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2008-2009-2010
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
CRIMES LEGISLATION AMENDMENT
(SERIOUS AND ORGANISED CRIME) BILL (No. 2) 2009
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 (No. 2)
2009
GENERAL OUTLINE
To strengthen the Commonwealth response to organised crime, the Crimes
Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 will:
. strengthen criminal asset confiscation and anti-money laundering laws
(Schedule 1 and Schedule 5, Part 2)
. enhance search and seizure powers and the ability of law enforcement to
access data from electronic equipment (Schedule 2)
. improve the operation of the National Witness Protection Program,
including by increasing protection for current and former participants
and officers involved in its operation (Schedule 3)
. introduce new offences that would target persons involved in organised
crime, and facilitate greater access to telecommunications interception
for the investigation of new serious and organised crime offences
(Schedule 4)
. improve the operation and accountability of the Australian Crime
Commission (Schedule 7)
. improve money laundering, bribery, and drug importation offences
(Schedule 5, Part 1, and Schedules 8 and 9), and
. make minor and consequential amendments to correct references to
provisions dealing with the extension of criminal liability (Schedules
10 and 11).
The Bill was introduced in the House of Representatives on
16 September 2009 and was referred to the Senate Standing Committee on
Legal and Constitutional Affairs, which reported on 16 November 2009. The
Senate Committee made six substantive recommendations. The proposed
Government amendments will implement three of those recommendations and
address issues identified by the Senate Committee during its consideration
of the Bill.
The proposed amendments will also address minor and technical issues
relating to the operation of the Proceeds of Crime Act 2002, including
those identified through 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
ACC Australian Crime Commission
CAA Confiscated Assets Account
Senate Committee Senate Standing Committee on Legal and Constitutional
Affairs
The Bill Crimes Legislation Amendment (Serious and Organised Crime)
Bill (No. 2) 2009
NOTES ON CLAUSES
Amendments to Schedule 1
Amendment (1)
Proposed section 266A, which would be inserted into the Proceeds of Crime
Act by the Crimes Legislation Amendment (Serious and Organised Crime) Bill
2009, will allow a person to disclose certain information to a specified
authority for certain purposes. The section will only apply if the person
disclosing the information believes on reasonable grounds that the
disclosure will serve that purpose.
Proposed subsection 266A(1) of the Proceeds of Crime Act sets out the
information to which the section applies. Currently, this includes
information obtained as a direct result of the person being given a sworn
statement under an order made under paragraph 39(1)(d) of the Act.
Paragraph 39(1)(d) allows a court to make an ancillary order directing an
owner of specified property to give a sworn statement setting out
particulars of, or dealings with, that property.
This amendment will insert into proposed subsection 266A(1) a reference to
proposed paragraphs 39(1)(ca) and (da), to be inserted by this Bill. Those
provisions will allow a court to direct a suspect in relation to a
restraining order, or a person who a court is satisfied there are
reasonable grounds to suspect has information relevant to identifying,
locating or quantifying specified property, to provide a sworn statement
setting out certain matters.
The amendment will expand the range of information that may be disclosed
under proposed section 266A by applying the provision not only to sworn
statements given by an owner (or previous owner) of property, but also by
suspects in relation to a restraining order, and persons whom there are
reasonable grounds to suspect have information relevant to the property.
Amendment (2)
Subsection 298(1) of the Proceeds of Crime Act currently permits the
Minister to approve expenditure out of the Confiscated Assets Account (CAA)
on programs in a particular financial year, provided the expenditure is for
one or more purposes specified under subsection 298(2) (for example, crime
prevention or law enforcement measures).
However, difficulties arise where a program extends over a number of years
and requires progress payments. In effect this requires a re-approval
process each year which is artificial and inefficient. This amendment
would remove the words 'in a particular financial year' from subsection
298(1) so that the Minister will be able to approve progress payments for
an approved program over a period of years.
Amendment (3)
Section 297 of the Proceeds of Crime Act sets out the purposes for which
funds may be paid out of the CAA. Item 207 of Schedule 1 of the Bill
amends section 297 to expressly provide that the funds in the CAA may be
used to make payments that the Commonwealth is directed to make by a court
order under certain provisions of the Proceeds of Crime Act. These
provisions include, for example, relief of hardship payments to dependants
of persons whose property is specified in a non-conviction forfeiture order
(section 72).
The Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009
will insert into the Proceeds of Crime Act proposed section 179L, which
relates to the relief of hardship for dependants of a person against whom
an unexplained wealth order has been made.
This amendment will amend item 207 of the Bill to insert a reference to
proposed section 179L in proposed new paragraph 297(1)(fa). The effect of
this amendment will be that payments for orders under section 179L may also
be made out of the CAA. This amendment will ensure that the Act gives
clear guidance on the source of funds for these payments.
Amendments to Schedule 2
Amendment (4)
Section 3L of the Crimes Act 1914 governs the use of electronic equipment
at a search warrant premises. Proposed item 16, Part 2 of Schedule 2 to
the Bill will repeal and replace subsection 3L(1) of the Crimes Act. The
proposed item removes the requirement for the executing officer or a
constable assisting to have reasonable grounds to believe that data
accessible from a piece of equipment might constitute evidential material
before operating the equipment to access that data. Proposed new
subsection 3L(1) states that when executing a warrant, the executing
officer or a constable assisting may operate electronic equipment at the
warrant premises to access data (including data not held at the premises).
This amendment will amend proposed new subsection 3L(1) to provide that the
executing officer may only operate electronic equipment at the warrant
premises to access data (including data not held at the premises) if he or
she suspects on reasonable grounds that the data constitutes evidential
material. This amendment will implement recommendation 6 of the Senate
Committee's report on the Bill.
Amendments to Schedule 4
The Bill will insert in the Criminal Code Act 1995 proposed new subsection
390.3, which will create two offences that target associating in support of
serious and organised criminal activity. The purpose of these offences is
to deter persons from supporting organised crime by criminalising
association with other persons involved in organised criminal activity.
Under proposed subsection 390.3(1), it will be an offence to associate on
two or more occasions with another person, where the association
facilitates the engagement by the other person in serious and organised
criminal activity. This offence will be punishable by a maximum penalty of
three years imprisonment.
The proposed repeat offence under subsection 390.3(2) will apply where a
person has already been convicted of an offence under the basic offence
(proposed subsection 390.3(1)). It will require proof by the prosecution
of the same elements as the basic offence, except that the prosecution will
only need to prove that the first person associated with the second person
on one further occasion, given the requirement for there to have been a
previous conviction under proposed subsection 390.3(1). This offence will
also be punishable by a maximum penalty of three years imprisonment.
Amendment (5)
Proposed paragraphs 390.3(1)(c) and 390.3(2)(d) require that, for a person
to commit an offence (under subsections 390.3(1) or 390.3(2) respectively),
the associations must have facilitated the engagement or proposed
engagement by the second person in the second person's conduct. As these
physical elements of the offences are a result of conduct, section 5.6 of
the Criminal Code would apply the default fault element of recklessness to
that physical element.
This amendment will insert a new subsection 390.3(3A), which will state
that the fault element for paragraphs 309.3(1)(c) and (2)(d) is intention.
This will displace the default fault element of recklessness. A person
will have intention with respect to a result if he or she means to bring it
about or is aware that it will occur in the ordinary course of events
(subsection 5.2(3) of the Criminal Code). Therefore, for a person to be
guilty of an offence under proposed subsections 390.3(1) or (2), the
prosecution will need to prove beyond reasonable doubt that the person
charged with the offence associated with the second person:
. meaning to facilitate the second person's engagement in criminal
conduct, or
. while being aware that the association will, in the ordinary course of
events, facilitate the second person's engagement in criminal conduct.
This amendment will implement recommendation 1 of the Senate Committee's
report.
Amendment (6)
Proposed subsection 390.3(6) will set out a defence to the offences in
proposed subsections 390.3(1) and (2) for certain kinds of legitimate
associations. For example, the offence will not apply where the
association is with a close family member and relates only to a matter that
could reasonably be regarded as a matter of family or domestic concern
(paragraph 390.3(6)(a)). Further specific exceptions include associations
relating to public religious worship (paragraph (b)), humanitarian aid
(paragraph (c)) and legal advice or representation with respect to certain
specified proceedings (paragraphs (d), (e) and (f)).
This amendment will repeal the defences relating to legal representation in
proposed paragraphs 390.3(6)(d) - (f). They will be replaced with a
general defence which will apply where the association was for the purpose
of providing legal advice or representation in relation to any civil or
criminal proceedings, not just criminal, declaration or passport
proceedings (proposed new paragraph 390.3(6)(d)). This will ensure that
legal advice is available to persons on any matter, and that those
providing legal advice are able to do so without fear of prosecution.
This amendment will also insert a general defence where the association was
reasonable in the circumstances (proposed new paragraph 390.3(6)(e). This
will ensure that the court retains discretion in circumstances not
explicitly dealt with in proposed subsection 390.3(6) to make a finding
that the association was legitimate in the specific case. This amendment
will implement recommendation 2 of the Senate Committee's report.
Amendment (7)
This amendment will insert a new paragraph 390.3(6A) to clarify that each
of the defences in proposed subsection 390.3(6) will not limit one another.
For instance, it will ensure that proposed paragraph 390.3(6)(e) will not
have the effect that the exceptions in the other paragraphs of proposed
subsection 390.3(6) need also to be reasonable in the circumstances. For
example, if a person associates in a place being used for public religious
worship and takes part in the course of practising a religion, then it will
not matter whether the association was reasonable in the circumstances.
Amendments (8) and (9)
Proposed subsection 390.3(7) will provide that a person who is convicted of
the offence in proposed subsection 390.3(1) will not be liable to be
punished again under proposed subsection 390.3(1) for other conduct engaged
in by the person that takes place at the same time as, or within 7 days
before or after, any of those occasions that led to the original
conviction. This will avoid the prospect of a multiplicity of charges
concerning the same course of conduct.
This subsection would only address multiplicity of charges under proposed
subsection 390.3(1). The amendments will replace the references to
subsection (1) with a reference to both subsections (1) and (2). This will
prevent multiplicity of charges in relation to the repeat offence under
proposed subsection 390.3(2) as well as the offence in proposed
subsection 390.3(1).
Amendments to Schedule 7
Item 18 of Schedule 7 to the Bill will insert new proposed sections 34A
to 34F in the Australian Crime Commission Act 2002 to enable an Australian
Crime Commission (ACC) examiner to refer a witness who is not cooperating
with an examination to a court to be dealt with as if the person was in
contempt of that court. Proposed subsection 34D(1) will provide that if an
ACC examiner proposes to make an application under proposed
subsection 34B(1) for a person to be dealt with by a court in relation to
contempt of the ACC, he or she may direct a constable to detain the person
for the purpose of bringing the person before the court to which the
application was made.
This amendment will amend proposed subsection 34D(2) to clarify that it is
the examiner, not the ACC, who must apply to the court as soon as
practicable under subsection 34B(1) if a person is detained under proposed
section 34D(1). This will make proposed subsection 34D(2) consistent with
proposed section 34B, which clearly states that it is the examiner who may
apply to a court for a person to be dealt with for contempt of the ACC.
This amendment will address an issue raised by the Senate Committee during
its consideration of the Bill.
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