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2008-2009
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
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 Bill was introduced in the House of Representatives on 24 June 2009 and
was referred to the Senate Standing Committee on Legal and Constitutional
Affairs (the Senate Committee), which reported on 17 September 2009. The
Senate Committee made 13 recommendations. The proposed Government
amendments will give effect to most of the Committee's recommendations.
The amendments will also respond to issues identified in Questions on
Notice from the Senate Committee and Alert Digest 9/2009 of the Standing
Committee for the Scrutiny of Bills, as well as issues identified as a
result of ongoing discussions between the Attorney-General's Department and
portfolio agencies.
FINANCIAL IMPACT STATEMENT
The amendments to the Bill will have no financial impact.
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
C(COC)A Crimes (Criminal Organisations Control) Act 2009 (NSW)
CDPP Commonwealth Director of Public Prosecutions
Crimes Act Crimes Act 1914
Senate Committee Senate Standing Committee on Legal and Constitutional
Affairs
the Bill Crimes Legislation Amendment (Serious and Organised
Crime) Bill 2009
TIA Act Telecommunications (Interception and Access) Act 1979
NOTES ON CLAUSES
Amendments to Schedule 1
Amendment (1)
This amendment will amend proposed subsection 179B(2), which will be
inserted by Schedule 1 of the Bill, to require that an authorised officer
must state in their affidavit, supporting an application for a preliminary
unexplained wealth order, the grounds on which he or she holds a reasonable
suspicion that a person's total wealth exceeds his or her lawfully acquired
wealth. This amendment will implement recommendation 3 of the Senate
Committee's report on the Bill.
This amendment is in addition to the existing requirement that the court be
satisfied that an authorised officer has reasonable grounds to suspect that
a person's wealth exceeds the value of the persons' wealth that was
lawfully acquired (see proposed paragraph 179B(1)(b)) before making a
preliminary unexplained wealth order.
Amendment (2)
This amendment will insert a new subsection 179B(3) into proposed
section 179B, which will be inserted by Schedule 1 of the Bill. The effect
of this amendment will be that a court will be required to make a
preliminary unexplained wealth order, without notice being given to any
person, if the CDPP requests that the order be made ex parte. This
amendment is modelled on existing subsection 26(4), which requires a court
to consider an application for a restraining order without notice if
requested to do so by the CDPP.
Amendments (3) and (4)
These amendments will delete proposed subsections 179C(3) and (5), which
would be inserted by Schedule 1 of the Bill and deal with notice
requirements and adducing additional information for hearings under
proposed section 179C. These procedures will now be contained in proposed
new subsection 179CA in amendment (5).
These amendments will also delete proposed subsection 179C(6) in Schedule 1
of the Bill and insert a new subsection 179C(5). The effect of new
subsection 179C(5) will be that a court will have a discretion to revoke a
preliminary unexplained wealth order if it is in the public interest to do
so. This amendment will implement recommendation 1 of the Senate
Committee's report on the Bill. Providing the court with this discretion is
consistent with other provisions in the Act. For example, existing
subsection 19(4) gives the court discretion to refuse to make a restraining
order if the court considers it is not the public interest to make the
order.
These amendments will also have the effect of clarifying that the time at
which a court considers whether there were grounds to make a preliminary
unexplained wealth order is at the time of the application under proposed
section 179C, not the time at which the preliminary order was made under
proposed section 179B. This will ensure that decisions about whether a
preliminary unexplained wealth order should have been made will be made on
all of the available evidence, and will not require the CDPP to
unnecessarily reapply for a new preliminary unexplained wealth order.
New subsection 179C(5) will make it clear that a preliminary unexplained
wealth order can only be revoked where a person has made an application for
revocation. The effect of this amendment will be that a court will not be
able to revoke a preliminary unexplained wealth order on its motion.
Amendment (5)
This amendment will insert a proposed new section 179CA into Schedule 1 of
the Bill. New section 179CA will outline the procedure and notice
requirements to revoke a preliminary unexplained wealth order under
proposed section 179C. To avoid an applicant under proposed section 179C
being confronted with additional evidence at the hearing that she or he did
not know about, the CDPP will be required to provide an applicant with the
affidavits it proposes to rely on to contest the application. The CDPP will
be required to provide copies of any affidavits it intends to rely on
within a reasonable time before the section 179C hearing. Similarly, the
applicant will be required to provide the CDPP with written notice of their
application and a copy of any affidavit supporting their application to
revoke a preliminary unexplained wealth order. This amendment will ensure
that the procedure for applying to revoke a preliminary unexplained wealth
order is clear and that both sides are provided with all relevant
information before the hearing.
Amendment (6)
This amendment will amend proposed paragraph 179E(2)(a) in Schedule 1 of
the Bill to refer to the "whole, or any part of a person's *wealth." This
amendment is necessary because, on a literal reading of the previously
proposed paragraph 179E(2)(a), if a court is not satisfied that all of a
person's wealth was derived from one of the specified offences, it may not
make an unexplained wealth order, even if it is satisfied that some of the
person's wealth was derived from the offences. A literal interpretation of
the current wording would frustrate the purpose of the provision. This
amendment will ensure that an unexplained wealth order can be made when
some or all of a person's wealth was derived from one of the specified
offences.
This amendment will also ensure that the terminology used in proposed
paragraph 179E(2)(a) is consistent with the other sections in Chapter 2
(the confiscation scheme) of the Act, in particular, proposed
subparagraphs 20A(1)(g)(ii), 20A(3)(c)(ii) and 179S(3)(b)(ii).
Amendment (7)
This amendment will delete subparagraph 179E(2)(b)(ii) from Schedule 1 of
the Bill and replace it with a proposed new subparagraph which provides
that an amount a court specifies a person is liable to pay to the
Commonwealth (the unexplained wealth amount) is reduced by any amount
deducted under proposed section 179J. Proposed section 179J will allow for
the reduction of an unexplained wealth amount to take into account
forfeiture, pecuniary penalties and literary proceeds orders. It is
appropriate to make this amendment to proposed subparagraph 179E(2)(b)(ii)
to ensure that when a court makes an order requiring a person to repay an
amount in unexplained wealth, that the amount is reduced by the amount of
money or property already forfeited or paid.
Amendment (8)
This amendment will delete the words "including information that could not
have reasonably been ascertained before the application was made" from
proposed subsection 179E(4) in Schedule 1 of the Bill. On a strict
interpretation, the inclusion of those words might be unduly limiting and a
court might only admit additional evidence if it could not have been
ascertained before the application was made. This amendment will ensure
that the court, when making an unexplained wealth order under proposed
section 179E, may have regard to all relevant information. The CDPP may
have been aware of information that it did not consider relevant at the
time of the application and for this reason did not include it in the
affidavit. In the intervening period since the application was made, that
information might become relevant as further facts come to light. For
example, because of submissions made by a person against whom the
unexplained wealth order is sought. It is important that when making an
unexplained wealth order, the court has regard to all relevant information,
whether or not it was reasonably ascertainable at the time the original
application was made.
Amendment (9)
This amendment will insert proposed new subsection 179E(6) into Schedule 1
of the Bill to provide the court with a discretion to refuse to make an
unexplained wealth order if the court considers it is not in the public
interest to do so. This amendment will implement recommendation 2 of the
Senate Committee's report on the Bill.
Amendment (10)
This amendment will make a minor amendment to proposed subsection 179L(1)
in Schedule 1 of the Bill to make it clear that an unexplained wealth order
is made in relation to a particular person. Proposed section 179L outlines
the process for relieving certain dependants from hardship in certain
circumstances. One of the requirements is that the person who receives a
payment for hardship must be a dependant of the person to whom the
unexplained wealth order relates. This amendment will ensure consistency
within proposed section 179L.
Amendment (11)
This amendment will amend proposed section 179L (relieving certain
dependants from hardship) in Schedule 1 of the Bill to ensure the provision
operates as intended. The effect of the amendment will be that the
Commonwealth will only be required to pay an amount to a dependant after a
person (to whom the unexplained wealth order relates) has satisfied his or
her debt to the Commonwealth in relation to the unexplained wealth amount.
This amendment is necessary because, unlike forfeiture orders, unexplained
wealth orders do not involve a person forfeiting property to the
Commonwealth. Rather, the person pays his or her unexplained wealth amount
to the Commonwealth. It is possible that, as drafted in the Bill, the
provision could be interpreted as requiring the Commonwealth to pay an
amount to a dependant to relieve hardship, where a person to whom the order
relates, has not paid, or otherwise satisfied the unexplained wealth
amount. These amendments will ensure that the Commonwealth is only
required to pay an amount to relieve hardship where it has actually
received an unexplained wealth amount.
Amendment (12)
This amendment will make a minor amendment to proposed subsection 179L(2)
in Schedule 1 of the Bill to make it clear that the Commonwealth cannot be
required to pay an amount to relieve hardship which exceeds the unexplained
wealth amount owed by a person.
Amendment (13)
This amendment will make a minor amendment to proposed paragraph 179N(2)(b)
in Schedule 1 of the Bill to make it clear that the CDPP must provide a
copy of the application and affidavit referred to in proposed
subsection 179B(2) (affidavit requirements when seeking a preliminary
unexplained wealth order) to a person who would be subject to an
unexplained wealth order, if it were made, within seven days of a court
making a preliminary unexplained wealth order. The provision as currently
worded in the Bill referred to "any" affidavit. This amendment will ensure
it instead refers to the specific affidavit relied upon in seeking the
preliminary unexplained wealth order.
Amendment (14)
This amendment will improve the procedure for providing notice of an
application for an unexplained wealth order by replacing proposed
subsections 179N(3), (4) and (5) in Schedule 1 of the Bill with a
simplified process for giving notice in new subsections 179N(3) and (4).
This amendment will require the CDPP to provide a copy of any other
affidavit supporting the application for an unexplained wealth order.
Copies must be provided to any person who would be affected by the order if
it were made and must be provided within a reasonable time before the
hearing.
Amendment (15)
This amendment will delete section 179Q in Schedule 1 of the Bill and
insert a proposed new section 179Q outlining the procedure on application
and other notice requirements for unexplained wealth orders. The amendment
will provide that a person who would be subject to an unexplained wealth
order if it were made, may appear and adduce evidence at the hearing. The
CDPP is also permitted to appear and adduce evidence at the hearing. This
amendment will require a person who intends to adduce evidence at an
unexplained wealth order hearing (under proposed section 179E) to give the
CDPP written notice of the grounds on which the person proposes to contest
the order. The requirement that a person inform the CDPP of the grounds on
which they intend to contest the order will ensure that both parties are
aware of the issues in dispute prior to the hearing. The CDPP will have an
obligation to provide copies of affidavits it intends to rely upon as
outlined at amendment (14).
Amendment (16)
This amendment will amend the definition of "property or wealth being
lawfully acquired" in proposed section 366A in Schedule 1 of the Bill by
removing "any" at the beginning of proposed subsection 336A(b). It is
possible that the word "any" before "consideration" in the subsection
suggests that, where property is partly acquired with legitimate funds and
partly with illegitimate funds, proposed section 366A would render the
whole of the property as lawfully obtained. This interpretation would
frustrate the purpose of the provision. This amendment will ensure that
where property is purchased with partly illegitimate funds, it cannot be
treated as wholly lawfully acquired.
Amendments to Schedule 2
Amendment (17)
This amendment will delete reference to "or Division 2 of Part 4-1" from
proposed subparagraph 266A(1)(a)(ii) in Schedule 2 of the Bill. The effect
of this amendment will be that information obtained by the Official Trustee
about controlled property under Division 2 of Part 4-1 cannot be disclosed
under proposed section 266A.
Division 2 of Part 4-1 of the Act attaches derivative use immunity (in
subsection 271(2)) to information disclosed by a natural person under the
Part, whereas the effect of proposed section 266A is that no derivative use
immunity would attach to the information to which it applies. To ensure
that subsection 271(2) and proposed section 266A are not inconsistent, it
is necessary to exclude the reference in subparagraph 266A(1)(a)(ii).
Amendment (18)
This amendment will amend item 2 of the table at subsection 266A(2) in
Schedule 2 of the Bill so that the purpose for which information may be
disclosed to law enforcement and prosecuting agencies is limited to the
investigation, prosecution or prevention of an indictable offence
punishable by imprisonment for three years or more. This amendment will
give effect to recommendation 4 of the Senate Committee's report on the
Bill.
This amendment will also insert a new item 2A into the table at proposed
subsection 266A(2), which limits the disclosure of information to foreign
law enforcement agencies to conduct, that, if it had occurred in Australia,
would constitute and indictable offence punishable by imprisonment for
three years or more. This amendment will give effect to recommendation 5
of the Senate Committee's report on the Bill.
Amendment (19)
This amendment will delete proposed subsections 266A(3), (4) and (5) in the
Bill and insert new subsections 266A(3) - (7) in Schedule 2 of the Bill.
These amendments are necessary to ensure that a direct use immunity
continues to apply to certain types of information disclosed under
section 266A.
The deletion of subsection 266A(5) is consequential upon the amendment to
subparagraph 266A (1)(a)(ii) referred to in amendment (17) above.
Proposed new subsections 266A(3) - (6) will ensure the immunities that
apply to a particular answer or document when it is first obtained under
the Act continue to apply when the answer or document is disclosed under
proposed section 266A. The subsections will provide direct use immunity in
respect of a disclosure of an answer or document, and in respect of the
fact that the person gave such an answer or document under the Act, even if
the answer or document is produced in some other form (eg a summary of a
document produced). This means, for example, that an answer given or a
document produced in an examination under Part 3-1 of the Act, and the fact
that the person gave such an answer or document, are not admissible in
civil or criminal proceedings against the person who gave the information.
This is consistent with the direct use immunity offered by section 198 for
such answers and documents.
Proposed new subsections (3) - (6) will not prevent information disclosed
under the section from being used to pursue further criminal
investigations, or other investigations under the Act. The subsections
will not operate to prevent the admission in criminal proceedings of
evidence that was obtained as a result of those investigations. For
example, a person may give an answer in an examination under Part 3-1 that
discloses information about a bank account. Proposed subsection 266A(3)
will prevent information about the bank account that is obtained directly
from the answer being admitted in proceedings against the person. However,
the section will not operate to prevent the admission of the same
information about the bank account if the information was obtained from
separate investigations, such as the execution of a search warrant under
the Crimes Act.
Proposed new subsection 266A(7) will provide that section 266A does not
affect the admissibility of any information, document or thing obtained as
an indirect consequence of a disclosure under the section. The purpose of
this amendment is to make it clear that subsections (3) - (6) create only a
direct use immunity in respect of the types of information referred to in
those provisions. This is consistent with the direct use immunity that
would have applied when the information was originally obtained under
Part 3-1 (Examinations) or Part 3-2 (Production orders).
Amendment (20)
This amendment will insert proposed new subsection 266A(8) into Schedule 2
of the Bill. The new subsection will expressly state that proposed
section 266A does not limit the operation of existing section 228(2) (which
provides that a search warrant authorises the executing officer to make
things seized under the warrant available to officers of other law
enforcement agencies). The amendment will also make it clear that
section 228 does not limit the operation of proposed section 266A. This
amendment is necessary to remove any potential uncertainty about the
interaction between the two information sharing provisions in section 228
and proposed section 266A.
Amendments to Schedule 3
Controlled operations
Amendment (21)
Proposed section 15GO sets out when an authority for a controlled operation
may be varied by an appropriate 'authorising officer' (defined at proposed
section 15GF) and the restrictions that apply to such variations. The
reference to 'no single variation' in proposed subsection 15GO(4) could
create ambiguity about whether it would be possible for an appropriate
authorising officer to make more than one variation that would, taken
together, extend the period of the authority beyond three months.
Amendment (21) will amend proposed subsection 15GO(4) to clarify that a
formal authority must not be varied such that it would, following the
variation, exceed three months.
Amendment (22)
Amendment (22) will change the title of proposed section 15GQ from
'Determination of application to vary authority' to 'Requirements for
variation of authority' to better reflect the purpose of the proposed
section as amended by amendments (23) and (24).
Amendments (23) and (24)
Proposed subsection 15GQ(1) states that the authorising officer concerned
may vary an authority after considering an application. Proposed
subsection 15GQ(2) sets out matters an authorising officer must consider
before varying an authority for a controlled operation.
Amendment (23) will amend proposed subsection 15GQ(1) to refer to an
appropriate 'authorising officer' (defined at proposed section 15GF)
instead of 'the authorising officer concerned'. This is a minor technical
amendment to maintain consistent terminology throughout the proposed
provisions.
Amendment (24) will amend proposed subsection 15GQ(2) to clarify that the
requirements listed in proposed subsection 15GQ(2) apply whether an
authorising officer is considering varying an authority on his or her own
initiative (under proposed paragraph 15GO(1)(a)) or in response to an
application from another officer made under proposed section 15GP.
No variation should be made unless the authorising officer is satisfied on
reasonable grounds of the matters set out at proposed subsection 15GQ(2).
Amendment (25)
Proposed section 15GR sets out the forms in which an authority for a
controlled operation may be varied - namely a formal variation or an urgent
variation. Amendment (25) will amend the wording of proposed
subsection 15GR(1) to explicitly refer to the two circumstances in which an
authorising officer may vary an authority, being on application or on the
authorising officer's own initiative, instead of on application or
'otherwise'. This is a minor technical amendment to clarify the proposed
provision.
Amendment (26)
Proposed section 15GT provides that a formal authority for a controlled
operation may be varied by a nominated member of the AAT. The proposed
section in the Bill is ambiguous as to the maximum total duration of a
controlled operation.
Amendment (26) will make it clear that a single variation can only extend
the period of effect of an authority by up to three months. The amendment
will also clarify that a variation cannot be made in such a way that it
would result in the period of effect of the authority exceeding 24 months
in total.
Amendments (27) and (28)
Proposed subsection 15HM(1) will provide that the chief officer of each
authorising agency for controlled operations (the AFP, the ACC and ACLEI)
must report, every six months, to the Commonwealth Ombudsman and the
Minister. Proposed subsection 15HM(2) sets out the information that must
be included in the report. Proposed subparagraph 15HM(2)(i)(ii) currently
requires the report to contain the date the controlled operation ceased, if
it ceased during that six-monthly reporting period.
Amendment (27) will amend proposed subparagraph 15HM(2)(i)(ii) to also
require every six-monthly report to contain details on the outcomes of each
controlled operation that concluded during that six month period. This
amendment seeks to address concerns raised by the Senate Committee about
the reporting requirements in the Bill.
Amendment (28) will insert new subsections 15HM(2A), (2B) and (2C) into
proposed section 15HM to require that if a controlled operation involved
illicit goods that are narcotic goods, the report on that operation must
include additional information.
New subsection 15HM(2A) will provide that the report must identify people
who had possession of the narcotic goods during the operation, whether the
goods have been destroyed, and if they have not been destroyed, further
information about their current location as set out at new
subsection 15HM(2B).
New subsection 15HM(2B) will provide that if the narcotic goods have not
been destroyed, and the identity of the person in possession of the goods
is known, the report must (if the person is a law enforcement officer)
identify the law enforcement agency to which the officer belongs or (if the
person is not a law enforcement officer), identify the person in possession
of the narcotic goods.
New subsection 15HM(2C) will provide that if the chief officer of the
authorising agency is of the view that disclosing the identity of a person
who possesses or did possess the narcotic goods in question may endanger
the person's safety or prejudice an investigation or prosecution, the
person may instead be identified by an assumed name under which the person
is operating, a code name or a code number. The subsection will also
provide that this may only be done if the chief officer can match the
assumed name, code name or code number to the person's identity. This will
ensure that personal safety and the integrity of investigations and
prosecutions are protected while still providing accountability for the
location and possession of narcotic goods.
New subsection 15HM(2C) is based on current subsection 15S(5) of the Crimes
Act.
Amendment (29)
Proposed section 15HN will require the chief officer of each authorising
agency for controlled operation (the AFP, the ACC and 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 new
Part IAB of the Crimes Act. The report will be required to contain the
details set out at proposed subsection 15HM(2) for each controlled
operation for which the agency was the authorising agency during the
previous 12 months.
As amendment (28) will insert subsections (2A), (2B) and (2C) into proposed
section 15HM, it is appropriate that the details required by these new
subsections relating to narcotic goods also be required in the chief
officers' annual reports to the Minister and to the Ombudsman.
Amendment (29) will amend proposed subsection 15HN(1) to ensure that the
annual reports to the Minister and the Ombudsman also include the details
required by new subsections 15HM(2A), (2B) and (2C).
Amendments (30) to (32)
Proposed section 15HQ will require the chief officer of each authorising
agency (the AFP, ACC and ACLEI) to ensure that a general register is kept
of all controlled operations applications and authorities. Proposed
subsection 15HQ(2) will specify the information that must be recorded in
the register.
Amendment (30) will require the general register to contain information on
the nature of the controlled conduct that was engaged in by law enforcement
and civilian participants (if any). Amendment (31) mirrors amendment (27)
and will amend paragraph 15HQ(2)(x) to require the general register to
contain details on the outcomes of each operation as well as the date on
which the operation ceased. These amendments seek to address concerns
raised by the Senate Committee about the reporting requirements in the
Bill.
Amendment (32) mirrors amendment (28) and will insert new
subsections 15HQ(2A), (2B) and (2C) into proposed section 15HQ so that the
general register will be required to include certain additional information
where a controlled operation involved illicit goods that are narcotic
goods. This amendment implements recommendation 7 of the Senate
Committee's report on the Bill.
New subsection 15HQ(2A) will provide that the general register must
identify people who had possession of the narcotic goods during the
operation, whether the goods have been destroyed, and if they have not been
destroyed, further information about their current location as set out at
new subsection 15HQ(2B). New subsection 15HQ(2B) will provide that if the
narcotic goods have not been destroyed, and the identity of the person in
possession of the goods is known, the general register must (if the person
is a law enforcement officer) identify the law enforcement agency to which
the officer belongs, or (if the person is not a law enforcement officer),
identify the person in possession of the narcotic goods.
New subsection 15HQ(2C) will provide that if the chief officer of the
authorising agency is of the view that disclosing the identity of a person
who possesses or did possess the narcotic goods in question may endanger
the person's safety or prejudice an investigation or prosecution, the
person may instead be identified in the general register by an assumed name
under which the person is operating, a code name or a code number. The new
subsection will also provide that this may only be done if the chief
officer can match the assumed name, code name or code number to the
person's identity. This will ensure that personal safety and the integrity
of investigations and prosecutions are protected while still providing
accountability for the location and possession of narcotic goods.
New subsection 15HQ(2C) is based on current subsection 15S(5) of the Crimes
Act.
Amendment (33)
Proposed 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.
Amendment (33) will limit the breadth of Ombudsman's ability to delegate
powers under the Part by removing the discretion for the Ombudsman to
delegate his or her powers to a person having similar oversight functions
under a law of a State or Territory or an employee responsible to that
person. The Ombudsman will instead be able to delegate only to an APS
employee responsible to the Ombudsman. This amendment responds to an issue
raised by the Scrutiny of Bills Committee in Alert Digest 9/2009.
The amendment will also require any delegation be made by a written
instrument of delegation.
Assumed Identities
Amendments (34) and (35)
Proposed section 15LH will specify which functions under new Part IAC of
the Crimes Act a chief officer (defined at proposed section 15K) is able to
delegate, and to whom a delegation can be made. Proposed
subsection 15LH(2) will state that the chief officer can delegate any
function under proposed Part IAC that relates to the granting, variation,
transfer or cancelling of authorities to a senior officer of the chief
officer's agency. 'Senior officer' is defined in proposed
subsection 15LH(3).
Amendments (34) and (35) will insert new paragraph 15LH(3)(i) to provide
that where regulations specify a Commonwealth agency as a 'law enforcement
agency' (under proposed paragraph (f) of the definition of 'law enforcement
agency' in proposed subsection 15K), a senior officer of that agency will
be an officer specified as such in those regulations. These amendments
will rectify a drafting oversight identified by the Senate Committee.
Witness identity protection
Amendment (36)
Amendment (36) will amend the definition of 'chief officer' in proposed
subsection 15M(1). The current definition in the Bill includes the chief
officers of both ASIO and ASIS. This amendment will limit the definition
of chief officer to the head of a 'law enforcement agency'. The model
scheme on which the witness identity protection provisions in the Bill were
based was developed for law enforcement agencies. It has become clear that
the scheme does not entirely meet the needs of intelligence agencies. This
amendment will ensure that chief officers of intelligence agencies are not
able to issue a witness identity protection certificate under the scheme.
ASIO and ASIS will instead be able to continue to rely on the court's
inherent power to protect the identity of officers and agents in court
proceedings.
This amendment will also amend the definition of 'chief officer' to
include, where regulations specify a Commonwealth agency as a 'law
enforcement agency', an officer specified as such in those regulations.
This amendment implements part of recommendation 9 of the Senate
Committee's report on the Bill.
Amendment (37)
Amendment (37) will omit the definition of 'intelligence agency' from
proposed subsection 15M(1) of the Crimes Act. 'Intelligence agency' was
defined as ASIO and ASIS. This amendment will remove ASIO and ASIS from
the operation of the witness identity protection scheme. The model scheme
on which the witness identity protection provisions in the Bill were based
was developed for law enforcement agencies. It has become clear that the
scheme does not entirely meet the needs of intelligence agencies. ASIO and
ASIS will instead be able to continue to rely on the court's inherent power
to protect the identity of officers and agents in court proceedings.
Amendment (38)
Amendment (38) will omit the definition of 'National Witness Protection
Program' from proposed subsection 15M(1). This term does not need to be
defined as it is not used in proposed Part IACA of the Crimes Act.
Amendment (39)
Amendment (39) will amend the definition of 'operative' in proposed
subsection 15M(1). 'Operative' is defined in the Bill as a person who is
or was a participant in a controlled operation authorised under Part IAB,
or authorised to acquire and use an assumed identity under Part IAC. This
amendment will limit the definition to exclude any person who is or was an
intelligence officer, or any person who is or was authorised to use an
assumed identity by an intelligence agency. This will ensure that
intelligence agencies are not included in the proposed witness identity
protection scheme. The model scheme on which the witness identity
protection provisions in the Bill were based was developed for law
enforcement agencies. It has become clear that the scheme does not
entirely meet the needs of intelligence agencies. ASIO and ASIS will
instead be able to continue to rely on the court's inherent power to
protect the identity of officers and agents in court proceedings.
Amendment (40)
Proposed section 15MD will outline the application of proposed new
Part IACA of the Crimes Act. Amendment (40) will insert new
subsection 15MD(3) to clarify that the provisions in proposed Part IACA are
not intended to operate to limit the ability of a court to control
proceedings before it. The provisions do not affect a court's inherent
powers to control its own proceedings.
Amendment (41)
Proposed section 15ME of the Crimes Act will set out who is able to 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.
Amendment (41) will amend proposed subsection 15ME(1) to limit who is able
to issue a witness identity protection certificate to the chief officer of
a law enforcement agency. The model scheme on which the witness identity
protection provisions in the Bill were based was developed for law
enforcement agencies. It has become clear that the scheme does not
entirely meet the needs of intelligence agencies. ASIO and ASIS will
instead be able to continue to rely on the court's inherent power to
protect the identity of officers and agents in court proceedings.
Amendments (42) to (44)
Proposed section 15MF will require an operative to make a statutory
declaration, setting out certain matters, before a witness identity
protection certificate can be given. As intelligence agencies will no
longer be included in the witness identity protection scheme,
amendments (42) to (44) remove references to 'intelligence officer' in
paragraphs 15MF(1)(c), 15MF(3)(b) and (c).
Amendment (45)
Proposed subsection 15MG(1) will set out the information that will be
required to be included in a witness identity protection certificate. As
intelligence agencies will no longer be included in the witness identity
protection scheme, this amendment will remove the reference to
'intelligence officer' in proposed paragraph 15MG(1)(h).
Amendments (46) to (48)
Proposed section 15MH will set out the requirements for filing, and giving
copies of, the witness identity protection certificate ahead of an
operative giving evidence. These requirements are necessary to ensure that
other parties to the proceeding have sufficient notice that there will be a
witness in the proceeding whose true identity will be protected. Proposed
subsection 15MH(1) will require a certificate to be filed in the court
prior to the operative giving evidence in the proceeding. Proposed
subsection 15MH(2) states that once filed, a copy of the certificate must
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.
Proposed subsection 15MI(1) as currently drafted would allow the court to
give leave for the person to not comply with one or more of the
requirements of proposed section 15MH. This would technically allow a
witness identity protection certificate to take effect without being
provided to the court or to the other party.
Amendment (46) will limit the scope of proposed section 15MI so that the
only requirement that a person may be given leave not to comply with is the
timing requirement imposed under subsection 15MH(2) (14 days or a shorter
period agreed to by the other party).
Amendment (47) will amend proposed subsection 15MH(2) so that the court
must not give leave under proposed subsection 15MI(1) unless satisfied that
it was not reasonably practicable to comply with the requirements outlined
in proposed subsection 15MH(2).
Amendment (48) will omit proposed subsection 15MI(3). This subsection will
not be necessary as there will be no circumstance in which leave could be
given by a court for a certificate not to be filed in accordance with
proposed subsection 15MH(1).
Amendments (49) and (50)
Proposed 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 an operative. Proposed subsection 15MK(2) will make it an offence for a
person to engage in conduct that contravenes an order made by the court
under proposed section 15MK. Proposed subsection 15MK(3) would make it
clear that the offence in proposed subsection 15MK(2) will not limit the
court's inherent power to punish a person who contravenes an order with
contempt of court.
Proposed subsection 15MK(4) will require the court to make an order
suppressing the publication of anything said when an order is made under
proposed subsection 15MK(1) to protect the identity of the operative.
Proposed subsection 15MK(5) will allow a court to make an order for how the
court transcript is to be dealt with, including an order suppressing its
publication. Although proposed subsections 15MK(4) and (5) allow a court
to make an order, there is no offence in the Bill for breaching an order
made by the court under those subsections.
Amendments (49) and (50) will omit proposed subsections 15MK(2) and (3) and
insert new subsections 15MK(6) and (7). These subsections will be based on
subsection 15MK(2) and (3) but will make it an offence, punishable by
imprisonment for two years, to engage in conduct that contravenes an order
made under proposed subsections 15MK(1), (4) or (5). New
subsection 15MK(7) will clarify that subsection 15MK(6) will not limit the
court's power to punish for contempt.
Amendment (51)
Proposed 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 as a respondent to an application for
leave under proposed sections 15MI or 15MM, or an order under proposed
sections 15MK or 15MM. The intention of this section is to ensure the
court is provided with relevant information about why the operative's
identity should not be disclosed.
Proposed section 15MP would allow a party to seek an adjournment to allow
time for that party to appeal or to decide whether to appeal a decision of
the court (under proposed sections 15MI, 15MK or 15MM).
Amendment (51) will omit proposed section 15MP and replace it with a new
section to provide the court with discretion to allow an operative or a
chief officer to:
. seek an adjournment to decide whether to appeal a decision or order
under proposed sections 15MI, 15MK or 15MM
. appeal against a decision or order, or
. be joined as a respondent to an appeal against a decision or order.
This amendment is consistent with the policy intention of proposed
section 15MN which allows an operative, or the chief officer of the agency
who gave the certificate, to make representations to the court as to why
the operative's identity should not be disclosed.
New subsection 15MP(1) will state that the section will apply if a court
gives or refuses to give leave under proposed sections 15MI or 15MM or the
court makes, or refuses to make, an order under proposed sections 15MK
or 15MM.
New subsection 15MP(2) will ensure that a court that has jurisdiction to
hear and determine appeals from a judgement will also have jurisdiction to
hear and determine an appeal against a decision to give or refuse leave, or
make or refuse to make an order.
New subsection 15MP(3) will ensure that a party to the proceedings, or the
operative or chief officer who gave the certificate, is able to appeal a
decision to give or refuse leave or make or refuse to make an order. An
operative or chief officer who gave the certificate will only be able to
appeal if the court is satisfied that they have a sufficient interest in
the decision.
New subsection 15MP(4) will ensure that where a party to the proceedings
appeals a decision to give or refuse leave, or make or refuse to make an
order, the appeal court may allow the operative or chief officer who gave
the certificate to join the appeal as a respondent. This amendment is
consistent with the proposed section 15MN, which allows the operative or
chief officer to be joined as a respondent to an application for leave or
an order. It is also appropriate that the operative or chief officer can
be heard in an appeal to that decision. The operative or chief officer can
only be joined if the appeal court is satisfied that they have a sufficient
interest in the decision.
New subsections 15MP(5) and (6) will be based on proposed
subsections 15MP(1) and (2) of the Bill but will extend the application of
the provision to the operative and chief officer who issued the
certificate. New subsection 15MP(5) will allow a party to the proceeding,
or the operative or the chief officer who issued the certificate, to apply
to the original court for an adjournment to appeal, or decide whether to
appeal, a decision to give or refuse leave, or make or refuse to make an
order. New subsection 15MP(6) will state that if such an application is
made to the court, the court must grant the adjournment. An adjournment is
appropriate because otherwise the appeal would not take place until after
the operative's true identity had been disclosed. This would frustrate the
objectives of the witness identity protection regime.
Amendment (52)
Proposed 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. As intelligence
agencies will no longer be included in the witness identity protection
scheme, this amendment will remove the reference to the chief officer of an
intelligence agency in proposed subsection 15MQ(1). The model scheme on
which the witness identity protection provisions in the Bill were based was
developed for law enforcement agencies. It has become clear that the
scheme does not entirely meet the needs of intelligence agencies. ASIO and
ASIS will instead be able to continue to rely on the court's inherent power
to protect the identity of officers and agents in court proceedings.
Amendment (53)
Proposed 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. As intelligence agencies will no
longer be included in the witness identity protection scheme, this
amendment will remove the reference to the chief officer of an intelligence
agency in proposed subsection 15MR(1). The model scheme on which the
witness identity protection provisions in the Bill were based was developed
for law enforcement agencies. It has become clear that the scheme does not
entirely meet the needs of intelligence agencies. ASIO and ASIS will
instead be able to continue to rely on the court's inherent power to
protect the identity of officers and agents in court proceedings.
Amendment (54)
Proposed 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 proposed 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, where 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. Amendment (54)
will amend proposed paragraph 15MS(3)(f) to align the offences more closely
with the circumstances in which a certificate can be issued under proposed
section 15ME. As these are designed to protect the identity of the
operative or operation, it is appropriate that the offences are targeted to
protect the same matters. The amendment will make it an offence for a
person to engage in conduct being reckless as to whether the conduct will
prejudice:
. any current or future investigation, or
. any current or future activity relating to security.
Amendment (55)
Proposed section 15MT will allow a chief officer to sign a certificate
stating whether a certificate has been cancelled, or whether the conduct
that is the subject of an offence was required, authorised by or permitted
under proposed sections 15ML, 15MM or 15MR. As intelligence agencies will
no longer be included in the witness identity protection scheme, this
amendment will remove the reference to the chief officer of an intelligence
agency in proposed subsection 15MT(1). The model scheme on which the
witness identity protection provisions in the Bill were based was developed
for law enforcement agencies. It has become clear that the scheme does not
entirely meet the needs of intelligence agencies. ASIO and ASIS will
instead be able to continue to rely on the court's inherent power to
protect the identity of officers and agents in court proceedings.
Amendments (56) to (58)
Proposed sections 15MU and 15MV would require the chief officer of a law
enforcement agency or intelligence agency to submit an annual report to the
Minister and to the Inspector-General of Intelligence and Security
respectively about the certificates given during that year.
Amendment (56) will amend the heading to proposed section 15MU to remove
the reference to 'law enforcement agencies'. As the scheme will no longer
apply to intelligence agencies, proposed section 15MU will not need to be
explicitly limited to law enforcement agencies.
Amendment (57) is consequential to amendment (41). Proposed
paragraph 15MU(2)(b) currently refers to proposed paragraph 15ME(1)(d).
This paragraph will be replaced with paragraph 15ME(1)(b) by
amendment (41).
Amendment (58) will omit proposed section 15MV, which currently sets out
the reporting requirements which apply to intelligence agencies. As the
scheme will no longer apply to intelligence agencies, this section is no
longer necessary.
Amendments (59) and (60)
Proposed 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.
As the witness identity protection scheme will no longer apply to
intelligence agencies, amendment (59) will remove the reference to
intelligence agency in proposed subsection 15MX(1) and amendment (60) will
remove proposed paragraphs 15MX(3)(e) and (f) which define 'senior officer'
in relation to ASIO and ASIS. The model scheme on which the witness
identity protection provisions in the Bill were based was developed for law
enforcement agencies. It has become clear that the scheme does not
entirely meet the needs of intelligence agencies. ASIO and ASIS will
instead be able to continue to rely on the court's inherent power to
protect the identity of officers and agents in court proceedings.
Amendment (60) will also insert a definition of 'senior officer' of a
Commonwealth agency which has been specified in the regulations under
proposed paragraph (f) of the definition of 'law enforcement agency' in
subsection 15M. New paragraph 15MX(3)(e) will provide that, where
regulations specify an agency as a 'law enforcement agency', a senior
officer of that agency will be the officer specified in those regulations
to be a senior officer of that agency. This amendment will implement part
of recommendation 9 of the Senate Committee's report on the Bill.
Amendments to Schedule 4
Amendment (61)
Amendment (61) will insert a new heading for Division 1 of Schedule 4, Part
2 of the Bill, which refers to offences involving criminal organisations.
Amendment (62)
Amendment (62) will amend the definition of 'serious offence' in section 5D
of the TIA Act to include offences against section 93T of the Crimes Act
1900 (NSW).
As well as the provisions in the C(COC)A, section 93T of the Crimes Act
(NSW) contains offences committed by and on behalf of criminal groups,
including directing the activities of a criminal organisation and
assaulting a police officer on behalf of a criminal organisation. The
definition of a criminal group under section 93T is the same as for a
criminal organisation which can be declared under the C(COC)A.
Organised crime offences in other jurisdictions that are similar to
section 93T of the Crimes Act (NSW), will have telecommunications
interception available to investigate declared criminal organisations. The
inclusion of section 93T of the Crimes Act ensures there is a nationally
consistent approach to combating organised crime.
Amendment (63)
This amendment will omit and substitute item 18 of Schedule 4 of the Bill.
This will enable conduct within the meaning of new subsection 5D(3AA) at
amendment (62) and proposed subsection 5D(9) at item 17 of Schedule 4 of
the Bill, to be investigated whether or not the conduct in question
occurred before or after the conduct was included in the definition of
"serious offence".
Amendment (64)
This amendment will insert new Division 2 into Schedule 4, Part 2. The
Division will set out the provisions relating to the use of information for
purposes of organised crime control laws.
Item 18A will insert a definition of 'organised crime control law' into
section 5 of the TIA Act. This will ensure that where a law of a State
relates to combating organised crime or restricting the activities of
criminal organisation, State interception agencies will be able to use and
disclose lawfully intercepted information in certain prescribed
circumstances.
The TIA Act allows lawfully intercepted information to be used to
investigate criminal conduct which is linked to many criminal organisations
as well as conduct of organisations which have been declared organisations
under a relevant State law. This amendment will accommodate the nexus
between the two points.
New item 18B will add conjunctions at the end of a number of the
subparagraphs of subsection 5(1) of the definition of 'permitted purpose'
for consistency with current drafting practice.
New item 18C will amend the definition of 'permitted purpose' in section 5
of the TIA Act. This will allow State and Territory interception agencies
to use lawfully intercepted information in the preparation and making of
applications for declarations of criminal organisations and control orders
against individual members of such organisations.
The TIA Act contains a general prohibition on the use of lawfully
intercepted information, subject to limited exceptions. One such exception
is the use or disclosure of information for a 'permitted purpose' as
defined in section 5 of the TIA Act.
New item 18D will amend section 5B of the TIA Act to include in the
definition 'exempt proceedings', proceedings relating to matters arising
under 'organised crime control laws'.
This amendment will enable a person to give lawfully intercepted
information in evidence in 'exempt proceedings' under section 74 of the TIA
Act for the declaration of an organisation as a criminal organisation or to
assist applications for control orders against individual members of such
organisations.
New item 18E adds conjunctions at the end of a number of the paragraphs of
subsection 6L(1) of the definition of 'relevant proceeding' for consistency
with current drafting practice.
New items 18F and 18G will amend section 6L of the TIA Act to include in
the definition of 'relevant proceeding', proceedings relating to matters
arising under 'organised crime control laws'.
The definition of 'permitted purpose' allows the use and communication of
lawfully intercepted information to be used in the decision of whether or
not to commence a 'relevant proceeding' and for the relevant proceeding
itself.
This amendment will have the same effect as the amendment to 'permitted
purpose' at new item 18C, including its application to information that was
obtained before commencement, but will apply to applications for
declarations and control orders which are decided by a court.
New item 18H will amend section 68 of the TIA Act to allow the
communication of lawfully intercepted information to recipient agencies for
the purpose of preparing or making an application for a declaration of a
criminal organisation or a control order for members of such organisations.
This amendment will assist agencies involved in joint operations
established to combat organised crime. It will ensure agencies can
exchange information in order to compile the strongest possible case for an
application for a declaration or a control order.
New item 18J will enable the communication, use and making of a record of
information, and the giving of information in evidence in proceedings, on
or after the commencement of this item, whether the information was
obtained before or after that commencement.
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