) to grant an 'authority' to
acquire or use an assumed identity, and to impose conditions on the
authority.
Subsection 15KB(2) will provide that the chief officer may not grant an
authority to acquire or use an assumed identity unless he or she is
satisfied on reasonable grounds that the assumed identity is necessary for
one or more of the following purposes:
. investigation of, or intelligence gathering in relation to, criminal
activity
(In considering whether the authority is necessary for the purposes of
an investigation or for gathering intelligence in relation to criminal
activity, it will not be necessary to point to a specific criminal
activity. The operational realities of undercover work often require
an operative to obtain one or more assumed identities prior to using an
identity in the field. This is necessary to allow sufficient time for
the operative to create a realistic history for the assumed identity.
As a result, at the time of the application, the specific context in
which the assumed identity will be used may be unknown.)
. the exercise of powers and the performance of functions of an
intelligence agency
. the exercise of powers and the performance of functions of the NWPP
. training people for any of the above-mentioned purposes, or
(Considerable training is required to prepare a person to use an assumed
identity before they are sent into an undercover situation. This
training is done covertly, and both the instructors and students may
use assumed identities for all, or part of, the training.)
. providing an administrative function to support any of the above-
mentioned purposes (including training).
(It is important to ensure that certain administrative functions cannot
be traced back to the law enforcement agency, for example, depositing
money into an undercover operative's bank account. If transactions are
able to be traced to an account operated by the law enforcement agency,
the operative could be placed in significant danger. As such, a number
of these administrative functions are undertaken using an assumed
identity.)
The chief officer must also be satisfied on reasonable ground that the
person who would be authorised to acquire and/or use an assumed
identity would be unlikely to abuse that identity.
In addition, if the assumed identity is to be acquired or used by a
civilian, the chief officer must also be satisfied on reasonable
grounds that the circumstances necessitate a civilian acquiring or
using an assumed identity rather than a law enforcement or intelligence
officer. This will ensure that the use of civilians, who would usually
not have the same high level of training as law enforcement or
intelligence officers, is carefully considered by authorising officers.
If the chief officer authorises a civilian to acquire or use an assumed
identity, he or she will be required to appoint a law enforcement or
intelligence officer as a supervisor. Subsection 15KB(4) will set out the
minimum rank or position that a supervisor will need to hold in each
agency.
Subsection 15KB(5) will provide that, in granting the authority, the chief
officer may also authorise:
. an application, under a corresponding law, to a State or Territory
Supreme Court for an entry to be made in the relevant register of
births, deaths and marriages
. a request to an issuing agency (as defined at section 15K, this may be
a government or non-government agency) for evidence to support an
assumed identity (eg a passport or a driver's licence), or
. the use of an assumed identity in a foreign country.
Subsection 15KB(6) will provide that a chief officer may only approve a
request to use an assumed identity in a foreign country if he or she is
satisfied that it is reasonably necessary to do so. This requirement is in
addition to the other requirements that will need to be considered when
deciding whether to issue an authorisation for an assumed identity. This
reflects the need to ensure that an assumed identity is not used in a
foreign country unless all relevant matters (eg the inability to exempt an
Australian from the operation of the laws of a foreign country) have been
taken into account and there is a clear need for the assumed identity to be
used that way. It should be noted that this will not affect any obligation
to obtain authority in the foreign country to use the assumed identity in
that jurisdiction.
A separate approval will be required for every assumed identity. This will
facilitate the audit process under new section 15LG. It will also ensure
that the chief officer gives appropriate consideration to the need for the
acquisition and use of each assumed identity.
Subsection 15KB(8) will clarify that an authority to acquire or use an
assumed identity granted under this section is not a legislative
instrument. A 'legislative instrument' is defined at section 5 of the
Legislative Instruments Act 2003. In general terms, a legislative
instrument is a written document that is of a legislative character and
that is made in the exercise of a power designated by Parliament.
Requirements relating to registering, tabling, scrutinising and sunsetting
all Commonwealth legislative instruments are imposed under the Legislative
Instruments Act. Subsection 15KB(8) has been included to assist readers of
the Crimes Act, so that they are aware that the requirements imposed by the
Legislative Instruments Act do not apply to authorities issued under this
section.
15KC Form of authority
Section 15KC will specify the form that an authority to acquire or use an
assumed identity must take, and the details to be included in each
authority.
Subsection 15KC(1) will provide that an authority must be in writing and
signed by the person granting the authority (i.e. the chief officer, or his
or her delegate).
Subsection 15KC(2) will set out the detail that each authority must
contain.
If the person authorised to use the assumed identity is a civilian, the
authority must contain the name of the law enforcement or intelligence
officer who has been appointed as the civilian's supervisor under the
authority. This requirement reflects new subsection 15KB(3), which will
provide that if a civilian is authorised to acquire and use an assumed
identity, a law enforcement officer or an intelligence officer must be
appointed to supervise the civilian. The supervisor will manage the
civilian's acquisition and use of the assumed identity. This recognises
the need for persons who are not law enforcement, intelligence, or foreign
officers to be under the command and direction of a professional with
relevant expertise and experience. Subparagraph 15KA(5)(b)(iii) will also
require applications seeking an authority for a civilian to acquire or use
an assumed identity to justify why it is necessary for a person who is not
a law enforcement officer, intelligence officer or foreign officer to
acquire or use an assumed identity.
Where the authority relates to a civilian, it must also state the period
that it will remain in force. In the case of a civilian whose supervisor
is a law enforcement officer, this period may not exceed three months
(subparagraph 15KC(2)(h)(iii)). The authority for a civilian whose
supervisor is an intelligence officer will remain in force until cancelled
(see new section 15KD). This difference reflects the different operational
contexts for civilians involved in law enforcement and intelligence
operations. Law enforcement agencies are likely to require the assistance
of a civilian in the context of a specific investigation of more defined
duration, while intelligence agencies may require the assistance of a
civilian in intelligence activities occurring over many years.
Paragraph 15KC(2)(d) will require the authority to detail the evidence of
the assumed identity that may be acquired under the authority (eg driver's
licence, passport etc). Once these initial documents of identity have been
created and provided to the authorised person, he or she will then be able
to use the assumed identity as if it was their true identity. In other
words, once primary identification documents such as a passport have been
obtained, they will be able to be used to obtain other documents and things
to substantiate an identity without notifying the agency providing that
secondary document or thing that the identity is an assumed identity. For
example, the initially obtained documents of identity could be able to be
used to open a bank account, obtain a video/DVD rental card, or to apply
for benefits, such as social security payments from Centrelink, in the
assumed name. The requirement that the form of authority be required to
specify each issuing agency that can be requested to produce evidence to
substantiate the assumed identity is an important mechanism for tracking
the identity documents acquired and safeguarding the regime from abuse.
15KD Period of authority
Section 15KD will set out the period of time for which an authority for an
assumed identity is valid.
An authority for a law enforcement, intelligence, or foreign officer or a
civilian whose supervisor is an intelligence officer will remain in force
until it is cancelled (an authority will be able to be cancelled under new
section 15KE). This will allow flexibility for operational purposes. For
example, during an undercover operation, it may be necessary to acquire and
use an assumed identity for a certain period of time. However, it may be
necessary to discontinue the assumed identity at some stage in the
operation before starting to use that identity again at a later date.
To ensure that there is a sufficient level of oversight and accountability
for each authority, new section 15KF will require the chief officer of the
law enforcement agency to annually review each authority for which the
agency has responsibility. That provision will also require the chief
officer of an intelligence agency to review an authority for which they
have responsibility every three years.
An authority in relation to a civilian whose supervisor is a law
enforcement officer will remain in force for the period of time specified
in the authority under new subparagraph 15KC(3)(h)(iii). This period of
time may not be longer than three months. An assumed identity will only be
granted to a civilian in circumstances where it is impossible or
impracticable for a law enforcement officer to acquire or use the assumed
identity. As such, it is appropriate that civilians only act under the
assumed identity for a limited period of time.
For a civilian whose supervisor is an intelligence officer, the authority
will remain in force until it is cancelled. However, these authorities
will be reviewed annually, as the agency will have an obligation to ensure
the continued protection and supervision of the civilian operative. In
conducting the review, the chief officer will have a responsibility to
terminate the assumed identity as soon as the particular operation, or role
of the civilian, has concluded.
15KE Variation or cancellation of authority
Section 15KE will permit the chief officer of an agency to vary or cancel
any authority granted by his or her agency. In addition, paragraph
15KW(3)(a) will provide that an authority may also be cancelled by the
chief officer of an agency to which the authority has been transferred
under section 15KV.
It is important that a chief officer is able to vary an authority, as this
flexibility is needed to address any contingencies that might arise. For
example, the need might arise to obtain assumed identity evidence from
additional government or non-government agencies that were not listed on
the original authority.
Section 15KE will require the chief officer to cancel the authority where
it is no longer needed.
The provision will specify the process to vary or cancel an authority,
namely by written notice, and when it is deemed to take effect. Subsection
15KE(4) will clarify that the notice to vary or cancel an authority will
take effect either on a date specified in the notice, or on the day it is
given to the person who is authorised to acquire or use an assumed
identity, or that person's supervisor (if the authorised person is a
civilian), whichever is the later of the two.
It is important that authorised persons are properly notified of any
changes to authorities, where practicable, as the protection from civil and
criminal liability in new sections 15KS and 15KQ will only apply to acts
done in accordance with an authority.
In some cases it will not be practicable for the authorised person to be
notified of the variation or cancellation, for example if the person is
missing. In these circumstances, the agency will have to decide whether to
cancel the authority. However, the authorised person will still have
protection from civil and criminal liability with respect to their assumed
identity as long as they are not reckless about the existence of the
cancellation of this identity (see new section 15KU).
Subsection 15KE(5) will clarify that a variation or cancellation of an
authority to acquire or use an assumed identity granted under this section
is not a legislative instrument. A 'legislative instrument' is defined at
section 5 of the Legislative Instruments Act 2003. In general terms, a
legislative instrument is a written document that is of a legislative
character and that is made in the exercise of a power designated by
Parliament. Requirements relating to registering, tabling, scrutinising
and sunsetting all Commonwealth legislative instruments are imposed under
the Legislative Instruments Act. Subsection 15KE(5) has been included to
assist readers of the Crimes Act, so that they are aware that the
requirements imposed by the Legislative Instruments Act do not apply to
authorities issued under this section.
Section 15KE will reflect the policy of the model law provision, with some
adjustments in drafting to further clarify when a variation of an authority
is deemed to take effect.
15KF Yearly review of authority
Section 15KF will require the chief officer of a law enforcement agency to
review, every 12 months, each authority that was either granted by the
chief officer, or his or her delegate, or is in the control of the law
enforcement agency as a result of a transfer under new section 15KV. The
purpose of the annual review is to assess whether the use of the assumed
identity is still necessary.
Section 15KF will also impose a requirement on the chief officer of an
intelligence agency to review each authority that was either granted by the
chief officer, or his or her delegate, or is in the control of the agency
as a result of a transfer under new section 15KV. However, an intelligence
agency will only need to review an authority every three years, except
authorities granted to civilians or foreign officers, which must be
reviewed at least once every 12 months. Intelligence agencies use of
assumed identities is also subject to oversight by the Inspector-General of
Intelligence and Security.
If the chief officer is satisfied that the assumed identity is no longer
needed, he or she will be required to cancel the authority under new
section 15KE. If the chief officer determines that the assumed identity is
still necessary, he or she will have to record the reasons for that
decision in writing. Requiring the recording of reasons will support the
integrity of the review process by ensuring that the person reviewing the
authority is aware of the justification for the continuation of the
authority.
Section 15KF will adopt the model provision, with an extension to cover
authorisations issued by chief officers of intelligence agencies. This
provision was included in the model laws to safeguard against
authorisations continuing in force for an unlimited period. However,
subsection 15KF(6) will clarify that any failure on the part of the chief
officer (or their delegate) to either conduct a review, determine whether a
particular authority should be cancelled or not, or record reasons for
continuing an authority does not effect the status of the authority.
15KG Making entries in register of births, deaths or marriages
To facilitate the creation of a credible identity, section 15KG will
authorise chief officers of law enforcement or intelligence agencies to
apply, under a corresponding assumed identity law (as defined at section
15K) to a State or Territory Supreme Court for an order for an entry to be
made in the relevant register of births, deaths and marriages (BDM
register).
There is no BDM register at the Commonwealth level. The Commonwealth will
therefore have to rely on the power provided under the mutual recognition
provisions of State and Territory corresponding laws to request the
relevant Supreme Court to authorise the required entry in that
jurisdiction's BDM register. As BDM registers contain essential
identifying information, it is important to have the additional safeguard
of judicial oversight before an entry can be made in the register for the
purpose of creating an assumed identity.
As part of the process of creating a robust assumed identity, it may also
be necessary to create entries in a BDM register for fictitious 'parents'
or other 'relatives' of the assumed identity. This will assist in
substantiating the background and credibility of the assumed identity. The
model laws intend that such entries should be allowed to be made where
appropriate.
15KH Effect of authority ceasing to be in force on register of births,
deaths or marriages
Section 15KH will apply where:
. there is an entry in the BDM register of a State or Territory that
relates to an assumed identity authorised under this new Part IAC of
the Crimes Act, and
. the authority for that assumed identity ceases to be in force (for
example, the authority is cancelled under new section 15KE).
In these circumstances, the chief officer of the relevant agency will be
required to apply, under the corresponding assumed identity law (as defined
at section 15K) of the State or Territory, for an order authorising the
cancellation of the relevant entry in the relevant BDM register. This
application must be made within 28 days of the authority ceasing to be in
force.
Division 3-Evidence of Assumed Identity
15KI Request for evidence of an assumed identity
An authority to acquire or use an assumed identity issued under section
15KB may authorise a request to be made to an issuing agency under this
provision. If the authority includes such an authorisation, the chief
officer who granted the authority may request the chief officer of an
issuing agency to produce evidence to support the creation of the assumed
identity. A request to an issuing agency may only be made if the authority
authorises a request to that agency. 'Issuing agency' will be defined at
section 15K to mean any government or non-government agency, such as a
bank, that issues evidence of identity. 'Evidence of the assumed identity'
will be defined broadly at section 15K to cover a variety of documents
including passports, tax file numbers, credit/bank cards and Medicare
cards.
Section 15KI will implement the model law provision, with a modification so
that it also covers intelligence agencies.
Section 15KI will also specify the information that must be contained in
the request to the issuing agency, including:
. details about when the authority was made
. details of the assumed identity, and
. the evidence sought, to assist the issuing agency in producing the
appropriate identity evidence.
To ensure the safety of the person who is authorised to acquire or use an
assumed identity, and avoid compromising the operation in which they are
involved, the information required to be included in a request to an
issuing agency may be quite general.
The model laws only provide for the evidence to be given to the person who
has been authorised to acquire or use an assumed identity. Section 15KI
will also allow the evidence to be given to a law enforcement or
intelligence officer, in order to protect the true identity of the
authorised person. Issuing agencies will not need to, and indeed often
should not, know the true identity of the authorised person. In addition,
the authorised person may not, for operational reasons, be able to
personally collect the evidence.
Section 15KI will not authorise a request to a State or Territory agency
for evidence such as a false marriage certificate or birth certificate.
This type of evidence will be dealt with at section 15KG, which will set
out the process for requesting entries in State and Territory registers of
births, deaths and marriages.
15KJ Government issuing agencies to comply with request
Section 15KJ will require the chief officer of a Commonwealth government
issuing agency to comply with a request for assumed identity documents made
under section 15KI. This provision mirrors the model law provision.
Compelling Commonwealth government agencies to comply with requests from
law enforcement or intelligence agencies makes it clear that the decision
to create an assumed identity rests with the law enforcement or
intelligence agency, rather than the issuing agency. This has the
advantage of simplifying the position of Commonwealth government issuing
agencies by obviating the need for them to have a decision-making role in
the assumed identity process.
15KK Non-government issuing agencies may comply with request
Section 15KK will apply to non-Commonwealth government agencies that issue
evidence of identity, such as financial institutions. This provision will
provide that the chief officer of a non-Commonwealth government issuing
agency who receives a request for assumed identity documents under section
15KI may comply with the request, but is not required to do so. It would
not be appropriate for non-Commonwealth government bodies to be compelled
to comply with requests to provide evidence of an assumed identity.
For operational and security reasons, law enforcement and intelligence
agencies may acquire identity evidence from non-government organisations
covertly. For example, government issued sources of identity, such as a
passport, will be able to be used to acquire other identifying documents
from non-government agencies. This method of obtaining identity evidence
will avoid alerting the non-government agency to the fact that the
documentation is being acquired for an assumed identity. Information
relating to an assumed identity is extremely sensitive and relates directly
to the personal security and safety of covert operatives and their
families. Some non-government issuing agencies will not be able to meet a
reasonable level of security and confidentiality, or be able to provide
adequate vetting of staff, to safely permit access to assumed identity
information.
15KL Cancellation of evidence of assumed identity
Section 15KL will require the chief officer of any issuing agency (whether
government or non-government) that has produced identity evidence pursuant
to a request under this Part IAC of the Crimes Act, to cancel that evidence
when directed to do so, in writing, by the chief officer of the agency that
requested the evidence. Subsection 15KL(2) will clarify that cancelling
evidence includes deleting or altering an entry in a record of information.
Paragraph 15KW(3)(c) will provide that if an authority has been transferred
under new section 15KV, the chief officer of the agency to which the
authority was transferred will be regarded, for the purposes of section
15KL, as the chief officer who requested the issuing agency to produce
identity evidence. As a result, that chief officer will be responsible for
directing an issuing agency to cancel evidence under this section. Note 2
to section 15KL directs the reader to section 15KW.
Section 15KL will mirror the model law provisions and is intended to
terminate the effect of the evidence of identity that was issued.
For logistical reasons, there is no requirement imposed on an issuing
agency to physically retrieve the evidence of identity. For example,
cancelling a passport means that although the person may still possess the
passport document, they cannot rely on it to travel into, and out of,
Australia.
15KM Return of evidence of assumed identity
Section 15KM will allow the chief officer of a law enforcement or
intelligence agency to request a person who was authorised to acquire or
use an assumed identity to return any evidence of the assumed identity that
was acquired under the authority, when the authority ceases to be in force.
An authority may cease to be in force because it has been cancelled, or,
in the case of an authority granted to a civilian, because it has expired.
Failure to comply with a request made under this provision will be an
offence, which will be punishable by a fine.
Section 15KM is not a model law provision. This offence has been created
to guard against the misuse of assumed identities. It will act as a
deterrent to civilians or other authorised persons who may wish to retain,
and continue to use, documentation or other evidence that substantiates
false identities after the authority for the identity has ceased.
15KN Protection from criminal liability-officers of issuing agencies
Officers and employees of issuing agencies who issue evidence that supports
an assumed identity are essentially providing a person with false
documentation, which may constitute a Commonwealth, State or Territory
offence. Section 15KN will protect these people from criminal liability
for conduct that they have undertaken in response to a request under
section 15KI or a direction under section 15KL. Sections 15KI and 15KL
will authorise a chief officer to request, or direct, an issuing agency to
produce evidence of the type that is normally produced by that agency.
Section 15KN modifies the model law provision by clarifying that the
protection from criminal liability applies to Commonwealth, State and
Territory offences.
15KO Indemnity for issuing agencies and officers
Section 15KO will require the Commonwealth to protect any issuing agency,
and its officers, from any liability incurred as a result of responding to
any request or direction under sections 15KI or 15KL. Sections 15KI and
15KL will authorise a chief officer to request, or direct, an issuing
agency to produce evidence of the type that is normally produced by that
agency. In both circumstances, the Commonwealth will be required to
indemnify the issuing agency and its officers for any reasonable civil debt
or cost incurred as a result of action to comply with the request or
direction.
The extent of the Commonwealth's liability will be limited to liability
that arises as a direct result of the officer or agency complying with a
request in the course of their duties and pursuant to the authority.
Further limitations may be set out in regulations.
Division 4 - Effect of Authority
15KP Assumed identity may be acquired and used
Section 15KP will allow a person to obtain and use an assumed identity if
they have been authorised to do so under this new Part IAC of the Crimes
Act and certain requirements are met.
Authorised persons will only be able to obtain and use an assumed identity
within the terms and scope of the particular authority. For example, the
authority specifies the type of evidence that may be obtained to
substantiate the assumed identity and the purposes for which the assumed
identity is to be used.
Subparagraph 15KP(a)(ii) will also provide that law enforcement officers,
intelligence officers and foreign officers may only acquire and use an
assumed identity in the course of duty. This requirement will not
unnecessarily restrict covert operations but clarifies that the operative
is only able to use the assumed identity in a manner consistent with their
professional duties (i.e. not for personal reasons or gain).
In the case of an authorised civilian, in addition to acting in accordance
with the authority, the civilian must act in accordance with any direction
issued by their supervisor. This requirement will provide an extra level
of protection and supervision by enhancing the level of control over the
actions of the civilian. (New subsection 15KB(3) will provide that if a
civilian is authorised to acquire and use an assumed identity, a law
enforcement officer or an intelligence officer must be appointed to
supervise the civilian.)
Section 15KP reflects the model law provision.
15KQ Protection from criminal liability-authorised persons
Section 15KQ will provide people who are authorised to acquire or use an
assumed identity with protection from criminal liability for an act which,
but for this provision, would be an offence. This protection only applies
if the act is done in the course of acquiring or using an assumed identity
in accordance with the lawful authority.
In the case of an authorised law enforcement, intelligence or foreign
officer, in order to be protected from criminal liability, the act must be
done in the course of the officer's duty. In the case of an authorised
civilian, in order to be protected from criminal liability the act must be
done in accordance with any directions given by the civilian's supervisor.
For example, it is an offence for a person to receive a government
unemployment benefit if they are not unemployed. However, in order to
substantiate an assumed identity, the authorised officer may be authorised
to receive unemployment benefits despite being employed by the relevant law
enforcement or intelligence agency. This provision will ensure that the
authorised person is not criminally liable for claiming benefits while
receiving a salary.
However, paragraph 15KQ(c) will clarify that the protection from criminal
liability is only available for conduct that would not constitute an
offence if the assumed identity was the person's real identity. In other
words, acting under an assumed identity will not authorise the commission
of other offences, or de-criminalise conduct that is not authorised, as a
matter of law, by the use of any identity. For example, it is an offence
for anyone to take protected fauna out of Australia. If an authorised
officer who has acquired a passport to substantiate their assumed identity
takes protected fauna out of Australia while travelling on that passport,
he or she will still be criminally responsible for removal of the fauna
from Australia (unless the conduct is authorised under another law, for
example, under a controlled operation).
Other provisions will also limit or remove the protection provided in
section 15KQ, for example, section 15KT (acting without possessing the
appropriate qualifications).
Section 15KQ reflects the model law provision.
15KR Protection from criminal liability - third parties
Section 15KR will provide protection from criminal liability to
Commonwealth officers who have engaged in conduct that would otherwise
constitute a Commonwealth, State or Territory offence. The officers will
be regarded as not criminally responsible for the offence if:
. the conduct constituting the offence was engaged in in the course of
the officer's duty
. the chief officer who granted the authority to acquire or use an
assumed identity authorised the conduct, and
. if the person who is authorised to acquire or use an assumed identity
under the authority had engaged in the conduct in accordance with the
authority, he or she would not have been criminally liable for the
offence because of the application of section 15KQ.
This will protect Commonwealth officers who are responsible for creating a
complete history for the assumed identity (known as 'backstopping'). These
officers will often create fictitious background information to validate
the assumed identity, eg create false family history information, false
school records etc. In some cases the Commonwealth officers may need to
create a fictitious company in which the authorised person is a director
under their assumed identity. In filling in the relevant forms needed to
establish a company, these officers would need to provide details of the
assumed identity (knowing these details were not those of a 'real' person).
In doing so, they would knowingly provide false or misleading information
to the Commonwealth. Without the protection provided by section 15KR,
these officers could be liable to prosecution for a Commonwealth criminal
offence.
Paragraph 15KR(d) is not intended to remove a Commonwealth officer's
protection from criminal liability due to an authorised person engaging in
conduct for which the authorised person is not protected from criminal
responsibility. For example, if the authorised officer does something for
which he or she is not qualified, eg flies a plane when he or she does not
have a pilot's licence, the authorised officer will not be protected from
criminal liability, due to section 15KT. However, if a Commonwealth
officer, with the authorisation of the chief officer, had created a false
pilot's licence for the authorised person, the Commonwealth officer would
still be protected from criminal liability for creating that licence.
Preparing a false qualification, in accordance with the authority granted
by the chief officer, is clearly distinguishable from engaging in conduct
that the false qualification purports to authorise or enable a person to
undertake.
Section 15KR is not in the model laws. It extends the protections provided
in the model law for authorised persons and issuing agencies to other
Commonwealth officers involved in the creation of an assumed identity.
15KS Indemnity for authorised persons
Section 15KS will provide people who are authorised to acquire or use an
assumed identity with protection from civil liability arising from an act
done in the course of acquiring or using an assumed identity in accordance
with the lawful authority.
In the case of an authorised law enforcement, intelligence or foreign
officer, in order to be protected from civil liability the act must be done
in the course of the officer's duty. In the case of an authorised
civilian, in order to be protected from civil liability the act must be
done in accordance with any directions given by the civilian's supervisor.
Where these conditions are met, the Commonwealth will have to indemnify the
authorised person against any loss or damage suffered by other persons as a
result of the authorised person's conduct.
Other provisions in this new Part IAC of the Crimes Act may also limit or
remove the Commonwealth's obligation to indemnify the authorised person,
for example, subsection 15KT (acting without possessing the appropriate
qualifications).
Section 15KS reflects the model law provision.
15KT Particular qualifications
Section 15KT will have the effect of removing any protection from criminal
or civil liability that will be provided to an authorised person under this
new Part IAC of the Crimes Act, for anything done by the person that
requires a particular qualification that the person does not possess. This
will ensure that authorised persons cannot use an assumed identity to
engage in activities in which they are not qualified to engage. This will
be so even if the person has acquired a document that indicates that he or
she has the relevant qualification.
For example, a law enforcement officer who is not medically qualified will
not receive any protection from criminal liability for prescribing
medication as a medical doctor, despite acting as a doctor under an
authorised assumed identity and holding false medical qualifications that
authorise the prescription of medication.
Section 15KT reflects the model law provision.
15KU Effect of being unaware of variation or cancellation of authority
A chief officer, or his/her delegate, will have the power to vary or cancel
an authority under section 15KE. There may be occasions where the chief
officer varies an authority by reducing its scope, or cancels an authority,
and there is a delay in informing the authorised person of the variation or
cancellation. In such cases the authorised person will be acting under a
false identity that is no longer authorised, or may be engaging in conduct
that is no longer authorised.
Section 15KU will provide that if an authority is varied or cancelled, but
an authorised person is unaware of the variation or cancellation (and is
not reckless about the existence of a variation or cancellation) then he or
she is still protected from criminal and civil liability, as if the
variation or cancellation had not been made.
This protection will apply for as long as the person is unaware of the
variation or cancellation, but only if the person is not reckless about the
existence of the variation or cancellation. Subsection 15KU(3) describes
when a person is reckless for the purposes of this provision.
Section 15KU reflects the model law provision.
15KV Transfer of control of authorities
There may be occasions where, for operational or other reasons, control of
an authority for an assumed identity will need to be transferred from one
agency to another agency. Section 15KV will authorise the transfer of
assumed identity authorities between agencies.
Subsections 15KV(1) and (2) will clarify that a transfer may be authorised
by either the chief officer who originally granted the authority under
section 15KB, or the chief officer who has control of an authority as a
result of a previous transfer under this provision. This clarifies that
there are no restrictions on the number of times that an authority may be
transferred between agencies. This flexibility is necessary to ensure that
control of an assumed identity rests with the appropriate agency at all
times. For the same reason, section 15KV will not restrict the reasons for
which an authority may be transferred.
However, section 15KV will restrict the types of authorities that can be
transferred and the agency to which an authority may be transferred.
Subsection 15KV(1) provides that an intelligence agency may only transfer
or receive an authority from another intelligence agency, while
subsection 15KV(2) provides that a law enforcement agency may only transfer
or receive an authority from another law enforcement agency. In addition,
subsection 15KV(6) will provide that the AFP and ACC may not transfer
authorities that authorise the acquisition or use of an assumed identity in
a foreign country or that have been made on behalf of a foreign officer.
(Subsection 15KA will provide that only the chief officer of the AFP or the
ACC may authorise the acquisition or use of an assumed identity in a
foreign country or by a foreign officer.)
The purpose of restricting the type of authorities that can be transferred
between agencies is to protect the operation of the rules that govern the
granting of authorities by law enforcement and intelligence agencies. It
is important that an authority may only be transferred to an agency that
would have been capable of granting the authority in the first place. For
example, an authority granted by a chief officer of an intelligence agency
that allows the acquisition or use of an assumed identity by a civilian
will have an unlimited operating period. In comparison, an authority
granted by a chief officer of a law enforcement agency that authorises a
civilian to acquire or use an assumed identity has a maximum duration of
three months (see paragraph 15KC(2)(h)). Accordingly, it would be
inappropriate if the chief officer of an intelligence agency was allowed to
transfer an authority relating to a civilian to a chief officer of a law
enforcement agency.
The process of transferring an authority will involve both the chief
officer of the agency transferring the authority and the chief officer of
the agency who will receive the authority (or their delegates) agreeing to
the transfer in writing.
The chief officer of the agency transferring the authority (or his or her
delegate) will also have a responsibility to provide the chief officer of
the receiving agency with details of whether the authority has previously
been reviewed and whether the authority has previously been transferred.
A transfer will be deemed to have occurred when the chief officer of the
agency receiving the authority (or his or her delegate) signs and dates a
copy of the authority. However, where an authority relates to an
authorised civilian, the transfer will only take place when the receiving
agency appoints a new supervisor for the civilian. These rules will be
important for establishing the point at which responsibility and control
for the assumed identity transfers, particularly in relation to civilians
who will be under the direction of a new supervisor.
Subsection 15KV(6) will require the chief officer of the receiving agency
(or his or her delegate) to vary the transferred authority, in accordance
with new section 15KE, to state the name of the new supervisor. (New
section 15E will set out how authorities may be cancelled or varied).
Section 15KV is not a model law provision. However, it recognises that
agencies often work closely together and for operational reasons it may be
appropriate for an authority issued by one agency to be transferred to
another. A transfer may be necessary if the focus of the operation or
investigation has changed. For example, a general intelligence gathering
exercise may lead to an investigation of specific criminal activity.
15KW Consequences of transfer of control of authorities
Section 15KW will clarify the effect of a transfer of an assumed identity
authority between agencies under section 15KV. It will provide that a
transfer does not affect the status of the authority (i.e. it continues to
be in force as if the transfer had not occurred).
To avoid doubt, subsection 15KW(3) will state that the powers,
responsibilities and obligations that attach to the chief officer who
granted the authority will transfer to the chief officer who receives the
authority if a transfer occurs under section 15KV. As a result, the chief
officer of the receiving agency will have:
. the power to vary or cancel the authority
. an obligation to review the authority
. an obligation to report and keep records on the authority
. an obligation to audit their records in relation to that authority
every 6 months, and
. the power to request evidence of an assumed identity.
Section 15KW will have the same effect no matter how many times an
authority is transferred. For example, any obligation to audit, report on
or review the granting of the authority will rest with the agency that has
control of the authority at the time that the obligation must be met.
Subsection 15KW(4) will clarify that a transfer does not change the
timeframe in which a review of an authority must be conducted in accordance
with section 15KF. For example, if an authority granted by a law
enforcement agency has been transferred a number of times in a 12 month
period, only the agency that has control over the authority at the expiry
of the 12 month period will be obliged to review the authority under
section 15KF.
Subsection 15KW(5) will clarify that section 15KL will operate as if the
receiving agency chief officer was the chief officer that made the initial
request for evidence of an assumed identity.
To ensure that agencies are able to track when an authority is due to be
reviewed, the chief officers will be required to record specific details of
the transfer, such as the date on which the transfer was effected and when
it is due to be reviewed (see sections 15KV and 15LF).
Section 15KW is not based on the model laws and has been included to
clarify the operation of a transfer under section 15KV.
Division 5-Mutual Recognition under Corresponding Laws
15KX Requests to a participating jurisdiction for evidence of an assumed
identity
An authority to acquire or use an assumed identity issued under section
15KB may authorise a request to be made to an issuing agency under this
provision. If the authority includes such an authorisation, the chief
officer who granted the authority may request the chief officer of an
issuing agency of a participating jurisdiction to produce evidence to
support the creation of the assumed identity. Such a request may only be
made if the authority authorises a request to that agency.
A 'participating jurisdiction' is any State or Territory that has
corresponding assumed identity laws in force. 'Evidence of the assumed
identity' will be defined broadly at section 15K to cover a variety of
documents including passports, tax file numbers, credit/bank cards and
Medicare cards.
Section 15KX is the equivalent, for issuing agencies of States and
Territories, of new section 15KI, which will authorise a chief officer to
obtain identity evidence from Commonwealth government agencies and non-
government agencies.
As with section 15KI, the model law provision has been extended to allow
the evidence of the assumed identity to be given to a law enforcement or
intelligence officer, in order to protect the true identity of the
authorised person. The rationale for allowing an alternative person to
receive the evidence is the same as applies to section 15KI - that is, to
protect the true identity of the authorised person and because the
authorised person may not, for operational reasons, be able to personally
collect the evidence.
Section 15KX will not authorise a request to a State or Territory agency
for evidence such as a false marriage certificate or birth certificate.
This type of evidence will be dealt with at section 15KG, which will set
out the process for requesting entries in State and Territory registers of
births, deaths and marriages.
15KY Requests from a participating jurisdiction for evidence of assumed
identity
Section 15KY will require the chief officer of a Commonwealth government
issuing agency (other than four specified agencies that are discussed
below) to comply with a request for assumed identity documents made by the
chief officer of a participating State and Territory law enforcement
agency. The requested identity document must be provided if:
. it relates to an assumed identity authority that is made in accordance
with a 'corresponding assumed identities law' (which will be defined at
section 15K to mean a law, or a part of a law, of a State or Territory
that is prescribed by the regulations)
. that assumed identity authority authorises identity documents being
obtained from a Commonwealth government agency and given to the person
authorised under the authority
. the request states a reasonable time for providing the requested
documents, and
. the request is made to the chief officer of a Commonwealth government
issuing agency.
ASIO, ASIS, the Defence Signals Directorate and the Defence Imagery and
Geospatial Organisation will not be required to comply with a request under
this section. It would be inappropriate to oblige these agencies to
produce false identity cards for State and Territory law enforcement
personnel as it could jeopardise their operations.
15KZ Directions from a participating jurisdiction to cancel evidence of
assumed identity
Section 15KZ will require a chief officer of a Commonwealth government
issuing agency that has produced identity evidence in accordance with a
request under section 15KY, to cancel that evidence when directed to do so,
in writing, by the chief officer of the State or Territory agency that
requested the evidence. Subsection 15KZ(2) will clarify that cancelling
evidence includes deleting or altering an entry in a record of information.
Section 15KZ will adopt the model law provision. It mirrors section 15KL,
which requires issuing agencies to comply with a similar direction from
chief officers of Commonwealth law enforcement and intelligence agencies.
Like proposed section 15KL, the purpose of the provision is to ensure that
evidence of an assumed identity is cancelled when it is no longer required.
15L Indemnity for issuing agencies and officers
Section 15L will require any law enforcement or intelligence agency that
makes a request to an issuing agency in a participating State or Territory
to protect the issuing agency and its officers from any civil liability
incurred as a result of complying with a request to produce identity
evidence under section 15KX.
Section 15L will reflect the model laws and the position in section 15KO,
which requires the Commonwealth to indemnify Commonwealth government
issuing agencies and non-government issuing agencies from any liability
incurred as a result of responding to any request or direction under
sections 15KI or 15KL.
15LA Application of this Part to authorities under corresponding laws
Section 15LA will enable an assumed identity authority that was granted by
a law enforcement agency in a participating State or Territory to be
recognised under this new Part IAC of the Crimes Act as if the authority
had been granted under section 15KB.
Section 15LA will list the provisions that are deemed to apply to an
authority issued under a corresponding law. For example, an authority
validly granted under a New South Wales corresponding law would be
recognised as a corresponding authority by the Commonwealth, and the
provisions referred to in section 15LA would apply to acts done pursuant to
that corresponding authority as if it was an authority granted under
section 15KB.
Section 15LA will implement the policy of the model law provision, but
modifies it slightly in order to apply the additional protection from
criminal liability provided to third parties under this Part of the Crimes
Act (see section 15KR) to an authority granted under a corresponding law.
Division 6-Compliance and Monitoring
Subdivision A-Misuse of Assumed Identity and Information
15LB Misuse of assumed identity
Subsection 15LB(1) will create an offence for law enforcement, intelligence
or foreign officers who are authorised to acquire or use evidence of an
assumed identity, but do so in a manner that is inconsistent with, or falls
outside, the scope of the authority and is not within the course of their
duties. The provision will specify that the offence only requires the
authorised officer to be reckless about whether or not they are acting in
accordance with their authority or in the course of duty.
Subsection 15LB(2) will create a separate offence in relation to the misuse
of an assumed identity by a civilian. This provision will make it an
offence for an authorised civilian to acquire or use evidence of an assumed
identity and be reckless about whether the acquisition or use is not in
accordance with the authority, or not in accordance with the directions of
a supervisor.
Both offences will carry a maximum penalty of two years imprisonment.
Examples of misuse of an assumed identity include:
. obtaining a financial advantage by deception
. evasion of fines or other penalties (such as driving demerit points),
or
. credit card fraud.
The inclusion of specific offences for misuse of an assumed identity will
make it clear to those using assumed identities that the improper use of
identity documents will not be tolerated. Both offences give effect to the
model law offences for misuse of an assumed identity.
In addition, a person who misuses an assumed identity may also be subject
to other criminal penalties because misuse of the assumed identity would
result in the person losing the protection from criminal responsibility
provided by section 15KQ.
15LC Disclosing information about assumed identity
Section 15LC will create three offences relating to the disclosure of
information about an assumed identity.
The first offence will apply to conduct involving the disclosure of
information that either reveals, or is likely to reveal, that another
person has acquired, will acquire, is using or has used an assumed identity
(subsection 15LC(1). This offence will carry a maximum penalty of two
years imprisonment.
Subsections 15LC(2) and (3) will create two more serious disclosure
offences where the conduct described in subsection 15LC(1) is aggravated
because the person who makes the disclosure is reckless as to whether the
disclosure would:
. endanger the health or safety of any person (subsection 15LC(2)), or
. prejudice the effective conduct of an investigation or intelligence-
gathering in relation to criminal activity (subsection 15LC(3)).
These offences will be indictable offences and carry a maximum penalty of
10 years imprisonment. The maximum penalty for this offence reflects the
serious consequences that a disclosure of this kind could bring to the
operatives involved.
Subsection 15LC(4) will provide exceptions to the offences created under
subsections 15LC(1), (2) and (3), for disclosures made in specific
circumstances or for specific purposes. For example, a person will not
commit an offence under 15LC(1),(2) or (3) if their role or function
requires them to disclose information that reveals that a person has used
an assumed identity. This would be the case for people responsible for
administering assumed identities laws or undertaking related legal
proceedings. For example, an officer of the Commonwealth Director of
Public Prosecutions may be required to make such disclosures in
prosecutions or proceeds of crime proceedings.
Note 2 will clarify that any disclosure made about the use or acquisition
of an assumed identity that does not constitute an offence because of the
operation of subsection 15LC(4) may still constitute an offence under other
laws, such as the Intelligence Services Act 2001. Subsection 15LC(4) only
provides exceptions to the offences set out at subsections 15LC(1), (2) and
(3). It does not affect the operation of any other offences in the Crimes
Act or any other Act.
Section 15LC will reflect the policy intention behind the model law
provisions, which contain the three tiered offences relating to disclosure
of information about an assumed identity. However, section 15LC has been
modified to broaden the exceptions to the offences and apply the exceptions
to all three offences, rather than only the less serious offence, as is the
case in the model law. This ensures that a person will not commit an
offence if they disclose information on an assumed identity if the
disclosure is required or authorised under law and/or undertaken as a
legitimate element of the discloser's work.
Subdivision B-Reporting and Record-keeping
15LD Reports about authorities for assumed identities etc - law enforcement
agencies
Section 15LD will place an obligation on chief officers of law enforcement
agencies to submit an annual report to the Minister about their agency's
use of assumed identities. Subsection 15LD(1) will specify the information
that must be contained in the report, which will include:
. numbers of assumed identity authorities granted
. a general description of the activities that were undertaken by
authorised persons
. whether any fraud or other unlawful activity was identified by an audit
under section 15LG, and
. any other information relating to assumed identities that the Minister
considers appropriate.
Subsection 15LD(3) will require the Minister to table the report in both
Houses of the Australian Parliament within 15 days of receiving the report.
However, subsection 15LD(2) will require the chief officer of the law
enforcement agency to advise the Minister of any information that should be
excluded from the report before it is tabled in Parliament, because it
could reasonably be expected to endanger a person's safety, prejudice an
investigation or prosecution, or compromise operational activities or
methodologies. If the Minister is satisfied that the information should be
excluded on any of those grounds, he or she must exclude the information
before tabling the report in Parliament.
The legislation will permit, but not require, the report to be tabled as a
stand alone document. For example, as long as all legislative time limits
are met, a report on assumed identities could be included in the law
enforcement agency's annual report.
Section 15LD implements the model law provision.
15LE Reports about authorities for assumed identities etc - intelligence
agencies
Section 15LE will require the chief officers of ASIO and ASIS to submit an
annual report to the Inspector-General of Intelligence and Security about
their agency's use of assumed identities.
Subsection 15LE(1) will specify the information that must be contained in
the report, which will include:
. statistical information about assumed identity authorities
. a general description of the activities that were undertaken by
authorised persons
. whether any fraud or other unlawful activity was identified by an audit
under section 15LG, and
. any other information relating to assumed identities that the Inspector-
General considers appropriate.
This proposed provision is not a model law provision because the model law
provisions only cover law enforcement agencies. However, it is based on
the model law provision that imposes a reporting requirement on law
enforcement agencies (see section 15LD). This provision ensures that
intelligence agencies are also held accountable for their use of assumed
identities.
15LF Record keeping
Section 15LF will set out the records that law enforcement and intelligence
agencies must keep in relation to assumed identities. The requirements
will apply to all authorities granted, varied, cancelled or transferred
under this new Part IAC of the Crimes Act. Section 15LF will require the
recording of all the key details of each authority for the purpose of
tracking the use of the authorised assumed identity.
The provision will also ensure that all appropriate records for every
authority that is transferred are kept by both the originating and
receiving agency. This will ensure that responsibility for every authority
can be tracked.
Section 15LF will implement the model law.
15LG Audit of records
Section 15LG will require the chief officer of a law enforcement or
intelligence agency to arrange for the assumed identity records for each
authority, which will be required to be kept under section 15LF, to be
audited at least once every six months while the authority is in force, and
at least once in the six months after the cancellation or expiry of the
authority. Results of audits must be reported to the chief officer of the
law enforcement or intelligence agency.
Subsection 15LG(3) will allow the audit to be undertaken internally to
minimise the risk of an undercover operative's real identity being
disclosed. This will avoid endangering the lives of the operative and
his/her family. However, to protect the integrity of the audit process,
although the person conducting the audit may be a law enforcement or
intelligence officer, the auditor must not be a person who:
. granted, varied or cancelled any of the authorities to be audited
. received control of any of the authorities to be audited, due to a
transfer of an authority under section 15KV
. was or is an authorised person under any of the authorities to be
audited,
This will ensure that the person conducting the audit has no personal
involvement in the relevant authority.
Division 7-General
15LH Delegation of chief officer's functions
Section 15LH will specify which functions under this new Part IAC of the
Crimes Act a chief officer is able to delegate, and to whom a delegation
can be made. 'Chief officer' is defined at section 15K.
Subsection 15LH(1) will provide that any other delegation provision, under
any other legislation, does not apply to the delegation of a chief
officer's functions under Part IAC of the Crimes Act. A chief officer may
only delegate those powers in accordance with this section.
Subsection 15LH(2) will state that the chief officer can delegate any
function under this Part IAC that relates to the granting, variation,
transfer or cancelling of authorities. A delegation may only be made to a
senior officer of the chief officer's agency. 'Senior officer' is defined
in subsection 15LH(3).
The delegation power in section 15LH strikes a balance between allowing the
person who is best equipped to make certain decisions about assumed
identity authorities to do so, while ensuring that the chief officer of
each agency retains responsibility for certain functions, particularly
those that are essential for facilitating oversight of, and accountability
for, the agency's use of assumed identities. This provision will also
avoid practical problems that might arise if the chief officer was required
to make all decisions, particularly at short notice, as he or she may not
be always be available to do so.
Part IACA - Witness identity protection for operatives
Division 1 - Preliminary
15M Definitions
Section 15KD will define terms associated with the new witness identity
protection regime. The key definitions will be:
assumed name will mean the name, other than the operative's real name, that
the operative is known by to a party to the proceeding or a party's lawyer
(this will be defined in subparagraph 15MG(1)(a)(i)). A 'party to the
proceeding' will be defined in subsection 15M(1).
chief officer will mean the head of a 'law enforcement agency' or an
'intelligence agency' (which will also be defined in this section). The
chief officers will be as follows:
. in relation to ASIO, the Director-General of Security
. in relation to ASIS, the Director-General of ASIS
. in relation to the AFP, the Commissioner of the AFP
. in relation to Customs, the Chief Executive Officer of Customs
. in relation to the ACC, the Chief Executive Officer of the ACC
. in relation to ACLEI, the Integrity Commissioner, and
. in relation to the Australian Taxation Officer, the Commissioner of
Taxation.
The chief officer will have certain functions under this Part. These
include the:
. power to give a witness identity protection certificate in certain
circumstances (see section 15ME)
. responsibility to make all reasonable enquiries to make sure that all
required information is included in the certificate (see subsection
15ME(2))
. responsibility to cancel the certificate if it is no longer necessary or
appropriate (see section 15MQ)
. power to give permission to disclose information about the operative's
true identity, despite the certificate (see proposed section 15MR), and
. responsibility to report to the Minister or the Inspector-General of
Intelligence and Security on the use of witness identity protection
certificates (see sections 15MU and 15MV).
Under section 15MX, the chief officer will be able to delegate any of his
or her functions (except the powers of delegation) and responsibilities to
a 'senior officer' (which will be defined in subsection 15MX(3))
court name will mean the name, other than the operative's real name or
code, that the operative is to be known as in the proceedings where the
operative is not known to any party to the proceeding or a party's lawyer.
A 'party to the proceeding' will be defined in subsection 15M(1).
operative will mean someone who is authorised, either under an assumed
identity authorisation (see Part IAC above) or as a participant under a
controlled operations authorisation (see Part IAB above). The witness
identity protection regime is only available for operatives.
An operative will usually be a law enforcement officer or an intelligence
officer, but in some cases an operative may be a civilian acting under an
authorisation. This is necessary because under the assumed identities
provisions, a civilian will be able to acquire and use an assumed identity
in limited circumstances.
witness identity protection certificate will mean the certificate that is
given in order to protect the identity of an operative. Section 15ME will
set out the circumstances in which the certificate can be given, and
section 15MG will prescribe the form of the certificate.
Subsection 15M(2) will provide that things permitted or required to be done
by a party to a proceeding in this Part may be done or satisfied by a
party's lawyer. This recognises that in most cases, legal counsel will be
acting on behalf of a party.
15MA Meaning of criminal proceeding
The witness identity protection provisions will apply to a proceeding in
which an operative is, or may be required to give evidence obtained as an
operative (see section 15MD below).
A 'proceeding' will be defined in subsection 15M(1) (see above) to include
a criminal or civil proceeding. Section 15MAwill define a criminal
proceeding as a proceeding for the prosecution, whether summarily or on
indictment, of an offence or offences. To avoid doubt, subsection 15MA(2)
will include a list of proceedings which constitute part of a criminal
proceeding.
The model laws do not provide a definition of a criminal or civil
proceeding. The definition of criminal proceeding in section 15MA is based
on section 13 of the National Security Information (Criminal and Civil
Proceedings) Act 2004 (NSI Act).
15MB Meaning of civil proceeding
Similarly, section 15MB will define a civil proceeding (for the same
purpose as described above) as any proceeding in a court of the
Commonwealth, a State or Territory, other than a criminal proceeding. To
avoid doubt, subsection 15MB(2) will include a list of proceedings which
constitute part of a civil proceeding.
For the same reasons described above, this definition is based on section
15A of the NSI Act. It is noted that proceedings for control orders or
preventative detention under Part 5.3 of the Criminal Code Act 1995 are
civil proceedings under this definition.
15MC When a charge is outstanding or pending
Before a witness identity protection certificate is given, the operative
will be required to make a statutory declaration setting out matters that
go to his or her credibility (see section 15MF below). In particular,
paragraph 15MF(1)(b) will require the operative to declare whether any
charges against the operative for an offence are pending or outstanding.
Further, paragraph 15MF(1)(c)(ii) will require the operative (who is or was
a law enforcement officer or intelligence officer) to declare whether any
allegations of professional misconduct against him or her are outstanding.
Paragraphs 15MC(1)(a) and (b) will define when a charge is considered
pending or outstanding. A charge will be outstanding until it is finally
dealt with by being withdrawn, dismissed or discharged by a court, or the
person has been acquitted or found guilty of the offence. A charge will be
pending if the person has not yet been charged with an offence but has been
arrested for the offence, or the person has been served with a summons to
appear before a court to answer a charge for the offence. A charge will
not be pending if a person was arrested but then later released without
charge. These definitions are based on the definition included in the
model laws.
Paragraph 15MC(c) will define when an allegation of professional misconduct
is outstanding. An allegation is outstanding if the allegation has not been
finally dealt with in accordance with the normal procedures that apply for
dealing with such allegations. The model laws do not include a definition
of when a professional misconduct allegation is outstanding. This
definition has been developed to take into account that procedures for
handling allegations for professional misconduct will vary between law
enforcement and intelligence agencies.
Division 2 - Witness Identity Protection Certificates for Operatives
15MD Application of Part
Section 15MD will provide that the witness identity protection provisions
will apply to a proceeding in which an operative is, or may be required to
give evidence obtained as an operative. 'Operative' and 'proceeding' will
be defined in subsection 15M(1) (see above and also sections 15MA and
15MB).
The witness identity protection provisions in this Part are concerned only
with protecting the true identity of operatives for reasons of personal
safety or to avoid prejudicing operations. The provisions are not intended
to affect witnesses who are not operatives or to affect other laws which
may apply to protect the safety of a witness (eg the use of physical
screens or voice modification). To avoid doubt, subsection 15MD(2) will
make this clear.
15ME Witness identity protection certificate
Section 15ME sets out: who can give a witness identity protection
certificate; the criteria that must be satisfied before the certificate may
be given; and other procedural matters that apply to giving the
certificate.
Under subsection 15ME(1), only a chief officer of a law enforcement agency
or an intelligence agency will be able to give a certificate for an
operative who is, or may be required, to give evidence in a proceeding.
'Chief officer', 'law enforcement agency', 'intelligence agency',
'operative' and 'proceeding' will be defined in subsection 15M(1) (see
above).
A certificate will only be able to be given if the chief officer is
satisfied on reasonable grounds that disclosure of the operative's identity
or address is likely to: endanger the safety of the operative or another
person (such as a family member), or prejudice any current or future
investigation or activity relating to security.
'Identity' will not be defined, as what could identify a person will differ
depending on the circumstance. As the Joint Working Group Discussion Paper
notes,
An operative who is a police officer could state this as his
occupation, and this alone would not lead to the identification of him
personally. However, if the operative was required to state his rank,
and the current location of his work, his identity could well be
revealed. [page 159]
'Investigation' will be given a broad definition in subsection 15M(1) as an
investigation relating to criminal activity, including an investigation
extending beyond the reach of the Commonwealth. This definition recognises
the Commonwealth's unique role for investigating offences with a foreign
aspect.
'Activity relating to security' could include protecting Australia from
espionage or preventing attacks on Australia's defence system. 'Security'
(defined in subsection 15M(1)) has the meaning given by section 4 of the
Australian Security Intelligence Organisation Act 1979 (the ASIO Act).
This definition has been used as it is directly relevant to the
intelligence agencies whose operatives are covered by this Part.
The Joint Working Group Discussion Paper recognised that allowing the chief
officer of a law enforcement agency to make the decision about when an
operative's identity should be protected would be a shift from the practice
in most jurisdictions which this decision is made by the court. The Joint
Working Group Discussion Paper noted that:
Disclosure, for example, in an application to a court seeking
protection of identity and in filing court documents with the
operative's true name, may place the investigation and the safety of
law enforcement or intelligence officers and civilians associated with
the operation at serious risk. [page 151]
The chief officer of a law enforcement agency or intelligence agency is
well placed to make an informed decision about the need to protect an
operative's identity to ensure his or her safety or avoid prejudicing
operations. In most cases, the information about undercover operative is
highly sensitive and disclosing or filing this information could increase
the risk to personnel and compromise operations. Where there is no
objection to the witness' identity being disclosed then it will have been
an unnecessary risk to disclose this information. Further, allowing a
chief officer to make the decision to protect identity in the first
instance is appropriate given that the court retains the discretion to
reveal the operative's true identity (see section 15MM below).
The form of a certificate (that is, the matters to be included) will be
prescribed in section 15MG (see below) and includes matters going to the
operative's credibility. Before giving a certificate the chief officer
will be required to make all reasonable inquiries to ascertain the
information required by section 15MG. In recommending this requirement the
Joint Working Group Report noted that:
The integrity of the certificate is crucial to the effectiveness of the
model legislation. Therefore ... an express requirements for the
person issuing the certificate to undertake inquiries ... [r]ather than
relying on the implicit obligation of the issuer to undertake
inquiries. [page 275]
Making this an express requirement ensures that the power to grant
certificates is exercised with the highest degree of care.
Under subsection 15ME(3) the chief officer will not be able to give a
certificate until the operative completes the requirements set out in
section 15MF. Section 15MF will require an operative to make a statutory
declaration setting out matters relevant to his credibility (see below for
more detail). This statutory declaration will assist the chief officer in
his or her decision to give a certificate.
Subsection 15ME(4) will provide that a decision to give a certificate is
final, and cannot be appealed against, reviewed, called into question,
quashed or invalidated in any court. Preventing a decision to give a
certificate from being challenged or reviewed is part of the model laws as
it would defeat the purpose of the witness identity protection regime.
That is, a challenge or review would require highly sensitive operational
information to be disclosed, which may risk the safety or an operative or
the integrity of an operation. This provision will not prevent a court
from exercising its discretion to override the certificate (see
section 15MM).
Subsection 15ME(5) will clarify that subsection 15KI(4) will not prevent a
decision to give a certificate being called into question in the course of
a disciplinary proceeding against the person who made the decision.
Proceedings for professional misconduct are, for the most part internal or
conducted by agencies familiar with handling and protecting highly
sensitive operational information.
Subsection 15ME(6) will provide that a certificate is required to be taken
to have been properly issued and is prima facie evidence of the matters in
the certificate. This will allow the operative to produce evidence to
support that their identity was protected without having to reveal
information that may disclose his or her true identity.
Section 15ME(7) will clarify that the instrument is not a legislative
instrument within the meaning of section 5 of the Legislative Instruments
Act 2003.
15MF Statutory declaration by operative
Subsequent to the release of its Report in 2003, the Joint Working Group
recommended a number of modifications to the model laws (which were the
endorsed by SCAG). One of those modifications was that the operative
provide a sworn statement setting our matters relevant to his or her
credibility.
Section 15MF will reflect this modification and will require an operative
to make a statutory declaration, setting out certain matters, before a
certificate can be given. Subsection 15MF(1) sets out the matters that
must be included in the statutory declaration. These are:
. Details of any offence for which the operative has been convicted or
found guilty.
. Details of any pending or outstanding charges against the operative
(section 15MC defines when a charge is pending or outstanding).
. If the operative is a law enforcement officer or an intelligence officer,
details of any findings of, or outstanding allegations of, professional
misconduct. In this context, a law enforcement officer or an
intelligence officer means an officer who is or was an officer of a 'law
enforcement agency' or 'intelligence agency' as defined in
subsection 15M(1). 'Professional misconduct' is defined in
subsection 15M(1), and section 15MC defines when an allegation is
outstanding.
. Any adverse comments made by a court about the operative's credibility
(this is limited to comments within the operative's knowledge).
. Any false representations that have been made by the operative when the
truth was required (subsection 15M(1) makes it clear that false
representations made in the course of a controlled operation or as part
of an assumed identity are not included; undercover operations by their
very nature may require the operative to lie).
. Any other matters relevant to the operative's credibility (again, this is
limited to matters within the operative's knowledge).
These matters will then be reflected in the certificate, which will be
filed in court and a copy will be given to each party to a proceeding (for
example, defence counsel) (see sections 15MG and 15MH below).
Subsections 15MF(2) will provide that, subject to subsection 15MF(3), a
person cannot be compelled to disclose or produce a statutory declaration
made under this section. Subsection 15MF(3) will set out the circumstances
in which a statutory declaration may be required to be disclosed or
produced. These circumstances will be:
. proceedings, including for perjury, for any falsity in the statutory
declaration (that is, where the operative has not told the truth about
matters concerning his or her credibility)
. proceedings of a disciplinary nature against a law enforcement officer or
intelligence officer, or
. investigations or inquiries into the conduct of a law enforcement
officers or intelligence officer (for example, an investigation by the
Integrity Commissioner into alleged corruption by an AFP or ACC officer).
It is important to allow the statutory declaration to be disclosed or
produced in these circumstances to ensure a certificate is not misused to
shield an operative whose integrity is in question.
It is an offence under section 11 of the Statutory Declarations Act 1959 to
intentionally make a false statement in a statutory declaration. This
offence will apply to statutory declarations made by operatives under this
section.
15MG Form of witness identity protection certificate
Subsection 15MG(1) will set out the information that will be required to be
included in a witness identity protection certificate.
The certificate will be required to contain matters going to the
operative's credibility. These are the same matters that will be required
to be included in the operative's statutory declaration (see section 15MF
above). Section 15MH will require that the certificate be filed in court
and a copy is given to each party to a proceeding (for example, defence
counsel). This will enable the operative's credibility to be challenged in
the proceeding without disclosing his or her true identity. This will be
an important safeguard to ensure the fairness of proceedings when a
witness' identity is protected under this Part.
In addition to matters going to the operative's credibility, the
certificate will be required to include:
. the operative's assumed name or court name
. details about the length of time the operative was involved in the
investigation to which the proceeding relates and the name of the agency
giving the certificate
. the date on which the certificate is given, and
. the grounds for issuing the certificate.
The operative's assumed name is the name by which he or she is known to a
party to a proceeding (or a party's lawyer) but is not his or her real
name. For example, if an operative has an assumed identity of Anne Smith,
and she is known by the accused person as Anne Smith, the certificate will
need to state her name as Anne Smith. Using the assumed name that is known
to a party will allow, for example, a defendant to place to witness.
In some cases, an operative may be using the same assumed identity in a
number of operations. Including this assumed name on the certificate could
prejudice ongoing operations that are separate from the proceeding in which
the operative is giving evidence. However, the assumed name will still
need to be included if it is known to a party to a proceeding. In these
cases, the court will be able to make a suppression order to prevent the
disclosure of the assumed name outside of the court, which may help to
prevent the other ongoing operations from being compromised
(see section 15MK below). This example has been drawn from the Joint
Working Group Discussion Paper (page 163).
A court name will be able to be used where the operative is not known to a
party to the proceedings. The operative's name could be recorded, for
example, as Mr Z. There will also be some situations in which the
operative is using an assumed identity, but is not personally known to a
party to a proceeding (or a party's lawyer). In this case, a court name
could also be used, which would also avoid the ongoing use of the assumed
identity being compromised. When a court name is used, a party to the
proceeding (including for example the defendant) will be able to place the
witness from the evidence he or she gives and by seeing the witness in
court.
The grounds on which a certificate may be given will be set out in
subsection 15ME(1) (see above). For example, the chief officer could
record at the certificate is issue because disclosing the operative's real
name could put her in danger.
Subsection 15MG(2) will make it clear that the certificate must not include
any information that could reveal the operative's true identity or address.
This will mean, for example, that in describing the grounds upon which the
certificate has been issued the chief officer will need to ensure that this
does not include information that could identify the operative.
15MH Filing and notification
This section will set out the requirements for filing, and giving copies
of, the certificate ahead of the operative giving evidence. These
requirements are necessary to ensure that other parties to the proceeding
have sufficient notice that there will be a witness whose true identity
will be protected. This will enable other parties to the proceeding to
consider whether they need to apply to the court for leave to ask questions
that may lead to disclosure of the witness' identity.
Subsection 15MH(1) will require the certificate to be filed in court before
the operative gives evidence in the proceeding. Under subsection 15MH(2),
once filed, a copy of the certificate will be required to be provided to
each party to the proceeding at least 14 days before the operative gives
evidence. The time for giving a copy of the certificate to a party to the
proceeding can be shorter than 14 days if agreed to by the party receiving
the certificate. A 'party to a proceeding' will be defined in
subsection 15M(1) to mean, for a criminal proceeding - the prosecutor and
each accused person, and for a civil proceeding - each person who is a
party to the proceeding. 'Criminal proceeding' and 'civil proceeding' will
be defined respectively in sections 15MA and 15MB (see above).
Subsection 15MH(3) will allow the court to make an order that a copy of the
certificate is to be provided to another person. The onus for providing
copies of the certificate under subsections 15MH(2) and (3) will lie on the
person who files the certificate.
This section will be subject to section 15KM (see below).
15MI Leave for non-compliance
There may be circumstances in which a person who has filed, or proposes to
file, a certificate is not able to comply with the requirements in
section 15MH above.
For example, a person is arrested and charged with an offence, and is
brought before a court to hear bail. Ordinarily, a bail hearing will take
place within a time period much shorter than 14 days. Accordingly, a copy
certificate given for a bail proceeding will not be able to be provided
within the time frame that will be set out in subsection 15MH(2), and the
other parties to the proceeding may not agree to a shorter period for a
copy of the certification to be given to them.
Subsection 15MI(1) will allow the court to give leave for the person to not
comply with one or more of the requirements of section 15MH. In granting
leave, the court will need to be satisfied that it was not reasonably
practicable to comply with the requirement or requirements in respect of
which leave is sought (subsection 15MI(2)).
Under subsection 15MI(3), where a court has granted leave for a certificate
not be filed in accordance with subsection 15MH(1) (which requires
certificates to be filed before an operative gives evidence) the
certificate is to be taken as having been filed in accordance with that
subsection.
15MJ Effect of witness identity protection certificate
Section 15MJ will set out the effect of a certificate that has been filed
in accordance with (or taken to have been filed in accordance with)
subsection 15MH(1) (see above).
The effective of a certificate will be that the operative is permitted to
give evidence under the assumed name or court name provided for in the
certificate. The assumed name or court name is explained above in
subsection 15MG(1).
The certificate will prevent a witness (including the operative whose
identity is protected by the certificate) from being asked a question, or
being required to answer a question, that may disclose or lead to the
operative's true identity or address, being revealed. Further, a person
involved in the proceeding will not be able to make a statement that
discloses, or may reveal the operative's true identity or address.
For the purposes of this section, 'a person involved in a proceeding', will
be defined in subsection 15MJ(3). This definition will include parties to
the proceeding, legal counsel and officers of the court.
It is recognised that one of the consequences of a certificate being filed
in a proceeding is that a party to a proceeding (for example defence
counsel) will be prevented from asking questions that could otherwise be
asked if the certificate was not in place.
It is considered that in most cases, the credibility of an operative will
be able to be tested while the operative is present in court. For example,
the operative's general demeanour can be assessed regardless of whether a
certificate in place.
Further, the credibility of a witness can also be tested against their
criminal or professional history which will be required to be is included
in the certificate, a copy of which will be required to be given to other
parties to a proceeding (see sections 15MG and 15MH above). This would
mean, for example, that where an operative has a prior conviction for an
offence or perjury, defence counsel will be able to point to this in order
to discredit the operative and argue that he or she cannot be relied upon
to tell the truth.
The model laws for witness identity protection, which will be implemented
by this Part, provide greater access to information about the operative
than is currently available where a witness (who has an assumed identity)
is protected under section 15XT of the Crimes Act. Currently, under
section 15XT there is no requirement for matters going to the credibility
of the operative to be disclosed to the court or any other party to the
proceeding. Accordingly, the requirements in sections 15MG and 15MH that
matters relevant to credibility are to be included in the certificate which
is given, for example to defence counsel, will place accused persons in a
much better position to place the witness and test the witnesses
credibility.
Further, the court will be able to grant leave or make an order that may
lead to the operative's identity being revealed in exceptional
circumstances where it is in the interests of the justice to do so
(see 15MM below).
Section 15MQ will allow a chief officer to cancel a certificate where he or
she considers that it is no longer necessary or appropriate to prevent the
disclosure of the operative's real identity or address (see below). A
chief officer may consider it inappropriate for the operative's identity to
be protected by a certificate where it is discovered that the operative
lied in his or her statutory declaration made under section 15MF.
Further, as discussed above, an operative who makes an intentionally false
statement in his or her statutory declaration (under section 15MF) could be
subject to an offence under the Statutory Declarations Act.
15MK Orders to protect operative's identity etc
Section 15MK will provide that a court in which a certificate is filed may
make any order necessary to protect the true identity or address of the
operative.
It will be an offence for a person to engage in conduct that contravenes an
order made by the court under section 15MK. This offence will be
punishable by a maximum penalty of two years imprisonment. The penalty for
this offence is consistent with other non-disclosure offences in
Commonwealth legislation. Section 5.6 of the Criminal Code Act 1995 will
apply automatic fault elements to the physical elements of the offence. To
establish this offence, the prosecution will need to prove beyond
reasonable doubt that the person:
. was reckless as to the circumstance that an order has been made under
subsection 15MK(1)
. intentionally engaged in conduct, and
. was reckless as to the result of that conduct that the order is
contravened.
Subsection 15MK(3) will make it clear that the offence that will be
inserted by subsection 15MK(2) will not limit the court's inherent power
to punish a person who contravenes an order with contempt of court.
Subsection 15MK(4) will require the court to make an order suppressing the
publication of anything said when an order is made under
subsection 15MK(1). This is a further safeguard to protect the witness'
true identity. This subsection will not prevent a transcript of court
proceedings to be taken. The court will be able to make an order for how
the transcript is to be dealt with, including an order suppressing its
publication (subsection 15MK(5)).
15ML Disclosure of operative's identity to presiding officer
As described above, the Joint Working Group recommended a number of
modifications to the model laws (which were the endorsed by SCAG). One of
those modifications was to allow the judge to require the operative to
disclose his or her true identity to the judge. This was to address
concerns that if a judge did not know the witness' true name, he or she may
be unaware of any potential bias in relation to that witness. This could
arise in a number of ways including where the judge was previously
practising as counsel, and the operative was a client.
Section 15ML will reflect this modification and will allow a presiding
officer in a proceeding to require the operative to disclose his or her
real identity to the presiding officer, provide the presiding officer with
photographic evidence of that identity, or both. 'Presiding officer' in
relation to a proceeding will be defined in subsection 15M(1).
Subsection 15ML(3) will provide that the presiding officer must not record
information disclosed under subsection 15ML(2) or retain a copy of a
document or other thing provided to the presiding officer under
subsection 15ML(2). That is, a presiding officer will be prevented from
taking notes about the operative's true identity or taking a copy of
photographic evidence of that identity (such as a driver's licence or
passport).
Subsection 15ML(3) does not form part of the model laws for witness
identity protection. However, it has been included to further ensure the
confidentiality of the operative's real identity. Specifically, this
subsection implements a recommendation of the Senate Standing Committee of
Legal and Constitutional Affairs report on the Crimes Legislation Amendment
(National Investigative Powers and Witness Protection) Bill 2006
(the 2006 Bill). The 2006 Bill included measures to implement the model
laws for witness identity protection, but lapsed when Parliament was
prorogued in 2007.
15MM Disclosure of operative's identity etc despite certificate
Subsection 15MM(1) will allow a party to a proceeding, or a lawyer
assisting the court in the proceeding, to apply to the court for leave:
. to ask a question of a witness (including the operative) that may lead to
the disclosure of the operative's real identity or address
. for a person involved in the proceeding to make a statement that
discloses, or may lead to the disclosure of, the operative's real
identity or address
. for an order requiring the witness (including the operative) to answer a
question, give evidence or provide information that discloses, or may
lead to the disclosure of, the operative's real identity or address.
See subsection 15MM(1) for a definition of a 'party to a proceeding' and
also sections 15MA and 15MB above. For the purposes of this section, a
'person involved in the proceeding' will have the same meaning as will set
out in subsection 15MJ(3).
Under subsection 15MM(3), the court will be able to give leave for the
party or lawyer to ask the question of the witness, or for a person to make
a statement, that was requested under subsection 15MM(1). The court will
also be able to make an order requiring a witness to answer a question,
give evidence or information as sought under subsection 15MM(1).
Subsection 15MM(5) will provide that the court is not to give leave or make
an order (as described above) unless the court is satisfied that:
. there is evidence that, if accepted, would substantially call into
question the operative's credibility
. it would be impractical to test properly the credibility of the operative
without allowing the risk of disclosure of, or disclosing, the operative
true identity or address, and
. it is in the interests of justice for the operative's credibility to be
able to be tested.
The Joint Working Group Report notes that provisions for granting leave do
not require the court to 'balance' competing interests. Rather, the
question of risk posed by disclosure is one that a law enforcement agency
is best placed to answer; what is in the interests of justice is
appropriately matter for the court to consider [page 299].
The Joint Working Group Discussion Paper acknowledges the high threshold
imposed by the model provisions but notes that the public interest in
protecting undercover operatives is of such importance that "...there must
be a substantial reason for the 'balancing exercise' to be adjusted to
allow disclosure." [page 167] The Joint Working Group Discussion Paper
further emphasises the need for a higher threshold to avoid a situation in
which a defendant applies for the identity of the operative to be disclosed
as a 'tactic' to discourage the witness for giving evidence.
The relevant of the true identity of an operative to his or her credibility
will vary depending on the nature of the evidence to be given by the
witness. The Joint Working Group Report provides useful examples of how a
witness' credibility can still be tested with disclosing his or her true
identity.
For example, an undercover operative may be called to give evidence
about her role in an investigation in which she wore a concealed
recording device and taped conversations between the defendant and
herself and between the defendant and third parties in her presence.
The defendant has seen transcripts of the tapes, and does not dispute
that the conversations took place. The defendant may argue that
credibility is in issue and the real identity of the operative must be
revealed to allow the defendant to fully test her credibility.
However, leave should not be granted unless the defence can show the
court some reason why credibility is in fact in issue (given that the
defence does not dispute that the conversations took place as taped)
and that credibility can only be tested if the operative's identity is
revealed. Aspects of the operative's credibility, in the 'wide sense',
could still be tested without revealing her identity. For example,
questions about the context surrounding the conversations could be
asked and answered without the operative's identity being disclosed.
[page 295]
...there may be circumstances where a witness' credit in the 'narrow
sense' is in issue, but can be tested without revealing the witness'
true identity. For example, an undercover police officer may be giving
evidence in an assumed name used in an investigation in which he acted
as a buyer, purchasing heroin from the defendant. The defendant may
admit that he sold heroin to the undercover operative, but dispute the
amount of heroin which was sold. In this case, where the operative and
the defendant were the only people present at the transaction, whether
the operative's evidence is accepted as credible will affect the
outcome, and so credibility is in issue. However, it may not be
necessary to reveal the identity of the operative to test credibility.
The defendant may wish to pursue questioning about the operative's
bias, and motive to lie in order to secure a conviction for the serious
offence of trafficking in a commercial quantity of heroin (as opposed
to the sale of a smaller amount of heroin, to which the defendant will
admit). It may be possible for questioning along this line to proceed
without revealing the operative's identity. It is then up to the jury
or judge to decide whether the argument about bias is convincing.
[page 295]
Subsection 15MM(6) will provide that in jury trials, applications (under
subsection 15KQ(1)) must be heard in the absence of a jury.
Subsection 15MM(7) will further provide that, unless the court considers
that the interests of justice require otherwise, the court must be closed
when an application is made (under subsection 15MM(1)) and if, leave is
given or an order made, when a question is asked (and answered), evidence
is given, information is provided or a statement is made.
Subsection 15MM(8) will also require the court to make a suppression order
in relation to applications, and questions, evidence, information or
statements made as a consequence of applications. This subsection will not
prevent a transcript of court proceedings to be taken. The court will be
able to make an order for how the transcript is to be dealt with, including
an order suppressing its publication (subsection 15MM(9)). Further, the
court will also be able to make any other order it considers appropriate to
protect the operative's true identity or address (subsection 15MM(10)).
It will be an offence for a person to engage in conduct that contravenes an
order made by the court under subsections 15MM(8) - (10). This offence
will be punishable by a maximum penalty of two years imprisonment. The
penalty for this offence is consistent with other non-disclosure offences
in Commonwealth legislation. Section 5.6 of the Criminal Code will apply
automatic fault elements to the physical elements of the offence. To
establish this offence, the prosecution will need to prove beyond
reasonable doubt that the person:
. was reckless as to the circumstance that an order has been made under
subsections 15MM(8) - (10)
. intentionally engaged in conduct, and
. was reckless as to the result of that conduct that the order is
contravened.
Subsection 15MM(12) will make it clear that the offence that will be
inserted by subsection 15MM(11) will not limit the court's inherent power
to punish a person who contravenes an order with contempt of court.
15MN Application for leave-joinder as respondent
There may be situations where an operative, whose identity is protected by
a certificate, may not have standing to be heard by the court in
determining whether his or her identity should be disclosed. For example,
an operative may have infiltrated a group of people involved in organised
criminal activity under an assumed identity. One of the persons involved
in the group has a dispute over an alleged breach of contract. The
operative appears for the plaintiff in a civil proceeding, in order to give
evidence about the alleged breach. A certificate is given protecting the
operative identity, but opposing counsel applies to the court for leave to
ask a question that may disclose the operative's true identity under
section. If the plaintiff's lawyer does not object, there will be no
avenue for the operative (or their agency) to be heard by the court
deciding whether or not to permit the disclosure.
Section 15MN will give the court discretion to allow the operative (who is
protected by the certificate) and the chief officer of the agency who gave
the certificate to be joined to the application for leave as a respondent.
Once joined as a respondent, the operative or chief officer will be
entitled to appear and be heard on the application. This will enable the
operative or chief officer to provide the court with relevant information
about why the operative's identity should not be disclosed.
15MO Directions to jury
Section 15MO will apply if an operative, who has been given certificate,
gives evidence in a proceeding that has a jury. The court will be
required, unless it considers it inappropriate, to direct the jury not to
give the evidence of the operative any more or less weight, or draw any
adverse inferences against the defendant, because of the certificate, or as
a result of any orders made to protect the witness. This is to ensure that
verdict of the jury is not affected because of the need to protect the
identity of an operative.
15MP Adjournment for appeal decision
Section 15MP will allow a party to seek an adjournment to allow time for
that party to decide whether to appeal a decision of the court (under
sections 15MI, 15MK or 15MM) and to then make the appeal. Where an
application is made under this section, the court will be required to grant
the adjournment. The proceedings cannot continue until either a decision
has been made by the party not to appeal or the appeal has been heard.
If the appeal on these issues was to wait until after the conclusion of the
proceedings, the operative's true identity would already have been
revealed. By allowing an appeal at the time the original decision is made
by the Court, the matter can be heard by the appeal court before the
operatives true identity is revealed. To wait until after the proceeding
has concluded to hear the appeal would frustrate the objectives of the
witness identity protection regime.
15MQ Witness identity protection certificate-cancellation
Witness identity protection certificates protect the operative's true
identity and address on an ongoing basis. However, there is no need for a
certificate to remain in place if there is no longer any requirement to
protect the operative's identity.
Section 15MQ will provide that a chief officer will be required to cancel a
witness identity protection certificate if the chief officer believes that
it is no longer necessary or appropriate to prevent the disclosure of the
operative's identity or address. If a certificate has already been filed
in a court, the chief officer will be required to immediately give written
notice to the court and each party to the proceeding that the certificate
has been cancelled.
This will provide a safeguard against the certificate being used as a
shield against investigation or prosecution in the event of any improper
conduct. For example, an operative whose identity is protected by a
certificate might give false evidence in a proceeding. In such cases, it
is important that the operative be prosecuted for an offence of perjury.
This may require revealing the operative's identity, and would clearly be
in the interests of justice to do so.
15MR Permission to give information disclosing operative's identity etc
There may be circumstances in which information that discloses, or may lead
to the disclosure of, the operative's true identity or address needs to be
given outside the context of the proceeding for which the certificate has
been filed. The Joint Working Group Discussion Paper gives the example of
an operative who is giving under an assumed or court name in a criminal
proceeding, who is required to give evidence at a disciplinary hearing of
another police officer (page 181).
Section 15MR will provide that a chief officer may give written permission
to a person (including the operative) to give information outside the
proceeding that may disclose or may lead to the disclosure of the
operative's identity or address. This will only be able to be done if the
chief officer believes it is necessary or appropriate for the information
to be given.
The written permission will be required to include certain matters,
including: the name the person who may give the information, the name of
the person to whom the information may be given, the information that may
be given and how the information may be given. The certificate would
otherwise remain in force and the operative's true identity or address
could not be disclosed for any other reason.
15MS Disclosure offences
These offences, and the penalties attached, are intended to protect the
safety of operatives, and assist the effective conduct of undercover
operations. While the certificate relates to only one proceeding, the
protection of the operative's identity is ongoing and it may be important
to continue to protect the operative's true identity even after that
proceeding has finished.
Section 15MS will create three offences that relate to the disclosure of an
operative's identity or address where the operative has been given a
witness identity protection certificate.
Under subsection 15MS(1), it will be an offence for a person to engage in
conduct that results in the disclosure of the operative's true identity or
address. This offence will be punishable by a maximum penalty of two years
imprisonment. The penalty for this offence is consistent with other non-
disclosure offences in Commonwealth legislation.
Section 5.6 of the Criminal Code will apply automatic fault elements to the
physical elements of the offence. To establish this offence, the
prosecution will need to prove beyond reasonable doubt that the person:
. was reckless as to the circumstance that a certificate has been given
. was reckless as to the circumstance that the certificate has not been
cancelled
. intentionally engages in conduct, and
. was reckless as to the result of that conduct that the operative's true
identity or address is disclosed.
Paragraph 15MS(1)(e) is an exception to the offence, and subsection 13.3(3)
of the Criminal Code will apply. That is, it will be an exception to the
offence if the conduct that the person engaged in was required, authorised
or permitted under sections 15ML, 15MM or 15MR. A defendant wishing to
rely on the exceptions in paragraph 15MS(1)(e) to avoid criminal
responsibility bears the evidential burden in relation to that matter. The
evidential burden of proof is set out in subsection 13.3(6) and requires
the defendant to adduce or point to evidence that suggests a reasonably
possibility that the matter exists or does not exist. The prosecution
would then need to refute this beyond reasonable doubt.
Under subsection 15MS(2), it will be an offence for a person to engage in
conduct that results in the disclosure of the operative's true identity or
address and the person is reckless as to whether their conduct will
endanger the health or safety of another person. This offence will be
punishable by a maximum penalty of 10 years imprisonment. Setting the
penalty at 10 years imprisonment is appropriate to ensure a significant
deterrent for disclosing an operative's true identity, where such a
disclosure will endanger the health or safety of that operative or another
person. This penalty is consistent with the penalty recommended in the
model laws.
Section 5.6 of the Criminal Code will apply automatic fault elements to the
physical elements of the offence set out in paragraphs 15MS(2)(a) - (d).
Paragraph 15MS(2)(f) provides that the fault element for that physical
element is recklessness. To establish this offence, the prosecution will
need to prove beyond reasonable doubt that the person:
. was reckless as to the circumstance that a certificate has been given
. was reckless as to the circumstance that the certificate has not been
cancelled
. intentionally engages in conduct
. was reckless as to the result of that conduct that the operative's true
identity or address is disclosed, and
. was reckless as to whether his or her conduct will endanger the health or
safety of a person.
It will not be necessary for the prosecution to prove that the health or
safety of a person was in fact endangered.
Similar to the offence described above, paragraph 15MS(2)(e) is an
exception to the offence, and subsection 13.3(3) of the Criminal Code will
apply. That is, it will be an exception to the offence if the conduct that
the person engaged in was required, authorised or permitted under
sections 15ML, 15MM or 15MR. A defendant wishing to rely on the exceptions
in paragraph 15MS(2)(e) to avoid criminal responsibility bears the
evidential burden in relation to that matter. The evidential burden of
proof is set out in subsection 13.3(6) and requires the defendant to adduce
or point to evidence that suggests a reasonably possibility that the matter
exists or does not exist. The prosecution would then need to refute this
beyond reasonable doubt.
Under subsection 15MS(3), it will be an offence for a person to engage in
conduct that results in the disclosure of the operative's true identity or
address and the person is reckless as to whether their conduct will
prejudice the effective conduct of an investigation or intelligence-
gathering in relation to criminal activity.
This offence will be punishable by a maximum penalty of 10 years
imprisonment. Setting the penalty at 10 years imprisonment is appropriate
to ensure a significant deterrent for disclosing an operative's true
identity, where such a disclosure will prejudice an investigation or
intelligence-gathering in relation to a criminal activity. The penalty is
consistent with the penalty found in the model laws.
Section 5.6 of the Criminal Code will apply automatic fault elements to the
physical elements of the offence set out in paragraphs 15MS(3)(a) - (d).
Paragraph 15MS(3)(f) provides that the fault element for that physical
element is recklessness. To establish this offence, the prosecution will
need to prove beyond reasonable doubt that the person:
. was reckless as to the circumstance that a certificate has been given
. was reckless as to the circumstance that the certificate has not been
cancelled
. intentionally engages in conduct
. was reckless as to the result of that conduct that the operative's true
identity or address is disclosed, and
. was reckless as to whether his or her conduct will prejudice the
effective conduct of an investigation or intelligence-gathering in
relation to criminal activity.
It will not necessary for the prosecution to prove that the effective
conduct of an investigation or intelligence-gathering in relation to
criminal activity was in fact prejudiced.
Similar to the offences described above, paragraph 15MS(3)(e) is an
exception to the offence, and subsection 13.3(3) of the Criminal Code will
apply. That is, it will be an exception to the offence if the conduct that
the person engaged in was required, authorised or permitted under
sections 15ML, 15MM or 15MR. A defendant wishing to rely on the exceptions
in paragraph 15MS(3)(e) to avoid criminal responsibility bears the
evidential burden in relation to that matter. The evidential burden of
proof is set out in subsection 13.3(6) and requires the defendant to adduce
or point to evidence that suggests a reasonably possibility that the matter
exists or does not exist. The prosecution would then need to refute this
beyond reasonable doubt.
15MT Evidentiary certificates
Section 15MS will create three offences that relate to the disclosure of an
operative's identity or address where the operative has been given a
witness identity protection certificate (see above).
For each of the offences in section 15MS, the prosecution will need to
prove, beyond reasonable doubt, that the person was reckless as to the
circumstance that the certificate has not been cancelled. Exceptions to
each of the offences in section 15MS will apply where a person has engaged
in conduct that was required, authorised or permitted under sections 15ML,
15MM or 15MR.
Section 15MT will allow a chief officer to sign a certificate stating, for
the purposes of the matters described above, whether a certificate has not
been cancelled, or whether the conduct that is the subject of the offence
was required, authorised by or permitted under sections 15ML, 15MM or 15MR.
This certificate will be able to be used as prima facie evidence of the
matters that are certified in it. This would avoid the need for the chief
officer to attend and give evidence in person. The defendant will still be
able to raise evidence to rebut the certificate.
15MU Reports about witness identity protection certificates-law enforcement
agencies
As witness identity protection certificates should only be given in
exceptional circumstances in order to protect the safety of persons or
avoid compromising operations, it will be important to have appropriate
accountability mechanisms in place.
Section 15MU will require the chief officer of law enforcement agency to
submit an annual report to the Minister about the certificates given by the
chief officer during that year. Subsection 15MU(2) will set out the
information that must be included in the report.
Section 15MU(3) will make it clear that the report is not to contain
information that discloses, or may lead to the disclosure of, the
operative's true identity or address, unless the certificate in relation to
that operative has been cancelled.
The Minister must cause a copy of the report to be laid before each House
of Parliament within 15 sitting days of that House after the day on which
the Minister receives the report.
There is no requirement that the annual report on witness identity
protection certificates be tabled as a stand alone document. This means
that provided the requirements in section 15MU are met, a report on witness
identity certificates could be included in the agency's annual report.
15MV Reports about witness identity protection certificates-intelligence
agencies
As witness identity protection certificates should only be given in
exceptional circumstances in order to protect the safety of persons or
avoid compromising operations, it will be important to have appropriate
accountability mechanisms in place.
Section 15MV will require the chief officer of an intelligence agency to
submit an annual report to the Inspector-General of Intelligence and
Security about the certificates given by the chief officer during that
year. Subsection 15MV(2) will set out the information that must be
included in the report.
Unlike the annual reporting requirements for certificates given by the
chief officer of a law enforcement agency (see above), the report on
certificates given by the chief officer of an intelligence agency will not
be required to be tabled in Parliament. Accordingly, there is no need for
a requirement similar to subsection 15MU(3) - which requires certain
information not to be included - as the report will not be made publicly
available.
This is consistent with the reporting requirements for intelligence
agencies under the assumed identity provisions in Part IAC.
Division 3 - Mutual Recognition under Corresponding Laws
15MW Recognition of witness identity protection certificates under
corresponding laws
The model laws include provisions which provide for the recognition of
witness identity protection certificates issued under corresponding laws.
This is to enable undercover operatives - who often have to work across
jurisdictions - to be protected by a certificate issued by their home
agency that is recognised in proceedings which may be held in another
jurisdiction.
Section 15MW will allow certificates issued under corresponding State or
Territory laws as if they were issued under this Part. For example, this
will mean that the non-disclosure offences in section 15MS would apply
regardless of the jurisdiction in which the certificate was given (provided
the law under which the certificate was given is recognised as a
corresponding law).
A 'corresponding witness identity protection law' will be defined in
subsection 15M(1) as a law or provision of a State or Territory that is
prescribed by the regulations.
Division 4 - General
15MX Delegation
Section 15MX will allow the chief officer to delegate any of his or her
functions (except the power of delegation) under this Part to a senior
officer of the agency. 'Senior Officer' will be defined in
subsection 15MX(3) for each of the law enforcement and intelligence
agencies to which this Part applies. This delegation is appropriately
limited to very senior officials within the agency and is necessary to
facilitate the effective use of the witness identity protection
certificates.
Part 2: Provisions relating to pre-commencement authorisations under State
controlled operations law
Subdivision B of Division 3 of new Part IAB of the Crimes Act will provide
protection from criminal liability for participants in controlled
operations authorised under a corresponding controlled operations law of a
State or Territory. This protection will operate prospectively (that is,
it will apply to relevant operations authorised on or after commencement of
the new Part).
The recent High Court case of Gedeon v Commissioner of New South Wales
Crime Commission [2008] HCA 43 highlighted the vulnerability of evidence
arising from controlled operations that had been validly authorised under a
State or Territory law and involved the commission of a Commonwealth
offence.
It is not uncommon for a State or Territory controlled operation to involve
the commission of a Commonwealth offence as most controlled operations
relate to drug offences, and most State or Territory drug offences are also
offences against Commonwealth law. It has not been the practice of State
and Territory law enforcement agencies to seek additional Commonwealth
authority for their controlled operations. Officers of those agencies may
therefore still be liable for any Commonwealth offences, and evidence
obtained from these operations may be at risk of challenge.
Following Gedeon, there is a real risk that a court could exclude evidence
obtained in such a controlled operation if that operation had not also been
authorised under Commonwealth law.
To address this issue, this Part 2 of Schedule 3 to the Bill seeks to
provide retrospective protection for State and Territory controlled
operations authorised prior to commencement of Schedule 3.
The items in this Part will operate to provide retrospective protection for
evidence obtained from, and participants in, operations authorised under a
State or Territory controlled operations law which may have involved the
commission of Commonwealth offences.
Item 11 - Relationship to other laws and matters
Item 11 is the equivalent, for controlled operations validly authorised
under a State controlled operations law before commencement of this
Schedule 3, of new section 15GA of the Crimes Act, which applies to
controlled operations authorised under State or Territory law after
commencement of this Schedule 3.
This item will protect evidence obtained under a State controlled
operations law, which, in this context, means a law of a State or
Territory, or a provision of a law of a State or Territory, prescribed by
regulation. This means that the protection offered by this item will not
be limited to corresponding controlled operations laws, but will cover any
controlled operations law that is, or has been, in force in a State or
Territory.
The reason for the broader definition is that 'corresponding controlled
operation laws' could only have been in place since 2003 at the earliest,
when the Joint Working Group published its model controlled operation laws.
However, controlled operations laws have existed since at least 1996.
Subitem 11(3) provides that the protection given by this item will apply to
controlled operations authorised prior to the commencement of this Schedule
3, whether the conduct otherwise constituting the Commonwealth offence
occurred before, on or after commencement of the Schedule. Subitem 11(3)
provides that the protection will also apply to proceedings, including
appeals, instituted before, on or after commencement of this Schedule 3.
However, subitem 11(5) provides that one exception to this application is
that the Crown will not be permitted to appeal a ruling that a court made,
prior to commencement of this Schedule 3, to exclude evidence on the basis
that it was illegally obtained. This restriction is included to ensure
that where an accused person has had a ruling made in his or her favour,
these retrospective amendments will not provide a ground of appeal for the
prosecution.
Item 12 - Protection from criminal responsibility for conduct engaged in
before, on or after commencement under a pre-commencement State
authorisation
Item 12 is the equivalent (for conduct engaged in before, on or after
commencement of these amendments, in a controlled operation validly
authorised under a State or Territory law before commencement of these
amendments) of new section 15HH of the Crimes Act (which applies to
controlled operations authorised under State or Territory law after
commencement of this Schedule 3).
As with the prospective protection which will be provided by section 15HH,
this item will ensure that participants who have engaged in conduct that
has been authorised under a controlled operation are not criminally liable.
Item 13 - Effect of item 12 on other laws relating to criminal
investigation
Item 13 is the equivalent, for controlled operations validly authorised
under a State or Territory law before commencement of these amendments, of
new section 15HI of the Crimes Act, which applies to controlled operations
authorised under a State or Territory law after commencement of this
Schedule 3. It provides that the protection from criminal liability does
not extend to other investigative conduct that is, or could have been,
authorised under Commonwealth, State or Territory law.
Item 14 - Protection from criminal responsibility for certain ancillary
conduct
Item 14 is the equivalent, for controlled operations validly authorised
before commencement, of new section 15HJ of the Crimes Act, which applies
to controlled operations authorised under a State or Territory law after
commencement of this Schedule 3. It provides protection from criminal
liability for ancillary conduct (within the meaning of the Criminal Code)
that relates to conduct protected by item 12.
This provision will only provide protection from criminal liability for
Commonwealth ancillary offences. The relevant State or Territory law would
have included protection against State or Territory ancillary offences.
Item 15 - Evidence of authorities
Item 15 is the equivalent, for controlled operations validly authorised
before commencement, of new section 15J of the Crimes Act, which applies to
controlled operations authorised under a State or Territory law after
commencement of this Schedule 3.
It provides that an authority issued, before commencement of these
amendments, under a State or Territory controlled operations law is, in the
absence of evidence to the contrary, proof that the person who granted the
authority was satisfied of the facts that he or she was required to be
satisfied of to grant the authority.
Item 16 - Definitions
Item 16 will provide definitions for this Part 2 of Schedule 3.
It should be noted that a State controlled operations law, which will be
defined under this Part is different to a corresponding State controlled
operations law, which will be defined in Part 1 of Schedule 3.
A 'State controlled operations law' is a State or Territory law, or
provisions of a State or Territory law, prescribed by regulation. A State
controlled operations law will include legislation and provisions that are
not based on the model legislation. This will ensure that there is
retrospective protection for evidence obtained from, and participants in,
all operations validly authorised under State or Territory laws which may
have involved the commission of Commonwealth offences.
Part 3-General application and transitional provisions
Item 17 - Controlled operations authorised before commencement continue
under old law
This item is a transitional provision that will ensure that controlled
operations authorised under the current Part IAB of the Crimes Act continue
in force. The current Part IAB, although repealed, will continue to apply
to those operations as though it had not been repealed.
Item 18 - Controlled operations - continuation of Division 3 of Part IAB
This item is a savings provision that will ensure that controlled
operations authorised prior to the commencement of the current Part IAB of
the Crimes Act, which were continued in force by Division 3 of that Part,
are not be deemed invalid because of the repeal of current Part IAB. In
the absence of this provision, controlled operations authorised prior to
the commencement of the current Part IAB (in 1996) could be invalidated.
This could lead to challenges against evidence obtained from those
operations being introduced in court proceedings.
Item 19 - Assumed identities - authorisations taken to be authority under
new law
This item is a transitional provision that will ensure that any assumed
identity authorities granted under the current Part IAC of the Crimes Act
continue in force. The current Part IAC, although repealed, will continue
to apply to those authorities as though it had not been repealed.
Item 20 - Assumed identities - continuation of old law in relation to
States without corresponding laws
This item will ensure that current section 15XH of the Crimes Act will
continue to operate in relation to a State or Territory that is not a
participating jurisdiction.
Section 15XH states that the head of a participating State or Territory
agency (defined at existing section 15XA of the Crimes Act) may authorise a
person to acquire evidence of an assumed identity from any Commonwealth
agency. This means that, despite the repeal of section 15XH, any State or
Territory that is not a participating jurisdiction (which will be defined
at new section 15K as a jurisdiction that has a corresponding assumed
identity law that is prescribed in regulations) can still acquire evidence
of an assumed identity from a Commonwealth agency.
This item will also ensure that current Part IAC of the Crimes Act, and any
other provision of the Crimes Act that relates to current Part IAC,
continues to have effect in relation to authorisations granted under
current Part IAC, as if Part IAC had not been repealed.
Part 4 - Consequential amendments of other legislation
Customs Act 1901
Item 11 - Section 219ZJA of the Customs Act 1901
This item will update a reference in the Customs Act 1901 to a current
provision of the Crimes Act, to ensure that the Customs Act contains a
reference to a provision in new Part IAB of the Crimes Act.
Schedule 4 - Other Amendments
Schedule 4, Part 1 - Criminal Code Act 1995
Introduction
Part 1 of Schedule 4 amends the extension of criminal liability
provisions in Part 2.4 of the Criminal Code Act 1995 (the Criminal
Code) to insert a new provision that extends criminal liability to
persons who jointly commit an offence (joint commission). This Part
also contains minor and technical amendments, and consequential
amendments, to Part 2.4.
Part 2.4 of the Criminal Code (sections 11.1 - 11.6) contains
provisions designed to extend criminal responsibility to persons who do
not actually commit an offence, but:
. attempt to commit an offence (attempt at 11.1)
. are accomplices to the commission of an offence (complicity and common
purpose at 11.2)
. procure the commission of an offence by an agent (innocent agency at
11.3)
. incite the commission of an offence, (incitement at 11.4) or
. conspire with another person to commit an offence (conspiracy at
11.5).
Item 1 - Subsection 11.1(7)
This item inserts a reference to new section 11.2A (joint commission) and
section 11.3 (commission by proxy) into subsection 11.1(7) of the Criminal
Code.
The insertion of a reference to section 11.2A into section 11.1(7) is a
consequential amendment arising from the insertion of new section 11.2 A
into Part 2.4. The effect of this amendment is that a person cannot be
charged with attempting to engage in conduct that meets the requirements of
section 11.2A. This is appropriate because joint commission only applies
to completed offences.
The insertion of a reference to section 11.3 into section 11.1(7) is a
minor and technical amendment that clarifies that a person cannot be
charged with attempting to engage in conduct that meets the requirements of
section 11.3. The note in Item 4 of this Part, renames section 11.3 from
'innocent agency' to 'commission by proxy' (see item 4 for further
explanation). This is appropriate because commission by proxy only applies
to completed offences.
Item 2 - Subsection 11.2(5)
This item omits the term 'principal offender' from subsection 11.2(5) and
substitutes that term with 'other person'.
This is a minor and technical amendment that ensures that section 11.2 is
internally consistent. As outlined above, section 11.2 extends criminal
responsibility to persons who are accomplices to the commission of an
offence by another person. In most subsections in section 11.2, the person
who is assisted by the accomplice is referred to as 'other person' whereas
in subsection 11.2(5), that person is referred to as the 'principal
offender'. Therefore, the reference to the term 'principal offender' is
inconsistent with the rest of subsection 11.2, and potentially misleading.
This amendment does not change the substantive effect of subsection
11.2(5). The subsection continues to ensure that a person may be found
guilty of aiding, abetting, counselling or procuring the commission of an
offence even if the 'other person' has not been prosecuted or has not been
found guilty.
Item 3 - Subsection 11.2(6)
This item omits the words 'to the offence of aiding, abetting, counselling
or procuring the commission of that offence' from subsection 11.2(6) and
substitutes those words with 'for the purposes of determining whether a
person is guilty of that offence because of the operation of subsection
(1)'.
This minor and technical amendment ensures that 11.2(6) does not mistakenly
refer to section 11.2 as an independent offence. The words 'to the offence
of aiding, abetting, counselling or procuring the commission of that
offence' mistakenly suggest section 11.2 is an offence. Section 11.2 is
not an offence, because liability under this provision is derived from a
connection to a principal offence. Liability depends on proof that another
person or persons committed the offence.
This amendment does not change the substantive effect of subsection
11.2(6).
Item 4 - After subsection 11.2
This item inserts a new section 11.2A (joint commission) into Part 2.4 of
the Criminal Code.
Joint commission applies when two or more people agree to commit an offence
together, and an offence is committed under that agreement. The effect of
joint commission is that responsibility for criminal activity engaged in
under the agreement by one member of the group is extended to all other
members of the group. Given that joint commission is a provision that
extends criminal responsibility for offences, it is being inserted into
Part 2.4, alongside other provisions that extend criminal responsibility to
persons who were not wholly responsible for committing an offence.
People who jointly commit an offence under this provision are to be known
as 'joint offenders', as distinct from accomplices, to reflect joint
responsibility for the commission of an offence.
Reasons for inserting joint commission into Part 2.4
The new joint commission provision addresses a gap in Part 2.4 of the
Criminal Code by introducing into the Code the common law principle of
'joint criminal enterprise' (sometimes referred to as offenders 'acting in
concert' in the commission of an offence).
None of the existing grounds for extending criminal responsibility in Part
2.4 capture circumstances where there is an agreement to commit an offence,
and the offence is committed under that agreement.
Prior to the enactment of the Criminal Code, the prosecution would have
relied upon the common law principle of joint criminal enterprise to
capture offenders who acted together in the commission of an offence.
The view that joint criminal enterprise is not available under the Criminal
Code has been confirmed in cases prosecuted after the enactment of the
Criminal Code. For example, in the unreported case of R v Pui Man Liu and
Sin Chun Wong, Justice Keleman of the New South Wales District Court held
that joint criminal enterprise did not exist under the Code.
Subsection 11.2A(1)
Subsection 11.2A(1) sets out the circumstances in which joint commission
applies, and its effect.
The threshold requirements for the application of joint commission are:
. a person and at least one other person enter into an agreement to
commit an offence, and either
. an offence is committed in accordance with that agreement, or
. an offence is committed in the course of carrying out the agreement.
The other requirements for the application of joint commission are set out
in subsections 11.2A(2) - 11.2A(8). The meaning of agreement is set out in
11.2A(5). The detail of how an offence may be committed in accordance with
the agreement, or committed in the course of carrying out the agreement are
set out in subsections 11.2A(2) and 11.2A(3). Offences committed under an
agreement are known as 'joint offences'.
Where these threshold requirements are met, the effect of joint commission
is to extend criminal responsibility for joint offences to each party to
the agreement. A person that is convicted of a joint offence is liable to
receive the penalty prescribed for that offence.
The default fault elements in section 5.6 of the Criminal Code do not apply
to subsection 11.2A(1). The fault element for entering into an agreement
to commit an offence is provided in subsection 11.2A(2).
Subsection 11.2A(2)
Subsection 11.2A(2) sets out the requirements for how a joint offence may
be committed 'in accordance with' an agreement to commit an offence,
referred to in subparagraph 11.2A(1)(b)(i).
If the requirements of this subsection are met, joint commission will apply
to extend criminal responsibility to a person for a joint offence committed
in accordance with the agreement.
The first requirement is that the joint offence that is actually committed
must be an offence of the same type as the offence agreed to. The
requirement is broad enough to cover situations where the exact offence
agreed to may not have been committed by the parties to the agreement, but
a joint offence of the same type was committed. This is particularly
relevant where people agree to commit a specific drug offence, but the
quantity of the drugs, or the type of drug varies from the offence agreed
to. For example, if two people agree to import 1 kilogram of cocaine
(marketable quantity), and instead import 1.5 kilograms of heroin
(commercial quantity), this definition is broad enough to capture the
offence of importing 1.5 kilograms of heroin, because it is an offence of
the same type as the offence agreed to.
The other requirements that this subsection imposes are:
. the conduct of one or more parties must make up the physical elements
consisting of conduct of the joint offence
. where an element of the joint offence consists of a result of conduct,
that result arises from the conduct engaged in, and
. where an element of the joint offence consists of a circumstance, the
conduct engaged in, or a result of the conduct engaged in, occurs in
that circumstance.
These other requirements work together to ensure the prosecution is
required to demonstrate the existence of all the physical elements of the
joint offence. The structure of the subsection is designed to address the
three types of physical elements that may be present in a Commonwealth
offence (as set out in section 4.1 of the Criminal Code), and recognises
that offences commonly contain more than one physical element.
The key paragraph is 11.2A(2)(a) which provides that the physical elements
of conduct of the joint offence may be proved by demonstrating that one or
more parties to the agreement engaged in that conduct. This allows the
prosecution to aggregate the criminal conduct of parties to the agreement.
This aggregation is consistent with the common law formulation of joint
criminal enterprise found in McAuliffe v The Queen [1995] HCA 37; (1995)
183 CLR 108 at 118; and confirmed in Clayton v R [2006] HCA 58; (2006) 231
ALR 500.
The ability to aggregate the conduct of parties to the agreement is the
central point of joint commission. This enables the prosecution to target
groups who divide criminal activity between them. For example, the
prosecution would be able to charge two offenders with robbery by
aggregating their conduct where one offender makes a threat and the other
offender appropriates the Commonwealth property (section 132.2 of the
Criminal Code).
Further, the ability aggregate the conduct of the parties to the agreement
means that it is not necessary for the prosecution to specify which party
to the agreement engaged particular conduct. This is helpful in situations
where it is not possible to determine with precision the role of each party
to the agreement.
The ability to aggregate the conduct of parties to the agreement also
enables the prosecution to charge more serious offences. This is
particularly relevant for drug offences, where the penalties are linked to
the quantity of drugs dealt with (section 314.1 of the Criminal Code sets
out the quantity of controlled drugs required for a trafficable quantity,
marketable quantity and commercial quantity).
For example, the prosecution would be able to charge three defendants with
importing a commercial quantity of heroin (1.5 kilograms of heroin) by
aggregating the conduct of each offender where they import 500 grams each.
The offence of importing a commercial quantity of heroin carries a penalty
of life imprisonment or 7,500 penalty units (section 307.1 Criminal Code).
Without aggregation, each party to the agreement to import 1500 grams of
heroin could only be charged with importing a marketable quantity,
attracting a maximum penalty of 25 years imprisonment.
Subsection 11.2A(3)
Subsection 11.2A(3) sets out the requirements for how a joint offence may
be committed 'in the course of carrying out' an agreement to commit an
offence, referred to in 11.2A(1)(b)(ii).
If the requirements of this subsection are met, joint commission will apply
to extend criminal responsibility to a person for a joint offence committed
in the course of carrying out the agreement.
This subsection provides that a joint offence is committed in the course of
carrying out the agreement where:
. an offence, other than the offence agreed to, was committed by another
party to the agreement (also known as a collateral offence)
. in the course of carrying out the agreement, and
. the person was reckless as to the commission of that collateral
offence by the other party.
Recklessness is a fault element defined in section 5.4 of the Criminal
Code. In accordance with section 5.4, the person will be reckless with
respect to the commission of a collateral offence by another party to the
agreement, if he or she is aware of a substantial risk that the offence
will be committed, and having regard to the circumstances known to him or
her, it is unjustifiable to take that risk.
The operation of this subsection is explained through the following
example.
For example, persons A and B agree to commit the Commonwealth offence of
people smuggling by bringing two non-citizens into Australia (section 73.1
Criminal Code). In the course of transporting the non-citizens to
Australia, person B conceals 500 grams of heroin and imports it into
Australia. Here, the collateral offence would be importing a marketable
quantity of drugs (section 307.2 Criminal Code).
If the prosecution can prove that person A was aware of a substantial risk
that person B would import drugs into Australia and it was unjustifiable to
take that risk, then this subsection will apply to extend criminal
responsibility for the collateral offence to person A.
This subsection slightly modifies the common law principle of extended
common purpose to ensure consistency with the Criminal Code. The common
law principle provides that if a party to an agreement to commit an offence
foresees the possibility that a collateral offence will be committed, and,
despite that foresight, continues to participate in the agreement, that
party will be held criminally responsible for the collateral offence:
McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108 at 118; Gillard v
The Queen [2003] HCA 64; (2003) 219 CLR 1 at 36 [112]. In this subsection,
the possible foreseeability test is replaced with a test of recklessness,
as recklessness is the appropriate fault element in the Criminal Code and
is most consistent with the common law.
The rationale for this provision is:
. it will act as a deterrent for people who are considering whether to
participate in group criminal activity, and
. people who choose to commit crimes in concert with others, should
share responsibility for criminal activity that occurs during the
course of carrying out the agreement to commit an offence.
These arguments are expressed by Justice Kirby in Gillard v The Queen
(2003) 219 CLR 1, [62].
Those who participate in activities highly dangerous to life and limb
share equal responsibility for the consequences of the acts that ensue.
This is because, as the law's experience shows, particularly when
dangerous weapons are involved in a crime scene, whatever the actual
and earlier intentions of the secondary offender, the possibility
exists that the primary offender will use the weapons, occasioning
death or grievous bodily harm to others. The law then tells the
secondary offender not to participate because doing so risks equal
inculpation in such serious crimes as ensue.
Subsection 11.2(4)
Subsection 11.2(4) provides that joint commission will apply where the
person and one other party to the agreement intended to commit an offence
under the agreement.
Intention is a fault element defined in section 5.2 of the Criminal Code.
This subsection requires the person to have intention with respect to a
physical element of conduct (conduct that would constitute the commission
of an offence in accordance with the agreement). Section 5.2 provides that
a person has intention with respect to conduct if he or she means to engage
in that conduct.
Joint commission will only apply to a party to an agreement to commit an
offence, if that person means to engage in conduct that would bring that
offence about. For example, joint commission will not apply to people who
joked about impersonating a Commonwealth public official, but did not
intend to actually commit that offence (section 148.1 Criminal Code).
Subsection 11.2(4) does not have the effect of altering the fault elements
applicable to the joint offence.
Subsection 11.2(5)
Subsection 11.2(5) ensures that a non-verbal understanding is covered by
the term 'agreement', and provides a temporal requirement for when an
agreement to commit an offence can occur for the purpose of joint
commission.
'Agreement' is intended to be broad in its meaning and to capture any
agreement, arrangement or understanding that can be implied or inferred
taking into account all of the circumstances. This is consistent with case
law on the application of the common law principle of joint enterprise:
McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108 at 118 [12]. For
example, 'agreement' is intended to include:
. express agreements - verbal or written understandings, communicated in
person or through electronic means such as phone or internet, and
. implied agreements - non-verbal understandings communicated through a
person's actions, gestures, or implied through other means.
Subsection 11.2(5)(b) provides that the agreement may be entered into
before, or at the same time as, the conduct constituting any of the
physical elements of the joint offence was engaged in. This timing ensures
that joint commission applies to agreements made before the joint offence
was completed and also at the time the joint offence was being committed.
For example, if two separate burglars meet while breaking into one
Commonwealth building, they may assist each other and share the stolen
property without communicating verbally or making any prior agreements or
arrangements about the burglary (see section 132.4 Criminal Code).
Subsection 11.2(6)
Subsection 11.2(6) provides that a person cannot be found guilty of a joint
offence if, before the offence was committed, the person terminated his or
her involvement and took all reasonable steps to prevent the commission of
the offence.
This section acts as a safeguard to prevent joint commission from applying
to a person who genuinely withdraws from an agreement to commit an offence.
The person is required to 'take all reasonable steps to prevent the
commission of the offence'. What will amount to taking all reasonable
steps will vary according to the case, but examples may include:
. discouraging the other parties to the agreement
. alerting the proposed victim
. withdrawing goods necessary for committing the crime (for example, a
getaway car or weapon), and
. giving a timely warning to law enforcement authorities, before the
offence is committed.
The withdrawal provision acts a defence to the application of joint
commission, since a person 'cannot be found guilty' if they withdraw from
the commission of an offence. Therefore, by virtue of subsection 13.3(3)
of the Criminal Code, the defendant will bear an evidential burden of proof
to point to evidence that suggests a reasonable possibility that the
requirements of subsection 11.2A(6) are satisfied.
This paragraph is consistent with subsection 11.2(4) in the complicity and
common purpose provision.
Subsection 11.2(7)
Subsection 11.2(7) provides that a person can be convicted of a joint
offence even where the following circumstances exist:
. one other party to the agreement has not been prosecuted or found
guilty, or
. where the person was not present when any of the conduct that made up
the joint offence occurred.
Paragraph 11.2(7)(a) provides that joint commission will apply regardless
of the status of criminal proceedings against other parties to the
agreement. This reflects the position that criminal responsibility under
joint commission is not dependent on whether other parties to the agreement
are found guilty of the joint offence. This paragraph is consistent with
subsection 11.2(5) in the complicity and common purpose provision.
Paragraph 11.2(7)(b) provides that joint commission will apply regardless
of whether a person was absent when conduct making up the physical elements
of the joint offence occurred. This provision recognises that offences can
be committed by offenders, acting in pursuance of an agreement, who may not
be in close physical proximity to each other, or to their victim (if
applicable). Further, given that many offences can be committed through
electronic communication such as telephones or the internet, it is
appropriate that joint commission apply in circumstances where parties to
the agreement were not present when conduct making up the physical elements
of the joint offence occurred.
Subsection 11.2A(8)
Subsection 11.2A(8) provides that any 'special liability provisions' which
apply to the joint offence also apply to joint commission.
The Dictionary to the Criminal Code provides a definition of special
liability provisions. There are three types of special liability
provisions:
. a provision that provides that absolute liability applies to one or
more (but not all) of the physical elements of an offence; or
. a provision that provides that, in a prosecution for an offence, it is
not necessary to prove that the defendant knew a particular thing; or
. a provision that provides that, in a prosecution for an offence, it is
not necessary to prove that the defendant knew or believed a
particular thing.
Special liability provisions in the Criminal Code are often used to relieve
the prosecution from the need to prove fault with respect to jurisdictional
elements of an offence. A jurisdictional element of an offence is an
element that does not relate to the substance of the offence, but marks a
jurisdictional boundary between matters that fall within the legislative
power of the Commonwealth, States or Territories. Generally, absolute
liability applies to jurisdictional elements of Commonwealth offences.
The effect of this subsection is to ensure that any special liability
provisions that apply to the joint offence also apply for the purposes of
determining whether a person is guilty of that offence through joint
commission.
This subsection is consistent with the following provisions: attempt at
11.1(6A), complicity and common purpose at 11.2(6), incitement at 11.4(4A),
and conspiracy at 11.5(7A).
Note below subsection 11.2A(8)
The note below subsection 11.2A(8) replaces the current heading to section
11.3 of the Criminal Code, 'Innocent Agency', with 'Commission by Proxy'.
This amendment is not related to joint commission.
This is a minor and technical amendment which ensures that the heading to
section 11.3 reflects its purpose and operation. Section 11.3 applies to
defendants who use another person as their agent or instrument to commit an
offence. A defendant can be convicted of an offence if they procure
another person to engage in conduct that would amount to that offence or
part of that offence. The provision can apply both where the agent
unwittingly engages in conduct that constitutes an offence (sometimes
referred to as an 'innocent agent') and where the agent has some knowledge
of the offence they have committed.
The title 'Innocent Agency' is therefore misleading as it does not capture
situations where the agent has some knowledge of the crime for which they
acted as an agent. 'Commission by proxy' more accurately reflects the
operation of the section.
Item 5 - Subsection 11.6(4)
This item amends the note beneath subsection 11.6(4) of the Criminal Code
to omit a reference to section 11.3 (innocent agency) and substitute it
with a reference to sections 11.2A (joint commission) and 11.3 (commission
by proxy).
This is a consequential amendment that updates subsection 11.6(4) to refer
to new section 11.2A, and the new heading to section 11.3.
The effect of this amendment is that section 11.6(4) will not refer to
11.2A or 11.3 as offences against a law of the Commonwealth. This is
appropriate because these sections are extension of criminal responsibility
provisions rather than independent offences.
Item 6 - Subsection 14.1(1)
This item amends the note beneath subsection 14.1(1) of the Criminal Code
to omit a reference to subsection 11.2(1) and substitute it with a
reference to subsections 11.2(1) and 11.2A(1).
This is a consequential amendment that updates subsection 14.1(1) to refer
to the new joint commission provision.
The effect of the amendment is that references to 'offence' in section
14.1(1) will be supported by a note indicating that subsection 11.2A(1) and
other relevant provisions give the expression 'offence' an extended
meaning. This is appropriate because section 11.2A extends criminal
responsibility for joint offences.
Item 7 - Subsection 15.1(1)
This item amends the note beneath subsection 15.1(1) of the Criminal Code
to omit a reference to subsection 11.2(1) and substitute it with a
reference to subsections 11.2(1) and 11.2A(1).
This is a consequential amendment that updates subsection 15.1(1) to refer
to the new joint commission provision.
The effect of the amendment is that references to 'offence' in section
15.1(1) will be supported by a note indicating that subsection 11.2A(1) and
other relevant provisions give the expression 'offence' an extended
meaning. This is appropriate because section 11.2A extends criminal
responsibility for joint offences.
Item 8 - Subsection 15.2(1)
This item amends the note beneath subsection 15.2(1) of the Criminal Code
to omit a reference to subsection 11.2(1) and substitute it with a
reference to subsections 11.2(1) and 11.2A(1).
This is a consequential amendment that updates subsection 15.2(1) to refer
to the new joint commission provision.
The effect of the amendment is that references to 'offence' in section
15.2(1) will be supported by a note indicating that subsection 11.2A(1) and
other relevant provisions give the expression 'offence' an extended
meaning. This is appropriate because section 11.2A extends criminal
responsibility for joint offences.
Item 9 - Subsection 15.3(1)
This item amends the note beneath subsection 15.3(1) of the Criminal Code
to omit a reference to subsection 11.2(1) and substitute it with a
reference to subsections 11.2(1) and 11.2A(1).
This is a consequential amendment that updates subsection 15.3(1) to refer
to the new joint commission provision.
The effect of the amendment is that references to 'offence' in section
15.3(1) will be supported by a note indicating that subsection 11.2A(1) and
other relevant provisions give the expression 'offence' an extended
meaning. This is appropriate because section 11.2A extends criminal
responsibility for joint offences.
Item 10 - Section 15.4
This item amends the note beneath section 15.4 of the Criminal Code to omit
a reference to subsection 11.2(1) and substitute it with a reference to
subsections 11.2(1) and 11.2A(1).
This is a consequential amendment that updates subsection 15.4 to refer to
the new joint commission provision.
The effect of the amendment is that references to 'offence' in section 15.4
will be supported by a note indicating that subsection 11.2A(1) and other
relevant provisions give the expression 'offence' an extended meaning.
This is appropriate because section 11.2A extends criminal responsibility
for joint offences.
Item 11 - Subsection 70.5(1)
This item amends the note beneath subsection 70.5(1) of the Criminal Code
to insert a reference to subsection 11.2A.
This is a consequential amendment that updates subsection 70.5(1) to refer
to the new joint commission provision.
The effect of the amendment is that references to 'offence' in section
70.5(1) will be supported by a note indicating that subsection 11.2A(1) and
other relevant provisions give the expression 'offence' an extended
meaning. This is appropriate because section 11.2A extends criminal
responsibility for joint offences.
Item 12 - Paragraph 302.6(a)
This item amends paragraph 302.6(a) of the Criminal Code to insert a
reference to subsection 11.2A.
This is a consequential amendment that updates paragraph 302.6(a) to refer
to the new joint commission provision. The effect of this amendment is
that joint commission cannot apply to hold a person criminally responsible
for an offence against Division 302 of the Criminal Code merely because the
person purchases or intends to purchase a controlled drug from another
person.
This amendment is consistent with the policy behind this provision. The
other extensions of criminal responsibility provisions (including section
11.2, 11.4 or 11.5) are also excluded from operating to make a person
responsible for an offence against the Division because the person
purchases, or intends to purchase, a controlled drug from another person.
Item 13 - Dictionary in the Criminal Code (paragraph (b) of the definition
of ancillary offence)
This item amends paragraph (b) the definition of ancillary offence in the
dictionary of the Criminal Code to insert a reference to subsection 11.2A.
This is a consequential amendment that updates the definition of ancillary
offence to refer to the new joint commission provision. This is
appropriate because joint commission is an extension of criminal
responsibility provision rather than an independent offence.
Schedule 4, Part 2 - Amendments to the Telecommunications (Interception and
Access) Act 1979
Introduction
Schedule 4 Part 2 amends the definition of "serious offence" within section
5D of the Telecommunications (Interception and Access) Act 1979 (the TIA
Act) to include particular conduct that would target associating with,
contributing to, aiding and conspiring with a criminal organisation or a
member of that organisation for the purpose of supporting the commission of
prescribed offences.
The purpose of the amendments is to allow telecommunications interception
to be available for the investigation of these offences by State and
Territory law enforcement agencies. Schedule 4 Part 2 also includes
amendments to defined "associate", "criminal organisation" and "member".
The amendments respond to the growing effect of organised crime on the
Australian community and recent legislative action from State and Territory
Governments who have introduced new serious and organised crime offences.
Item 14 - Subsection 5(1)
Item 14 of Part 2 of Schedule 4 inserts a definition of "associate" in
relation to the new offences that will be included in the definition of
"serious offence" in section 5D of the TIA Act by Item 17. The
definition draws on the definition of associate in the Crimes (Criminal
Organisations Control) Act 2009 of New South Wales (the NSW Act) and
the Serious and Organised Crime (Control) Act 2008 of South Australia
(the SA Act). This definition will ensure an individual is taken to
"associate" with a criminal organisation if they are in communication
with the organisation, or a member of the organisation, even if they
are not involved in face to face contact with the organisation or one
of its members.
Item 15 - Subsection 5(1)
Item 15 inserts a definition of "criminal organisation" into the TIA
Act. The definition will provide greater clarity for both interception
agencies and issuing authorities when applying for and assessing
applications for telecommunications interception warrants for the
investigation of serious and organised crime offences.
The definition makes reference to organisations which have been
declared under either the NSW or SA Acts.
The definition will also provide for the Attorney-General to prescribe
certain State and Territory laws which define a criminal organisation
to ensure that the TIA Act provides for a national approach to
combating serious and organised crime and encompasses any new laws
enacted by States and Territories.
Item 16 - Subsection 5(1)
Item 16 inserts a definition of "member" into subsection 5(1) of the
TIA Act to clarify which individuals will be considered members of
criminal organisations. The definition of member is based on the NSW
and SA Acts and includes prospective members of an organisation, as
well as individuals who identify themselves as members of a criminal
organisation or individuals who are perceived as members. This
provision will ensure that all persons who participate in the
activities of a criminal organisation which generally do not have any
formal structure, as in a body corporate or registered corporation,
fall within the term 'member'.
Item 17 - New subsection 5D(9)
Interception agencies can apply for a telecommunications interception
warrant in relation to the investigation of a serious offence.
"Serious offence" is defined in section 5D of the TIA Act and is an
offence which generally carries a maximum penalty of at least seven
years' imprisonment. Some serious offences carry a penalty lower than
the seven year imprisonment threshold, often for offences where
telecommunications play an important role in the commission of the
offence (such as cybercrime offences or offences relating to the
production and distribution of child pornography).
Item 17 amends section 5D of the TIA Act to include offences relating
to an individual's involvement in serious and organised crime.
The conduct targeted includes:
. associating with a criminal organisation, or a member of a
criminal organisation;
. contributing to the activities of a criminal organisation;
. aiding, abetting, counselling or procuring the commission
of a prescribed offence for a criminal organisation;
. being, by act or omission, in any way, directly or
indirectly, knowingly concerned in, or party to, the
commission of a prescribed offence for a criminal
organisation; or
. conspiring to commit a prescribed offence for a criminal
organisation.
Telecommunications interception needs to be available for the
investigation of these offences to ensure that law enforcement agencies
can obtain the most effective evidence of an individual's involvement
with serious and organised crime.
The provisions refer to the commission and facilitation of "prescribed
offences". A prescribed offence is defined in the TIA Act as either a
serious offence, or an offence which carries a maximum penalty of at
least three years' imprisonment. This measure recognises the invasive
nature of telecommunications interception and ensures that the
community's expectations of both operational effectiveness and
appropriate protections for privacy are balanced.
Item 18 - Application
Item 18 is a new provision which enables conduct within the meaning of
the new provisions to be investigated whether or not the conduct in
question occurred before or after the conduct was included in the
definition of "serious offence".
Part 3 - Regulations
Item 19 Regulations
Item 19 will allow the Governor-General to make regulations necessary for,
or prescribed by, the TIA Act. In particular, this power is necessary to
ensure that State controlled operations and assumed identity laws can be
prescribed for the purposes of the retrospective protection set out in
Schedule 3.