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CRIMES LEGISLATION AMENDMENT (SERIOUS AND ORGANISED CRIME) BILL 2009

                                  2008-2009







               THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA








                                   SENATE




    CRIMES LEGISLATION AMENDMENT (SERIOUS AND ORGANISED CRIME) BILL 2009





                    SUPPLEMENTARY EXPLANATORY MEMORANDUM



             Amendments to be Moved on Behalf of the Government






              (Circulated by authority of the Attorney-General,
                    the Honourable Robert McClelland MP)



CRIMES LEGISLATION AMENDMENT (SERIOUS AND ORGANISED CRIME) BILL 2009

GENERAL OUTLINE

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

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

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

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

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

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

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

FINANCIAL IMPACT STATEMENT

The amendments to the Bill will have no financial impact.

ACRONYMS

CDPP             Commonwealth Director of Public Prosecutions

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

NOTES ON CLAUSES

Amendment (1)

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

Amendment (2)

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

Amendment (3)

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

Amendment (4)

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

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

 . a copy of the freezing order, and

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

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

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

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

Amendment (5)

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

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

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

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

 . the authorised officer who applied for the freezing order

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

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

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

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

Amendment (6)

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

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

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

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